Case Note & Summary
The litigation arose out of a dispute over a residential property allotted on lease-cum-sale basis by the Karnataka Housing Board (KHB) to S. Ranoji Rao in 1979. Under the lease-cum-sale deed executed on 21.9.1981, the property could not be alienated for ten years, and KHB was to execute an absolute sale deed upon satisfaction of conditions. Despite the bar, Ranoji Rao allegedly mortgaged a portion of the property to the first defendant, R. Vishwanath, but the first defendant claimed that a sale deed dated 29.3.1985 had been executed. In 1985, the first defendant filed OS 2167/1985 for permanent injunction, which was partly decreed, permitting use of a door, without deciding title. After the lease period expired, KHB executed an absolute sale deed in favour of Ranoji Rao on 3.6.2003, treating the earlier alienation as void ab initio. Meanwhile, the first defendant obtained bifurcation of the property from the municipal authorities and executed a gift deed in favour of his son on 26.6.2003. Ranoji Rao then filed OS 3869/2004 seeking declarations that the sale deed, gift deed, and bifurcation order were null and void, and claiming ownership and possession. The trial court framed issues and decreed the suit on 14.12.2011, holding the impugned documents void and granting possession and injunction. The appeal against that decree was argued on the primary ground that the subsequent absolute sale deed by KHB should enure to the benefit of the first defendant under the doctrine of feeding the grant by estoppel as embodied in Section 43 of the Transfer of Property Act, 1882. The appellants relied on decisions including Ram Pyare v. Ram Narain, Jharu Ram Roy v. Kamjit Roy, and Hardev Singh v. Gurmail Singh. The respondents contested the applicability of Section 43 and cited Kartar Singh v. Harbans Kaur and others. The High Court was in the process of examining the legal provisions and precedents, noting the text of Sections 41 and 43 of the TP Act, and had commenced a detailed discussion of the case law when the available judgment text ends. The final decision on the appeal is not recorded in the extracted portion.
Headnote
A) Property Law – Transfer by Ostensible Owner – Section 41 Transfer of Property Act, 1882 – The court set out the text of Section 41, which protects a transferee who takes a transfer from an ostensible owner with the consent of the true owner, provided the transferee has taken reasonable care in good faith. The provision was considered in the context of whether the first defendant could claim title when the original owner had mortgaged the property in his own name but later claimed the sale deed was void. (Paras 8, 13-14)
B) Property Law – Feeding the Grant by Estoppel – Section 43 Transfer of Property Act, 1882 – The court extracted the provision, which provides that if a person erroneously or fraudulently represents authority to transfer property and subsequently acquires an interest in that property, the transfer operates on that subsequently acquired interest at the option of the transferee. The main contention of the appellant was that the absolute sale deed executed by the Karnataka Housing Board in favour of the original plaintiff on 3.6.2003 enured to the benefit of the first defendant under this doctrine, even if the earlier sale deed dated 29.3.1985 was void when made. The court proceeded to analyze several Supreme Court decisions on the point. (Paras 6, 8, 13-14)
C) Civil Procedure – First Appeal under Section 96 CPC – The appeal was filed against the judgment and decree dated 14.12.2011 in O.S. No. 3869/2004, which had decreed the plaintiff's suit for declaration that the sale deed, gift deed, and bifurcation order were null and void, and for possession and injunction. The appeal contended that the trial court erred in not applying Section 43 of the TP Act. (Paras 1, 5)
Issue of Consideration
Whether the sale deed dated 29.3.1985 executed by original plaintiff S. Ranoji Rao in favour of first defendant, during the currency of a lease-cum-sale deed with a bar on alienation, is validated by the subsequent absolute sale deed executed by the Karnataka Housing Board on 3.6.2003 under Section 43 of the Transfer of Property Act, 1882.
