Transfer of property by ostentatious owner

Right of Purchaser of property.

Sale without title.:

Facts of the case:

i) that the original plaintiff purchased the suit land by a registered sale deed dated 06.01.1990, executed by late Pranab Kumar Bora on payment of full sale consideration;

ii) that as on 06.01.1990, the suit land was ceiling surplus land and the government was the owner;

iii) that the land in question became ceiling free land on 14.09.1990;

iv) that the name of the original plaintiff was mutated in the revenue record – Sadar Jamabandi vide order dated 18.12.1991 in Mutation Case No. 94/91­92;

v) that neither the vendor nor the heirs of the vendor challenged order dated 18.12.1991 by which the name of the plaintiff was mutated in the revenue record;

vi) that when the earlier suit was decreed by the learned trial Court, it was only the original defendant no.1 who challenged the judgment and decree passed by the learned trial Court and no appeal was preferred by original defendant nos. 2 to 7, heirs of the original vendor; and

vii) that in the second round of litigation, the first appellate Court specifically observed against original defendant no.1 that he has also no right, title or interest in the suit land on the basis of prior agreement to sell and the said finding had attained finality.

Sale of ceiling surplus land:

It is required to be noted that as such the heirs of the original vendor are not contesting the proceedings and it is only original defendant no.1 (now the legal heirs of original defendant no.1) are contesting the proceedings. Thus, it appears and/or nothing is on record to show that it was the case on behalf of the original defendants, more particularly on behalf of the vendor that the original plaintiff was informed specifically at the time of execution of the sale deed dated 06.01.1990 that the land in question is ceiling surplus land. In the light of the aforesaid facts, Section 43 of the T.P. Act, which is heavily relied upon on behalf of the original plaintiff is required to be considered.

Section 43 of the 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 immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operates 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”.

Section 43 of the T.P. Act provides that 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, operates on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Thus, if at the time of transfer, the vendor/transferor might have a defective title or have no title and/or no right or interest, however subsequently the transferor acquires the right, title or interest and the contract of transfer subsists, in that case at the option of the transferee, such a transfer is valid. In such a situation, the transferor cannot be permitted to challenge the transfer and/or the transferor has no option to raise the dispute in making the transfer. 7.5 The intention and objects behind Section 43 of the T.P. Act seems to be based on the principle of estoppel as well as the equity. The intention and objects seems to be that after procuring the money (sale consideration) and transferring the land, thereafter the transferor is estopped from saying that though he has sold/transferred the property/land on payment of sale consideration, still the transfer is not binding to him. That is why Section 43 of the T.P. Act gives an option to the transferee and not the transferor. The intention of Section 43 of the Act seems to be that no body can be permitted to take the benefits of his own wrong. In the facts and circumstances of the case, Section 43 of the Act would come into play and protect the rights of the original plaintiff.

Heirs of the original vendor have never initiated any proceedings for cancellation of the registered sale deed dated 06.01.1990, and/or they have never claimed any right, title or interest in the suit land after the registered sale deed dated 06.01.1990. As such, in the case of Ram Pyare (supra), applying Section 43 of the Act, this Court has specifically observed and held that once there was an erroneous representation by the vendor, thereafter the suit by the heirs of the vendor for cancellation of the sale deed would not be maintainable. Under the circumstances and in the facts and circumstances of the case, the rights of the original plaintiff in the suit land by a sale deed dated 06.01.1990 would be protected by operation of Section 43 of the Act. Therefore, the finding recorded by all the Courts below that the original plaintiff has no right, title or interest in the suit land on the basis of a registered sale deed dated 06.01.1990 cannot be sustained and the same deserves to be quashed and set aside.

[Source: Tanu Ram Bora v. Promod Ch Das decided by SC on 8 Feb. 2019]
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