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Sunday, August 3, 2014

Doctrine of feeding the estoppel. - Sec.43 of T.P.Act - mother is the owner - but son sold the property to the appellant - pending case first son died and his legal heirs brought on record- next the mother /plaintiff died leaving grand children as her legal heirs - The Appellant now took the shelter of Sec.43 of T.P. Act - Apex court held that We have, therefore, no doubt in our mind that in a case where a transferor never acquired by succession, inheritance or otherwise any interest in the property during his life time then the provision of Section 43 will not come into operation as against the heirs who succeeded the stridhan property of their grandmother.we do not find any merit in this appeal, which is accordingly dismissed. = CIVIL APPEAL NO.3198 OF 2007 Agricultural Produce Marketing Committee ………Appellant Versus Bannama (D) by LRs. ……..Respondents = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41792

Doctrine  of feeding the estoppel.  - Sec.43 of T.P.Act - mother is the owner - but son sold the property to the appellant - pending case first son died and his legal heirs brought on record- next the mother /plaintiff died leaving grand children as her legal heirs - The Appellant now took the shelter of Sec.43 of T.P. Act - Apex court held that We  have, therefore, no doubt in our mind that in a  case  where  a  transferor  never acquired by  succession,  inheritance  or  otherwise  any  interest  in  the property during his life time then the provision  of  Section  43  will  not come into  operation  as  against  the  heirs  who  succeeded  the  stridhan property of their grandmother.we do not find any merit in this appeal,  which is accordingly dismissed. =

 “43.  Transfer by unauthorised person who subsequently acquires interest  in
property transferred.
Where a person fraudulently or erroneously  represents
that he is authorised to transfer certain immoveable 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.”

14.   The doctrine is based on the principle of law of estoppel.
It  simply
provides that when  a  person  by  fraudulent  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 which the  contract
of transfer subsists.
This doctrine known in English law has form  part  of
Roman Dutch law, according to which where a granter has purported  to  grant
an interest in  the  land  which  he  did  not  at  the  time  possess,  but
subsequently acquires,  the  benefit  of  his  subsequent  acquisition  goes
automatically to the earlier grantee.  In other words, where a vendor  sells
without title in the property, but subsequently acquires title then a  right
accrues to the purchaser to claim interest  in  the  said  property  and  it
automatically goes in favour of the transferor.=  

the appellant would not be entitled to take the benefit of the  doctrine  of
feeding the estoppel.
The finding of  facts  recorded  by  the  two  courts
based on the records that the original plaintiff was  the  owner  and  title
holder  of  the  said  property  
but  by   making   false   and   fraudulent
representation by her son that the property  belonged  to  him,  transferred
the same in favour of the appellant.   
During  the  pendency  of  the  first
appeal  before  the  district  court,  the  vendor  (son  of  the   original
plaintiff) died.
Although on the death, his children  did  not  inherit  or
succeeded any interest in the property, through their deceased  father,  but
they were impleaded as legal representatives in the appeal.
However,  during
the pendency of this appeal, the original plaintiff, namely, Bannamma  died.

After her death, the respondents being the  grand  children  inherited  and
acquired interest in the suit property.
Admittedly,  the  deceased  son  of
the original plaintiff, namely Nagi Reddy never  acquired  any  interest  in
the suit property owned  by  his  mother  during  his  life  time.
In  the
aforesaid premises, the doctrine of feeding  the  estoppel  would  not  come
into operation as against the grand  children  of  the  original  plaintiff.

Section 43 in our considered opinion applies when the transferor  having  no
interest in the  property  transfers  the  same  but  subsequently  acquires
interest in the said property, the purchaser may claim the benefit  of  such
subsequent acquisition of the property by the  transferor.
Had  it  been  a
case where the son Nagi Reddy during his life time  succeeded  or  inherited
the property but- died subsequently, then to some extent it could have  been
argued that the heirs of Nagi Reddy who inherited the property on the  death
of their father would be bound by  the  principle  of  estoppel.  
We  have,
therefore, no doubt in our mind that in a  case  where  a  transferor  never
acquired by  succession,  inheritance  or  otherwise  any  interest  in  the
property during his life time then the provision  of  Section  43  will  not
come into  operation  as  against  the  heirs  who  succeeded  the  stridhan
property of their grandmother.
16.   For all these reasons, we do not find any merit in this appeal,  which
is accordingly dismissed.

