THE
TRANSFER OF PROPERTY
ACT, 1882

Contents
PREAMBLE
CHAPTER I
PRELIMINARY
1. Short title Commencement Extent
2. Repeal of Acts Saving of certain enactments, incidents, rights, liabilities, etc.
3. Interpretation-clause
4. Enactments relating to contracts be taken as part of Contract Act
CHAPTER II
OF TRANSFERS OF PROPERTY BY ACT OF PARTIES
(A) Transfer of Property, whether moveable or immoveable
5. “Transfer of property” defined
6. What may be transferred
7. Persons competent to transfer
8. Operation of transfer
9. Oral transfer
10. Condition restraining alienation
11. Restriction repugnant to interest created
12. Condition making interest determinable on insolvency or attempted alienation
13. Transfer for benefit of unborn person
14. Rule against perpetuity
15. Transfer to class some of whom come under sections 13 and 14
16. Transfer to take effect on failure of prior interest
17. Direction for accumulation
18. Transfer in perpetuity for benefit of public
19. Vested interest
20. When unborn person acquires vested interest on transfer for his benefit
21. Contingent interest
22. Transfer to members of a class who attain a particular age
23. Transfer contingent on happening of specified uncertain event
24. Transfer to such of certain persons as survive at some period not specified
25. Conditional transfer
26. Fulfilment of condition precedent
27. Conditional transfer to one person coupled with transfer to another on failure of prior disposition
28. Ulterior transfer conditional on happening or not happening of specified event
29. Fulfilment of condition subsequent
30. Prior disposition not affected by invalidity of ulterior disposition
31. Condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen
32. Such condition must not be invalid
33. Transfer conditional on performance of Act, no time being specified for performance
34. Transfer conditional on performance of Act, time being specified
Election
35. Election when necessary
Apportionment
36. Apportionment of periodical payments on determination of interest of person entitled
37. Apportionment of benefit of obligation on severance
(B) Transfer of lmmoveable Property
38. Transfer by person authorized only under certain circumstances to transfer
39. Transfer where third person is entitled to maintenance
40. Burden of obligation imposing restriction on use of land, or of obligation annexed to ownership but not amounting to interest or easement
41. Transfer by ostensible owner
42. Transfer by person having authority to revoke former transfer
43. Transfer by unauthorized person who subsequently acquires interest in property transferred
44. Transfer by one co-owner
45. Joint transfer for consideration
46. Transfer for consideration by persons having distinct interests
47. Transfer by co-owners of share in common property
48. Priority of rights created by transfer
49. Transferee”s right under policy
50. Rent bonafide paid to holder under defective title
51. Improvements made by bonafide holders under defective titles
52. Transfer of property pending suit relating thereto
53. Fraudulent transfer
53-A Part performance
CHAPTER III
OF SALES OF IMMOVEABLE PROPERTY
54. “Sale” defined Sale how made Contract for sale
55. Rights and liabilities of buyer and seller
56. Marshalling by subsequent purchaser
Discharge of Incumbrances on Sale
57. Provision by Court for incumbrance and sale freed therefrom
CHAPTER IV
OF MORTGAGES OF IMMOVEABLE PROPRIETY AND CHARGES
58. “Mortgage,” “mortgagor,” “mortgagee”;” “mortgage-money and “mortgage-deed” defined
Simple mortgage.
Mortgage by conditional sale
Usufructuary mortgage
Mortgage by deposit of title-deeds
Anomalous mortgage
59. Mortgage when to be by assurance
59.A References to mortgagors and mortgagees to include persons deriving title from them
Rights and Liabilities of Mortgagor
60. Right of mortgagor to redeem Redemption of portion of mortgage property
60 A Obligation to transfer to third party instead of re-transference to mortgagor
60 B .Right to inspection and production of documents
61 Right to redeem separately or simultaneously
62. Right of usufructuary mortgagor to recover possession
63 Accession to mortgaged property Accession acquired in virtue of transferred ownership
63-A Improvements to mortgaged property
64. Renewal of mortgaged lease
65. Implied contracts by mortgagor
65-A Mortgagor”s power to lease
66. Waste by mortgagor in possession
Rights and Liabilities of Mortgagee
67. Right to foreclosure or sale
67-A. Mortgagee when bound to bring one suit on several mortgagees
68. Right to sue for mortgage-money
69. Power of &ale when valid
69 A. Appointment of receiver
70. Accession to mortgaged property
71. Renewal of mortgaged lease –
72. Rights of mortgagee in possession
73. Right-to proceeds of revenue-sate or compensation on acquisition
74 . [Repealed]
75. [Repealed]
76 Liabilities of mortgagee in possession Loss occasioned by his default.
77. Receipts in lieu of interest
Priority
78. Postponement of prior mortgagee
79 Mortgage to secure uncertain amount when maximum is expressed
80. [Repealed]
Marshalling and Contribution
81. Marshalling securities
82. Contribution to mortgage-debt
Deposit in Court
83. Power to deposit in Court money due on mortgage Right to money deposited by mortgagor
84. Cessation of interest
85. Parties to Suits for foreclosure sale and redemption
86 to 90 [Repealed]
Redemption
91. Who may sue for redemption
92. Subrogation
93. Prohibition of tacking
94. Rights of mesne mortgagee
95. Right of redeeming cu-mortgagor to expenses
96. Mortgage by deposit of title-deeds
97. [Repealed]
Anomalous Mortgages
98. Rights and liabilities of parties to anomalous mortgages
99. [Repealed]
Charges
100. Charges
101. No merger in case of subsequent encumbrance
Notice and Tender
102. Service or tender on or to agent
103. Notice, etc., to or by person incompetent to contract
104. Power to make rules
CHAPTER V
OF LEASES OF IMMOVEABLE PROPERTY
105. “Lease” defined “Lessor,” “lessee,” “Premium” defined
106. Duration of certain leases in absence of written contract or local usage
107. Leases how made
108. Rights and-liabilities of lessor and lessee
109. Rights of lessor”s transferee
110. Exclusion of day on which term commences Duration of lease for a year Option to determine lease
111. Determination of lease
112. Waiver of forfeiture
113. Waiver of notice to quit
114 Relief against forfeiture for non-payment of rent
114-A .Relief against forfeiture in certain other cases
115. Effect of surrender and forfeiture on under-leases
116. Effect of holding over
117. Exemption of leases for agricultural purposes
CHAPTER VI OF EXCHANGES
118. “Exchange” defined
119. Right of party deprived of thing received in exchange
120. Rights and liabilities of parties
121. Exchange of money
CHAPTER VII OF GIFTS
122. “Gift” defined Acceptance when to be made
123. Transfer how effected
124. Gift of existing and future property
125. Gift to several of whom one does not accept
126. When gift may be suspended or revoked
127. Onerous gifts. Onerous gift to disqualified person
128. Universal donee
129. Saving of donations mortis causa and Muslim law
CHAPTER VIII
OF TRANSFERS OF ACTIONABLE CLAIMS
130. Transfer of actionable claim
130-A Transfer of policy of marine insurance
131. Notice to be in writing, signed
132. Liability of transferee of actionable claim
133. Warranty of solvency of debtor
134. Mortgaged debt
135. Assignment of rights under policy of insurance against fire
135-A. Assignment of rights under policy of marine insurance
136. Incapacity of officers connected with Courts of Justice
137. Saving of negotiable instruments, etc.
THE SCHEDULE

The
Transfer of Property Act, 1882

ACT NO. IV OF 1882

17th February 1882

An Act to amend the
Law relating to the Transfer of Property by Act of Parties.

Preamble. Whereas it is expedient to define and amend certain parts of the law relating to the Transfer of Property by Act of parties; It is hereby enacted as follows: –

CHAPTER 1
PRELIMINARY

1. Short title, Commencement, Extent. This Act may be called the Transfer of Property Act, 1882. It shall come into force on the first day of July. 1882. This Act or any Part thereof may by notification in the official Gazette be extended to the whole or any part of [a Province] by the Provincial Government].
And any [Provincial Government] may, from time to time, by notification in the [official Gazette], exempt either retrospectively prospectively, and part of the territories administered by such [Provincial Government] from all or any of the following provisions, namely: Section 54, paragraphs 2 and 3, 59, 107 and 123.]
Notwithstanding anything in the foregoing part of this section, section 54, paragraphs 2 and 3, 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Registration Act, (XVI of 1908) [1908], under the power conferred by the first section of that Act or otherwise.
Court Decisions
1. Agricultural land situated in areas in Punjab not falling within municipal limits
2. Benefit of S.53-A of the Transfer of Property Act, 1882— Principles
3. Payment of sale consideration
4. Purchase of suit property from attorney
5. Registered sale-deed or mutation
6. Specific performance of agreement to sell
7. Symbolic possession of immovable property by the transferee
8. Transfer by Ostensible owner

1. Agricultural land situated in areas in Punjab not falling within municipal limits—Oral sale or disposal of such land by way of family settlement without registered deed—Validity—provision of S. 54 of Transfer of Property Act, 1882 not made applicable to such areas in Punjab—Disposal of such land in such manner would not be open to any legal objection. 2004 S C M R 515
2. Benefit of S.53-A of the Transfer of Property Act, 1882— Principles—In order to seek such protection or benefit, the petitioners must show that the possession is in pursuance of an agreement to sell which still subsists—Having committed default in performing his part of contract, a vendee cannot continue to remain in possession in the garb of protection of agreement to sell. 2002 Lawvision 83 = 2002 CLC 433
3. Registered sale-deed or mutation— Whether conclusive proof of ownership—Where title and ownership is expressly disputed and challenged by defendants in their written statement, registered sale-deed or mutation may, of course, be an evidence of the ownership in favour of plaintiffs but the same cannot be treated as conclusive proof of their legal right. 2002 Lawvision 41 = 2002 CLC 571
4. Purchase of suit property from attorney—Plaintiff was allotted the suit land who had earlier executed power of attorney which was later on revoked—Vendees purchased the suit property from the attorney—Such transfer was assailed by the plaintiff in civil suit and the same was dismissed by the Trial Court—Lower Appellate Court in exercise of appellate jurisdiction allowed the appeal and Judgment passed by the Trial Court was set aside—Contention raised by the vendee was that he was bona fide purchaser without notice of revocation of the agency—Validity—Registration of the revocation of power of attorney constituted sufficient notice—Record showed that after the cancellation of the power of attorney the vendees proceeded to purchase the land and that too not on the basis of original power of attorney but from the sub-agent of the attorney—Vendees should have checked up the record of the Registrar’s office before acting upon the representation made by the sub-agent that the original power of attorney was still in force—Deeds in favour of vendees were without lawful authority and as such were void—Lower Appellate -Court had not committed any error in passing the judgment and decree enabling High Court to interfere with the same. 2001 Lawvision 100 = 2001 MLD 1617
5. Payment of sale consideration—Petitioners did not mention single word qua payment/consideration in examination-in-chief or in cross-examination—Judgments and decrees of both courts below, non-suiting petitioner were, thus, in accordance with law-Petitioner had to succeed on basis of evidence produced by him and could not, take benefit of weaknesses in evidence of respondent-Re-appraisal of evidence does not justify remand of case-Petitioner having failed to prove with cogent evidence that sale in question, was executed between original owner and petitioner Courts below had correctly given concurrent, findings of fact, against him which do not warrant interference by High Court- in revisional jurisdiction. 2004 Lawvision 9 = PL J 2004 Lahore 193
6. Specific performance of agreement to sell—Time as of the essence of contract, claiming benefit of S.53-A of the Transfer of Property Act, 1882—Agreement to sell contained specific time frame for payment of consideration amount—Plaintiffs failed to pay the amount accordingly—Ground on which the non-payment of balance price was sought to be justified had been found against the plaintiffs by both the Courts below—Effect—Where the plaintiffs by their own conduct were responsible for rescission of the sale agreement, their possession had become unauthorized and unlawful—Benefit of S.53-A of the Transfer of Property Act, 1882, could not be extended to the petitioners—Appellate Court had rightly reversed the finding of Trial Court and dismissed the suit—Discretion exercised by the Appellate Court was unexceptionable and High Court declined to form a different view—Judgment and decree passed by the Appellate Court were upheld in circumstances. Zaheer Ahmad and another v. Abdul Aziz and another 1983 SCMR 559; Dr. Aftab A. Khan v. Muhammad Iqbal and 2 others 1984 CLC 3158; Isso and another v. Muhammad Ismail and 2 others 1992 MLD 1787; Messrs Pioneer Housing Society (Pvt.) Limited v. Messrs Babar & Co. PLD 1999 Lah. 193 and Haji Abdul Rehman v. Niaz Ali 2000 CLC 184 ref. 2002 Lawvision 83 = 2002 CLC 433
7. Symbolic possession of immovable property by the transferee—Effect—Plaint indicated that plaintiff had transferred five Marlas of land vide registered sale-deed to defendant and had also acknowledged in the deed in question of having given symbolic possession to the defendant—Sale-deed could not be deemed void, if actual physical possession was not delivered to the transferee. 2003 Lawvision 90 = 2003 MLD 1164
8. Transfer by Ostensible owner—Protection of rights of the transferees—Considerations for—Considerations necessary for the application of S. 41, Transfer of Property Act, 1882 were that the transferor was the ostensible owner, that he was so by the consent, express or implied, of the real owner; that the transfer was for consideration and that the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer. Lawvision 24 = 2002 MLD 205

2. Repeal of Acts. Saving of certain enactments, incidents, rights, liabilities, etc. In the territories to which this Act extends for the time being the enactments specified in the Schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained shall be deemed to affect-

(a) the provisions of any enactment not hereby expressly repealed:

(b) any terms or incidents of any contract or Constitution of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force;

(c) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability; or

(d) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction; and nothing in the Second Chapter of this Act shall be deemed to affect any rule of [Muslim] law.

3. Interpretation clause. In this Act, unless there is something repugnant in the subject or context, –
‘immovable property’ does not include standing timber, growing crops or grass;
‘instrument’ means a non-testamentary instrument:
‘attested’, in relation to an instrument, means ^and shall be deemed always to have meant] attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment or his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant;
but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;]
‘registered’ means registered in [a Province] under the law ‘for the time being in force regulating the registration of documents;
‘attached to the earth’ means-

(a) rooted in the earth, as in the case of trees and shrubs;

(b) imbedded in the earth, as in the case of walls or buildings; or

(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached:
‘Actionable claim’ means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional o contingent;]
[‘a person is said to have notice’ of a fact when he actually knows that fact, 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.
Explanation 1. -Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, ‘‘[where the property is not all situated in one sub-district, or where the registered instrument has been registered under Sub-section (2) of section 30 of the Registration Act, 1908, (XVI of 1908) from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated]:
Provided that-
(1) the instrument has been registered and its registration completed in the manner prescribed by the Registration Act, 1908, (XVI of 1908). and-the rules made thereunder,

(2) the instrument ‘[or memorandum] has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and

(3) the particulars-regarding the transaction to which instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Explanation II.-Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation III.-A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:
Provided that, if the agent fraudulently conceals the fact, the. principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.

4. Enactments relating to contracts to be taken as part of Contract Act. The chapters and sections of this Act which relate to contracts shall be taken as part of the Contract Act. 1872 (IX of 1872).
[And section, 54 paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to the Registration Act, 1908] XVI of 1908.

CHAPTER II
OF TRANSFERS OF PROPERTY BY ACT OF PARTIES
(A) Transfer of Property, whether moveable or immovable

5. Transfer of property defined. In the following sections ‘Transfer of Property’ means and act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, [or to himself] and one or more other living persons: and ‘to transfer property’ is to perform such act.
[In this section ‘living person’ includes a company or association or body of individuals, whether incorporated or not, but both in herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or besides of individuals.

6. What may be transferred. Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force-

(a) The chance of an heir-apparent succeeding to an estate, the chance for relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.

(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby.

(c) An easement cannot be transferred apart from the dominant heritage.

(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.

(dd) A right to future maintenance, in whatsoever manner arising secured or determined, cannot be transferred.]

(e) A mere right to sue cannot be transferred.

(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable.

(g) Stipends allowed to military [ naval], [air-force] and civil pensioners for [the Government] and political pensions cannot be transferred.

(h) No transfer can be made (I) in so far as it is opposed to the nature of the interest affected thereby, or (2) [for an unlawful object or consideration within the meaning of section 23 of the Contract Act, 1872], (IX of 1872) or (3) to a person legally disqualified to be transferred.

(i) Nothing in this section shall be deemed to authorize a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.]

7. Persons competent to transfer. Every person competent to contract and entitled to transferable property, or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner allowed and prescribed by any law for the time being in force.
Court Decisions
Persons competent to transfer. A person who has ownership rights of property and is recorded as such in record of rights or other public document in which record of ownership is entered or maintained, held, can be said to be entitled to property which is subject-matter of transfer. A person, authorised by owner of property legally to transfer, the same, held further, to be competent to transfer such property.-P.L.J.1997 AJK 54 =1997 CLC 466.

8. Operation of transfer. Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof.
Such incidents include, where the property is land, the easements annexed thereto, the rents and profit thereof accruing after the transfer, and all things attached to the earth;
and, where the property is machinery attached to the earth, the movable parts thereof;
and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith;
and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer;
and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.

9. Oral transfer. A transfer of property may be made without writing in every case in which a writing is not expressly required by law.

10. Condition restraining alienation. Where property is transferred subject to a condition or limitation absolutely restraining the transferred or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under, him. Provided that property may be transferred to or for the benefit of a woman (not being a Hindu, [Muslim] or Buddhist), so that she shall not have power during her marriage to transfer or change the same or her beneficial interest therein.

11. Restriction repugnant to interest created. Where on a transfer or property, and interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner; he shall be entitled to receive and dispose of such interest as if there were no such direction.
[Where any such direction has been made in respect of one piece of immovable property for the purpose of s securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.

12. Condition making interest determinable on insolvency or attempted alienation. Where properly is transferred subject to a condition or limitation making any interest therein, reserved or given to or for the benefit or. any person, to case on his becoming insolvent or endeavouring to transfer or dispose of the same, such condition or limitation is void.
Nothing in this section applies to a condition in a lease for the benefit of the lessor or those claiming under him.

Court Decisions
Applicability—Plaintiff would not be bound by transfer made in favour of subsequent vendee during pendency of suit—Such subsequent sale would not matter mush, where plaintiff was not found entitled to decree for specific performance of contract—Genuineness or otherwise of any further transaction would be relevant only, if a decree was granted in favour of plaintiff for specific performance. PLD 2003 SC 494

13. Transfer for benefit of unborn person. Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.
Illustration
A transfers property or which he is the owner to B in trust for A and his intended wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A’s second son. The interest so created for the benefit of the eldest son does not take effect, because it does not extend to the whole of A’s remaining interest in the property.

14. Rule against perpetuity. No transfer of property can operate to create an interest which is to take effect after the life-time of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong.

15. Transfer to class some of whom come under sections 13 and 14. If, on a transfer of property, an interest therein is created for the benefit of a class of persons with regard to some of whom such interest fails by reason of any of the rules contained in sections 13 and 14, such interest fails ‘‘[in regard to those persons only and not in regard to the whole class]

16. Transfer to take effect on failure of prior interest. Where, by reason of any of the rules contained in sections 13 and 14, an interest created for the benefit of a person or of a class of persons fails in regard to such person or the whole of such class, an interest created in the .same transaction and intended to take effect after or upon failure of such prior interest also fails.

17. Direction for accumulation. (1) Where the terms of a transfer of property direct that the income arising from the property shall be accumulated either wholly or in part during a period longer than-

(a) the life of the transferor, or
(b) a period of eighteen years from the date of the transfer, such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the longer of the aforesaid periods, and at the end of such last-mentioned period the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.

(2) This section shall not affect any direction for accumulation for the purpose of-

(i) the payment of the debts of the transferor or any other person taking any interest under the transfer or,
(ii) the provision of portions for children or remoter issue of the transferor or of any other person taking any interest under the transfer,’ or
(iii) the preservation or maintenance of the property transferred; and such direction may be made accordingly.

18. Transfer in perpetuity for benefit of public. The restrictions in sections 14, 16 and 17 shall not apply in the case of a transfer of property for the benefit for the public in the advancement of religion, knowledge, commerce, health, safely, or any other object beneficial to mankind.

19. Vested interest. Where, on a transfer or property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.
A vested interest is not defeated by the death of the transferee before he obtains possession.
Explanations An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person.

20. When unborn person acquires vested interest on transfer for his benefit. Where, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appear from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth.

21. Contingent interest. Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible.
Exception. – Where, under a transfer of property, a person becomes entitled to an interest therein upon attainting a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that ages, or directs the income or so much thereof as may be necessary to be applied for his benefit, such interest is not contingent.

22. Transfer to members of a class who attain a particular age. Where, on a transfer of property, an interest therein is created in favour of such members only of a class as shall attain a particular age, such interest does not vest in any member of the class who has not attained that age.

23. Transfer contingent on happening of specified uncertain event. Where, on a transfer of property, an interest therein is to accrue to a specified person if a specified uncertain event shall happen, and no time is mentioned for the occurrence of that event, the interest fails unless such event happens before, or at the same time as, the intermediate or precedent interest cease to o exist.

24. Transfer to such of certain persons as survive at some period not specified. Where, on a transfer of property, and interest therein is to accrue to such of certain persons as shall be surviving at some period, but the exact period is not specified, the interest shall go to such of them as shall be alive when the intermediate or precedent interest ceases to exist, unless a contrary intention appears from the terms of the transfer.
Illustration
A transfers property to B for life, and after his death to C and D, equally to be divided between them, pr to the survivor, for them. C dies during the life of B. D survives B. At B’s death the property passes to D.

25. Conditional transfer. An interest created on a transfer of property and dependent upon a condition fails if the fulfilment of the condition is impossible, or is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy.
Illustrations

(a) A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is void.

(b) A gives Rs. 500 to B on condition that he shall marry A’s daughter C. At the date of the transfer C was dead. The transfer is void.

(c) A transfers Rs. 500 to B on condition that she shall murder C. The transfer is void.

(d) A transfer Rs. 500 to his niece C if she will desert her husband. The transfer is void.

26. Fulfilment of condition precedent. Where the terms of a transfer impose a condition to be fulfilled before a person can take an interest in the property, the condition shall be deemed to have been fulfilled if it has been substantially complied with.

(a) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of C, D and E. E dies. B marries with the consent of C and D. B is deemed to have .fulfilled the condition.

(b) A transfer Rs. 5,000 to B on condition that he shall marry with the consent of C, D and E. B marries without the consent of C, D and E, but obtains their consent after the marriage. B has not fulfilled the condition.

27. Conditional transfer to one person coupled with transfer to another on failure of prior disposition. Where, on a transfer of property, an interest therein is created in favour of one person, and by the same transaction an ulterior disposition of the same interest is made in favour of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition, although the failure may not have occurred in the manner contemplated by the transferor.
But, where the intention of the parties to the transaction is that the ulterior disposition shall take effect, only in the event of the prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner.
Illustrations

(a) A transfer Rs.500 to B on condition that he shall execute a certain lease within three months after A’s death’, and, if he should neglect to do so, to C. B dies in A’s lifetime. The disposition in favour of C takes effect.

(b) A transfer property to his wife, but, in case she should die in his lifetime, transfers to B that which he had transferred to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him. The disposition in favour of B does not take effect.

Court Decisions
Caveat emptor. When a person ostensibly being owner transfer property for consideration and such transfer is questioned on the ground that transferor had no legal power to vacate same, transferee may be exempted from its consequences, provided, he establishes that he has taken reasonable care to ascertain power of transferor and has acted in good faith. This is known as “caveat emptor” rule and requires transferee, apart from acting in good faith, to take all reasonable care to apprise himself of any defect in transferor’s title or clog on his power to effect transfer. On the other and Section 27-B of Specific Relief Act, 1877 contemplates that equity of specific performance may not be enforced against a person who had, subsequently, purchased property and paid his money in good faith and without notice of original contract. Duty to ascertain as contemplated by S. 41 of Transfer of Property Act, 1882, is not stipulated in Specific Relief Act, 1877. Burden on transferee under Specific Relief Act, 1877 is less onerous and specific performance against him can be refused if it is shown that he acted in good faith and was not aware of pre-existing equity in favour of other person. P.L.J.1999 Kar. 633 = 1999 CLC 296.

28. Ulterior transfer conditional on happening or not happening of specified event. On a transfer of property an interest therein may be created to accrue to any person with the condition superseded that in case a specified uncertain event shall happen such interest shall pass to another person, or that in case a specified uncertain event shall not happen such interest shall pass to another person. In each case the dispositions are subject to the rules contained in sections 10, 12, 21, 22, 23, 24, 25 and 27.

29. Fulfillment of condition subsequent. An ulterior disposition of the kind contemplated by the Fast preceding section cannot take effect unless the condition is strictly fulfilled.
Illustration
A transfers Rs. 500 to B, to be paid to him on his attaining his majority or marrying, with a proviso that, it B dies a minor or marries without C’s consent, the Rs. 500 shall go to D. B marries when only 17 years of age, without C’s consent. The transfer to D takes effect.

30. Prior disposition not affected by invalidity of ulterior disposition. If the ulterior disposition is not valid, the prior disposition is not affected by it.
A transfer a farm to B for her life, and if she does not desert her husband, to C. B is entitled to the farm during her life as if no condition had been inserted.

31. Condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen. Subject to the provisions of section 12, on a transfer of property an interest therein may be created with the condition superseded that it shall cease to exist in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen.
Illustrations

(a) A transfers a farm to B for his life, with a proviso that, in case B cuts down a certain wood, the transfer shall cease to have any effect. B cuts down the wood. He loses his life-interest in the farm.

(b) A transfers a farm to B, provided that, if B shall not go to England within three years after the date of transfer, his interest in the farm shall cease. B does not go to England within the term prescribed. His interest in the farm ceases.

32. Such condition must not be invalid. In order that a condition that an interest shall cease to exist may be valid, it is necessary that the event to which it relates ‘be one which could legally constitute the condition of the creation of an interest.

33. Transfer conditional on performance of act, no time being specified for performance. Where, on a transfer of property, an interest therein is created subject to a condition that the person taking it shall perform a certain act, but no time is specified for the performance of the act, the condition is broken when he renders impossible, permanently or for an indefinite period, the performance of the act.

34. Transfer conditional on performance of act, time being specified. Where an act is to be performed by a person either as a condition to be fulfilled before an interest created on a transfer of property is enjoyed by him, as a condition on the non-fulfilment of which the interest is to pass from him to another person, and a time is specified for the performance of the act, if such performance within the specified time is prevented by the fraud of a person who would be directly benefited by non-fulfilment of the condition, such further time shall as against him be allowed for performing the act as shall be requisite to make up for the delay caused by such fraud. But if no time is specified for the performance of the act, then, if its performance is by the fraud of a person interested in the non-fulfilment of the condition rendered impossible or indefinitely postponed, the condition shall as against him be deemed to have been fulfilled.

ELECTION

35. Election when necessary.. Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor of the representative as if it had not disposed of;
Subject nevertheless,
where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer,
and in all cases where the transfer is for consideration,
to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.
Illustrations

(1) The farm of [Ulipur] is the property of C and worth Rs. 800. A by an instrument of gift professes to transfer it to B giving by the same instrument Rs. 1,000 to C. C elects to retain the farm. He forfeits the gift of Rs. 1,000.
In the same case, A dies before the election. His representative must out of the Rs. 1,000 pay Rs. 800 to B.

(2) The rule in the first paragraph of this section applies whether the transferor does or does not believe that which he professes to transfer tq be his own.

(3) A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect.

(4) A person who in his one capacity takes a benefit under the transaction may in another dissent therefrom.
Exception to the last preceding four rules. Where a particular benefit is expressed to be conferred on the owner of the property which the transferor professes to transfer, and such benefit is expressed to be in lieu of that property, if such owner claim the property, he must relinquish the particular benefit, but he is not bound to relinquish any other benefit conferred upon him by the same transaction.

(5) Acceptance of the benefit by the person on. whom it is conferred constitutes an election by him to confirm the transfer, if he is aware of his duty to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waives enquiry into the circumstances.

(6) Such knowledge or waiver shall, in the absence of evidence to the contrary, be presumed, if the person on whom the benefit has been conferred has enjoyed it for two years without doing any act to express dissent.

(7) Such knowledge or waiver may be inferred from any act of his which renders it impossible to place the persons interested in the property professed to be transferred in the same condition as if such act had not been done.
Illustrations
A transfers to B an estate to which C is entitled, and as part of the same transaction gives C a coal mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer of the estate to B.

(8) If he does not within one year after the date of the transfer signify to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representatives may, upon the expiration of that period, require him to make his election; and if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm transfer.

(9) In case of disability, the election shall be postponed until the disability ceases, or until the election is made by some competent authority.

Apportionment
36. Apportionment of periodical payments on determination of interest of person entitled. In the absence of a contract or local usage to the contrary, all rents, annuities, pensions, dividends and other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to receive such payments, be deemed, as between the transferor and the transferee, to accrue due from day to day, and to be apportionable accordingly, but to be payable on the days appointed for the payment thereof.

37. Apportionment of benefit of obligation on severance. When in consequence of a transfer, property is divided and held in several shares, and thereupon the benefit of any obligation relating to the property as a whole passes from one to several owners of the property, the corresponding duty shall, in the absence of me contract to the contrary amongst the owners; be performed in favour of each of such owners in proportion to the value of his share in the property, provided that the duty can be severed and that the severance does not substantially increase the burden of the obligation; but if the duty cannot be severed, or if the severance would substantially increase the burden of the obligation, the duty shall be performed for the benefit of such one of the several owners as they shall jointly designate for the purpose:
Provided that no person on whom the burden of the obligation lies shall be answerable for failure to discharge it in manner, provided by this section, unless and until he has had reasonable notice of the severance.
Nothing in this section applies to leases for agricultural purposes unless and until the [Provincial Government] by notification in the official Gazette so directs.
Illustrations

(a) A sells to B, C and D a house situate in a village and leased to E at an annual rent of Rs. 30 and delivery of one fat sheep B, having provided half the purchase money, and C and D one quarter each. E, having notice of this, must pay Rs. 15 to B, Rs. 7% to C and Rs. 7%, to D, and must deliver the sheep according to the joint direction of B, C and D,

(b) In the same case, each house in the village being bound to provide ten days’ labour each year on a dyke to prevent inundation, E had agreed as a term of his lease to perform this work for A, B, C and D severally require E to perform the ten day’s work due on account of the house of each. B is not bound to. do more than ten day’s work in all, according to such direction as B, C and D may joint in giving.

