RSA No.1602 of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1602 of 1999 (O&M) Date of decision 18.7.2011. Capt. Puran Singh ...... Appellant. versus Smt. Harbans Kaur ...... Respondent. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. G.S.Nagra, Advocate for the appellant. Mr. M.S.Bedi, Senior Advocate with Mr. Amit Bakhshi, Advocate. Mr. Parveen Chauhan, Advocate for Mr. J.S.Wasu, Senior Advocate. K.C.PURI . J. Challenge in this appeal is the judgment and decree dated 6.11.1998 passed by Shri M.S.Rattu, learned Additional District Judge, Gurdaspur vide which the appeal preferred by the plaintiff/appellant against the judgment and decree dated 22.9.1997 passed by Shri Balwinder Kumar, Civil Judge (Junior Division), Gurdaspur was dismissed. 2. The brief facts of this case are that father of plaintiff No.1 to 4 and grand father of plaintiff No.5 Sh.Kartar Singh (now deceased) RSA No.1602 of 1999 2 purchased land measuring 110 Kanals 10 Marlas from the defendant vide registered sale deed dated 19.1.61 for a consideration of Rs.6000/-. The said sale deed was executed by defendant on her behalf and on behalf of her minor son Kulwant Singh being natural guardian of the minor. In 1968 Kulwant Singh minor filed a suit against Kartar Singh that her mother had no right to sell his ½ share of the suit land. The said litigation went upto Hon'ble Supreme Court for decision. Incidentally the said Kulwant Singh died during the pendency of litigation and he left behind no legal heir except his mother Harbans Kaur (defendant in the present case). The alleged half share of suit land again developed upon Harbans Kaur. The Hon'ble Supreme Court vide its decision dated 21.1.1994 held that legal heirs of deceased Kartar Singh are owner only to the extent of ½ share belonging to Smt. Harbans Kaur. The sale deed dated 19.1.1961 is void qua the share of Kulwant Singh deceased. The Hon'ble Supreme Court further held that legal heir of Kartar Singh are not entitled to claim ½ share of Kulwant Singh deceased. Hence the suit. 3. Notice of the suit was given to defendant who appeared and filed written statement. During the pendency of this suit, the plaintiff No.2 expired. Therefore, plaintiffs No.2A to 2D were impleaded as legal heirs of the deceased. 4. The defendant vehemently opposed the assertions of the plaintiffs. She took objections that suit is not maintainable in the present form and liable to be dismissed, the suit is barred u/s 11 C.P.C., the plaintiffs have not come to the Court with clean hands. Plaintiffs have no locus standi to file present suit, the suit is not properly valued for the RSA No.1602 of 1999 3 purposes of Court fee and jurisdiction and lastly suit is bad for non-joinder of necessary parties. 5. On merits, the defendant denied that Kartar Singh was the owner of the entire suit land. The defendant admitted the execution of sale deed dated 19.1.1961 but asserted that the same has been declared null and void upto the share of Kulwant Singh (deceased). The defendant further admitted that in the light of decision of the Hon'able Supreme Court dated 21.1.1994, the plaintiffs are owner only to the extent of ½ share. But the defendant refused to admit that there was any such stipulation for making good any loss if caused to the vendee due to defect in the title. The defendant claimed that mutation No.1178 is legal and binding upon the plaintiffs. The defendant admitted that plaintiffs are entitled to retain the suit land only to the extent of ½ share and asserted as defendant has every right to get the remaining one half share partitioned from the plaintiffs. 6. On filing the replication, the following issues were framed by the trial court:- 1. Whether the plaintiffs are owner in possession of the suit land?OPP 2. Whether the mutation No.1178 sanctioned in favour of defendant regarding ½ share put of the suit land is illegal?OPP 3. Whether the plaintiffs are entitled to the injunction prayed for?OPP 4. Whether the suit is not maintainable?OPD. 5. Whether the suit is barred by res-judicata?OPD RSA No.1602 of 1999 4 6. Whether the plaintiffs have no locus-standi to file this suit?OPD 7. Whether the suit is not properly valued for the purposes of court fee and jurisdiction?OPD 8. Whether the suit is bad for non-joinder of necessary parties?OPD 9. Whether the plaintiffs are entitled to retain the possession only upto the extent of ½ share of the suit land?OPD 10.Relief. 7. Both the parties have led their oral as well as documentary evidence in support of their claims. The trial Court after hearing the learned counsel for the parties decreed the suit of the plaintiffs to the extent of half share of the suit land and dismissed the suit regarding remaining half share vide judgment and decree dated 22.9.1997. 