Kartar Singh Vs. Harbans Kaur [1994] INSC 48 (21 January 1994)

Ramaswamy, K. Ramaswamy, K. Hansaria B.L. (J)

CITATION: 1994 SCC (4) 730 JT 1994 (2) 196 1994 SCALE (2)494

ACT:

HEADNOTE:

ORDER

1. Leave granted.

2. The appellant is the defendant. Smt Harbans Kaur - respondent executed the sale deed on 19-4-1961, in favour of the appellant of alienating the lands on her behalf and on behalf of her minor son, Kulwant Singh. Kulwant Singh, on attaining majority, filed Case No. 21 of 1975 on 14-3-1975 on the file of the Sub-Judge, IInd Class, Gurdaspur for a declaration that the sale of his share in the lands mentioned in the schedule attached thereto by his mother was void and does not bind him. The decree ultimately was granted declaring that the sale was void as against the minor. But before taking delivery of the possession, Kulwant Singh died. Harbans Kaur, the mother being Class-1 heir under Section 6 of the Hindu Succession Act, 1956 read with the schedule succeeded to the estate of the deceased.

The appellant, therefore, laid his claim to the benefit of Section 43 of the Transfer of Property Act, 1882 (for short 'the Act'). The High Court ill Second Appeal No. 1557 of 1979, while setting aside the decree of the trial court and declared that the sale is void, refused to grant the remedy under Section 43 of the Act. Thus these appeals by special leave.

3.The contention for the appellant is that in view of the finding that Harbans Kaur had succeeded by operation of law, the appellant is entitled to the interest acquired by Harbans Kaur by operation of Section 43 of the Act and the High Court has misapplied the ratio of decisions of this Court in Jumma Masjid, Mercara v. Kodimaniandra Deviah1 and the decision of the AIR 1962 SC 847: 1962 Supp 2 SCR 554: (1962) 2 MLJ 90 (SC) 732 Patna High Court in Jhulan Prasad v. Ram Raj Prasad2.

Section 43 of the Transfer of Property Act provides thus :

"Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable 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."

4.A reading clearly shows that for application of Section 43 of the Act, two conditions must be satisfied. Firstly, that there is a fraudulent or erroneous representation made by the transferor to the transferee that he is authorised to transfer certain immovable property and in the purported exercise of authority, professed to transfer such property for consideration. Subsequently, when it is discovered that the transferor acquired an interest in the transferred property, at the option of the transferee, he is entitled to get the restitution of interest in property got by the transferor, provided the transferor acquires such interest in the property during which contract of transfer must subsist.

5.In this case, admittedly, Kulwant Singh was a minor on the date when the respondent transferred the property on 19- 4-1961. The marginal note of the sale deed specifically mentions to the effect :

"... that the land had been acquired by her and by her minor son by exercising the right of pre-emption and that she was executing the sale deed in respect of her own share and acting as guardian of her minor son so far as his share was concerned." 6.It is settled law that the transferee must make all reasonable and diligent enquiries regarding the capacity of the transferor and the necessity to alienate the estate of the minor. On satisfying those requirements, he is to enter into and have the sale deed from the guardian or manager of the estate of the minor. Under the Guardian and Wards Act, the estate of the minor cannot be alienated unless a specific permission in that behalf is obtained from the district court. Admittedly, no such permission was obtained. Therefore, the sale of the half share of the interest of Kulwant Singh made by his mother is void.

7.Section 43 feeds its estoppel. The rule of estoppel by deed by the transferor would apply only when the transferee has been misled. The transferee must know or put on notice that the transferor does not possesses the title which he represents that he has. When note in the sale deed had put the appellant on notice of limited right of the mother as guardian, as a reasonable prudent man the appellant is expected to enquire whether on her own the mother as guardian of minor son is competent to alienate the estate of the minor. When such acts were not done the first limb of Section 43 is not satisfied. It is obvious that it may be an erroneous representation and may not be fraudulent one made by the mother that she is entitled to alienate 2 AIR 1979 Pat 54: 1978 BBCJ 736 733 the estate of the minor. For the purpose of Section 43 it is not strong material for consideration. But on declaration that the sale is void, in the eye of law the contract is non est to the extent of the share of the minor from its inception. The second limb of Section 43 is that the contract must be a subsisting one at the time of the claim. A void contract is no contract in the eye of law and was never in existence so the sencond limb of Section 43 is not satisfied. The ratio of this Court in Jumma Masjid case' is thus :

"Section 43 embodies a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation.It is only material to find out whether in fact the transferee has been misled. For the purpose of the section, it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application and the transfer will fail under Section 6(a)." This Court in the later part has made it clear that where the transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application and the transfer will fail under Section 6(1) of the Transfer of Property Act. In view of the finding that diligent and reasonable enquiries were made regarding the entitlement of the mother to alienate the half share of the minor's estate, it cannot be said that the appellant had acted reasonably in getting the transfer in his favour.

8. In the face of the existence of the aforementioned note and in the light of the law, it could be concluded that Section 43 does not apply to the fact of this case, The ratio of the Patna High Court also does not apply to the facts in this case as rightly distinguished by the High Court. It is made clear that the declaration given by the High Court is only qua the right of the minor and it is fairly conceded by the respondent that the decree does not have any effect on the half share conveyed by the mother. If the appellant has any independent cause of action subsisting under the contract against the respondent, this judgment may not stand in his way to pursue the remedy under the law.

9. The appeals are accordingly dismissed. No costs.

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