“Exchange” defined  

118. When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “exchange”.

 

A transfer of property in completion of an exchange can be made only in manner provided of the transfer of such property by sale.

   

 

  

  Right of party deprived of thing received in exchange  

119. If any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, then, unless a contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration.

   

  

  Exchange of money  

121. On an exchange of money, each party thereby warrants the genuineness of the money given by him.

   

 

  CHAPTER VII

 

OF GIFTS

  

  

  “Gift” defined   

122. “Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

   

  

  Acceptance when to be made   Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.

 

If the donee dies before acceptance, the gift is void.

   

 

  

  Transfer how effected  

123. For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

 

32[ Notwithstanding anything contained in any other law for the time being in force, a heba under Muhammadan law shall be deemed to be a gift of immoveable property for the aforesaid purpose.]

 

For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

 

Such delivery may be made in the same way as goods sold may be delivered

   

  Gift of existing and future property  

124. A gift comprising both existing and future property is void as to the latter.

   

 

  

  Gift to several of whom one does not accept  

125. A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted.

   

  

  When gift may be suspended or revoked  

126. The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.

 

A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.

 

Save as aforesaid, a gift cannot be revoked.

 

Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.

 

 

Illustrations

 

 

(a) A gives a field to B, reserving to himself, with B's assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A's lifetime. A may take back the field.

 

(b) A gives a lakh of Tk. to B, reserving to himself, with B's assent, the right to take back at pleasure Tk. 10,000, out of the lakh. The gift holds goods as to Tk. 90,000, but is void as to Tk. 10,000, which continue to belong to A.

   

  

  Onerous gifts Onerous gift to disqualified person  

127. Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not, burden by an obligation, the donee can take nothing by the gift unless he accepts it fully.

 

Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the donee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous.

   

 

  

  Onerous gift to disqualified person   A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.

 

 

Illustrations

 

 

(a) A has shares in X, a prosperous joint stock company, and also shares in Y, a joint stock company, in difficulties. Heavy calls are expected in respect of the shares in Y. A gives B all his shares in joint stock companies. B refuses to accept the shares in Y. He cannot take the shares in X.

 

(b) A having a lease for a term of years of a house at a rent which he and his representatives are bound to pay during the term, and which is more than the house can be let for, gives to B the lease, and also, as a separate and independent transaction, a sum of money. B refuses to accept the lease. He does not by this refusal forfeit the money.

 

128. Subject to the provisions of section 127, where a gift consists of the donor's whole property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein.

   

  

  

  Universal donee  

128. Subject to the provisions of section 127, where a gift consists of the donor's whole property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein.

   

  

  Saving of donations mortis causa and Muhammadan law  

129. Nothing in this Chapter relates to gifts of moveable property made in contemplation of death 33[ * * *].

   

 

  CHAPTER VIII

 

OF TRANSFERS OF ACTIONABLE CLAIMS

  

  

  Transfer of actionable claim 

 130. (1) The transfer of an actionable claim whether with or without consideration shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent, shall be complete and effectual upon the execution of such instrument, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not:

 

Provided that every dealing with the debt or other actionable claim by the debtor or other person from or against whom the transferor would, but for such instrument of transfer as aforesaid, have been entitled to recover or enforce such debt or other actionable claim, shall (save where the debtor or other person is a party to the transfer or has received express notice thereof as hereinafter provided) be valid as against such transfer.

 

(2) The transferee of an actionable claim may, upon the execution of such instrument of transfer as aforesaid, sue or institute proceedings for the same in his own name without obtaining the transferor's consent to such suit or proceedings and without making him a party thereto.

 

Exception:-Nothing in this section applies to the transfer of a marine or fire policy of insurance or affects the provisions of section 38 of the Insurance Act, 1938.

 

 

Illustrations

 

 

(i) A owes money to B, who transfers the debt to C. B then demands the debt from A, who, not having received notice of the transfer, as prescribed in section 131, pays B. The payment is valid, and C cannot sue A for the debt.

 

(ii) A effects a policy on his own life with an Insurance Company and assigns it to a Bank for securing the payment of an existing or future debt. If A dies, the Bank is entitled to receive the amount of the policy and to sue on it without the concurrence of A's executor, subject to the proviso in sub-section (1) of section 130 and to the provisions of section 132.

   

 

  

  Transfer of policy of marine insurance  

34[ 130A. (1) A policy of marine insurance may be transferred by assignment unless it contains terms expressly prohibiting assignment, and may be assigned either before or after loss.

 

(2) A policy of marine insurance may be assigned by endorsement thereon or in any other customary manner.

 

(3) Where the insured person has parted with or lost his interest in the subject-matter insured, and has not, before or at the time of so doing, expressly or impliedly agreed to assign the policy, any subsequent assignment of the policy is inoperative:

 

Provided that nothing in this sub-section affects the assignment of the policy after loss.

 

(4) Nothing in clause (e) of section 6 shall affect the provisions of this section.]

   

  

  Notice to be in writing, signed  

131. Every notice of transfer of an actionable claim shall be in writing, signed by the transferor or his agent duly authorised in this behalf, or, in case the transferor refuses to sign, by the transferee or his agent, and shall state the name and address of the transferee.

   

 

  

  Liability of transferee of actionable claim 

 132. The transferee of an actionable claim shall take it subject to all the liabilities and equities to which the transferor was subject in respect thereof at the date of the transfer.

 

 

Illustrations

 

 

(i) A transfers to C a debt due to him by B, A being then indebted to B. C sues B for the debt due by B to A. In such suit B is entitled to set off the debt due by A to him; although C was unaware of it at the date of such transfer.

 

(ii) A executed a bond in favour of B under circumstances entitling the former to have it delivered up and cancelled. B assigns the bond to C for value and without notice of such circumstances. C cannot enforce the bond against A.

   

 

  

  

  

  Warranty of solvency of debtor  

133. Where the transferor of a debt warrants the solvency of the debtor, the warranty, in the absence of a contract to the contrary, applies only to his solvency at the time of the transfer, and is limited, where the transfer is made for consideration, to the amount or value of such consideration.

   

 

  

  Mortgaged debt  

134. Where a debt is transferred for the purpose of securing an existing or future debt, the debt so transferred, if received by the transferor or recovered by the transferee, is applicable, first, in payment of the costs of such recovery: secondly, in or towards satisfaction of the amount for the time being secured by the transfer; and the residue, if any, belongs to the transferor or other person entitled to receive the same.