THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No. 4172/2007 Date of Order: 1-10-2010 Between: 1. Medpati Visweswara Srinivasulu and another ..Petitioners and 1.Bikkana Veera Venkata Satyanarayana (died) and others ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.No. 4172/2007 Oral order: This revision under Art. 227 of the Constitution of India to revise the orders of the Senior Civil Judge, Ramachandrapuram dt. 24-7-2007 made in EP No.142/2003 in OS No.64/1987. Bikkina Veera Venkata Satyanarayana filed OS No.64/1987 for recovery of money based on a mortgage deed against the defendants 1 to 6, who are petitioners and respondents 8 to 11 herein, and obtained a preliminary decree on 4-12-1991 and final decree in IA No.1153/92 on 24- 6-1993. On his death, respondents 2 to 7 herein, who are legal representatives of the decree holder ie., Bikkina Veera Venkata Satyanarayana, filed EP No.142/2003 for sale of EP schedule mortgaged property for due recovery of the money under mortgage against the judgment debtors 1 to 6, who are defendants in OS No.64/1987 respectively . On issuing notice under Order 21 Rule 22 CPC, the first respondent in EP, who is R-8 herein, filed a counter opposing the execution petition, which was adopted by the respondents 4 to 6 in EP, who are respondents 8 to 11 herein, by filing memo, respondents 2 and 3, who are petitioners herein, and they have also filed additional counters pleading that preliminary decree and final decree obtained by the deceased- decree-holder are null and void as the EP schedule property was sold to one Sabbella Venkata Reddy in the year 1971 by the father of Medapati Satyanarayana Reddy ie., Somi Reddy, whereas mortgage deed in favour of the deceased-decree-holder was of the year 1974, and at the time of execution of mortgage deed , they have no right and title to the EP schedule property. Later judgment debtors 2 and 3 purchased the property from the said Sabbella Venkata Reddy in the year 2000 under two registered sale deeds and therefore EP cannot be proceeded with against the said property. In the counter filed by respondents 2 and 3 in EP, who are petitioners herein, it was stated that they are the absolute owners of EP schedule property having obtained two settlement deeds dt.15-3-2000 for each of the two items from Sabbella Venkata Reddy, who has purchased it from their father, the first judgment debtor and their grand father who executed registered sale deed dt. 16-6-1971 before mortgage in favour of the first decree holder. The executing court after over-ruling the objections allowed EP holding that the decree holders can proceed with the next step and ordered for issuance of test warrant returnable by 24-8- 2007. To revise the said order, the present revision petition is filed. Sri N. Vijay, learned counsel for the petitioners contended that mortgage deed was executed on 30-9-1974 and as on the said date, the mortgagor has no interest in the mortgaged property, whereas the suit is filed in the year 1987, and by the date of filing of the suit, one of the mortgagor expired and judgment debtors 2 and 3 are minors and even at the time of passing of final decree 24-6-1993, judgment debtors 2 and 3 were minors. As on the date of mortgage, judgment debtor No.1 and his father sold the property to S. Venkata Reddy under a registered sale deed dt. 16-6-1971 covered under Ex.B-1, and therefore mortgage is void and consequently preliminary decree and final decrees are also void. The purchaser of the mortgaged property in 1971, maternal grand father of the revision petitions executed registered sale deeds dt. 15-2-2000 covered under Exs.B-2 and B-3 in favour of the petitioners. Without the knowledge of the contents of the judgment in OS No.64/87, the finding recorded by the executing court that the finding in OS No.64/87 operates as res judicata is erroneous. A preliminary decree was passed against 1st defendant and against the assets of Somireddy in the hands of defendants 1 and 4 to 6. There is no direction against defendants 2 and 3 either in the preliminary decree or in the final decree. When the schedule property in the hands of judgment debtors 2 and 3 are not devolved assets of late Somi Reddy, the same cannot be auctioned. The principle of feeding grant by estoppel as envisaged under Section 43 of the Transfer of Property Act,1982 applies to the person who made fraudulent or erroneous promise and to persons claiming right through him. In support of the said contention, he placed reliance on the judgment of the Supreme Court in HARDEV SINGH V. GURMAIL SINGH[1]. On the other hand, Sri N. Siva Reddy, learned counsel for the respondents while sustaining the impugned order under revision contended that there is no dispute that respondents 2 to 7 herein, who are petitioners in EP have been brought on record as LRs of Bikkina Veera Venkata Satyanarayana. OS No.64/1987 was filed on 10-8-1987 stating that cause of action arose on 14-6-1974, the date when the mortgage deed was executed by defendants 1 to 3 and late Somireddi; further on 14-6-1977, 14-6-1978, 14-6-1979 and 14-6-1980, the dates on which instalments were due and late Somi Reddy died intestate leaving behind him defendants 1 and 4 to 6 as his heirs, and when his assets devolved upon D-1 and D-4 to D-6. A preliminary decree was passed on 4-12- 91 against the first defendant and against the assets of late Somi Reddy in