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CASE NO.:

Appeal (civil) 6222 of 2000

PETITIONER:

Hardev Singh

RESPONDENT:

Gurmail Singh (Dead) by LRs

DATE OF JUDGMENT: 02/02/2007

BENCH:

S.B. Sinha & Markandey Katju

JUDGMENT:

J U D G M E N T

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).

Harcharan Singh, the original Defendant No.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 life time’. An appeal was preferred

thereagainst 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.

The appellant, in the suit, inter alia, raised a plea that he was a

bonafide 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.

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. Appellant is, thus, before us.

Mr. A. Mariarputham, learned counsel appearing on behalf of the

appellant took us through the judgment of the High Court and contend that

as the bonafide of the respondent was 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 the Section 43 thereof cannot be sustained.

Mr. R.K. Kapoor, learned counsel appearing on behalf of the

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respondent, on the other hand, supported the judgment.

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 provision of both Sections 41 and 43 of the

Act, which are as under :

"41. Transfer by ostensible owner.\026 Where, with the

consent, express or implied, of the persons interested in

immoveable 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 unauthorized person who

subsequently acquires interest in property

transferred. \026 Where a person fraudulently or

erroneously represents that