Transfer of Property Act, 1882: Section 43 and 6 (1): Leading Case (Kartar Singh v. Harbans Kaur)

 

 Facts:

The appellant (Kartar Singh) is the defendant. Smt Harbans Kaur - respondent executed the sale deed in favour of the appellant of alienating the lands which was held by the respondent and her minor son, Kulwant Singh. Kulwant Singh, on attaining majority declared that sale of his share in the lands mentioned in the schedule attached thereto by his mother was void and does not bind him. The decree ultimately was granted declaring that the sale was void as against the minor. But before taking delivery of the possession, Kulwant Singh died. Harbans Kaur, the mother being Class-I heir under Section 8 of the Hindu Succession Act, 1956 read with the schedule succeeded to the estate of the deceased. The appellant, therefore, laid his claim to the benefit of Section 43 of the Transfer of Property Act, 1882 

The High Court in Second Appeal No. 1557 of 1979, while setting aside the decree of the trial court and declared that the sale is void, refused to grant the remedy under Section 43 of the Act. Thus, these appeals by special leave.

Issue:

Whether the repossession of the land by the mother makes the sale applicable under Section 43, TPA?

 

Ratio Decidendi:

 A reading clearly shows 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.

 

In this case, admittedly, Kulwant Singh was a minor on the date when the respondent transferred the property on 19-4-1961. The marginal note of the sale deed specifically mentions that the respondent is transferring the property of the minor son as a Guardian. 

 

It is settled law that the transferee 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 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 had put the 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. 

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 eye of law and was never in existence so the second limb of

Section 43 is not satisfied.

 

The ratio of this Court in Jumma Masjid case 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 make a representation and if 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(a).”

 

This Court in the later part has made it clear that where 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) 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 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.

 

Judgement:

The appeal is dismissed.