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When Transfer By Erroneous Representation Of Title Holds Good

In CIVIL APPEAL NO._1575__OF 2019,  Tanu Ram Bora vs Promod Ch. Das, appeal was filed before the Supreme Court against the judgment of the Guwahati High Court.

The appellant herein/original plaintiff had purchased the suit land by a registered sale deed dated 06.01.1990 from Late Pranab Kumar Bora, husband of original defendant no.2 and father of original defendant nos. 3 to 8. It appears that the suit land was declared as ceiling surplus land in the year 1988 and consequently the same was acquired by the Government. However, subsequently on 14.09.1990, the suit land was again declared ceiling free land. That thereafter, the original plaintiff mutated the land in his name vide order dated 18.12.1991 in Mutation Case No.94/91­ 92, and accordingly the name of the original plaintiff was recorded in the Sadar Jamabandi. It appears that the original defendant no.1, an Ex­-Police Officer. illegally entered into the suit land on 09.04.1995. 

Therefore, the original plaintiff immediately filed a suit in the Court of learned Civil Judge, Junior division, praying for giving possession of the suit land by evicting defendant no.1.

Although the trial court decreed the suit, the first appellate court reversed it, holding that the vendor had no marketable title on the day of conveyance. The first appellate Court also came to the conclusion that the defendants' rights over the suit land also could not be established under Section 53A of the Transfer of Property Act. The judgment of first appellate court was confirmed by High Court in second appeal.

The Supreme Court on appeal held that Section 43 of the T.P. Act provides that 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, operates on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

The Court held that the intention behind Section 43 was based on the principle of estoppel as well as the equity. Thus, if at the time of transfer, the vendor/transferor might have a defective title or have no title and/or no right or interest, however subsequently the transferor acquires the right, title or interest and the contract of transfer subsists, in that case at the option of the transferee, such a transfer is valid. In such a situation, the transferor cannot be permitted to challenge the transfer and/or the transferor has no option to raise the dispute in making the transfer. The intention and objects seems to be that after procuring the money (sale consideration) and transferring the land, thereafter the transferor is estopped from saying that though he has sold/transferred the property/land on payment of sale consideration, still the transfer is not binding to him. That is why Section 43 of the T.P. Act gives an option to the transferee and not the transferor. The intention of Section 43 of the Act seems to be that no body can be permitted to take the benefits of his own wrong. Referring to the judgments in Ram Pyare vs. Ram Narain and others and Jumma Masjid vs. Kodimaniandra Deviah, the Court held that to apply Section 43 TP Act, it was immaterial whether the transferor acted bona fide or fraudulently in making the representation. It is only material to find out whether the transferee has been misled. Because, Section 43 uses the words "where a person fraudulently or erroneously represents". Applying the principle in the case, the Court found that the vendor had acquired title over the property, when it was declared ceiling free after the sale.

Therefore, the appeal was allowed, declaring the rights of the plaintiff.

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