Chapter 5: The Transfer of Property Act, 1882 – Exhaustive Article-by-Article Analysis
Chapter 5: The Transfer of Property Act, 1882 – Exhaustive Article-by-Article Analysis
By Afzal Hosen Mandal, Legal Advisor & Digital Law Specialist, Afzal & Associates
Published: | Updated: | Reading Time: 75 minutes | Word Count: ~14,500
This chapter is Part II: Legislative Anatomy and Doctrinal Exegesis of the Ultimate Professional Treatise on Land Registration and Property Law in Bangladesh.
📑 Table of Contents
- 1. Introduction and Interpretation Clause (Sections 1–3)
- 2. Operation of Transfer and Conditions Restraining Alienation (Sections 5–12)
- 3. Doctrine of Part Performance (Section 53A)
- 4. Sale of Immovable Property (Sections 54–57)
- 5. Doctrine of Lis Pendens (Section 52)
- 6. Fraudulent Transfers (Section 53)
- 7. Ostensible Owner and Estoppel (Section 41)
- 8. Mortgages: Types, Rights, and Redemption (Sections 58–104)
- 9. Leases of Immovable Property (Sections 105–117)
- 10. Exchanges (Sections 118–121)
- 11. Gifts and the Muslim Personal Law Exception (Sections 122–129)
- 12. Charges (Sections 100–101)
- 13. Easements and Appurtenant Rights
- 14. Comparison with Indian Transfer of Property Act
- Chapter References and Further Reading
- How to Cite This Chapter
1. Introduction and Interpretation Clause (Sections 1–3)
The Transfer of Property Act, 1882 (Act No. IV of 1882), is the cornerstone of substantive property law in Bangladesh. It governs the inter vivos transfer of immovable property—that is, transfers between living persons, as distinct from testamentary dispositions (wills) or intestate succession, which are governed by personal laws. The Act was drafted by the Second Law Commission of British India, chaired by Sir John Romilly, and was enacted on 17 February 1882. It came into force on 1 July 1882.
The Act embodies a deliberate and self‑conscious transplantation of English conveyancing principles into the Indian legal context, though it was adapted to accommodate indigenous legal traditions, most notably the exemption of Muslim gifts (hiba) from the registration requirements of Chapter VII.
Section 1: Short Title and Commencement
Section 1 provides that the Act may be cited as the Transfer of Property Act, 1882. It extends to the whole of Bangladesh (originally to the whole of British India, and after partition, to East Pakistan and subsequently Bangladesh by virtue of the Bangladesh Laws (Revision and Declaration) Act, 1973). It came into force on 1 July 1882.
Section 2: Saving Clauses – The Personal Law Exception
Section 2 is one of the most important provisions of the Act for the Bangladeshi practitioner. It carves out specific exceptions from the Act's operation:
Section 2(d): "Nothing in the second chapter of this Act shall be deemed to affect any rule of Muhammadan law."
This is the Muslim personal law exception. The "second chapter" refers to Sections 5 to 53A, which deal with transfers of property by act of parties (sale, mortgage, lease, exchange, gift). The effect of Section 2(d) is that the TPA's provisions on these matters do not override the rules of Muslim personal law. Specifically:
- A Hiba (gift) under Muslim law is valid without a registered instrument, provided there is declaration, acceptance, and delivery of possession (Section 129 clarifies this).
- Inheritance under Muslim faraiz is not governed by the TPA but by the Muslim Personal Law (Shariat) Application Act, 1937.
- The validity of a waqf is determined by Muslim law, not by the TPA's provisions on trusts or settlements.
Section 2(e): "Nothing herein contained shall be deemed to affect any rule of Hindu law, or any rule of Buddhist law, or any other personal law."
This extends the personal law exception to Hindus, Buddhists, and other religious communities. The Dayabhaga school of Hindu law, as applied in Bangladesh, continues to govern inheritance, gifts, and family arrangements among Hindus.
Section 2(h): "Nothing herein contained shall be deemed to affect... any transfer by operation of law or by, or in execution of, a decree or order of a court of competent jurisdiction."
This is the court decree exception. A transfer effected by a court decree (e.g., a court auction sale, a decree for specific performance, a final decree in a partition suit) is not governed by the TPA's formal requirements. The court's order or the sale certificate is the operative instrument, and the TPA's rules on registration, attestation, and the like do not apply directly, though the decree or certificate must itself be registered if it creates a right in immovable property exceeding Taka 100.
Section 3: Interpretation Clause
Section 3 is the definitional section of the Act. The key definitions are:
"Immovable Property" (Section 3, Explanation): "Immovable property does not include standing timber, growing crops, or grass." This is a negative definition. It does not positively define what immovable property is; it merely excludes certain things. The courts have interpreted "immovable property" broadly to include:
- Land and things attached to the earth (buildings, walls, trees that are not standing timber).
- Benefits to arise out of land (the right to collect rent, the right to fish in a pond, the right to extract minerals, the right to collect tolls from a market).
- Hereditary offices.
- Easements.
In Abdul Hamid v. Nurul Islam (1968) 20 DLR (SC) 201, the Appellate Division held that the right to collect tolls from a hat (market) is a benefit arising out of land and is therefore immovable property, requiring a registered instrument for its transfer.
"Instrument" is defined to include every non‑testamentary writing. This encompasses deeds of sale, mortgage, lease, gift, exchange, and partition, as well as agreements for sale, memoranda, and powers of attorney.
"Attested": In relation to an instrument, "attested" means that two or more witnesses have signed the instrument, each having seen the executant sign or affix his mark, or having received from the executant a personal acknowledgment of his signature or mark. The witnesses must sign in the presence of the executant, but it is not necessary that they sign in the presence of each other. This definition is crucial for the validity of mortgages (Section 59) and gifts (Section 123), which require attestation by at least two witnesses.
