Transfer of Property

National Accountability Bureau issued notification under S.23 of the National Accountability Ordinance, 1999, stating therein that the transfer of title or interest or creation of charge on the properties in the name of benamidar of accused shall be void while the inquiry/investigation proceedings were pending before the National Accountability Bureau or Accountability Court

Petitioner challenged the notice before the Accountability Court through an application, which was dismissed

Validity

Chief Court observed that since the petitioner had claimed that he had purchased the land from his own independent means and sources and the same land had been transferred in his name, therefore, it was appropriate to afford him an opportunity to prove his claim by producing evidence before trial Court

Writ petition was partially allowed and the case was remanded to the Trial Court with direction to provide opportunity of producing evidence to the petitioner.

No provision was available in Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977 for alienation of property through private treaty.

Chairman, Evacuee Trust Property Board, while invoking jurisdiction under Ss. 8 & 10 of Evacuee Trust Property (Management and Disposal) Act, 1975, cancelled the Permanent Transfer Deed (PTD)

Revisional Authority set aside the order passed by the Chairman, validated the PTD and declared the remaining suit property to be evacuee trust property

Validity

Jamabandi and khasra girdawaris for the years 1965 to 2002 showed that the property belonged to Gurdwara, which was an evacuee trust property and such longstanding entries had acquired the presumption of correctness under Art. 100 of Qanun-e-Shahadat, 1984

Revenue record was sufficient for proving that the suit property was trust property

Property belonging to Gurdwara in view of S. 4(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was not available in the pool of available properties of Settlement Department, which lacked jurisdiction to allot the trust properties to any person

Properties attached to charitable, religious or educational trusts or institutions were excluded from the Settlement Pool under S. 3 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975

No document of auction proceedings was placed before the High Court to show that issuance of PTD was made in accordance with law

No khasra number was mentioned in the PTD

Order passed by Revisional Authority was set aside and that of Chairman was restored

Constitutional petitions were allowed, in circumstances.

Provisions of S. 23 of National Accountability Ordinance, 1999 wreaks and enforces a bar or embargo against transfer or creation of charge on any property while inquiry or investigation or proceedings pending before National Accountability Bureau or court.

Under provision of S.41 Transfer of Property Act, 1882 purchaser is saddled with extraordinary responsibility of taking care and caution and to deeply scrutinize genuineness or originality or legality of title of vendor before purchasing land under principle of caveat emptor subject to incidence of Ss. 10 & 11 of Transfer of Property Act, 1882

Any infirmity or deficiency in title found later will always travel with land and purchaser is precluded to subsequently raise plea of protection available under S.41 of Transfer of Property Act, 1882 rather they have to face rigors of their own committed negligence for non-conducting a bona fide and reasonable investigation into title of vendor under principle of caveat emptor.

Burden can be discharged by adducing evidence of a definite character which can either directly prove fact of benami or establish circumstances unerringly raising an inference of such fact

Guiding factors for the court to determine whether a transaction is benami or not stated.

At the time of approval of scheme of amalgamation of petitioner companies, authorities raised an objection with regard to payment of stamp duty on the properties which were to be transferred as a result of such amalgamation

Validity

Decree of court which resulted in transfer of property or had created or transferred a right in property should be included in the definition of 'document'

In consequence of an order sanctioning scheme of arrangement/amalgamation, transfer of assets had taken place from transferor company to transferee company in terms of S.287 of Companies Ordinance, 1984

Such order was an instrument as it conveyed and had the effect of conveying title in property from transferor company to transferee company

Incident of transfer of assets from transferor company to transferee company in order sanctioning scheme of arrangement/amalgamation made it liable to stamp duty in terms of Art.27-A of First Schedule to Stamp Act, 1899

Such order was, without any question, an 'instrument' as defined in S.2(14) of Stamp Act, 1899

High Court directed parties to petition to supply to office of High Court, requisite stamp paper, before the order sanctioning a scheme under S.284 of Companies Ordinance, 1984, was passed, where after the order would be placed for final signatures

High Court restrained Registrar of Companies from receiving and taking on its record an order sanctioning a scheme of arrangement/amalgamation until the same was duly stamped in terms of applicable provisions of Stamp Act, 1899

Petition was allowed accordingly.

