Illegal or fraudulent transfers of property—whether through forged documents, impersonation, or misuse of authority—are sadly common in Pakistan. To safeguard your ownership rights, Pakistani law provides strong legal remedies to challenge such illegal transactions.
Challenging an illegal transfer of property in Pakistan involves several steps and legal remedies. The process typically includes identifying the illegality, gathering evidence, and pursuing legal action through the appropriate courts or tribunals. This guide outlines the necessary steps, procedures, relevant laws, and required documents to effectively challenge such a transfer.
Relevant Laws
- Transfer of Property Act, 1882
- Registration Act, 1908
- Specific Relief Act, 1877
- Pakistan Penal Code, 1860 (Sections 420, 467, 468, 471 - Fraud & Forgery)
- Civil Procedure Code, 1908 (for filing suits)
Common Scenarios of Illegal Transfer
Forged sale deed
Misrepresentation of ownership
Sale without owner’s consent
Power of attorney misuse
Fake mutation in revenue records
- Identifying the Illegality
The first step is to identify the grounds on which the property transfer is illegal. Common reasons include fraud, forgery, misrepresentation, violation of inheritance laws, or lack of legal capacity of the transferor. Instances of fraud and forgery are serious concerns, as highlighted in Ghazala Ali v. Sikandar Ramzan Chaudhry, 2024 P Cr. L J 909, where allegations of forged signatures and concealment of legal heirs were central to the dispute. - Gathering Evidence
Collect all relevant documents and evidence that support the claim of illegal transfer. This may include:
- Original property documents
- Sale deeds
- Gift deeds
- Mutation records
- Power of attorney documents
- Record of rights
- Any communication related to the property transfer
- Forensic reports, in case of forgeryIn Mst. ZOHRA BAI MERCHANT through L.Rs. and others Versus Mst. FATIMA KHANUM and 3 others, 2007 CLC 64, the court emphasized the importance of concrete evidence to support claims of property ownership, cautioning against fraudulent mutations and transfers. Lack of evidence can undermine a case, as seen in RASOOL KHAN and 9 others v Haji BANARAS KHAN and 5 others, 2002 P Cr. L J 286, where the court dismissed the appeal due to the absence of tangible evidence supporting fraudulent mutations.
- Legal Options and Procedures
- Civil Suit for Declaration and Cancellation:
- File a civil suit in the appropriate court seeking a declaration that the transfer is illegal and a cancellation of the relevant documents (Mst. ANWAR KALSOOM and 2 others Versus GHULAM RAZA and another, 2018 YLR 1028).
- The suit should be filed in the court within whose jurisdiction the property is located, as per The Code of Civil Procedure, 1908, Section 16.
- Relevant Laws:
- Specific Relief Act, 1877: Provides remedies such as declaration and injunction.
- Transfer of Property Act, 1882: Governs the transfer of property and related conditions.
- Qanun-e-Shahadat Order, 1984: Outlines the rules of evidence.
- In Mst. FIRDOS NAZIA AJMAL and 7 others Versus Mst. IQBAL BEGUM and another, 2019 CLC 4, the court underscored the necessity of adhering to legal requirements for property transfers, particularly concerning the validity and proof of agreements to sell and general powers of attorney.
- Criminal Proceedings:
- If the illegal transfer involves fraud, forgery, or other criminal activities, file a First Information Report (FIR) with the police (Ghazala Ali v. Sikandar Ramzan Chaudhry, 2024 P Cr. L J 909).
- Relevant Laws:
- Pakistan Penal Code (PPC): Includes sections dealing with fraud (420), forgery (468), and using forged documents as genuine (471).
- Criminal Procedure Code (Cr.P.C.): Governs the procedure for criminal investigations and trials.
- Note that criminal proceedings may be stayed pending the outcome of civil suits to prevent conflicting outcomes, as seen in Atiq-ur-Rehman v. Mst. Rani and others, 2010 YLR 2421.
- Illegal Dispossession Act, 2005:
- If the property was illegally occupied, a complaint can be filed under The Illegal Dispossession Act, 2005. This law aims to provide quick relief against illegal dispossession.
- Relevant Sections:
- Section 3 prohibits illegal possession of property.
- Section 8 allows the court to direct the restoration of property to the owner.
- In MAQSOOD AHMED QURESHI Versus MUHAMMAD AZAM ALI SIDDIQUI and 8 others, PLD 2009 Karachi 65, the court clarified that this Act applies to all cases of illegal dispossession, not just those involving organized land grabbers.
- Action Before Revenue Authorities:
- File a complaint with the relevant revenue authorities to challenge illegal mutations or transfers recorded in the revenue records.