8. Feeling dissatisfied with the judgment and decree dated 22.9.1997 plaintiffs/appellants preferred appeal before First Appellate Court. The learned Additional District Judge, Gurdaspur, who after hearing the learned counsel for the parties dismissed the appeal vide judgment and decree dated 6.11.1998. 9. Still feeling dissatisfied with the aforesaid judgments and decrees passed by the Courts below, the plaintiff/appellants have preferred the instant regular second appeal. 10. The appellants by way of Civil Misc. petition No.7996-C-2011 placed on record following substantial questions of law for determination in the present appeal :- RSA No.1602 of 1999 5 1. Whether the impugned judgment and decree dated 6.11.1998 passed by the Additional District Judge, Gurdaspur is contrary to law, evidence and facts on the file as the appeal has been decided in a summarily manner and not issue wise ? 2. Whether the provision of Section 43 along with 'A' illustration of the Transfer of Property Act has been wrongly interpreted by the courts below ? 3. Whether the respondent No.1 is estopped from opposing the claim of the appellants after execution of the sale deed dated 19.4.1961 and particularly after the death of her son Kulwant Singh ? 4. Whether the suit filed by the plaintiffs/appellants has been wrongly partly dismissed by the learned Trial Court ? 5. Whether the suit filed by the plaintiffs/appellants was competent and maintainable ? 6. Whether the courts below have misread documentary as well as oral evidence produced by the plaintiffs/appellants while passing the impugned judgments and decrees ? 11. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 12. The main stress of the counsel for the appellant is in respect of application of Section 43 of the Transfer of Property Act. It is contended that although Harbans Kaur was not competent to alienate the property of his minor son and that earlier suit regarding the said property has been decided against the appellant, however, it is submitted that since Harbans Kaur has inherited the property of his son Kulwant Singh on account of his death, so in these circumstances, the appeal of the appellant is liable to be accepted to the extent of half share belonging to Kulwant Singh. 13. To support this contention, he has relied upon authority RSA No.1602 of 1999 6 Gurmail Singh vs Udham Kaur (deceased) 1999(1) PLJ 392. 13-A. In reply, learned counsel for the respondent has contended that applicability of Section 43 of the Act on the facts of the present case has already been decided by the Apex Court in earlier litigation between the parties in Civil Appeal Nos.501-02 of 1994 titled as Kartar Singh (Dead) by Lrs. & Others vs. Smt.Harbans Kaur decided on 21.1.1994. 14. I have carefully considered the said submission and have gone through the records of the case. 15. Harbans Kaur defendant and her minor son Kulwant Singh were the owners of land measuring 110kanals 10marlas. Kulwant Singh minor filed suit against the present plaintiffs with the allegations that her mother is not competent to sell his half share. The said litigation was decided in favour of Kulwant Singh even by the Apex Court. Kulwant Singh died during the pendency of litigation and appellant claims herself to be the owner of the property on the principle of “granting the feed by estopple” by applying the provisions of Section 43 of the Transfer of Property Act. 16. In order to properly appreciate the said provisions, the same are reproduced as under :- “Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and profess 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 RSA No.1602 of 1999 7 the contract of transfer subsists.” 17. However, this controversy was raised before the Apex Court in Ciivil appeal Nos.501 and 502 of 1994 decided on 21.1.1994 and the Apex Court has clearly held that Section 43 of the Act is not applicable to the facts of the present case. 18. The relevant portion of the said judgment is reproduced as under :- “The contention for the appellant is that in view of the finding that Harbans Kaur had succeeded by the operation of law, the appellant is entitled to the interests acquired by Harbans Kaur by operation of Section 43 of the Act and High Court has misapplied the ratio of decisions of this Court in Jumma Masjid Mercara vs. Kodimaniandra Deviah & Others. (A.I.R. 1962 Supreme Court 847 ) and the decision of the Patna High Court in Jhulan Prasad vs. Ram Raj Prasad & Ors (A.I.R. 1979 Patna 54). Section 43 of the Transfer of Property Act provides thus : “Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and profess to transfer such property for consideration, such transfer shall, operate on any interest which the transfer or may acquire in such property at any time during which the contract of transfer subsists.” A reading clearly shows that for application of Section 43 of the Act, two conditions must be satisfied. RSA No.1602 of 1999 8 Firstly, that there is a fraudulent or erroneous representation made by the transferor to the