ANTHARMAN Vs. MOITHU

JUDGEMENT

(1.) The suit out of which this Second Appeal arose was one in partition. The suit property as is found concurrently by the courts below belonged to Biyyathumma, the grandmother of the plaintiff. Moideen and Ahmad were her sons and Kunhambi, Kunhamina, Kathiya and the 17th defendant her daughters. This Second Appeal is concerned only with Moideen's share in the property. Claiming the property to have belonged to his late father, Moideen assigned his share therein on February 25,1901, while Biyyathumma was alive, to a stranger Avulla under Ext. B4; and on May 6, 1905 Avulla transferred the same, under Ext. B5, to Aharaad. Subsequently after Biyyathumma's death Moideen, as her heir, transferred his share in the property to the 18th defendant, his son, as per Ext. B19. As the property really belonged to Biyyathumma, Exts. B4 and B5 were incapable of conveying any rights in the property unless puffed up with title under S.43 of the Transfer of Property Act. It is not surprising, therefore, that Ahmad claimed the benefit of the said S.43 to support his rights to the suit property. It is admitted, on both sides, that unless S.43 is attracted to fill up title under Exts. B4 and B5, Ahmad, or his legal representatives the defendants 1 to 6, will have no title to Moideen's share, and that if S.43 is attracted the title has necessarily to be found with them. So the only question that arises for consideration in this Second Appeal is the applicability of S.43 of the Transfer of Property Act to the transaction covered by Exts. B4 and B5.

(2.) Till recently, the view that had held the field was that if the transferee was in the know of the real facts, that is to say, of the defect in the title of the transferor he could not claim the benefit of S.43 of the Transfer of Property Act. Mulla, in his Commentary on the Transfer of Property Act, summarises the position thus:

(3.) The Second Appeal fails, and is dismissed. As both parties have advanced untenable contentions in the suit, and in view of their close kinship, they are directed to suffer their costs throughout.