Roshanally Mohamed Hajri V A.K.M Zakir Hossain 19 BLT(HIGH COURT DIVISION) 2011 318

 Fact in Brief:

 The suit land was acquired by defendants No.1 by his own fund for his benefit but some of the deeds were registered in the lands of his sons, daughters and wife. The defendant No.1 being the ostensible owner of the land in suit with the consent of  his above agreement to sell the land in suit with the plaintiff at a consideration of Tk.90,00,000  which is the price 20 bighas of and measured at 30decimals pen bighas, An agreement was entered for performance of the contract. The defendant No1 informed the plaintiff that the necessary document and this reason. If it was no possible to mention the required number and khatian. The defendants No.1 gave some conditions about heirs which was believed by the plaintiff. The plaintiff sincerely believed defendants No.1 very much and frankly entered into contract for sale by writing. The planitiff requested defendant to draw up the formal agreement and intimated his readiness to play of the balance consideration, but defendants No.1 deferred the matter on at last the Appeal by the defendant directed against Judgment and decree passed by the learned Join District Judge for specific performance of a contract.   

Issues:

      1) Whether the suit is maintainable as consideration money not fixed by the plaintiff.

       2)Whether the plaintiff is entitled to  the suit land .

Rule of Law:

     1) Section 41 of the Transfer of Property Act 1882

     2) Section 22 & 42 of the Specific power Act .

Cases Referred:

Musammat Nasima Akhter V. Md. Siraj_ 10 MLR 53

Hajee Lal Miah V. Nurul Amin_10 MLR 249.

Joynab Bejum V. Shaheb Ali_12 MLR 337.

Application to the fact

The suit is maintainable as consideration money no fixed by the plaintiff and also that in the bainapatra, No default clause was there which are the basic requirement for a suit of specific performance of a contract.

 In the case of Musammat Nasima Akhter V.Md Siraj Where time is not an essence for the specific performance of the contract. In the view of the section 41 of the Transfer of the Property Act, The plaintiff described defendant No.1 as ostensible owner of the suit property as from exhibit. It appears that they sold the suit land to different persons but neither the sellers non the purchasers have been impleaded in the suit. The section 41 says-

“Ostensible owner means a person who holds himself out as an owner but all the indicta of ownership without being the real owner.”

The contract may be enforced against the subsequent transferee as contemplated under section 27 of the Specific Relief Act. The section 27 provides for specific performance of contract as against the person making the contract and also against the subsequent transferee except the bona fide purchaser for valuable consideration without notice of the original agreement (Joynab Bejum V. Shaheb Ali). The defendant No.1 was not actual owner of the entire land. It also appeals that the possession of the suit land was not delivered to the plaintiff pursuant to the bainapatra. It also appeals that the suit land was transferred to the defendant No.1 before the suit was filed. Here section 42 of the SR Act says that the prime consideration is the bainapatra i.e. agreement itself. If there be any ambiguity in executing the same, the contract then lift its hands off to pass a decree.  

Decision:

The learned court held that the applications are not granted and not directed not to continue the act. The appeal is made without any order as to cost.

Conclusion:

When the bainapatra contract is not cumbrous but legal and ostensible owner holds himself out as an owner having all the night of ownership without being the real owner, a bainapatra contract or agreement is enforced in law and decree can be passed by the court.