Jharu Ram Roy Vs.
Kamjit Roy & Ors.  INSC 52 (13 January 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 151 OF 2009 [Arising out
of SLP(C) No. 2987/2008] JHARU RAM ROY ... APPELLANT(S) :VERSUS:
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 2 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.
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.
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.
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.
4 Section 43 of the
Transfer of Property Act reads as under:
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
(1) the contract of
transfer was made by a person who 5 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
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 6 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
(Dr. MUKUNDAKAM SHARMA)
(ASOK KUMAR GANGULY)
DELHI, JANUARY 13, 2009.