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.
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
“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
