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Jote Singh Vs. Ram Das Mahto & Ors [1996] INSC 997 (22 August 1996)

Punchhi, M.M.Punchhi, M.M.Manohar Sujata V. (J)

CITATION: JT 1996 (7) 471 1996 SCALE (6)175



THE 22ND DAY OF AUGUST, 1996 Present:

Hon'ble Mr. Justice M.M. Punchhi Hon'ble Mrs. Justice Sujata V. Manohar Pramod Swarup, Adv. For the appellants. B.B. Singh. Adv. for the respondents.


The following order of the Court was delivered:

Jote Singh (dead) by LRs V. Ram Das Mahto and others


The facts as found by the High Court are that at a point of time, Smt. Udwantia was the owner of the estate left by her late husband - Thakur Mahto. In the presence of her daughter Ram Deiya, she gifted her property to Ramdas Mahto, her grandson, the son of Ram Deiya. This Ramdas Mahto deprived himself of the property by effecting two sales and by suffering an auction sale. Ram Deiya filed a suit, out of which this appeal has arisen, to claim that her mother Udwantia being a limited owner, could not have gifted the property to Ramdas Mahto, the latter's son and, thus, she pleaded for return of the properties, by then in the hands of the transferees and the auction purchaser, The suit was decreed by the trial court. The first appellate court of the Additional District Judge confirmed the same. At the second appellate state before the High Court, the plaintiff - Smt, Ram Deiya - died and her son, Ram das Mahto, who was a defendant in the suit, succeeded to the estate. It was then that an argument was built that since Ram Das Mahto had succeeded to the property, any defect in title to those sales stood rectified and omission(s) supplied by the thrust of the provisions of Sections 41 and 43 of the Transfer of Property Act (the Act). The argument was accepted by the High Court but insofar as the voluntary transfers were concerned. In respect of the court sale, in the execution of a decree against Ram Das Mahtos such treatment was not meted out. This has given rise to this appeal by the auction purchaser, clamouring that he was entitled to equal treatment on the same interpretation of Sections 41 and 43 of the Act, as put by the High Court.

As a doctrine, it is well-established that where a person sells property of which he is not the owner but of which he afterwards becomes the owner, he is bound to make good the sale to the purchaser out of his subsequently acquired interest. See in this connection Alukmonee Dabee vs. Banee Madhub Chuckerbutty and Anr [ILR-IV Calcutta at 677]. It is equally well-settled that the said doctrine does not apply to a sale when made by or through court because of its very nature, it being involuntary from the sufferer's angle. It is also well-understood that neither the provisions of Section 41 nor that of Section 43 of the Act are available for the benefit of the auction-purchasers, for these provisions come to the rescue of transferees from ostensible owners or of transferees who purchase property in good faith from unauthorised persons and who subsequently acquire interest in the property transferred. These two provisions logically get engaged in voluntary transfers and not in involuntary transfers. like auction sales. There is no question of the court ever playing the role of an ostensible owner or a representative owner of the property when selling, so as to attract the provisions of Section 41 or 43 of the Act. In face of these principles, it is difficult to hold that the High Court was in error in not giving the benefit of the aforesaid two provisions to the auction purchaser, the appellant herein.

The appeal, therefore has no merit. It fails and is hereby dismissed. No costs.


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