Bombay High Court
Tulsa Mahadeo Nagrale & 4 Ors vs Sita Vilas Zade & 7 Ors on 10 September, 2015
Bench: A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.72 OF 2001
1. Tulsa w/o. Mahadeo Nagrale,
Aged about 73 years, Occ.
Household.
2. Gautam s/o. Mahadeo Nagrale,
Aged about 53 years, Occ. Service,
Both r/o. Naginabag, Ward No.3,
Chandrapur, Tq. and Distt.
Chandrapur (Mah.).
3. Dewanand s/o. Mahadeo Nagrale,
Aged about 45 years, Occ.Service,
r/o. Etapalli, Distt. Gadchiroli.
4. Sau. Pratibha w/o. Lucas Dongre,
Aged about 43 years, Occ.
Household, r/o. Naginabag,
Ward No.3, Chandrapur, Tq.
and Distt. Chandrapur (Mah.).
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5. Sau.Bharti d/o. Baba Charan,
Aged about 41 years, Occ. Service,
r/o. Mahagaon, Tq. Aheri, Distt.
Gadchiroli. .......... APPELLANTS
(L.Rs. of original
defendant
Mahadeo)
// VERSUS //
1. Sita w/o. Vilas Zade,
Aged about 47 years, Occ.
Household work, r/o. Samadhi
Ward, Chandrapur, Tq. and
Distt. Chandrapur (Mah.).
2. Lata w/o. Prashant Mogre,
Aged about 44 years, Occ.
Household work, r/o.Chota Bazar,
Chandrapur, Tq. and
Distt. Chandrapur.
3. Mohan s/o. Narayan Yenurkar,
Aged about 41 years, Occ.
Service, r/o. Jatpura,
Chandrapur, Tq. and
Distt. Chandrapur.
4. Dadaji s/o. Ragho Yenurkar,
Aged about 67 years, Occ.
Business, r/o. Jatpura Ward,
Chandrapur, Tq. and Distt.
Chandrapur (Mah.).
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5. Bhaiyyaji Ragho Yenurkar,
Aged about 65 years, Occ.
Business, r/o. Jatpura Ward,
Chandrapur, Tq. and Distt.
Chandrapur (Mah.).
6. Sonabai w/o. Vistari Lonkar,
Aged about 83 years, Occ.
Household, r/o. Jatpura Ward,
near Raghtate's shop, Chandrapur,
Tq. and Distt. Chandrapur (Mah.).
7. Smt. Bayanabai w/o. Maroti Kamdi,
Aged about 75 years, Occ.
Household, r/o. Samadhi Ward,
Chandrapur, Tq. and
Distt. Chandrapur (Mah.).
8. Gayabai w/o. Madhukar Zade,
Aged about 67 years, Occ.
Household, r/o. Jatpura Ward,
Chandrapur, Tq. and
Distt. Chandrapur. .......... RESPONDENTS
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Mr.M.P.Khajanchi, Adv. for the Appellants.
Mr.Rohit Masurkar, Adv. h/f. Mr.S.W.Ghate, Adv. for the
Respondents.
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********
Date of reserving the Judgment : 2.9.2015.
Date of pronouncing the Judgment : 10.9.2015.
********
CORAM : A.P.BHANGALE, J.
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JUDGMENT :
1. This appeal was admitted by this Court on 26.2.2004
in view of the law laid down by the Apex Court in the case
of Jumma Masjid Mercard .vs. Kodimaniandra Deviah
and Others reported in AIR 1962 SC 847 on the following
substantial question of law :
Did not the First Appellate Court commit a
grievous error of law in observing that there was
no fradulent transfer of erroneous representation
within the meaning of Section 43 of Transfer of
Property Act, when First Appellate Court held
that the deceased Narayan, the son of plaintiff
Nagubai executed registered sale deed (Exh.57)
dated 8-10-1969 on behalf of plaintiff Nagubai
and that he was not authorised by Nagubai to
execute sale deed ?
