Full Judgment Text
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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.