Suraj Mal and Others vs Darya Singh and Another

T.H.B. Chalapathi, J.—This second appeal has been preferred against the decree and judgment of the learned Additional District Judge, Jind, in Civil Appeal No. 79 of 1993, dated 29.10.1996.

The defendants are the appellants in this appeal. The plaintiff-respondents filed two civil suits, bearing No. 291 of 1980 and 149 of 1989 for specific performance of the contract of sale. Both the suits were clubbed and tried together. According to the plaintiff, the suit property, which is a subject matter of the contract of sale belonged to six brothers namely defendants 1 to 4 and Raghbir and Surjit and defendant 1 to 3 executed an agreement of Sale in favour of the plaintiffs to sell the suit land not only on their behalf but on behalf of other brothers also namely defendant No. 4 and Raghbir and Surjit representing that they have got an authority to sell the property on behalf of 4th defendant as well as Raghbir and Surjit, who are their real brothers. The said agreement was executed on 15.7.1987 according to which sale consideration has been fixed at Rs. 24,000/- per acre and the defendants 1 to 3 receive a sum of Rs. 20,000/- from the plaintiffs as advance money and the balance of the sale consideration was agreed to be paid at the time of the execution of the Sale Deed. It is also stated that defendants 1 to 3 executed the sale deed on behalf of their brothers namely Randhir (defendant No. 4), Raghbir and Surjit. The plaintiff have been always willing to perform their part of the contract. The plaintiffs approached the defendants on 15.6.1988 to get the Sale Deed executed, but the defendants failed to perform their part of the contract though the plaintiffs waited in the office of Sub Registrar, but the defendants did not turn up. Therefore, the plaintiffs filed the suit for specific performance. In the written statement filed by the defendants, it is averred that the agreement of sale dated 15.7.1987 was cancelled orally by the plaintiffs and defendants 1 to 3 on 14.8.1987 in the presence of S/Shri Phool Chand and Ram Dia and the plaintiffs agreed for the earnest money to be forfeited by the Ist defendant and the suit is not maintainable.

On the basis of the pleadings, the trial Court framed appropriate issues. The learned Subordinate Judge decreed the suit for specific performance only in regard to the shares of defendants 1 to 3 and dismissed the suit in regard to the shares of the 4th defendant and other two brothers of defendants 1 to 3 namely Raghbir and Surjit. Aggrieved by the said decree and judgment of the trial Court, the plaintiffs filed appeal before the Additional District Judge, Jind, who partly allowed the appeal.

It is contended in the appeal that the defendant 1 to 3 executed an agreement of sale not only on behalf of themselves, but also on behalf of their brothers namely Raghbir and Surjit. Raghbir and Surjit were unmarried and died issueless and therefore, the remaining four brothers inherited their shares also in the disputed land and the defendant No. 4, Randhir, Raghbir and Surjit are bound by the agreement dated 15.7.1987, which was also executed on their behalf by the defendants 1 to 3. They also pleaded that after the death of Raghbir and Surjit, defendants 1 to 3 succeeded to their interest, and, therefore, they are bound to execute the sale deed as they inherited the property of their two deceased brothers. The learned Additional District Judge by the impugned judgment held that the 4th defendant and Raghbir and Surjit have not consented to sell their share and, therefore, the agreement of sale cannot be executed on their behalf. The learned Additional District Judge further held that after the death of Surjit and Raghbir defendants 1 to 3 succeeded to their interest and, therefore, the plaintiffs are entitled to enforce the agreement of sale even in respect of their property which was inherited by defendants 1 to 3 on the death of Surjit and Raghbir and accordingly decreed the suit to the extent of 15 Kanals 9 marlas of agricultural land which is the share of defendants 1 to 3 after the death of Surjit and Raghbir on payment of proportionate remaining sale consideration after deducting a sum of Rs. 20,000/- which has already been paid as earnest money. Aggrieved by the same, the defendant 1 to 3 filed the present appeal.

Both the courts below concurrently found that the agreement of sale was executed by defendants 1 to 3 not only on their behalf but also on behalf of their three brothers namely 4th defendant and Raghbir and Surjit. Both the courts also found and the plaintiffs are willing to perform their part of the contract and that the defendants 1 to 3 declined to perform their part of the contract. These being findings of fact cannot be gone into in the second appeal.

The only controversy that arises in this appeal is regarding the property which has been inherited by the defendants 1 to 3 on the death of their brothers Surjit and Raghbir. Admittedly, these two brothers died after the execution of the agreement of sale. It is also an admitted fact that defendants 1 to 3 agreed to sell not only on their behalf but also on behalf of their other three brothers and a representation to that effect was made to the plaintiffs that they have the authority to execute the agreement of sale on behalf of their brothers and the plaintiffs on the basis of the said representation acted upon. Therefore, the only point for consideration is whether on being inherited the property of the other two brothers namely Raghbir and Surjit, the defendants 1 to 3 can be directed to execute the sale deed in favour of the plaintiffs according to the terms of the agreement of sale.