Authorities did not accept arbitration award/agreement on the plea that the same had not conferred any ownership right on individuals/shareholders, unless the deed was registered under S. 17 of Registration Act, 1908

Plea raised by assessees was that the award was made rule of the Court, conferring them ownership right, therefore, registration was not required

Validity

Authorities by their conduct of assessing as an AOP in previous years had accepted belonging of property to co-owners

When agreement for partition, based on an arbitration award/decree was implemented and respective portions of property were identifiably returned before authorities, it had no right under the provisions of Wealth Tax Act, 1963, to reject the same based on provisions of Registration Act, 1908

Question of law in appeal was vague and not representing any legal proposition, therefore, question was decided in affirmative and against authorities

Appeal was dismissed in circumstances.

At the time of approval of scheme of amalgamation of petitioner companies, authorities raised an objection with regard to payment of stamp duty on the properties which were to be transferred as a result of such amalgamation

Validity

Decree of Court which resulted in transfer of property or had created or transferred a right in property should be included in the definition of 'document'

In consequence of an order sanctioning scheme of arrangement/amalgamation, transfer of assets had taken place from transferor company to transferee company in terms of S. 287 of Companies Ordinance, 1984

Such order was an instrument as it conveyed and had the effect of conveying title in property from transferor company to transferee company

Incident of transfer of assets from transferor company to transferee company in the order sanctioning scheme of arrangement/amalgamation made it liable to stamp duty in terms of Art. 27-A of First Schedule to Stamp Act, 1899

Such order was, without any question, an 'instrument' as defined in S. 2(14) of Stamp Act, 1899

High Court directed parties to petition to supply to office of High Court, requisite stamp paper, before the order sanctioning a scheme under S. 284 of Companies Ordinance, 1984, was passed, whereafter the order would be placed for final signatures

High Court restrained Registrar of Companies from receiving and taking on its record an order sanctioning a scheme of arrangement/amalgamation until the same was duly stamped in terms of applicable provisions of Stamp Act, 1899

Petition was allowed accordingly.

Grievance of Municipal Corporation was that authorities did not transfer land in question despite partial payment was made

Validity

For a valid transaction, payment of amount of consideration was one of the important ingredients in terms of S.54 of Transfer of Property Act, 1882, and in case the same was not paid, the transaction carried no weight in the eye of law

Neither anything was deposited by appellant towards part payment of consideration amount nor appellant was interested to continue with the sale

No step was taken towards completion of sale by appellant, thus Municipal Corporation (appellant) had no locus standi to file Constitutional petition before High Court

If there was a dispute regarding payment of partial amount by appellant, the same could not be decided by High Court in exercise of jurisdiction vested under Art.199 of the Constitution, rather for such purpose aggrieved party was to approach court of competent jurisdiction

Division Bench of High Court declined to interfere in judgment passed by Single Judge of High Court

Intra-court appeal was dismissed in circumstances.

Every person had fundamental right to transfer or alienate the property according to his own will and choice, but the court of law, while recording the judgment and decree in such cases, had to take into consideration the intention of the persons, who alienated the property

True question was to find out the real intention of the parties who entered into the transaction, and the court must decide the issue upon all available material

No hard and fast rule could be laid down to decide whether a transaction was or was not a sale, but in case of reasonable doubt, it could be regarded as a sale, keeping in view overall circumstances in the case

Every case, must be decided on its own facts; and the court must come to the conclusion by looking into the incidents and conditions of the transaction and to find as to whether it was, in fact, a sale or not.