- Relevant Law:
- Punjab Land Revenue Act, 1967 (if applicable in the relevant province): Provides the framework for land administration and revenue records. In Mst. ANWAR KALSOOM and 2 others Versus GHULAM RAZA and another, 2018 YLR 1028, the court set aside the judgments of lower courts, noting contradictions in witness statements and unexplained cuttings in revenue records, emphasizing the importance of transparency in revenue transactions.
- Interim Relief
- During the pendency of the suit, seek interim orders from the court to prevent further transfer or alienation of the property.
- Relevant Provisions:
- The Code of Civil Procedure, 1908, Section 94, allows the court to issue temporary injunctions and appoint receivers to protect the property.
- Specific Scenarios and Considerations
- Benami Transactions:
- If the property is held in the name of someone else (benamidar), the Benami Transactions (Prohibition) Act, 2017 may apply. This law prohibits benami transactions and provides for the confiscation of benami properties.
- Relevant Section:
- Section 54 makes certain benami transfers void.
- Transfers Defeating Creditors:
- If a transfer was made to defeat creditors, Section 53 of the Transfer of Property Act, 1882, allows the affected creditor to void the transfer.
- Property Transfers during legal proceedings
- THE OFFENCES IN RESPECT OF BANKS (SPECIAL COURTS) ORDINANCE, 1984" Section 7 states After a Special Court has taken cognizance of a scheduled offence alleged to have been committed by an accused person, such person or any relative of such person or other person on his behalf shall not, without the previous permission in writing of the Special Court, transfer, or create a charge on, any movable or immovable property owned by him or in his possession, while proceedings are pending before the Special Court; and any transfer of, or creation of a charge on, such property without such permission shall be void.
- THE PREVENTION OF SMUGGLING ACT, 1977 Section 35 states After the issue of a notice or copy of a notice under section 31, the property mentioned in such notice shall not be transferred by any mode whatsoever, no r shall any change be created thereon, which proceedings under this Chapter are pending and any transfer of such property or creation of charge in contravention of this section shall be void; and if such property is subsequently forfeited to the Government under section 32, it shall vest in that Government free of any encumbrances created after the issue of the notice.
- The Establishment of Special Court (Overseas Pakistanis Property) Act, 2024 Section 15 states After publication of notices under sub -section (1) of section 6, no respondent shall transfer, alienate, encumber, remove or part with possession of property pending final decision of the suit or petition filed by the petitioner under this Act and any such transfer, alienation, encumbrance or other disposition by the respondent in violation of this sub -section shall be void and of no legal effect.
- The Khyber Pakhtunkhwa Ehtesab Commission Act, 2014 Section 29 states after an inquiry or investigation has been initiated into any suspected offence under this Act, alleged to have been committed by an accused, the accused, any of his dependent, relative, associate or a benamidar, shall not transfer by any means whatsoever, or create a charge on any property owned by him or in his possession, while the inquiry, investigation or legal proceedings are pending before the 1[Directorate General] or the Court, and any transfer of any right, title or interest or creation of a charge on such property shall be void.
- Bona Fide Purchaser
- If the property has been further transferred to a third party, the court will consider whether the third party was a bona fide purchaser for value without notice of the illegality.
- Relevant Provision:
- Section 41 of the Transfer of Property Act, 1882, protects the rights of bona fide transferees who have acted in good faith.
- However, in ABDUL AZIZ Versus ABDUL KAREEM and 9 others, 2023 YLR 104, the court clarified that it needs to be proven independently, through impartial evidence, that the subsequent buyer had knowledge of the dispute.
- Role of the Court
- The court plays a crucial role in adjudicating property disputes, protecting the rights of legal heirs, and preventing fraudulent transfers.
- In Amir Karim v. Muhammad Asif and others, 2014 MLD 1537, the court underscored the principle that a plaint should not be rejected if it discloses a cause of action, and factual disputes require evidentiary proceedings.
- Limitations
- Delays in taking legal action can weaken a case. The principle of laches (undue delay in asserting a right) may apply, as highlighted in Ghazala Ali v. Sikandar Ramzan Chaudhry, 2024 P Cr. L J 909, where significant delays in filing the FIR and civil suit were noted.
Conclusion
Challenging an illegal transfer of property requires a strategic approach, thorough evidence gathering, and a clear understanding of the applicable laws and procedures. By identifying the illegality, collecting relevant documents, and pursuing appropriate legal remedies, it is possible to protect one’s property rights and obtain justice. This is a complex domain, navigating it effectively often requires consultation with legal professionals.