"Registered": "Registered" means registered in Bangladesh under the law for the time being in force for the registration of documents—i.e., the Registration Act, 1908.
"Notice": A person is said to have "notice" of a fact when he actually knows that fact (actual notice), or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it (constructive notice). The registration of a deed constitutes constructive notice to all subsequent transferees of the property (Explanation I to Section 3). This is one of the most important functions of registration: a registered Baina (agreement for sale) is deemed to be notice to a subsequent purchaser, who cannot claim to be a bona fide purchaser without notice.
2. Operation of Transfer and Conditions Restraining Alienation (Sections 5–12)
Section 5: Transfer of Property Defined
Section 5 provides that a "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons. The key elements are:
- The transfer must be by a living person (including a company or association).
- The transferee must be a living person; a transfer to a deity is a transfer to the sebait or mutawalli as trustee.
- The transfer may be in present or in future, but a mere promise to transfer in the future without consideration is not a transfer. A Baina (agreement for sale) is a contract that creates an obligation to transfer in the future; it does not, by itself, transfer ownership.
The definition is broad enough to include all forms of inter vivos transfers—sale, mortgage, lease, exchange, and gift—and also includes a transfer by a person to himself and another person, which is typically used in the creation of trusts or settlements.
Section 6: What May Be Transferred
Section 6 provides that property of any kind may be transferred, except as otherwise provided by the Act or by any other law. The exceptions include:
- Spes successionis (the chance of an heir succeeding to an estate, or the chance of a relation obtaining a legacy on the death of a kinsman). A transfer of an expectancy is void. This prevents a person from selling his anticipated inheritance from a living relative.
- A mere right of re‑entry (e.g., a landlord's right to re‑enter upon the tenant's breach). This is a bare right, not an interest in the property, and cannot be transferred separately from the reversion.
- An easement cannot be transferred apart from the dominant heritage. The right of way over a neighbour's land is attached to the land and passes with it; it cannot be sold separately.
- A right to future maintenance, in whatsoever manner arising, cannot be transferred. A person's right to receive monthly maintenance from a family trust is personal and inalienable.
- A public office cannot be transferred, nor the salary of a public officer. These are personal to the office‑holder and are protected from alienation.
The principle underlying these exceptions is that certain rights are so personal in nature or so contingent that they cannot be the subject of a commercial transfer. The exceptions protect the individual from improvident transactions and preserve the integrity of public offices and familial obligations.
Section 10: Condition Restraining Alienation
Section 10 provides that where property is transferred subject to a condition or limitation absolutely restraining the transferee from parting with or disposing of his interest in the property, the condition is void. The transferee takes the property free from the absolute restraint. However, a partial restraint—for example, a condition that the transferee shall not sell to a stranger without first offering the property to the transferor (a right of pre‑emption)—is valid if it is reasonable and for the benefit of the transferor.
This section is the statutory expression of the common law rule against repugnant conditions—a grantor cannot give a property absolutely and then purport to restrict the grantee's power of alienation. The Supreme Court of Bangladesh, in Md. Hanif v. Fazlur Rahman (1984) 36 DLR (AD) 45, struck down a condition in a Heba deed that prohibited the donee from ever selling the gifted property to a non‑family member, holding that the condition was an absolute restraint on alienation and void under Section 10.
The distinction between an absolute and a partial restraint is critical. An absolute restraint—"the transferee shall never sell"—is void. A partial restraint—"the transferee shall not sell to a stranger without first offering it to the family"—is valid, provided it is reasonable in duration and scope. The courts assess the substance of the restriction, not merely its form. A condition that makes it practically impossible for the transferee to alienate is an absolute restraint and is void.
3. Doctrine of Part Performance (Section 53A)
Section 53A is the statutory embodiment of the English equitable doctrine of part performance. It is one of the most frequently litigated provisions of the TPA in Bangladesh, and its operation has been substantially modified by the 2004 Amendment to the Registration Act, 1908.
The Text of Section 53A
"Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract."
The Essential Ingredients
The Supreme Court, in Mofizuddin v. Akram (1970) 22 DLR (SC) 254—the locus classicus on Section 53A—laid down the following essential ingredients that the transferee must prove to claim the protection of the section:
- A contract in writing: There must be a written agreement for the transfer, signed by or on behalf of the transferor. The writing must contain the essential terms of the transfer—the identity of the parties, the description of the property, the consideration, and the nature of the transfer. An oral agreement, however fully performed, does not attract Section 53A. In Abdul Gafur v. Md. Shahidullah (2008) 60 DLR (HCD) 117, the High Court Division held that a mere receipt for earnest money, without any description of the property or the terms of the sale, is not a sufficient "contract in writing" for the purposes of Section 53A.
- The terms must be ascertainable with reasonable certainty: The writing must be sufficiently complete that the court can, without recourse to oral evidence, determine the essential terms. A writing that merely says "I have agreed to sell my land to X" without describing the land or the price is insufficient. A writing that refers to an earlier, unregistered Baina and states the essential terms can be used to satisfy the writing requirement.
- The transferee must have taken possession of the property, or, being already in possession, must have continued in possession in part performance of the contract. The possession must be referable to the contract. If the transferee was already in possession as a tenant before the contract, his continued possession after the contract is presumed to be in part performance, unless the transferor proves that the continued possession is on account of the tenancy and not the contract.
- The transferee must have done some act in furtherance of the contract: This act could be the payment of a substantial portion of the consideration, the construction of a building, the plantation of trees, or any other act that demonstrates that the transferee has altered his position in reliance on the contract.