Where statute requires that particular kind of transfer should be effected by particular kind of instrument, such provision must be enforced with stringency

Court must give effect to the Act and must judge the particular transaction according to its provisions.

When an illiterate lady was made to sign or relieve of her property the beneficiary who was to receive the property, onus was upon him to show and prove that transaction made by him was fully proved and clear.

When a Pardanasheen or illiterate woman was made to transfer a property then it was very necessary and important that at the time of transfer of said property she must be assisted by some of her near and close one who could have given her advice as to what she was going to do.

Where statute requires that particular kind of transfer should be effected by particular kind of instrument, such provision must be enforced with stringency

Court must give effect to the Act and must judge the particular transaction according to its provisions.

If accused person owns property, which is not in the knowledge of Chairman NAB or Accountability Court and the same is transferred during pendency of inquiry or investigation, then transfer of such property is void and such transfer of property also amounts to an offence under S.23 of National Accountability Ordinance, 1999

If property belonging to accused is in the knowledge of Chairman NAB and inquiry is initiated, then Chairman NAB is obliged to act under S.12 of National Accountability Ordinance, 1999, and pass an order for freezing of that property.

Property in question was sold through auction, in execution of decree passed by Banking Court and petitioner was the auction-purchaser

Grievance of petitioner was that authorities refused to transfer the property in his name due to embargo placed by National Accountability Bureau under S.23 of National Accountability Ordinance, 1999

Plea raised by the authorities was that any transfer of property in question would be void under S.23 of National Accountability Ordinance, 1999

Validity

Chairman NAB was in the knowledge of property in question but no order under S.12 of National Accountability Ordinance, 1999, was passed for freezing of the same

As no order was passed to freeze the property, so presumption would be that NAB authorities knew that the property did not belong to accused or for the reasons best known to them, they did not want to take any action regarding the property

In absence of freezing order in field regarding property in question, it could not be said that the property was under investigation by NAB authorities

Chairman NAB had the authority to pass any order in respect of property of accused as long as the Court had not taken cognizance of the case but the moment Court took the cognizance of any matter under National Accountability Ordinance, 1999, then Chairman NAB would become functus officio and only Accountability Court could pass any order regarding property of accused

No order was passed by Accountability Court in respect of property in question, therefore, Chairman NAB had no authority to place any embargo on transfer of property in question

Capital Development Authority being custodian of record was under obligation to transfer the property in the name of auction-purchaser in accordance with law and rules

High Court directed the authorities to transfer the property in question to the name of petitioner in accordance with law and rules

Petition was allowed in circumstances.

Provisions of S.54 of Transfer of Property Act, 1882, would apply with full force to the areas forming part of erstwhile State of Bahawalpur.

Transfer of property-Contesting respondent's possession of property though considered by Appellate Settlement Authority and on basis of thorough examination of record he transferred the same to him, yet neither revisional Authority nor High Court in Cunstitutional jurisdiction examined the record whether such respondent was in possession of the property

Questions of facts, however, were thoroughly sifted by High Court which were based on proper appreciation of record

Appeal being devoid of merit was dismissed in circumstances.

Settlement Commissioner after site inspection finding that value of portion of property with local occupant was in excess of Rs.10,000 and he was therefore not eligible for its transfer

Chief Settlement Commissioner upholding order of Settlement Commissioner in revision

Said orders were, however, challenged writ petition by said occupant but during pendency thereof, property was transferred to appellant in open auction

High Court declared order of Settlement Commissioner/ Chief Settlement Commissioner as without lawful authority holding thereby that Settlement Commissioner erred in finding that value of portion of property in possession of local occupant was in excess of Rs.10,000

Held, finding of fact recorded by Settlement Commissioner after visiting spot, was not open to interference by High Court in constitutional jurisdiction

Since local occupant was claiming transfer of portion of property, evaluation price of which exceeded value of Rs.10,000, he was ineligible for i

Suit for possession-Respondents denying title of plaintiff-appellants to property on ground that property was transferred through P . T . D . by Settlement Authorities and Civil Court had no jurisdiction

Status and character of property determined by Custodian/ Settlement Authorities as non-evacuee

P . T . Ds obtained by respondents through misrepresentation, subsequently cancelled by authorities

Leave to appeal granted to consider contention of appellants that their claim before Custodian no doubt, related to a portion of property but it was based on premise that said portion was part of a Khasra Number and finding with regard to non-evacuee character of said portion necessarily referred to entire property which was declared to be non-evacuee and this question could not be re-opened by Civil Courts.