B. Transfer of Immovable Property

38. Transfer by person authorised only under certain circumstances to transfer. Where any person, authorised only under circumstances in their nature variable to dispose of immovable property, transfers such property for consideration, alleging the existence of such circumstances, they shall as between the transferee on the one part and the transferor and other person (if any) affected by the transfer on the other part be deemed to have existed, if the transferee, after using reasonable care to ascertain the existence of such circumstances, has acted in good faith.
Illustration
A, a Hindu widow, whose husband has left collateral heirs alleging that the property held by her as such is insufficient for her maintenance, agrees for purposes neither religious nor charitable, to sell a field, part of such property, to B. B, satisfies himself by reasonable enquiry that the income of the property is insufficient for A’s maintenance, and that the sale of the field is necessary, and acting in good faith, buys the field from A. As between B on the one part and A and the collateral heirs on the other part, necessity for the sale shall he deemed to have existed.

Court Decisions
“circumstances in their nature variable” in Section 38 of Transfer of Property Act is generally referred to a case when facts constitute a legal necessity for transfer of immovable property by a person having limited and qualified power of disposal of such property like under Hindu Law. P.L.J.2001 SC 1194 = 2001 SCMR 1053.
Phrase is generally referred to a case when facts constitute a legal necessity for the transfer of immovable property by a person having limited and qualified power of disposal of such property like under the Hindu Law 2001 SCMR 1053
Allotment of plot in favour of appellants, Firm by C.D.A.. Execution of agreement to sell with respondent in violation of terms of allotment. Validity. Whether agreement enforceable under law. Appellant, after having received major portion of sale consideration delivered possession of property and thereby agreement having partly performed, was not revocable either by appellant or his co-partners, as case may be, on any ground including ground that property was not transferable. Agreement having validly executed was enforceable under law against executant and bar created by C.D.A. upon transfer of plot by allotee to third person does not effect right and liabilities of parties. Parties validly entered into agreement and execution thereof is enforceable under law.-P.L.J.1999 Lah. 899 = 1999 CLC 899.

39. Transfer where third person is entitled to maintenance. Where a third person has a right to receive maintenance or a provision for advancement or marriage from the profits of immovable property, the right may be enforced against the transferee, if he has notice [thereof] or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.

40. Burden of obligation imposing restriction on use of land, or of obligation annexed to ownership but not amounting to interest or easement. Where, for the more beneficial enjoyment of his own immovable property, a third person has, independently of any interest in the immovable property, of another or of any easement thereon, a right to restrain the enjoyment [in a’ particular manner of the latter property], or
Where third person is entitled to the benefit of an obligation arising out of contract, and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon,
such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, nor against such property in his hands.
Illustration.
A contracts to sell [Ulipur] to B. While the contract is still in force, he sells [Ulipur] to C, who, has notice of the contract. B may enforce the contract against C to the same extent as against A.

41. Transfer by ostensible owner. 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.

Court Decisions
1. Rights of ostensible owner:- protection of S.41 of transfer of property act, 1882 Applicability plaintiffs were daughters of deceased owner of suit property and defendant was their cousin who purchased suit property from one of their brothers grievance of plaintiffs was that after the death of their father, they were excluded from mutation of inheritance and land was sold to defendant plea raised by defendant was that he purchased land from ostensible owner whose name was entered in revenue record suit was decreed by trial court in favour of plaintiffs but lower appellate court reversed the findings of trial court high court in exercise of appellate jurisdiction restored the judgment and decree passed by trial court validity once it was established that plaintiffs were entitled to inherit left over of their deceased father, they became co-sharers in the property on death of their father plaintiffs were co-owners of property to the extent of their share for all intents and purposes co-sharer was not entitled to alienate more than his share each co-share was deemed to be owner in joint property and any one of them could not act in a manner which could constitute an invasion on the rights of other co-shares though names of ladies (plaintiffs) had been excluded while entering inheritance mutation, yet defendant vendee, who was their cousin had the knowledge of their due entitlement and share if defendant simply acted on the bases of revenue entries, he did not adopt due care which an ordinary buyer should have taken defendant took advantage of his position being relative and lessee of the property rightful owner of property could not be deprived of his/her share unless precluded to claim the same due to conscious abandonment or relinquishment plaint if were daughters of deceased owner and under the law entitled to succeed and inherit the left over of the deceased plaintiffs had stepped into the shoes of their father on his death and became share holder to the extent of their shares any of the brothers, who were also co-sharer in the property could not deprive sisters of their due share by alienating the property falling in their share and belonging to them as plaintiffs were continued to be paid other share in the produce, no question of limitation could arise as limitation could not run against a co-sharer in such an eventuality defendant could not succeed in his plea of being bona fide purchaser and his reliance upon S.41 of transfer of property Act, 1882, was misplaced and misconceived supreme court declined to interfere in the judgment passed by high court appeal was dismissed. 2010, S, C , M , R .18
2. “Caveat emptor”. When a person ostensibly being owner transfer property for consideration and such transfer is questioned on the ground that transferor had no legal power to vacate same, transferee may be exempted from its consequences, provided, he establishes that he has taken reasonable care to ascertain power of transferor and has acted in good faith. This is known as “caveat emptor” rule and requires transferee, apart from acting in good faith, to take all reasonable care to apprise himself of any defect in transferor’s title or clog on his power to effect transfer. On the other 4and Section 27-B of Specific Relief Act, 1877 contemplates that equity of specific performance may not be enforced against a person who had, subsequently, purchased property and paid his money in good faith and without notice of original contract. Duty to ascertain as contemplated by S. 41 of Transfer of Property Act, 1882, is not stipulated in Specific Relief Act, 1877. Burden on transferee under Specific Relief Act, 1877 is less onerous and specific performance against him can be refused if it is shown that he acted in good faith and was not aware of pre-existing equity in favour of other person. P.L.J.1999 Kar. 633 = 1999 CLC 296.
3. Revisional jurisdiction of High Court–Donee of land in dispute, sold away land after about 10 years from date of attestation of gift entry in Revenue Record–Revenue Authorities, after 10 years of sale of land, on their own, reviewed gift and sale mutation on round that original owner/donor of land had transferred area in excess of his ownership by gift mutation and reverted land covered by mutations of gift and sale to original owner/donor–Suit against said reversion was concurrently decreed by two Courts below, but High Court in exercise of revisional jurisdiction reversed concurrent findings and decrees of Courts below and dismissed suit–Held: Mutations of gift and sale were cancelled by Revenue Authorities in review and land was reverted to original owner/donor on round that donor had gifted land in excess of his entitlement, but same donor after reversion of land to him, again sold same to different vendees, and Revenue Authorities did not object to such sales–Entire exercise for review by Revenue Authorities, thus, was motivated by ulterior motive–Correctness or otherwise of gift mutation was a matter between donor and donee and donee having not challenged gift mutation, High Court was not legally justified in doubting genuineness of gift mutation. PLJ 1999 SC 1750
4. Conditions:- Principle underlying provisions of section, as highlighted by PLD 1983 SC 53 is ‘whenever one of two innocent persons has to suffer by not of third person he who has enabled third person to occasion loss must sustain it–Conditions necessary for application of the section (i) the Transferor is the ostensible owner;(ii)he is so by the consent express or implied, of the real owner;(iii)the transfer is for consideration ;(iv) PLJ 1997 SC 168
5. Plea of protection on principle f section 41 f Act IV f 1882 is not available in settlement matters–Transfer of purchase (is) subject incidence of section 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 and purchser is not protected even though the sale was bona fide and for value. PLJ 1997 SC 168
6. Allotment of evacuee property. Cancellation under S. 10 of Displaced Persons (Land Settlement) Act, 1958. Whether Protection available to subsequent transferee. Protection under S. 41 of Transfer of Property Act or on basis of its principles is also not available to subsequent transferees who are petitioners in writ petitions which is not applicable in respect of evacuee property. Allotment is in nature of grant subject to provision of S. 10 of Displaced Persons (Land Settlement) Act, 1958 and exclude applicability of S. 41 of Transfer of Property Act and sale may be for value and bonafide but not protected under section 41 of Transfer of Property Act.-P.L.J.1996 Pesh. 118 = 1995 CLC 1394.
7. Allotment of plot in favour of appellants, Firm by C.D.A.. Execution of agreement to sell with respondent in violation of terms of allotment. Validity. Whether agreement enforceable under law. Appellant, after having received major portion of sale consideration delivered possession of property and thereby agreement having partly performed, was not revokable either by appellant or his co-partners, as case may be, on any ground including ground that property was not transferable. Agreement having validly executed was enforceable under law against executant and bar created by C.D.A. upon transfer of plot by allofctee to third person does not effect right and liabilities of parties. Parties validly entered into agreement and execution thereof is enforceable under law.-P.L.J.1999 Lah. 899 = 1999 CLC 899.
8. Contesting respondents failed to take reasonable care in ascertainment title of transfer. Protection under S. 41 of Transfer of Property Act, 1882 not to be available. P.L.J.1984 Lah. 96
9. Defendant purchasing half of land in question in his own name while half of the same was purchased by him through another person as benami transaction was subsequently transferred in the name of defendant through consent decree of Court. Suit for pre-emption against defendant was decreed by Trial Court but the same was dismissed by First Appellate Court. Validity. Benamidar for all intents and purposes is owner of property and his ownership would be subject to over-riding title to third person. Benamidar can pass title to third person and if that person had no knowledge of benami nature of his title, he would acquire good title even against real owner in terms of S. 41 of Transfer of Property Act, 1882. Benamindar thus, continued to be ostensible owner of property and only through decree of Court ownership was transferred in favour of contesting defendant. Such transfer by Benamidar in favour of vendee amounted to sale for purposes of Pre-emption suit. Finding of First Appellate Court that transaction in question, was not pre-emptible was not maintainable and the same was set aside while Judgment and’decree of Trial Court decreeing plaintiffs suit for pre-emption was restored.-P.L.J.2000 Lah. 1983.
10. Displaced Persons (Land Settlement) Act 1958 Plea of protection on principle of section 41 of Act IV of 1882 is not available in settlement matters. Transfer of purchase (is) subject incidence of section 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 and purchaser is not protected even though the sale was bona fide and for value. P.L.J.1997 SC 168 = 1997 SCMR 315 = NLR 1997Civil 220.
11. Donee of land in dispute, sold away land after about 10 years from date of attestation of gift entry in Rev. Record. Rev. Authorities, after 10 years of sale of land, on their own, reviewed gift and sale mutation on ground that original owner/donor of land had transferred area in excess of his ownership by gift mutation and reverted land covered by mutations of gift and sale to original owner/donor. Suit against said reversion was concurrently decreed by two Courts below, but High Court in exercise of revisional Jurisdiction reversed concurrent findings and decrees of Courts below and dismissed suit. Mutations of gift and sale were cancelled by Rev. Authorities in review and land was reverted to original owner/ donor on ground that donor had gifted land in excess of his entitlement, but same donor after reversion of land to him, again sold same to different vendees, and Rev. Authorities did not object to such sales. Entire exercise for review by Rev. Authorities, thus, was motivated by ulterior motive. Correctness or otherwise of gift mutation was a matter between donor and donee and donee having not challenged gift mutation, High Court was not legally Justified in doubting genuineness of gift mutation. P.L.J.1999 SC 175 – 1999 SCMR 399 = NLR 1999 Rev. 67.
12. Evacuee land–Cancellation of land on account of claim being bogus–Subsequent vendee of same land–Whether protection under Section 41 of Act is available to subsequent vendee–Question of–Petitioner could not be termed as bonafide purchaser for value of land in dispute–Inaction of revenue authority to implement order of Chief Settlement Commissioner, cancelling verified claim of Rehmatullah and allotment of land made on its basis, could not sanctify and infuse life into non-existent acts–Long before sale of land in favour of Petitioner, Rehmatullah was divested of his entitlement–Held: Fraud and misrepresentation nullified whole basis and any structure built on it, must fall to ground and crumble to pieces–Petition dismissed. PLJ 1993 Lahore 404
13. Inquiry by vendees—Revoking of agency—Purchase of suit property from attorney—Plaintiff was allotted the suit land who had earlier executed power of attorney which was later on revoked—Vendees purchased the suit property from the attorney—Such transfer was assailed by the plaintiff in civil suit and the same was dismissed by the Trial Court—Lower Appellate Court in exercise of appellate jurisdiction allowed the appeal and Judgment passed by the Trial Court was set aside—Contention raised by the vendee was that he was bona fide purchaser without notice of revocation of the agency—Validity—Registration of the revocation of power of attorney constituted sufficient notice—Record showed that after the cancellation of the power of attorney the vendees proceeded to purchase the land and that too not on the basis of original power of attorney but from the sub-agent of the attorney—Vendees should have checked up the record of the Registrar’s office before acting upon the representation made by the sub-agent that the original power of attorney was still in force—Deeds in favour of vendees were without lawful authority and as such were void—Lower Appellate -Court had not committed any error in passing the judgment and decree enabling High Court to interfere with the same. 2001 Lawvision 100 = 2001 MLD 1617
14. No reasonable care taken to ascertain that transferor had power to transfer property-S. 41 not attracted. P L J 1981 Peshawar 88
15. Owner during his entire lifetime made no efforts whatsoever to annul acts performed in result of such transfer. Held, such conduct would clearly indicate that owner had accepted the position.-P.L.J.1984 Pesh. 278.
16. Protection under S. 41 of Transfer of Property act, 1882 would not extend to transactions void ab initio. PLD 2004 Lah. 255
17. Purchase of suit property from attorney – Plaintiff was allotted the suit land who had earlier executed power of attorney which was later on revoked – Vendees purchased the suit property from the attorney – Such transfer was assailed by the plaintiff in civil suit and the same was dismissed by the Trial Court – Lower Appellate Court in exercise of appellate Jurisdiction allowed the appeal and Judgment passed by the Trial Court was set aside – Contention raised by the vendee was that he was bona fide purchaser without notice of revocation of the agency – Validity – Registration of the revocation of power of attorney constituted sufficient notice – Record showed that after the cancellation of the power of attorney the vendees proceeded to purchase the land and that too not on the basis of original power of attorney but from the sub-agent of the attorney – Vendees should have checked up the record of the Registrar’s office before acting upon the representation made by the sub-agent that the original power of attorney was still in force – Deeds in favour of vendees were without lawful authority and as such were void – Lower Appellate -Court had not committed any error in passing the Judgment and decree enabling High Court to interfere with the same. 2001 MLD 1617
18. read with Contract Act, 1872, Section 235–Sale of land on fraudulent power of attorney–Whether protected under Section 41 of Transfer of Property Act–Question of–Owner was not privy to fraud committed by respondent No.2–There are indications on record that local patwari was a close relation of petitioner and sale of. land in favour of petitioner was collusively manoeuvred–On basis of forged power of attorney, petitioner could not be allowed to claim a valid title to land in dispute–Principle of law enacted in Section 41 of Transfer of Property Act was inapplicable and case is covered by Section 235 of Contract Act, 1872, which gives no support to petitioner–Held: Pretended authority having been found fraudulent and non-existent, sale of land made on it was null and void–Petition dismissed. PLJ 1994 Lahore 307
19. read with West Pakistan Land Revenue Act, (XVII of 1967),Section 163–Revisional jurisdiction of High Court–Donee of land in dispute, sold away land after about 10 years from date of attestation of gift entry in Revenue Record–Revenue Authorities, after 10 years of sale of land, on their own, reviewed gift and sale mutation on round that riginal owner/donor of land had transferred area in excess of his ownership by gift mutation and reverted land covered by mutations of gift and sale to original owner/donor–Suit against said reversion was concurrently decreed by two Courts below, but High Court in exercise of revisional jurisdiction reversed concurrent findings and decrees of Courts below and dismissed suit–Held: Mutations of gift and sale were cancelled by Revenue Authorities in review and land was reverted to original owner/donor on round that donor had gifted land in excess of his entitlement, but same donor after reversion of land to him, again sold same to different vendees, and Revenue Authorities did not object to such sales–Entire exercise for review by Revenue Authorities, thus, was motivated by ulterior motive–Correctness or otherwise of gift mutation was a matter between donor and donee and donee having not challenged gift mutation, High Court was not legally justified in doubting genuineness of gift mutation PLJ 1999 SC 1750
20. S. 41 of Act is a statutory application of law of estoppel and makes an exception to rule that a person cannot confer a better title than he has. Principle underlying provisions of section, as highlighted by PLD 1983 SC 53 is “whenever one of two innocent persons has to suffer by act of third person he who has enabled third person to occasion loss must sustain it. Conditions necessary for application of the section :.
21. Sale in favour of Housing Society by grantees. Whether Chief Law Commissioner could apply provisions of Transfer of Property Act to validate Sale, Admittedly grantees/Sellers were not owners of any right in grants and they were mere grantees. Rules of natural equity embodied in Section 41 of Transfer of Property Act, were thus not attracted to facts and circumstances of cases in hand. Orders by Member, Federal Land Commission and Chief Land Commissioner Punjab have been passed without any Lawful Authority. Petitions accepted and cases remitted to Punjab Land Commissioner to deal with case of Society/Purchases within frame work of Section 17 of Act.-P.L.J.1997 Lah. 235 = 1996 MLD 1988.
22. Sale of Immovable property:– Four requirements for S, 4I stated and held that if any one of the stated four ingredients be wanting the transferee will not he eligible to seek protection of S. 41:– Suit property inherited by vendor and respondents from their father therefore all of them enjoyed joint ownership to the attest of their respective Quranic shares:– Mere fact that vendor was in exclusive possession of suit property, would not make her an exclusive owner of such property:– Vendee from bee (Vendor) can not become exclusive owner but a cosharer qua her ownership rights in joint property in absence of evidence as to partition:– Sale held valid to the extent of fractional share by vendor as cosharer but void ab initie with regard to rest of shares. PL J 1980 Lahore 537
23. Sale of land on fraudulent power of attorney. Whether protected under Section 41 of Transfer of Property Act. Question of. Owner was not privy to fraud committed by respondent. There are indications on record that local patwari was a close relation of petitioner and sale of land in favour of petitioner was collusively manoeuverd. On basis of forged power of attorney, petitioner could not be allowed to claim a valid title to land in dispute. Principle of law enacted in Section 41 of Transfer of Property Act was inapplicable and case is covered by Section 235 of Contract Act, 1872, which give no support to petitioner. Held: Pretended authority having been found fraudulent and non-existent, sale of land made on it was null and void.-P.L.J.1994 Lah. 307 = 1994 MLD 1059.
24. –Specific Relief Act, 1877 (I of 1877), S. 27(b)–Transfer of property by ostensible owner–“Caveat emptor”–When a person ostensibly being owner transfer property for consideration and such transfer is questioned on the ground that transferor had no legal power to vacate same, transferee may be exempted from its consequences, provided, he . establishes that he has taken reasonable care to ascertain power of transferor and has acted in good faith–This is known as “caveat emptor” rule and requires transferee, apart from acting in good faith, to take all reasonable care to apprise himself of any defect in transferor’s title or clog on his power to effect transfer–On the other hand Section 27-B of Specific Relief Act, 1877 contemplates that equity of specific performance may not be enforced against a person who had, subsequently, purchased property and paid his money in good faith and without notice of original contract–Duty to ascertain as contemplated by S. 41 of Transfer of Property Act, 1882, is not stipulated in Specific Relief Act, 1877–Burden ‘on transferee under Specific Relief Act, 1877. is less onerous and specific performance against him can be refused if it is shown that he acted in good faith and was not aware of. pre-existing equity in favour of other person. PLJ 1999 Karachi 633
25. Suit for declaration of title and ownership over house based on sale deed—Suit decreed—Contention of defendants that suit property purchased by them was different from that claimed by plaintiff—1n view of such contention plaintiff’s independent title cannot be objected to—Defendants could not raise such contention too as their evidence on record was contrary to that—S. 42, Specific Relief Act (1877). P L J 1980 Supreme Court 158
26. the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer”. P.L.J.1997 SC 168 = 1997 SCMR 315 = NLR 1997 Civil 220.
27. Transfer (in circumstances) not to be entitled to benefit. P.L.J.1984 Lah. 96.
28. Transfer by Ostensible owner—Protection of rights of the transferees—Considerations for—Considerations necessary for the application of S. 41, Transfer of Property Act, 1882 were that the transferor was the ostensible owner, that he was so by the consent, express or implied, of the real owner; that the transfer was for consideration and that the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer. Lawvision 24 = 2002 MLD 205
29. Transfer by ostensible owner—Purchaser could set out the plea of bona fide act, if the transfer in his favour had been made with the express or implied consent of a person interested in the immovable property by a person who was ostensible owner of such property and had transferred the same for consideration—Person who had sold the property, in the present case, was not the ostensible owner of the property, rather was acting as attorney for the owners and there was no express or implied consent by the owners in his favour enabling him to sell the property—Power of attorney on the basis of which, the said person had represented the seller as his agent had already been determined to be a forged document and therefore having purchased the property on the basis of said power-of-attorney from an unauthorized person, the sales were absolutely void, resultantly the purchasers could not set out a plea of bona fide purchaser—judgments of both the Courts and decree being invalid and based upon misreading and non-reading of the record and ignorance of law were set aside by the High Court in revision with the result that suit of the owners of the land stood decreed. PLD 2003 Lah. 576
30. Transfer of property by attorney. Whether vendees, title protected in absence of authority of attorney to transfer title. Suffice it to say that respondent No, 3 himself being not competent title holder nor authorised to transfer title, merely on basis of sale deed executed by him in favour of respondent No. 1 and 2, neither title in suit land has passed nor provisions of S. 41 of Transfer of Property Act protect their title. P.L.J.1996 Lah. 597 = 1996 MLD 1123.
31. Transfer of property pending suit relating to sale of suit property was made by vendor in favour of subsequent vendee during pendency of suit filed by original vendee against vendor despite the fact that subsequent vendee had knowledge of pendency of suit—Claim of subsequent vendee had knowledge of pendency of suit—Claim of subsequent vendee to be bona fide purchaser for value had rightly been turned down. 2004 C L C 421

42. Transfer by person having authority to revoke former transfer. Where a person transfers any immovable property reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee (subject to any condition attached to’ the exercise of the power) as a revocation of the former transfer to the extent of the power.
Illustration
A lets house to B, and reserves power to revoke the lease if, in the opinion of a specified surveyor, B should make a use of it detrimental to its value. Afterwards A thinking that such a use has been made, lets the house to C. The operates as a revocation of B’s lease subject to the opinion of the surveyor as to B’s use of the house having been detrimental to its value.

43. Transfer by unauthorized person who subsequently acquires interest in property transferred. Where a person ‘[fraudulently or] erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
Noting in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.
Illustration
A, a Hindu, who has separated from his father B, sell to C three fields, X, Y and Z, representing that A is authorised to transfer the same. Of these fields Z does not belong to A, in having been retained by B on the partition; but on B’s dying A as heir, obtains Z. C, not having rescinded the contract of sale, may require A to deliver z to him.

44. Transfer by one co-owner. Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

Court Decisions
Sale of specific field numbers in possession of vendor due to family arrangement—Validity—Such arrangement would not extinguish title of other co-sharers—Such sale and possession would debar other co-sharers to get back possession or challenge sale, subject o adjustment at time of partition as if vendor had not sold land. 2004 C L C 441
transference from cosharer possession steps into shoes of transferer and become; a joint owner having right to be in joint possession with coowners and he in enjoyment of proportion advantage-Such transferee not trespasser but a cosharer subject to adjusttent at time of actual partition. Cosharer in possession of undivided property, tot exceeding his share cannot be dislodged till partition -Possession of transferee Aso not to be disturbed. P L J 1981 Lahore 62
Exception contained in tad part-Designed :o present outsiders from enforcing right to joint possession or part enjoyment to dwelling house-Parties admittedly Muslims No assumption as a matter of law of fact that posession of one is possession of all. P L J 1981 Lahore 62

45. Joint transfer for consideration. Where immovable property is transferred for consideration to two or more persons, and such consideration is paid out of a fund belonging to them in common, they are in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interest in such property ‘in proportion to the shares of the consideration which they respectively advanced.
In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such person shall be presumed to be equally interested in the property.

46. Transfer for consideration by persons having distinct interests. Where immovable properly is transferred for .consideration by persons having distinct interest therein, the transferors are, in the absence of a contract to the contrary, entitled to share in the consideration equally, where their interests in the property were of equal value, and, where such interests were of unequal value, proportionately to the value of their respective interests.
Illustrations

(a) A, owning a moiety, and B and C each a quarter share, of mauza [Ulipur], exchange an eighth share of that mauza for a quarter share of a mauza [Mithapukur]. There being no agreement to the contrary,
A is entitled to an eighth share in Mithapukur, and B and C each to a sixteenth share in that mauza.

(b) A being entitled to a life-interest in mauza [Jalkothi] and B and C, to the reversion, sell the mauza of Rs. 1,000. A’s life-interest is ascertained to be worth Rs. 600, the reversion Rs. 400. A is entitled to receive Rs. 600 out of the purchase-money, B and C to receive Rs. 400.

47. Transfer by co-owners of share in common property. Where several co-owners of immovable property transfer a share therein without specifying that the transfer is to take effect on any particular share or shares of the transferors, the transfer, as among such transferors, takes effect on such shares equally where the shares were equal, and, where they were unequal, proportionately to the extent of such shares.
Illustration
A, the owner of an eight-anna share and B and C, each the owner of a four-anna share, in the mauza [Ulipur]; transfer a two-anna share in the mauza to D, without specifying from which of their several shares the transfer is made. To give effect to the transfer one-anna share is taken from the share of A, and half an anna share from each of the shares of B and C.

48. Priority of rights created by transfer. Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.

Court Decisions
Prior right of Allotment. Claim. Lease though was not executed in favour of respondent but was accepted as allottee in place of original allottee and had paid all dues. Cancellation of plot without any ground and notice and stbsequent transfer to other person was against all legal norms.-P.L.J.1997 Karaci 1239 = 1997 MLD 3091.
Prior right Allotment–Claim of–Subsbequent transfer–Challenge to–Lease though was not executed in favour of respondent but was accepted as allottee in place of original allottee and had paid all dues–Cancellation of plot without any ground and notice and subsequent transfer to other person was against all legal norms. PLJ 1997 Karachi 1239

49. Transferee’s right under policy. Where immovable property is transferred for consideration, and such property or any part thereof is at the date of the transfer insured against loss or damage by fire, the transferee, in case of such loss or damage, may, in the absence of a contract to the contrary, require any money which the transferor actually receives under the policy, or so much thereof as may be necessary, to be applied in reinstating the property.

50. Rent bona fide paid to holder under defective title. No person shall be chargeable with any rents or profits of any immovable property, which he has in good faith or delivered to any person of whom he in good faith held such property, notwithstanding it may afterwards appear that the person to whom such payment or delivery was made had no right to receive such rents or profits.
Illustration
A lets a field to B at a rent of Rs. 50, and then transfers the field to C. B, having no notice of the transfer in good faith pays the rent to A, B is not chargeable with the rent so paid.

51. Improvements made by bona fide holders under defective titles. When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.

