1995 Supreme(Bom) 231

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
R.M. Lodha, J.
Onkar son of Raoji Hage and another.... Appellants.
Versus
Shamrao Shivrao Palhade and another.... Respondents.
Second Appeal No. 224 of 1982, decided on 21-4-1995.
Advocates appeared :
Miss Savitri Dave, for appellants.
Mrs. Maldhure, for respondents.

Headnote:TRANSFER OF PROPERTY ACT, 1882

       Section 43-Evidence Act, 1872-Sections 3, 59, 61 and 114(h)-Part owner-Selling whole home-Whether it shows a false or erroneous representation made by part owner?

       Held; it is not disputed that the present appellants did not lead evidence in support of their defence set out in the written statement. In the absence of any evidence led by the appellant it cannot be said that the finding of fact recorded by the Appellate Court that there was nothing on record that except A and his mother J any other person having interest in the suit property was alive when plaintiff purchased the property on 26.12.1969, suffered from any error. The Appellate Court thus, rightly concluded that in the suit house A and his mother J had half share each and by the sale dated 26.12.1969, defendant No. 1-A could not have transferred the suit house in which J had half share. The very fact that though J had half share in the suit house, yet the entire house was transferred by defendant No. 1-A the plaintiff vide sale-deed dated 26.12.1969 would show that there was representation either fraudulent or erroneous on the part of defendant No. 1-A made to the plaintiff, which led the plaintiff to believe that defendant No. 1 was owner of the property and be purchased the suit property from A. In this background, it cannot be said that finding recorded by the appellate Court that it was obvious that A had fraudulently represented to plaintiff that entire house was owned by him and he could transfer the same and he proceeded to make transfer not of his share but his mothers also for a consideration vide sale- deed dated 26.12.1969 suffer from any error or infirmity. That being the position and the fact that subsequently J died in the year 1973, leaving behind defendant No. 1-A as her sole heir, the question that needs to be determined whether the principle feeding the estoppel as envisaged in Section 43 of Transfer of Property Act could be attracted.

       Section 43-Evidence Act, 1872-Sections 3 and 115-Expression feeding the estoppel -Pleasing of.

       "Feeding the Estoppel is an expression which is part of English Law of Estoppel and by it is meant that where a grantor has purported to grant interest in land which he did not at the time possess but subsequently acquires, benefit of subsequent acquisition goes automatically to the earlier grantee.

       The English Rule Feeding the Estoppel with some exceptions and departure is engrafted in Section 43 of Transfer of Property Act, which provides that if a person fraudulently or erroneously represents that he is authorised to transfer immovable property and transfers such property for consideration, at the option of the transferee, such transfer shall operate on any interest, which the transferor may acquire in such property at any time during which the contract of transfer subsists, subject, however, to the conditions that the rights of transferee in good faith for valuable consideration without notice of the existence of said option are not affected. Under proviso to Section 43 of Transfer of Property Act, therefore, right of a transferee who has purchased the immovable property from transferor on a fraudulent or erroneous representation that he was the owner of the property or authorised to transfer such immovable property though he was not, and if subsequently such transferor acquired the interest in the property, which has been transferred to the transferee and such transferee has exercised his option, can still be defeated by a subsequent transferee having purchased the property in good faith for valuable consideration without notice of the existence of option by first transferee. In the present case, however, the trial Court has found as a fact that the appellants have failed to prove that they were bona fide purchasers for value without notice. The finding recorded by the trial Court that defendant Nos. 3 and 4 who are the present appellants were not the bonafide purchasers for valuable consideration has not been set aside by the First Appellate Court. In this view of the matter, the exception contained in Section 43 that nothing in this section shall impair the right of transferee in good faith for consideration without notice of existence of the said option is not at all attracted and the case is squarely covered under the provisions of main Section 43.

       On the basis of facts found in the present case, it can also be said that the plaintiff has erased the option. The expression option occurring in Section 43 does not require that such option has to be exercised by the express terms by the transferee. The word "option" implies that the transferee may take the after acquired interests of the transferor and the very fact that the plaintiff was claiming his rule over the entire suit house showed that he exercised his option of taking after acquired interests of the transferor. No particular form of option is required under Section 43 of Transfer of Property Act.

       Sections 3, 59, 61 and 114(h)-See Transfer of Property Act, 1882 - Section 43.

       Sections 3 and 115-See Transfer of Property Act, 1882-Section 43.

       Section 43-Option-Exercise of-Not to be in express terms-It requires no particular form.