Final Decision
Decision not clearly stated
Law Points
- Legal points not extracted
- doctrine of feeding the grant by estoppel
- Section 43 Transfer of Property Act
- 1882
- lease-cum-sale
- void ab initio
- absolute sale deed
- adverse possession
- ostensible owner
- transfer by unauthorised person
- subsequent acquisition of interest
Case Details
2015 LawText (KAR) (04) 34
Regular First Appeal No.248 of 2012
A.S. Mahesha for appellants; K.B.S. Manian for respondent nos. 1 to 8; K.N. Puttegowda for respondent nos. 9 to 10
Smt. Sharadamma, Wife of Siddappa @ Aradya; B.S. Shivaprasad Aradya, Son of Late R. Siddappa @ Aradhya, Represented by his G.P.A. Holder, B.S.M. Aadhya
Sri. R. Vishwanath, Son of Late S. Ramoji Rao; Smt. R. Prameela Bai, Wife of A.B. Ramesh; Smt. V. Maheswari Bai, Wife of Late R. Lokanath Rao; Smt. R.L. Kavitha Bai, Wife of N. Jagadish Rao; Smt. L. Usha Bai, Wife of R. Naveen Kumar; Smt. R. Sharada Bai, Wife of Pillai Siddoji Rao; S. Kiran Kumar, Son of M. Sampangi Ram Rao; S. Naveen Kumar, Since dead by his Legal Representative Sri. M. Sampangi Rama Rao; The Commissioner, Bangalore Mahanagara Palike; The Assistant Revenue Officer, Office of Revenue Office, Binnipet Zone, Bangalore Mahanagara Palike
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Nature of Litigation
Civil suit for declaration, possession, and permanent injunction relating to immovable property.
Remedy Sought
Plaintiff sought declaration that sale deed dated 29.3.1985, gift deed dated 26.6.2003, and bifurcation order dated 3.9.2003 are null and void, declaration of ownership based on KHB sale deed dated 3.6.2003, recovery of possession, and permanent injunction.
Filing Reason
Original plaintiff S. Ranoji Rao, after obtaining absolute sale deed from Karnataka Housing Board, discovered that the first defendant had obtained a sale deed instead of a mortgage and had subsequently got mutation and bifurcation, and executed a gift deed, clouding plaintiff's title.
Previous Decisions
Trial court (XXVII Additional City Civil Judge, Bangalore) in O.S. No. 3869/2004 decreed the suit on 14.12.2011, holding Issues 1 to 6 in affirmative and Issues 7 & 8 in negative, thereby declaring the impugned documents void, the plaintiff as owner, and granting possession and injunction. The decree is under challenge in the present appeal.
Issues
Whether the sale deed dated 29.3.1985 executed by original plaintiff S. Ranoji Rao in favour of first defendant is null and void and not binding on the plaintiff.
Whether the gift deed dated 26.06.2003 executed by first defendant in favour of second defendant is null and void and not binding on the plaintiff.
Whether the bifurcation order dated 3.9.2003 passed by defendants 3 and 4 is null and void and not binding on the plaintiff.
Whether the plaintiff is the absolute owner of the suit schedule property by virtue of the sale deed dated 3.6.2003 executed by Karnataka Housing Board.
Whether the plaintiff is entitled for possession of the suit schedule property from defendants 1 and 2.
Whether plaintiff is entitled for permanent injunction against defendants 1 and 2.
Whether the suit is barred by limitation.
Whether the suit is bad for want of notice under Section 482 of KMC Act against defendants 3 and 4.
Whether the doctrine of feeding the grant by estoppel under Section 43 of the Transfer of Property Act, 1882 applies to validate the earlier void sale deed based on the subsequent absolute sale deed by the Housing Board.
Submissions/Arguments
Appellant contended that even if the original owner had no right to sell the property at the time of the sale deed dated 29.3.1985, the subsequent absolute sale deed executed by Karnataka Housing Board on 3.6.2003 enures to the benefit of the first defendant under Section 43 of the Transfer of Property Act, 1882 (feeding the grant by estoppel).
Respondent supported the trial court's judgment and argued that the authorities cited by the appellant are not applicable to the facts of the case.
Ratio Decidendi
Ratio not explicitly mentioned
Judgment Excerpts
the circumstance that KHB has subsequently executed a sale deed in favour of the plaintiff in respect of the entire extent of the property covered under the lease–cum-sale deed, including the suit schedule property, as per registered sale deed dated 30.5.2003, the same would enure to the benefit of the first defendant under the doctrine of feeding the grant by estoppel and as embodied under Section 43 of the Transfer of Property Act, 1882
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, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
Procedural History
Original plaintiff S. Ranoji Rao was allotted a house under KHB lease-cum-sale scheme in 1979; lease deed registered on 21.9.1981. In 1985, first defendant obtained sale deed instead of mortgage; filed OS 2167/1985 for injunction which was partly decreed. After lease period, KHB executed absolute sale deed on 3.6.2003 in favour of plaintiff. Plaintiff filed O.S. No. 3869/2004 seeking declarations and possession. Trial court decreed suit on 14.12.2011. Present appeal (RFA No. 248/2012) filed under Section 96 CPC impugning that decree.
Acts & Sections
- Transfer of Property Act, 1882: Section 41, Section 43
- Code of Civil Procedure, 1908: Section 96
- Karnataka Municipal Corporations Act, 1976: Section 482