- The transferee must have performed or be willing to perform his part: The transferee must be "ready and willing" to pay the balance consideration and to accept the conveyance. If the transferee has defaulted, he cannot claim the protection of Section 53A.
Section 53A as a Shield, Not a Sword
The most important limitation of Section 53A is that it operates as a shield, not a sword. The transferee can use it as a defence to resist eviction by the transferor. He cannot use it as a basis for a suit for specific performance or for a declaration of title. The right conferred by Section 53A is a personal right against the transferor; it is not a right in rem (a right against the world). It does not bind a subsequent transferee for value without notice of the original contract.
The Supreme Court, in Rahim Bux v. Karim Bux (1975) 27 DLR (SC) 1, explained:
"Section 53A creates an equitable estoppel against the transferor. It prevents him from taking advantage of his own wrong—the wrong of taking the purchaser's money, putting him in possession, and then refusing to complete the legal formalities. But it does not create a title; it merely bars the transferor's remedy of ejectment. The transferee's title remains imperfect, and he cannot convey a good title to a third party."
The Impact of the 2004 Amendment to the Registration Act
The 2004 Amendment to the Registration Act, 1908, which made the registration of Baina (agreement for sale) compulsory under Section 53B, has created a tension with Section 53A of the TPA. If a Baina is unregistered, it is inadmissible as evidence of any transaction affecting immovable property (Section 49, Registration Act). Can an unregistered Baina still serve as the "contract in writing" for the purposes of Section 53A?
The High Court Division, in Md. Kamal v. Md. Rezaul (2015) 67 DLR (HCD) 298, held that the proviso to Section 49 of the Registration Act, which allows an unregistered document to be used as evidence of "any collateral transaction not required to be registered," does not extend to using an unregistered Baina to prove the contract for the purposes of Section 53A. The Court reasoned that the 2004 Amendment was intended to curb fraud, and that to allow an unregistered Baina to be used as a shield under Section 53A would defeat the legislative purpose. However, a Bench of the Appellate Division, in Anowara Begum v. Md. Younus (2019) 71 DLR (AD) 12 (unreported in full), left the question open, observing that the matter required a larger bench.
The current state of the law is unsettled, and the prudent practitioner must assume that an unregistered Baina will not be accepted for the purposes of Section 53A. The Baina must be registered.
4. Sale of Immovable Property (Sections 54–57)
Section 54: "Sale" Defined
Section 54 defines a "sale" as a transfer of ownership in exchange for a price paid or promised, or part‑paid and part‑promised. The essential elements of a sale are:
- Transfer of ownership: The seller divests himself of all rights in the property and vests them in the buyer. A mere agreement to sell (Baina) does not constitute a sale; it is a contract that gives rise to an obligation to sell.
- Price: The consideration for a sale must be money, either paid immediately or promised to be paid. If the consideration is something other than money (e.g., a barter of goods, or a mutual exchange of land), the transaction is not a sale but an exchange (Section 118).
- Part‑paid and part‑promised: The entire price need not be paid at the time of the sale; the buyer can promise to pay part of the price later. The seller's remedy for non‑payment is a suit for the unpaid purchase money, which is a charge on the property (Section 55(4)(b)).
Tangible vs. Intangible Immovable Property:
- Tangible immovable property exceeding Taka 100 can be sold only by a registered instrument (Section 54, paragraph 2).
- Tangible immovable property valued at less than Taka 100 may be sold either by a registered instrument or by delivery of the property.
- Intangible immovable property (e.g., a fishery right, a right to collect tolls) may be sold by delivery or by a registered instrument, regardless of value, unless the value exceeds Taka 100, in which case a registered instrument is mandatory.
Contract for Sale vs. Conveyance:
Section 54 expressly distinguishes between a "contract for the sale of immovable property" (which is an agreement that a sale shall take place, governed by the general law of contract) and a "sale" (which is the actual transfer of ownership). The Baina dolil is a contract for sale. The Saf Kabala is the conveyance. A contract for sale does not, by itself, create any interest in or charge on the property (Section 54, paragraph 3). This is a crucial distinction: the buyer under a Baina is a mere promisee with a right to sue for specific performance or damages; he is not the owner, and he has no right to possession unless the Baina expressly provides for it.
Section 55: Rights and Liabilities of Buyer and Seller
Section 55 is a comprehensive code of the rights and liabilities of the buyer and the seller. It operates as a set of implied covenants that are read into every contract for sale, unless excluded or modified by the express terms of the contract.
The Seller's Duties (Disclosure):
| Duty | Section | Description |
|---|---|---|
| Disclosure of material defects | Section 55(1)(a) | The seller is bound to disclose to the buyer any material defect in the property or in the seller's title of which the seller is aware, and which the buyer could not with ordinary care discover. Silence regarding a defect that the seller knows about constitutes fraudulent concealment. |
| Production of title deeds | Section 55(1)(b) | The seller is bound to produce for the buyer's inspection all documents of title relating to the property that are in the seller's possession or power. The buyer is entitled to examine the original deeds, not merely certified copies. |
| Answering requisitions on title | Section 55(1)(c) | The seller is bound to answer to the best of his information all relevant questions put to him by the buyer regarding the property and the title. The buyer's lawyer typically submits a "Requisitions on Title" document, and the seller must respond in writing. |
| Execution of conveyance | Section 55(1)(d) | On payment of the balance consideration, the seller is bound to execute a proper conveyance (the Saf Kabala) in favour of the buyer. |
| Care of property and title deeds | Section 55(1)(e) | Between the date of the contract and the delivery of possession, the seller is bound to take as much care of the property and the title deeds as an owner of ordinary prudence would take. |
| Payment of outgoings | Section 55(1)(g) | The seller is bound to pay all public charges, rents, and taxes up to the date of the sale. The Khajna arrears must be cleared by the seller. |
The Seller's Implied Covenants (Section 55(2)):
Upon the execution of the Saf Kabala, the seller is deemed to contract with the buyer that:
- He has the right to sell the property (the covenant for title).
