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PETITIONER: JOTE SINGH (DEED) BY LRS.

       Vs.

RESPONDENT: RAM DAS MAHTO & ORS.

DATE OF JUDGMENT:       22/08/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  JT 1996 (7)   471        1996 SCALE  (6)175

ACT:

HEADNOTE:

JUDGMENT:                 THE 22ND DAY OF AUGUST, 1996 Present:           Hon’ble Mr. Justice M.M. Punchhi           Hon’ble Mrs. Justice Sujata V. Manohar Pramod Swarup, Adv. For the appellants. B.B. Singh. Adv. for the respondents.                          O R D E R The following order of the Court was delivered: Jote Singh (dead) by LRs V. Ram Das Mahto and others                          O R D E R      The facts  as found  by the  High Court  are that  at a point of  time, Smt.  Udwantia was  the owner  of the estate left by  her late husband - Thakur Mahto. In the presence of her daughter  Ram Deiya,  she gifted  her property to Ramdas Mahto, her grandson, the son of Ram Deiya. This Ramdas Mahto deprived himself  of the property by effecting two sales and by suffering an auction sale. Ram Deiya filed a suit, out of which this  appeal has  arisen, to  claim  that  her  mother Udwantia being  a limited  owner, could  not have gifted the property to  Ramdas Mahto,  the latter’s  son and, thus, she pleaded for  return of  the properties, by then in the hands of the  transferees and  the auction purchaser, The suit was decreed by the trial court. The first appellate court of the Additional District  Judge confirmed the same. At the second appellate state  before the High Court, the plaintiff - Smt, Ram Deiya  - died  and her  son, Ram  das Mahto,  who was  a defendant in  the suit, succeeded to the estate. It was then that an  argument was  built that  since Ram  Das Mahto  had succeeded to  the property,  any defect  in title  to  those sales stood rectified and omission(s) supplied by the thrust of the  provisions of  Sections 41 and 43 of the Transfer of Property Act  (the Act).  The argument  was accepted  by the High Court  but insofar  as  the  voluntary  transfers  were concerned. In respect of the court sale, in the execution of

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a decree against Ram Das Mahtos such treatment was not meted out. This  has given  rise to  this appeal  by  the  auction purchaser,  clamouring   that  he   was  entitled  to  equal treatment on  the same  interpretation of Sections 41 and 43 of the Act, as put by the High Court.      As a  doctrine, it  is well-established  that  where  a person sells  property of  which he  is not the owner but of which he  afterwards becomes  the owner, he is bound to make good the  sale to  the purchaser  out  of  his  subsequently acquired interest.  See in  this connection  Alukmonee Dabee vs. Banee  Madhub Chuckerbutty  and Anr  [ILR-IV Calcutta at 677]. It is equally well-settled that the said doctrine does not apply to a sale when made by or through court because of its very  nature, it  being involuntary  from the sufferer’s angle.  It   is  also   well-understood  that   neither  the provisions of  Section 41  nor that of Section 43 of the Act are available for the benefit of the auction-purchasers, for these provisions  come to  the rescue  of  transferees  from ostensible owners or of transferees who purchase property in good faith  from unauthorised  persons and  who subsequently acquire interest  in the  property  transferred.  These  two provisions logically  get engaged in voluntary transfers and not in  involuntary transfers.  like auction sales. There is no question  of the  court  ever  playing  the  role  of  an ostensible owner  or a  representative owner of the property when selling,  so as to attract the provisions of Section 41 or 43  of the  Act. In  face  of  these  principles,  it  is difficult to  hold that  the High  Court was in error in not giving the  benefit of  the aforesaid  two provisions to the auction purchaser, the appellant herein.      The appeal,  therefore has  no merit.  It fails  and is hereby dismissed. No costs.