KESAVA PANICKER BHASKARAN Vs. NARYANAN JAYAKUMAR

JUDGEMENT

(1.) Second defendant in a suit for redemption is the appellant. He is the assignee of the first defendant, to whom the plaint schedule property was mortgaged under Ext. A-2 from the thavazhi of the plaintiff. The thavazhi of the plaintiff obtained the suit property under Ext. A-1 partition deed at a time when the plaintiff was not born. After taking assignment of Ext. A-2 mortgage from the first defendant, undivided shares in the equity of redemption were purchased by the plaintiff from some members from 1963 to 1968. The suit for redemption was filed ignoring these sale deeds. The main contention of the appellant was that in view of the Kerala Joint Hindu Family System (Abolition) Act 30 of 1976 which came into force on 1-12-1976, he is entitled to claim the rights of the persons from whom he took the sale deeds and, therefore, the respondent plaintiff can sue only for partition and redemption of his share. His further stand is that in support of such a contention, he is also entitled to have resort to Sec. 43 of the Transfer of Property Act. Both these contentions were rejected and the suit for redemption decreed. Decision was confirmed in appeal. That is how he happened to come up in second appeal.

(2.) Sec. 43 of the Transfer of Property Act contemplates a transfer for consideration by an authorised person who has no right but who fraudulently or erroneously represents that he is authorised to transfer and subsequently acquires interest in the property at any time during which the contract of transfer subsists. Then at the option of the transferee, the transfer may operate on the subsequently acquired interest. That is what is called feeding the grant by estoppel. Where a person who makes the fraudulent or erroneous representation and purports to grant an interest in land which he did not at that time possess, but subsequently acquires the benefit of his subsequent acquisition automatically goes to the earlier grantee, or as it is usually expressed, feeds the estoppel. It is partly based on the doctrine of estoppel by deed and partly on the equitable doctrine that a man who has promised nor than he can perform must make good his contract when he promised more than he can perform must make good his contract when he acquires the power of performance. Sec. 43 has no application in our case. Transfer of an undivided share in tharavad or thavozhi property does not involve (i) any fraudulent or dishonest reppesentatien of the existence of a non-existent interest in land, (ii) purported transfer of such interest, which the transferor did not possess at that time, or (iii) acquisition of such interest later. Interest in land was already there. Only thing is that an undivided share was not legally transferable and such a transfer is void and as such non-est in the eye of law. The purchaser cannot claim that he was misled by any representation to change position to his disadvantage because nobody could claim that he is not aware of the law of the land. Ignorance of law is no excuse. Therefore, there cannot be any estoppel because estoppel has no place when the true state of affairs is known. A person who enters into a transaction knowing the true state of affairs cannot say that he was misled. Law presumes that the documents were taken with knowledge of the real legal position even if, in fact, there was no such knowledge. That is what the Supreme Court said in Junia Masjid Vs. Kodimaniandra Deviate, AIR 1962 Supreme Court 847.

(3.) It is true that the Kerala Joint Hindu Family System (Abolition) Act 30 of 1976 put an end to joint tenancies under the Hindu, Marumakkathayam and Aliyasanthanam laws within the State. By the coming into force of that Act on 1-12-1976 by statutory fiction, such joint tenancies automatically got converted into tenancies-in-common as on that date consisting of joint tenants who were in existence on that date. It has to be borne in mind that the conversion into co-ownership was only with effect from 1-12-1976 on the basis of a statutory notional partition. What we are concerned is whether the transfers of the undivided shares on earlier dates were validated by the subsequent statutory severance of rights. As on the dates of transfers, they were void in the eye of law. The subsequent legislation is not having the effect of reviving and validating those of void transfers. Conversion of joint tenancy into tenancy-in-common cannot have any retrospecitive operation. Further, there is no question of a transfer which was void when it came into being according to the law then in existance being given life by a later enactment which cannot have retrospective operation. That is what the decision in Sankaran Nair Vs. Govindan, 1982 K.L.T. 948 held. The Full Bench decision in Ammalu Amrna and others Vs. Lakshmi Amma and others, 1966 K.L.T. 32 is authority for the position that an undivided share in thavazhi or tharavad cannot be made the subject-matter of alienation and as such the document is void.