Judgment:
1. The plaintiff, Kartar Singh has filed this second appeal against judgment and decree dated April 12, 1979, passed by Additional District Judge, Gurdaspur, whereby appeal filed by the defendant was accepted and the suit was dismissed. Earlier the trial Court, on December 27, 1975 had decreed the suit.
2. On February 3, 1961, Harbans Kaur on her behalf as well as on behalf of her minor son Kulwant Singh entered into an agreement of sale. Sale deed was executed on April 19, 1961. Kulwant Singh minor filed a suil that her mother and no right to sell his half share in the land in dispute. That suit after contest was decreed on February 18, 1970. An appeal was filed by Kartar Singh which was dismissed. Before Kulwant Singh could take possession of his share of the land from K art ar Singh the vendee, Kulwant Singh died and his share was inherited by his mother Harbans Kaur. Kartar Singh plaintiff, thus, filed the present suit for declaration that he was owner in possession of the entire land i.e. 111 kanals as per details given in the suit with consequential relief for permanent injunction restraining the defendant Harbans Kaur from interfering with the possession of the plaintiff. Harbans Kaur defendant contested the suit on different pleas. The following issues were framed by the trial Court:--
1) Whether the defendant fraudulently represented to the plaintiff that she was the sole owner of the land in dispute. If so, its effect? OPP
2) Whether the plaintiff is entitled to retainthe possession as alleged? OPP
3) Whether the present suit is barred by res judicata? OPD
4) Relief.
3. Under issue No. 1 it was held that Harbans Kaur defendant made a fraudulent representation to the plaintiff that she was sole owner of the land in dispute. Under issue No. 2 it was held that the plaintiff was entitled to retain possession of the land in dispute. Under issue No. 3 it was held that the present suit was not barred by res judicata. Thus, the suit was decreed. The lower appellate Court reversed this judgment and decree in appeal.
4. Learned counsel for the plaintiff-appellant while referring to S. 43 of the Transfer of Property Act has argued that at the time of entering into agreement of sale Harbans Kaur was not competent to transfer land belonging to her minor son Kulwant Singh. However, subsequently on the death of Kulwant Singh she inherited the share of Kulwant Singh. Thus she was competent to transfer the land agreed to be sold and it was ultimately sold to the plaintiff. In this manner the plaintiff continued to be owner in possession of the land and entitled to the declaration and the injunction prayed for.
5. On the other hand learned counsel for the respondent has argued that the provisions of S. 43 of the Transfer of Property Act are not attracted to the case in hand as no agreement to sell subsisted on the date Kulwant Singh died or Harbans Kaur succeeded to him. When suit filed by Kulwant Singh challenging the sale of his share of the land was decreed, as the sale was void the agreement to sell did not subsist. It has also been argued that there was no defect in the title of the Kulwant Singh which he perfected later on that the provisions of S. 43 of the Transfer of Property Act could be applied. Harbans Kaur qua share of Kulwant Singh, her minor son, could not be treated as a transferor, whose title was perfected on inheritance on the death of Kulwant Singh subsequently.
6. 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 immoveable property, and professes to transfer such property for consideration, 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.'
7. Section 43 of the Transfer of Property Act applies whenever a person transfers property to which he has no title on a representation that he has at present a [transferable interest therein and acting on that representation the transferee takes a transfer for consideration, if thereafter the transferor acquires the property, the transferee becomes entitled to it, if the transfer has not in the meantime been thrown up or cancelled and is subsisting. The Supreme Court in Jumma Masjid Mercara v. Kodi-maniandra Deviah, AIR 1962 SC 847, commented upon the scope of S. 43 in para 15 as under (at page 852):--
'Section 43 embodies a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. For the purpose of the section it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it. Where the transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. S. 43 would then have no application and the transfer will fail under S. 6(i).
8. On merits it may be observed that the aforesaid case related to transfer made by a person having interest of sped succession. Learned counsel for the appellant pressed into service two judgments of the Madras High Court in support of his contention that S. 43 of the Transfer of Property Act would be applicable to the case in hand. Madirazu Zoga Rao v. Bommadevara Venkata-krishnayya, AIR 1946 Mad 107, was a case where representation was made in the sale deed that the land was free from encumbrances. It was observed that no duty was cast on the vendee to make any enquiries in a case to which S. 43 of the Act applies and mere notice of encumbrances on the part of (he vendee would not make the transaction of sale any the less the sale free from encumbrances, when the document says so. S. 43 was not applicable in such a case. Sankari Ammal v. Ramchandra Ayyar, AIR 1954 Mad 861, brought out distinction between title by estoppel and title acquired on principle of S. 43 of the Transfer of Property Act. It was observed as under:--
'When a grantee of land has had a conveyance of the whole interest in the land from a grantor who himself at the time had only a partial interest in the land. The former then has a right, when the grantor gets the entire interest in the land, to say as against all the world that that interest has passed to him.'
