M KRISHNAMACHARIAR Vs. TTIRUVENGADA CHARIAR

JUDGEMENT

(1.) The only question of law arguable in this case is whether Section 43 of the Transfer of Property Act can be taken advantage of by a transferee who is not proved to have been misled by the erroneous representation of the transferor as to the latter s power to transfer.

(2.) It is true that the words "and the transferee has been misled by the erroneous representation" do not occur after the word "consideration" in Section 43. Pandiri Bangatam, v. Karumoory Suboaraju 8 Ind. Cas. 388 : 34 M. 159 at p. 161 : 8 M.L.T. 285, however, decided that though such additional words do not occur in this section, the Legislature must have intended to benefit only transferees who have been really misled. The provision being one based on considerations which Courts of Equity, rather than Courts applying strict law, take notice of, it was evidently considered that a person who was really not misled could not have, been intended to have the benefit of the provision.

(3.) I followed Pandiri Bangaram v. Korumoory Subbaroju 8 Ind. Cas. 388 : 34 M. 159 at p. 161 : 8 M.L.T. 285 in Hattikudur Narain Rao v. Andar Sayad Abbas Sahib 27 Ind. Cas. 785 : 28 M.L.J. 44 (sitting with Hancay, J.) though I felt some doubts whether such addition to the language of Section 54 could be taken as having been intended by the Legislature. I again followed it in Eodi Sankara Bhatta v. Moidin 49 Ind. Cas. 147 : 35 M.L.J. 120 : 8 L.W. 100, sitting with Oldfield, J. Another Division Bench (Bakewell and Phillips, JJ.) has followed Pandiri Bangaran v. Karumoory Subbaraiu 8 Ind. Cas. 388 : 34 M. 159 at p. 161 : 8 M.L.T. 285 in Venkota Lakshmi Rarasayyi v. Meenakshi Avtmal 52 Ind. Cas. 992 : 10 L.W. 221 : (1919) M.W.N. 707.; See also Swaminatha Mudali v. Saravana Mudali 40 Ind. Cas. 581 : 33 M.L.J. 370 where sitting with Spencer, J., I refer at page 378 to Pandiri Bangaram v. Karumoory Subbaraju 8 Ind. Cas. 388 : 34 M. 159 at p. 161 : 8 M.L.T. 285, as having been followed by me with some hesitation in Hattikudur Narain Rao v. Andar Sayad Abbas Sahib 27 Ind. Cas. 785 : 28 M.L.J. 44.]