Transfer of Property  Act (IV of 1882)

  1. Section 44 — Transfer of dwelling house by one co-owner — the transferee not a member of the family — bar to joint possession, common or part enjoyment of property — effect in suit for specific performance — discretion for grant of specific performance of agreement to sell — argument: by operation of section 43 of the Transfer of the Property Act, 1882, the contract to the extent of 1/8th share of the respondent, is specifically enforced. Held: according to the statutory provisions the Court is vested with the discretion for grant of remedy of specific performance. Imtiaz Inqlabi v. Mst. Fatima Begum & 2 others 2016 SCR 1577 (A)
  2.  Section 51 — Improvement — Cost of — Improvements can only be awarded if same were made on land to which the party has title and were made in good faith. Tasawar Hussain Shah v. Muhammad Yusuf & 7 others 2001 SCR 399 (A)
  3. S. 52 — Whether transferee can be regarded as necessary party — In view of the provision contained in section 52 of the transfer of the Property Act, such a transferee cannot be regarded as a necessary party and a decree passed against the transferor can be executed without impleading such a transferee a party to the proceedings — Whether the appellant is a necessary party or not was to be seen in the light of the relief sought against him — In the instant case, when the appellant, herein, purchased the land during the pendency of the suit, he was not  a necessary party in suits of appeals. Muhammad Sharif  v. Muhammad Ilyas and 23 others 1999 SCR 362 (A)
  4. S. 52 — See AJK Interim Constitution Act, 1974, S. 42. Dilnawaz Begum and another v. Muhammad Akbar Khan Afridi and 4 others 2013 SCR (SC AJ&K) 1184 (C)
  5. — section 52 — principle of lis pendens —  when there is an ongoing legal case in any Court and case involve a dispute relating to immovable property, none of the parties involved, can sell or otherwise deal with the property in a way that would affect the right of other party, unless they have permission from the Court and follow any condition set by the Court — this restriction ensures that the right of all the parties are protected during the legal process — when legal case is considered to have started and when it ends, linking it to the filing of the case and the completion of any Court order, action or when it becomes impossible to execute those orders due to time limits set by law. Muhammad Nazir & others versus Syed Aziz ul Hassan & others 2023 SCR 943 (B) 2008 SCR 73 ref.
  6. S. 53-A, is merely a shield which can be used in defence and not as a weapon to assert title over the property — It can only be used as a defence in answer to claim of possession by the vendor or any other person claiming through or under him — The right conferred by this section is only available to defendant to protect his possession — The section does not create a title on the defendant — It merely operates as a bar to the plaintiff asserting his title  — It is limited to cases where the transferee had taken the possession and against him the transferor is debarred from enforcing any right other than that expressly provided by the contract. Mumtaz Hussain Khan and 5 others v. Muhammad Hussain and 3 others 2000 SCR 618 (C)
  7. S. 53-A is merely a shield which can be used in defence and not as a weapon to assert title over the property — The right conferred by this section is only available to the defendant to protect his possession — It does not create title on the defendant — It merely operates as a bar to the plaintiff asserting his title — It is limited to cases where the transferee has taken possession in pursuance of agreement-to-sell and the transferor is debarred from enforcing any right other than that expressly provided by contract. Manzoor Hussain v. Muhammad Fazal & 8 others 2002 SCR 308 (B)
  8. S. 53-A — Finding recorded by High Court that respondent No.1 is in possession of a part of the suit land — Held: Benefit under S. 53-A could not be extended to him under law as a person cannot confer better title than he has. Khalid Hussain v. Haji M. Rafique 2008 SCR 207 (A)
  9. S. 53-A — Courts cannot extend the benefit of section 53-A to party in respect of Shamlat land which has not been partitioned — The law and different directions issued by Board of Revenue and different reports recorded by superior judiciary reveal that share in Shamlat Deh cannot be transferred without permission of the concerned revenue authorities — The possession cannot be regulated unless the share of a party stands determined through partition by metes and bounds. Khalid Hussain & 3 others v. Haji Muhammad Rafique and another 2008 SCR 207 (C)
  10. S. 54 — Word ‘sale’ defined — ‘Sale’ is transfer of ownership for price. Raja Muhammad Saeed Khan v. Sardar Khani Zaman Khan and 11 others 2006 SCR 271 (G)
  11. S. 54 — The affidavit/agreement-to-sell reveals that at the time of execution of deed, the suit land had not been partitioned by metes and bounds and appellant agreed and promised to transfer after partition and permission for transfer which means that agreement-to-sell/affidavit was conditional — Part of claim that if shamlat is not partitioned and required permission is not granted, affidavit shall be considered as sale-deed — Held: Devoid of any force and is illegal — Trial Court rightly held that transfer through affidavit cannot be considered as a sale-deed in view of codal provisions laid down in section 54 of the Transfer of Property Act read with restriction imposed by the provisions of Shamlat Deh Act, 1966. Khalid Hussain & 3 others v. Haji Muhammad Rafique and another 2008 SCR 207 (B)
