SUKURI DEI Vs. MAKARA SAHU

JUDGEMENT

(1.) The present appellants were the defendants in the suit bearing Title Suit No. 43/86 (T. S. No. 14/84) in the Court of the Munsif, Anandapur. The defendants preferred this Second Appeal against the confirming judgment. The suit was for declaration that the plaintiff is the owner in possession of the suit land and for partition of the suit land from the share of defendant No. t and also for permanent injunction against the defendants restraining them from interfering with the possession of the plaintiff.

(2.) THE plaintiff's case as stated in the plaint is that one Sansei Sahu was the owner of the suit land. Defendant No. 1 and defendant No. 2 are the daughter and the adopted son respectively of the said Sansei Sahu. There was partition between Sansei and his adopted son defendant No. 2. Though the date of partition is not indicated in the plaint, in the additional written statement dated 4 -3 -1987 of the defendants 1 and 2. it had been alleged that the partition was done in the year 1959. On 6 -3 -1968 Sansei had transferred his half share in the property measuring Ac. 2.18 1/2 cents of Sand in favour of his daughter defendant No. 1 by registered sale deed and defendant No. 1 transferred a part of the said property measuring AC. 0.66 decimals in favour of the plaintiff by registered sale deed executed on 4 -5 -1973 which was marked Ext -1 in the suit. Later In 1975 Sansei and his wife filed a suit in the Court of the Subordinate Judge, Anandapur bearing Title Suit No. 83/107 of 1975 -76 challenging the validity of the sale deed dated 6 -3 -1968 executed in favour of their daughter defendant No. 1 as well a* the sale deed executed by defendant No. 1 in favour of the plaintiff as per Ext -1. The said suit, was, however, dismissed on 16 -7 -1976 against which judgment and decree Sansei and his wife preferred a Title Appeal bearing No. 22 -k of 1976 in the Court of the District Judge, Mayurbhanj -Keonjhar which was also dismissed on 23 -1 -1973 against which both Sansei and his wife preferred a Second Appeal bearing No. 131 of 1978 which was, however, allowed by this Court by its judgment dated 20 -1 -1984 which was marked Ext -A in the suit. In the said Second Appeal it was held that the sale deed dated 6 -3 -1968 in favour of defendant No. 1 was without any consideration, invalid and did not confer any title over defendant No. 1 and consequently the present plaintiff did not acquire any title by virtue of the sale deed dated 4 -5 -1973 executed in his favour. Sansei died after disposal of the second appeal i. e. in the year 1934 leaving behind the land measuring Ac. 2. 18 1/2 cents. The present respondent Makar Sahu as the plaintiff filed a suit wherein he had made a prayer to carve out 66 decimals of land that was transferred to him by defendant No. 1 from the land that fell to the hands of defendant Nos. 1 and 2 on the death of Sansei in which defendant No. 1 had 50% share, by partition of the share of defendant No. 1 from the property that was left to defendants 1 and 2 on his death. The basis of his claim was that Section 43 of the Transfer of Property Act now created a right in the plaintiff (in T. S. 43/86) to obtain such relief. He also pleaded that subsequent transfer of land in favour of defendant No. 2 by defendant No. 1 by registered sale deed dated 29 -101984 was hit by Section 52 of the Transfer of Property Act as according to the plaintiff that was a Us pendence transfer. In the said suit No. 14 of 1984 (T. S. 43 of 1986), the defendants filed their written statement in which they urged that there is no dispute that partition between Sansei and defendant No. 2 was done in 1959 by means of a registered partition deed. The sale deed by Sansei dated 6 -3 -1368 transferring his half share measuring Ac. 2,18| decimals in favour of his daughter defendant No. 1 was declared invalid in second appeal No. 131 of 1978. After death of Sansei, his share was succeeded by the defendants 3nd defendant No. 1 had validly transferred her share in favour of defendant No. 2 as the defendant No. 2 had got preferential right Under Section 22 of the Hindu Succession Act. The sale deed dated 29 -10 -1984 made in favour of defendant No. 2 by defendant No. 1 was exhibited as Ext -C/1. The trial Court came to the finding that the suit was not barred by res judicata and the plaintiff is entitled to the suit land Under Section 43 of the T. P. Act after death of Sansei. The transfer of land by defendant No. 1 in favour of defendant No. 2 on 29 -10 -1984 was hit by Section 52 of the T. P Act and the defendant No. 2 was not entitled to protection under Section 22 of the Hindu Succession Act as the sale in favour of the plaintiff was completed. The defendants thereafter filed the Title Appeal No. 14 of 1987 before the District Judge, Keonjhar in which the decision of the trial Court was confirmed and against .that appellate order, the present second appeal has been preferred.

(3.) SECTION 43 of the Transfer of Property Act reads as follows ; 'Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property, and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.' The plaintiff in Title Suit No. 14/8* (43/86) had not alleged if the defendant No. 1 from whom he purchased the land fraudulently or : erroneously represented him that she had the authority to transfer the immovable property. In such view of the matter Section 43 had no application to the case of the plaintiff to claim the benefit under the same. Section 43 of the T. P. Act comes to operation when a person with intention to cheat intentionally makes a false statement and thereby fraudulently induces another to believe that he/she had authorty to sell. This section also gives protection to the transferor and gives benefit Under Section 43 when the transferor committed an error transferring the property in question. Accordingly when the transferor subsequently acquires the said property during the subsistence of the contrct of transfer, the transferee gats the benefit Under Section 43 of the T. P. Act. In the present case, when defendant No. 1 sold the property, as asserted in the plaint, she gave out to the transferee that she had acquired the title to the property after her father had sold the property, to her by a registered sale deed dated 6 -3 -1968. in the Second Appeal No. 114 of 1978, it was held that the sale deed dated 6 -3 -1968 did not confer any title to the defendant No. 1 because of lack of consideration and was invalid. The defendant No. 1 therefore, did not acquire any right, title and interest to the land in question. In the present case without any specific assertion in the plaint that sale was either fraudulently or erroneously made by defendant No. 1 and in absence of any proof in that regard, the plaintiff was not entitled to the benefit Under Section 43 of the T. P. Act. Rather the plaint taken as a whole would show that after the judgment was delivered in second appeal No. 131 of 1978, the legal consequence that followed is that the sale that was effected in favour of defendant No. t on 6 -3 -1968 did not confer any right on her and the property remained with Sansei. Therefore, defendant No. 1 having no right over the property which she claimed to have obtained by the registered sale deed dated 6 -3 -1968, the transfer of the same by Ext -1 dated 4 -6 -1973 was invalid. When Sansei died in 1984, the legal consequence was that his interest in the property devolved on defendant Nos. 1 and 2 since Sansei's wife predeceased Sansei in the year 1983 and after death of Sansei, since defendant No. 2 had a preferential right to purchase the interest of defendant No. 1 Under Section 22 of the Hindu Succession Act, the sale by defendant No. 1 in favour of defendant No. 2 on 29 -10 1984 is a valid sale of the share of defendant No. 1 in favour of defendant No. 2 and defend ant No. 2 acquired right, title over the land purchased by the sale deed dated 29 -10 -1984. In such view of the matter, the contention raised by the plaintiff in Title Suit No. 14 of 19S4 (43/86) that he is entitled to the benefit Under Section 43 of the T. P. Act is not justified and the sale deed dated 4 -5 -1973 made by defendant No. 1 did not confer any right on the plaintiff as defendant No. 1 only acquired interest in the property in the year 1984 by way of succession on the death of Sansei, In such view of the matter, I set aside the Judgments and decrees of both the Courts below and dismiss the suit with cost throughout. The Second Appeal is allowed with costs.