Additional Settlement Commissioner dividing property in dispute and transferring one portion each to petitioner and respondent with directions regarding rights of parties to access and use of courtyard

Deputy Settlement Commissioner, on petitioner's application for demarcation of property, holding that Additional Settlement Commissioner had in context of his order actually meant that petitioner would have no right to use of courtyard

Petitioner filing suit for declaration that order of Deputy Settlement Commissioner was illegal, ultra vires and without jurisdiction

Civil Court dismissing suit holding that jurisdiction of civil Court was barred and judgment upheld by first appellate Court and High Court

Civil Courts also holding by cogent reasons that order of Deputy Settlement Commissioner was, on merits, quite correct

Petitioner

Both appellant and respondent themselves had gone to settlement authorities for identification of the property transferred to them under two auctions

Rule that after issuance of P.T.Ds, property goes out of the compensation pool and Settlement Authorities become functus offico to determine and demarcate the boundaries except to the extent provided for in Permanent Transfer Rules, 1961, held, would not be applicable in circumstances

Jurisdiction of civil Court

Extent in Settlement cases.

Contentions that basis of transfer made in favour of respondent was order of Settlement Commissioner legality of which was never challenged by him which thus became final between the parties; that two rooms in dispute were never transferred to respondent; that at relevant time respondent was never in possession of said rooms and thus, his claim to them was without any basis and that corrections made in transfer documents issued to him were in accordance with order of Settlement Commissioner and High Court ought not to have interfered in the matter

Contentions raised requiring further examination, leave to appeal granted.

Finding of fact by Settlement Authorities that the property was auctioned in favour of petitioner at a time when L.H. Forms filed by respondents were still lying undisposed of

High Court found to have very properly refused to interfere with such finding

Leave to appeal refused.

Later, Settlement Authorities declining to take cognizance on ground that no regular petition before repeal of Settlement Laws had been filed

Constitutional petition dismissed in limine

Leave granted to consider plea that petitioner's revision was in fact pending at relevant time and there were other indications on record showing that deed of association in favour of respondent might be fabricated one.

Appellant a local, filing his L.H. Form for transfer of portion of property in his possession as residence-Settlement Commissioner by his well-reasoned order holding this residential portion to be a separate unit and appellant entitled to its transfer on basis of evaluation price as according to its rental per month

Appellant, held, entitled to transfer of residential portion with no right over shops.

Finding of fact reached by Settlement Commissioner, after referring to documentary evidence, that respondent who was occupant of house since 1947 submitted an N . C . H . Form

Such finding of fact interfered with by Single Judge in writ jurisdiction which he could not, especially when it was based on material on record

Since occupant of house applied for transfer of property on N.C.H. Form, property was not available for transfer through earmarking process

Order of Letters Patent Bench upholding transfer of disputed property in favour of respondent, held, unexceptionable.

Entire building transferred to petitioners with exception of two rooms on ground floor which were transferred to predecessor-in-interest of respondent-Transfer of these rooms to respondent upheld by High Court

Reasoning applied by High Court not calling for interference with view taken

Leave to appeal refused.

Controversy being factual and raising no question of law, leave to appeal refused by Supreme Court.

High Court refused to interfere in its Constitutional jurisdiction with exercise of discretion by Deputy Settlement Commissioner

Order being unexceptionable, leave to appeal refused by Supreme Court

Leave to appeal refused by Supreme Court.

