KARTARSINGH Vs. HARBANS KAUR

JUDGEMENT

(1.) Leave granted.

(2.) The appellant is the defendant. Smt Harbans Kaur respondent executed the sale deed on 19-4-1961, in favour of the appellant of alienating the lands on her behalf and on behalf of her minor son, Kulwant Singh. Kulwant Singh, on attaining majority, filed Case No. 21 of 1975 on 14/3/1975 on the file of the Sub-Judge, 2nd Class, Gurdaspur for a declaration that the sale of his share in the lands mentioned in the schedule attached thereto by his mother was void and does not bind him. The decree ultimately was granted declaring that the sale was void as against the minor. But before taking delivery of the possession, Kulwant Singh died. Harbans kaur, the mother being Class-1 heir under Section 6 of the Hindu Succession act, 1956 read with the schedule succeeded to the estate of the deceased. The appellant, therefore, laid his claim to the benefit of Section 43 of the transfer of Property Act, 1882 (for short 'the Act'). The High court in second Appeal No. 1557 of 1979, while setting aside the decree of the trial court and declared that the sale is void, refused to grant the remedy under Section 43 of the Act. Thus these appeals by special leave.

(3.) The contention for the appellant is that in view of the finding that harbans Kaur had succeeded by operation of law, the appellant is entitled to the interest acquired by Harbans Kaur by operation of Section 43 of the Act and the High court has misapplied the ratio of decisions of this court in jumma Masjid, Mercara v. Kodimaniandra Deviah and the decision of thepatna High court in Jhulan Prasad v. Ram Raj Prasad. Section 43 of the transfer of Property Act provides thus :