THE TRANSFER OF PROPERTY ACT, 1882

Section 3
Immovable Property: (Section 3 + the General Clauses Act)
Immovable property includes
Land,
Benefits arising out of land and
Things attached to the earth
except
Standing timber,
Growing crops and
Grass
things attached to the earth :
Rooted in the earth (e.g. trees)
Imbedded in the earth (e.g. buildings)
Attached to what is so imbedded for the permanent
beneficial enjoyment (e.g. doors and windows of a
building but not fans and lights)
actionable claim:
Unsecured Debt (i.e. NOT SECURED BY PLEDGE OR
MORTGAGE)
Beneficial interest in movable property not in the
possession of the claimant
notice:
Actual Notice: actual knowledge of the fact
Constructive Notice (i.e. legal presumption of notice)
Willful abstention from an inquiry
Gross negligence
Registration (where registration is required)
Actual possession
Notice to an agent
Section 5: transfer of property
Conveying of property by a living person to a living person

Section 6: what can be transferred

The following things can NOT be transferred
The chance of succession by an heir (Spes Successionis)
The chance of legacy by a relation
Mere possibility of like nature (e.g. possibility of winning
a prize)
Spes Successionis is excluded from the category of transferable
property because if these transfers were allowed speculators would
purchase the chance of succession from possible heirs and there
would be increase in speculative litigation.
Contingent interest v. Spes Successionis
Contingent interest is based not upon the mere possibility of future
acquisition but upon the present existence of an incomplete title.
Chance of legacy
The chance of a relation receiving a legacy is a possibility even
more remote than the chance of succession of an heir, and
therefore, is not transferable.
Vested Interest v Contingent Interest
Vested Interest
Owners title
Already PERFECT
& ABSOLUTE
Coming into effect FORTWITH
Death of the
Right is NOT
transferee
DEFEATED

Contingent Interest
Yet IMPERFECT &
CONDITIONAL
DEPENDANT
Right is DEFEATED

ACCUMULATION s.17
17. Direction for accumulation [NOT EXCEEDING THE
LIFE TIME of the transferor or 18 YEARS (WHICH ONE
IS LONGER) this rule is not applicable for PAYMENT OF
DEBT, MAINTENANCE OF CHILDREN OR THE
PROPERTY]
Difference between MORTGAGE & CHARGE:
Mortgage is a TRANSFER of an INTEREST in the property.

Charge: giving the right to payment (i.e. getting sth) out of sth
WITHOUT TRANSFERRING (actual or constructive) the
property.
Illustration:
Mr X gives his house as security for the satisfaction of a debt
WITHOUT TRANSFERRING any interest in the property. This is
a CHARGE.
Mr X gives his house as security for the satisfaction of a debt
and TRANSFERS THE RIGHT TO GET RENT OF THE
HOUSE. This is a MORTGAGE.
MARSHALLING: fixing the order of creditors according to their
priority

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 entitled to have the mortgage debt satisfied out of
the property or properties not sold to him, BUT IF THAT IS
NOT SUFFICIENT HIS PROPERTY WILL ALSO BE
LIABLE]
CLOG ON REDEMPTION: (LAST PARA OF SECTION 60)
A mortgage is indivisible and therefore its integrity can not be
broken.
So, where there are several mortgagors none of them can redeem
his own share alone, but any of them can redeem the entire
mortgage.
CLOG ON FORECLOSURE: (LAST PARA OF SECTION 67
One of the several mortgagees can not foreclose his share only
unless they, with the consent of the mortgagor, severed their
interests under the mortgage.
SUBROGATION OF RIGHTS: SECTION 92
The substitution of one party for another generally because he
pays the debt of the latter and thereby becomes entitled to the
debtors rights, remedies etc.
TACKING: uniting securities given at different times (s. 93)

TACKING IS PROHIBITED i.e. No mortgagee paying off a prior

mortgage shall thereby acquire any priority in respect of HIS
ORIGINAL SECURITY. So, a third mortgagee paying off the
FIRST mortgagee acquires priority over SECOND mortgagee with
respect to HIS PAID OFF/REDEEMED MORTGAGE and not
with respect to his ORIGINAL MORTGAGE.
A=first mortgagee
B= second mortgagee
C=third mortgagee
C paying off A can get priority over B only in respect of As
mortgage and NOT HIS ORIGINAL (i.e. third) ONE.
MESNE MORTGAGEE/SUBSEQUENT(or
INTERVENING)MORTGAGEE: s.94
A subsequent mortgagee has the same rights against mortgagees
posterior to himself as he has against the mortgagor.
Ones Property in Others Hand
Personal/Movable Property
As a
security for
another
thing