2014 July. Part – http://judis.nic.in/supremecourt/filename=41792

RANJAN GOGOI, M.Y. EQBAL
                                                          ‘REPORTABLE’

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO.3198 OF 2007


Agricultural Produce Marketing Committee     ………Appellant

                                   Versus

Bannama (D) by LRs.                              ……..Respondents



                               J U D G M E N T

M.Y. EQBAL, J.


      This appeal by special leave is  directed  against  the  judgment  and
order  dated  17.10.2003  passed  by  the  High  Court   of   Karnataka   in
R.S.A.No.556 of 1997, whereby the appeal preferred  by  plaintiff-respondent
no.1 was allowed setting aside the judgment  and  decree  of  the  appellate
court in RA No.12 of 1994 and confirming the  judgment  and  decree  of  the
trial court.

2.    The brief facts of the case of the plaintiff-respondent no.1,  as  set
out  in  the  trial  court  judgment,  are  that  the   plaintiff   was   an
agriculturist  and  old  lady  residing  at  Saidapur   village.    Whereas,
respondent no.2 (defendant  no.2)  was  none  other  than  the  son  of  the
plaintiff and was vice president of the appellant-first  defendant  society,
which is a statutory body constituted and functioning  under  the  Karnataka
Agricultural Produce Marketing Committee (Regulation) Act.   The  suit  land
bearing Sy.No.58/1 measuring 7 acres 19 guntas situated at Saidapur  village
of Yadgir Taluk, for which Smt.  Bannamma  –  plaintiff  filed  a  suit  for
declaration of  title claiming that the property was inherited by  her  from
her father and it  was  her  stridhan  property,  which  is  alleged  to  be
standing in the name of the plaintiff since 1954-55.   The  land  Sy.No.58-B
has got two hissas as Hissa Nos.1 and 2, each measuring 7  acres  18  guntas
and its khasra pahani numbers are 131 and 132  respectively.   The  property
claimed by the plaintiff is Sy.No.58/A bearing Khasra No.131.

3.    The plaintiff being an old lady, allowed her son second  defendant  to
look after and manage the suit property on her behalf.  It is  pleaded  that
taking advantage of the same, second defendant, without  the  knowledge  and
consent of the plaintiff, got mutated the suit  land  in  his  name  on  the
basis of the release deed.  It is contended that second defendant  sold  the
entire suit land to the appellant-first defendant, who  purchased  the  same
without verifying the title of second defendant and got  a  registered  sale
deed on 28.12.1978(Ex.P.24).  The suit land has  also  been  converted  into
non-agriculture land.  The first defendant, thereafter, notified  the  plots
in the property for sale by public  auction  on  22.12.1989  and  23.1.1990,
which came to the information of the plaintiff and  consequently  she  moved
the court by filing suit for declaration of title  and  possession  of  land
and declaration regarding the sale deed.
4.    The trial court decreed the suit holding that  the  plaintiff-Bannamma
was the owner and directed delivery of possession of the suit land.
The trial court also directed second defendant to refund the purchase  price
to the appellant-first defendant, who, by preferring an  appeal,  challenged
the decree granted in favour of plaintiff.  The  second  defendant  filed  a
separate appeal challenging the direction to refund  the  sale  price.   The
appeals of the defendants were allowed and the judgment  and  decree  passed
by the trial court was set aside, holding that Nagi  Reddy-second  defendant
was the owner of the suit property with title to sell the property.   It  is
evident from the record that Nagi Reddy-second  defendant  died  during  the
pendency of the appeal and his children, who are grandchildren of  Bannamma-
plaintiff were brought on record as Lrs. of Nagi Reddy.
5.     Aggrieved by the decision of the Appellate Court,  Bannamma-plaintiff
preferred regular second appeal being RSA No.556 of 1997.   The  High  Court
reversed the finding  recorded  by  the  Appellate  Court  and  allowed  the
regular second appeal decreeing the suit of plaintiff-Bannamma holding  that
plaintiff has title to the suit property and her  son-defendant  no.2  could
not have sold the property.  The second  defendant  remained  absent  before
the High Court.  The first defendant  contended  that  second  defendant  in
collusion with plaintiff brought the suit.  The plea of limitation was  also
raised.  In the impugned judgment, the High Court found that the  sale  deed
was obtained by the first defendant in December, 1978 and the suit is  filed
during April, 1990 before the expiry of 12 years.  Learned Single  Judge  of
the High Court further observed that merely by the fact that  the  plaintiff
came to know about the execution of sale  deed  cannot  be  inferred  as  an
effective threat to the  title.   Even  otherwise,  in  case  of  relief  of
possession based on title, a person can always maintain an action within  12
years from the date of the dispossession.  In the present  case,  within  12
years from the date of Ex.P.24, the  suit  was  filed.   It  is  not  really
necessary for the plaintiff to seek a declaration  that  the  sale  deed  is
void.  On the proof of title, the  plaintiff  is  entitled  to  maintain  an
action for recovery of possession.