transferee that he is authorised to transfer certain immoveable 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. In this case, admittedly, Kulwant Singh was a minor on the date when the respondent transferred the property on April 19, 1961. The marginal note of the sale deed specifically mentions to the effect : “..... that the land had been acquired by her and by her minor son by exercising the right of pre-emption and that she was executing the sale deed in respect of her own share and acting as guardian of her minor son so far as his share was concerned.” It is settled law that the transferor must make all reasonable and diligent enquiries regarding the capacity of the transferor and the necessity to alienate the estate of the minor. On satisfying those requirements, he is to enter into and have the sale deed from the guardian or manager of the RSA No.1602 of 1999 9 estate of the minor. Under the Guardian and Wards Act, the estate of the minor cannot be alienated unless a specific permission in that behalf is obtained from the district court. Admittedly, no such permission was obtained. Therefore, the sale of the half share of the interest of Kulwant Singh made by his mother is void. Section 43 feeds its estoppel. The rule of estoppel by deed by the transferor would apply only when the transferee has been misled. The transferee must know or put on notice that the transferor does not possesses the title which he represents that he has. When note in the sale deed puts appellant on notice of limited right of the mother as guardian, as a reasonable prudent man the appellant is expected to enquire whether on her own the mother as guardian of minor son is competent to alienate the estate of the minor. When such acts were not done the first limb of Section 43 is not satisfied. It is obvious that it may be an erroneous representation, and may not be fraudulent one made by the mother that she is entitled to alienate the estate of the minor. For the purpose of Section 43 it is not strong material for consideration. But on declaration that the sale is void, in the eye of law the contract is nonest to the extent of the share of the minor from its inception. The second limb of section 43 is that the contract must be a subsisting one at the time of the claim. A void contract is no contract in the RSA No.1602 of 1999 10 eye of law and was never in existence so the 2nd ,limb of section 43 is not satisfied. The ratio of this Court in Jumma Masjid's Case (1962 AIR SC 847) is thus : “Section 43 embodies 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. 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 not make a representation and the transferee knows as a fact that the transferor does 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(1)” This Court in the later part has made it clear that whether the transferee knows as a fact that the transferor does 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 fall under section 6(1) of the Transfer of Property Act. In view of the finding that no diligent and reasonable enquiries were made regarding the entitlement of the mother RSA No.1602 of 1999 11 to alienate the half share of the minor's estate, it cannot be said that the appellant had acted reasonably in getting the transfer in his favour. In the face of the existence of the aforementioned note and in the light of the law, it could be concluded that section 43 does not apply to the facts of this case. The ratio of the Patna High Court also does not apply to the facts in this case as rights distinguished by the High Court. It is made clear that the declaration given by the High Court is only qua the right of the minor and it is fairly conceded by the respondent that the decree does not have any effect on the half share conveyed by the mother. If the appellant has any independent cause of action subsisting under the contract against the respondent, this judgment may not stand in his way to pursue the remedy under the law. The appeals are accordingly dismissed. No costs.” 19. So, the matter in controversy has already been decided on 21.1.1994 by the Hon'ble Apex Court in the said Civil appeal Nos.501 502 of 1994. The appellant cannot argue about the applicability of Section 43 of the Act. Authority Gurmail Singh's case (supra) is distinguishable as ingredients of Section 43 of the Transfer of Property Act were complete in that case which are missing in the present case as mentioned above. 20. So the substantial questions of law raised above stand determined against the appellant. 21. Consequently, the appeal stands dismissed with costs. 22. The appellant seems to have remained in possession of the property during the pendency of the appeal. The RSA No.1602 of 1999 12 defendant- respondent Harbans Kaur is held entitled to claim mesne profit from them under rules. 22. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 18, 2011 sv