Real/Immovable Property
As a
security for
another
thing

Securing
itself

As a nonsecurity

Pledge

Bailment

Mortgage

Lease

ss 172-178A
of the
Contract
Act, 1872

ss 148171 of the
Contract
Act, 1872

ss 58-104 of
the Transfer
of Property
Act, 1882

ss 105-117 of
the Transfer of
Property Act,
1882

Transfer of property

Absolute transfer

With
consideration

Limited transfer

Without
consideration

SALE

GIFT
Movable
Property

As a
security for
another
thing

Immovable
Property

As a
security for
another
thing

Securing
itself

For profit
making

Pledge

Bailment

Mortgage

Lease

ss 172-178A of
the Contract
Act, 1872

ss 148-171 of
the Contract
Act, 1872

ss 58-104 of the
Transfer of
Property Act,
1882

ss 105-117 of the
Transfer of Property
Act, 1882

Limited transfer of property

For security

For profit making

Immovable

Securing itself

Securing others by it

Movable

Immovable

BAILMENT

?
?
?

Movable

PLEDGE

Immovable
MORTGAGE

Movable

?
?
?

Immovable

LEASE

Bailment (s. 148) :

A delivery of goods (personal movable property) by one
person to another upon a contract that after a specified
period the goods shall be returned (the purpose may be
LENDING or MERE SAFE KEEPING and NOT AS
SECURITY FOR OTHER THINGS) e.g.
leaving a car with a parking attendant
leaving a house with sb and going abroad

Guarantee
ss 124-147
of the
Contract
Act, 1872

SECTIONS
CHAPTER I
PRELIMINARY
1. Short title Commencement [It extends to the whole of
Bangladesh.]
2. Repeal of Acts Saving of certain enactments, incidents,
rights, liabilities, etc.
3. Interpretation-clause
4. Enactments relating to contracts to 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 [CONVEYANCE OF
PROPERTY BY A LIVING PERSON TO A LIVING
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PERSON (LIVING excludes WILL but unborn person is an

exception)]
6. What may be transferred [EVERYTHING except
prohibited by law such as SPES SUCCESSIONIS,
EASEMENT, MAINTENANCE etc.]
7. Persons competent to transfer [competency of
CONTRACT + AUTHORITY to transfer]
8. Operation of transfer [all the interests passes
FORTHWITH]
9. Oral transfer [valid except where WRITING is required by
law]
10. Condition restraining alienation [ABSOLUTE
RESTRAINT=VOID except in a lease]
11. Restriction repugnant to interest created [Prescribing
PARTICULAR MANNER OF ENJOYMENT=without any
effect EXCEPT sth like easement]
12. Condition making interest determinable on insolvency or
attempted alienation [CONDITION VOID]
13. Transfer for benefit of unborn person [two things
necessary: (1) PRIOR INTERESET in favour of a living
person like TRUST to escape abeyance of ownership (2)
ABSOLUTE INTEREST (not mere life interest) for the
unborn]
14. Rule against perpetuity / RULE AGAINST
REMOTENESS OF VESTING [vesting can not be
postponed beyond the lifetime of any or more persons +
there must not be any INTERVAL between termination of
the life time and vesting of interest (on the minor)]
15. Transfer to class some of whom come under sections 13
and 14 [VOID ONLY FOR THAT SPECIFIC PERSON;
NOT FOR THE WHOLE CLASS]
16. Transfer to take effect on failure of prior interest [failure
of prior interest = failure of later interest as well]
17. Direction for accumulation [NOT EXCEEDING THE
LIFE TIME of the transferor or 18 YEARS (WHICH ONE
IS LONGER) this rule is not applicable for PAYMENT OF
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DEBT, MAINTENANCE OF CHILDREN OR THE