Court Decisions
Transferee bonafr`de believing to be rightful owner and making improvements in property–Compensation for–Claim of–Option to sell interest -in property to occupant or to purchase interest of person in occupation–Under second part of Sections 2 and 51 of both Acts, option is given to owner but he is to purchase interest of person under threat of eviction–Owner is sole arbiter whether to sell his interest in property at hands of occupant or to purchase interest of latter–Held: In this case, trial as well as second appellate court have deprived owner of suit land to exercise such an option, by application of principle of promissory estoppel. PLJ 1992 SC 139

52. Transfer of property pending suit relating thereto. During the [pendency] in any Court having authority in [Pakistan], or established beyond the limits of [Pakistan] by [the ‘[Federal Government, [any] suit or proceeding [which is not collusive and] in which any right to immovable property is directly and Specifically in question, the property cannot be transferred to otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
[Explanation. -For the purpose this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction of discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]

Court Decisions
Applicability—Plaintiff would not be bound by transfer made in favour o subsequent vendee during pendency of suit—Such subsequent sale would not matter mush, where plaintiff was not found entitled to decree for specific performance of contract—Genuineness or otherwise of any further transaction would be relevant only, if a decree was granted in favour of plaintiff for specific performance. PLD 2003 SC 494
Arbitration Act, 1940 (X of 1940), Ss. 14 & 17 Lis pendens, principle of–Applicability–Arbitration proceedings during pendency of suit for specific performance relating to same subject matter, between the same parties were hit by the principle of lis pendens in terms of S. 52, Specific Relief Act, 1882. PLJ 2004 Lahore 1512
Azad Jammu and Kashmir Right of Prior Purchase Act, S- 20-A–Azad Jammu and Kahsmir Interim Constitution Act (VIII of 1974), S- 42–Appelalnt having purchased property in question, from original vendee during pendency of suit whether a necessary party to suit filed by preemptor–Appellant having obtained sale-deed from original vendee during pendency of pre-emption suit after the expiry of period of limitation prescribed for the suit of pre-emption against first sale-deed, he could not be deemed to have stepped into the shoes of original vendee, and to avail any of the defence which was available to original vendee–Transfer having been made in favour of appellant after the expiry of period of limitation against original vendee, appellant cannot he deemed to be a necessary party and to be impleaded in pre-emption suit filed by pre-emptor- PLJ 2002 SC (AJK) 207
–Constitution of Pakistan (1973), Art. 185–Provision of S. 4i, Transfer of Property Act, 1882 essentials to seek protection under S.41–Before invoking S. 41, Transfer of Property Act, 1882 essential requirements, were that; transferor was ostensible owner; he was so by consent express or implied of real owner; transfer was for consideration and; transferee had cited in good faith taking reasonable care to ascertain that transferor had power to transfer–Where any one of such condition was not satisfied, transferee would be ineligible to seek protection under S. 41, Transfer of Property Act, 1882–Even if property in question, had been purchased by vendee in good faith, remaining conditions were not satisfied–Property in question, had been mortgaged and document of title where of were deposited with appellant (bank)–Mortgagor having already directed himself of right in property after its mortgage, was neither ostensible owner thereof, nor any express or implied consent of appellant thereto could be spell out–Vendee evidently had purchased property in question even without verifying original documents of title, which were with appellant, therefore, he could not be deemed to be transferee in good faith–High Court had failed to notice that alleged transaction between vendor and vendee was hit by doctrine of lis pendens in as much as proceedings in respect of property in question were already pending before Court of competent jurisdiction and such property was under attachment of court at the time of its alleged sale, therefore, such property was to be governed by S. 52, Transfer of Property Act, 1882–No protection was thus available to alleged vendee even if he was deemed to be purchaser for consideration in good faith–Order of High Court being based on incorrect exposition of law was set aside in circumstances. PLJ 2000 SC 75
Constitution of Pakistan 1973, Art. 185–Principle of–Connotation and applicability–Principle of lis pendens would postulate that during pendency of any suit or proceeding in any Court in which any right to immovable property was directly and specifically in issue, property comprised therein, could not be transferred or otherwise dealt with by any party to suit or proceedings so as to affect the right of any other party thereto under any decree or order which might be made therein except under the authority of the Court and on such terms and conditions as might be stipulated–Where in agreement in question, it had been made expressly clear that transfer of land in question, would be subject to the judgment of Court, principle of lis pendens could not be made applicable–No lawful justification was available to put restrictive construction on S. 52 of Transfer of Property Act, 1882 and stretch it too far by inferring that even agreement to sell which is subject to limitation as enumerated in Section 52, Transfer of Property Act, 1882, could not be executed–Where at the time of execution of agreement in question, transferor was exclusive owner of land and thereafter, her such exclusive ownership was reduced to 1/3 share as per judgment of Court agreement executed by her comprised land less than her reduced share, transferee would be entitled to succeed on the basis of agreement in question–Judgment and decree of High court was set aside while that of Trial Court decreeing suit of appellants was restored. PLJ 2001 SC 108
–Constitution of Pakistan, 1973, Art. 185(3)–Principle of lis-penden–Applicability–Leave to appeal was granted to consider; whether principle of lis pendens as enumerated in Section 52 of Transfer of Property Act, 1882, was incorrectly applied by the High Court in view of the fact that in agreement of specified date, specific mention has been made that oral agreement for sale of property in question, had taken place 5/6 years earlier and specified amount was paid as token money. PLJ 2001 SC 108
Doctrine of Its pendants contained in Section 52 f Transfer f Property Act merely provide that a transfer f immovable property during pendency f suit, which is not collusive in nature, in which right to such immovable property is directly and specifically in question, cannot defeat or effect right f any party to proceeding under any decree or order which may be made in such suit. PLJ 1997 SC 202
Doctrine of Lis pendents contained in Section 52 of Transfer of Property Act merely provide that a transfer of immovable property during pendency of suit, which is not collusive in nature, in which right to such immovable property is directly and specifically in question, cannot defeat or . effect right of any party to proceeding under any decree or order which may be made in such suit.-P.L.J.1997SC202 = 1997 SCMR 171.
Doctrine of lis-pendens would apply to suit for pre-emption in as much as, such suit involves right of specific immovable- property and therefore, is Governed by the immovable property and therefore, is Governed by the principle of lis-pendens but such rule would not affect any sale taking place while right of pre-emption of subsequent vendees was still subsisting. Doctrine of lis-pendens would apply to suit for pre-emption where subsequent sale had taken place after expiry of period of limitation. Word “proceedings” used in S. 52 of Transfer of Property Act 1882 would mean continuous proceedings right from trial Court to appeal or revision, preferred within limitation. P.L.J.2000 Lah. 1406.
Doctrine of lis-pendens–Applicability–Doctrine of lis-pendens would apply to suit for pre-emption in as much as, such suit involves right of specific immovable property and therefore, is Governed by the immovable property and therefore, is Governed by the principle of lis pendens but such rule would not affect any sale taking place while right of pre-emption of subsequent vendees was still subsisting–Doctrine of lis pendens would apply to suit for pre-emption where subsequent sale had taken place after expiry of period of limitation–Word “proceedings” used in S. 52 of Transfer of Property Act 1882 would mean continuous proceedings right from trial Court to appeal or revision, preferred within limitation. PLJ 2000 Lahore 1406
Doctrine of lit pendent stated and elaborated—Also held that property transferred to petitioner subject to doctrine of Its pendent bounds the petitioner with ultimate outcome of decision to be given in litigation proceedings. PLJ 1980 Lahore 616
Leave to appeal was granted to consider; whether principle of lis pendens as enumerated in Section 52 of Transfer of Property . Act, 1882, was incorrectly applied by the High Court in view of the fact that in agreement of specified date, specific mention has been made that oral agreement for sale of property in question, had taken place 5/6 years earlier and specified amount was paid as token money. P.L.J.2001 SC 108 = PLD 2001 SC 449.
Lis pendens, principle of-Restriction provided against adverse development during proceedings-Not limited to transfer of property in dispute-Property otherwise dealt with adversely effected Right of a party also hit by principle-Declaratory Suit to nullify sale-Adversely effected right of preemptor-Declaratory decree righty set aside P L J 1981 Lahore 93
Lit pendens, principle of—Immovable property cannot be sold to strangers during pendency of suit for preemption though vendee can within prescribed period of limitation transfer suit property to a person having equal or superior right of preemption. P L J 1980 Lahore 388
–N.W.F.P. Pre-emption Act, 1987, S. 22–Principle of lis pendens–Suit for pre-emption–Suit property further sold to third party before institution of suit–Whether S. 52 attracted–Held : In such circumstances principle of his pendens would not be attracted as it was only applicable where suit was already pending–Further held that if said provision would wrongly applied to the sales taking place prior to the institution of suit then every purchaser would be made bound to wait for a pre-emption suit and to refrain from exercising his proprietory rights over the property purchased–Leave was refused. PLJ 2004 SC 653
Principle of Lis pendens would postulate that during pendency of any suit or proceeding in any Court in which any right to immovable property was directly and specifically in issue, property comprised therein, could not be transferred or otherwise dealt with by any party to suit or proceedings so as to affect the right of any other party thereto under any decree or order which might be made therein except under the authority of the Court and on such terms and conditions as might be stipulated. Where in agreement in question, it had been made expressly clear that transfer of land in question, would be subject to the Judgment of Court, principle of lis pendens could not be made applicable. No lawful Justification was available to put restrictive construction on S, 52 of Transfer of Property Act, 1882 and stretch it too far by inferring that even agreement to sell which is subject to limitation as enumerated in Section 52, Transfer of Property Act, 1882, could not be executed. Where at the time of execution of agreement in question, transferor was exclusive owner of land and thereafter, her such exclusive ownership was reduced to 1/3 share as per Judgment of Court agreement executed,by her comprised land less than her reduced share, transferee would be entitled to succeed on the basis of agreement in question. Judgment and decree of High Court was set aside while that of Trial Court decreeing suit of ‘ appellants was restored.-P.L.J.2001 SC 108 = PLD 2001 SC 449.
Principles of lis pendens and res-judicata—Applicability—Question of title was decided between parties by Supreme Court in earlier round of litigation—Supreme Court had decided in favour of respondent subject to payment of balance amount—Petitioner failed to bring on record any document to show that respondent did not deposit balance amount within stipulated period as prescribed by Supreme Court in earlier judgment—Both Courts below had thus, rightly come to conclusion in subsequent suit filed by petitioners that respondent had become owner in possession of house in question—Petitioners were basing their title on a decree, which was secured by them during pendency of litigation either before High Court or before Supreme Court—Courts below had thus, rightly given finding of fact that petitioners decree was hit by principle of lis pendens—Petitioners were parties to proceedings in earlier round of litigation which was finalized between parties by Supreme Court—Petitioners did not point out decree secured by them either before High Court or Supreme Court—Both Courts were thus justified to non-suit petitioners—Once matter had been concluded upon Supreme Court, then Civil Courts had no jurisdiction to re-open same on principle of res-judicata. 2003 Lawvision 188 = PLJ 2003 Lahore 210
Restriction provided against adverse development during proceedings. Not limited to transfer of property in dispute. Property otherwise dealt with adversely, effected. Right of a party also hit by principle. Declaratory Suit to nullify sale. Adversely effected right of pre-emptor. Declaratory decree rightly set aside. P.L.J.1981 Lah. 93.
Transfer of property pending suit relating to sale of suit property was made by vendor in favour of subsequent vendee during pendency of suit filed by original vendee against vendor despite the fact that subsequent vendee had knowledge of pendency of suit—Claim of subsequent vendee had knowledge of pendency of suit—Claim of subsequent vendee to be bona fide purchaser for value had rightly been turned down. 2004 C L C 421
–Two suits, one for declaration and other for specific performance for agreement to sell alongwith applications for interim injunction–Application by appellant dismissed whereas other application by respondent was allowed–Appeals against–Respondent, after payment of Rs. 5 Lacs as earnest money to appellar..t did not take any step towards completion of agreement–He demolished incomplete house constructed at spot, removed material or utilized same, got excavated plot and raised construction of basement without sanction of map from CDA and obviously in violation of relevant rules–There is nothing on record to make out that he was willing and ready to perform his part of contract except payment of earnest money–Therefore, he is not entitled to legal benefit of Section 53-A of Act, 1882 neither, he is entitled to discretion of Court–Impugned order, dismissing application of appellant is devoid of judicial propriety–Appellant cannot be restrained from getting possession of suit property–Construction by respondent was stopped–Any how, appellant was restrained from alienating suit property and dispossessing respondent otherwise than due process of law–Orders accordingly. PLJ 1999 Lahore 1598
Two suits, one for declaration and other for specific performance for agreement to sell alongwith applications for interim injunction. Application by appellant dismissed whereas other application by respondent was allowed. Appeals against. Respondent, after payment of Rs. 5 lacs as earnest money to appellant did not take any step towards completion of agreement. He demolished incomplete house constructed at spot, removed material or utilized same, got excavated plot and. raised construction of basement without sanction of map from CDA and obviously in violation of relevant rules. There is nothing on record to make out that he was willing and ready to perform his part of contract except payment of earnest money. Therefore, he is not entitled to legal benefit of Section 53-A of Act, 1882 neither, he is entitled to discretion of Court. Impugned order, dismissing application of appellant is devoid of Judicial propriety. Appellant cannot be restrained from getting possession of suit property. Construction by respondent was stopped. Any how, appellant was restrained from alienating suit property and dispossessing respondent otherwise than due process of law. P.L.J.1999 Lah. 1598.

53. Fraudulent transfer. (1) 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 or delayed.
Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration.
Nothing in this sub-section shall affect any law for the time being in force relating to insolvency.
A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of, all the creditors.

(2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.
For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made,

Court Decisions
53-A. Part performance. 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;
A party cannot take benefit of principle of part performance U/S. 53-A when transaction was not reduced into and signed by parties. PLJ 2000 SC 331
A party cannot take benefit of principle of part performance U/S.. 53-A when transaction was not reduced into and signed by parties. P.L.J.2000 SC 331
A read with Section 17 of Registration Act, 1908–Sale of land under unregistered document–Whether such a document is admissible in evidence and whether interest of transferee is protected under law–Questions of–Unregistered document can be received in evidence for collateral purposes under amended Section 49 of the Registration Act–Such document can be admitted in evidence and also be relied upon to prove any collateral purpose i.e., factum of possession–Evidence on record manifestly proved possession of respondent on property on basis of unregistered document whose execution stands established—Factual of construction of houses is also proved, which according to Local Commission were 25 years old–Held: Transferee’s interest is protected under Section 53-A of Transfer of Property Act, 1882—Revision petition dismissed. PLJ 1994 Peshawar 70
A read with sections 50 and 17 of the Registration Act–Suit for declaration with possession on the basis of unregistered document–Held If any document requiring registration under section 17 of Registration Act has not been registered, it cannot bar or deprive a purchaser from claiming benefit under section 53-A of Transfer of Property Act provided he satisfies requirement of said section. PLJ 1997 SC 498 1992 SCMR 1265, PLD 1964 SC 456, PLD 1984 SC 4244, AIR 1941 Lah. 407, PLD 1971 SC 114, PLD 1984 PC 52. rel.
Agreement of sale accompanied by general power of attorney. Whether does not transfer title to purchaser. Under circumstances of case, Section 53-A of Transfer of Property Act, is attracted. Held: Change of possession of suit property is, in fact, an act of part performance which admittedly was done in this case and this created a legal right in favour of persons to whom property was transferred. P.L.J.1994 Kar. 15 = PLD 1994 Kar. 194.
Agreement of sale accompanied by general power of attorney–Whether does not transfer title to purchaser–Question of–Under circumstances of case, Section 53-A of Transfer of Property Act, is attracted–Held: Change of possession of suit property is, in fact, an act of part performance which admittedly was done in this case and this created a legal right in favour of persons to whom property was transferred. PLJ 1994 Karachi 15
–Agreement to sell executed by person holding power of attorney on behalf of owner–Power of attorney was executed in 1984 in respect of plot, while agreement to sell was executed in 1994, after a period of 10 year and the same related to house which had been built on that plot after alleged execution of power of attorney–Defendant being purdanashin lady should have been called to rectify power of attorney and factum of sale of house which was not in existence at the time of execution of alleged execution of power of attorney–Agreement to sell was thus, result of misrepresentation–Decree on basis of such power of attorney passed by trial Court was thus, not sustainable and the same was set aside. PLJ 2004 Quetta 30
Agreement to sell executed prior to coming into force of Qanun-e-Shahadat. 1984. Such agreement had not been attested by two marginal witnesses. Status, Agreement in question, having been executed prior to coming into force Qanun-e-Shahadat, 1984, same could not be ruled out of consideration on basis of Arts. 17 & 79, Qanun-e-Shahadat, 1984, which require every document creating financial obligation to be attested by at least two witnesses. P.L.J.1997 Lah. 1526= 1997 CLC 1580.
Agreement to sell on the basis of which defendant (petitioner) claimed ownership was unregistered and unattested document and same did not bear signatures of plaintiffs who were owners of land in question to the extent of 5/6 share of such land–Document purported to be agreement to sell did bear signature of person who was owner to extent of 1/6 share of such land–No other document was produoe(j in favour of defendants relating to transfer of ownership–Plaintiff having established their right to extent of 5/6 share of land, were entitled to claim partition thereof. PLJ 2003 Lahore 697
Agreement to sell property—Part performance—Four conditions for invoking protection of S. 53-A narrated and held that such conditions were satisfied in instant case in favour of tenant in possession—S. 13, W. P. Urban Rent Restriction Ordinance (1959). P L J 1980 Lahore 203
–Agreement to sell–Claim of ownership on the basis of such agreement–Mere agreement to sell does not confer any right of ownership upon any person–Petitioner on such basis cannot claim protection under S. 53-A of Transfer of Property Act, 1882. PLJ 2003 SC 714
–Agreement to sell–Effect of–Agreement to sell only creates a right to obtain another document, conferring title in respect of immovable property mentioned therein and for that very reason such document does not required registration–Agreement to sell does not, of itself create any interest in or charge on immovable property in question. PLJ 2002 SC 706
Alleged power of attorney’ executed by vendor in favour of vendee was got registered at a place where-neither land in question was situated nor party resided or worked for gain. Scribe of document had stated in Court that he did not know vendor and he was unable to give even most rudimentary description, of vendor. Provisions of S, 22 Specific Relief Act, 1877, stipulates that Jurisdiction to decree specific performance of contract was discretionary. Court was not expected to decree specific performance where circumstances in which contract was made were such as to give plaintiff unfair advantage over vendor, even though there was no fraud or misrepresentation on plaintiffs part. Plaintiff was thus not entitled to relief of specific performance. Judgment and decree passed by trial Court was set aside and plaintiffs suit was dismissed in circumstances. P.L.J.1999 Lah. 1770.
Benefit of S.53-A of the Transfer of Property Act, 1882— Principles—In order to seek such protection or benefit, the petitioners must show that the possession is in pursuance of an agreement to sell which still subsists—Having committed default in performing his part of contract, a vendee cannot continue to remain in possession in the garb of protection of agreement to sell. 2002 Lawvision 83 = 2002 CLC 433
Civil Procedure Code (V of 1908), O.VI, R. 17 & S. 115–Petitioners’ only remedy was to file suit for specific performance of contract on the basis of agreement to sell–Suit for declaration and permanent injunction on basis of agreement to sell was not competent–Respondents allegedly having received full consideration, such fact brings case of petitioners in the area of equity–Courts below, however, did not consider such aspect of the case–Courts must look into the substance rather than the form of the suit–Impugned judgments and decrees were set aside and case was remanded to trial Court with direction that suit for declaration and permanent injunction be treated as suit for specific performance with permission to petitioners to amend plaint accordingly subject to payment of Rs. 10,000/– trial Court after receipt of amended plaint/pleadings and framing issues, giving opportunity to parties would decide the same in accordance with law. PLJ 2002 Lahore 1667
Civil Procedure Code (V of 1908), S. 115–Protection of S. 53-A, Transfer of Property Act 1882, is subject to condition of a document in writing executed by or on behalf of transferor and delivery of possession under the same–Where neither any agreement had been proved nor performance thereof, including payment of consideration or delivery of possession, person claiming protection under S. 53-A of Transfer of Property Act 1882, would not be entitled to the same. PLJ 2003 Lahore 155
Claim of benefits under Ss. 41 & 53 of Transfer of Property Act 1882–Leave to appeal was granted to consider as to whether protection of Ss. 41 & 53-A of Transfer of Property Act 1882 was available to appellant and was wrongly refused. PLJ 2003 SC 691
Claim of benefits under Ss. 41 & 53-A of Transfer of Property Act 1882–Such benefits cannot be extended to a party whose entire claim was based on fraud, intrigue and mis-representation–Rather benefit under S. 53-A of Transfer of Property Act 1882, in view of proviso thereof, was available to respondents whose predecessor-in-interest had entered into agreement which was much prior in time and who at the time of such agreement was not aware of any rights of appellant, which were in fact non-existent as well as unknown for being concealed at relevant time and brought to light dishonestly only through a suit that stood subsequently dismissed as withdrawn. PLJ 2003 SC 691
Conditions and Requirements-TransTer of immovable properly made with intend to defeat creditions-Voidable at the ‘option of any creditor-Suit brought under this section for the benefit of all creditors-Prescribed conditions stands fulfilled -Suit held to be under the provisions of section 53 of the Transfer of Property Act. P L J 1981 Lahore 370
Constitution of Pakistan, 1973, Art. 185(3)–Plaintiffs (petitioners) suit for possession relating to land in question decreed Courts below–High Court, however, on appreciation of evidence on record set aside judgments and decrees of Courts below and dismissed plaintiffs suit–Validity–Careful and conscious perusal of judgments/ decrees of Courts below would reveal that various pertinent question having substantial bearing on the case were never considered properly and with diligent application of mind such as question relating to limitation, lbcus standi of petitioner for filing such suit, non-joinder/misjoinder of necessary parties and implication of S. 19(a) of Colonization of Government Lands Act, 1912 and absence of mutation–Besides, petitioner on basis of alleged agreement of sale was required to have filed suit for specific performance of agreement to sell instead of suit for possession–Suit for possession could not have been filed without seeking declaration in respect of title–Plaintiff also failed to substantiate factum of registration of sale agreement which was the only document around which his entire case revolved–Report of hand-writing expert also negates version of plaintiff–Suit was also hopelessly time barred in view of provisions contained in Art. 113 of the Limitation Act, 1908, which aspect of the matter escaped notice and resulted not only in mis-carriage of justice but also intestified sufferings of defendant lady by exploiting law and distorting factual position–Plaintiff having no case on merit, leave to appeal was refused. PLJ 2001 SC 136
–Contract Act (IX of 1872), S. 55–Specific Relief Act (I of 1877), S. 12–Agreement to sell–Specific performance–Time essence of contract, Claim of benefit of S. 53-A of Transfer of Property Act, 1882–Agreement to sell contained specific time frame for payment of consideration amount–Plaintiff’s failed to pay amount accordingly–Ground on which non-payment of balance price was sought to be justified had been found against plaintiffs by both Courts below–Effect–Where plaintiffs by their own conduct were responsible for rescission of sale. agreement, their possession had become unauthorized and unlawful–Benefit of S. 53-A of Transfer of Property Act, 1882, could not be extended to petitioners–Appellate Court had rightly reversed finding of trial Court and dismissed suit–Discretion exercised by Appellate Court was unexceptionable and High Court declined to form a different view. PLJ 2002 Lahore 489
Court Decisions
Declaration and possession–Suit for–Dismissal of suit–Challenge to–Provisions of Section 53-A were incorporated by legislature to protect possession of transferee of immovable property provided he performed part of contract and was willing to perform rest of his part of contract–This section by itself created no title in defendant but operated as a bar to transferor or his agent or any person asserting claim on his behalf, to property–In this case, plot in dispute was transferred to defendant in consideration of Rs. 7500/- and part to be performed by him was fulfilled on passing of consideration to transferor–Held: Respondent (defendant) was eligible to protect his possession under Section 53-A of Transfer of Properly Act–Appeal dismissed. PLJ 1993 AJK 10
Declaration with possession on the basis of unregistered document. If any document requiring registration under section 17 of Registration Act has not been registered, it cannot bar or deprive a purchaser from claiming benefit under section 53-A of Transfer of Property Act provided he satisfies requirement of said section. P.L.J.1997 SC 498 = 1997 SCMR 837 = NLR 1997 Civil 251.
Defendant contended that he being in possession of suit property under a valid sale from vendor who himself had purchased the suit property from original owner, his possession was protected under S. 53-A of Transfer of property Act, 1882—Validity—Condition precedent for such protection was that defendant should have placed on record something in writing from original owner or from subsequent vendor from whom defendant had claimed to have purchased suit property, signed by them or on their behalf, from which terms necessary to constitute transfer of suit property, could be ascertained with reasonable certainty—In absence of any such signed writing from the alleged vendors, defendant was not entitled to any protection under S. 53-A of Transfer of Property Act, 1882. PLD 2003 Lah. 208
Dispute relating to price of property—Plaintiff’s version was supported by his solitary oral statement—Defendant’s version was supported by agreement to sell i.e., documentary evidence—Effect—Provisions of Art.103, Qanun-e-Shahadat postulate that no oral evidence could be considered as against documentary evidence on record—Defendant had, thus, agreed to purchase property in question against the price as mentioned in agreement to sell. 1991 M L D 1101
Doctrine of pan performance — Applicability — Written agreement is sine qua non for its applicability Proposed vendee cannot protect his possession of immovable property on basis of oral agreement — Letters written by vendor to his uncle, admitting oral agreement to sell immovable property to proposed vendee — Cannot be taken as agreement to sell within meaning of S. 53-A. Person (claiming to be a proposed vendee) Cannot protect his possession of immovable property on the plea of past performance under S. 53-A on the basis of an oral agreement the terms of which have not been reduced in writing. The written agreement is sine qua non for the applicability of the equitable doctrine of part performance enshrined in S. 53-A of the Act. In the instant case the vendor alleged to have written letters in which he had admitted that he had agreed to sell his half share of the immovable property for a sum of Rs. 15,000/- out of which Rs. 10,000/- was received by him. In each of these letters vendor had called upon proposed vendee to pay the balance amount of Rs. 5,000/- as he was in urgent need of the money. Said vendee failed to do so. Ultimately the vendor wrote a letter repudiating the so called agreement to sell as the vendee had failed to carry out his part of the agreement. It was further stated in this letter that the amount received by him as advance was appropriated by him towards the use and occupation of the property the rate of Rs. 20/- per day. Thus the letters written by the vendor cannot be termed as an agreement to sell, the terms of which have been reduced into writing. At the most it is an admission of an oral agreement to sell and not a written agreement. Statutorily the emphasis is not on a written agreement only. In addition the emphasis is on the terms of the agreement as well which can be ascertained with reasonable certainty from the written document. There was no Meeting of minds. Admission made by the vendor of an oral agreement to sell does not spell out the other essential terms of the agreement to sell such as the time frame within which the sale-deed was to be executed and as to who would pay the registration charges etc. The letters written by the vendor cannot be taken to be an agreement to sell within the meaning of S. 53-A spelling out the terms of an agreement for sale. Further the terms necessary to constitute the transfer with reasonable certainty could not be ascertained from the letters written by the vendor to his uncle. At the most it is an acknowledgment that there was an oral agreement to sell but the same could not be construed, to be a written agreement to sell the terms of which have been reduced into written. Writing agreement has to precede the putting of the proposed vendee in possession of the property. The proposed vendee was never put in possession in pursuance of the property to the written agreement arrived at between the parties. PLJ 2002 SC (India) 147
Entitlement to protection of S. 53-A . Tenants over land in question, cannot claim any protection of S. 53-A Transfer of Property Act 1882 particularly when they had failed to prove possession of land pursuant to agreement to sell. P.L.J.1999 Lah. 1624.
-Entitlement to protection of S. 53-A Transfer of Property Act 1882–Tenants over land in question, cannot claim any protection of S. 53-A Transfer of Property Act 1882 particularly when they had failed to prove possession of land pursuant to agreement to sell. PLJ 1999 Lahore 1624 AIR 1929 Lah 1; PLD 1994 Lah. 452; PLD 1963 Dacca 777; PLD 1964 SC 456; PLD 1990 SC 1; PLD 1990 SC 661; 1991 MLD 986; 1993 CLC 2152; 1993 MU) 1979; AIR 1925 P.C. 205; 1991 CLC 104; PLD 1997 Kar. 589 ref
Execution of agreement to sell was denied by defendants–Plaintiffs being beneficiaries of such agreement produced only scribe and stamp vendor but did not produce marginal witnesses, giving the presumption that material piece of evidence had purposely been withheld by respondents/plaintiffs. PLJ 2002 Lahore 1524
Ghulam Qadir and another v. Ghulam Hussain AIR 1973 Jammu and Kashmir 11; Venkatesh Damodar v. Mallappa Bhimappa ILR 46 Bom. 722, 724, 726 AIR 1922 Bom. 9 (2); Bapu Apaji v. Kashinath ILR 41 Bom. 438, 451, 452=AIR 1916 Bom.l; Begum v. Mohd. Yakub and (1894) ILR 16 All. 344 ref.
In order to seek protection or benefit u/S. 53-A, petitioners must show that possession is in pursuance of an agreement to sell which still subsists–Having committed default in performing his part of contract, a vendee cannot continue to remain in possession in garb of protection of agreement to sell. PLJ 2002 Lahore 489
Oral evidence in proof of ownership. Status. Oral evidence, in absence of any strong circumstantial or documentary evidence, was not by itself sufficient to conclude that defendant was put in possession of plot by previous occupant of same. No positive action having been taken in favour of defendant, his possession over plot could not be considered as legal, valid and in his own right. P.L.J.1998 Kar. 892 = 1998 CLC 546.
-Part performance of contract qua transfer of property—Though S. 53-A does not create any title in favour of transferee, it protects his possession against transferor or person claiming through him—Valid defence against ejectment is afforded by S. 53-A—Agreement for sale between occupying tenant and landlord—Subsequently land-lord selling same property to another person—Occupying tenant can resist ejectment proceedings on score of agreement of sale in his favour—Also held that though the Act (1882) does not apply to Punjab but its principles are generally adhered to—S. 13-A and S. 13,W.P.UrbanRentRestrictionOrdinance(1959). P L J 1980 Lahore 203
Perusal of evidence clearly indicated that Trial Court has rightly found that agreement to sell had not been established or proved Peculiar feature of agreement to sell was that it was recited therein that such agreement was being executed and consideration was being paid in presence of marginal witnesses; such document, however, had not been attested by any one Plaintiff had offered no explanation as to why document in question had not been witnessed by any one Non attestation of such important document by witnesses was highly unusual particularly when same contained recital relating to payment of huge amount Such omission was nit only significant but was also destructive of case of plaintiff particularly with regard to payment of specified amount as consideration which according to agreement was made in presence of marginal witnesses, though agreement itself showed that there were no marginal witnesses at all Agreement to sell was not proved in circumstances. 1997 C L C 1580
Plaintiff claimed that one of-defendants had executed agreement of sale in his favour on receipt of consideration–Plaintiffs claim stood rejected by Courts below and rightly so, for the reason that in presence of other co-sharers, said defendant alone could not make valid agreement for sale of land over and above other. legal heirs–Plaintiff was not expected to pay substantial amount to one of defendants knowingly very well that other co-heirs were not signing agreement while land in question was in the name of their predecessor in interest–No general Power of Attorney in favour of alleged vender (defendant) was mentioned in alleged agreement–Entire undivided land owned by co-sharers, could not be transferred by one of them–All the circumstances on factual plans were sufficient to indicate that transaction in question was fake and alleged sale-deed was not genuine–Finding of Courts below were affirmed in circumstances. PLJ 2002 Karachi 136
Plaintiff was required to prove the existence of sale agreement which he alleged had been executed in his favour—Plaintiff taking contradictory stands in his pleadings and evidence—Plaintiffs witnesses failed to prove execution of agreement to sell, and he himself did not appear in witness box to prove execution of agreement to sell—Evidence of Handwriting Expert stated that signatures on agreement to sell were not those of defendant—Such evidence thus, raised a strong presumption against truthfulness of plaintiffs assertion—Execution of agreement to sell was not proved in circumstances. 1991 M L D 1560
Plaintiffs (petitioners) suit for possession relating to land in question decreed by Courts below. High Court, however, on appreciation of evidence on record set aside Judgments and decrees of Courts below and dismissed plaintiffs suit. Validity. Careful and conscious perusal of Judgments/ decrees of Courts below would reveal that various pertinent question having substantial bearing on the case were never considered properly and with diligent application 6f mind such as question relating to limitation, locus standi of petitioner for filing such suit, non-Joinder/mis-Joinder of necessary parties and implication of S. 19of Colonization of Government Lands Act, 1912 and absence of mutation. Besides, petitioner on basis of alleged agreement of sale was required to have filed suit for specific performance of agreement to sell instead of suit for possession. Suit for possession could not have been filed without seeking declaration in respect of title. Plaintiff also failed to substantiate factum of registration of sale agreement which was the only document around which his entire case revolved. Report of hand-writing expert also negates version of plaintiff. Suit was also hopelessly time barred in view of provisions contained in Art. 113 of the Limitation Act, 1908, which aspect of the matter escaped notice and resulted not only in mis-carriage of Justice but also intestified sufferings of defendant lady by exploiting law and distorting factual position. Plaintiff having no case on merit, leave to appeal was refused. P.L.J.2001 SC 136.
Possession under un-registered contract–Protection of–Whether available–Question of–Section 53-A enunciates equitable principle to protect rights of such purchasers who have entered into agreement and in pursuance thereof obtained possession of immovable property and have further either performed their part of agreement or are agreeable to perform same–Held: Non-registration of a deed which requires registration will not deprive him of benefit of Section 53-A of Act–Appeal accepted. PLJ 1992 SC 301 PLD 1971 SC 114, PLD 1948 P.C. 52, PLD 1964 SC 106 and PLD 1964 SC 456 rel.
Proof of execution of agreement to sell None of witnesses produced by plaintiff had deposed about payment of consideration by plaintiff to respondent or as to execution of such agreement In such state of evidence, execution of agreement in question had not been proved Agreement to sell itself having not been exhibited did not form part of evidence Said agreement was thins not proved in circumstances. 1997 C L C 1196
Protection in terms of transfer of property Act. Status. It is not shown as to how document Exh. DB, is ah initio, void especially when such transfer is valid under Ordinance and Regulations, Plaintiff-appellant has transferred property in dispute in clear terms after receiving consideration and there is no ambiguity with regard to terms of same. Apart from passing of title to respondent No. 1 in view of document, Ex-DE, certificate of title and Ex-DB, respondent No. 1 is even otherwise entitled to protection of Section 53-A of transfer of property Act. Appeal without force, is accordingly dismissed. P.L.J.1998 SC (AJ&K) 41 = PLD 1998 SC (AJ&K) 36.
Protection in terms of transfer of property Act–Status–It is not shown as to how document Exh. DB, is ab initio, void especially when such transfer is valid under Ordinance and Regulations–Plaintiff-appellant has transferred property in dispute in clear terms after receiving consideration and there is no ambiguity with regard to terms of same–Held : Apart from passing of title to respondent No. 1 in view of document, Ex-DE, certificate of title and Ex-DB, respondent No. 1 is even otherwise entitled to protection of Section 53-A of transfer of property Act–Appeal without force, is accordingly dismissed. PLJ 1998 SC (AJ&K) 41
Provided that nothing in this section shall affect the rights of a transferee for -consideration who has no notice of the contract or of the part performance thereof.
-Qanun-e-Shahadat (10 of 1984), Art 2–Agreement to sell reduced to writing but not attested by witnesses–Proof of-Such agreement can be proved by other strong evidence and attending circumstances which may vary from case to case–Such evidence can also be produced in first category of cases as supporting evidence. PLJ 2002 SC 706
Qanun-e-Shahadat (10, of 1984), Arts.. 17 & 79–Two marginal witnesses were required to prove execution of agreement to sell–No marginal witnesses was produced in proof of agreement in question–Agreement to sell having not been provided in accordnace with law, plaintiffs were not entitled to relief claimed by them. PLJ 2002 Lahore 1524
read with Qanun-e-Shahadat (10 of 1984), Art. 70–Oral evidence in proof of ownership–Status–Oral evidence, in absence of any strong circumstantial or documentary evidence, was not by itself sufficient to conclude that defendant was put in possession of plot by previous occupant of same–No positive action having been taken in favour of defendant, his possession over plot could not be considered as legal, valid and in his own right. PLJ 1998 Karachi 853
read with S. 42 of Specific Relief Act, 1877 (I of 1877)–Suit for declaration–S. 53-A of Transfer of Property Act, 1882 makes it clear that it applied only to transfer of an immovable property made by a writing signed by the vendor himself or on his behalf–Disputed land was already in possession of petitioner-defendant No. 2 being a mortgagee–Defendants did not deny contents of relevant para No. 5 in this regard in written statement–Petitioners-defendants raised no objection about form of suit or same being barred by law in written statement–So, suit of plaintiff is not hit by provisions of S. 53-A of Transfer of Property Act or S. 42 of Specific Relief Act. PLJ 1998 Lahore 939
read with Sindh Rented Premises Ordinance, 1979, Section 16–Tenant–Ejectment of–Order of-Challenge to–Whether provisions of Section 53-A of Transfer of Property Act, are attracted to this case–Question of–Held: Appellant is not entitled to any benefit under Section 53-A of Transfer of Property Act on ground that he had entered into an agreement with respondent for purchase of demised premises–Held further This observation would, however, be subject to any finding by a Civil Court, in case any of parties invokes jurisdiction of that Court–Appeal dismissed. PLJ 1994 Karachi 401 PLD 1971 SC 114, 1976 SCMR 141, 1984 SCMR 741, 1986 CLC 2577 and 1986 CLC 507 ref.
read with Sindh Rented Premises Ordinance, 1979, Section 2(f)–Tenants–Ejectment of–Appeals against–Where agreement of sale is executed for valuable consideration and possession stands transferred to vendee, vendee is entitled under Section 53-A of Act to defend his right against any action and to appropriate usufruct of property in question which is rent in this case–Held: Respondent is entitled to rent and comes within definition of landlord–Appeals dismissed. PLJ 1994 Karachi 407
Receipt of entire sale price by vendor ¬Equity Where plaintiff voluntarily executes a contract of sale, puts the proposed vendee in possession of the property and receives the entire consideration money, there would be no special equity in his favour to allow him to turn round and claim the property after a long time merely because the price of property had increased Plaintiff thus could not be allowed to repudiate the fiduciary obligation arising out of the contract nor would the Court aid, him to commit fraud by dispossessing a prospective vendee who had done all that was required of him to do for purchasing the property Possession of the defendant though might be permissive, but the plaintiff having received the entire consideration money and having allowed the position to be changed to the prejudice of the defendant, he would be estopped from repudiating the sale transaction and recovering possession from the defendant Plaintiffs’ suit, was thus rightly dismissed, requiring no interference in revisional jurisdiction. 1990 M L D 112
Registration Act (XVI of 1908), S- 49–Un-registered sale-deed did not prove title of respondents in property in question–Trail Court fell in error which granting decree for possession under S- 8 of specific Relief Act, 1877 in favour of respondents as much appeal of appellant had wrongly been dismissed by misreading evidence of parties–Courts below had committed material irregularity and illegality which were set aside–Suit for possession of respondent would stand dismissed in circumstances- PLJ 2002 Lahore 1359
Sale agreement–Execution of–Quantum of proof–Document’ in question, does not show as to who purchased stamp paper and when the same was purchased–Scribe of document admitted in the Court that he had been convicted twice for forging agreements—Scribe could not explain as to how he knew alleged vendor–Examination of document in question, revealed that scribe had attempted to adjust the writing in accordance with the placement of thumb-impressions of alleged vendor on the document–Valid execution of agreement of sale and receipt of earnest money were not proved in circumstances. PLJ 2003 Lahore 376
Sale of property in question, in execution of decree–Petitioner claiming to be in possession of agreement of sale in his favour relating to property in question could not acquire better title over the same than judgment debtor–Protection of S. 53-A of Transfer of Property Act 1882 was not available to petitioner–Judgment debtor being no more owner of property in question, which had been auctioned in favour of respondent, suit for specific performance of agreement filed by petitioner in respect of that property was barred by law. PLJ 2004 SC 732
Section 53-A read with Section 17 of Registration Act, 1908. Sale of land under unregistered document. Whether such a document is admissible in evidence and whether interest of transferee is protected under law. Unregistered document can be received in evidence for collateral purposes under amended Section 49 of the Registration Act. Such document can be admitted in evidence and also be relied upon to prove any collateral purpose i.e., factum of possession. Evidence on record manifestly prove possession of respondent on property on basis of unregistered document whose execution stands established. Factum of construction of houses is also proved, which according to Local Commission were 25 years old. Transferee’s interest is protected under Section 53-A of Transfer of Property Act, 1882. P.L.J.1994 Pesh. 70 = PLD 1994 Pesh. 204.
Specific performance of agreement to sell—Time as of the essence of contract, claiming benefit of S.53-A of the Transfer of Property Act, 1882—Agreement to sell contained specific time frame for payment of consideration amount—Plaintiffs failed to pay the amount accordingly—Ground on which the non-payment of balance price was sought to be justified had been found against the plaintiffs by both the Courts below—Effect—Where the plaintiffs by their own conduct were responsible for rescission of the sale agreement, their possession had become unauthorized and unlawful—Benefit of S.53-A of the Transfer of Property Act, 1882, could not be extended to the petitioners—Appellate Court had rightly reversed the finding of Trial Court and dismissed the suit—Discretion exercised by the Appellate Court was unexceptionable and High Court declined to form a different view—Judgment and decree passed by the Appellate Court were upheld in circumstances. Zaheer Ahmad and another v. Abdul Aziz and another 1983 SCMR 559; Dr. Aftab A. Khan v. Muhammad Iqbal and 2 others 1984 CLC 3158; Isso and another v. Muhammad Ismail and 2 others 1992 MLD 1787; Messrs Pioneer Housing Society (Pvt.) Limited v. Messrs Babar & Co. PLD 1999 Lah. 193 and Haji Abdul Rehman v. Niaz Ali 2000 CLC 184 ref. 2002 Lawvision 83 = 2002 CLC 433
–Specific Relief Act, 1877 (I of 1877), S. 22–Civil Procedure Code 1908 (V of 1908), S. 96–Agreement of sale–Validity–Entitlement of plaintiff to specific performance–Alleged power of attorney executed by vendor in favour of vendee was got registered at a place where neither land in question was situated nor party resided or worked for gain–Scribe of document had stated in Court that he did not know vendor and he was unable to give even most rudimentary description of vendor–Provisions of S. 22 Specific Relief Act, 1877, stipulates that jurisdiction to decree specific performance of contract was discretionary–Court was not expected to decree specific performance where circumstances in which contract was made were such as to give plaintiff unfair advantage over vendor, even though there was no fraud or misrepresentation on plaintiffs part–Plaintiff was thus not entitled to relief of specific performance–Judgement and decree passed by trial Court was set aside and plaintiffs suit was dismissed in circumstances. . PLJ 1999 Lahore 1770
¬Subsequent purchasers taking plea in written statement that agreement in question, was fictitious and bogus, but producing no evidence in support of such plea in spite of such issue having been framed while evidence of plaintiff categorically proved agreement to sell by producing marginal witnesses ¬Agreement to sell was proved and plaintiffs were entitled to decree in circumstances. P L D 1995 Lah. 255
Suit for declaration with possession upon basis of an unregistered document. First proviso to section 50(1) of Registration Act gives protection to person in possession of property under an unregistered document, be it an agreement for sale or a contract of sale. Only condition is that it should be an unregistered document by a person in possession of property under it and that he fulfils conditions laid down in section 53-A of Transfer of Property Act. P.L.J.1997 SC 498 = 1997 SCMR 837 = NLR 1997 Civil 257:
Symbolic possession of immovable property by the transferee—Effect—Plaint indicated that plaintiff had transferred five Marlas of land vide registered sale-deed to defendant and had also acknowledged in the deed in question of having given symbolic possession to the defendant—Sale-deed could not be deemed void, if actual physical possession was not delivered to the transferee. 2003 Lawvision 90 = 2003 MLD 1164
Transfer of Property Act, 1882 -S. 53-A–Sale agreement–Quantum of proof–Contents of agreement in question stated that entire sale price had been paid to vendor while suggestion put to alleged vendor that he had got money from plaintiff on credit and in lieu thereof, had agreed to sell the property in question, had demolished whatever case plaintiffs had set up in plaint and whatever evidence had been led by them–Land in question, being vacant, there was no boundary wall around it, therefore, delivery of possession and part perfoi mance of agreement was hardly proved. PLJ 2003 Lahore 155
Transfer of Property Art, 1882 makes it clear that it applied only to transfer of an immovable property made by a writing signed by the vendor himself or on his behalf. Disputed land was already in possession of petitioner-defendant No. 2 being a mortgagee. Defendants did not deny contents of relevant para No. 5 in this regard in written statement. Petitioners-defendants raised no objection about form of suit Or same being barred by law in written statement. So, suit of plaintiff is not hit by provisions of S.53-A of Transfer of Property Act or S. 42 of Specific Relief Act.-P.L.J.1998 Lah. 939 = 1998 CLC 1104.
Two suits, one for declaration and other for specific performance for agreement to sell alongwith applications for interim injunction–Application by appellant dismissed whereas other application by respondent was allowed–Appeals against–Respondent, after payment of Rs. 5 Lacs as earnest money to appellar..t did not take any step towards completion of agreement–He demolished incomplete house constructed at spot, removed material or utilized same, got excavated plot and raised construction of basement without sanction of map from CDA and obviously in violation of relevant rules–There is nothing on record to make out that he was willing and ready to perform his part of contract except payment of earnest money–Therefore, he is not entitled to legal benefit of Section 53-A of Act, 1882 neither, he is entitled to discretion of Court–Impugned order, dismissing application of appellant is devoid of judicial propriety–Appellant cannot be restrained from getting possession of suit property–Construction by respondent was stopped–Any how, appellant was restrained from alienating suit property and dispossessing respondent otherwise than due process of law–Orders accordingly. PLJ 1999 Lahore 1598
Whether a questioned sale is made in good faith and for consideration-A relevant question for the purposes of S. 53-A creditor not to be prevented in suit under section 53 from alleging want of consideration and bad faith P L J 1981 Lahore 370
Whether agreement of sale is executed is entitled under Section 53-A of Act to defend his right against any action and to appropriate usufruct of property in question which is rent in this case. Respondent is entitled to rent and comes within definition of landlord. P.L.J.1994 Kar. 407 = PLD 1994 Kar. 52.
Whether provisions of Section 53-A of Transfer of Property Act, are attracted to this case. Question of. Appellant is not entitled to any benefit under Section 53-A of Transfer of Property Act on ground that he had entered into an agreement with respondent for purchase of demised premises. This observation would, however, be subject to any finding by a Civil Court, in case any of parties invokes Jurisdiction of that Court. Appeal dismissed.-P.L.J.1994 Kar. 401 = 1994 CLC 2328.

