Manmal Shirchand Oswal ... vs Sahebjada Amirjada Shiraji & Anr.
2001 Latest Caselaw 360 Bom

JUDGMENT

S. A. Bobde, J.

1. This appeal is preferred by the original plaintiff whose suit for possession of the suit premises was decreed by the Trial Court. In an appeal carried by the Respondents, the decree was refused by the Appellate Court, against which this Second Appeal has been admitted.

2. The suit premises are a portion of one shed of a piece of property, totally admeasuring 478 sq. yards on final plot No. 141/A situated at Karad, District Satara. Since the transaction is of the year 1966, the portion of the property which is the subject matter of the suit has been described as a 2 Anna share from the total 478 sq. yards. This 2 Anna share is referred to suit property for the sake of convenience. At the outset. It must be noted that there is no dispute whatsoever as to the other portion of the property, that is, the 14 Annas share of 478 sq. yards.

3. The appellants purchased the suit property from one Ashabai Shaikh by a registered Sale Deed dated 14.1.1966 Exhibit 23. By this registered Sale Deed, Ashabai purported to convey the entire 16 Annas share, that is, the entire property admeasuring 478 sq. yards from final plot No. 141/A. It is admitted position that AshabaJ was in fact owner of 14 Annas share. Therefore, no dispute for that 14 Annas share in the suit plot has been voluntarily conveyed in favour of the plaintiff.

4. The suit property in dispute, viz. the 2 Anna share in the suit plot originally belonged to one Daulata, who had two sons Kashinath and Ganpati. The appellant claimed in his plaint that Ashabai, from whom he purchased the properly came into possession of the property in pursuance of an agreement entered into by her with Ganpati on 24.8.1964 (Exhibit 38). This agreement states that Ashabai was put in possession of the suit property. The appellant claimed that thereafter on 14.1.1966 he purchased the entire property, that is, to the extent of 16 Annas from Ashabai by Registered Sale Deed (Exhibit 23). That it is in this transaction, that he also became owner of the suit property, that is. 2 Anna share. It is accepted by the Appellants before this Court that on 14.1.1966, when he purchased the entire suit properly, Ashabai was not owner of the 2 Annas share. In fact, it is an admitted position that Ashabai became the owner of 2 Anna share subsequently, that is. on 21.1.1966 when Ganpati. son of Daulata executed a Registered Sale Deed in respect of the suit property in her favour. The rival claim on the properly arises in this way. The defendant No. 1 Sahebjada, claims to have purchased this suit property from one Mahadev by a Registered Sale Deed dated 30.10.1975 (Exhibit 68). Mahadev claims to have purchased this property from the other son of Daulata. that is, Kashinath on 14.1.1970 by a Registered Sale Deed at Exhibit 67. The appellant claimed in the suit that while he was away, the respondent No. 1 Sahebjada took over possession of the property and has constructed thereon. Hence, the present suit.

5. In this suit, the appellant has claimed possession of the suit property and a mandatory injunction directing the respondents to demolish the shed constructed by him on the land.

6. The Trial Court found that the appellant became owner of the entire property bearing final Plot No. 141/1 admeasuring 478 sq. yards and had also been in possession of the entire property, including the suit property. The Trial Court therefore decreed the suit granting the appellant a decree for possession and mandatory injunction.

7. The Appellate Court set aside the decree of the Trial Court. It rendered a finding of fact that there was voluminous documentary evidence on record to show that initially, it is respondent No. 2, who

was in possession of the suit properly. Thereafter, the respondent No. 1 came into possession of the suit property. The finding, that the respondent No. 1 was in possession was based on the Registered Sale Deed, the mutation entries. Town Planning Scheme and the tax receipts of the Municipal Council, Karad.

8. The Appellate Court found that the Appellant has no title to the disputed property also. This finding was based on section 43 of the Transfer of Property Act, 1882, which reads as follows :

"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.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."

The Appellate Court has found that the appellant, who claims to be the transferee of the property has not performed any overt act which indicates that he has exercised his option within the meaning of the above section. That since the respondents are transferees in good faith for consideration without notice of the existence of the above. Their title of possession is not liable to be disputed.

9. Therefore, the only question that falls for consideration in this Second Appeal is whether the appellants have perfected their title under section 43 of the Transfer of Property Act, 1882 in view of the fact that when the appellants purchased the entire property, in which the suit property is situated, by Registered Sale Deed dated 14.1.1966 from Ashbai, Ashabai was not the owner of the 2 Anna share. That Ashabai having admittedly became the owner of the 2 Anna share, that is, the suit property, only subsequently on 21.1.1966 by a registered sale deed dated 21.1.1966 by which Ganpatl Daulata conveyed the suit property in her favour. The question that arises is whether the appellant became owner of the suit property by virtue of the principle offeeding the estoppel", contained in section 43 of the Transfer of Property Act.

10. Now, there is no doubt that if the appellant can be shown to have had an option, which he exercised in some form or another, the earlier transfer dated 14.1.1966 made by Ashabai in his favour would operate on any interest which she acquired subsequently during the time the contract of transfer subsisted. There is no dispute that the contract of transfer has been in subsistence. The only question therefore is whether in the facts and circumstances of the case, the appellant can be taken to have exercised in any form, an option was vested In him on account of the transfer dated 14.1.1966. Ashabai purported to transfer the entire plot, on which the suit property is located and Including the suit property, though she had no title to the suit property.

11. A plain reading of section 43 shows that no particular form of option is prescribed by law. The importance of the exercise of option is mainly due to the fact that the right of subsequent transferees of the same property are protected by the later part of section 43, if they are transferees in good faith, for consideration without notice of the existence of the said option.