PROPERTY]
18. Transfer in perpetuity for benefit of public [Restrictions
of 14, 16 & 17 not applicable IN CHARITY]
19. Vested interest [the interest is VESTED IF created
WITHOUT SPECIFYING THE TIME or FORTWITH or
ON THE HAPPENING OF CERTAIN EVENT
[POSTPONEMENT, PRIOR INTEREST,
ACCUMULATION & condition of SUBSEQUENT
PASSING = NOT OBSTACLES to vested interest]
20. When unborn person acquires vested interest on transfer
for his benefit [UNBORN acquires ON BIRTH]
21. Contingent interest [dependant on a SPECIFIC
UNCERTAIN EVENT]
22. Transfer to members of a class who attain a particular
age [APPLICABLE TO THOSE ONLY WHO HAVE
FULFILLED THE CONDITION]
23. Transfer contingent on happening of specified uncertain
event [THAT EVENT must happen BEFORE THE
CESSATION of the present interest (so that the property may
not remain without owner)]
24. Transfer to such of certain persons as survive at some
period not specified [only the SURVIVOR AT THE TIME
OF CESSATION shall get it]
25. Conditional transfer [IF THE FULFILMENT OF THE
CONDITION IS IMPOSSIIBLE, IMMORAL.. = THE
TRANSFER FAILS]
26. Fulfillment of condition precedent [SUBSTANTIAL
COMPLIANCE = Fulfillment of condition precedent]
27. Conditional transfer to one person coupled with transfer
to another on failure of prior disposition [failure of prior
disposition = THE LATER SHALL GET THE PROPERTY]
28. Ulterior transfer conditional on happening or not
happening of specified event [IT IS SUBJECT TO SS. 10,12,
21-25 & 27]
29. Fulfilment of condition subsequent [THE CONDITION
MUST BE STRICTLY FULFILLED]
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30. Prior disposition not affected by invalidity of ulterior

disposition [i.e. IF THE ULTERIOR DISPOSITION IS NOT
VALID, THE PRIOR DISPOSITION IS NOT AFFECTED
BY IT]
31. Condition that transfer shall cease to have effect in case
specified uncertain event happens or does not happen [THE
CONDITION IS VALID SUBJECT TO SECTION 12]
32. Such condition (i.e. under s 31) must not be invalid
33. Transfer conditional on performance of act, no time
being specified for performance [THE CONDITION IS
BROKEN, IF PERFORMANCE OF THE ACT BECOMES
IMPOSSIBLE]
34. Transfer conditional on performance of act, time being
specified [IF PERFORMANCE WITHIN THAT TIME IS
PREVENTED BY THE FRAUD OF A PERSON WHO
WOULD BE DIRECTLY BENEFITTED BY NONFULFILMENT OF THE CONDITION, FURTHER TIME
SHALL BE ALLOWED]
[If no time is specified and the PERFORMANCE IS
PREVENTED BY THE FRAUD OF A PERSON WHO
WOULD BE DIRECTLY BENEFITTED BY NONFULFILMENT OF THE CONDITION, the condition shall
as against him be deemed to have been fulfilled]
So that no one can take advantage of his own fraud]
Election
35. Election when necessary (ELECTION BY THE REAL
OWNER IS NECESSARY when transfer is made by other &
benefit is conferred on the owner)
Apportionment /Allocation of payments
36. Apportionment of periodical payments on determination
of interest of person entitled [GENERALLY DAY-TOBASIS]
37. Apportionment of benefit of obligation on severance [IF
PROPERTY OF one person IS TRANSFERRED TO many,
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OBLIGATION SHALL BE proportionately performed by