6.    Learned Single Judge of  the  High  Court  in  the  impugned  judgment
further held that there is no  evidence  to  show  that  the  plaintiff  had
expressly or tacitly allowed the second defendant to execute the sale  under
Ex.P.24 in favour of first defendant.  The fact that the  first  and  second
defendants were residing together is not sufficient by  itself  to  infer  a
collusion or a fraud when the revenue records indicated  that  the  property
was standing in the name of the plaintiff.  In  that  view  of  the  matter,
regular second appeal preferred by the plaintiff  is  allowed  by  the  High
Court.
7.    Aggrieved by the impugned judgment of the High Court,  defendant  no.1
has preferred present appeal by special leave in which on  20.7.2007,  leave
was granted and  interim  order  to  maintain  status  quo  with  regard  to
possession was continued.  During the pendency  of  the  appeal,  respondent
no.1-plaintiff also died and her legal  heirs  namely  Shailaja,  Prabhavati
and Prakash, who are also legal heirs of  respondent  no.2-second  defendant
Nagi Reddy, were brought on record by this Court on 17.10.2012.

8.     We have heard learned  counsel  appearing  for  the  appellant.  Mrs.
Anjana  Chandrashekhar,  learned  advocate  appearing  for  the   appellant,
assailed the findings of the High Court on various grounds which were  taken
before the first  appellate  court  including  that  the  plaintiff  in  her
evidence admitted that she along with her son-defendant No.2 were living  in
the same house, but nowhere she stated in her evidence as to in  which  year
she acquired the suit land as stridhan.  Learned  counsel  put  reliance  on
exhibit P-20,        P-21 and P-22 to establish  that  defendant  No.2  Nagi
Reddy, was shown as owner of the property.
9.    We do not find much force in the submissions made by the counsel.  The
first appellate court, while reversing the finding of the trial  court,  has
not considered most relevant documents which were relied upon by  the  trial
court in coming to the conclusion that the suit property was  owned  by  the
plaintiff.  The High Court elaborately discussed  the  evidence  adduced  by
the parties, both oral and documentary, and affirmed the  finding  of  facts
recorded by the trial  court.   From  perusal  of  the  facts  and  evidence
available on record, we do not find any perversity in  the  judgment  passed
by the High Court.
10.    Mrs.  Anjana  Chandrashekhar,  learned  counsel  appearing  for   the
appellant, however, raised an additional ground  which  is  interesting  and
needs to be discussed.
11.   As noticed above, during the pendency of the first appeal  before  the
District Court the son of the  plaintiff  (defendant  No.2),  died  and  his
legal representatives were substituted in  his  place.   Thereafter,  during
the pendency of this appeal  the  original  plaintiff-respondent  No.1  also
died on 17.5.2010 leaving behind the children  of  her  son  Nagi  Reddy  as
legal  representatives,  who  have  been  brought  on  record  in  different
capacity.
12.   In these backgrounds, Mrs. Anjana Chandrashekhar, learned counsel  for
the appellant submitted that assuming for a moment, Nagi Reddy had no  title
to the property as his mother-original plaintiff was the absolute owner,  as
held by the High Court, the grand children being the  legal  representatives
of Nagi Reddy would step into the  shoes  of  plaintiff  as  title  holders.
Since Nagi Reddy having no title to sell the property, his children got  the
title on account of death of grandmother through her  son  Nagi  Reddy.   In
this regard, learned counsel referred Section 15  of  the  Hindu  Succession
Act and submitted that on the death of  the  original  plaintiff  the  grand
children having been claimed through their father Nagi Reddy, the  principle
of feeding the grant by estoppel  would come into  operation  and  the  sale
executed by Nagi Reddy in favour of the appellant would become validated  by
virtue of the death of the plaintiff’s  mother.   Learned  counsel  in  this
regard referred Section 43 of the Transfer of Property Act.
13.    We do not find any substance in the contention made  by  the  learned
counsel appearing for the appellant. The doctrine of feeding  the  grant  by
estoppel as contemplated under Section 43 of the Transfer  of  Property  Act
reads as under:-