CHAPTER III
OF SALES OF IMMOVABLE PROPERTY

54. Sale defined. ‘Sale’ is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs in possession of the property.
Contract for sale-A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.

Court Decisions
Transfer of Property Act, 1882 S. 54, Specific relief Act, 1877, S, 42 Passing of title principles vendor cannot pass on to vendee anything batter than he himself held, therefore it is vendee who has to apply maximum care before going for a transaction of sale/purchase right/title of vendee is dependent upon the strength or weakness of the title of seller vendee has to sail, swim and sink with seller and to pursue him for any loss suffered if he was ultimately the loser. 2010, S, C , M , R .18
Act envisages a transfer of ownership of immovable property for a price paid or promised. To enforce a sale transaction, transferee is under legal obligation to establish, firstly that transfer was affected by a person having a title or authority to create a right, secondly, it was backed by passing of sale consideration and thirdly it was accompanied by delivery of possession. Mere Registration of document by Registrar by itself does not furnish proof of these elements which must co-exist prior to execution and Registration of deed. Onus to establish all these pre-requisites lies on transferee. Transferee having not put himself in witness Box, nor otherwise proved sale in his favour. Sale thus made is unauthorized and by a person not competent to affect it besides being without consideration. Such a transaction pregnant with inherent infirmity, both legal and factual cannot be upheld, nor enforced legally specially when it was not incorporated in Rev. record during life time of vendor and was kept concealed. P.L.J.1996 Pesh. 214 = PLD 1996 Pesh. 86.
Agreement to sell prior to obtaining proprietary rights:– Whether parties could enter into agreement to sell property which was still in the name of provincial Government and had not been transferred in the name of defendants. Under Section 54 of Transfer of Property Act, contract or agreement for sale of immovable property is agreement where sale of such property shall take place on terms and conditions settled between parties and as such agreement does not itself devolve proprietory rights on promise. Sale was contingent upon grant of proprietary rights of defendants, it is clear that parties did. not enter into agreement intended to violate any law. In case Shamoon and others vs. Ahmad and others (1988-PSC-666) agreement to sell prior to purchase of resumed land was held not amounting to alienation and suit for specific performance thereof was held rightly decreed. It was settled law that unless intentions are to violate basics of law agreement entered into between parties enforciable by law is duly acknowledge. P.L.J.1998 Pesh. 130 = PLD 1918 Pesh. 52.
–Agreement to sell–Whether parties could enter into agreement to sell property which was still in the name of provincial Government and had not been transferred in the name of defendants–Question of–Under Section 54 of Transfer of Property Act, contract or agreement for sale of immovable property is agreement where sale of such property shall take place on terms and conditions settled between parties and as such agreement does not itself devolve proprietory rights on promise–Sale was contingent upon grant of proprietory rights of defendants, it is clear that parties did not enter into agreement intended to violate any law–In case Shamoon and others vs. Ahmad and others (1988-PSC-666) agreement to sell prior to purchase of resumed land was held not amounting to alienation and suit for specific performance thereof was held rightly decreed–Held : It is settled law that unless intentions are to violate basics of law agreement entered into between parties enforciable by law is duly acknowledge. PLJ 1998 Peshawar 130
Agricultural land situated in areas in Punjab not falling within municipal limits—Oral sale or disposal of such land by way of family settlement without registered deed—Validity—provision of S. 54 of Transfer of Property Act, 1882 not made applicable to such areas in Punjab—Disposal of such land in such manner would not be open to any legal objection. 2004 S C M R 515
Best evidence to prove transaction of sale through mutation:– Factum of sale by plaintiffs, in favour of defendant was denied by plaintiff and they brought suit for declaration of the effect that they were owners’ in possession of land in question, and that mutation of sale of specified date was illegal, void and ineffective upon their rights being result of fraud. Trial Court found that defendant was not bona fide purchaser for value and that plaintiffs were Joint owners of land to the extent of half share of land in question, and that sale mutation in favour of defendant was fictitious, without consideration, collusive and fraudulent and, thus, ineffective upon plaintiffs, rights. Findings of Trial Court was maintained in appeal. Trial Court, however had dismissed suit as. being barred by time and such finding was kept intact by Appellate Court. Defendants cross objections against issues relating to non-payment of consideration and plaintiffs being co-shares and sale mutation being fictitious was dismissed. Validity. Best evidence to prove transaction of sale through mutation was that of Rev. officer who had sanctioned mutation and lambardar who had identified parties but they were not ‘produced. Non-production of such witness would mean that had they appeared they would not- have supported case of defendant Trial Court had thus, correctly appreciated evidence on record as also Appellate Court, had correctly appreciated that defendant had paid no consideration to plaintiffs. Existence of sale having not been proved and mutation in question, being dependant upon existence of sale, same was ineffective. Petitioner being co-shares by reason and on basis of earlier and admitted mutation of inheritance after death of father of plaintiffs and defendant, limitation did not run against co-hares, being in constructive possession. Impugned Judgment, and decrees whereby plaintiffs suit was dismissed were set aside and plaintiffs suit was decreed. P.L.J.2000 Lah. 1245.
Civil Procedure Code, 1908 (V of 1908), S. 115–Sale-deed allegedly executed by an old, ignorant and illiterate female (Plaintiff)—Plaintiff denied . execution of such deed–Plaintiff’s suit was dismissed by two Courts below–Validity–Sale-deed was alleged to have been executed by plaintiff in English language not understood by her and she never knew contents of alleged sale-deed in that the same was never ‘ read over and explained to her–Burden of proof in respect of document purporting to have been executed by ignorant; old and totally illiterate female affecting her right or interest in immovable property is always on person claiming right or interest under the document and it is for him/her to establish affirmatively that’ it was substantially understood by the lady and that transaction in question, was her free and intelligent act and if she was illiterate, same must have been read over to her–Rule of burden of proof on beneficiary was generally applicable where-lady was “Pardanashin”- Rule applicable to “Pardanashin” lady has, however, been extended to ignorant and illiterate woman as well–Respondent being beneficiary had failed to discharge burden of proof–Plaintiff would therefore, be deemed to, have never consciously executed sale-deed in question, and respondent beneficiary had failed to establish through affirmative evidence that sale consideration was ever paid to plaintiff–Circumstance of non-delivery of possession under the sale also goes against beneficiary–Defendant had also failed to establish that she or her husband ever had means to purchase property in question–Plaintiffs appearance before sub-Registrar at the time of registration of sale was not proved–Defendant’s contention that suit was barred by time had no force in that there was nothing on record that plaintiff was vested within knowledge of sale-deed and its contents prior to specified time–Impugned decree, and judgments of Courts below being not warranted by evidence on record, same was set aside and plaintiff’s suit was decreed PLJ 2000 Lahore 1830 PLD 190 SC 642; PLD 1986 C 519; PLD 1994 SC 326; 1998 SCMR 1554.
Civil Procedure Code, 1908 (V of 1908), S. 115–Transaction of sale–Vendee in possession of land comprised in sale-deed–Vendors’ brother challenged sale-deed on the ground that land comprised therein belonged to him on account of partition–Trial Court decreed plaintiffs suit–First Appellate Court on basis of evidence on record dismissed plaintiffs suit–Validity–First Appellate Court had given finding of fact against petitioner after proper appreciation of evidence that plaintiffs suit was filed collusively with his brother (vendor) as was evident from his written statement which was consenting–Even otherwise, conduct of vendor (defendant) was of such a nature that his statement was rightly not believed by First Appellate Court coupled with the fact that he had not challenged illegality and propriety of registered sale-deed–Registered document has sanctity attached to it and stronger evidence was required to cast aspersion on its genuiness–No such evidence was produced by plaintiff to prove sale-deed in question to be forged and fictions–Vendor was thus, estopped by way of his conduct to take any exception qua registered sale-deed on the principle of approbate and reprobate–First Appellate Court was justified to give benefit of S. 41 of Transfer of Property Act to vendee–Finding on question of fact or law, howsoever erroneous recorded by Court of competent jurisdiction could not be interfered with by the High Court in exercise of its revisional jurisdiction unless such findings suffered from jurisdiction defect, illegality or material irregularity–Interference in judgment and decree of First Appellate Court was, thus, not warranted. PLJ 2001 Lahore 107
Conclusive proof of ownership – Registered sale-deed or mutation – Whether conclusive proof of ownership – Where title and ownership is expressly disputed and challenged by defendants in their written statement, registered sale-deed or mutation may, of course, be an evidence of the ownership in favour of plaintiffs but the same cannot be treated as conclusive proof of their legal right. 2002 CLC 571
Constitution of Pakistan (1973), Art. 185(3)–Sale executed by respondent (attorney) on basis of irrevocable power of attorney–Petitioners suit challenging validity of power of attorney executed by him in favour of respondent and sale executed by such respondent on basis of the same were decreed by trial Court but such finding was reversed by Appellate Court as also by the High Court–Validity–Power of attorney executed by petitioner in consideration of Rs. 20,000/- was irrevocable which he admittedly had received from respondent–Sale-deed executed by Attorney in favour of vendees was for consideration of specified amount which showed that there was no substantial difference between the consider of power of attorney and that of sale-deeds–Concurrent findings of two Courts below being based on evidence on record did not suffer from misreading or non-reading of evidence Evidence of a witness could not be brushed aside only because of his relationship, if otherwise the same was disinterested and credible–Leave to appeal was refused in circumstances. PLJ 2001 SC 291
Constitution of Pakistan'(1973), Art. 185(3)–Sale-deed–Validity–Concurrent findings of Courts below on the question’ of fact that respondents/alleged vendors were minors on specified date when sale deed was got attested, being based on evidence were not open to exception–Cogent reasons have been given by Appellate Court while modifying judgment of trial Court–Mother of minors, having denied execution of sale-deed, defendants were required to produce attesting witnesses of sale-deed which they failed to produce–No legal infirmity of misreading or non-reading to justify interference in exercise of appellate or revisional jurisdiction of High Court was pointed out–Leave to appeal was refused.PLJ 2004 SC 80
Contract Act, 1872, S. 23–Agreement to sell by L.D.A. placing clog on allottee not to transfer property unless sale was completed–Execution of sale deed by allottee on one hand, and power of attorney on other–Transfer of Property by original allottee well before transfer of title in his name validity–Lahore Improvement Trust (now L.D.A.) had placed clog on allottee not to transfer property unless sale was complete and agreement to sell would itself not create any interest in on that property–His entitlement on basis of that agreement could be treated to be intended transaction, conferring no rights of whatsoever nature upon him relating to proprietorship etc. sale-deed it would be fictitious and fake because till then he had nothing in his possession to sell and as per provisions of Section 6(h) his act of entering into sale deed with “S” cannot be treated lawful unless it is forbidden by law or is of such nature that, if permitted, it would defeat provision of any law–Held: By means of agreement to sell no title, Imperfect or otherwise exists in favour of allottee when he entered into agreement with “S”–Appeal allowed. PLJ 2004 SC 439
Contract for sale of immovable Properly-S. 54 abolishes English Doctrine that sale tranfers equitable estate to purchaser Rule that contract makes purchaser equity of estate does not apply in Azad Kashmir Such contract ower in merly creates right to obtain another docnment and for that reason it does not requir registration even though It contains acknowledgment of receipt of earnest or part payment of price. PLJ 1981 AJK (SC) 57
Declaration and possession of land. Suit decreed hut decree set aside by appellate Court. Appellate order set aside by High Court and decree of trial Court restored. Intention of parties has to be gathered and it is to be seen whether vendor really intended to pass on or transfer title to vendee. It is apparent that late Jagga Khan really intended to sell land and pass on its title to appellant. Document is registered one. Sub Registrar’s endorsement authentica-ting acknowledgement of vendor to have received consideration, is a proof of payment of consideration. It is fallacious on part of plaintiffs/respondents to contend that consideration had not passed. High Court overlooked vital issue particularly legal effect of transaction in light of Section 54 of Transfer of Property Act. P.L.J.1996 SC 172 = 1996 SCMR 354.
Essential elements:– Primary and essential elements of sale are, the parties, subject-matter and price. P.L.J.1997 AJK 54 =1997CLC466.
Large number of documents produced by defendant in Trial Court to establish that property in question was regularised in her favour by concerned Authorities–Defendant had also proved that she had constructed residential as also commercial portion on the land in question, without objection from the plaintiff and also installed electricity and gas in her name Shops constructed were rented out and tenancy agreements were filed in Court–Plaint in earlier suit indicated that plaintiff was not in possession of land in question from 1959–Alleged sale-deed thus, could be used. for collateral purpose to prove alleged sale of disputed portion of plot in favour of defendant. 1993 C L C 1682
Municipal Corporation which had been charged with functions of maintaining roads, sewerages and other civic services could not take any step, as would have disturbed proprietary rights granted to petitioner by Small Industries Corporation as per decision of meeting of concerned parties–Different pleas were being taken by Municipal Corporation at different stages e-g., that plot had been transferred in violation of master plan–Certificate issued by Small Industries Corporation, however, spells out that plot allotted to petitioner was not part and parcel of master plan–No person can be deprived of his property except in accordance with law–Order of Administrator of Municipal Committee cancelling plot of petitioner being not sustainable in law was declared to be unlawful. PLJ 2002 Lahore 1657
Non-payment or short payment of sale consideration–Effect–Non payment or short payment of sale consideration would not render sale void. PLJ 2003 Peshawar 161
Non production of scribe or stamp vendor Effect Plaintiff had neither produced the vendor of stamp paper nor the scribe of the agreement to sell and no explanation had been given for such non production Non production of the scribe of the agreement to sell or the stamp vendor was fatal to the case of the plaintiff and adverse inference would also be drawn against the plaintiff for non production of the same. 2001 Y L R 2145
Oral sale made by an old lady—Proof—Onus to prove—Oral sale executed by old lady having been denied, onus shifted upon the other side. 2000 SCMR 1058 Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642 ref.
Payment of sale consideration–Petitioners did not mention single word qua payment/consideration in examination-in-chief or in crossexamination–Judgments and decrees of both courts below, non-suiting petitioner were, thus, in accordance with law–Petitioner had to succeed on basis of evidence produced by him and could not take benefit of weaknesses in evidence of respondent–Re-appraisal of evidence does not justify remand of case-=Petitioner having failed to prove with cogent evidence that sale in question, was executed between original owner and petitioner Courts below had correctly given concurrent findings of fact, against him which do not warrant interference by High Court in revisional jurisdiction. PLJ 2004 Lahore 193
Payment of sale consideration—Petitioners did not mention single word qua payment/consideration in examination-in-chief or in cross-examination—Judgments and decrees of both courts below, non-suiting petitioner were, thus, in accordance with law-Petitioner had to succeed on basis of evidence produced by him and could not, take benefit of weaknesses in evidence of respondent-Re-appraisal of evidence does not justify remand of case-Petitioner having failed to prove with cogent evidence that sale in question, was executed between original owner and petitioner Courts below had correctly given concurrent, findings of fact, against him which do not warrant interference by High Court- in revisional jurisdiction. 2004 Lawvision 9 = PL J 2004 Lahore 193
Principle of bona fide purchaser–Applicability–Defendants having failed to bring on record original power of attorney allegedly executed by plaintiffs and non-production of alleged general attorney failed to prove sale executed in their favour–Defendants were thus not entitle to benefit of principle of bona fide purchasers in term of S. 41, Transfer of Property Act, 1882. PLJ 2004 Lahore 1258
Proof Original agreement of sale was stated to have been lost but alleged loss not proved Secondary evidence to prove such agreement, held, would not be admissible, especially when no attempt was made to produce stamp vendor to prove that stamp paper was really purchased for execution of sale agreement. 1987 C L C 1159 = 1987 M L D 1102 Petitioner contended that two witnesses at least were required to be produced to prove execution of sale agreement whereas apart from scribe only one of the marginal witnesses was examined Agreement to sell was not required to be attested by two witnesses, execution of agreement of sale, therefore, would stand proved when one out of two attending witnesses had been examined. 1994 C L C 102
Property mortgaged with Agricultural Development Bank–Such property can be sold subject to the rights of mortgagee_ in such property. PLJ 2002 Lahore 1459
Punjab Pre-emption Act, 1913 (I of 1913), S. 15—Defendant purchasing half of land in question in his own name while half of the same was purchased by him through another person as benami transaction was subsequently transferred in the name of defendant through consent decree of Court–Suit for pre-emption against defendant was decreed by Trial Court but the same was dismissed by First Appellate Court–Validity–Benamidar for all intents and purposes is owner of property and his ownership would be subject to over-riding title to third person–Benamidar can pass title to third person and if that person had no knowledge of benami nature of his title, he would acquire good title’ even against real owner in terms of S. 41 of Transfer of Property Act, 1882–Benamindar thus, continued to be ostensible owner of property and only through decree of Court ownership was transferred in favour of contesting defendant–Such transfer by Benamidar in favour of vendee amounted to sale for purposes of Pre-emption suit–Finding of First Appellate Court that transaction in question, was not pre-emptible was not maintainable and the same was set aside while judgment and decree of Trial Court decreeing plaintiffs suit for pre-emption was restored. PLJ 2 000 Lahore 1983
Qanun-e-Shahadat, 1984 (10 of 1984), Art. 17 & 79–Execution of sale deed by person holding power of attorney–Plaintiff’s denied to have executed power of attorney claiming the same to be based on fraud and fictitious–Plaintiffs also denied receipt of consideration and factum of sale–Defendants being beneficiaries of general power of attorney on basis of which land in question was sold to them it was duty and obligation of defendants to prove execution of general power of attorney–Defendants failed to produce general attorney and failed to produce original deed, couple with the fact that they failed to prove document in question, by producing secondly evidence, thus, with holding best evidence–Judgment and decree of appellate Court based on power of attorney was set aside being in violation of law laid down by Superior Courts. PLJ 2004 Lahore 1258
Sale deed. Registration of. Transfer of immovable property amounting to more than rupees one hundred held, can only be made by a registered sale deed under Section 54 of Transfer of Property Act, 1882 and document compulsorily registerable under section 17 of Registration Act 1908. P.L.J.1997 AJK 54 = 1997 CLC 466. Suit was resisted on the grounds that sale deed on basis of which plaintiffs claimed ownership in respect of property in dispute, being not registered document, could not be relied upon and that suit was barred by, limitation Sale consideration of property in dispute being less than Rs.100 was not compulsorily registrable Presumption was attached to validity of sale deed as same was thirty years old Plaintiffs in their plaint had mentioned that cause of action had accrued in their favour a week prior to filing of the suit when title to the property in dispute was denied to them Suit was not barred in circumstances ¬Concurrent findings of fact recorded , by Courts below regarding validity of sale of suit property in favour of plaintiffs not suffering from perversity, error of jurisdiction and material irregularity, could not be interfered with by High Court in exercise of its revisional jurisdiction. 2000 Y L R 2748
Sale Essential condition—Proof of payment of some price in cash for thing sold necessary. 2004 C L C 231
Sale Essential condition—Proof of payment of some price in cash for thing sold necessary. 2004 C L C 231 though provision of S. 54 of Transfer of Property Act, 1882 not made applicable to Rural areas in Punjab, and Disposal of such land through oral sale would not be open to any legal objection. 2004 S C M R 515 Sale transaction of land comprised in colony area-Mode of transfer-Mere statement of vendor made about purported sale before Revenue Officer would not amount to irrevocable transfer of property-Where sanction for transfer under provisions of Colonization of Government Lands (Punjab) Act, 1912 was obtained but no transfer deed was executed, there would be room for the transferor making denial of such transfer and in that event sanction of mutation was not proper although transferee could seek remedy in Civil Court-Even where decree for specific performance of contract was awarded, title of property would remain vested in alienor, till such time, regular sale-deed was executed and registered in favour of alienee. 1995 M L D 45 Waryam Khan v. Ghulam Muhammad PLD 1959 W.P. (Revenue) 87; Dula and others v. Shahab Din PLD 1959 W.P. (Revenue) 103 and Muhammad Ishaq v. Muhammad Siddique PLD 1975 Lah. 901’rel, Where Large number of documents produced by defendant in Trial Court to establish that property in question was regularised in her favour by concerned Authorities–Defendant had also proved that she had constructed residential as also commercial portion on the land in question, without objection from the plaintiff and also installed electricity and gas in her nameShops constructed were rented out and tenancy agreements were filed in Court–Plaint in earlier suit indicated that plaintiff was not in possession of land in question from 1959–Alleged sale-deed thus, could be used. for collateral purpose to prove alleged sale of disputed portion of plot in favour of defendant. 1993 C L C 1682
Sale executed by respondent (attorney) on basis of irrevocable power of attorney. Petitioners suit challenging validity of power of attorney executed by him in favour of respondent and sale executed by such respondent on basis of the same were decreed by trial Court but such finding was reversed by Appellate Court as also by the High Court. Validity. Power of attorney executed by petitioner in consideration of Rs. 20,000/” was irrevocable which he admittedly had received from respondent. Sale-deed executed by Attorney in favour of vendees was for consideration of specified amount which showed that there was no substantial difference between the consider of power of attorney and that of sale-deeds. Concurrent findings of two Courts below being based on evidence on record did not suffer from misreading or non-reading of evidence. Evidence of a witness could not be brushed aside only because of his relationship, if otherwise the same Was disinterested and credible. Leave to appeal was refused in circumstances. P.L.J.2001 SC 291 = 2001 SCMR 1488. Respondent had obtained power of attorney by playing fraud upon appellant. Fraud played by respondent had caused damage to appellant depriving him of valuable property. Fraud vitiates contract, therefore, sale on basis of such document was void. Evidence of marginal witnesses and scribe was not produced. In absence of such evidence, it would not be safe to rely on such evidence which is weak evidence. Besides stamp paper for execution of power of attorney had been purchased by alleged vendee in whose favour, ultimately sale deed was executed. No proof had been led to prove payment of sale amount to appellant. Trial Court Judgment and decree being based on sermises and conJectures was set aside and suit of appellant was decreed in his favour.-P.L.J.2000 Lah. 1723.
Sale of land owned by minor–Neither transaction of sale was proved nor passing of consideration in lieu of sale was proved to have been given to plaintiff–Recital of sale mutation itself indicated that no payment was made at the time of attestation of mutation–Sale transaction was, thus, not proved in accordance with law. PLJ 2003 SC 1021
Sale of land pre-empted by petitioner on ground of owner in village. Further sale by vendee in favour of respondent in recognition of his superior right of pre-emption. Postponment of mutation and claim of superior right of pre-emption by petitioner qua respondent. Status. Posfcponment of sanctioning of mutation would not adversely affect position of respondent^ for, sale was complete within meaning of Section 54 of Transfer of Property Act. Since sale in favour of respondent in recognition of his superior right of pre-emption had taken place within one year from date of original sale, petitioner could not claim any superior right of pre-emption against him, as he had also become owner in village. Learned Judge in chamber had rightly non Suited petitioner and restored Judgment and decree passed by Civil Judge in favour of respondent. P.L.J.1998 SC 218 = PLD 1998 SC 1506.
Sale transaction of land comprised in colony area-Mode of transfer-Mere statement of vendor made about purported sale before Revenue Officer would not amount to irrevocable transfer of property-Where sanction for transfer under provisions of Colonization of Government Lands (Punjab) Act, 1912 was obtained but no transfer deed was executed, there would be room for the transferor making denial of such transfer and in that event sanction of mutation was not proper although transferee could seek remedy in Civil Court-Even where decree for specific performance of contract was awarded, title of property would remain vested in alienor, till such time, regular sale-deed was executed and registered in favour of alienee. 1995 M L D 45
Sale transaction–Defendants had defended suit on the sole ground that sale was for the benefit of respondent in as much as defendants had paid double price of market value of land in question–Evidence on record, however, indicated that no transaction of sale had taken place, no amount of consideration was passed on minor or deposited in her account–Sale having been made during plaintiffs minority, she on attaining majority had competently.filed suit and same was rightly decreed calling for no interference. PLJ 2003 SC 1021
Sale-deed allegedly executed by an old, ignorant and illiterate female. Plaintiffs suit was dismissed by two Courts below. Validity. Sale-deed was alleged to have been executed by plaintiff in English language not understood by her and she never knew contents of alleged sale-deed in that the same was never read over and explained to her. Burden of proof in respect of document purporting to have been executed by ignorant, old and totally illiterate female affecting her right or interest in immovable property is always on person claiming right or interest under the document and it is for him/her to establish affirmatively that it was substantially understood. by the lady and that transaction in question, was her free and intelligent act and if she was illiterate, same must have been read over to her. Rule of burden of proof on beneficiary was generally applicable where lady was “Pardahnashin”. Rule applicable to “Pardahnashin” lady has, however, been-extended to ignorant and illiterate woman as well. Respondent being beneficiary had failed to discharge burden of proof. Plaintiff would therefore, be deemed to have never consciously executed sale-deed in question, and respondent beneficiary had failed to establish through affirmative evidence that sale consideration was ever paid to plaintiff. Circumstance of non-delivery of possession under the sale also goes against beneficiary. Defendant had also failed to establish that she or her husband, ever had means to purchase property in question. Plaintiffs appearance before sub-Registrar at the time of registration of sale was not proved. Defendant’s contention that suit was barred by time had no force in that there was nothing on record that plaintiff was vested within knowledge of sale-deed and its contents prior to specified time. Impugned decree, and Judgments of Courts below being not warranted by evidence on record, same was set aside and plaintiffs suit was decreed.- P.L.J. 2000 Lah. 1830.
Sale deed executed by vendor in favour of vendee recited therein that sale price was already received by vendor and she acknowledged receipt of sale price Vendor an illiterate village lady and first cousin of vendee in her plaint and at the trial retreated from the admission about receipt of price and repudiated correctness of recital in sale deed stating that she had said so merely upon the assurance of vendee who promised to pay the price subsequently No effective rebuttal of vendor’s statement and evidence led by her at the trial was availableIndependent of recital relating to receipt of price and its repetition in the endorsement on the sale deed, payment and receipt of price was not supported by anything in black and white Vendee, to the contrary, had made a clear statement before Revenue Officer wherein he admitted that price was not paid by him and agreed to _pay the same till the next tour of Revenue Officer Such statement was signed by vendee and Lambardar of the village had also appended his signature No material was brought on record to dislodge the correctness of mutation proceeding taken with regard to land in question Presumption would be that official acts arc to be taken to have been duly and properly performed ¬Strong indication, on record was available to establish that what was being stated by vendor and recorded by Revenue Officer with regard to non receipt of price was true, moreso, because defendant did not assert in the witness box to the contrary Non payment of price was thus established on record. 1990 C L C 1591
Suit for possession through re=demption on basis of ownership of the same through purchase dismissed by two Courts below, assailed–Controvesy between parties related to plaintiff’s claim to have purchased such property vide un-registered sale-deed, while respondents also claimed ownership of the same through un-registered sale-deed of earlier date–Evidence on record would indicate that plaintiff had established his case through reliable and convincing evidence–Defendants claim to have purchased the same was not established–Vendor did not admit execution of un-registered sale-deed in favour of respondents and he declared such sale-deed to be fictitious–Courts below having failed to appreciate evidence on record, judgments and decrees passed by them were set aside and plaintiff’s suit was decreed. PLJ 2004 Peshawar 96
Transfer of title by vendor–Extent of–Vendor cannot transfer better title than he himself possesses at time of transfer–Plaintiffs and defendants both claiming title on basis of sale-deeds in their favour relating to land in question–Predecessors of defendants had purchased title of original owner who was recorded owner with possession and they were also inducted in possession on basis of sale-deed–Plaintiffs on other hand had purchased mere title without possession without specification of any share in land in question–If two sale-deeds relied upon by rival claimants were looked into juxta-position, sale-deed in favour of defendants coupled with entries in ownership column and enjoying physical possession from date of sale has got more weight and value than sale-deed in favour of plaintiffs who were recovered in ownership column but without possession–Defendants were not only enjoying physical possession of land in question but they had frequently alienated and mortgaged their respective shares in land in question–Neither trial Court nor Appellate Court had looked into such aspect of the case in its true perspective–Defendants have also been paying land revenue and water. rate of land in question, which fact was also ignored by Courts below–Impugned judgments and decrees whereby plaintiffs suit was decreed were not maintainable and were set aside. PLJ 2004 Peshawar 81
Whether a registered document of sale becomes nullity if price is not paid. Sale can be for the price paid or promised to be paid. If a document is registered in accordance with law it cannot be annulled, for sole reason that balance sale price was yet to be paid. It cannot cancelled even if consideration had not been paid. P.L.J.1998 Lah. 364 – 1987