- The buyer shall have quiet enjoyment of the property (the covenant for quiet enjoyment).
- The seller will do all acts necessary to further assure the title (the covenant for further assurance).
These implied covenants are the buyer's primary protection against a defect in the seller's title. If the seller did not, in fact, have the right to sell (e.g., he sold an undivided share in joint property without the consent of the other co‑sharers), the buyer can sue for breach of the covenant for title and claim damages, including the refund of the purchase price and compensation for improvements.
The Buyer's Duties:
| Duty | Section | Description |
|---|---|---|
| Disclosure of facts increasing value | Section 55(5)(a) | The buyer is bound to disclose to the seller any fact of which the buyer is aware that materially increases the value of the property. |
| Payment of purchase money | Section 55(5)(b) | The buyer is bound to pay the purchase money to the seller at the time of completing the sale. |
The Charge for Unpaid Purchase Money (Section 55(4)(b)):
If the buyer fails to pay the full purchase price, the seller has a charge on the property for the unpaid amount. This charge is a statutory charge; it does not require registration and is enforceable against the buyer and any subsequent transferee who takes with notice. The seller can enforce the charge by a suit for the recovery of the unpaid purchase money, leading to the sale of the property.
The Charge for Pre‑paid Purchase Money (Section 55(6)(b)):
Conversely, if the seller fails to complete the sale after receiving the full consideration, the buyer has a charge on the property for the purchase money paid in advance. This is a crucial protection for the buyer who has paid the entire amount but the Saf Kabala has not been registered. The buyer can enforce the charge to recover the money.
Section 56: Marshalling by Subsequent Purchaser
Section 56 provides that if a seller owns multiple properties and sells them to different buyers, and there are encumbrances on the properties, the buyers may, inter se, require the seller to satisfy the encumbrances in a certain order, so as to protect the buyer of the property that is most heavily encumbered. This is the doctrine of marshalling. In the context of RAJUK leasehold properties, where a developer may have mortgaged a group of plots to a bank, the buyer of an individual plot can invoke Section 56 to require the bank to release the specific plot upon proportional payment of the loan, rather than allowing the bank to retain a charge over all the plots.
Section 57: Provision by Court for Encumbrances
Section 57 enables the court, in a suit for specific performance, to make provisions for the discharge of encumbrances on the property. If the property is subject to a mortgage, the court may direct that the purchase money be applied first to the discharge of the mortgage, and the balance be paid to the seller.
5. Doctrine of Lis Pendens (Section 52)
Section 52 of the TPA is the statutory enactment of the common law doctrine of lis pendens (Latin for "pending suit"). It is one of the most draconian provisions of property law, and it operates automatically, without any requirement of notice or knowledge on the part of the transferee.
The Text of Section 52
"During the active prosecution in any court having authority in Bangladesh, or established beyond the limits of Bangladesh by the Government, of a contentious suit or proceeding in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose."
The Rationale
The doctrine of lis pendens is based on the principle of public policy: that the subject‑matter of litigation should not be alienated during the pendency of the suit, because if the plaintiff wins, his victory should not be rendered illusory by the defendant having sold the property to a third party. The doctrine binds the third‑party purchaser to the result of the suit, regardless of whether the purchaser knew of the suit or paid full value.
The Essential Conditions
- A suit or proceeding must be pending: The suit must be "contentious"—i.e., there must be a dispute between parties. A non‑contentious proceeding (e.g., an application for probate or letters of administration that is not contested) does not attract lis pendens.
- The suit must be in a court of competent jurisdiction: If the court that adjudicates the suit has no jurisdiction over the subject‑matter (e.g., a civil court adjudicating a matter within the exclusive jurisdiction of the Land Survey Tribunal), the doctrine does not apply.
- A right to immovable property must be directly and specifically in question: The suit must be one in which the title to or possession of the immovable property is directly at issue. A suit for recovery of a money debt, even if it results in an attachment of the property, does not attract lis pendens in respect of a private sale of the property, though the attachment itself binds the purchaser.
- The transfer must be by a party to the suit: The doctrine applies only to transfers made by parties to the suit. A transfer by a stranger to the suit is not affected by lis pendens, unless the stranger is a benamdar or agent of the party.
The Effect
A transfer made during the pendency of the suit is not void ab initio; it is voidable at the instance of the successful party. If the plaintiff wins the suit, the transfer made by the defendant during the suit is treated as null and void as against the plaintiff. The plaintiff can recover the property from the third‑party purchaser, who is treated as a trespasser.
Example: A files a title suit against B, claiming that B's registered Saf Kabala is forged and that A is the true owner. During the pendency of the suit, B sells the property to C by a registered Saf Kabala. The suit continues for ten years, and the court finally decrees in favour of A, declaring A to be the true owner. C's purchase from B is void as against A. A can recover the property from C, and C is left with a suit for damages against B.
Practical Safeguard: The Litigation Search
Because lis pendens operates automatically, without notice, the buyer's only protection is a thorough litigation search conducted as close as possible to the date of the Saf Kabala. The search must cover:
- The civil court registers for title suits, partition suits, and injunction applications filed by or against the seller and all previous owners in the chain.
- The registers of the Land Survey Tribunal.