“43.  Transfer by unauthorised person who subsequently acquires interest  in
property transferred.—Where a person fraudulently or erroneously  represents
that he is authorised to transfer certain immoveable 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.”

14.   The doctrine is based on the principle of law of estoppel.  It  simply
provides that when  a  person  by  fraudulent  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 which the  contract
of transfer subsists.  This doctrine known in English law has form  part  of
Roman Dutch law, according to which where a granter has purported  to  grant
an interest in  the  land  which  he  did  not  at  the  time  possess,  but
subsequently acquires,  the  benefit  of  his  subsequent  acquisition  goes
automatically to the earlier grantee.  In other words, where a vendor  sells
without title in the property, but subsequently acquires title then a  right
accrues to the purchaser to claim interest  in  the  said  property  and  it
automatically goes in favour of the transferor.
15.   In the peculiar facts of the instant case, in our considered  opinion,
the appellant would not be entitled to take the benefit of the  doctrine  of
feeding the estoppel.  The finding of  facts  recorded  by  the  two  courts
based on the records that the original plaintiff was  the  owner  and  title
holder  of  the  said  property  but  by   making   false   and   fraudulent
representation by her son that the property  belonged  to  him,  transferred
the same in favour of the appellant.   During  the  pendency  of  the  first
appeal  before  the  district  court,  the  vendor  (son  of  the   original
plaintiff) died.  Although on the death, his children  did  not  inherit  or
succeeded any interest in the property, through their deceased  father,  but
they were impleaded as legal representatives in the appeal. However,  during
the pendency of this appeal, the original plaintiff, namely, Bannamma  died.
 After her death, the respondents being the  grand  children  inherited  and
acquired interest in the suit property.  Admittedly,  the  deceased  son  of
the original plaintiff, namely Nagi Reddy never  acquired  any  interest  in
the suit property owned  by  his  mother  during  his  life  time.   In  the
aforesaid premises, the doctrine of feeding  the  estoppel  would  not  come
into operation as against the grand  children  of  the  original  plaintiff.
Section 43 in our considered opinion applies when the transferor  having  no
interest in the  property  transfers  the  same  but  subsequently  acquires
interest in the said property, the purchaser may claim the benefit  of  such
subsequent acquisition of the property by the  transferor.  Had  it  been  a
case where the son Nagi Reddy during his life time  succeeded  or  inherited
the property but- died subsequently, then to some extent it could have  been
argued that the heirs of Nagi Reddy who inherited the property on the  death
of their father would be bound by  the  principle  of  estoppel.   We  have,
therefore, no doubt in our mind that in a  case  where  a  transferor  never
acquired by  succession,  inheritance  or  otherwise  any  interest  in  the
property during his life time then the provision  of  Section  43  will  not
come into  operation  as  against  the  heirs  who  succeeded  the  stridhan
property of their grandmother.
16.   For all these reasons, we do not find any merit in this appeal,  which
is accordingly dismissed.

                                                              ………………………………J.
                                                              (Ranjan Gogoi)



                                                              ………………………………J.
                                                                (M.Y. Eqbal)
New Delhi
July 25, 2014

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