55. Rights and liabilities of buyer and seller. In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:-

(1) The seller is bound:-

(a) to disclose to buyer any material defect in the property [or in the seller’s title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;
(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power;
(c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto;
(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place;
(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents;
(f) to give, being so required, she buyer, or such person as he directs, such possession of the property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all incumbrances on such property due on such date, and except where the property is sold subject to incumbrances, to discharge all incumbrances on the property then existing.

(2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same:
Provided that, there the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is incumbered or whereby he is hinderd from transferring it.
The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

(3) Where the whole of purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller’s possession or power:
Provided that, (a) where the seller retains any part of the property comprised in such documents he is entitled to retain them all, and (b) where the whole of such property is sold to different buyers, the buyer of the lot of greatest value is entitled to such documents. But in case (a) the seller, and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyers, as the case may be, and at the cost of the person making die request, to produce the said documents and furnish such true copies thereof or extracts therefrom as he may require; and’ in the mean time, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said documents safe, uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident.
(4) The seller is entitled:–

(a) to the rents and profits of the property till the ownership thereof passes to the buyer;
(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, ^any transferee without consideration or any transferee with notice of the non-payment], for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part [from the date on which possession has been delivered].

(5) The buyer is bound:-

(a) to disclose to the seller any fact as to the nature or extent of the seller’s interest in the property of which the buyer is aware but of which he has reason to believe that the seller is not aware, and which materially increases the value of such interest;
(b) to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs: provided that, where the property is sold free from incumbrances, the buyer may retain, out of the purchase-money, the amount of any incumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto;
(c) where the ownership of the property has ‘passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller;
(d) where the ownership of the property has passed to the buyer, as between himself and seller, to pay all public charges and rent which may become payable in respect of the property, the principal moneys due on any incumbrances subject to which the property is sold, and the interest-thereon afterwards accruing due.

(6) The buyer is entitled:-

(a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof;
(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, 4to the extent of the seller’s, interest in the property for the amount of any purchase-money properly paid by the buyer, in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.
An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a), and paragraph (5)’, clause (a), is fraudulent.

Court Decisions
Suit for declaration of title and ownership over house based on sale deed—Suit decreed—Contention of defendants that suit property purchased by them was different from that claimed by plaintiff—1n view of such contention plaintiff’s independent title cannot be objected to—Defendants could not raise such contention too as their evidence on record was contrary to that—S. 42, Specific Relief Act (1877). P L J 1980 Supreme Court 158

56. Marshalling by subsequent purchaser. If the owner of two or more properties mortgages them to one person and -then sells one or more of the properties to another person, the buyer is, in the absence of a contract to the contrary, entitled to have the mortgage-debt satisfied out of the property or properties not sold to him, so far as the same will extend, but not so as to prejudice the rights of the mortgagee or persons claiming under him or of any other person who has for consideration acquired an interest in any of the properties].

Discharge of Incumbrances on Sale

57. Provision by Court for incumbrance and sale freed therefrom,

(a) Where immovable property subject to any
incumbrance, whether immediately payable or not, is sold by the Court or in execution of a decree, or out of Court, the Court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court:;-

(1) in case of an annual or monthly sum charged on the property, or of a capital sum charged on a determinable interest in the property-of such amount as, when invested in securities of the [Federal Government], the Court considers will be sufficient, by means of the interest thereof, to keep down or otherwise provide for that charge; and

(2) in any other case of a capital sum charged on the property-of the amount sufficient to meet the incumbrance and any interest due thereon.
But in either case there shall also be paid into Court such additional amount as the Court considers will be sufficient to meet the contingency of further costs, expenses and interest and any other contingency, except depreciation of investments, not .exceeding one-tenth part of the original amount to be paid in, unless the Court for special reasons (which it shall record) thinks fit to require a larger additional amount.

(b) Thereupon the Court may, if it thinks fit, and after notice to the incumbrancer, unless the Court, for reasons to be recorded in writing, thinks fit to dispense with such notice, declare the property to be freed from the incumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in Court.

(c) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.

(d) An appeal shall lie from any declaration, order or direction under this section as if the same were a decree.

(e) In this section ‘Court’ means

(1) a High Court in the exercise of the ordinary or extraordinary original civil jurisdiction,
(2) the Court of a District Judge within the local limits of whose jurisdiction the property or any part thereof is situate, (3) any other Court which the ^Provincial Government] may, from time to time, by notification in the official Gazette, declare to be competent to exercise the jurisdiction conferred by this section.

Court Decisions
Benefit of S.53-A of the Transfer of Property Act, 1882— Principles—In order to seek such protection or benefit, the petitioners must show that the possession is in pursuance of an agreement to sell which still subsists—Having committed default in performing his part of contract, a vendee cannot continue to remain in possession in the garb of protection of agreement to sell. 2002 Lawvision 83 = 2002 CLC 433
Conclusive proof of ownership—Registered sale-deed or mutation— Whether conclusive proof of ownership—Where title and ownership is expressly disputed and challenged by defendants in their written statement, registered sale-deed or mutation may, of course, be an evidence of the ownership in favour of plaintiffs but the same cannot be treated as conclusive proof of their legal right. 2002 Lawvision 41 = 2002 CLC 571
Inquiry by vendees—Revoking of agency—Purchase of suit property from attorney—Plaintiff was allotted the suit land who had earlier executed power of attorney which was later on revoked—Vendees purchased the suit property from the attorney—Such transfer was assailed by the plaintiff in civil suit and the same was dismissed by the Trial Court—Lower Appellate Court in exercise of appellate jurisdiction allowed the appeal and Judgment passed by the Trial Court was set aside—Contention raised by the vendee was that he was bona fide purchaser without notice of revocation of the agency—Validity—Registration of the revocation of power of attorney constituted sufficient notice—Record showed that after the cancellation of the power of attorney the vendees proceeded to purchase the land and that too not on the basis of original power of attorney but from the sub-agent of the attorney—Vendees should have checked up the record of the Registrar’s office before acting upon the representation made by the sub-agent that the original power of attorney was still in force—Deeds in favour of vendees were without lawful authority and as such were void—Lower Appellate -Court had not committed any error in passing the judgment and decree enabling High Court to interfere with the same. 2001 Lawvision 100 = 2001 MLD 1617
Payment of sale consideration—Petitioners did not mention single word qua payment/consideration in examination-in-chief or in cross-examination—Judgments and decrees of both courts below, non-suiting petitioner were, thus, in accordance with law-Petitioner had to succeed on basis of evidence produced by him and could not, take benefit of weaknesses in evidence of respondent-Re-appraisal of evidence does not justify remand of case-Petitioner having failed to prove with cogent evidence that sale in question, was executed between original owner and petitioner Courts below had correctly given concurrent, findings of fact, against him which do not warrant interference by High Court- in revisional jurisdiction. 2004 Lawvision 9 = PL J 2004 Lahore 193
Specific performance of agreement to sell—Time as of the essence of contract, claiming benefit of S.53-A of the Transfer of Property Act, 1882—Agreement to sell contained specific time frame for payment of consideration amount—Plaintiffs failed to pay the amount accordingly—Ground on which the non-payment of balance price was sought to be justified had been found against the plaintiffs by both the Courts below—Effect—Where the plaintiffs by their own conduct were responsible for rescission of the sale agreement, their possession had become unauthorized and unlawful—Benefit of S.53-A of the Transfer of Property Act, 1882, could not be extended to the petitioners—Appellate Court had rightly reversed the finding of Trial Court and dismissed the suit—Discretion exercised by the Appellate Court was unexceptionable and High Court declined to form a different view—Judgment and decree passed by the Appellate Court were upheld in circumstances. Zaheer Ahmad and another v. Abdul Aziz and another 1983 SCMR 559; Dr. Aftab A. Khan v. Muhammad Iqbal and 2 others 1984 CLC 3158; Isso and another v. Muhammad Ismail and 2 others 1992 MLD 1787; Messrs Pioneer Housing Society (Pvt.) Limited v. Messrs Babar & Co. PLD 1999 Lah. 193 and Haji Abdul Rehman v. Niaz Ali 2000 CLC 184 ref. 2002 Lawvision 83 = 2002 CLC 433
Symbolic possession of immovable property by the transferee—Effect—Plaint indicated that plaintiff had transferred five Marlas of land vide registered sale-deed to defendant and had also acknowledged in the deed in question of having given symbolic possession to the defendant—Sale-deed could not be deemed void, if actual physical possession was not delivered to the transferee. 2003 Lawvision 90 = 2003 MLD 1164
Transfer by Ostensible owner—Protection of rights of the transferees—Considerations for—Considerations necessary for the application of S. 41, Transfer of Property Act, 1882 were that the transferor was the ostensible owner, that he was so by the consent, express or implied, of the real owner; that the transfer was for consideration and that the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer. Lawvision 24 = 2002 MLD 205

CHAPTER IV
OF MORTGAGES OF IMMOVABLE PROPERTY
AND CHARGES

58. ‘Mortgage’ ‘mortgagor’ ‘mortgagee,’ ‘mortgage-money’ and ‘mortgage’ defined,

(a) A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money and the instrument (if any) by which the transfer is effected is called a mortgage-deed.

(b) Simple mortgage. Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to gay the mortgage money, and agrees expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.

(c) Mortgage by conditional sale. Where the mortgagor ostensibly sells the mortgaged property:
on condition that on default of payment of the mortgage money on a certain date the sale shall become absolute; or
on condition not on such payment being made the sale shall become void, or
on condition that on such payment being made the buyer shall transfer the property to the seller,
the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
[Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale].

(d) Usufructurary mortgage. Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to mortgagee, and authorizes him to retain such possession until payment of the mortgagee-money, and to receive the rents and profits accruing from the property ‘[or any part of such rents and profits and to appropriate the same] -in lieu of interest, or in payment of the mortgage-money, ‘[or] part in lieu of interest or partly in payment of the mortgage-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee.
(e) English mortgage. Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.
(f) Mortgage by deposit of tine-deeds. Where a person in [the town of] Karachi, and in any other town which the ‘‘[Provincial Government] concerned may, by notification in the [official Gazette], specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.

(g) Anomalous mortgage. A mortgage which is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.]

Court Decisions
Auction of property mortgaged with Bank—Rights of person who had purchased property for valuable consideration—Property had been placed in the auction pool after the original suit filed by the mortgagee-Bank was decreed by the Trial Court—Persons who claimed to have purchased the property for valuable consideration, made statement that they, were prepared to deposit the amount due under the decree as recoverable by the Bank—Said purchasers of the property under a registered sale deed, having an interest in property were protected under Ss. 91 & 92 of Transfer of Property Act, 1882—Purchaser of property could clear the liability and as ‘subrogagee’ could acquire the rights of the Bank with whom the property was mortgaged, by subrogation and by the operation of law—Purchasers of property would move a separate application before the Trial Court where the suit was pending and Court after hearing the parties would decide the matter as to possession of property. East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663 ref. 2002 Lawvision 60 = 2002 CLD 97
Equitable mortgage. Mortgagors right to mortgaged property. Extent of. Mortgage in transfer of interest in specific immovable property as security for repayment of debt. Right which mortgagor possessed after executing mortgage was only right to redeem mortgage. P.L.J.2000 SC 75.
Equitable mortgage–Mortgagors right to mortgaged property–Extent of–Mortgage in transfer of interest in specific immovable property as security for repayment of debt–Right which mortgagor possessed after executing mortgage was only right to redeem mortgage. PLJ 2000 SC 75
–Factum of minority of one of mortgagors set up to claim that to the extent of his share, mortgage was void–Mortgagor, predecessor-in interest of petitioners and even his successors having not raised such objection, petitioners were not entitled to raise such objection and claim that mortgage in question, was void due to minority of one of mortgagors. PLJ 2003 Lahore 1460
Gift made under Islamic Law—Registration—Such gifts are expressly excluded from the operation of Transfer of Property Act, 1882—No writing of gift under Islamic Law is essential and the provisions of S.123 of Transfer of Property Act, 1882, do not apply to such gifts. Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCMR 154 ref. 2003 Lawvision 177 = 2003 CLD 646
Gift, validity of—Gift in respect of property made by husband in favour of his wife was objected to contending that even though the gift was made by husband to his wife, delivery of possession was to be proved and in absence of any such proof gift could not be held to be valid-Validity—Where the property had been gifted away by a husband to his wife, proof of delivery of possession to donee would not be necessary particularly when the control and management of the property was in the hands of the donor husband and possession with the donor after the gift would be deemed to be on behalf of the donee—Rationale behind delivery of possession, was to ensure that property forming subject-matter of the gift had been transferred and that the donor had divested himself of that once for all—Donor by getting the gift-deed registered and subsequently by getting the mutation attested on the basis of the registered deed, had left nothing unturned in divesting himself of the subject-matter of the gift—Gift would not become invalid for want of delivery of possession where donee was a female because possession with the donor after gift would be deemed to be on behalf of the donee—Change of possession would be complete if a recital was made in the gift-deed about the same.
Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others PLD 1991 SC 466; Khuresheed ul Islam v. Mrs. Qamar Jehan 1989 CLJ 1467; Mst. Waziran. v. Kalu etc. 1995 CLC 1532; K.S. Agha Mir Ahmad Shah and others v. K.S. Agha Mir Yaqub Shah and others PLD 1957 (W.P.) Kar, 258; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Ashiq Hussain and another v. Ashiq Ali 1972 SCMR 50; Ghulam Hassan and others v. Sarfaraz Khan and others PLD 1956 SC (Pak.) 309 and Mst. Manzoor Mai v. Abdul Aziz 1992 CLC 235 ref. 2001 Lawvision 9 = 2001 CLC 1013
–Limitation Act (IX 1908), S. 19–Civil Procedure Code (V of 1908), S. 115–Mortgage of land in question, through mutation attested in 1908–Subsequent mortgage was effected in 1934–Mortgagee rights having been transferred, subsequent mortgagee of 1934 would be deemed to acknowledge mortgage and accepting liability and right of redemption of mortgagor to redeem mortgage in fresh period of limitation after acknowledgment–Appellate Court had rightly found that period of limitation would be reckoned from 27.9.1934 and not from date of original Mortgage–Impugned judgment and decree being based on correct appreciation of evidence on record and law on subject, no objection thereto, could be taken. PLJ 1999 Peshawar 40
Limitation Act (IX of 1908), S. 19–Alleged acknowledgement made much beyond period of 60 years–Effect–Mortgage in question was created on 27.1.1887–Entry in revenue record made in 1956-57 i.e. much beyond period of 60 years would not have effect of acknowledgement of mortgage. PLJ 2003 Lahore 1601
Limitation Act (IX of 1908), S. 19–Mortgage of property in question–Sub-mortgages created in favour of other persons and their redemption whether would give fresh start of limitation for filing suit for possession through redemption of mortgage–To prove acknowledgment giving fresh start to period of limitation within four corners of limitation law, such acknowledgment has to be in writing and signed by the person making it to attract Section 19 of Limitation Act, 1908–Such mortgages created in favour of other persons and their redemption would not give fresh start of limitation unless acknowledged by mortgagors in writing and signed by person making it–Provisions of S. 19, Limitation Act, 1908 would not, therefore, in absence of said conditions be attracted–Petitioner’s quit and appeal were thus, rightly dismissed by Courts below warranting no interference. PLJ 2003 Peshawar 341
–Limitation Act, 1908 (IX of 1908), S. 6–Validity of mortgage created in 1887, challenged on the ground that some of the alleged mortgagors were minors at the time when mortgage was created–Contention raised was of no effect inasmuch as mortgage was created on 27.1.1887 and the same could be challenged within the period of limitation when disability of minority had. ceased to exist–Alleged minors had never challenged mortgage after they had attained majority and in fact, they did not challenge such mortgage during their life time–Petitioners having consciously admitted mortgage as valid were precluded from challenging the same on the ground that mortgage in question, suffered from some presumed illegality. PLJ 2003 Lahore 1601 [P. 1608] A
Mir MatiulLah. and others v. Ch. Ahmed Misri and others Civil Appeal No. 185 of 1998; Abdul Rehman and another v. Alif Din and others Civil Appeal No. 144 of 1998 and Maulvi Abdul Saboor v. Said Mir and 9 others PLD 1983 SC (AJ&K) 63 ref.
Mortgage in question assailed on the ground that the same was made by limit ownered–Such contention was devoid of force in as much as plaintiffs have failed to prove through any cogent evidence that last male owner was governed by custom and if so what that custom was–Nothing on record would indicate that mortgage in question, was result of fraud or even without legal necessity–Predecessor-in-interest had themselves accepted mortgage in question, as valid and had sought redemption and having failed in that endeavour plaintiffs had challenged mortgage itself is an afterthought which could not be permitted. PLJ 2003 Lahore 1601
Mortgage of land in question, through mutation attested in 1908. Subsequent mortgage was effected in 1934. Mortgagee rights having been transferred, subsequent mortgagee of 1934 would be. deemed to acknowledge mortgage and accepting liability and right of redemption of mortgagor to redeem mortgage in fresh period of limitation after acknowledgment. Appellate Court had rightly found that period of limitation would be reckoned from 27.9.1934 and not from date of original mortgage. Impugned Judgment and decree being based on correct appreciation of evidence on record and law on subject, no objection thereto, could be taken. P.L.J.1999 Pesh. 40 =’ 1999 CLC 346.
Non-registration of document required by law to be registered–Admissibility—Relationship of landlord and tenant— Document required by law to be registered, if was not registered, same was not admissible in evidence, but a rent deed which was required to be registered and was executed by tenant in favour of landlord, could be relied upon to establish relationship of landlord and tenant between the parties. 2003 Lawvision 108 = PLD 2003 Lahore 204
Suit for declaration—Gift—Suit-land being mortgaged, constructive possession was sufficient for satisfaction of necessary conditions required for a valid gift—Donor and donee also being owners in same Khewat, mortgagee had no legal right to challenge the gift deed—Contention that gift deed was not complete as possession was not delivered to the donee, was repelled because taking possession of subject-matter of gift by donee either actually or constructively would complete the gift. Talib Hussain v. Babu Muhammad Shafi and 2 others PLD 1987 Lah. 4 ref. 2002 Lawvision 10 = 2002 CLC 1121
Suit for declaration—Improvement made in mortgaged property—Costs of improvements were to be awarded to a particular party which made improvements in good faith— Plaintiff, in the present case, on basis of mortgage deeds had asserted his title by alleging that mortgage deeds in fact were sale-deeds and as such he could be declared to be owner of land mortgaged to him—Plaintiff, in circumstances, was not entitled to claim any costs for improvements on suit-land. Fazal Haque and others v. M.D. Afan and another PLD 1971 Dacca 158; Maulvi Abdul Saboor v. Said Mir and 9 others PLD 1983 SC (AJ&K) 63; State Bank of Pakistan v. Khaledar M.A. and others PLD 1963 Dacca 844; Mir Matiullah and others v. Ch. Ahmed Misri and others Civil Appeal No. 185 of 1998 and Abdul Rahman and another v. Alif Din and others Civil Appeal No. 144 of 1998 ref. 2002 Lawvision 10 = 2002 CLC 1121
Suit for declaration—Treating mortgaged deed as sale-deed—Plaintiff had claimed that mortgage deeds in respect of suit-land as a matter of fact were sale-deeds, but were executed as mortgage deeds in view of law prohibiting sale for more than l/4th of total estate—Plea of plaintiff was rejected, in view of fact that conditions incorporated in mortgage deeds would not change their basic character. Mir Matiullah and others v. Ch. Ahmed Misri and others Civil Appeal No. 185 of 1998; Abdul Rehman and another v. Alif Din and others Civil Appeal No. 144 of 1998 and Maulvi Abdul Saboor v. Said Mir and 9 others PLD 1983 SC (AJ&K) 63 ref. 2002 Lawvision 10 = 2002 CLC 1121
Treating mortgaged deed as sale-deed – Plaintiff had claimed that mortgage deeds in respect of suit-land as a matter of fact were sale-deeds, but were executed as mortgage deeds in view of law prohibiting sale for more than l/4th of total estate – Plea of plaintiff was rejected, in view of fact that conditions incorporated in mortgage deeds would not change their basic character. 2002 CLC 1121

59. Mortgage when to be by assurance. Where the principal money secured is one hundred rupees or upwards, a mortgage [other than a mortgage by deposit of title-deeds] can be effected only by the registered instrument signed by the mortgagor and attested by at least two witnesses.
Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by [a registered instrument] signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.