9. Further reference was made to the Full Bench decision of the Kerala High Court in Ramaswamy Pattamali v. Lakshmi, AIR 1962 Ker 313, wherein it was observed as under in para 12 of the judgment (at page 316):--
'To attract an application of S. 43, T.P. Act, it is enough if the transferor in form professed to transfer property which he erroneously or fraudulently represented to be within his power to transfer and received consideration for his act. In other words, if a person who has no title to the property purports to transfer it to another by a deed which in form carries the legal estate and receives consideration therefor and he subsequently acquires an interest in the propertysufficient to satisfy the transfer, the estate will pass to the transferee without any further act on the part of the transferor provided the transferee having not rescinded the transfer opts for such effectuation.'
The decision of the Supreme Court in Mohd. Amin v. Vakil Ahmad, AIR 1952 SC 358, was relied upon by the Kerala High Court. In Mohd. Amin's case there was family settlement to which a Muhammad an minor was a party represented by his brother as de facto guardian. The said settlement was held to be void and not binding on the minor. In Maimunnissa Bibi v. M.S.N.N. Abudul Jabbar, AIR 1966 Mad 468, two of the joint vendors were Muhammadan minors and sale deed was signed by their mother on their behalf as de facto guardian. It was held that no title was conveyed vide sale deed which was void to the extent of the share of the minors. Under Mohammadan Law it was held that mother of a minor son is (not) legal guardian and thus not competent to act on his behalf to make valid conveyance. The decision of the Privy Council on this point was relied upon i.e. Imambandi v. Mutsaddi, AIR 1918 PC 11.
10. Learned counsel for the appellant relied upon the decision of Patna High Court in Jhulan Prasad v. Ram Rai Prasad, AIR 1979 Pat 54. That was a case of alienation made by a Mahomedan co-sharer and the de facto guardian of the minor co-sharer. The sale of minor's share was held to be void. The decision of the Madras High Court in Maimunnissa Bibi's case (supra) and of the Supreme Court in Mohd. Amin's case (supra) were relied upon. The minor having died and his mother succeeded to him, it was held that the alienee got a good title to the property inherited by the mother from the minor. On facts ratio of the decisions aforesaid cannot be applied to the case in hand for the simple reason that in the present case after Kulwant Singh minor obtained a decree with respect to the alleged sale made by her guardian mother, the contract did not subsist. The effect of the decree is not washed away by death of Kulwant Singh who was succeeded by his mother Harbans Kaur. Thus, it cannot be saidthat the ratio of the Patna High Court case in Jhulan Prasad's case could be applicable to the case in hand. Further reliance has been placed on the decision of the Allahabad High Court in Sheo Ram v. Gauri Shankar, AIR 1954 All 452, wherein it was held that two conditions must be prevalent to attract the provisions of S. 43 of the Transfer of Property Act, namely :-- (i) that the contract of transfer was entered into by a person who was competent to contract; and (ii) that the contract should subsist at the time when a claim for recovery for the property is made. Property sold was subject matter of a suit for pre-emption. In para 4 of the judgment it was observed as under (at page 453) :--
'In effect, therefore, the contract of sale which existed previously between the vendor and the vendee would now be deemed to be subsisting between the vendor and the successful pre-emptor. A contract of transfer would therefore subsist even after a decree for pre-emption is passed and the pre-emption money is paid'.
11. The ratio of the aforesaid decision cannot be applied to the case in hand. A decree passed in a pre-emption suit does not wipe out the contract as such, only the parties are substituted in the sale, whereas a decree in a suit for declaration that the sale was void, will wipe out the contract.
12. Since no permission of the Court was sought by Harbans Kaur for selling share of her minor son the sale made by her qua Kulwant Singh's share was void, whereas qua her own share it was valid. She was guardian of her minor son and there was no question of any fraudulent representation being made by her at the time of entering into agreement of sale. She could validly act as guardian of her minor son as was mentioned in the sale deed in the note appended thereto in this respect. After Kulwant Singh's suit had been decreed successfully challenging the sale of his share by her mother Harbans Kaur, the contract originally entered or the sale deed effected did I not subsist and the provisions of S. 43 of the Transfer of Property Act could not be! attracted to the case in hand. The suit of Kartar Singh plaintiff thus could not succeedin entirely. As far as 1/2 share of land sold by Harbans Kaur in favour of Kartar Singh is concerned, Karlar Singh would be owner thereof and in possession as such out of the land in dispute. Only to that extent his suit iwas to succeed.
13. For the reasons recorded above, this appeal is partly allowed. Suit filed by Kartar Singh with respect to 1/2 share of the land in dispute shall stand decreed whereas qua 1/2 the land which was share of Kulwant Singh and subsequently inherited by Harbans Kaur defendant shall stand dismissed. The appeal is disposed of accordingly. There will be no order as to costs.
14. Appeal partly allowed.