There is no dispute that defendants 1 to 3 succeeded to the interests of Raghbir and Surjit on their death in the suit property. Therefore, it is to be seen whether Section 43 of the Transfer of Property Act applies to this case and whether the plaintiffs are entitled to a decree for specific performance in respect of the shares which defendants 1 to 3 acquired in the land on the death of Raghbir and Surjit. Section 43 reads as follows :-

"Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable properly 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".

To apply Section 43 of the Transfer of Properly Act, two conditions are required to be satisfied, one in that there must be a representation that the executants of agreement of sale are authorised to transfer the property in dispute and on the basis of the said authorisation they agreed to sell the land and that the plaintiffs acted upon the said representation. In the case on hand, the agreement of sale which is marked as Exhibit P-2 clearly shows that defendants 1 to 3 made a representation that they are authorised to execute the Sale Deed not only on their behalf but on behalf of their other brothers also and that they have the authority to execute the agreement of sale on behalf of their brothers also, and acting on their representation the plaintiffs entered into an agreement of sale. When the defendants 1 to 3 subsequent to the agreement of sale inherited the shares of their brothers Surjit and Raghbir on their death, they are bound to transfer not only their shares in the land, but also the shares which they inherited on the death of their brothers. In this context, it is useful to refer to the decision of the apex Court in The Jumma Masjid, Mercara Vs. Kodimaniandra Deviah, , wherein the cope of Section 43 of the Transfer of Property Act. It is observed therein as follows :-

"Considering the scope of the section on its terms, it clearly applies whenever a person transfers property to which he has no little on a representation that he has a present and transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration. When these conditions are satisfied, the section enacts that if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not meantime been thrown up or cancelled and is subsisting. There is an exception in favour of transferees for consideration in good faith and without notice of the rights under the prior transfer. But apart from that, the section is absolute and unqualified in its operation. It applies to all transfers which fulfil the conditions prescribed therein, and it makes no difference in its application, whether the defect of title in the transferor arises by reason of his having no interest whatsoever in the property, or of his interest therein being that of an expectant heir".

Learned counsel for the appellants further argued that u/s 6-A of the Transfer of Property Act, the future interest cannot be transferred. The decision referred to above also deals with this argument. Negativing this argument, the Apex Court in the decision cited supra observed as follows:-

"But Section 6(a) and Section 43 relate to two different subjects and there is no necessary conflict between them. Section 6(a) deals with certain kinds of interests in property mentioned therein, and prohibits a transfer simpliciter of those interests. Section 43 deals with representations as to title made by a transferor who had no title at the time of transfer, and provides that the transfer shall fasten itself on the title which the transferor subsequently acquires. Section 6(a) enacts a rule of substantive law, while Section 43 enacts a rule of estoppel which is one of evidence. The two provisions operate on different fields, and under different conditions, and we see no ground for reading a conflict between them or for cutting down the ambit of the one by reference to the other. In our opinion, both of them can be given full effect on their own terms, in their respective spheres. To hold that transfers by persons who have only a spes succession is at the date of transfer are not within the protection aforded by Section 43 would destroy its utility to a large extent".

Learned counsel for the appellants placed reliance on a decision of the Apex Court in Kartar Singh v. Harbant Kaur 3994(4) S.C.C. 730, and contended that it is the duty of the plaintiffs to make necessary enquiries before entering into the agreement whether the defendants 1 to 3 have got the authority to alienate the share of their brothers and since the plaintiffs did not make any enquiries and, therefore, it cannot be said that the plaintiffs acted reasonably in getting the transfer in their favour. I am of the opinion that the reliance on the decision in Kartar Singh''s case (supra) is misplaced. In this case, the mother of a minor purported to sell the property of the minor. On fact, it was found that the mother did not obtain the permission as required under Guardians and Wards Act. Therefore, the Supreme Court held that the sale of half share of the minor son made by his mother was void. When the contract itself is void, it is non est in the eye of law to the extent of the share of minor from its inception. Therefore, Section 43 of the Transfer of Property Act is not applicable. To attract Section 43 of the Transfer of Property Act, there must be a subsisting contract i.e. contract which is not void. But in the case on band, the contract is not a void contract which requires the defendants 1 to 3 to obtain the permission of the Court before entering into a contract of sale on behalf of their brothers. There can also be an oral authorisation by the brothers to the other brother to sell the property. Admittedly, the Ist defendant is elder to the other brothers and their property is joint which is not divided by meets and bounds. Therefore, I am of the opinion that Section 43 squarely covers the present case.

In view of my foregoing discussion. I do not find any error or illegality in the impugned judgment of the learned Additional District Judge.

The appeal, therefore, fails and is accordingly dismissed. No costs.