MULRAJ Vs. INDAR SINGH

JUDGEMENT

(1.) The facts involved in this appeal are as follows: The appellant who was the plaintiff in the Court below obtained a mortgage from the Respondent No. 1, Indar Singh, in respect of several, properties out of which only one is in dispute in this appeal. In this property Indar Singh had only a reversionary interest on the death of a certain lady at the date of the mortgage. After the mortgage the lady died and the contesting respondent, viz., Babu Girdhari Lal obtained at an auction purchase this property. When the appellant put his mortgage into suit Babu Girdhari Lal raised the plea that the mortgage of the property in question by Inder Singh was invalid and did not convey any right to sell it. The appellant relied on Section 43 of the Transfer of Property Act and the question arose whether the plaintiff was or was not aware at the date of the mortgage of the fact that Indar Singh's interest in the property in question was only that of a reversionary and not that of an absolute proprietor. The lower appellate Court has found in the clearest terms possible that the plaintiff was aware of the true interest of Indar Singh in the property. Now the question is whether in the circumstances Section 43 of the Transfer of Property Act would apply and would entitle the plaintiff to sell the property. If the answer be in the affirmative a further question would arise whether Babu Girdhari Lal would be bound to give up the property in the circumstances of the present case.

(2.) We are, however, of opinion that Section 43 of the Transfer of Property Act does not apply in favour of the appellant. Section 43 is based on equitable principles. It is only when a transferee is led into the belief of absolute title on the part of the transferor and acts on the representation of the transferor that he is entitled to take advantage of the fact that the transferor later on becomes the owner of the property. If that were not so, Secs.6 and 43 of the Transfer of Property Act would conflict. Section 43 of the Transfer of Property Act opens with these words: "Where a person erroneously represents." The word "represents" clearly shows that the person in whose favour the equity is allowed to operate must have acted on the representation. The point has really been settled by numerous authorities and it would be enough to quote two cases only to support our decision: vide Pandiri Bangaram V/s. Karumoory Subbaraju [1910] 34 Mad 159 and Jagannath V/s. Dibbo [1909] 31 All 53.

(3.) In view of these decisions the other points raised in the grounds of appeal do not arise. The appeal is dismissed under Order 41, Rule 11, Civil P.C.