DEOCHAND Vs. BIRIKHDAS

JUDGEMENT

(1.) THE plaintiff Birikhdas filed a suit basically against the appellant/defendants Nos. 1 to 3, inter alia pleading that on 14.9.1957, the plaintiff has purchased the property from defendants Nos. 4 and 5 and since then the plaintiff was in possession. Some where near Diwali in the year 1978, defendants Nos. 1 to 3 tried to interfere with the possession of the plaintiff, therefore, an injunction he granted in his favour or if it is found that the plaintiff was not in possession, possession be delivered to him. Defendants Nos 1 to 3 come with the case that the properly belonged to one Pargan, who was husband of defendants No. 4, and 5. One Jaspal Singh had purchased the property from Pargan on 23.5.1955, therefore, on 14.9.1957, defendants Nos. 4 and 5 had no right, title or interest in the property. It was further pleaded that Jaspal Singh reconvened the property in favour of defendants Nos. 4 and 5 on 27.5.1964 and therefore defendants Nos. 4 and 5 sold the property on 23.1.1974 under Ex. D -2 to the defendants. According to them, they were in possession of the property. The learned trial Court after recording evidence and hearing the parties held that on 14.9.1957, defendants Nos. 4 and 5 had no right, title or interest in the property, therefore, the sale dead executed by them, would not convey any title to the plaintiff and as he was not in possession, he would not be entitled to a decree. During the pendency of the suit, the plaintiff died, therefore, his legal representatives were brought on record. The legal representatives took up the matter in appeal. The first appellate Court, applying the principles underlying section 43 of the transfer of property Act, allowed the appeal holding that if defendants Nos. 4 and 5 had no transferable rights on 14.9.1957 but as they had acquired rights on reconveyance on 27.5.1964, the plaintiff would be entitled to a decree in his favour. The learned first appellate Court was also of the view that subsequent conferral of title on defendants Nos. 4 and 5 was good enough to convey title in favour of the plaintiff. The first appellate Court also opined that the defendants have not perfected their title by adverse possession. Being aggrieved by the judgment and decree passed by the first appellate Court, defendants Nos. 1 to 3 have preferred this appeal. Shri Pandey appeared for the appellants but the respondents had chosen to remain ex parte. The appeal was admitted for hearing on 2.4.1987 on the following substantial question of law.

(2.) ACCORDING to Shri Pandey, the plaintiff had never come with the case that he was exercising his option under section 43 of the Transfer of Property Act, therefore, he would acquire rights in the property. He further submits that the provisions of section 43 would not be applicable to a bona fide purchaser not it shall impare the rights of the transferees in good faith for consideration without notice of the existence of the option which the first transferee was entitled to exercise. According to him, the requirements of section 43 must be pleaded, the other party should be given a chance, and the plaintiff should come with the case and must unequivocally plead that he had exercised that option and as such the original owner was bound by the transfer which was affected by him when he had no right to effect and the subsequent purchaser from the transfer or would not acquire any rights.

(3.) THE plaint is absolutely silent about section 43 and its application. The plaint now where states that defendants Nos. 4 and 5 ever made a representation, fraudulently or erroneously, before the plaintiff that they were authorised to transfer the immovable property in favour of the plaintiff. The plaintiff had come with the case that he had purchased the property in the year 1957 and was put in possession. The defendant came with the case that the husband of defendant No. 4, and defendant No. 5 had already transferred the property in favour of Jaspal Singh who reconvened the property in favour of defendants Nos. 4 and 5, in the year 1964. If the plaintiff wanted to take advantage of this subsequent event which might or might not have been within his knowledge, he was required to plead the facts. It cannot be lost sight of that when the plaintiff proposes to take shelter under the provisions of section 43 of the Act, he has to plead that he has exercised the option and because of the option he has become the absolute owner of such property which was transferred to him by the person who subsequent to the transfer acquired the rights. Not only this, section 43 protects the rights of the bona -fide purchaser. The proviso would certainly govern the main section because a purchaser for consideration who purchased the property in good faith and had no notice of the existence of the option would otherwise be defenseless. On one hand, section 43 is based on pleading of estoppel, then at the same time it requires the first transferee to exercise his option and at least expects of him that he would plead the material facts that he had exercised the option and the manner in which the option was exercised. Section 43 of the T.P. Act protects a transferees in good faith without notice of the option. It protects the rights because untill the option is exercised, the tranferee's right to acquire property is only contractual obligations and the transferor holds the interest as his trustee.