Leave granted.
This appeal is directed against a judgment and order dated 4.6.2007
passed by the learned Single Judge of the High Court Gauhati in R.S.A No.
169/2006 preferred by the appellant herein, whereby and whereunder the
judgment and order dated 18.4.2006 passed by a Civil Judge, Senior Division, was
affirmed.
The basic fact of the matter is not in dispute.
One Nakho Ram was the owner of the suit property. He had two sons,
namely, Rajiv Lochan Roy and Kamjit Roy. The property in the suit admeasured
16 Bighas 4 Kathas.
Rajiv Lochan executed two deeds of sale in 1982, in respect of about 4
Bighas of land, inter alia, contending that he had half share in the said property.
It is not in dispute that the family of Nakho Ram was governed by Dayabhaga
School of Hindu Law. It is furthermore not in dispute that in 1982, Nakho Ram
was alive and he expired only in the year 1990. Appellant, however, claimed that
in terms of the aforementioned deeds of sale executed by Rajiv Lochan in the year
1982, he had remained in possession of the vested property since the date of
purchase.
It is, furthermore, not in dispute that in the year 1990, a proceeding
under Section 107 as also Section 145 of the Code of Criminal Procedure was
initiated and therein, Respondent No.1 herein was put in possession of the
property.
Respondent No.1 filed a suit in the year 1991 for declaration of his title,
confirmation of possession as also a decree for setting aside two deeds of sale
executed by Rajiv Lochan in the year 1982. The said suit was dismissed by the
learned Trial Judge, inter alia holding that the legal representatives of the
proforma respondents having not been brought on record, the suit had abated. It
was furthermore held that the defendant-appellant acquired title to the suit
property by adverse possession. The suit so far as it related to setting aside the
aforementioned deeds of sale was, however, held to be barred by limitation.
The First Appellate Court, however, on an appeal preferred by the
contesting respondents, reversed the said findings of the Trial Court opining that
as the defendant-appellant was a party to the fraud perpetrated by Rajiv Lochan
in so far as he was, at all material times, aware that in the year 1990, Nakho Ram
was alive and not dead, he cannot take benefit of the said deeds of sale and the
same were void ab initio. The High Court, as noticed hereinbefore, has affirmed
the said view.
Learned counsel appearing on behalf of the appellant would contend
that the High Court committed a serious error in passing the impugned judgment
in so far as it failed to take into consideration the provisions of Section 43 of the
Transfer of Property Act, in terms whereof, having regard to the fact that Rajiv
Lochan had also died in the year 1992, the doctrine of feeding the estoppel
became applicable to the facts of the present case.
A finding of fact has been arrived at by the First Appellate Court that
the appellant was also a party to the fraud inasmuch as he was all along aware
that on the date of execution of the deeds of sale, Nakho Ram was alive.
Indisputably, therefore, the appellant entered into the aforementioned transaction
knowing fully well that Nakho Ram was alive in the year 1992, Rajiv Lochan
could not have executed the deeds of sale and only with a view to obviate the legal
difficulties, Nakho Ram was shown to have expired.
Appellant was furthermore aware that although Rajiv Lochan did not
inherit the property of Nakho Ram, he executed the aforementioned deeds of sale.
Rajiv Lochan, thus, having no title to the property, by said deeds of sale or
otherwise, evidently could not have derived any title thereover.
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 immovable property and professes to transfer
such property for consideration,l 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.”
In this case, as the appellant averred that although in the deeds of sale, a
stipulation was made by Rajiv Lochan that his father had expired, it cannot be
said to be a case where he fraudulently or erroneously represented that he was
authorized to transfer the said immovable property. As noticed hereinbefore, a
finding of fact had been arrived at by the First Appellate Court that the appellant
was a party to the fraud and that he was not victim thereof.
Our attention, however, has been drawn to a decision of this Court in
[2007 (2) SCC 404]. In the said decision this Court laid down the law in the
following terms:
“12. In order to get the benefit of the said provision, the conditions
which must be satisfied are:
(1) the contract of transfer was made by a person who
was competent to contract; and
(2) the contract would be subsisting at the time when a
claim for recovery of the property is made.
13. However, the provisions would have no application if the
transfer was invalid as being forbidden by law or contrary to
public policy, as envisaged under Section 23 of the Contract Act.
Thus, no estoppel can be pleaded contrary to the provisions of a
statute. The 'rule of feeding the estoppel' shall apply in absence
thereof.
14. The doctrine of feeding the estoppel envisages that 'where a
grantor has purported to grant an interest in land which he did
not at the time possess, but subsequently acquires, the benefit of
his subsequent acquisition, goes automatically to the earlier
grantee, or as it is usually expressed, feeds the estoppel'.
15. The principle is based on an equitable doctrine that a person
who promised to perform more than he can perform must make
good his contract when he acquires the power of performance.
The difference between the ambit of Section 41 and 43 of the Act
is apparent. Whereas Section 41 provides that a transfer by an
ostensible owner cannot be avoided on the ground that the
transferee should take reasonable care to ascertain that the
transferor had power to make the transfer and to act in good
faith before a benefit thereof if claimed by him. Section 43, on the
other hand, enables the transferee to whom a transferor has made
a fraudulent or erroneous representation to lay hold, at his option,
of any interest which the transferor may subsequently acquire in
the property, unless the right of any subsequent purchaser for
value without notice is in effect.”
Fraud vitiates all solemn acts. As the appellant was aware
of the fact that Nakho Ram had not expired in 1992, in our opinion, the
provisions of Section 43 of the Transfer of Property Act cannot be said to have
any application in the instant case.
For the reasons aforementioned, this appeal is dismissed. However, there
shall be no order as to costs.
(S.B. SINHA)