Abdul Motalib Alias Matalib vs. Yousuf Ali Munshi Alias Isab Ali 14BLD HCD 533

   Facts in brief:

 The plaintiff’s predecessor Khoaj purchased the suit land by a registered kabalaq dated 16th Baishakh 1328 B.S and he got possession thereof. He left behind his heirs including sons daughters, wife. Before the trial court defendant respondent no.1 entered appearance and filed a written statement denying the plaintiffs’ claim and his fathe . The case is that said khoaj the grandfather of defendant no.1 purchased the 29 decimals of land of the suit plot on 16th Baishakh 1328 B.S and during his lifetime he gifted 29 decimals of the suit land to Yakub ali who is the father of defendant no.1 by a registered heba-bil-ewaj deed and thus Yakub Ali exclusive owner and possessor of the suit plot. His further case is that defendant no 4 had no title and possession of the suit land. Yakub ali gave 12 decimals of land of the suit plot by Heba-bil-ewaj.to defendant no.1 and this defendant no.1 and his brothers were in possession of the entire land of the suit plot.

Issue:

Whether a person can transfer  his immovable property which is not in his actual possession but he is intending to be a possessor.

Rule of Laws:

 1) Section 115 of CPC,1908.

 2) Section 43 of Transfer of Property Act, 1882.

Case Referred:

1) Abu Saber Aziz Mohammad and Others vs Govt. of Bangladesh

Application to the fact

 In this case, it has not been challenged that khoaj has not executed and registered his Ext A. It is true that Khoaj got the land by Kabala Ext A on 10th Baishakh 1328 BS and he made a deed of gift on 25 Katrick 1324 BS Ext A. From this Ext A it appears before the purchase or acquiring of title by Khoaj over the suit plot he made a deed of gift. The Trial court was right in applying the provisions of section 43 of Transfer of property Act. But Appealed Court was wrong in considering the actual meaning and application of the provision. Then in revision The HCD was right in observing the application of the provision in considering the case of Abu Saber Aziz Mohammad and others vs Govt. of Bangladesh where a person can transfer his immovable property which is not his actual possession but it is intending to the owner or latter he is intending the owner of such property.

Judgement: 

The Judgement and decreed passed by the learned Munsif in the aforesaid suit is hereby restored.

Conclusion:

The rule is that a person can transfer his immovable property which is not his actual possession but it is intending to the owner or latter he is intending the owner of such property .But he has to transfer it immediately when he receives it.