Court Decisions
Supreme Court was pleased to approve the law laid down in A.I.R. 1954.”The attestation, therefore of persons to a document is to ensure that there is no fraud or other vitiating circumstances in the execution of the document. PLJ 1996 SC 1688

59-A. References to mortgagors and mortgagees to include persons deriving title from them. Unless otherwise expressly provided, references in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively.

Rights and Liabilities of Mortgagor

60. Right of mortgagor to redeem.-At any time after the principal money has become ^due], the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgagee-money, to require the mortgage (a) to deliver ^to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:
Provided that the right conferred by this section has not been extinguished by the act of the parties or by [decree] of a Court.
The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.
Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment of tender of such money.

Redemption of portion of mortgaged property. Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except [only] where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.

Court Decisions
Civil Procedure Code (V of 1908), S. 115–Mortgage of land in 1919–Part of land was redeemed in 1939–Petitioners being successor-in-interest of original mortgagees claimed that they had become owners of that land which was not redeemed by petitioners–Respondents put up plea of acknowledgment, that part of land in question, having been redeemed in 1939, same amounted to acknowledgment in terms of Ss. 19 & 20 of Transfer of Property Act 1882 and that equity of redemption was not fore closed–Petitioners being in possession as mortgagees and receiving produce, dictum laid down by Supreme Court in 1999 SCMR 2531 to the effect that limitation stood extended on principle of S. 20, Limitation Act 1908 was fully applicable–Equity of redemption, thus, could not be deemed to have been extinguished. PLJ 2003 Lahore 1484
Civil Procedure Code (V of 1908), S. 115–Redemption of mortgage–Period of limitation for redemption of mortgage would not be reckoned from 7.4.1926, date of first mortgage but from date of second mortgage created by successor-in-interest of first mortgagee in favour of plaintiffs from 1961, when they accepted land in question, as mortgagees–Judgments and decrees of Courts below, reckoning period of limitation for redemption of mortgage from 7.4.1926, was set aside and plaintiffs suit was dismissed. PLJ 2002 Lahore 155
–Civil Procedure Code, 1908 (V of 1908), S. 115–Plaintiff’s suit for declaration that they were owner in possession of land in question was dismissed by trial Court and Appellate Court–Defendnat’s cross objection was decided in their favour holding that they had matured their title over suit land for having remained mortgagees for more than sixty years- Validity–Entries regarding redemption of land through specified mutation removing mortgagee of land in question, would be a fact relevant for all purposes–Entries in subsequent Jamabandis as a result of excessive official manipulation could not create any obstacle in the way of plaintiff concenring mortgage of land in question–Correctness of specified mutation removing name of mortgagee had not even been challenged by contesting defendants–Removal of mortgagees’ name based on time old record of right would prove that land in question stood redeemed .long before and contesting defendants had no legs to stand upon their plea that having remained as mortgagees for a period of more than sixty years they had matured title by way of prescription—Trial Court also had non-suited plaintiff under Art. 120 of Limitation Act, 1908 for having brought suit beyond period of six years–Plaintiff seeking declaration would be entitled to sue upon each successive invasion of his right–Recording of plaintiff and proforma defendant as owner in column of ownership both in Jamabandi and in Khasra Girdwaries upto 1978-79 and bringing suit in 1980 on refusal of defendants to correct wrong entries in revenue record regarding mortgage/redemption of land in question, trial Court erred in coming to conclusion that suit was hit by limitation under Art. 120 of Limitation Act, 1908–Judgment and decrees of Courts below were set aside and plaintiffs suit was decreed in circumstances. PLJ 2000 Peshawar 299
–Constitution of Pakistan (1973), Art. 185(3)–Leave to appeal was granted to consider; whether writ petition culminating into impugned judgment was hit by laches in as much as, earlier petition was withdrawn on 13.2.1984, while the later one was filed on 10.3.1987, after lapse of about three years; whether High Court while condoning delay had not advanced any valid reasons; that orders of hierarchy under F.C.R. having become effective by administering oath to petitioner whether writ petition had become infructuous and was incompetent; whether after repeal of FCR proceedings conducted under the same would be valid as protected under Art. 264 of the constitution and S. 6 of General Clauses Act and repeal would be of no effect; and even if clog on the right of redemption mentioned in mortgage deed was taken into account whether petitioner would have become owner only if he had paid remaining specified amount; that respondents had admittedly approached competent authorities within stipulated period. PLJ 2002 SC 683
–Constitution of Pakistan (1973), Art. 199–Redemption of mortgage by payment of specified: amount for which land in question, had been mortgaged–One of the mortgagee having purchased fractional share of mortgage objected to redemption of mortgage–Purchaser’s such plea was rejected by hierarchy of Revenue functionaries–Legality–Functionaries of Revenue hierarchy had rightly maintained that “mortgage is conveyance of land, an assignment of chattels, as a security for payment of debt or the discharge of some other obligation for which the same was given” Mortgage has been fully discharged by payment of mortgaged amount, therefore, no exception can be taken to orders of Revenue hierarchy in constitutional jurisdiction of High Court. PLJ 2002 Lahore 720
Effect of. Rights of mortgagor. Objection that property once mortgaged would not ,be deemed to be held by the mortgagor. Held : Under Section 60 of Transfer of Property Act, mortgagor enJoy a right to redeem property as per condition laid down therein. Unless after due date and passing of period of limitation u/S. 67 pertaining to right of foreclosure or sale, mortgagor remains it’s proprietor and property shall be deemed to be held by him. P.L.J.2001 SC 1146 = 2001 SCMR 1208.
Limitation act, 1908 (IX of 1908)–Art. 148–Mortgage of land effected on 1.7.1897–Mortgageor failed to redeem his land despite expiry of 90 years–Time being a greater factor, principles of equity and good conscience could not be applied specifically when mortgagor was non-suited by earlier judgment of civil Court and Appellate Court for filing application for possession of mortgaged property, after expiry of statutory period of limitation–Civil Court in post remand proceedings had rightly non-suited plaintiff (mortgagor) while Appellate Court committed illegality and material irregularity in accepting appeal of plaintiff–Judgment and decree of Appellate Court decreeing plaintiffs suit was set aside while that of trial Court dismissing the suit was restored. PLJ 2002 Lahore 1367
Mortgage of property–Mortgagor, not getting property in question, redeemed within 60 years had lost their right to redeem same, therefore same had become extinct PLJ 2003 Lahore 1460
¬Period of limitation for redemption of mortgage would not be reckoned from 7.4.1926, date of first mortgage but from date of second mortgage created by successor-in-interest of first mortgagee in favour of plaintiffs from 1961, when they accepted land in question, as mortgagees-Judgments and decrees of Courts below, reckoning period of limitation for redemption of mortgage from 7.4.1926, was set aside and plaintiffs suit was dismissed. PLD 2003 Lah.155
Plaintiffs suit for declaration’ that they were owner in possession of land in question was, dismissed by trial Court and Appellate Court. Defendnat’s cross objection was decided in their favour holding that they had matured their title over suit land for having remained mortgagees for more than sixty years. Validity. Entries regarding redemption of land through specified mutation removing mortgagee of. land in question, would be a fact relevant for all purposes. Entries in subsequent Jamabandis. as a result of excessive official manipulation could not create any obstacle in the way of plaintiff concenring mortgage of land in question. Correctness of specified mutation removing name of mortgagee had not even been challenged by contesting defendants. Removal of mortgagees’ name based on time old record of right would prove that land in question stood redeemed long before and contesting defendants had no legs to stand upon their plea that having remained as mortgagees for a period of more than sixty years they had matured title by way of prescription. Trial Court also had nonSuited plaintiff under Art. 120 of Limitation Act, 1908 for having brought suit beyond period of six years. Plaintiff seeking declaration would be entitled to sue upon each successive invasion of his right. Recording of plaintiff and profonna defendant as owner in column of ownership both in Jamabandi and in Khasra Girdwaries upto 1978-79 and bringing suit in 1980 on refusal of tiefendants to correct wrong entries in Rev. record regarding . -mortgage/redemption of land in question, trial Court erred in coming to conclusion that suit was hit by limitation under Art. 120 of Limitation Act, 1908. Judgment and decrees of Courts below were set aside and plaintiffs suit was decreed in circumstances. P.L.J.2000 Pesh. 299 = 2000 MLD 1737.
Redemption of mortgaged property. Whether a co-mortgagor can file suit for redemption without Joining other co-mortgagors or co-Sharers. According to Section 60, right to redeem property is available to mortgagor at any time after principal money has become due. Section 91 notifies persons besides mortgagor, who may sue for redemption, Although Civil Judge did not discuss issue relating-to locus standi to file suit with reference to provisions of Transfer of Property Act, but appellate Court has confirmed these findings in view of statutory provisions of law. A person who is co-mortgagor or had interest in a mortgaged proeprty, can file a suit for. redemption without Joining co-mortgagors or co-Sharers. Respondent being one of co-mortgagors, had a lawful authority to file suit. P.L.J.1995 Qta. 14.
Requirements. For obtaining interim injunction in respect of suit property, plaintiff was required to show presence of all ingredients as envisaged in S. 60 of Transfer of Property Act, and O.XXXIX. Rr. 1 & 2. C.P.C. P.L.J.1998 Kar. 800 = 1998 CLC 563.

60-A Obligation to transfer to third party instead of re-transference to mortgagor. (1) Where a mortgagor is entitled to redemption, then, on the fulfilment of any conditions on the fulfilment of which he would be entitled to require a re-transfer, he may require the mortgagee, instead of re-transferring the property, to assign the mortgage-debt and transfer the mortgaged property to such third person as the mortgagor may direct; and the mortgagee shall be bound to assign and transfer accordingly.
(2) The rights conferred by this section belong to and may be enforced by the mortgagor or by any encumbrancer notwithstanding an intermediate encumbrance; but the requisition of any encumbrancer shall prevail over a requisition of the mortgagor and, as between encumbrancers, the requisition of a prior encumbrancer shall prevail over that of a subsequent encumbrancer.
(3) The provisions of this section do not apply in the case of a mortgagee who is or has been in possession.

60-B Right to inspection and production of documents. A mortgagor, as long as his right of redemption subsists, shall be entitled at all reasonable times at his request and at his own cost, and on payment of the mortgagee’s costs and expenses in this behalf, to inspect and make copies or abstract, of, or extracts from, documents of title relating to the mortgaged property which are in the custody or power of the mortgagee.

[61. Right to redeem separately or simultaneously. A mortgagor, who has executed two or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, be entitled to redeem any one such mortgage separately, or any two or more of such mortgages together.]

62. Right of usufructuary mortgagor to recover possession. In the case of a usufructuary mortgage, the mortgagor has right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], –

(2) Where any such improvement was effected at the cost of the mortgagee and was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient, or was made in compliance with the lawful order of any public servant or public authority, the mortgagor shall, in the absence of a contract to the contrary, be liable to pay the proper cost thereof as an addition to the principal money with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum, and the profits, if any, accruing by reason of the improvement shall be credited to the mortgagor.

63. Accession to mortgaged property. Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, received any accession, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled as against the mortgagee to such accession.
Accession acquired in virtue of transferred ownership. Where such accession has been acquired at the expense of the mortgagee, and is capable of separate possession or enjoyment without detriment to the principal property, the mortgagor desiring to take the accession must pay to the mortgagee the expense of acquiring it. If such separate possession or enjoyment is not possible, the accession must be delivered with the property; the mortgagor being liable, in the case of an acquisition necessary to preserve the property from destruction, forfeiture or sale; or made with his assent, to pay the proper cost thereof, as an addition to the principal money, [with interest at the same rate as is payable on the principal, where no such rate is fixed, at the rate of nine per cent per annum].
In the case last mentioned the profits, if any, arising from the accession shall be credited to the mortgagor.
Where the mortgage is usufructuary and the accession has been acquired at the expense of the mortgagee, the profits, if any, arising from the accession shall, in the absence of a contract to the contrary, be set off against interest, if any, payable on the money so expended.

63-A. Improvements to mortgaged property.

(1) Where mortgaged property in possession of the mortgagee has during the continuance of the mortgage, been improved, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled to the improvement; and the mortgagor shall not, save only in cases provided for in sub-section (2), be liable to pay the cost thereof.

(a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property. When such money is paid ;
(b) where the mortgagee is authorized to pay himself from such rents and profits ‘[or any part thereof a part only of the mortgage-money] when the term, if any, prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided.

Court Decisions
Suit for declaration—Improvement made in mortgaged property—Costs of improvements were to be awarded to a particular party which made improvements in good faith— Plaintiff, in the present case, on basis of mortgage deeds had asserted his title by alleging that mortgage deeds in fact were sale-deeds and as such he could be declared to be owner of land mortgaged to him—Plaintiff, in circumstances, was not entitled to claim any costs for improvements on suit-land. Fazal Haque and others v. M.D. Afan and another PLD 1971 Dacca 158; Maulvi Abdul Saboor v. Said Mir and 9 others PLD 1983 SC (AJ&K) 63; State Bank of Pakistan v. Khaledar M.A. and others PLD 1963 Dacca 844; Mir Matiullah and others v. Ch. Ahmed Misri and others Civil Appeal No. 185 of 1998 and Abdul Rahman and another v. Alif Din and others Civil Appeal No. 144 of 1998 ref. 2002 Lawvision 10 = 2002 CLC 1121
Improvement made in mortgaged property – Costs of improvements were to be awarded to a particular party which made improvements in good faith – Plaintiff, in the present case, on basis of mortgage deeds had asserted his title by alleging that mortgage deeds in fact were sale-deeds and as such he could be declared to be owner of land mortgaged to him – Plaintiff, in circumstances, was not entitled to claim any costs for improvements on suit-land. 2002 CLC 1121 Fazal Haque and others v. M.D. Afan and another PLD 1971 Dacca 158; Maulvi Abdul Saboor v. Said Mir and 9 others PLD 1983 SC (AJ&K) 63; State Bank of Pakistan v. Khaledar M.A. and others PLD 1963 Dacca 844; Mir Matiullah and others v. Ch. Ahmed Misri and others Civil Appeal No. 185 of 1998 and Abdul Rahman and another v. Alif Din and others Civil Appeal No. 144 of 1998 ref.

64. Renewal of mortgaged lease. Where the mortgaged property is a lease, and the mortgagee obtains a renewal of the lease, the mortgagor, upon redemption, shall, in the absence of a contract by him to the contrary, have the benefit of the new lease.

65. Implied contracts by mortgagor. In the absence of a contract to the contrary, the mortgagee shall be deemed to contract with the mortgagee:-

(a) that the interest which the mortgagor professes to transfer to the mortgagor subsists, and the mortgagor has power to transfer the same;

(b) that the mortgagor will defend, or if the mortgagee 1-e in the possession of the mortgaged property, enable him to defend, the mortgagor’, title thereto ;

(c) that the mortgagor will, so long as the mortgagee is not m possession of the mortgaged property, pay all, public charges accruing due in respect ;of the property ;

(d) and, where the mortgaged property is a lease, that the rent payable under the lease, the conditions contained therein, and the contracts binding on the lessee have been paid, performed and observed down to the commencement of the mortgage: and that the mortgagor will, so long as the security exists and the mortgagee is not in possession of the mortgaged property, pay the rent reserved by the lease, or, if the lease be renewed, the renewed lease, perform the conditions contained therein and observe the contracts binding on lessee, and indemnify the mortgagee against all claims sustained by reason of the non-payment of (he said rent or the non-performance or non-observance of the said conditions and contracts ;

(e) and, where the mortgage is a second or subsequent incumbrance on the property, that the mortgagor will pay the interest from time to time accruing due on such prior incumbrance as and when it becomes due, and will at the proper time discharge the principal money due on such prior incumbrance.
The benefit of the contracts mentioned in this section shall be annexed to and shall go with she interest of the mortgagee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

65A. Mortgagor’s power to lease. (1) Subject to the provisions of sub-section (2) a mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee.

(2) (a) Every such lease shall be such as would be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or usage.

(b) Every such lease shall reserve the best rent that can reasonably obtained, and no premium shall be paid or promised and no rent shall be payable in advance.
(c) No such lease shall contain a covenant for renewal.
(d) Every such lease shall take effect from a date not later than six months from the date on which it is made.
(e) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years, and the lease shall contain a covenant for payment of the rent and a condition of re-entry on the rent not being paid within a time therein specified.

(3) The provisions of sub-section (1) apply only if and as far as a contrary intention is not expressed in the mortgage-deed; and the provisions of sub-section (2) may be varied or extended by the mortgage-deed and, as so varied and extended, shall, as far as may be, operate ‘in like manner and with all like incidents, effects and consequences, as if such variations or extensions were contained in that sub-section.]

66. Waste by mortgagor in possession. A mortgagor in possession of the mortgaged property is not liable to the mortgagee for allowing the property to deteriorate; but he must not commit any act which is destructive or permanently injurious thereto, if the security is insufficient or will be rendered insufficient by such act.
Explanation. A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one-third, or, if consisting of buildings, exceeds by one-half, the amount for the time being due on the mortgage.

Rights and Liabilities of Mortgagee

67. Right to foreclosure or sale. In me absence of a contract to contrary, the mortgagee has at any time after the mortgage-money has become due to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage-money has been paid or deposited as hereinafter provided, a right to obtain from the Court a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or ‘‘[a decree] that the property be sold.
A suit to obtain ‘[a decree] that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a suit for foreclosure.
Nothing in this section shall be deemed:

(a) to authorize any mortgagee, other than a mortgagee by conditional sale or a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure, or an usufructuary mortgagee as such or mortgagee by conditional sale as such, to institute a suit for sale ; or

(b) to authorize a mortgagor who holds the mortgagee’s right as his trustee or-legal representative, and who may sue for a sale of the property, to institute a suit for foreclosure ; or

(c) to authorize the mortgagee of a railway, canal or other work in the maintenance of which the public are interested, to institute a suit for foreclosure or sale ; or

(d) to authorize a person interested in part only of the mortgage-money to institute a suit relating only to a corresponding part of the mortgaged property, unless the mortgagees have, with the consent of the mortgagor, severed their interests under the mortgage.

Court Decisions
Objection that property once mortgaged would not ,be deemed to be held by the mortgagor. Held : Under Section 60 of Transfer of Property Act, mortgagor enjoy a right to redeem property as per condition laid down therein. Unless after due date and passing of period of limitation u/S. 67 pertaining to right of foreclosure or sale, mortgagor remains it’s proprietor and property shall be deemed to be held by him. P.L.J.2001 SC 1146 = 2001 SCMR 1208.

67-A. Mortgagee when bound to bring one suit on several mortgages. A mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he had a right to obtain the same kind of decree under section 67, and who sues to obtain such decree on anyone of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due.

68. Right to sue for mortgage-money. (1) The mortgagee has a right to sue for the mortgage-money in the following cases and no others, namely:-

(a) where the mortgagor binds himself to repay the same;
(b) where by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so;
(c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor;
(d) where the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor:
Provided that, in the case referred to in the clause (a), transferee from the mortgagor or from his legal representative shall not be liable to be sued for the mortgage-money.

(2) Where a suit is brought under clause (a) or clause (b) of sub-section (1), the Court may, at its discretion, stay the suit and all proceedings therein, notwithstanding any contract to the contrary, until the mortgagee has exhausted all his available remedies against the mortgaged property or what remains of it, unless the mortgagee abandons his security and, if necessary, re-transfers the mortgaged property.

69. Power of sale valid. (1) A mortgagee, or any person acting on his behalf, shall, subject to the provisions of this section, have power to sell or concur in selling the mortgaged property, or any part thereof, in default of payment of the mortgage-money, without the intervention of the Court, in the following cases and in no others, namely:-

(a) where the mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is a Hindu, [Muslim] or Buddhist [or a member of any other race, sect, tribe or class from time to time specified in this behalf by ‘[the Provincial Government] in the [official Gazette] ;
(b) where [a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage deed and] the mortgagee is [the Government] [or a Scheduled Bank as defined in section 2 of the State Bank of Pakistan Act, 1956 (XXIII of 1956) ;
(c) where a [power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage-deed and] the mortgaged property or any part thereof [was, on the date of the execution of the mortgage-deed], situate within the [town of] Karachi, or in any other town [or area] which the [Provincial Government] may, by notification in the [official Gazette], specify in this behalf.

(2) [A power under sub-section (1) shall not be exerciser unless and until:.
(a) notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and default has been made in payment of the principal money, or of part thereof, for three months after such service ; or
(b) some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due .
Provided that the power of a Scheduled Bank under clause (b) of sub-section (1) shall further be subject to such conditions as may be prescribed in this behalf by notification in the official Gazette by the [Federal Government] in consultation with the State Bank of Pakistan.

(3) When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power.

(4) The money which is received by the mortgagee, arising from the sale, after discharge of prior incumbrances, if any, to which the sale is not made subject, or after payment into Court under section 57 of a sum to meet any prior incumbrance, shall, in the absence of a contract to the contrary, be held by him, in trust to be applied by him first, in payment of all costs, charges and expenses properly incurred by him as incident to the sale or any attempted sale; and, secondly, in discharge of the mortgage-money and costs and other money, if any, due under the mortgage ; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorized to give receipts for the proceeds of the sale thereof.

69-A. Appointment of receiver. (1) A mortgagee having the right to exercise a power of sale under section 69 shall, subject, to the provisions of sub-section (2), be entitled to appoint, by writing signed by him or on his behalf, a receiver of the income of the mortgaged property or any part thereof.

(2) Any person who has been named in the mortgage-deed and is willing and able to act as receiver may be appointed by the mortgagee.
If no person has been so named, or if all persons named are unable or unwilling to act, or are dead, the mortgagee may appoint any person to whose appointment the mortgagor agrees; failing such agreement, the mortgagee shall be entitled to apply to the Court for the appointment of a receiver, and any person appointed by the Court shall be deemed to have been duly appointed by the mortgagee.
A receiver may at any time be removed by writing signed by or on behalf of the mortgagee and the mortgagor, or by the Court on application made by either party and on due cause shown.
A vacancy In the office of receiver may be filled .in accordance with the provisions of this sub-section.

(3) A receiver appointed under the powers conferred by this section shall be deemed to be the agent of the mortgagor; and the mortgagor shall be solely responsible for the receiver’s acts or defaults, unless the mortgage-deed otherwise provides or unless such acts or defaults are due to the improper intervention of the mortgagee.

(4) The receiver shall-have power to demand and recover all the income of which he is appointed receiver, by suit, execution or otherwise, in the name either of the mortgagor or of the mortgagee to the full extent of the interest which the mortgagor could dispose of, and give valid receipts accordingly for the same, and to exercise any powers which may have been delegated to him by the mortgagee in accordance with the provisions of this section.

(5) A person paying money to the receiver shall not be concerned to inquire if the appointment of the receiver was valid or not.

(6) The receiver shall be entitled to retain out of any money received by him for his remuneration, and in satisfaction of all costs, charges, and expenses incurred by him as receiver, a commission at such rate not exceeding five per cent on the gross amount of all money received as is specified in his appointment, and, if no rate is so specified then at the rate of five per cent on that gross amount, or at such other rate as the Court thinks fit to allow, on application made by him for the purpose.

(7) The receiver shall, if so directed in writing by the mortgagee, insure to the extent, if any, to which the mortgagee might have insured, and keep insured against loss or damage by fire, out of the money received by him, the mortgaged property or any part thereof being of an insurable nature.

(8) Subject to the provisions of this Act as to the application of insurance money, the receiver shall apply all money received by him as follows, namely:-

(i) in discharge of all rents, taxes, land revenue, rates and outgoings whatever affecting the mortgaged property;
(ii) in keeping down all annual sums or other payments, and the interest on all principal sums, having priority to the mortgage in right whereof he is receiver ;
(iii) in payment of his commission, and of the premiums on fire, life or other insurances, if any, properly payable under the mortgage-deed or under this Act, and the cost of executing necessary or proper repairs directed in writing by the mortgagee ;
(iv) in payment of the interest falling due under the mortgage;
(v) in or towards discharge of the principal money, if so directed in writing by the mortgagee ;
and shall pay the residue, if any, of the money received by him to the person who, but for the possession of the receiver, would have been entitled to receive the income of which he is appointed receiver, or who is otherwise entitled to the mortgaged property.

(9) The provisions of sub-section (1) apply only if and as far as contrary intention is not expressed in the mortgage-deed; and the provisions of sub-sections (3) to (8) inclusive may be varied or extended by the mortgage-deed, and, as so varied or extended, shall, as far as may be, operate in like manner and with all the like incidents, effects and consequences, as if such variations or extensions were contained in the said sub-sections.

(10) Application may be made, without the institution of a suit, to the Court for its opinion, advice or direction on any present question respecting the management or administration of the mortgaged property, other than questions of difficulty or importance not proper in the opinion of the Court for summary disposal. A copy of such application shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court may think fit.
The costs of every application under this sub-section shall be in the discretion of the Court.

(11) In this section, ‘the Court’ means the Court which would have jurisdiction in a suit to enforce the mortgage.

70. Accession to mortgaged property. If after the date of a mortgage, any accession is made to the mortgaged property, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to such accession.
Illustrations

(a) A mortgages to B a certain field bordering on a river. The field is increased by alluvion. For the purposes of his security, B is entitled to the increase.

(b) A mortgages a certain plot of building land to B and afterwards erects a house on the plot. For the purposes of this security B is entitled to the house as well as the plot.

71. Renewal of mortgaged lease. When the mortgaged property is a lease and the mortgagor obtains a renewal of the lease, the mortgagee in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to the new lease.

72. Rights of mortgagee in possession. [A mortgagee] may spend such money as is necessary :–

(a) Omitted

(b) for the preservation of the mortgaged property] from destruction, forfeiture or sale ;

(c) for supporting the mortgagor’s title to property;

(d) for making his own title thereto good against the mortgagor; and

(e) when the mortgaged property is a renewable lease-hold, for the renewal of the lease ;
and may, in the absence of a contract to the contrary, add such money to the principal money, at the rate of interest payable on principal, and where no such rate is fixed, at the rate of nine per cent per annum: [Provided that the expenditure of money by the mortgagee under clause (b) or clause (c) shall not be deemed to be necessary unless the mortgagor has been called upon and has failed to take proper and timely steps to preserve the property or to support the title].
When the property is by its nature insurable, the mortgagee may also, in the absence of a contract to the contrary, insure and keep insured against loss or damage by fire the whole or any part of such property; and the premiums paid for any such insurance shall be padded to the principal money with interest at the same rate as is payable on the principal money or, where no such rate is fixed, at the rate of nine per cent per annum]. But the amount of such insurance shall not exceed the amount specified in this behalf in the mortgage-deed or (if no such amount is therein specified) two-thirds of the amount that would be required in case of total destruction, to reinstate the property insured.
Nothing in this section shall be deemed to authorize the mortgagee to insure when an insurance of the property is kept up by or on behalf of the mortgagor to the amount in which the mortgagee is hereby authorized to insure.

