Published By The Daily Star on December 04, 2010 (Link Above)
This week your advocate is Barrister Omar Khan Joy of the Supreme Court of Bangladesh and Head of ‘The Legal Counsel’. His professional interests include commercial law, corporate law, family law, land law, constitutional law, banking law, arbitration and intellectual property laws. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.
I am faced with a problem regarding the sale of my property. About 5 years back a party came to me for the purchase of my property. He prepared a sale agreement (unregistered Baina) to his choice. As a gentleman I trusted him and did not object to any of his demands. Neither did I consult any legal expert in this regard. He made some timely advance payment as per the agreement, handed over the possession of part of the property to one of his relative and vanished. He could neither be contacted nor reached after this despite my utmost efforts. Later on I understood that he was in financial troubles and was avoiding me. Subsequently some piecemeal staggered payments were again made and till date complete payment has not been made. Subsequently I issued him with a Legal Notice declaring the agreement cancelled and asked him to take back his paid money and vacate my premises to which he is not responding. I have been told that going to the court for such matters is very cumbersome and lengthy. Please advise what I should do in such a situation for a quick solution, as I am not getting any younger.
I would like to thank you very much for asking me to provide opinion regarding the sale of your property. Having gone through your query, I have understood that you are willing to know whether you can cancel the sale agreement (Bainanama) that was executed between you and the buyer of your property about 5 years ago and recover the possession of your land.
The Registration Act 1908 provides that contract for sale of any immovable property shall be in writing, executed by the parties thereto and registered. Besides, the agreement shall be presented for registration within thirty days from the date of execution of the same and the provisions regarding registration of instrument shall apply. This newly incorporated provision came into effect from 1st July 2005.
Since your agreement was executed about five years back, we assume that it was the year of 2005 and the section will be applicable. Therefore, the agreement does not appear to be presented for registration within 30 days from the days of execution. On the other hand, if it is presumed that the agreement was executed more than five years ago, then the 1908 Act requires the agreement for sale to be presented for registration within six months of the date on which the aforementioned newly incorporated provision comes into force.
As far as the effect of non-registration is concerned, the Registration Act 1908 provides that unless registered, the document shall not create, declare or assign any right, title or interest in that property. Therefore, the sale agreement of the given problem is unlikely to have any binding effect. Therefore, your sale agreement appears to be already cancelled by operation of law.
Now concerning the issues of part payment and subsequent staggered payment along with the possession of your property the Transfer of Property Act 1882 is likely to be pertinent. The Act prohibits the transferor (i.e. the seller) from enforcing any right in respect of the property of which the transferee (i.e. the buyer) has been in possession provided the buyer has performed or is ready to perform his obligations under the contract. The provision applies even though the contract has not been registered or the transfer has not been completed in prescribed manner. Thus, this requirement may be useful in your case as the buyer is yet to complete the payment and has been inconsistent with the performance of his contractual obligation, you should not be prevented from enforcing your right.
Considering the vacation of your premises, the Specific Relief Act 1877 provides for the recovery of possession of specific immoveable property. In order to invoke your right to possession a case has to be filed under the 1877 Act before the competent court. As your premise is occupied by one of the relatives of the buyer, the section appears to be useful.
However, as you are looking for a quick solution, having recourse to the court may not be the best course of action for you as it may take a significant time to completely dispose of the matter. As you know that the procedure of the court is lengthy and time consuming. Although you have served a legal notice and no response was made to it, you can still look for an amicable solution to the problem. This may be achieved by way of negotiation with the concerned parties. However, in case the discussion fails, you may have no other option but to resort to court. In such case, you should appoint a competent lawyer to deal with the case.
I hope that the above legal opinion shall help you to understand your queries and to take the appropriate next course of action(s).
For detailed query contact firstname.lastname@example.org