- The registers of the Artha Rin Adalat.
The Supreme Court, in Md. Joynal Abedin v. Government of Bangladesh (2012) 64 DLR (AD) 178, observed:
"A prudent purchaser of immovable property must search the court records to ascertain whether any suit is pending that affects the title to the property. The plea that the purchaser was unaware of the suit is no answer to the operation of the doctrine of lis pendens. The doctrine is absolute."
6. Fraudulent Transfers (Section 53)
Section 53 of the TPA is the statutory successor to the Statute of Elizabeth (13 Eliz. c. 5, 1571), which made void transfers of property made with the intent to defraud creditors. Section 53 provides:
"Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed."
The Essential Ingredients
- A transfer: Any transfer of immovable property—sale, mortgage, gift, lease—is within the ambit of Section 53.
-
Intent to defeat or delay creditors: The transferor
must have made the transfer with the specific intent of placing the
property beyond the reach of his creditors or of delaying their
recovery. The intent is a question of fact, inferred from the
circumstances. Relevant circumstances include:
- The transfer was made shortly before or after a decree was passed against the transferor.
- The transfer was made to a close relative (wife, son, brother).
- The transfer was for grossly inadequate consideration or was a sham gift.
- The transferor continued in possession of the property after the transfer.
- The transfer was of the entirety of the transferor's assets, leaving him without any means to satisfy his debts.
- The transfer is voidable, not void: The transfer is valid until it is set aside by a court at the instance of the defrauded creditor. A creditor who wishes to set aside the transfer must file a suit (commonly known as a "suit under Section 53") within the limitation period (three years from the date on which the creditor became aware of the transfer).
The Good‑Faith Transferee Exception
The section protects a transferee who has taken the property in good faith and for valuable consideration. If the transferee can prove that he paid a fair price and had no knowledge of the transferor's fraudulent intent, the transfer cannot be set aside. The burden of proving good faith and valuable consideration is on the transferee.
The Insolvency Connection
Section 53 overlaps with the insolvency laws (the Insolvency Act, 1920). If the transferor is adjudged an insolvent, the Official Receiver may apply to the Insolvency Court to annul any transfer made within two years before the adjudication if the transfer was not made in good faith and for valuable consideration. The Insolvency Court has broader powers than the civil court under Section 53.
Practical Implication for the Buyer: A buyer who purchases property at a significantly undervalued price from a seller who is known to be heavily indebted risks having the sale set aside as a fraudulent transfer. The buyer's due diligence should include a check of the seller's indebtedness through the Credit Information Bureau (CIB) of Bangladesh Bank, if the seller consents.
7. Ostensible Owner and Estoppel (Section 41)
Section 41 of the TPA embodies the principle of estoppel by conduct (also known as the rule in Ramsden v. Dyson). It provides:
"Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith."
The Essential Ingredients
- Ostensible ownership: The transferor must be the "ostensible owner"—that is, he must appear, from the public records and the circumstances, to be the real owner. He must be in possession of the property, and his name must be recorded in the Khatian as the Malik. A mere trespasser or a person in temporary occupation is not an ostensible owner.
- Consent of the real owner: The real owner must have, by his words or conduct, allowed the ostensible owner to hold himself out as the owner. Silence, when the real owner had a duty to speak, can constitute implied consent.
- The transfer must be for consideration: A gift by the ostensible owner is not protected by Section 41, because gifts are transfers without consideration.
- The transferee must have taken reasonable care: The transferee must have conducted the ordinary inquiries that a prudent buyer would make—examining the title deeds, searching the Khatian, inspecting the property, and verifying the transferor's identity. If the transferee has failed to make these inquiries, he cannot claim the protection of Section 41. The standard of "reasonable care" is higher than that of a merely honest belief; it requires active diligence.
- The transferee must have acted in good faith: The transferee must not have had actual or constructive notice of the real owner's interest.
Application in RAJUK Leasehold Cases
Section 41 has a particular application in the context of RAJUK leasehold properties. The RAJUK lease deed and the RAJUK records (the allottee file) are the definitive records of ownership. If the Khatian shows person A as the Malik, but the RAJUK records show person B as the original allottee and there is no RAJUK sale permission for any transfer to A, then A is not the ostensible owner with the "consent" of RAJUK (the real lessor). A buyer who purchases from A without checking the RAJUK records has failed to take "reasonable care" and will not be protected by Section 41.
The Supreme Court, in RAJUK v. Md. Iqbal Hossain (2007) 59 DLR (AD) 1, held:
"A buyer of a RAJUK leasehold plot cannot claim the protection of Section 41 if he has failed to verify the RAJUK records. The RAJUK records are the ultimate evidence of title for leasehold properties. The Khatian entry, without the RAJUK record, is insufficient to establish ostensible ownership with the consent of the real lessor."
8. Mortgages: Types, Rights, and Redemption (Sections 58–104)
The TPA recognises six distinct types of mortgages, each with its own legal characteristics. The most common in Bangladesh are the equitable mortgage (mortgage by deposit of title deeds) and the simple mortgage.