them]
(B) Transfer of Immoveable Property
38. Transfer by person authorised only under certain
circumstances to transfer [EXISTING OF SUCH
circumstance SHALL BE PRESUMED IF (1) the authorized
person declares so & (2) the transferee used REASONABLE
CARE + GOOD FAITH]
39. Transfer where third person is entitled to maintenance
[MAINTENANCE enforceable against the TRANSFEREE if
(1) he has NOTICE thereof or (2) the transfer is
GRATUITIOUS]
40. Burden of obligation [i.e. CONTRACTUAL and NOT
EASEMENT] imposing restriction on use of land, or of
obligation [i.e. CONTRACTUAL and NOT EASEMENT]
annexed to ownership but not amounting to interest or
easement [SUCH OBLIGATION IS enforceable against the
TRANSFEREE if (1) he has NOTICE thereof or (2) the
transfer is GRATUITIOUS]
If the restriction imposed by the covenant
constitutes an EASEMENt then it binds the
servient heritage PERMANENTLY. In case
it is not an easement, then this section applies.
A contract for sale does not create any interest
in the land but is annexed to the ownership
of the land
41. Transfer by ostensible [APPARENT e.g. a benamidar]
owner [BINDING if (1) real owner has given EXPRESS OR
IMPLIED CONSENT to the ostensible owner and (2) the
transferee has used REASONABLE CARE to ascertain that
he was AUTHORISED TO TRANSFER + GOOD FAITH]
42. Transfer by person having authority to revoke former
transfer [SUBSEQUENT TRANSFER will amount to
REVOCATION OF THE FORMER]
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CHAPTER II
OF TRANSFERS OF PROPERTY BY ACT OF PARTIES
(B) Transfer of Immoveable Property
43. Transfer by unauthorised person who subsequently
acquires interest in property transferred [DURING THE
SUBSISTENCE OF THE CONTRACT WHENEVER HE
ACQUIRES ANY INTEREST THEREIN, IT WILL GO TO
THE TRANSFEREE]
Rights of the transferee shall not be impaired if he
had
Good faith
Consideration and
Without notice
44. Transfer by one co- owner [TRANSFEREE ACQUIRES
TRANSFERORS RIGHTS]
45. Joint transfer (i.e. transfer to two or more persons) for
consideration [EACH WILL BE PROPORTIONATELY
ENTITLED]
46. Transfer for consideration by persons having distinct
interests [IF THE DISTINCT INTERESTS ARE OF
EQUAL VALUE THEN THE TRANSFERORS WILL BE
ENTITLED TO THE CONSIDERATION EQUALLY
otherwise EACH WILL BE PROPORTIONATELY
ENTITLED]
47. Transfer by co-owners of share in common property [IF
THEIR SHARES ARE EQUAL THEN THE
TRANSFERORS WILL BE ENTITLED TO THE
CONSIDERATION EQUALLY otherwise EACH WILL BE
PROPORTIONATELY ENTITLED]
48. Priority of rights created by transfer [in the absence of a
contract to the contrary EACH LATER CREATED RIGHT
SHALL BE SUBJECT TO THE RIGHTS PREVIOUSLY
CREATED]
49. Transferees right under (insurance) policy [THE SAME
OF THOSE OF THE TRANSFEROR]
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50. Rent bona fide paid to holder under defective title [IF HE
PAID THE RENT TO THE DEFECTIVE TITLE HOLDER
BONA FIDE, HE WILL no more BE CHARGEABLE OF
THE RENT]
51. Improvements made by bona fide holders under defective
titles [THE TRANFEREE IS ENTITLED TO
THE ESTIMATED VALUE OF THE
IMPROVEMENT or
PURCHASE THE INTEREST OF THE
BETTER TITLE HOLDER]
52. Transfer of property pending suit relating thereto
[WITHOUT authority of the Court the property can not be
transferred SO AS TO AFFECT THE RIGHTS OF ANY
OTHER PARTY THERETO]
53. Fraudulent transfer [i.e. WITH THE INTENT TO
DEFEAT THE CREDITORS. THE RSULT = VOIDABLE
AT THE OPTION OF THE CREDITOR ]
53A. Part performance
[written + signed + reasonable certainty + possession
by the transferee in PART PERFORMANCE of the
contract + some action in furtherance of the contract
+ willingness to perform the rest of his part =
= non completion in the MANNER prescribed
by any existing law SHALL NOT DEPRIVE
HIM]
53B. Immoveable Property under a contract for sale not to be
transferred [TO ANY ONE EXCEPT THE VENDEE. Non
compliance = VOID]
53C. Immoveable Property without [HIS/HIS
PREDECESSORS NAME IN THE] Khatian not to be sold
[Non compliance = VOID]
53D. Immoveable Property under mortgage not to be
transferred [Non compliance = VOID]
53E. Instrument of transfer to be supported by affidavit
[Every instrument of sale, gift, mortgage and
declaration of heba of any immoveable property shall
be supported by AN AFFIDAVIT BY THE
14

EXECUTANT AFFIRMING THAT HE HAS LAWFUL

TITLE TO THE PROPERTY]
CHAPTER III
OF SALES OF IMMOVEABLE PROPERTY
54. Sale defined Sale how made Contract for sale
54A. Contract for sale to be registered, etc.
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 PROPERTY AND
CHARGES
58.Mortgage, mortgagor, mortgagee, mortgagemoney and mortgage-deeddefined Simple mortgage
Mortgage by conditional sale Usufructuary mortgage English
mortgage Mortgage by deposit of title-deeds Anomalous
mortgage
59. Mortgage when to be by assurance
59A. 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
mortgaged property
60A. Obligation to transfer to third party instead of retransference to mortgagor
60B. 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
63A. Improvements to mortgaged property
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64. Renewal of mortgaged lease