the hands of defendants 1 and 4 to 6, directing them to pay on or before 14th day of March, 1992 or any later date upto which time for payment may be extended by the court, a sum of Rs.81,178/- with future interest on the principal sum of Rs.20,000/- at 18% per annum from the date of decree till the date of redemption and at 6% per annum from 4-3-1992 till the date of payment. In default of payment, the plaintiffs are at liberty to apply to the court for passing of a final decree for sale of mortgaged property. The mortgage deed was executed by judgment debtor No.1 not only on his behalf but also on behalf of judgment debtors 2 and 3 (revision petitioners herein), who are minors at that time, as guardian and borrowed money. The revision petitioners got the mortgaged property under settlement deeds dt.15-3-2000 covered under Exs.B-2 and B-3. Though the petitioners herein are parties to the preliminary decree and final decree, it is not known that they raised a plea that the executants of the mortgage deed had no title and the mortgage deed is not valid. Once the objection has not been raised by them or if taken negatived either in the preliminary decree or final decree, they are not permitted to raise such plea again in the EP in view of principle of res judicata. Section 43 of the Transfer of Property Act, 1982, which is only an embodiment of the principle of estoppel, 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 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 principle can be invoked in the interests of justice, if a person having tangible interest in the property effected by a deed. For the application of the doctrine of “feeding the grant by estoppel”, it is not essential that the grantor should have had no title at all. Even in a case where the grantor had only a limited right, the doctrine would come into play. The Supreme Court in KARTAR SINGH V. HARBANS KAUR[2] held that “for application of Section 43 of the Act, two conditions must be satisfied. Firstly, that there is a fraudulent or erroneous representation made by the transferor to the transferee that he is authorised to transfer certain immovable property and in the purported exercise of authority, professed to transfer such property for consideration. Subsequently, when it is discovered that the transferor acquired an interest in the transferred property, at the option of the transferee, he is entitled to get the restitution of interest in property got by the transferor, provided the transferor acquires such interest in the property during which contract of transfer must subsist. 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 Section 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 Section 43, however fraudulent the act of the transferor might have been. (Emphasis supplied) (See: RAM PYARE V.RAM NARAIN (1985) 2 SCC 162) Indisputably, the judgment debtor No.1 and his father representing the revision petitioners borrowed money and executed mortgage deed not only on their behalf but also on behalf of the judgment Debtors 2 and 3. R.W.1, who is petitioner No.2 herein, admitted in his evidence in chief that first judgment debtor and along with his father Medapati Somi Reddy executed a registered mortgage deed in favour of Nallamilli Pedda Veera Reddy covered under Ex.B-4 and further on 15- 9-1974, the first judgment debtor along with his father executed another mortgage deed in favour of Nallamilli Pedda Veera Reddy ad N.Manikyam covered under Ex.B-5. On 14-6-1974, the first judgment debtor along with his father executed another registered mortgage deed in favour of the first decree holder herein. Both the respondent 2 and 3 in EP (revision petitioners herein) were aged about 15 years and 13 years respectively as on the date of filing of the suit ie., in the year 1987 and are minors, and permitted to be represented by their father, first defendant, appointed as guardian as per orders passed in IA No.690/1987 dt. 22-9-1987. A Preliminary decree was passed on 4-12-1991, on which date respondent No.2 (revision petitioner No.1 herein) attained majority. Later final decree, as such was passed in IA No.1153/1992 on 24-6-1993, on which date defendant No.3 (revision petitioner No.2) also had become major. They have not raised any objection with regard to the mortgage of the property by their father late Somi Redy or questioned the decree passed against them except taking the above objection in the execution proceedings. It is not known whether any plea has been taken by them that the schedule property cannot be the subject matter of mortgage by their father and grandfather who mortgaged the property on their behalf and it is not binding on them. In the absence of the same, the executing court held that such a plea is not available to them in execution proceedings, and in view of passing of final decree all such pleas, if raised might have been rejected. Once they got the property under registered settlement deeds covered under Exs.B-2 and B-3 and in view of section 43, they are debarred from making a claim over the property as principle of feeding grant by estoppel comes into operation. Therefore, the impugned order passed by the executing court allowing EP does not suffer from any illegality. The Civil Revision Petition fails and is accordingly dismissed. No costs. _________________ A.GOPAL REDDY, J. Dt.1-10-2010 kmr [1] 2007(2) SCC 404 [2] (1994) 4 SCC 730