Laws For everyday life
How to transfer your immovable property?
Syed Gouseuzzaman Haideri Ali
THERE are various ways by which an immovable properties including land can be transferred. Immovable property can be transferred from living person to living person or from dead person to living person. In transfer from living person to living person, such as in sale, exchange and gift, diverse legal effects ensue. In transfer from dead person to living person, there are testamentary succession and intestate succession. These are governed by different laws at different circumstances. Some are regulated by Transfer of Property Act 1882; others are regulated by Succession Act 1925, Muslim Law and Hindu Law.
are various ways by which an immovable properties including land can be transferred. Immovable property can be transferred from living person to living person or from dead person to living person. In transfer from living person to living person, such as in sale, exchange and gift, diverse legal effects ensue. In transfer from dead person to living person, there are testamentary succession and intestate succession. These are governed by different laws at different circumstances. Some are regulated by Transfer of Property Act 1882; others are regulated by Succession Act 1925, Muslim Law and Hindu Law.
Sale
Section 54 of the Transfer of Property Act, 1882 (hereinafter called TP Act) deals with sale of immovable property. Sale is transfer of ownership in exchange for a price paid in terms of money. According to registration law sale of immovable property must be effected by a registered document irrespective of its value. The contract of sale itself also must be registered. The presentation for registration should be made within three months from the date of execution of the sale deed. Registration can be made going to sub-registry office situated at every upazilla.
Exchange
Exchange is defined in section 118 of TP Act 1882. When two persons mutually transfer the ownership of one thing for the ownership of another, either thing or both things being money only, the transaction is called 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. A partition is not an exchange, because, the parties are not in exclusive possession of the properties which they inter-change.
Gift
According to section 122 of TP Act 1882 gift is the transfer of movable or immovable property made voluntarily and without consideration, by one person called the donor, to another person called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the life time of the donor and while he is still capable of giving. Section 123 of TP Act 1882 provides that transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. But according to Muslim Law oral gift is completely valid. Declaration by the donor and acceptance by the donee can be made orally. From 2005, declaration of heba (gift) under shariah law also must be registered. Amendment to registration law in section 17 of the Registration Act has overridden the Muslim law of heba. In Muslim Law, essentialities of gift are (1) offer by donor (2) acceptance by donee and (3) delivery of possession.
In Hindu Law the essential elements of gift are substantially same as that of Muslim law. In Hindu Law writing down and registration of the deed of gift is not necessary. It can be made orally. But presently, gift of immovable property under Hindu Law follows section 123 of TP Act 1882 and essentialities of the delivery of possession for the validity of gift has been abrogated. A gift of immovable property under section 123 of TP Act 1882 must be effected by a registered instrument signed by the donor and attested at least by two witnesses.
Transfer of immovable property from original owner to apartment builder
Recently, a new kind of transfer of immovable property has taken place i.e. from original owner to apartment builder. After the completion of the building upon the land, owner and the builder divide the number of apartments as per their agreement. Normally, owner of the land gets 40% or 50% and the builder gets 60% or 50%. Another legal provision is that when any person purchases one apartment he gets fractional ownership of the land proportionate to the size of the land divided by number of flats. If there is a 5 kathas of land with 20 flats, in that situation if a person purchases one flat, then his proportion of ownership in the land will be 5/20 kathas = ¼ kathas of land.
Lease
Section 105 of TP Act 1882 defines a lease of immovable property. Lease is transfer of right to enjoy such property, made for a certain time or in perpetuity, in consideration of a price paid or promised. In lease in addition to the price paid as consideration at the time of contract, some amount is also paid periodically in terms of money, a share of crops, services or any other thing of value to the transferor by the transferee. In lease, the transferor is called the lessor, the transferee is called the lessee, the price is called the premium and the money, share, services or any other thing to be so rendered periodically is called the rent.
Mortgage
Section 58 of TP Act 1882 states that mortgage is transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced by way of loan or the performance of an engagement which may give rise to pecuniary liability. The transferor is called a mortgagor, the transferee is called a mortgagee, the principal money and interest of which payment is secured for the time being are called the mortgage- money and the instrument by which the transfer is effected is called a mortgage-deed.
(to be continued)
Syed Gouseuzzaman Haideri Ali is an Advocate of the Supreme Court of Bangladesh.