65. Implied contracts by mortgagor
65A. Mortgagors power to lease
66. Waste by mortgagor in possession
Rights and Liabilities of Mortgagee
67. Right to foreclosure or sale
67A. Mortgagee when bound to bring one suit on several
mortgages
68. Right to sue for mortgage-money
69. Power of sale when valid
69A. 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 sale 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
84. Cessation of interest
85. [Repealed]
86. [Repealed]
87. [Repealed]
88. [Repealed]
89. [Repealed]
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90. [Repealed]
Redemption
91. Person who may sue for redemption
92. Subrogation
93. Prohibition of tacking
94. Rights of mesne mortgagee
95. Right of redeeming co-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" and
"rent" defined [TRANSFER OF USUFRUCT IN LIEU OF A
CONSIDERATION of PREMIUM or RENT]
Difference between PREMIUM & RENT
PREIMIUM: lump sum (i.e. on one occasion)
RENT: periodical payments / instalments
106. Duration of certain leases in absence of written contract
or local usage
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[for AGRICULTURE & MANUFACTURING

Duration = YEAR TO YEAR; Notice = 6 months
For any other purposes
Duration = MONTH TO MONTH; Notice = 15 days]
107. Leases how made
Classification of leases
1. From year to year
2. Exceeding one year
3. Reserving a yearly rent
4. Permanent
5. from month to month
6. for less than one year
In case of FIRST FIVE: MUST BE REGISTERED
For the rest: registered / oral + delivery of possession
108. Rights and liabilities of lessor and lessee
Liabilities of lessor:
Disclosure of material defects
Transferring possession
Non interruption
Rights of lessee
Enjoyment of accession (e.g. alluvion)
End of lease in case of destruction
Repairing and deduction
Making payments (e.g. gass bill)
Getting what he has attached to the land
Benefits of what he has planted
Assignment of his interest
Liabilities of the lessee
Disclosure of what increases the value of the
land
Rent
Maintaining the property
Giving notice of encroachment
Not to commit waste
Not to build permanent structures (generally)
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Restoring possession
109. Rights of lessors transferee
The transferee shall possess all the RIGHTS but NOT
THE LIABILITIES unless accepted by the lessee
(because a person can ASSIGN his RIGHTS but
NOT his LIABILITIES without the consent of those
to whom they owe)
110. Exclusion of day on which term commences
Duration of lease for a year: the whole anniversary
Option to determine lease: (as far as possible in
favour of lessee)
111. Determination of lease
Lease comes to an end
by lapse of time
happening of a specified event
by termination of lessors interest
by merger (i.e. when LEASEHOLD &
REVERSION are required by ONE person; the
PRINCIPLE is that the SAME person can not be
both a landlord and a tenant)
express surrender of interest by the lessee
Difference between MERGER & SURRENDER
Under MERGER the lessee acquires the REVERSION,
whereas under a SURRENDER the LESSOR acquires the
lease.
Implied surrender (e.g. taking a new lease before
the termination of the first one)
Forfeiture by the lessor due to (1) breaking an
express condition, (2) lessees renouncing his
right and (3) lessee being insolvent
It is to be noted that if there is a breach of condition by the
lessee, the lease is not determined ipso facto but it gives an
option to the LESSOR whether he would determine the
tenancy by FORFEITURE or WAIVE THE FORFEITURE
and continue it.
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 On the expiration of the notice to quit

112. Waiver of forfeiture [by acceptance of RENT DUE
since forfeiture, or by any other act on the part of the lessor
showing an intention to treat the lease as subsisting]
113. Waiver of notice to quit [by any act on the part of the
lessor showing an intention to treat the lease as subsisting]
114. Relief against forfeiture for non-payment of RENT
[payment of (1) rent in arrear (2) interests + full costs
of suit OR (3) sufficient security for payment within
15 days] = the court may order CONTINUANCE of
the lease.
114A. Relief against forfeiture in certain other cases [such
as BREACH OF AN EXPRESS CONDITION]
No suit unless NOTICE is given (1) specifying the
BREACH and (2) requiring REMEDY
But this requirement of NOTICE is not applicable if there is
a condition against
ASSIGNMENT (section / definition )
SUB-LETTING (section )
PARTING WITH POSSESSION (section )
DISPOSING OF PROPERTY (section )
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

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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.
Onerous gift to disqualified person
128. Universal donee
129. Saving of donations mortis causa and Muhammadan
law
CHAPTER VIII
OF TRANSFERS OF ACTIONABLE CLAIMS
130. Transfer of actionable claim
130A. 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
135A. Assignment of rights under policy of marine insurance
136. Incapacity of officers connected with Courts of Justice
137. Saving of negotiable instruments, etc.

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