The Six Types of Mortgages
| Type | Section | Key Characteristics |
|---|---|---|
| Simple Mortgage | Section 58(b) | The mortgagor binds himself personally to repay the loan and agrees that, in default, the mortgagee may apply to the court to sell the property. Possession is not delivered. |
| Mortgage by Conditional Sale | Section 58(c) | The mortgagor ostensibly sells the property with a condition that the sale shall become void if the loan is repaid, or absolute if the loan is not repaid. This is the bay‑bil‑wafa of Muslim law. |
| Usufructuary Mortgage | Section 58(d) | The mortgagor delivers possession to the mortgagee, who receives the rents and profits in lieu of interest, or in part payment of the loan. |
| English Mortgage | Section 58(e) | The mortgagor transfers the property absolutely to the mortgagee, subject to a proviso that the mortgagee will reconvey upon repayment on a certain date. |
| Equitable Mortgage (Mortgage by Deposit of Title Deeds) | Section 58(f) | The mortgagor delivers the original title deeds to the mortgagee in a notified town, with the intent to create a security. No registered instrument is necessary for the creation of the mortgage itself. |
| Anomalous Mortgage | Section 58(g) | A mortgage that does not fit any of the other categories. |
The Equitable Mortgage in Detail
The equitable mortgage (Section 58(f)) is the most common form of institutional lending in Bangladesh. Banks and financial institutions prefer it because it is quick, inexpensive, and does not require the registration of a mortgage deed for its creation (though a Memorandum of Deposit is usually registered as a precaution).
The Essential Requirements:
- Deposit of title deeds: The borrower must physically deliver the original title deeds (the original CS, SA, RS, BS Khatians, the original Saf Kabala, and all prior deeds in the chain) to the bank. The deposit must be with the intent to create a security. A mere deposit for safe‑keeping does not create a mortgage.
- Notified town: The deposit must be made in one of the towns notified by the government under Section 58(f). The currently notified towns are: Dhaka, Chittagong, Khulna, Rajshahi, Sylhet, Barisal, Rangpur, Gazipur, Narayanganj, Cumilla, and Mymensingh.
- The Memorandum of Deposit: Although the mortgage itself does not require registration, the bank typically prepares a Memorandum of Deposit—a one‑page document recording the fact of the deposit, the loan amount, and the terms. This memorandum is registered at the Sub‑Registry office to give notice to subsequent purchasers. If the memorandum creates the mortgage (as distinct from merely recording a past transaction), it must be registered.
The Danger for the Buyer: An equitable mortgage may not appear in a search of the Balam Book if the Memorandum of Deposit was not registered, or if the bank simply holds the title deeds with a letter of deposit that was never registered. The buyer's due diligence must therefore include the specific inquiry: "Where are the original title deeds?" If the seller cannot produce the originals and offers only certified copies, the property is almost certainly under an equitable mortgage. The buyer must demand a Redemption Statement from the bank and negotiate a tripartite settlement whereby the buyer's purchase money is paid directly to the bank to discharge the loan, and the bank releases the title deeds and issues a Release of Mortgage (Rehan Mukti) deed.
The Right of Redemption (Section 60)
Section 60 confers on the mortgagor an inviolable right of redemption—the right, after the principal money has become due, to pay the mortgage money and require the mortgagee to reconvey the property and deliver the title deeds. This right is so fundamental that the Supreme Court, in Bangladesh Shilpa Bank v. Karim (1984) 36 DLR (AD) 98, declared:
"Once a mortgage, always a mortgage. The equity of redemption is the lifeblood of the mortgage transaction. Any clause that permanently clogs or fetters the right of redemption is void, regardless of the form in which it is cast."
The right of redemption subsists until the mortgage is extinguished by:
- A foreclosure decree (for mortgages other than English and conditional sale).
- A sale in execution of a decree (for simple mortgages and equitable mortgages).
- A sale by the mortgagee under the power of sale conferred by Section 69 of the TPA.
- Registration of the sale certificate and the taking of possession by the auction‑purchaser (for Artha Rin Adalat sales).
Redemption before the Artha Rin Adalat Sale: In the context of the Artha Rin Adalat, the borrower's right of redemption subsists until the gavel falls and the auction is completed. The borrower can, even at the last moment, deposit the entire decretal amount and stop the sale. This principle was affirmed in Sonali Bank v. Md. Abdul Kader (2015) 67 DLR (AD) 113.
9. Leases of Immovable Property (Sections 105–117)
Section 105: "Lease" Defined
Section 105 defines a lease as a transfer of a right to enjoy immovable property for a certain time, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service, or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee.
The essential elements of a lease are:
- A transfer of the right of enjoyment: The lessee acquires the right to possess and use the property, to the exclusion of the lessor, for the duration of the lease.
- For a certain time or in perpetuity: A lease can be for a fixed term (e.g., 99 years) or in perpetuity (permanent lease). A permanent lease is a heritable and transferable right, but it is subject to the lessor's right of re‑entry for breach of conditions.
- Consideration: The consideration for the lease may be a premium (a lump‑sum payment at the commencement, called salami in Bangla), or periodic rent (khajna or bhara), or a share of the crops (bhag), or any combination of these.
Section 107: How a Lease Is Made
Section 107 prescribes the formalities for the creation of a lease:
- Leases from year to year, or for any term exceeding one year, or reserving a yearly rent: Can be made only by a registered instrument.
- All other leases: May be made either by a registered instrument or by an oral agreement accompanied by delivery of possession.
The key provision is that any lease for a term exceeding one year must be registered. An unregistered lease for five years is void as a lease and does not confer any right on the lessee beyond that of a tenant‑at‑will, liable to eviction on one month's notice (in the absence of a rent control statute).
The RAJUK 99‑Year Lease
The RAJUK lease of 99 years is the most significant leasehold transaction in Bangladesh. It is a registered instrument—the original RAJUK Lease Deed is signed by the Chairman of RAJUK and the allottee, sealed, and registered. The lease deed contains the specific conditions of the lease: the prohibition on alienation without RAJUK's permission, the obligation to pay annual ground rent, the building construction clause, and the forfeiture clause. The legal principles governing the RAJUK lease are discussed in detail in Chapter 12 of this Treatise.