12. Mr. Gokhale, learned counsel for the appellants submitted that it has been the view of the several High Courts including this Court that there is no particular form in which the option should be exercised and the mere fact that the transferee has been in possession and has ascertained his rights over the property is sufficient to construe the existence of the option. Mr. Gokhale, learned counsel for the appellants primarily relied on the decision of a learned Single Judge of this Court in the case of Onkar v. Shamrao Shivrao Palhade & Anr, in which this Court has, after considering the judgments in Gomathy Animal v. Rukmini Amma. Jumma Masjid Mercara v. Kodimaniandra Davia,; Krishnadhan v. Kanailal,; Girja Shankar v. Jagannath, has come to the following conclusion:

"I am also of the considered view that the option exercised by the transferee under section 43 is not required to be exercised in express term or in a particular form. The exercise of option by the transferee can be implied from the very fact that the plaintiff has been claiming his right over the entire properly and that he was proceeding against not only transferor but also the so-called subsequent transferees. In the present case, therefore, on the basis of facts found, it can be concluded that the plaintiff has exercised his option and that the defendant Nos. 3 and 4 i.e. the present appellants have failed to establish that they were bona fide purchasers for value without notice and, therefore, the Appellate Court did not commit any error in holding that the principle of "feeding the estoppel" and provisions contained In section 43 of the Transfer of Property Act were fully attracted. By applying the principle of "feeding the estoppel" and section 43 of the Transfer of Property Act, the Appellate Court has not committed any error in holding that the plaintiff has proved his title over the house property."

13. Mr. Ketkar, learned counsel for the respondent No. 1 however submitted that this decision is ofno avail to the appellant in view of the fact that the appellant has not been found to be in possession of the property and, therefore, the mere fact of the appellant being in possession could not be held to be indicative of the appellant having acted on the option.

14. Having considered the rival submissions, I am of view that the appellant is not entitled to the benefit of section 43 of the Transfer of Property Act since there is no overt act by which he indicated that he had an option, by which he could show that the earlier transfer in his favour by Ashabai would operate on any interest which Ashabai acquired subsequently. Indeed, as held by this Courl. there is no particular form prescribed of indicating an option, contemplated by section 43, and, in a given case, the mere fact that the transferee was in possession and continued to ascertain his rights in respect of the property in his possession has been held sufficient notice of the existence of the option in the transferee. The reason for this provision cannot be over emphasized since it is only if the transferee indicates that he has an option which

has already inserted in him by virtue of an earlier transfer, that the question of whether the subsequent transferee in good faith had notice of the existence of such an option can be considered.

15. Having regard to the clear finding of fact by the First Appellate Court that the respondent No. 2 was initially in possession of the suit property; thereafter the respondent No. 1 came in possession of the said property. I am of view that the appellant has not indicated his option within the meaning of section 43 of the Act so as to invalidate the rights of the respondent Nos. 1 and 2 in the said property, which they have acquired under the various sale deeds from Kashinath, the other brother of Ganpati. I, therefore find that both the important ingredients of section 43 have not been established by the appellant viz. :

(a) that he indicated the existence or exercise of an option in his favour and,

(b) that the respondents had notice of the existence of the said option.

Had it been established that the appellant was in possession and had asserted his rights, the story might have had a different ending. But, that Is not so, though the learned counsel for the appellant did urge that it is possible to reappraise the entire evidence to come to a conclusion that, in fact, the appellant was put to possession and remained in possession till the respondents engaged and disturbed his possession, I do not consider illegal or proper for this Court to undertake the exercise of reappraisal of evidence as to possession. One thing is clear, the appellant has sued for possession in this suit.

16. It was urged on behalf of the appellant that the respondents are not entitled to a finding that they are bona fide purchasers for value without notice of the existence of the option since they have not. in fact, so pleaded. The learned Counsel for the respondents has pointed out that, in fact, the appellant has nowhere pleaded in the plaint that he was entitled to have the earlier transfer in his favour operate on the acquisition of a subsequent interest by Ashabai. In fact, the plaint does not even refer to the subsequent Sale Deed dated 21.1.1966 under which the appellant is said to have subsequently acquired the interest as a result of which the appellant could have said to become entitled to the ownership of the subsequently acquired interest. In this regard, reference may be made to a decision in Kisan Sitaram Ambekar & Ors. v. Sitaram Tulsiram & Ors., in which Bose, C.J. (as he then was) observed as follows :

"It has been settled by numerous decisions, which are collected by Sir Dinshah Mulla at pp. 209 and 210 ofEdn. 8 of his Transfer ofProperty Act and by B.B. Mitra at p. 184 of the 9th Edn. of his book on the Act and is also suggested in Cfandulal v. Raghunathdas., at p. 86 that section 43 is a species of estoppel and so cannot be availed of by a person who knows the facts and was not misled, and, according to some of those decisions, it is necessary for the person wanting to take advantage of this section to plead and prove that he took the transfer in good faith believing in and being misled by the erroneous representations made by the transferor. I need not go as far as that, but it is evident that the questions of knowledge and belief are material and

so the other side must be given a chance of raising these defences if and when section 43 is pleaded. It is very unlikely that Mt. Anusuya did not know of the insolvency proceedings at the date of her purchase because she was Sitaram's daughter-in-law and it was the two mortgages to her which occasioned the Insolvency."

17. In this view of the matter. I find no merit in the Second Appeal, which is hereby dismissed with costs.

18. Parties to act on an ordinary copy of this order duly authenticated by the Sheristedar of this Court.

19. Certified copy expedited.