73. Right to proceeds of revenue sale or compensation on acquisition. (1) Where the mortgaged property or any part thereof or any interest therein is sold owing to failure to pay arrears of revenue or other charges of a public nature or rent due in respect of such property, and such failure did not arise from any default of the mortgagee, the mortgagee shall be entitled to claim payment of the mortgage-money in whole or in part, out of any surplus of the sale-proceeds remaining after payment of the arrears and of all charges and deductions directed by law.

(2) Where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894 (I of 1894), or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation.

(3) Such claims shall prevail against all other claims except those of prior encumbrances, and may be enforced notwithstanding that the principal money on the mortgage has not become due].

74. Right of subsequent mortgagee to pay off prior mortgagee. [Repealed by the Transfer of Property Amendment Act, 1929 (XX of 1929), S. 39].

75. Rights of mesne mortgagee against prior and subsequent mortgagees. [Repealed by the Transfer of Property {Amendment) Act, 1929 (XX of 1929), S. 39.

76. Liabilities of mortgagee in possession. When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property :-

(a) he must manage the property as a person of ordinary prudence would manage it if it were his own ;

(b) he must use his best endeavours to collect the rents and profits thereof ;

(c) he must, in the absence of a contract to the contrary out of the income of the property, pay the Government revenue, all other charges of a public nature ‘[and all rent accruing due in respect thereof during such possession, and any arrears of rent in default of payment of which the property may be summarily sold ;

(d) he must, in the absence of a contract to the contrary, make such necessary repairs of the property as he can pay for out of the rents and profits thereof after deducting from such rents and profits the payments mentioned in clause (c) and the interest on the principal money ;

(e) he must not commit any act which is destructive or permanently injurious to the property ;

(f) where he has insured the whole or any part of the property against loss or damage by fire, he must, in case of such loss or damage, apply any money which he actually receives under the policy or so much thereof as may be necessary, in reinstating the property, or, if the mortgagor so directs in reduction or discharge of the mortgage-money ;

(g) he must keep clear, full and accurate accounts of all sums received and spent by him as mortgagee, and, at any time during the continuance of the mortgage, give the mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported;

(h) his receipts from the mortgaged property, or, where such property is personally occupied by him, a fair occupation-rent in respect thereof, shall, after deducting the expenses [properly incurred for the management of the property and the collection of rents and profits and the other expenses] mentioned in clauses (c) and (d); and interest thereon be debited against him in reduction of the amount (if any) from time to time due to him on account of interest and so far as such receipts exceed any interest due, in reduction or discharge of the mortgage-money; the surplus, if any, shall be paid to the mortgagor ;

(i) when the mortgagor tenders, or deposits in manner hereinafter provided, the amount for the time being due on the mortgage, the mortgagee must, notwithstanding the provisions in the other clauses of this section, account for his receipts from the mortgaged property from the date of the tender or from the earliest time when he could take such amount out of Court, as the case may be [and shall not be entitled to deduct any amount therefrom on account of any expenses incurred after such date or time in connection with the mortgaged property].

Loss occasioned by his default. If the mortgagee fail to perform any of the duties imposed upon him by this section, he may, when accounts are taken in pursuance of a decree made under this Chapter, be debited with the loss, if any, occasioned by such failure.

77. Receipts in lieu of interest. Nothing in section 76, clauses (b), (d), (g) and (h), applies to cases where there is a contract between the mortgagee and the mortgagor that the receipts from the mortgaged property shall, so long as the mortgagee is in possession of the property, be taken in lieu of interest on the principal money, or in lieu of such interest and defined portions of the principal.

Priority

78. Postponement of prior mortgagee. Where, through the fraud, misrepresentation or gross neglect of a prior mortgagee, another person has been induced to advance money on the security of the mortgaged property, the prior mortgagee shall be postponed to the subsequent mortgagee.

79. Mortgage to secure uncertain amount when maximum is expressed. If a mortgage made to secure future advances, the performance of an engagement or the balance of a running account, expresses the maximum to be secured thereby, a subsequent mortgage of the property shall, if made with notice of the prior mortgage, be postponed to the prior mortgage in respect of all advances or debts not exceeding the maximum, though made or allowed with notice of the subsequent mortgage.
Illustration
A mortgages Sultanpur to his bankers, B & Co., to secure the balance of his amount with them to the extent of Rs. 10,000. A then mortgages Sultanpur to C, to secure Rs. 10,000, C having notice of the mortgage to B & Co., and C gives notice to B & Co., of the second mortgage. At the date of the second mortgage, the balance due to B & Co. does not exceed Rs. 5,000. B & Co., subsequently advanced to A sums making the balance of the account against him exceed the sum of Rs. 10,000. B & Co. are entitled, to the extent of Rs. 10,000, to priority over C.

80. Tacking abolished. [Repealed by section 41 of the Transfer of Property (Amendment Act, 1929 (XX of 1929)].

Marshalling and Contribution
81. Marshalling securities. If the owner of two or more properties mortgages them to one person and then mortgages one or more of the properties to another person, the subsequent mortgagee is, in the absence of a contract to the contrary, entitled to have the prior mortgage-debt satisfied out of the property or properties not mortgaged to him, so far as the same will extend, but not so as to prejudice the rights of the prior mortgagee or of any other person who has for consideration acquired an interest in any of the properties.

82. Contribution to mortgage-debt. [Where property subject to a mortgage belongs to two or more persons having distinct and separate rights of ownership therein, the different shares in or parts of such property owned by such persons are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, and for the purpose of determining the rate at which each such share or part shall contribute, the value thereof shall be deemed to be its value at the date of the mortgage after deduction of the amount of any other mortgage or charge to which it may have been subject on that date].
Where, of two properties belonging to the same owner, one is mortgaged to secure one debt and then both are mortgaged to secure another debt, and the former debt is paid out of the former property, each property is, in the absence of a contract to the contrary, liable to contribute rateably to the latter debt after deducting the amount of the former debt from the value of the property out of which it has been paid.
Nothing in this section applies to a property liable under section 81 to the claim of the [subsequent] mortgagee.

Deposit in Court

83. Power to deposit in Court money due on mortgage. At any time after the principal money ‘[payable in respect of any mortgage has become due] and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage.
Right to money deposited by mortgagor. The Court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may on presenting a petition (verified in manner prescribed by law for the verification of plaints) stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, and on depositing in the same Court the mortgaged-deed ‘[and all documents in his possession or power relating to the mortgaged property] apply for and receive the money, and the mortgage deed ^and all such other documents] so deposited shall be delivered to the mortgagor or such other person as aforesaid.
Where the mortgagee is in possession of the mortgaged property, the Court shall, before paying to him the amounts so deposited, direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered and acknowledgment in writing that any right in derogation of the mortgagor’s interest transferred to the mortgage has been extinguished.

84. Cessation of interest. When the mortgagor or such other person as aforesaid has tendered or deposited in Court under section 83 the amount remaining due on the mortgage, interest on the principal money shall cease from the date of the tender or ^in the case of a deposit, where no previous tender of such amount has been made] as soon as the mortgagor or such other person as aforesaid has done all that has to be done by him to enable the mortgagee to take such amount out of Court, [and the notice required by section 83 has been served on the mortgagee:
Provided that, where the mortgagor has deposited such amount without having made a previous tender thereof and has subsequently withdrawn the same or any part thereof, interest on the principal money shall be payable from the date of such withdrawal].
Nothing in this section or in section 83 shall be deemed to deprive the mortgagee of his right to interest when there exists a contract that he shall be entitled to a reasonable notice before payment or tender of the mortgage-money [and such notice has been given before the making of the tender or deposit, as the case may be].

Suit for Foreclosure, Sale or Redemption

85. Parties to suits for Foreclosure, sale and redemption. [Repealed by the Code of Civil Procedure. 1908 (Act of 1908), section 156 and Schedule V.]

Foreclosure and Sale

86 to 90. [Repealed by the -Code of Civil Procedure, 1908 (Act V of 1908), section 156 and Schedule V.]

Redemption

91. Persons who may sue for redemption. Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of, the mortgaged property, namely: –

(a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same;

(b) any surety for the payment of the mortgage-debt or any part thereof; or

(c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property.]

Court Decisions
Whether a co-mortgagor can file suit for redemption without Joining other co-mortgagors or co-Sharers. According to Section 60, right to redeem property is available to mortgagor at any time after principal money has become due. Section 91 notifies persons besides mortgagor, who may sue for redemption, Although Civil Judge did not discuss issue relating-to locus standi to file suit with reference to provisions of Transfer of Property Act, but appellate Court has confirmed these findings in view of statutory provisions of law. A person who is co-mortgagor or had interest in a mortgaged proeprty, can file a suit for. redemption without Joining co-mortgagors or co-Sharers. Respondent being one of co-mortgagors, had a lawful authority to file suit. P.L.J.1995 Qta. 14.
Auction of property mortgaged with Bank—Rights of person who had purchased property for valuable consideration—Property had been placed in the auction pool after the original suit filed by the mortgagee-Bank was decreed by the Trial Court—Persons who claimed to have purchased the property for valuable consideration, made statement that they, were prepared to deposit the amount due under the decree as recoverable by the Bank—Said purchasers of the property under a registered sale deed, having an interest in property were protected under Ss. 91 & 92 of Transfer of Property Act, 1882—Purchaser of property could clear the liability and as ‘subrogagee’ could acquire the rights of the Bank with whom the property was mortgaged, by subrogation and by the operation of law—Purchasers of property would move a separate application before the Trial Court where the suit was pending and Court after hearing the parties would decide the matter as to possession of property. East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663 ref. 2002 Lawvision 60 = 2002 CLD 97

92. Subrogation. Any of the persons referred to in section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.
The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems.
A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated.
Nothing in this section shall be deemed to confer a right of subrogation on any person unless the mortgagor in respect of which the right is claimed has been redeemed in full.

Court Decisions
Auction of property mortgaged with Bank—Rights of person who had purchased property for valuable consideration—Property had been placed in the auction pool after the original suit filed by the mortgagee-Bank was decreed by the Trial Court—Persons who claimed to have purchased the property for valuable consideration, made statement that they, were prepared to deposit the amount due under the decree as recoverable by the Bank—Said purchasers of the property under a registered sale deed, having an interest in property were protected under Ss. 91 & 92 of Transfer of Property Act, 1882—Purchaser of property could clear the liability and as ‘subrogagee’ could acquire the rights of the Bank with whom the property was mortgaged, by subrogation and by the operation of law—Purchasers of property would move a separate application before the Trial Court where the suit was pending and Court after hearing the parties would decide the matter as to possession of property. East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663 ref. 2002 Lawvision 60 = 2002 CLD 97

93. Prohibition of tacking. No mortgagee paying off a prior mortgage, whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his original security; and, except, in the case provided for by section 79, no mortgagee making a subsequent advance to the mortgagor whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his security for such subsequent advance.

94. Rights of mesne mortgagee. Where a property is mortgaged for successive debts to successive mortgagees, a mesne mortgagee has the same rights against mortgagees posterior to himself as he has against the mortgagor].

95. Right of redeeming co-mortgagor to expenses. Where one of several mortgagors redeems the mortgaged property, he shall, in enforcing his right of subrogation under section 92 against his co-mortgagors, be entitled to add to the mortgage-money recoverable from them such proportion of the expenses properly incurred in such redemption as is attributable to their share in the property.

96. Mortgage by deposit of title-deeds. The provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds.

97. Application of proceeds. [Repealed by the Code of Civil Procedure, 1908 (Act V of 1908), S. 156 and Sch V].

Anomalous Mortgages

98. Rights and liabilities of parties to anomalous mortgages. In the case of ^an anomalous mortgage], the rights and liabilities of the parties shall be determined by their contract as evidenced in the mortgage-deed, and so far as such contract does not extend, by local usage.

99. Attachment of mortgaged property. Rep. by the Code of Civil Procedure 1908 (Act V of 1908), S. 156 and Sch. V.

Charges

100. Charges. Where immovable property of one person by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained [which apply to a simple mortgage shall, so far as may be, apply to such charge].
Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust [and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge].

101. No merger in case of subsequent encumbrance. Any mortgagee of, or person having a charge upon, immovable property, or any transferee from such mortgagee or charge-holder, may purchase or otherwise acquire the rights in the property of the mortgagor or owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and any subsequent mortgagee of, or person having charge upon, the same property; and no such subsequent mortgagee or charge-holder shall be entitled to foreclose or sell such property without redeeming the prior mortgage or charge, or otherwise than subject thereto.

Notice and Tender

102. Service or tender on or to agent. Where the person on or to whom any notice or tender is to be served or made under this Chapter does not reside in the district in which the mortgaged property of some part thereof is situate, service or tender on or to an agent holding a general power-of-attorney from such person or otherwise duly authorised to accept such service or tender shall be deemed sufficient.
Where no person or agent on whom such notice should be served can be found or is known] to the. person required to serve the notice, the later person may apply to any Court in which a suit might be brought for redemption of the mortgaged property, and such Court shall direct in what manner such notice shall be served, and any notice served in compliance with such direction shall be deemed sufficient:
Provided that, in the case of a notice required by Section 83, in the case of a deposit, the application shall be made to the Court in which the deposit has been made].
Where no person or agent to whom such tender should be made can be found or is known] to the person desiring to make the tender, the later person may deposit ‘[in any Court in which a suit might be brought for redemption of the mortgaged property] the amount sought to be tendered, and such deposit shall have the effect of a tender of such amount.

103. Notice, etc., to or by person incompetent to contract. Where, under the provisions of this Chapter, a notice is to be served [on or by], or a tender or deposit made or accepted or taken out of Court by, any person incompetent to contract, such notice may be served on or by], or
tender or deposit made, accepted, or taken by the legal curator of the property of such person; but where there is no such curator, and it is requisite or desirable in the interests of such person that a notice should be served or a tender or deposit made under the provisions of this Chapter, application may be made to any Court in which a suit might be brought for the redemption of the mortgage to appoint a guardian ad litem for the purpose of serving or receiving service of such notice, or making or accepting such tender, or making or taking out of Court such deposit, and for the performance of all consequential acts which could or ought to be done by such person if he were competent to contract; and the provisions of [Order XXXII in the First Schedule to the Code of Civil Procedure, 1908 (V of 1908)] shall, so far as may be, apply to such application and to the parties thereto and to the guardian appointed thereunder.

104. Power to make rules. The High Court may, from time to time, make rules consistent with this Act for carrying out, in itself and in the Courts of Civil Judicature subject to its superintendence, the provisions contained in this Chapter.

CHAPTER V
OF LEASES OF IMMOVABLE PROPERTY

105. Lease defined. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, 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, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, service or other thing to be so rendered is called the rent.

Court Decisions
“lease” and licence”. Distinction. Right transferred through lease would amount to right in rem; while right transferred through licence as provided under S. 52, Easements Act, 1882, was only a right in personam, whereby licensor would agree not to interfere with the doing of particular acts on property which was in possession of licensee. P.L.J.1998 Kar. 677 = 1998 CLC 374.
(1) User of the terms like ‘lease’ or ‘licence’, ‘lessor’ or ‘licensor’, ‘rent’ or ‘licence fee’ are not by themselves decisive of the nature of the right created by the document.
(2) It should be found out whether deed confers a right to possess exclusively or merely a right to use the property while possession is retained by owner.
(3) Conduct of the parties before and after the creation of relationship is of relevance for finding out their intention. [Para 9] 2004 Lawvision 126
A licence is a personal right, it is purely a permissible right. There is no right of exclusive possession. Notwithstanding permission, grantor retains control over property.-P.L.J.1999 Kar. 337 = PLD 1999 Kar. 181.
Difference between a ‘lease’ and ‘licence’ is to be determined by finding out the real intention of the parties as decipherable from a complete reading of the document, if any, executed between the parties and the surrounding circumstances. 2004 Lawvision 126
–Easements Act (V of 1882), S. 52–“lease” and licence”–Distinction- Right transferred through lease would amount to right in rem; while right transferred through licence as provided under S. 52, Easements Act, 1882, was only a right in personam, whereby licensor would agree not to interfere with the doing of particular acts on property which was in possession of licensee. PLJ 1998 Karachi 677
–Easements Act, 1872 (V of 1872), Ss. 52 & 64–Specific Relief Act, 1877 (I of 1877), S. 12–“Lease’ and “licence”–Nature and distinction–Licence merely would grant licence/permission to enter upon licensor’s property and do something, which in absence of such grant, would be unlawful–Such grant of permission would amount to a licence as per S. 52, Easements Act, 1882–If such a grant would create an interest in property, same could not be construed as a “licence” and in that connection intention of parties would also have to be considered–Plaintiffs to whom plot in question was allotted had paid substantial amount to defendant Authority–One of terms of allotment was that industrial unit for which plot was allotted, should be completed within specified period, but plaintiffs were unable to do so on account of failure of Authority to provide infrastructure facilities agreed to between parties–Plaintiffs, in circumstances, could not be penalised on that score–Subsequent correspondence between parties also established that right from very beginning, intention of parties was to construct building of permanent nature on plot in question–Transaction between parties, in circumstances, amounted to agreement to “lease” rather than “licence”. PLJ 1999 Karachi 687
Lease and licence – Agreement granted licence for one year – Appellant in possession for 20 years and running a shop without interference from owner – Held, agreement created a lease not licence. [Para ] 2004 Lawvision 126
Lease and licence. Distinction. To find out real nature of relationship between parties, actual wordings and spirit of agreement has to be looked into, rather than terminology used therein, as line of demarcation between a lease and licence is very thin. P.L.J.1999 Kar. 337 = PLD 1999 Kar. 181:
Lease and licence. Salient features. In’ a lease there is transfer of interest in property whereas in a licence this element is expressly excluded.
–Lease and licence–Distinction–To find out real nature of relationship between parties, actual wordings and spirit of agreement has to be looked into, rather than terminology used therein, as line of demarcation between a lease and licence is very thin. PLJ 1999 Karachi 337
–Lease and licence–Salient features.In a lease there is transfer of interest in property whereas in a licence this element is expressly excluded.In a lease exclusive right of possession is granted to the lessee and the lessor totally excludes himself from his right.Right granted to a lessee is assignable and transferable while in a licence it is not so. A licence is a personal right, it is purely a permissible right–There is no right of exclusive possession–Notwithstanding permission, grantor retains control over property. PLJ 1999 Karachi 337
Licence merely would grant licence/permission to enter Upon licensor’s property and do something, which in absence of such grant, would be unlawful. Such grant of permission would amount to a licence as per S. 52, Easements Act, 1882. If such a grant would create an interest in property, same could not be construed as a “licence” and in that connection intention of parties would also have to be considered. Plaintiffs to Whom plot in question was allotted had paid substantial amount to defendant Authority. One of terms of allotment was that industrial unit for which plot was allotted, should be completed within specified period, but plaintiffs were unable to do so on account of failure of Authority to provide infrastructure facilities agreed to between parties. Plaintiffs, in circumstances, could not be penalised on that score. Subsequent correspondence between parties also established that right from very beginning, intention of parties was to construct building of permanent nature on plot in question. Transaction between parties, in circumstances, amounted to agreement to “lease” rather than “licence”. P.L.J.1999 Kar. 687 (DB) = 1999 CLC 1076.
Plaintiff being licensee was authorised to enter upon land and raise construction thereon in accordance with approved plan of Authority and thereafter, he was to be granted lease. -Licensee could have no right or interest in land in question until he could get leasehold rights over such land subject to fulfilment of conditions mentioned in agreement between plaintiff and defendants. Such conditions having not yet been fulfilled by plaintiff in respect of plot in question, suit filed by him’ against rival -claimants (defendants) for possession thereof, was not maintainable in law. Court below having misread evidence on record, their finding based thereon, amounted to illegality, therefore, same were set aside.-P.L.J.1999 Kar. 207 = 1998 CLC 1523.
Plaintiff being licensee was authorised to enter upon land and raise construction thereon in accordance with approved plan of Authority and thereafter, he was to be granted lease—Licensee could have no right or interest in land in question until he could get leasehold rights over such land subject to fulfilment of conditions mentioned in agreement between plaintiff and defendants–Such conditions having not yet been fulfilled by plaintiff in respect of plot in question, suit filed by him against rival claimants (defendants) for possession thereof, was not maintainable in law–Court below having misread evidence on record, their finding based thereon, amounted to illegality, therefore, same were set aside. PLJ 1999 Karachi 207
Respondent succeeded in obtaining lease of land-in question, through auction. Petitioner who was previous lessee continued occupying portion of land in question. Respondent applied for eviction of previous lessee whereupon police assistance was provided in order to get vacated land from petitioner. Validity, Land in question, was admittedly no longer in possession of petitioner and he had himself admitted before concerned Rev. Authorities that he had already vacated suit land in Rabi 1996 and possession thereof had been delivered to new assessee i.e., respondent. ^There being apprehension of breach of peace, police assistance was sought and respondent official,, thereupon, had passed Just and fair order appropriate under the circumstances which calls for no interefence. If at all petitioner had been dispossessed un-lawfully, as alleged by .him, be can file suit for damages. No case, however, as made out to warrant in duligence by High Court in its Constitutional Jurisdiction, which was dismissed in circumstances.-P.L.J.2000 Lah. 1772 Right granted to a lessee is assignable and transferable while in a licence it is not so.

106. Duration of certain leases in absence of written contract or local usage. In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice expiring with the end of a month of tenancy.
Every notice under this section must be in writing signed by or on behalf of the person giving it, and [either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

Court Decisions
Suit for possession and proceedings for ejectment under Ordinance 1959Scope and distinction-Filing of civil suit pending eJectment proceedings not barredSuit for possession is to be filed before Civil Court when either the owner is illegally dispossessed or where he had leased out interest in the property handing over possession and lessee had contravened terms of the lease or where period of licence had expired-Proceedings for eJectment, however, can be filed under the Rent Restriction Ordinance against an urban tenant who had got the building or “rented land” on lease and had either failed to make payment of rent or on any other ground mentioned in the Ordinance-Where plaintiff had filed suit when there was no issue pending before Rent Controller regarding relationship of landlord and tenant, filing of such suit by plaintiff was neither barred by any law nor unjustified on any legal consideration or for lack of Jurisdiction. 1989 C L C 202 Rehmatullah v. Ali Muhammad and others 1983 S C M R 1064 ref.
essee in possession on basis of lease-Nature of possession-­Plaintiff proved that he had not let out open plot to any person other than specified in evidence-Defendants failed to prove by any documentary or other evidence that they had started a particular business on the said plot, with the plaintiff’s consentSuch person cannot claim to be a tenant. 1989 C L C 202 Abdullah Bhai and others v. Ahmad Din P L D 1964 SC 106; Haji Niaz Muhammad v. Municipal Committee, Pesh. and others PLl) 1971 Pesh. 116 and 1980 C L C 1969 ref.
Notice under S. 106, Transfer of Property Act 1882. Suit filed without issuance of such notice. Effect; Issuance of notice underS. 106, Transfer of Property Act, 1882, prior to institution of suit was not mandatory and suit would not become non-maintainable in absence of such notice, in as much as, Institution of suit would constitute sufficient notice to tenant for vacation of premises. Transfer of property Act, 1882, was not in force in Punjab, however, provisions, therefore, as to matters of principles were followed as rules of Justice, equity and good conscience but the same does not apply to provisions which embody technical. P.L.J.2000 Lah. 2261.

107. Leases how made. A lease of immovable property 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 of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:
Provided that the [Provincial Government] may, from time to time, by notification in the [official Gazette], direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.

Court Decisions
Non-registration of document required by law to be registered—Admissibility—Relationship of landlord and tenant—Document required by law to be registered, if was not registered, same was not admissible in evidence, but a rent deed which was required to be registered and was executed by tenant in favour of landlord, could be relied upon to establish upon to establish relationship of landlord and tenant between the parties. PLD 2003 Lah. 204
Lease of Petroleum outlets – Renewal of lease – Special Act will prevail over the general law unless specifically provided otherwise – Doctrine of ‘generalia specialibus non derogant’ will apply – No execution of new lease of renewal under the Transfer of Property Act Section 107 is necessary – The 1976 Act is a special Act having its overriding effect over the general laws by virtue of its Section 11. [Paras 8 and 9] 2004 Lawvision 90
Operation of special law – Lease of petroleum outlets – Renewal of lease – Exclusion of provisions of general law by option to special law – Provisions of T.P. Act have no application in a case where a transfer takes place by operation of law and the parties exclusively opt for the same – There is nothing invalidating the provisions of each other Act. 2004 Lawvision 90
Transfer of Property Act, Section 107 – State – Lease of petroleum outlets – Renewal of lease – Government Company is a state within the meaning of Article 12 of the Constitution and required to be fair – Once a willingness is given as to extension of lease by fiction of law, it will be unfair from backing out of it for want of compliance of provisions of T.P. Act – The consent can be avoided only if it was actuated by any malice or ill-will, unfair or unreasonable. 2004 Lawvision 90
Non-registration of document required by law to be registered–Admissibility—Relationship of landlord and tenant— Document required by law to be registered, if was not registered, same was not admissible in evidence, but a rent deed which was required to be registered and was executed by tenant in favour of landlord, could be relied upon to establish relationship of landlord and tenant between the parties. 2003 Lawvision 108 = PLD 2003 Lahore 204

108. Rights and liabilities of lessor and lessee. In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:-
(A) Rights and Liabilities of the Lessor

(a) the lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended, use of which the former is and the later is not aware, and which the later could not with ordinary care discover;

(b) the lessor is bound, on the lessee’s request, to put him in possession of the property;

(c) the lessor shall be deemed to contract with the lessee that, if the later pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption.
The benefit of such contract shall be annexed to and go with the lessee’s interest as such and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

(d) if during the continuance of the lease any accession is made to the property such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease ;

(e) if by fire, tempest or flood, or violence of an army or of a mob or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void:
Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision:

(f) if the. lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent or otherwise recover it from the lessor ;

(g) if the lessor neglects to make any payment which he Is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor ;

(h) the lessee may ^even after the determination of the lease] remove, at any time [whilst he is in possession of the property leased but not afterwards] all things which he has attached to the earth: provided he leaves the property in the state in which he received it;

(i) when a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free ingress and egress to gather and carry them ;

(j) the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease;
noting in this clause shall be deemed to authorize a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee: ‘

(k) the lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take of which the lessee is, and the lessor is not aware, and which materially increases the value of such interest;

(l) the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf;

(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect, in such condition, and when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound, to make it good within three months after such notice has been given or left;

(n) if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor’s rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor;

(o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he-must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell ‘[or sell] timber, pull down or damage buildings ^belonging to the lessor, or] work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto;

(p) he must not, without the lessor’s consent, erect on the property any permanent structure, except for agricultural purposes; and

(q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property.

Court Decisions
Damages: Suit decreed but decree set aside in appeal. Challenge to. Clauses and (m) of Section 108 of Act are to be read together in order to understand implications thereof Appellant was plaintiff in suit and burden of proof of negligence on part of respondent/ defendant was on him. Appellant failed to prove his allegation that respondent ha’d maliciously caused fire for causing loss to mill. By virtue of’clause of “Section 108, in absence of an express contrary provision in tenancy agreement, a lessee is not liable for damages on account of fire unless fire had taken place on account of his negligence. A plaintiff is to succeed on strength of his own case and not because of weakness of defendant’s “plea. Maxim “res ipsa locuitur is not applicable to this case. Fire had taken place at night when respondent was- not present at premises. It cannot be urged by appellant that respondent had exclusive/special knowledge of facts which held caused fire nor he has been able to prove negligence on part of respondent. P.L.J.1995 SC 601 = PLD 1995 SC 351.

109. Rights of lessor’s transferee. If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it;
but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears or rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.

110. Exclusion of day on which term commences. Where the time limited by a lease of immovable property is expressed commencing from a particular day in computing that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease.
Duration of lease for year. Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences.
Option to determine lease. Where the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee, and not the lessor, shall have such option.

111. Determination of lease. A lease of immovable property determines:-

(a) by efflux of the time limited thereby;

(b) where such time is limited conditionally on the happening of some event-by the happening of such event;

(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event-by the happening of such event;

(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;

(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease, to the lessor by mutual agreement between them;

(f) by implied surrender;

(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; [or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in [any of these cases] the lessor or his transferee [gives notice in writing to the lessee of] his intention to determine the lease; and

(h) on the expiration of a notice to determine the. lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon.

112. Waiver of forfeiture. A forfeiture under section 111, clause (g), is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on -the part of the lessor showing an intention to treat the lease as subsisting:
Provided that the lessor is aware that the forfeiture has been incurred:
Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.

113. Waiver of notice to quit. A notice given under section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
Illustrations
(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.
(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.

114. Relief against forfeiture for non-payment of rent. Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders the lessor the rent in arrear, together with interest thereon his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.

Court Decisions
Lease and licences for land and buildings—Forfeiture and cancellation of lease on default in payment of annual rent by the lessee to the lessor—Where a forfeiture has occurred due to non-payment of rent the tenant has second chance to pay the rent as well as interest under S. 114, Transfer of Property Act, 1882 which right has been denied in the present case—Covenant of forfeiture for non-payment of rent is regarded as merely a clause for securing payment of rent, and unless the tenant has by this conduct disentitled himself to equitable relief, the Courts can grant relief against forfeiture of tenancy on the tenant on the tenant paying the rent due, interest thereon and costs of the suits. PLD 2003 Kar. 83
Provision not applicable to case founded need of personal of lessor. (Paras. 11) P L J 1980 Lahore 221

114-A. Relief against forfeiture in certain other cases. Where a lease of immovable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing:-

(a) specifying the particular breach complained of; and

(b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and (he lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy.
Nothing in this section shall apply to an express condition against the assigning,
underletting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of non-payment of rent.