  12. S. 54 — Affidavit cannot be termed as an agreement-to-sell nor can the same be considered as sale-deed as sale-deed has not been executed under section 54 of Transfer of Property Act and S. 17 of Registration Act. Khalid Hussain & 3 others v. Muhammad Najeeb 2008 SCR 223 (A)
  13. S. 54 — See Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.), S.4. Sardar Muhammad Sarwar Khan v. Muhammad Nawaz Khan 2012 SCR 171 (B&D)
  14. —Section 54—a contract of sale of immovable property itself does not create any interest or right but it determines and settles the terms between the parties relating to such sale. Muhammad Ayub vs Ali Zaffar & others 2018 SCR 20 (F)
  15. — Sections 54 & 118 — transactions of exchange and sale — distinction of — u/s 118; the essential characteristics of a transaction of exchange is mutual transfer of ownership of property by two persons whereas the sale u/s 54, is a transfer of ownership in exchange for a price paid or promised or part promised, which is completed on execution of sale deed — essential elements of sale are, the parties, the subject matter, the transfer of or conveyance and price/consideration — if any element is missing, it would not be a transaction of sale. Zeenat Begum & others vs Zaffar Ali Qaiser & others 2024 SCR 123(A)
  16. S. 118 — Exchange — When two persons mutually transfer the ownership of one thing for ownership of another, neither thing or both things being money only, the transaction is called exchange. Raja M. Saeed Khan v. Sr. Khani Zaman Khan and 11 others 2006 SCR 271 (B)
  17. S. 118 — Clearly conveys about transfer of ownership of the thing for the ownership of another — It does not speak about the transfer of possession — Even the absence of transfer of possession would not affect the exchange. Raja Muhammad Saeed Khan v. Sardar Khani Zaman Khan and 11 others 2006 SCR 271 (D) PLD 1988 Lah.419 rel.
  18. S. 118 — Exchange — Definition — When two persons mutually transfer the ownership of one thing for ownership of another, neither thing or both things being money only, the transaction is called an exchange — To make a transaction, exchange the mandatory legal requirements is to mutually transfer ownership of one thing for ownership of another thing — If it is proved that the ownership of a thing is not transferred to other person, then it cannot be called exchange. Haji Nazir Ahmad v. Raja Muhammad Saeed and 11 others 2010 SCR 231 (F)
  19. S. 122 — See Specific Relief Act (I of 1877), S.39. M. Aziz Khan v. M. Hanfi 2012 SCR 115 (A)
  20. —Section 122— any deed which involves any sort of consideration in lieu of the transfer, does not fall under the definition of a “gift”. Tahir Ayub versus Naeem Ayub & 10 others 2021 SCR 576 (A)
  21. A Co-sharer can validly alienate the land even if his share in specific survey numbers exeeds his share provided it is not in excess of his over all share in the khewat or khata while calculating the overall share – the share in whole village or estate has not to be taken in the account. Inayat Khan & others v. Muhammad Saleem Khan 1993 SCR 182 (A)
  22. Plaintiff-respondent did not sue for the specific performance of the contract, rather he has filed merely a declaratory suit — It is well settled principle of law that the doctrine of part performance of the contract cannot be made as a weapon of offence — It is merely a shield which can be used in defence — In other words, irrespective of the fact that the doctrine of part performance was not pleaded in the suit by the plaintiff-respondent, even otherwise, that could not be made basis for a declaratory decree in favour of the plaintiff. Azad Govt. v. Haji Abdur Rashid and 3 others 1999 SCR 345 (D)
  23. The suit of plaintiffs was basically for specific performance of contract which having been filed before a wrong forum was barred by limitation when it was presented before a competent forum — Counsel for appellants failed to cite a single ruling on the point that if a suit for specific performance of contract on account of being filed before a wrong forum and having become barred by limitation could not be substituted by way of an amendment seeking the perpetual injunction against the defendant-respondents to refrain from interfering in their possession — Application for amendment of plaint was moved in High Court whereas the suit of plaintiff-appellants had become barred by limitation when the plaint was returned to the plaintiff-appellants by Sub-Judge, held: The suit had become barred by limitation much earlier than filing the application for amendment of plaint. Mumtaz Hussain Khan and 5 others v. M. Hussain and 3 others 2000 SCR 618 (D)
  24. It was not mandatory for exchange to prove that possession was handed over — but actually it was required to prove that the ownership was exchanged between the parties. Raja Muhammad Saeed Khan v. Sardar Khani Zaman Khan and 11 others 2006 SCR 271 (H)
  25. It is a legal duty of Presiding Officer to see that codal provisions are strictly applied — Property of a value of more than Rs. 100/- has to be transferred through a sale-deed. Khalid Hussain & 3 others v. Haji Muhammad Rafique and another 2008 SCR 207 (G)
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