The main legal point established in the judgment is the interpretation and application of Section 43 of the Transfer of Property Act, emphasizing the conditions for its application and the principle of feeding the estoppel.

Judgment

S.B. SINHA, J. - This appeal raises an interesting question of law in regard to interpretation of Section 43 of the Transfer of Property Act, 1882 ("the Act", for short).

2. Harcharan Singh, original Defendant 1, allegedly transferred some properties in favour of his wife Udham Kaur in lieu of maintenance pursuant to a compromise entered into by and between them. She claimed herself to be the absolute owner thereof in terms of Section 14(1) of the Hindu Succession Act, 1956. She filed a suit against her husband Harcharan Singh for a declaration that she was the owner in possession of the suit land. The learned trial Judge was of the opinion that as she had been in possession of the property in lieu of maintenance, she was "entitled to enjoy the fruits thereof only during her lifetime". An appeal was preferred there against and the appellate court declared her to be the full owner in possession of the suit land. Indisputably, during pendency of the said suit, Harcharan Singh sold the said land to the respondent herein by a deed of sale dated 17 - 3 - 1982 and he had been given possession thereof. Another suit was filed by Udham Kaur.

3. The appellant (sic respondent), in the suit, inter alia, raised a plea that he was a bona fide purchaser for value, whereas the case of Udham Kaur was that as the properties were purchased during pendency of the suit, the same was hit by the "doctrine of lis pendens", as envisaged under Section 52 of the Act. The said contention of the respondent was not accepted by the learned trial Judge as also by the first appellate court holding that the transaction was hit by the doctrine of lis pendens. In the second appeal, one additional ground was taken by him viz. having regard to the death of Udham Kaur, the properties devolved upon the appellant herein as also on Harcharan Singh in equal shares; and, thus, he should be declared to be the owner of the lands in terms of Sections 41 and 43 of the Act.

4. The High Court, although rejected the contention of the respondent herein that Section 41 of the Act would be attracted, but opined that Section 43 would. The appellant is, thus, before us.

5. Mr A. Mariaputham, learned counsel appearing on behalf of the appellant took us through the judgment of the High Court and contended that as the bona fides of the respondent were not proved and furthermore in view of the fact that the High Court itself opined that he was not entitled to the benefit of Section 41 of the Act, the judgment of the High Court upholding his claim in terms of Section 43 thereof cannot be sustained.

6. Mr R.K. Kapoor, learned counsel appearing on behalf of the respondent, on the other hand, supported the judgment.

7. Although, in this appeal we are not concerned with the applicability of Section 41 of the Act, with a view to appreciate the rival contentions raised by the parties we may notice the provisions of both Sections 41 and 43 of the Act, which are as under:

"41. Transfer by ostensible owner. - Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it:

Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.

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