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IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL  NO. 151    OF 2009

[Arising out of SLP(C) No. 2987/2008]

JHARU RAM ROY ... APPELLANT(S)

:VERSUS:

KAMJIT ROY AND ORS. ... RESPONDENT(S)

O R D E R

Leave granted.

This  appeal  is  directed against  a  judgment and order  dated 4.6.2007

passed  by  the  learned  Single  Judge  of  the  High  Court  Gauhati  in  R.S.A No.

169/2006  preferred  by  the  appellant  herein,  whereby  and  whereunder  the

judgment and order dated 18.4.2006 passed by a Civil Judge, Senior Division, was

affirmed.   

The basic fact of the matter is not in dispute.

One Nakho Ram was the owner of the suit property. He had two sons,

namely, Rajiv Lochan Roy and Kamjit Roy.  The property in the suit admeasured

16 Bighas 4 Kathas.   

Rajiv Lochan executed two deeds of sale in 1982, in respect of about 4

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Bighas of land, inter alia, contending that he had half share in the said property.

It is not in dispute that the family of Nakho Ram was governed by Dayabhaga

School of Hindu Law. It is furthermore not in dispute that in 1982, Nakho Ram

was alive and he expired only in the year 1990.  Appellant, however, claimed that

in terms of the aforementioned deeds of sale executed by Rajiv Lochan in the year

1982,  he  had  remained in  possession  of  the  vested property  since  the  date  of

purchase.   

It  is,  furthermore, not in dispute  that in  the year 1990,  a proceeding

under Section 107 as also Section 145 of the Code of Criminal Procedure was

initiated  and  therein,  Respondent  No.1  herein  was  put  in  possession  of  the

property.   

Respondent No.1 filed a suit in the year 1991 for declaration of his title,

confirmation of  possession as also a decree for setting aside two deeds of  sale

executed by Rajiv Lochan in the year 1982. The said suit was dismissed by the

learned  Trial  Judge,  inter  alia  holding  that  the  legal  representatives  of  the

proforma respondents having not been brought on record, the suit had abated. It

was  furthermore  held  that  the  defendant-appellant  acquired  title  to  the  suit

property by adverse possession. The suit so far as it related to setting aside the

aforementioned deeds of sale was, however, held to be barred by limitation.

The  First  Appellate  Court,  however,  on  an  appeal  preferred  by  the

contesting respondents, reversed the said findings of the Trial Court opining that

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as the defendant-appellant was a party to the fraud perpetrated by Rajiv Lochan

in so far as he was, at all material times, aware that in the year 1990, Nakho Ram

was alive and not dead, he cannot take benefit of the said deeds of sale and the

same were void ab initio. The High Court, as noticed hereinbefore, has affirmed

the said view.  

Learned counsel  appearing on behalf  of  the appellant  would  contend

that the High Court committed a serious error in passing the impugned judgment

in so far as it failed to take into consideration the provisions of Section 43 of the

Transfer of Property Act, in terms whereof, having regard to the fact that Rajiv

Lochan  had  also  died  in  the  year  1992,  the  doctrine  of  feeding  the  estoppel

became applicable to the facts of the present case.  

A finding of fact has been arrived at by the First Appellate Court that

the appellant was also a party to the fraud inasmuch as he was all along aware

that  on  the  date  of  execution  of  the  deeds  of  sale,  Nakho  Ram  was  alive.

Indisputably, therefore, the appellant entered into the aforementioned transaction

knowing fully  well  that Nakho Ram was alive in the year 1992, Rajiv Lochan

could not have executed the deeds of sale and only with a view to obviate the legal

difficulties, Nakho Ram was shown to have expired.  

Appellant was furthermore aware that although Rajiv Lochan did not

inherit the property of Nakho Ram, he executed the aforementioned deeds of sale.

Rajiv  Lochan,  thus,  having  no  title  to  the  property,  by  said  deeds  of  sale  or

otherwise, evidently could not have derived any title thereover.

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Section 43 of the Transfer of Property Act reads as under:

“43.Transfer by unauthorised person who subsequently

acquires interest in property transferred.- Where a person fraudulently  or  erroneously  represents  that  he  is  authorised  to

transfer  certain  immovable  property  and  professes  to  transfer

such property for consideration,l 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.

Nothing  in  this  section  shall  impair  the  right  of

transferees in good faith for consideration without notice of the

existence of the said option.”

In this case, as the appellant averred that although in the deeds of sale, a

stipulation was made by Rajiv Lochan that his father had expired, it cannot be

said to be a case where he fraudulently or erroneously represented that he was

authorized to transfer the said immovable property.  As noticed hereinbefore, a

finding of fact had been arrived at by the First Appellate Court that the appellant

was a party to the fraud and that he was not victim thereof.

Our attention, however, has been drawn to a decision of this Court in

[2007 (2)  SCC 404].  In  the  said  decision this  Court  laid down the  law in  the

following terms:  

“12. In order to get the benefit of the said provision, the conditions

which must be satisfied are:

(1) the contract of transfer was made by a person who

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was competent to contract; and

(2) the contract would be subsisting at the time when a

claim for recovery of the property is made.

13.  However,  the  provisions  would  have  no  application  if  the

transfer   was invalid  as being  forbidden by law or contrary to

public policy, as envisaged under Section 23 of the Contract Act.

Thus, no estoppel can be pleaded contrary to the provisions of a

statute. The 'rule of feeding the estoppel' shall apply in absence

thereof.  

14. The doctrine of feeding the estoppel envisages that 'where a

grantor has purported to grant an interest in land which he did

not at the time possess, but subsequently acquires, the benefit of

his  subsequent  acquisition,  goes  automatically  to  the  earlier

grantee, or as it is usually expressed, feeds the estoppel'.    

15. The principle is based on an equitable doctrine that a person

who promised to perform more than he can perform must make

good his  contract  when  he acquires  the power of  performance.

The difference between the ambit of Section 41 and 43 of the Act

is apparent.  Whereas Section 41 provides that a transfer by an

ostensible  owner  cannot  be  avoided  on  the  ground  that  the

transferee  should  take  reasonable  care  to  ascertain  that  the

transferor had power to make the  transfer and to act in good

faith before a benefit thereof if claimed by him. Section 43, on the

other hand, enables the transferee to whom a transferor has made

a fraudulent or erroneous representation to lay hold, at his option,

of any interest which the transferor may subsequently acquire in

the  property,  unless  the  right  of  any subsequent  purchaser  for

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value without notice is in effect.”   

 Fraud  vitiates  all  solemn acts.    As   the appellant was aware

of  the  fact  that  Nakho  Ram  had  not  expired  in  1992,  in  our  opinion,  the

provisions of Section 43 of the Transfer of Property Act cannot be said to have

any application in the instant case.  

For the reasons aforementioned, this appeal is dismissed. However, there

shall be no order as to costs.

..........................J (S.B. SINHA)

..........................J   (Dr. MUKUNDAKAM SHARMA)    

..........................J (ASOK KUMAR GANGULY)

NEW DELHI, JANUARY 13, 2009.