No law or any principle having been contravened, leave to appeal refused by Supreme Court.

Leave to appeal refused.

Question whether property is agricultural or otherwise being of fact, High Court declined to interfere in writ jurisdiction

Transfer order having been validly concluded on findings of fact, leave to appeal refused by Supreme Court.

[Locus standi].

Property which appellants sought for transfer to them as "available" property already standing transferred to an auction-purchaser

Appellants yet to establish their claim as occupants/tenants

Issue of transfer order in favour of suction purchaser amounting to final disposal of property in his favour and leaving nothing as available" property for transfer to appellants

Points of equity and larches also going against appellants

Appeal against order of High Court refusing g discretion constitutional relief to appellants dismissed.

Room in dispute situated in between houses transferred to appellant and respondent and both of them claiming ownership of room

Finding of fact reached by Member, Board of Revenue that dispute regarding room in question was a pending case and that said room was essentially a part of house transferred to appellant- Finding, held, not open to interference by High Court in exercise of its conational jurisdiction

Order of High Court transferring room in question to respondent set aside and order of Member of Board of Revenue restored.

Agreement of association before actual transfer of property, held, valid.

Order being unexceptionable, petition for leave to appeal dismissed.

Petitioner also being guilty of serious laches in pursuing matter, transfer order upheld by Supreme Court.

Petitioner having failed up to Supreme Court, sought transfer on ground that entire portion in his possession was not auctioned and left out portion be transferred to him

Question about transfer, auction and eligibility of petitioner having already been decided, his Constitutional petition was rejected

Leave to appeal refused by Supreme Court.

Findings of fact by Settlement Commissioner on basis of departmental record that appellant wad not served with any notice demanding payment of transfer price and that property in dispute was not legally available for auction set aside by High Court on mere presumption and surmises

View of High Court that Settlement Commissioner possessed no power of revision after issue of P . T . D . also found not in consonance with rule laid down by Supreme Court in 1973 S C M R 407

Judgments of High Court set aside and that of Settlement Commissioner upheld.

Settlement Department, held, justified to allot rest of property, after deducting portion transferred to petitioner, to respondent as available property under Scheme No. VIII and petitioner could not object to allotment of property to respondent and finding of Settlement Department in that regard could not be described as without lawful authority and of no legal effect.

Sched., para. 1 read with Ss. 2(b) & 19-Transfer of property-Application not filed against transfer order but independent claim for transfer of portion in occupation of respondent-Such application, held, could not be treated as appeal. [Appeal (civil)].

S. 10 and Sched. read with Constitution of Pakistan (1973), Art. 199-Transfer of property-Possession asserted for purpose of transfer-Held, must be in one's own right and not on behalf of another Inference drawn by Settlement Authority in such regard found to be perverse to material before it-Held, can be interfered with by High Court-Order of High Court reversing finding of Settlement Commissioner not found open to exception-Leave to appeal refused Constitution of Pakistan (1973). Art. 185(3).

Art. 185 (3) read with Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 4 (3)-Transfer of property Dispute relating to question whether property sought to be transferred lay within one Khasra number or other-Sole objection raised in petition that application for getting disputed property demarcated was not decided by High Court turning out to be unfounded-Leave to appeal refused.

Ss. 2(4) & 10-Transfer of property-Contest between allottee-non claimant and non-allottee claimant-Preference to be given to person in undisputed possession of property in dispute.

Sched. Part II-Transfer of property-Fixation of terminal date for application-Chief Settlement Commissioner, held, not competent to prescribe a terminal date within which a person could have applied for transfer of evacuee property, hence, question of condonation of delay, if shop otherwise available for transfer, did not arise.-[Condonation of delay].

Sched.-Transfer of property-Petitioners unsuccessfully trying to get property transferred against their verified claims-Held, estopped to turn round and assert that such property was evacuee trust property.