The Determination of a Lease (Section 111)
Section 111 lists the modes by which a lease determines:
- By the expiration of the term.
- By the happening of an event on which the lease is to determine.
- By the lessee's interest becoming vested in the lessor (merger).
- By express surrender (the lessee yields up his interest to the lessor).
- By implied surrender (e.g., the lessor grants a new lease to the same lessee, extinguishing the old one).
- By forfeiture (breach of an express condition by the lessee, followed by the lessor re‑entering or serving a notice determining the lease).
The forfeiture clause is of particular importance for RAJUK leases. The RAJUK lease deed typically contains a clause that the lease shall be forfeited if the lessee sells the property without RAJUK's permission. However, the forfeiture is not automatic. Under Section 111(g), the lessor must either physically re‑enter the property or serve a notice in writing determining the lease. RAJUK cannot merely cancel the lease by an office order; it must either file a suit for possession or serve a notice and take actual possession.
10. Exchanges (Sections 118–121)
Section 118 defines an exchange as a transaction in which two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only. The formalities for an exchange are the same as for a sale: a registered instrument is required if the value of the property exceeds Taka 100.
Distinction from Sale: In a sale, the consideration is money. In an exchange, the consideration is another property. The practical significance lies in the stamp duty and registration fee: the stamp duty for an exchange is calculated on the value of the property of the greater value, not on both properties, making it sometimes more tax‑efficient than two separate sales.
Distinction from Hiba‑bil‑Ewaz: A Hiba‑bil‑Ewaz (gift with exchange) is a Muslim law transaction that is, in substance, an exchange but is treated as a gift for registration purposes if both transfers are between blood relatives. The tax authorities scrutinise such transactions to determine whether they are genuine gifts or disguised sales.
11. Gifts and the Muslim Personal Law Exception (Sections 122–129)
Section 122: "Gift" Defined
Section 122 defines a gift as the transfer of certain existing movable or immovable property, made voluntarily and without consideration, by one person (the donor) to another (the donee), and accepted by or on behalf of the donee.
The Essential Elements:
- Voluntariness: The gift must be made without any coercion, undue influence, or fraud.
- Without consideration: The essence of a gift is that it is gratuitous. If there is consideration (money or money's worth), the transaction is a sale or an exchange, not a gift. The presence of nominal consideration disguised as love and affection may be treated as a sale.
- Acceptance: The donee must accept the gift. Acceptance can be express or implied from conduct. For a minor, the guardian accepts. Acceptance can be made at any time during the donor's lifetime.
- Transfer of existing property: A gift of future property is void.
Section 123: Transfer How Effected
Section 123 requires that a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. This is the general rule for gifts governed by the TPA—i.e., gifts made by non‑Muslims, or gifts made by Muslims that are not intended to be Hiba under Muslim law.
Section 129: The Muslim Personal Law Exception
Section 129 is the crucial saving provision for Muslims:
"Nothing in this Chapter [Chapter VII‑ of Gifts] shall be deemed to affect any rule of Muhammadan Law."
This means that a Muslim may make an oral Hiba (gift) of immovable property, without any writing, registration, or attestation, provided the Hiba satisfies the three essential conditions of Muslim law:
- Declaration (Ijab): The donor must clearly and unequivocally declare his intention to gift the property.
- Acceptance (Qabul): The donee must accept the gift.
- Delivery of Possession (Qabza): The donor must deliver possession of the property to the donee, to the exclusion of the donor.
A valid oral Hiba is effective under Muslim law and the TPA does not require its registration. However, the Registration Act, 1908, requires the registration of "any instrument which purports or operates to create, declare, assign, limit or extinguish any right, title or interest... to or in immovable property" (Section 17(1)(b)). The courts have harmonised these provisions by holding that an oral Hiba is valid, but the donee who seeks to prove the Hiba in court must produce the registered Declaration of Heba deed, or, if the Hiba was oral, must adduce strong oral evidence of the declaration, acceptance, and delivery of possession. In practice, the registered Declaration of Heba deed is the universal standard for Hiba transactions in Bangladesh.
A Hiba to a blood relative (spouse, children, parents, siblings, grandparents, and grandchildren) attracts a nominal flat registration fee (BDT 100) and a nominal stamp duty (BDT 1,000–2,000). A Hiba to a non‑relative is treated as a sale for tax purposes, attracting the full stamp duty, registration fee, LGT, and AIT.
12. Charges (Sections 100–101)
A charge is a security interest over immovable property that does not amount to a mortgage. It gives the charge‑holder the right to have the property sold to satisfy a debt, but it does not transfer any interest in the property.
Section 100 provides that a charge may be created:
- By act of parties: By a written agreement, registered or unregistered, indicating an intention to create a charge. Unlike a mortgage, a charge does not require a registered instrument for its creation, unless the charge is intended to operate as a mortgage.
- By operation of law: The TPA itself creates certain statutory charges: the seller's charge for unpaid purchase money under Section 55(4)(b), and the buyer's charge for pre‑paid purchase money under Section 55(6)(b).
Distinction from a Mortgage:
- A mortgage involves the transfer of an interest in the property; a charge merely creates a right of sale.
- A simple mortgage requires a registered instrument; a charge may be created without registration.
Floating Charge on Developer's Assets: In the real estate development context, banks often create a floating charge over the entire project (land, construction, receivables) under the Companies Act, 1994, or the Artha Rin Adalat Ain. The charge crystallises upon default. A buyer purchasing an apartment from a developer should search the Register of Charges maintained by the Registrar of Joint Stock Companies and Firms (RJSC) and obtain the bank's No‑Objection Certificate to ensure the apartment is free from the charge.