115. Effect of surrender and forfeiture on under-leases. The surrender, express or implied, of a lease of immovable property does not prejudice an under lease of the property or any part thereof previously granted by the lessee, on terms and conditions substantially the same (except as regards the amount of rent) as those of the original lease; but unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on, the under-lessee shall be respectively payable to and enforceable by the lessor.
The forfeiture of such a lease annuls all such under-leases except where such forfeiture has been procured by the lessor in fraud of the under-lessees, or relief against the forfeiture is granted under section 114.

116 Effect of holding over. If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.
Illustrations

(a) A lets a house to B for five years. B underlets the house to C at a monthly rent of Rs. 100. The five years expire, but C continues in possession of the house and pays the rent to A. Cs lease is renewed from month to month.

(b) A lets a farm to B for the life of C. C dies, but B continue in possession with A’s assent. B’s lease is renewed from year to year.

Court Decisions
Holding over, effect of—Tenant occupying premises without consent of landlord is a tenant by sufferance—Status of such tenant is not better than a trespasser and can be ejected at any time. PLD 2003 Lah. 389

117. Exemption of leases for agricultural purposes. None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the [Provincial Government] may, by Notification published in the [official Gazette], declare all or any of such provisions to be so applicable [in the case of all or any of such leases], together with or subject to, those of the local law, if any, for the time being in force;
Such notification shall not take effect until the expiry of six months from the date of its publication. .

CHAPTER VI
OF EXCHANGES

118. Exchange defined. When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an ‘exchange’..
A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

Court Decisions
Exchange. Whether mere absence of delivery of possession can form basis for holding transaction of exchange as illegal. All facts and circumstances, including evidence produced by parties shows that parties entered into an agreement of exchange of their ownership with each other. This is under lying presumption in impugned Judgment as well. Appellate Court has not held that parties did not enter into any agreement of exchange with each other. In these circumstances, the absence of transfer of possession is not relevant and a valid exchange can not be cancelled, set aside or declared to be illegal merely on the ground that party seeking setting ayde of exchange was not delivered possession of land given to it under exchange.-P.L.J. 2000 Lah. 1257.
Board of Rev. approved exchange -of land between Government and petitioners. Petitioners were, thus, entitled to claim implementation of said exchange. P.L.J. 1999 Lah. 548 = 1999 CLC 500 = NLR 1999 Civil 611.
Mutual exchange of two acres of, land each by predecessor of petitioners and respondent. Respondent was found to be owner of one Acre of land out of land given by him in exchange during subsequent consolidation proceedings. Petitioner’s thereafter, filed suit claiming specified amount as price of land which they had lost being not owned by respondent. Petitioner’s suit was decreed in terms of their prayer. Finding of Trial Court was however, reversed in Appeal.. Validity. Appellate Court without touching merit of findings proceeded to allowed appeal on supposition that suit for specific performance should have been brought. Appellate Court having maintained finding of trial Court that respondent owned only one acre of land, and petitioner’s having lost portion of land which they were entitled to receive in exchange, trial Court had competently exercised its Jurisdiction and granted relief to petitioners to which they were entitled in equity. Provision of S. 119, Transfer of Property Act 1882, confers right on party to exchange who has been by reason of any defect in title of any party deprived of the thing received by him in exchange, to claim compensation for the loss caused thereby or at his option for the return of thing transferred of same was still in possession of such other party or his legal representatives or transferee from him without consideration. Judgment and decree of Appellate Court whereby petitioner’s suit was dismissed was set aside while that of trial Court decreeing petitioners suit was restored in circumstances. P.L.J.1999 Lah. 1747 = NLR 1999 Civil 626.
Exchange of land claimed to have been effected fraudulently and by misrepresentation Onus to prove ¬Plaintiff made a statement on oath in Court that exchange in question had been effected through fraud and misrepresentation Onus, after such statement, would shift to defendant to prove that document of exchange was executed voluntarily and of free will Defendant, having failed to prove such fact, factum of exchange of land in question, was not proved in circumstances. 1995 M L D 1714
Mutual exchange of two acres of land each by predecessor of petitioners and respondent–Respondent was found to be owner of one Acre of land out of land given by him in exchange during subsequent consolidation proceedings–Petitioner’s thereafter, filed suit claiming specified amount as price of land which they had lost being not owned by respondent–Petitioner’s suit was decreed in terms of their prayer–Finding of Trial Court was however, reversed in Appeal–Validity–Appellate Court without touching merit of findings proceeded to allowed appeal on supposition that suit for specific performance should have been brought–Appellate Court having maintained finding of trial Court that respondent owned only one acre of land, and petitioner’s having lost portion of land which they were entitled to receive in exchange, trial Court had competently exercised its jurisdiction and granted relief to petitioners to which they were entitled in equity–Provision of S. 119, Transfer of Property Act 1882, confers right on party to exchange hwo has been by reason of any defect in title of any party deprived of the thing received by him in exchange, to claim compensation for the loss caused thereby or at his option for the return of thing transferred of same was still in possession of such other party or his legal representatives or transferee from him without consideration–Judgment and decree of Appellate Court whereby petitioner’s suit was dismissed was set aside while that of trial Court decreeing petitioners suit was restored in circumstances. PLJ 1999 Lahore 1747

119. Right of party deprived of thing received in exchange. If any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, them, unless a contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration.

Court Decisions
Appellate Court without touching merit of findings proceeded to allowed appeal on supposition that suit for specific performance should have been brought. Appellate Court having maintained finding of trial Court that respondent owned only one acre of land, and petitioner’s having lost portion of land which they were entitled to receive in exchange, trial Court had competently exercised its Jurisdiction and granted relief to petitioners to which they were entitled in equity. Provision of S. 119, Transfer of Property Act 1882, confers right on party to exchange who has been by reason of any defect in title of any party deprived of the thing received by him in exchange, to claim compensation for the loss caused thereby or at his option for the return of thing transferred of same was still in possession of such other party or his legal representatives or transferee from him without consideration. Judgment and decree of Appellate Court whereby petitioner’s suit was dismissed was set aside while that of trial Court decreeing petitioners suit was restored in circumstances. P.L.J.1999 Lah. 1747 = NLR 1999 Civil 626.
–Exchange of land–Respondent No.1 performing his part but appellant could not do so–Suit for possession by respondent decreed and decree confirmed in appeal–Challenge to–Courts below found that it was a case of failing exchange where one party had performed his part and other did not–Principles of Section 119 of Transfer of Property Act are applicable to this case–Held: Courts below were right in decreeing possession of land in dispute to plaintiff–Held further: Second appeal having no substance is liable to be dismissed. PLJ 1991 Lahore 500
–Mutual exchange of two acres of land each by predecessor of petitioners and respondent–Respondent was found to be owner of one Acre of land out of land given by him in exchange during subsequent consolidation proceedings–Petitioner’s thereafter, filed suit claiming specified amount as price of land which they had lost being not owned by respondent–Petitioner’s suit was decreed in terms of their prayer–Finding of Trial Court was however, reversed in Appeal–Validity–Appellate Court without touching merit of findings proceeded to allowed appeal on supposition that suit for specific performance should have been brought–Appellate Court having maintained finding of trial Court that respondent owned only one acre of land, and petitioner’s having lost portion of land which they were entitled to receive in exchange, trial Court had competently exercised its jurisdiction and granted relief to petitioners to which they were entitled in equity–Provision of S. 119, Transfer of Property Act 1882, confers right on party to exchange hwo has been by reason of any defect in title of any party deprived of the thing received by him in exchange, to claim compensation for the loss caused thereby or at his option for the return of thing transferred of same was still in possession of such other party or his legal representatives or transferee from him without consideration–Judgment and decree of Appellate Court whereby petitioner’s suit was dismissed was set aside while that of trial Court decreeing petitioners suit was restored in circumstances. PLJ 1999 Lahore 1747

120. Rights and liabilities of parties. Save as otherwise provided in this Chapter, each party has the rights and is subject to the liabilities of a seller as to that which he gives, and has the rights and is subject to the liabilities of a buyer as to that which he takes.

121. Exchange of money. On an exchange of money, each party thereby warrants the genuineness of the money given by, him.

122. ‘Gift’ defined. ‘Gift’ is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made. Such acceptance must be made during the lifetime of the donor and while he s still capable of giving.
If the donee dies before acceptance, the gift is void.

Court Decisions
122 read with West Pakistan Land Revenue Act, (XVII of 1967),Section 163–Revisional jurisdiction of High Court–Donee of land in dispute, sold away land after about 10 years from date of attestation of gift entry in Revenue Record–Revenue Authorities, after 10 years of sale of land, on their own, reviewed gift and sale mutation on round that original owner/donor of land had transferred area in excess of his ownership by gift mutation and reverted land covered by mutations of gift and sale to original owner/donor–Suit against said reversion was concurrently decreed by two Courts below, but High Court in exercise of revisional jurisdiction reversed concurrent findings and decrees of Courts below and dismissed suit–Held: Mutations of gift and sale were cancelled by Revenue Authorities in review and land was reverted to original owner/donor on round that donor had gifted land in excess of his entitlement, but same donor after reversion of land to him, again sold same to different vendees, and Revenue Authorities did not object to such sales–Entire exercise for review by Revenue Authorities, thus, was motivated by ulterior motive–Correctness or otherwise of gift mutation was a matter between donor and donee and donee having not challenged gift mutation, High Court was not legally justified in doubting genuineness of gift mutation. PLJ 1999 SC 1750
Donee of land in dispute, sold away land after about 10 years from date of attestation of gift entry in Rev. Record. Rev. Authorities, after 10 years of sale of land, on their own, reviewed gift and sale mutation on ground that original owner/donor of land had transferred area in excess of his ownership by gift mutation and reverted land covered by mutations of gift and sale to original owner/donor. Suit against said reversion was concurrently decreed by two Courts below, but High Court in exercise of revisional Jurisdiction reversed concurrent findings and decrees of Courts below and dismissed suit. Mutations of gift and sale were cancelled by Rev. Authorities in review and land was reverted to original owner/ donor on ground that donor had gifted land in excess of his entitlement, but same donor after reversion of land to him, again sold same to different vendees, and Rev. Authorities did not object to such sales. Entire exercise for review by Rev. Authorities, thus, was motivated by ulterior motive. Correctness or otherwise of gift mutation was a matter between donor and donee and donee having not challenged gift mutation, High Court was not legally Justified in doubting genuineness of gift mutation. P.L.J.1999 SC 175 – 1999 SCMR 399 = NLR 1999 Rev. 67.
Gift, validity of—Gift in respect of property made by husband in favour of his wife was objected to contending that even though the gift was made by husband to his wife, delivery of possession was to be proved and in absence of any such proof gift could not be held to be valid-Validity—Where the property had been gifted away by a husband to his wife, proof of delivery of possession to donee would not be necessary particularly when the control and management of the property was in the hands of the donor husband and possession with the donor after the gift would be deemed to be on behalf of the donee—Rationale behind delivery of possession, was to ensure that property forming subject-matter of the gift had been transferred and that the donor had divested himself of that once for all—Donor by getting the gift-deed registered and subsequently by getting the mutation attested on the basis of the registered deed, had left nothing unturned in divesting himself of the subject-matter of the gift—Gift would not become invalid for want of delivery of possession where donee was a female because possession with the donor after gift would be deemed to be on behalf of the donee—Change of possession would be complete if a recital was made in the gift-deed about the same.
Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others PLD 1991 SC 466; Khuresheed ul Islam v. Mrs. Qamar Jehan 1989 CLJ 1467; Mst. Waziran. v. Kalu etc. 1995 CLC 1532; K.S. Agha Mir Ahmad Shah and others v. K.S. Agha Mir Yaqub Shah and others PLD 1957 (W.P.) Kar, 258; Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Ashiq Hussain and another v. Ashiq Ali 1972 SCMR 50; Ghulam Hassan and others v. Sarfaraz Khan and others PLD 1956 SC (Pak.) 309 and Mst. Manzoor Mai v. Abdul Aziz 1992 CLC 235 ref. 2001 Lawvision 9 = 2001 CLC 1013
read with West Pakistan Land Revenue Act, (XVII of 1967),Section 163–Revisional jurisdiction of High Court–Donee of land in dispute, sold away land after about 10 years from date of attestation of gift entry in Revenue Record–Revenue Authorities, after 10 years of sale of land, on their own, reviewed gift and sale mutation on round that riginal owner/donor of land had transferred area in excess of his ownership by gift mutation and reverted land covered by mutations of gift and sale to original owner/donor–Suit against said reversion was concurrently decreed by two Courts below, but High Court in exercise of revisional jurisdiction reversed concurrent findings and decrees of Courts below and dismissed suit–Held: Mutations of gift and sale were cancelled by Revenue Authorities in review and land was reverted to original owner/donor on round that donor had gifted land in excess of his entitlement, but same donor after reversion of land to him, again sold same to different vendees, and Revenue Authorities did not object to such sales–Entire exercise for review by Revenue Authorities, thus, was motivated by ulterior motive–Correctness or otherwise of gift mutation was a matter between donor and donee and donee having not challenged gift mutation, High Court was not legally justified in doubting genuineness of gift mutation PLJ 1999 SC 1750
Suit for declaration—Gift—Suit-land being mortgaged, constructive possession was sufficient for satisfaction of necessary conditions required for a valid gift—Donor and donee also being owners in same Khewat, mortgagee had no legal right to challenge the gift deed—Contention that gift deed was not complete as possession was not delivered to the donee, was repelled because taking possession of subject-matter of gift by donee either actually or constructively would complete the gift. Talib Hussain v. Babu Muhammad Shafi and 2 others PLD 1987 Lah. 4 ref. 2002 Lawvision 10 = 2002 CLC 1121
Suit for setting aside gift deed Attested copy of mutation, admission in evidence Attested copy of the mutation in respect of the suit land, relied upon by the plaintiff having been admitted and read into evidence both by the Trial Court and Appellate Court without any objection by the defendants, same could not be excluded from evidence merely because it was not exhibited Non exhibiting the document which otherwise was admissible in evidence was merely an irregularity and would not render such a document as inadmissible in evidence. 2001CLC1115
Suit-land being mortgaged, constructive possession was sufficient for satisfaction of necessary conditions required for a valid gift – Donor and donee also being owners in same Khewat, mortgagee had no legal right to challenge the gift deed – Contention that gift deed was not complete as possession was not delivered to the donee, was repelled because taking possession of subject-matter of gift by donee either actually or constructively would complete the gift. 2002 CLC 1121
Talib Hussain v. Babu Muhammad Shafi and 2 others PLD 1987 Lah.4 ref.
Tamleek/gift—Tamleek was a type of gift and it could be proved through cogent and convincing evidence independently of mutation and jamabandi entries and onus would lay heavily upon the beneficiary of the same. 2004 C L C 203

123. Transfer how effected. For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.

Court Decisions
Tamleek was a type of gift and it could be proved through cogent and convincing evidence independently of mutation and jamabandi entries and onus would lay heavily upon the beneficiary of the same. 2004 C L C 203
Oral gift inclusive of acceptance and delivery of possession to sons (Petitioners), Application for mutations pursuant to gift in respondent’s record. Rejection of. A person may dispose of whole any part of his property by way of gift in his life time and for such purpose, formality of registration under Registration Act, 1908 is not a pre-requisite, but” pre-requisites of a valid gift are, declaration by donor, acceptance by donee and delivery of possession of corpus. A Muslim donor, however, may record a formal declaration orally or subscribe to a memorandum in writing. Neither any local authority nor Government itself can disregard a transaction such as a gift etc., which satisfies requirements of Muslim Personal Law. Gift made by deceased without mutation in his name, cannot be called imperfect. Deceased had clear cut rights in property. He could transfer those rights subject to necessary formalities being complied with and that is precisely what he did. P.L.J.1998 Kar. 322 = PLD 1998 Kar. 251.
Suit-land being mortgaged, constructive possession was sufficient for satisfaction of necessary conditions required for a valid gift – Donor and donee also being owners in same Khewat, mortgagee had no legal right to challenge the gift deed – Contention that gift deed was not complete as possession was not delivered to the donee, was repelled because taking possession of subject-matter of gift by donee either actually or constructively would complete the gift. 2002 CLC 1121
Talib Hussain v. Babu Muhammad Shafi and 2 others PLD 1987 Lah.4 ref.
Ss. .122 &; 123 Qanun-e-Shahadat, 1984, Arts.72, 73, 74 & 76- Suit for setting aside gift deed Attested copy of mutation, admission in evidence Attested copy of the mutation in respect of the suit land, relied upon by the plaintiff having been admitted and read into evidence both by the Trial Court and Appellate Court without any objection by the defendants, same could not be excluded from evidence merely because it was not exhibited Non exhibiting the document which otherwise was admissible in evidence was merely an irregularity and would not render such a document as inadmissible in evidence. 2001CLC1115
Mian Tajammal Hussain v.. State Life Insurance Corporation of Pakistan 1993 SCMR 1137; Pribhadinomal Methumal v. Mt. Chuti AIR 1933 Sindh 379 and Mahmood Akhtar Kiani v. Azad Jammu and Kashmir Government 1998 SCR 310 ref.
Gift made under Islamic Law—Registration—Such gifts are expressly excluded from the operation of Transfer of Property Act, 1882—No writing of gift under Islamic Law is essential and the provisions of S.123 of Transfer of Property Act, 1882, do not apply to such gifts. Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCMR 154 ref. 2003 Lawvision 177 = 2003 CLD 646
Suit for declaration—Gift—Suit-land being mortgaged, constructive possession was sufficient for satisfaction of necessary conditions required for a valid gift—Donor and donee also being owners in same Khewat, mortgagee had no legal right to challenge the gift deed—Contention that gift deed was not complete as possession was not delivered to the donee, was repelled because taking possession of subject-matter of gift by donee either actually or constructively would complete the gift. Talib Hussain v. Babu Muhammad Shafi and 2 others PLD 1987 Lah. 4 ref. 2002 Lawvision 10 = 2002 CLC 1121
Constitution of Pakistan, 1972 Art. 199 read with Arts 2-A and 31–Purchase of property–Application for mutation–Oral gift inclusive of acceptance and delivery of possession to sons (Petitioners)–Application for mutations pursuant to gift in respondent’s record–Rejection of–Challenge to–A person may dispose of whole any part of his property by way of gift in his life time and for such purpose, formality of registration under registration Act, 1908 is not a pre-requisite, but pre-requisites of a valid gift are, declaration by donor, acceptance by donee and delivery of possession of corpus–A Muslim donor, however, may record a formal declaration orally or subscribe to a memorandum in writing–Neither any local authority nor Government itself can disregard a transaction such as a gift etc., which satisfies requirements of Muslim Personal Law–Gift made by deceased without mutation in his name, cannot be called imperfect–Deceased had clear cut rights in property–He could transfer those rights subject to necessary formalities being complied with and that is precisely what he did–Petition allowed–Respondent’s refusal to mutation held illegal. PLJ 1998 Karachi 322

124. Gift of existing and future property. A gift comprising both existing and future property is void as to the latter.

125. Gift to several of whom one does not accept. A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted.

126. When gift may be suspended or revoked. The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked;
but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.
Illustrations

(a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field incase B and his descendants dies before A. B dies without descendants in A’s lifetime. A may take back the field.

(b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds good as to Rs. 90, 000, but is void as to Rs. 10,000, which continue to belong to A.

127. Onerous gift. Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not, burden by an obligation, die donee can take nothing by the gift unless he accepts it fully.
Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the donee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous.
Onerous gift to disqualified person. A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.
Illustrations

(a) A has shares in, X, a properous joint stock company, and also shares in Y A joint stock company, in difficulties. Heavy calls are expected in respect of the shares in Y. A gives B all his shares in joint stock companies. B refuses to accept the shares in Y. He cannot take the shares in X.

(b) A having a lease for term of years of a house at a rent which he and his representatives are bound to pay during the term, and which is more than the house can be let for, gives to B the lease, and also, as a separate and independent transaction a sum of money. B refuses to accept the lease. He does not by this refusal forfeit the money.
128. Universal donee. Subject to the provisions of section 127, where a gift consists of the donor’s whole property, the donee is personally liable for all the debts due by [and liabilities of] the donor at the time of the gift to the extent of the property comprised therein.

129. Saving of donations mortis casua and Muslim law. Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of [Muslim] law.

Court Decisions
Constitution of Pakistan, 1972 Art. 199 read with Arts 2-A and 31–Purchase of property–Application for mutation–Oral gift inclusive of acceptance and delivery of possession to sons (Petitioners)–Application for mutations pursuant to gift in respondent’s record–Rejection of–Challenge to–A person may dispose of whole any part of his property by way of gift in his life time and for such purpose, formality of registration under registration Act, 1908 is not a pre-requisite, but pre-requisites of a valid gift are, declaration by donor, acceptance by donee and delivery of possession of corpus–A Muslim donor, however, may record a formal declaration orally or subscribe to a memorandum in writing–Neither any local authority nor Government itself can disregard a transaction such as a gift etc., which satisfies requirements of Muslim Personal Law–Gift made by deceased without mutation in his name, cannot be called imperfect–Deceased had clear cut rights in property–He could transfer those rights subject to necessary formalities being complied with and that is precisely what he did–Petition allowed–Respondent’s refusal to mutation held illegal. PLJ 1998 Karachi 322
Gift made under Islamic Law—Registration—Such gifts are expressly excluded from the operation of Transfer of Property Act, 1882—No writing of gift under Islamic Law is essential and the provisions of S.123 of Transfer of Property Act, 1882, do not apply to such gifts. Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977 SCMR 154 ref. 2003 Lawvision 177 = 2003 CLD 646
–Gift–Registration of–A gift of immovable property made by a Muslim by way of dower or additional dower is not required to be registered in view of provisions of Section 129 of Transfer of Property Act. PLJ 1997 Lahore 1056
Muhammadan Law–Gift–Validity–Gift by Muslim becomes complete, if declaration is made, acceptance of gift is expressly or impliedly made by or on behalf of donee and delivery of possession of subject matter by donor to donee takes place–Once three conditions are fulfilled, neither any writing would be required to complete gift nor any such document acknowledging transfer of property by gift would require registration–Held : Gifts made by Muslims in favour of Muslims under Muhammadan Law are expressly excluded from Purview of Chapter VII of Act by virtue of S. 129 Transfer of Property Act–Held further : To complete gift, declaration, acceptance, transfer of possession are required–Neither writing nor registration is mandatory PLJ 1998 Lahore 555
Muharnmadan Law. Gift. Validity. Gift by Muslim becomes complete, if declaration is made, acceptance of gift is expressly or impliedly made by or on behalf of donee and delivery of possession •of subject matter by donor fco donee takes place. Once three conditions are fulfilled, neither any writing would be required to complete gift nor any such document acknowledging transfer -of property by gift would require registration. Gifts made by Muslims in favour of Muslims under Muhammadan Law are expressly excluded from Purview of Chapter VII of Act by virtue of S. 129 Transfer of Property Act. To complete gift, declaration, acceptance, transfer of possession are required.. Neither writing nor registration is mandatory. P.L.J.1998 Lah. 555 = 1998 CLC 796.
Oral gift inclusive of acceptance and delivery of possession to sons (Petitioners), Application for mutations pursuant to gift in respondent’s record. Rejection of. A person may dispose of whole any part of his property by way of gift in his life time and for such purpose, formality of registration under Registration Act, 1908 is not a pre-requisite, but” pre-requisites of a valid gift are, declaration by donor, acceptance by donee and delivery of possession of corpus. A Muslim donor, however, may record a formal declaration orally or subscribe to a memorandum in writing. Neither any local authority nor Government itself can disregard a transaction such as a gift etc., which satisfies requirements of Muslim Personal Law. Gift made by deceased without mutation in his name, cannot be called imperfect. Deceased had clear cut rights in property. He could transfer those rights subject to necessary formalities being complied with and that is precisely what he did. P.L.J.1998 Kar. 322 = PLD 1998 Kar. 251.

CHAPTER VIII
OF TRANSFERS OF ACTIONABLE CLAIMS

130. Transfer of actionable claim. (1) The transfer of an actionable claim whether with or without consideration shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorized agent, shall be complete and effectual upon the execution of such instrument, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not:
Provided that every dealing with the debt or other actionable claim by the debtor or other person from or against whom the transferor would, but for such instrument of transfer as aforesaid, have been entitled to recover or enforce such debt or other actionable claim, shall save where the debtor or other, person is a party to the transfer or has received express notice thereof as hereinafter provided be valid as against such transfer.

(2) The transferee of an actionable claim may, upon the execution of such instrument of transfer as aforesaid, sue or institute proceedings for the same in his own name without obtaining the transferor’s consent to such suit or proceedings and without making him a party thereto.
Exception. IV of 1938. Nothing in this section applies to the transfer of a marine or fire policy of insurance [or affects the provisions of section 38 of the Insurance Act, 1938].
Illustrations

(i) A owes money to B, who transfers the debt to C. B then demands the debt from A, who, not having received notice of the transfer, as prescribed in section 131, pays B. The payment is valid, and C cannot sue A for the debt.
(ii) A effects a policy on his own life with an Insurance Company and assigns it to a Bank for securing the payment of an existing or future debt. If A dies, the Bank is entitled to receive the amount of the policy and to sue on it without the concurrence of A’s executor, subject to the proviso in sub-section (1) of section 130 and to the provisions of section 132.

130A. Transfer of policy of marine insurance. (1) A policy of marine insurance may be transferred by assignment unless it contains terms expressly prohibiting assignment, and may be assigned either before or after loss.

(2) A policy of marine insurance may be assigned by endorsement thereon or in any other customary manner.

(3) Where the issued person has parted with or lost his interest in the subject-matter insured, and has not, before or at the time of so doing, expressly or impliedly agreed to assign the policy and subsequent assignment of the policy is inoperative.
Provided that nothing in this sub-section affects the assignment of the policy after loss.

(4) Nothing in clause (e) of section 6 shall affect the provisions of this section.

131. Notice to be in writing, signed. Every notice of transfer of an actionable claim shall be ‘i writing, signed by the transferor or his agent duly authorized in this behalf, or in case the transferor refuses to sign, by the transferee or his agent, and shall state the name, and address of the transferee.

132. Liability of transferee of actionable claim. The transferee of an actionable claim shall take it subject to all the liabilities and equities to which the transferor was subject in respect thereof at the date of the transfer.
Illustrations

(i) A transfers to C a debt due to him by B, A being then indebted to B. C sues for the debt by B to -y In such suit B is entitled to set off the debt due by A to him; although C was unaware of it at the date of such transfer.

(ii) A executed a bond in favour of B under circumstances entitling the former to have it delivered up and cancelled. B assigns the bond to C for value and without notice of such circumstances. C cannot enforce the bond against A.

133. Warranty of solvency of debtor. Where the transferor of a debt warrants the solvency of the debtor, the warranty, in the absence of a contract to the contrary, applies only to his solvency at the time of the transfer, and is limited, where the transfer is made for consideration, to the amount or value of such consideration.

134. Mortgaged debt. Where a debt is transferred for the purpose of securing an existing or future debt, the debt so transferred, if received by the transferor or recovered by the transferee is applicable, first, in payment of the costs of such recovery: secondly, in or towards satisfaction of the amount for the time being secured by the transfer; and the residue, if any, belongs to the transferor or other person entitled to receive the same.

135. Assignment of rights under policy of insurance. Every assignee, by endorsement or other writing, of the policy of insurance against fire, in whom the property in the subject insured shall be absolutely vested at the date of the assignment, shall have transferred and vested in him all rights of suit as if the contract contained in the policy had been made with himself.

135-A. Assignment of rights under policy of marine insurance. (1) Where a policy of marine insurance has been assigned so as to pass the beneficial interest therein, the assignee of the policy is entitled to sue thereon in his own name; and the defendant is entitled to make any defence arising out of contract which he would have been entitled to make if the action had been brought in the name of the person by or on behalf of whom the policy was effected.

(2) Where the insurer pays for a total loss, either of the whole, or in the case of goods, of any apportionable part, of the subject-matter insured, he thereupon becomes entitled to take over the interest of the insured person in whatever may remain of the subject-matter so paid for, and he is hereby subrogated to all the rights and remedies of the insured person in and in respect of that subject-matter as from the time of the casualty causing the loss.

(3) Where the insurer pays for a partial loss, he acquires no title to the subject-matter insured, or such part of it as may remain, but’ he is thereupon subrogated to all rights and remedies of the insured person as from the time of the casualty causing the loss, in so far as the insured person, has been indemnified by such payment for the loss.

(4) Nothing in clause (e) of section 6 shall affect the provisions of this section.

Court Decisions
Suit for recovery filed by assignee–Whether assignee has right to sue instead of consignee–Question of–Goods were insured by consignee with plaintiff/assignee who are insurers–Section 135-A is very clear and authorises assignment of rights. Assignee thus, becomes entitled to sue in his own name. PLJ 1997 Karachi 14

136. Incapacity of officers connected with Courts of Justice. No Judge, legal practitioner or officer connected with any Court of Justice shall buy or traffic in, or stipulate for, or agree to receive any share of, or interest in, any actionable claim, and no Court of Justice shall enforce, at his instance, or at the instance of any person claiming by or through him, any actionable claim, so dealt with by him as aforesaid.

137. Saving of negotiable instruments, etc. Nothing in the foregoing sections of the Chapter applies to stocks, shares or debentures, or to instruments which are for the time being by law or custom, negotiable, or to any mercantile document of title to goods.
Explanation. The expression ‘mercantile document of title of goods includes a bill of lading, dock-warrant, ware-house-keeper’s certificate, railway-receipt, warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented.