Land
& Property - Transfer of Property Act, 1882, s. 43 - Transfer of
Property - Unauthorized person - Held, where transferor never acquired
by succession, inheritance or otherwise any interest in property during
his life time then provision of s. 43 of Act would not come into
operation as against heirs who succeeded the stridhan property of their
grandmother.
In the peculiar facts of the instant case, in our
considered opinion, the appellant would not be entitled to
take the benefit of the doctrine of feeding the estoppel. The
finding of facts recorded by the two courts based on the
records that the original plaintiff was the owner and title
holder of the said property but by making false and
fraudulent representation by her son that the property
belonged to him, transferred the same in favour of the
appellant.
During the pendency of the first appeal before
the district court, the vendor (son of the original plaintiff)
died. Although on the death, his children did not inherit or
succeeded any interest in the property, through their
deceased
father,
representatives
in
but
the
they
were
appeal.
impleaded
However,
as
during
legal
the
pendency of this appeal, the original plaintiff, namely,
Bannamma died. After her death, the respondents being the
grand children inherited and acquired interest in the suit
property.
Admittedly, the deceased son of the original
plaintiff, namely Nagi Reddy never acquired any interest in
the suit property owned by his mother during his life time.
In the aforesaid premises, the doctrine of feeding the
estoppel would not come into operation as against the grand
children of the original plaintiff. Section 43 in our considered
opinion applies when the transferor having no interest in the
property transfers the same but subsequently acquires
interest in the said property, the purchaser may claim the
benefit of such subsequent acquisition of the property by the
transferor. Had it been a case where the son Nagi Reddy
during his life time succeeded or inherited the property but-
died subsequently, then to some extent it could have been
argued that the heirs of Nagi Reddy who inherited the
property on the death of their father would be bound by the
principle of estoppel. We have, therefore, no doubt in our
mind that in a case where a transferor never acquired by
succession, inheritance or otherwise any interest in the
property during his life time then the provision of Section 43
will not come into operation as against the heirs who
succeeded the stridhan property of their grandmother.
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3198 OF 2007
Agricultural Produce Marketing Committee Vs Bannama (D) by LRs.
This appeal by special leave is directed against the
judgment and order dated 17.10.2003 passed by the High
Court of Karnataka in R.S.A.No.556 of 1997, whereby the
appeal preferred by plaintiff-respondent no.1 was allowed
setting aside the judgment and decree of the appellate court
in RA No.12 of 1994 and confirming the judgment and
decree of the trial court.
2.
The brief facts of the case of the plaintiff-respondent
no.1, as set out in the trial court judgment, are that the
plaintiff was an agriculturist and old lady residing at
Saidapur village.
Whereas, respondent no.2 (defendant
no.2) was none other than the son of the plaintiff and was
vice president of the appellant-first defendant society, which
is a statutory body constituted and functioning under the
Karnataka
Agricultural
(Regulation) Act.
Produce
Marketing
Committee
The suit land bearing Sy.No.58/1
measuring 7 acres 19 guntas situated at Saidapur village of
Yadgir Taluk, for which Smt. Bannamma – plaintiff filed a suit
for declaration of
title claiming that the property was
inherited by her from her father and it was her stridhan
property, which is alleged to be standing in the name of the
plaintiff since 1954-55.
The land Sy.No.58-B has got two
hissas as Hissa Nos.1 and 2, each measuring 7 acres 18
guntas and its khasra pahani numbers are 131 and 132
respectively.
The property claimed by the plaintiff is
Sy.No.58/A bearing Khasra No.131.
3.
The plaintiff being an old lady, allowed her son second
defendant to look after and manage the suit property on her
behalf.
It is pleaded that taking advantage of the same,
second defendant, without the knowledge and consent of the
plaintiff, got mutated the suit land in his name on the basis
of the release deed. It is contended that second defendant
sold the entire suit land to the appellant-first defendant, who
purchased the same without verifying the title of second
defendant
and
got
a
registered
sale
deed
on
28.12.1978(Ex.P.24). The suit land has also been converted
into non-agriculture land.
The first defendant, thereafter,
notified the plots in the property for sale by public auction on
22.12.1989 and 23.1.1990, which came to the information of
the plaintiff and consequently she moved the court by filing
suit for declaration of title and possession of land and
declaration regarding the sale deed.
4.
The trial court decreed the suit holding that the
plaintiff-Bannamma was the owner and directed delivery of
possession of the suit land.
The trial court also directed second defendant to refund the
purchase price to the appellant-first defendant, who, by
preferring an appeal, challenged the decree granted in
favour of plaintiff.
The second defendant filed a separate
appeal challenging the direction to refund the sale price.
The appeals of the defendants were allowed and the
judgment and decree passed by the trial court was set aside,
holding that Nagi Reddy-second defendant was the owner of
the suit property with title to sell the property. It is evident
from the record that Nagi Reddy-second defendant died
during the pendency of the appeal and his children, who are
grandchildren of Bannamma-plaintiff were brought on record
as Lrs. of Nagi Reddy.
5.
Aggrieved by the decision of the Appellate Court,
Bannamma-plaintiff preferred regular second appeal being
RSA No.556 of 1997.
The High Court reversed the finding
recorded by the Appellate Court and allowed the regular
second appeal decreeing the suit of plaintiff-Bannamma
holding that plaintiff has title to the suit property and her
son-defendant no.2 could not have sold the property. The
second defendant remained absent before the High Court.
The first defendant contended that second defendant in
collusion with plaintiff brought the suit.
The plea of
limitation was also raised. In the impugned judgment, the
High Court found that the sale deed was obtained by the first
defendant in December, 1978 and the suit is filed during
April, 1990 before the expiry of 12 years.
Learned Single
Judge of the High Court further observed that merely by the
fact that the plaintiff came to know about the execution of
sale deed cannot be inferred as an effective threat to the
title. Even otherwise, in case of relief of possession based
on title, a person can always maintain an action within 12
years from the date of the dispossession.
In the present
case, within 12 years from the date of Ex.P.24, the suit was
filed.
It is not really necessary for the plaintiff to seek a
declaration that the sale deed is void. On the proof of title,
the plaintiff is entitled to maintain an action for recovery of
possession.
6.
Learned Single Judge of the High Court in the impugned
judgment further held that there is no evidence to show that
the plaintiff had expressly or tacitly allowed the second
defendant to execute the sale under Ex.P.24 in favour of first
defendant.
The fact that the first and second defendants
were residing together is not sufficient by itself to infer a
collusion or a fraud when the revenue records indicated that
the property was standing in the name of the plaintiff.
In
that view of the matter, regular second appeal preferred by
the plaintiff is allowed by the High Court.
7.
Aggrieved by the impugned judgment of the High
Court, defendant no.1 has preferred present appeal by
special leave in which on 20.7.2007, leave was granted and
interim order to maintain status quo with regard to
possession was continued.
During the pendency of the
appeal, respondent no.1-plaintiff also died and her legal
heirs namely Shailaja, Prabhavati and Prakash, who are also
legal heirs of respondent no.2-second defendant Nagi Reddy,
were brought on record by this Court on 17.10.2012.
8.
We have heard learned counsel appearing for the
appellant. Mrs. Anjana Chandrashekhar, learned advocate
appearing for the appellant, assailed the findings of the High
Court on various grounds which were taken before the first
appellate court including that the plaintiff in her evidence
admitted that she along with her son-defendant No.2 were
living in the same house, but nowhere she stated in her
evidence as to in which year she acquired the suit land as
stridhan. Learned counsel put reliance on exhibit P-20,
P-21 and P-22 to establish that defendant No.2 Nagi Reddy,
was shown as owner of the property.
9.
We do not find much force in the submissions made by
the counsel. The first appellate court, while reversing the
finding of the trial court, has not considered most relevant
documents which were relied upon by the trial court in
coming to the conclusion that the suit property was owned
by the plaintiff.
evidence
The High Court elaborately discussed the
adduced
by
the
parties,
both
oral
and
documentary, and affirmed the finding of facts recorded by
the trial court.
From perusal of the facts and evidence
available on record, we do not find any perversity in the
judgment passed by the High Court.
10. Mrs.
Anjana
Chandrashekhar,
learned
counsel
appearing for the appellant, however, raised an additional
ground which is interesting and needs to be discussed.
11. As noticed above, during the pendency of the first
appeal before the District Court the son of the plaintiff
(defendant No.2), died and his legal representatives were
substituted in his place. Thereafter, during the pendency of
this appeal the original plaintiff-respondent No.1 also died on
17.5.2010 leaving behind the children of her son Nagi Reddy
as legal representatives, who have been brought on record
in different capacity.
12. In these backgrounds, Mrs. Anjana Chandrashekhar,
learned counsel for the appellant submitted that assuming
for a moment, Nagi Reddy had no title to the property as his
mother-original plaintiff was the absolute owner, as held by
the
High
Court,
the
grand
children
being
the
legal
representatives of Nagi Reddy would step into the shoes of
plaintiff as title holders. Since Nagi Reddy having no title to
sell the property, his children got the title on account of
death of grandmother through her son Nagi Reddy. In this
regard, learned counsel referred Section 15 of the Hindu
Succession Act and submitted that on the death of the
original plaintiff the grand children having been claimed
through their father Nagi Reddy, the principle of feeding the
grant by estoppel would come into operation and the sale
executed by Nagi Reddy in favour of the appellant would
become validated by virtue of the death of the plaintiff’s
mother. Learned counsel in this regard referred Section 43
of the Transfer of Property Act.
13.
We do not find any substance in the contention made
by the learned counsel appearing for the appellant. The
doctrine of feeding the grant by estoppel as contemplated
under Section 43 of the Transfer of Property Act reads as
under:-
“43. Transfer by unauthorised person who
subsequently acquires interest in property
transferred.—Where a person fraudulently or
erroneously represents that he is authorised
to transfer certain immoveable property and
professes to transfer such property for
consideration, such transfer shall, at the
option of the transferee, operate on any
interest which the transferor may acquire in
such property at any time during which the
contract of transfer subsists.
Nothing in this section shall impair the
right of transferees in good faith for
consideration without notice of the existence
of the said option.”
14. The doctrine is based on the principle of law of
estoppel.
It simply provides that when a person by
fraudulent or erroneous representation transfers certain
immovable property, claiming himself to be the owner of
such property, then such transfer will subsequently operate
on any interest which the transferor may acquire in such
property during which the contract of transfer subsists. This
doctrine known in English law has form part of Roman Dutch
law, according to which where a granter has purported to
grant an interest in the land which he did not at the time
possess, but subsequently acquires, the benefit of his
subsequent acquisition goes automatically to the earlier
grantee. In other words, where a vendor sells without title in
the property, but subsequently acquires title then a right
accrues to the purchaser to claim interest in the said
property
and
it
automatically
goes
in
favour
of
the
transferor.
15. In the peculiar facts of the instant case, in our
considered opinion, the appellant would not be entitled to
take the benefit of the doctrine of feeding the estoppel. The
finding of facts recorded by the two courts based on the
records that the original plaintiff was the owner and title
holder of the said property but by making false and
fraudulent representation by her son that the property
belonged to him, transferred the same in favour of the
appellant.
During the pendency of the first appeal before
the district court, the vendor (son of the original plaintiff)
died. Although on the death, his children did not inherit or
succeeded any interest in the property, through their
deceased
father,
representatives
in
but
the
they
were
appeal.
impleaded
However,
as
during
legal
the
pendency of this appeal, the original plaintiff, namely,
Bannamma died. After her death, the respondents being the
grand children inherited and acquired interest in the suit
property.
Admittedly, the deceased son of the original
plaintiff, namely Nagi Reddy never acquired any interest in
the suit property owned by his mother during his life time.
In the aforesaid premises, the doctrine of feeding the
estoppel would not come into operation as against the grand
children of the original plaintiff. Section 43 in our considered
opinion applies when the transferor having no interest in the
property transfers the same but subsequently acquires
interest in the said property, the purchaser may claim the
benefit of such subsequent acquisition of the property by the
transferor. Had it been a case where the son Nagi Reddy
during his life time succeeded or inherited the property but-
died subsequently, then to some extent it could have been
argued that the heirs of Nagi Reddy who inherited the
property on the death of their father would be bound by the
principle of estoppel. We have, therefore, no doubt in our
mind that in a case where a transferor never acquired by
succession, inheritance or otherwise any interest in the
property during his life time then the provision of Section 43
will not come into operation as against the heirs who
succeeded the stridhan property of their grandmother.
16. For all these reasons, we do not find any merit in this
appeal, which is accordingly dismissed.
....................................J.
(Ranjan Gogoi)
....................................J.
(M.Y. Eqbal)
New Delhi
July 25, 2014
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