2. The facts, briefly stated, are as under :
That the original plaintiff deceased Nagubai was
resident of Naginabagh Ward, Chandrapur. She had
purchased plot no.2/19, admeasuring 900 sq.ft. situated at
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Jatpura ward, Chandrapur, on which plinth was built. She
became owner under the registered sale deed dt.12.4.1961
from one Preraj Tahgde. Said Nagubai had instituted suit in
the Court of 5th Joint Civil Judge (Jr.Dn.), Chandrapur for
vacant possession of the suit plot and for permanent
injunction against defendant Mahadeo Waktuji Nagrale
(present appellant) bearing Regular Civil Suit No.143 of
1983. According to Nagubai, the defendant started
construction on the suit plot in March, 1983 by encroaching
upon the suit plot. While, according to the defendants, the
plaintiff had sold the suit plot to him under the registered sale
deed dt.8.10.1979, though she showed her ignorance
regarding registered sale deed executed by her son Narayan
Raghobaji Yenurkar on her behalf for a consideration in the
sum of Rs.2,000/-. The defendants pleaded that, on behalf of
Nagubai Yenurkar, her son Narayan Yenurkar transferred the
suit plot and also delivered possession thereof to the
defendant. Thus, the defendant had entered in possession of
the suit plot with effect from the date of registered sale deed
i.e. 8.10.1969 as owner thereof. Son of Smt. Nagubai had also
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assured that the suit plot is free from any encumbrance, loan,
transfer etc. and undertook the responsibility to reimburse the
defendants in case any encumbrance is found. The said sale
deed is at Exh.57. Thus, the defendants claimed ownership of
the suit plot as also continuous and peaceful possession of the
same since 8.10.1969. The trial Court recorded findings of
facts that Narayan (son of Nagubai) had no authority to sell
the suit plot and held that the registered sale deed executed
by Narayan was not binding on Nagubai. The trial Court also
negatived the plea of open, continuous and peaceful
possession of the suit property since 1969 made by the
defendants as adverse possessors thereof. The trial Court held
that the legal representatives of Nagubai brought on record
can claim possession from Nagubai. The first Appellate Court,
therefore, dismissed the appeal filed by the appellant.
3. In the trial Court, the issues were framed and it was
found that name of the plaintiff was recorded in the Nazul
maintenance Khasra till 1978-79 in respect of the suit plot
and that the defendants had encroached upon the suit plot
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as alleged by the plaintiff and further that the defendants
never took possession of the suit plot. However, the trial
Court held in favour of the defendants that the plaintiff had
sold the suit plot to the defendants by registered sale deed
dt.8.10.1969 for Rs.2,000/-, as alleged. But the Court also
held that sale of suit plot by the plaintiff's son Narayan was
without any authority and not binding upon the plaintiff.
Thus, holding that the defendant was in wrongful
possession since March, 1983, the plaintiff was held
entitled to vacant possession of the suit plot.
4. Learned Counsel appearing for the appellants invited
my attention to the substantial question of law, upon which
this Court had admitted the Second Appeal and contended
that the registered sale deed in favour of defendant
(Exh.57) was executed by Narayan Raghobaji Yenurkar on
behalf of Smt. Nagubai Yenurkar for a consideration in the
sum of Rs.2,000/-. The sale deed also averred clearly that
the immovable property in possession of transferor and
owned by the transferor is transferred with all rights
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including rights as to inheritance etc. and possession was
handed over on the same day. Thus, ownership and
possession of the defendant was acknowledged in writing
by registered sale deed. The registered document also
assured defendant Mahadeo that he became owner of the
suit plot with all rights as to ownership and possession and
he shall continue to hold the possession. The defendant was
also assured that there is no any prior transfer or loan or
any encumbrance upon the suit plot and it is so found in
future responsibility was undertaken by Narayan Yenurkar
on behalf of his mother that reimbursement would be made
to the defendant in that case. Thus, the suit plot with its full
description including boundaries thereof was transferred in
favour of defendant Mahadeo Watkuji Nagrale. Averments
in the document, on plain reading would indicate that, on
behalf of Nagubai Yenurkar, aged about 65 years, her son
Narayan Yenurkar, aged about 40 years, both residents of
Chanda, Tq. and Distt. Chanda transferred the suit plot for
a consideration in the sum of Rs.2000/- on 8.10.1969. The
sale deed recitals indicated that the suit plot was
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transferred with possession thereof as argued by the
learned Counsel Mr.Khajanchi on behalf of the appellants.
