2007 (2) TMI 689 - SC - Indian Laws

High Court dismisses appeal, upholds Transfer of Property Act Section 43. Lis pendens doctrine applies.

The appeal was dismissed by the High Court, upholding the application of Section 43 of the Transfer of Property Act. The court rejected the appellant's ... - Issues Involved:1. Interpretation of Section 43 of the Transfer of Property Act, 1882.2. Applicability of the doctrine of lis pendens u/s 52 of the Transfer of Property Act.3. Validity of the transfer under Section 41 and Section 43 of the Transfer of Property Act.4. The effect of the death of Udham Kaur on the property rights.Summary:Issue 1: Interpretation of Section 43 of the Transfer of Property Act, 1882This appeal raises an interesting question of law in regard to the interpretation of Section 43 of the Transfer of Property Act, 1882 ('the Act', for short).Issue 2: Applicability of the doctrine of lis pendens u/s 52 of the Transfer of Property ActThe appellant raised a plea that he was a bonafide purchaser for value, whereas the case of Udham Kaur was that as the properties were purchased during the pendency of the suit, the same was hit by the 'doctrine of lis pendens, as envisaged u/s 52 of the Act. The said contention of the respondent was not accepted by the learned Trial Judge as also by the First Appellate Court holding that the transaction was hit by the doctrine of lis pendens.Issue 3: Validity of the transfer under Section 41 and Section 43 of the Transfer of Property ActThe High Court, although, rejected the contention of the respondent herein that Section 41 of the Act would be attracted, but opined that Section 43 would. The distinction between the said two provisions is apparent. Section 41 provides that a transfer by an ostensible owner cannot be avoided on the ground that the transferor was not authorised therefore, subject to the condition 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 is 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 value without notice is in effect.Issue 4: The effect of the death of Udham Kaur on the property rightsIn applying the provisions of Section 43 of the Transfer of Property Act, the High Court, however, held: (i) It was Harcharan Singh who had pleaded the mischief; (ii) After the death of Udham Kaur, Harcharan Singh would be the natural heir of the half share of her property.Conclusion:We have noticed hereinbefore that the transaction was not void. It was not contrary to any provision of law. It was not hit by Section 23 of the Indian Contract Act. We, therefore, do not accept the submission of the learned Counsel that the ingredients of Section 41 would also be applicable in a case falling under Section 43 of the Act. The plea of inapplicability of Section 43 of the Transfer of Property Act could have been taken by Harcharan Singh and not by the appellant, who has based his claim on the basis of the Will. The principle of feeding the estoppel will apply against Harcharan Singh and not against the appellant. He could not have, in our opinion, therefore, raised the said plea.For the reasons aforementioned, we do not find any merit in this appeal, which is accordingly dismissed with costs. Counsel's fee is assessed at Rs. 5,000/-.