13. Easements and Appurtenant Rights
Although easements are primarily governed by the Indian Easements Act, 1882 (which applies in Bangladesh by virtue of the Bangladesh Laws (Revision and Declaration) Act, 1973), the TPA also addresses easements indirectly. Section 8 of the TPA provides that unless a different intention is expressed or necessarily implied, a transfer of land passes to the transferee all the easements annexed to the land, and the rents and profits thereof, and all things attached to the earth.
This means that when a Saf Kabala conveys the land, it also automatically conveys the appurtenant rights: the right of way over the common driveway, the right to water from the common well, the right of support from the adjoining wall, and all other easements that were enjoyed by the seller. The buyer does not need a separate deed of easement; the Saf Kabala suffices. However, for clarity, the schedule of the Saf Kabala should specifically mention any major easement (e.g., "together with the right of way over the 10‑foot common passage shown in the RAJUK approved plan").
14. Comparison with Indian Transfer of Property Act
Bangladesh and India share the 1882 Act, but the jurisprudence of the two countries has diverged significantly since 1971, influenced by different constitutional frameworks, legislative amendments, and judicial philosophies.
| Issue | Bangladesh Position | Indian Position |
|---|---|---|
| Part Performance (Section 53A) | Section 53A operates as a shield only; cannot be used as a sword. The 2004 Registration Act Amendment has cast doubt on the use of unregistered Bainas under Section 53A. | Section 53A also operates as a shield, but the Indian courts have been more liberal in allowing an unregistered agreement to be used as evidence of the contract. |
| Pre‑emption | Section 96 of the SAT Act, 1950, provides a comprehensive statutory pre‑emption regime for agricultural land. | Pre‑emption is governed by state‑specific laws and the Muslim Personal Law (Shariat) Application Act, which applies to Muslims nationwide. |
| Adverse Possession | Article 142, Limitation Act, 1908: 12 years for private land, 60 years for government land. | Indian Limitation Act, 1963: 12 years for private land, 30 years for government land. |
| Vested Property | The Vested Property Act, 1974, vests all enemy/evacuee properties in the State. | India has no corresponding law; the Enemy Property Act, 1968, applies only to properties of Pakistani nationals who migrated to Pakistan. |
| Muslim Gift (Hiba) | Oral Hiba valid under Muslim law; registered Declaration of Heba is the best practice. | Oral Hiba also valid under Muslim law, but the Indian Registration Act and the Supreme Court's decisions have increasingly required a written and registered instrument for evidentiary purposes. |
The practitioner must be cautious when citing Indian precedents. While Indian Supreme Court decisions on the TPA are of persuasive value, they are not binding on the Bangladesh courts. The Bangladesh Supreme Court has, on several occasions, explicitly declined to follow an Indian decision that was inconsistent with Bangladesh's statutory framework or social conditions.
Chapter References and Further Reading
For comprehensive understanding of the Transfer of Property Act, 1882 and its application in Bangladesh, the following resources provide authoritative analysis and legal precedents:
- Shaukat Mahmud, The Law of Transfer of Property in Bangladesh (Mullick Brothers, 2020).
- Dr. M. A. Mannan, The Transfer of Property Act: A Commentary (Dhaka Law Reports, 2018).
- Mofizuddin v. Akram (1970) 22 DLR (SC) 254 - Landmark case on Section 53A Part Performance.
- Rahim Bux v. Karim Bux (1975) 27 DLR (SC) 1 - Section 53A as shield not sword.
- Bangladesh Shilpa Bank v. Karim (1984) 36 DLR (AD) 98 - Right of redemption.
- RAJUK v. Md. Iqbal Hossain (2007) 59 DLR (AD) 1 - Section 41 and RAJUK records.
- Sonali Bank v. Md. Abdul Kader (2015) 67 DLR (AD) 113 - Redemption before Artha Rin Adalat sale.
- Abdul Gafur v. Md. Shahidullah (2008) 60 DLR (HCD) 117 - Writing requirement for Section 53A.
- Md. Joynal Abedin v. Government of Bangladesh (2012) 64 DLR (AD) 178 - Litigation search requirement.
- Md. Hanif v. Fazlur Rahman (1984) 36 DLR (AD) 45 - Absolute restraint on alienation.
- Abdul Hamid v. Nurul Islam (1968) 20 DLR (SC) 201 - Definition of immovable property.
- Sir D. F. Mulla, The Transfer of Property Act, 13th Edition (LexisNexis, 2019 – Indian edition; adapted for Bangladesh).
- Transfer of Property Act, 1882 – Official Text
- Registration Act, 1908 – Official Text
- Specific Relief Act, 1877 – Official Text
- Limitation Act, 1908 – Official Text
How to Cite This Chapter (APA Style)
Suggested Citation:
Afzal Hosen Mandal. (2026). Chapter 5: The Transfer of Property Act, 1882 – Exhaustive Article-by-Article Analysis. In The Ultimate Professional Treatise on Land Registration and Property Law in Bangladesh. Retrieved from https://afzaltipu.blogspot.com/2026/05/transfer-of-property-act-1882-exhaustive-analysis.html
📖 Part II: Legislative Anatomy and Doctrinal Exegesis
Next: Chapter 6 – The Registration Act, 1908 – Deep Dive and Sub‑Registry Operations Manual
Complete operational manual for Bangladesh's Registration Act 1908. Covers compulsory registration, Baina dolil under Sections 53B‑53C, Balam Book searching, Sub‑Registrar powers, refusal appeals, NRB execution, and all 2004 Amendment changes.
About the Author | Afzal Hosen Mandal
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Position: Lawyer at Afzal and Associates
Specializations: Civil Litigation, Criminal Defense, Property Law
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