5. Mr.M.P.Khajanchi, learned Counsel for the appellants
made reference to the four Judges Bench ruling of Hon'ble
Supreme Court of India in the case reported in AIR 1962
SC 847, Jumma Masjid, Mercara .vs. Kodimaniandra
Deviah and Others wherein in case of a transfer by a
person having spes successionis in selling property
representing that he is person interested in the property,
the transferee is entitled to benefit of Section 43 of the
Transfer of Property Act as such transferee had acted on the
faith of the representation made by the transferor and paid
consideration in respect of sale of immovable property (plot
in this case). In para 15, the rule of estoppel contained in
Section 43 of the Transfer of Property Act is observed
thus :-
This reasoning is open to the criticism that it ignores
the principle underlying S.43. That section embodies,
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as already stated, 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. It is to
be noted that when the decision under consideration
was given, the relevant word of S.43 were, "where a
person erroneously represents", and now, as amended
by Act 20 of 1929, they are "where a person
fraudulently or erroneously represents", and that
emphasises that 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 made representation
and the transferee has acted on it. Where the
transferee knew as a fact that the transferor did 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 S.6(a). But where the
transferee does act on the representation, there is no
reason why he should not have the benefit of the
equitable doctrine embodied in S.43, however
fraudulent the act of the transferor might have been."
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6. In view of the above observations by four Judges
Bench in the ruling of Hon'ble Supreme Court of India, it
was open for the defendant as a transferee under the
registered sale deed to have the option of claiming benefit
of equitable doctrine hiding the grant as estoppel as
embodied in Section 43 of the Transfer of Property Act.
Thus, the Hon'ble Supreme Court held that when a person
transfers property representing that he is a person
interested therein whereas he is infact only a spes
successionis, the transferee is entitled to benefit of Section
43 if he has share transferred on the faith of that
representation and for consideration. In the present case,
the transferor was clearly mentioned as Smt. Nagubai w/o.
Yenurkar, aged about 65 years, Occ. Household through her
son Narayan Yenurkar, aged about 10 years, Occ.
Agriculturist, r/o. Chanda, Tq. and Distt. Chanda. Mahadeo
Nagrale, purchaser of immovable property paid
consideration in the sum of Rs.2,000/- for the said
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transaction. The document also recites that the transferor
had represented that the plot owned and possessed by them
is transferred with all rights including right of inheritance
and possession thereof has been delivered to the transferee.
The transferee was assured ownership and possession free
from encumbrances and the transferor had undertaken
responsibility to reimburse the damages, if any, caused to
the transferee pursuant to transfer of the suit plot. It is in
these circumstances that the defendant had claimed of
having acquired title to the suit plot u/s.43 of the Transfer
of Property Act and according to him, after death of
transferor, sale transaction i.e. transfer of the property
made in favour of the defendant was and is binding upon
the legal representatives brought on record substituting
Nagubai.
7. Learned Counsel for the appellants also made
reference to the ruling in the case of Ganeshdas and Other
vs. Kamlabai reported in AIR (39) 1952 Nagpur 29 to
argue that representation made by the transferor need not
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be in any particular form. It can be by word of mouth or by
a document. A statement in a sale deed that the vendor has
not transferred the property to anybody in any manner
whatsoever, nor has anybody any rights interest or share
therein is quite enough to show that there was a fradulent
representation when in fact the vendor had sold it already
to a third party.
8.
