OUSEPH Vs. GOVINDANKUTTY MENON

JUDGEMENT

(1.) THE only dispute in the appeal concerns the question whether plaintiff is entitled to a decree charged on plaint item No. 11 also. That item along With certain other items of properties, was charged under a simple mortgage Ext. P-1 dated 24-51949 for an amount of Rs. 750 received thereunder. Though the executant purported to mortgage that item also, On that day he had no title to that property. In fact the consideration received under Ext. P-1 was for the purpose of taking a sale deed of that item of property and it was later, by Ext. D-5 sale deed, that the said item was acquired by the executant on 3-2-1950. Therefore on the date of execution of Ext. P-1, in regard to item No. 11, the executant had no title. He acquired title after a few months and thereafter, on his death, his heir the 1st defendant sold the property to one Reppai under Ext. D-4 dated 21-1-1954 who in turn sold the properly to 4th defendant under Ext. D-3 dated 22-3-1961. The claim of the plaintiff in the suit for a decree charged upon item No. 11 was resisted by the 4th defendant on the ground that on the date of the mortgage the mortgagor had no title to that item and there-lore so far as that item was concern ed, the mortgage would be inoperative. This contention was upheld by the trial court. The appellate court reversed it and gave the plaintiff a decree charged on this item also. That is challenged in this appeal by the 4th defendant.

(2.) COUNSEL contends that Section 43 of the Transfer of Property Act, 1882 will not be available in a case where the person who takes a document takes it with the knowledge of the absence of title in the transferor. Section 43 is founded on the rule of estoppel and therefore in order to attract the principle of that Section it is necessary to show that there has been an erroneous or fraudulent representation. If both parties are aware of the absence of or defect in the title of the transferor, that will not be a case where there is an erroneous representation. In such a case there is no scope for applying the rule of estoppel embodied in Section 43 of the transfer of Property Act. This principle has now been well settled, whatever might have been the conflict of views on this question earlier. The Supreme Court in the decision in Jumma Masjid v. Kodi-maniandra Deviah (AIR 1962 SC 847) has stated the principle governing such cases. Unless it is contended that when taking Ext. P1 the mortgagee was not aware or the want of title of the mortgagor, there is no scope for invoking Section 43 of the Transfer of Property Act. On the facts of the case before me it cannot be said that the mortgagee who took Ext. P-1 was not aware of the absence of title in the mortgagor. That is because the very document mentions that the consideration thereunder was being received for the purpose of taking the sale of item No. 11.

(3.) THE main controversy concerns the contention raised by Sri M. K. Nara-yana menon, counsel for the appellant, that where Section 43 has no application, there is no scope for applying any other principle analogous to that provision. If the rule of feeding the grant by estoppel has no application to a case, it is the contention of the learned counsel, no other rule to give relief to a party should be invoked.