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2015 Supreme(Bom) 1390
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
A.P. BHANGALE, J.
Tulsa & Ors. - Appellants
Versus
Sita & Ors. - Respondents
Second Appeal No. 72 of 2001
Decided on : 10.9.2015
Advocate Appeared:
Mr. M.P. Khajanchi, Adv. for the Appellants.
Mr. Rohit Masurkar, Adv. h/f. Mr. S.W. Ghate, Adv. for the Respondents.
The main legal point established in the judgment is that the defendant was entitled to the benefit of Section 43 of the Transfer of Property Act, as the transferor's representation led the defendant to act on it and pay consideration for the property.
Headnote:
Transfer of Property Act - Fradulent Transfer - Section 43
Fact of the Case:
The plaintiff Nagubai filed a suit for vacant possession of a plot, claiming that the defendant encroached upon it. The trial court found that the sale deed executed by Nagubai's son was not binding on her, and the defendant was in wrongful possession. The first appellate court dismissed the appeal filed by the defendant.
Finding of the Court:
The court found that the defendant was entitled to the benefit of Section 43 of the Transfer of Property Act, as the transferor's representation led the defendant to act on it and pay consideration for the property.
Issues: The main issue was whether the defendant's possession of the plot was rightful based on the registered sale deed executed by Nagubai's son.
Ratio Decidendi: The court applied Section 43 of the Transfer of Property Act, emphasizing that the defendant acted on the representation made by the transferor and paid consideration for the property, entitling him to the benefit of the equitable doctrine embodied in Section 43.
Final Decision: The court allowed the appeal, set aside the impugned judgment, and dismissed the suit filed by the plaintiff Nagubai with costs in favor of the defendant.
1. This appeal was admitted by this Court on 26.2.2004 in view of the law laid down by the Apex Court in the case of Jumma Masjid Mercard vs. Kodimaniandra Deviah and Others reported in AIR 1962 SC 847 on the following substantial question of law :
Did not the First Appellate Court commit a grievous error of law in observing that there was no fradulent transfer of erroneous representation within the meaning of Section 43 of Transfer of Property Act, when First Appellate Court held that the deceased Narayan, the son of plaintiff Nagubai executed registered sale deed (Exh.57) dated 8101969 on behalf of plaintiff Nagubai and that he was not authorised by Nagubai to execute sale deed ?
2. The facts, briefly stated, are as under :
That the original plaintiff deceased Nagubai was resident of Naginabagh Ward, Chandrapur. She had purchased plot no.2/19, admeasuring 900 sq.ft. situated at Jatpura ward, Chandrapur, on which plinth was built. She became owner under the registered sale deed dt.12.4.1961 from one Preraj Tahgde. Said Nagubai had instituted suit in the Court of 5th Joint Civil Judge (Jr.Dn.), Chandrapur for vacant possession of the suit plot and for permanent injunction against defendant Mahadeo Waktuji Nagrale (present appellant) bearing Regular Civil Suit No.143 of 1983. According to Nagubai, the defendant started construction on the suit plot in March, 1983 by encroaching upon the suit plot. While, according to the defendants, the plaintiff had sold the suit plot to him under the registered sale deed dt.8.10.1979, though she showed her ignorance regarding registered sale deed executed by her son Narayan Raghobaji Yenurkar on her behalf for a consideration in the sum of Rs.2,000/-.
The defendants pleaded that, on behalf of Nagubai Yenurkar, her son Narayan Yenurkar transferred the suit plot and also delivered possession thereof to the defendant. Thus, the defendant had entered in possession of the suit plot with effect from the date of registered sale deed i.e. 8.10.1969 as owner thereof. Son of Smt. Nagubai had also assured that the suit plot is free from any encumbrance, loan, transfer etc. and undertook the responsibility to reimburse the defendants in case any encumbrance is found. The said sale deed is at Exh.57. Thus, the defendants claimed ownership of the suit plot as also continuous and peaceful possession of the same since 8.10.1969. The trial Court recorded findings of facts that Narayan (son of Nagubai) had no authority to sell the suit plot and held that the registered sale deed executed by Narayan was not binding on Nagubai. The trial Court also negatived the plea of open, continuous and peaceful possession of the suit property since 1969 made by the defendants as adverse possessors thereof. The trial Court held that the legal representatives of Nagubai brought on record can claim possession from Nagubai. The first Appellate Court, therefore, dismissed the appeal filed by the appellant.
3. In the trial Court, the issues were framed and it was found that name of the plaintiff was recorded in the Nazul maintenance Khasra till 1978-79 in respect of the suit plot and that the defendants had encroached upon the suit plot as alleged by the plaintiff and further that the defendants never took possession of the suit plot. However, the trial Court held in favour of the defendants that the plaintiff had sold the suit plot to the defendants by registered sale deed dt.8.10.1969 for Rs.2,000/-, as alleged. But the Court also held that sale of suit plot by the plaintiff's son Narayan was without any authority and not binding upon the plaintiff. Thus, holding that the defendant was in wrongful possession since March, 1983, the plaintiff was held entitled to vacant possession of the suit plot.
4. Learned Counsel appearing for the appellants invited my attention to the substantial question of law, upon which this Court had admitted the Second Appeal and contended that the registered sale deed in favour of defendant (Exh.57)