Learned Counsel appearing on behalf of the
respondents made a reference to the ruling in Jharu Ram
Roy .vs. Kamjit Roy and Others reported in AIR 2009 SC
(Supp) 2112 to argue that Section 32 could not be
applicable in a case where no fraud was committed by the
transferor. He made reference to para no.13 of the ruling
wherein it is held by the Apex Court as under :
" 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 fradulently
or erroneously represented that he was authorized
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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."
9. Reference is also made to the ruling in the case of
Agricultural Produce Marketing Committee .vs.
Bannama (D) by L.Rs. reported in AIR 2014 SC 3000. The
two Judges Bench of the Supreme Court held that doctrine
u/s.43 of the Transfer of Property Act is based upon the
principle of law of estoppel. It simply provides that when a
person by fradulent or erroneous representation transfers
certain immovable property, claiming himself to be the
owner of such property, then such transfer will
subsequently operate on any interest which the transferor
may acquire in such property during the contract of transfer
subsists. Thus, according to the learned Counsel in the
present case, the transferor Narayan who was son of the
plaintiff expired in the year 1978 while alleged registered
sale is dt.8.10.1969 prior to death of plaintiff Nagubai.
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According to the learned Counsel, when Nagubai died her,
son Narayan has predeceased here already. Therefore, since
the transfer was made by her son without any authority
from her and fradulently without informing her, benefit of
such transaction cannot be taken by the defendant
(appellant) as, according to the learned Counsel, Narayan
had never acquired any interest during his life time in the
suit plot and therefore, he could have transferred the same
in favour of the defendant.
10. In the ruling cited on behalf of the respondents, no
reference is made to four Judges ruling in the case of
Jumma Masjid (cited supra) which appears binding judicial
precedent in the light of provisions contained in Section 43
of the Transfer of Property Act. Later, rulings which were
per incuriam of the said ruling would, in my humble
submission, are not attracted in the facts and circumstances
of the case.
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11. In the fact and circumstances of the present case,
document (Exh.57) - a registered sale deed clearly averred
that name of Smt. Nagubai was mentioned as a transferor
through her son Narayan Yenurkar, ownership as well as
possession was transferred on 8.10.1969 in favour of the
defendant free from encumbrance charges etc. over the suit
plot. That being so, when property was transferred to the
defendant upon representation, signatory of the document
Narayan acted on behalf of his mother Nagubai Yenurkar
and the defendant had taken transfer on the faith of that
representation and for valuable consideration; hence,
Section 43 of the Transfer of Property Act is attracted to the
suit transaction upon equitable principle of estoppel
contained in the provision and the transferee (defendant
Mahadeo) was entitled to the benefit of said equitable
doctrine known as the doctrine of feeding the grant by
estoppel. Even otherwise, the defendant was openly and
continuously in possession of the suit plot since 8.10.1969
until the suit for possession was instituted against him on
6.6.1984 for more than 12 years. Even on the date of
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institution of the suit, the title of the transferee appears to
have been perfected even on the plea of adverse possession
of the suit property. Looking at the suit controversy from
any of the angle, therefore, the Court below committed
grievous error of law to observe that there was no fradulent
transfer or erroneous representation within the meaning of
Section 43 of the Transfer of Property Act by Narayan s/o
Nagubai, who executed registered sale deed (Exh.57) on
8.10.1969 on behalf of the plaintiff Nagubai. In the facts
and circumstances, therefore, when valuable consideration
was already paid in the sum of Rs.2,000/- in the year 1969
and possession was also taken pursuant to registered sale
deed as owner of the suit plot by the defendant, the
defendant was entitled to the benefit of Section 43 in view
of the ruling in the case of Jumma Masjid (cited supra).
Therefore, the appeal succeeds. The impugned Judgment
and Order is set aside. The suit instituted by the plaintiff
Nagubai is hereby dismissed with costs. Appeal is allowed
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by answering the substantial question of law in the
affirmative accordingly.
JUDGE
jaiswal
