1978 Supreme(Ori) 50

Orissa High Court
R. N. MISRA AND B. K. RAY, JJ.
Anand Padhan - Appellant
Versus
Dhuba Mohanty - Respondents
First Appeal No. 225 of 1970
Decided On : 11 August 1978

Section 43 of the Transfer of Property Act applies to a transfer of property by a person who fraudulently or erroneously represents that he is authorized to transfer the property and professes to transfer such property for consideration, and 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.

Headnote:

TRANSFER OF PROPERTY ACT, 1882 - SECTION 43 - ORISSA ESTATES ABOLITION ACT, 1951 - SECTIONS 3(16), 39 - ORISSA LAND REFORMS ACT, 1960 - SECTION 67 - SALE DEEDS AND LEASE DEEDS - VALIDITY - APPLICABILITY OF SECTION 43 OF THE TRANSFER OF PROPERTY ACT - INTERPRETATION AND APPLICATION.

Fact of the Case:

Plaintiffs filed a suit for declaration of title as occupancy tenants under the State Government. They claimed that the disputed property was Darmilla Paik Service Inam lands of the Surangi Estate and the same has been abolished under the provisions of the Orissa Estates Abolition Act. Ancestors of defendants 1 to 7 were raiyats under the Estate with occupancy right over the disputed property. With respect to malevaram right of the disputed lands, the Zamindars of Surangi created Inams in favour of the defendants ancestors for rendition of personal service. Nominal quit rent (Kathubadi) had, however, been fixed. The Inam-holders i.e. predecessors of defendants were thus enjoying the Kudivaram as also the Malevaram rights in the disputed property. The service was, however, discontinued around 1908. Plaintiffs obtained two sale deeds and four lease deeds from the defendants and their ancestors in respect of the Kudivaram right in regard to different portions of the disputed property and got into possession thereof. After the vesting of the estate, defendants applied for settlement of the lands with them under the Abolition Act. Under wrong advice, plaintiffs had also made similar applications. The Collector under the Abolition Act rejected the claim advanced by the plaintiffs and settled the lands with the defendants. After the settlement of the property with the defendants, they started claiming title to the property and demanded Rajbhag from the plaintiffs treating them as Bbagchasis. Plaintiffs, therefore, claimed the declaration in the manner indicated.

Finding of the Court:

The court held that the alienations under Exts. 1, 3, 5 and 6 would not be covered by S.43 of the Transfer of Property Act. The transferor under Ext. 3 was Loka Raut while the application under Chap. II of the Abolition Act was made by defendant No. 6 and the land was ultimately settled with him. The vendor under Ext. 5 was Arjuno Mohanty, father of defendant No. 1. The claim under Chap. II of the Abolition Act was made by defendant No. 1 and he obtained settlement with him. The sale under Ext. 6 was by Laxman Patra, father of defendant No. 2. The claim under Chap. II of the Abolition Act was by the daughter (defendant No. 2) and the settlement has been with her. In respect of these transactions, following the principle indicated in the Calcutta case, S.43 of the Transfer of Property Act would not have application, because the transferor never became owner of the property and the settlement has been obtained by the parties noted above in their own right and not as heirs of the persons who are bound by contracts. So far as the other three transactions are concerned, i.e. transactions under Exts. 1, 2 and 4, the transferors are the settlees and, therefore, S.43 of the Transfer of Property Act has direct application.

Issues: Whether the alienations under Exts. 1 to 6 were genuine and for consideration. Whether the transfers under Exts. 1, 3, 5 and 6 were binding on defendants while those under Exts. 2 and 4 were valid and binding on defendants 4 and 6 and their ancestors. Whether the suit was barred under S.39 of the Abolition Act and the Civil Court would have no jurisdiction to entertain the suit in view of the provisions of the Orissa Land Reforms Act.

Ratio Decidendi: The court held that S.43 of the Transfer of Property Act would apply to the transactions under Exts. 1, 2 and 4, as the transferors were the settlees and had acquired title subsequent to the alienations. The court also held that the suit was not barred under S.39 of the Abolition Act and the Civil Court had jurisdiction to entertain the suit.

Final Decision: The court allowed the appeal in part and decreed the plaintiffs' suit in regard to items 3, 4, 6 and 7 of the plaint schedule which are covered by Exts. 1, 2 and 4 respectively. Their suit in regard to items 1, 2 and 5, namely transactions covered by Exts. 3, 5 and 6 was dismissed.