B. Narayanaswamy Raju and Others vs M. Krishnamoorthy Mudaliar alias M.K. Murthy and Another

S.M. Abdul Wahab, J.—This second appeal has been preferred by the plaintiffs 2 to 4. The suit is for declaration, injunction, possession

and damage.

The short facts sufficient for the disposal of the second appeal are as follows : Deceased first plaintiff is the wife of the second plaintiff

Narayanaswamy Raju and plaintiffs 3 and 4 are their children. They were added as the legal representatives of the first plaintiff, after death.

Plaintiffs 1 and 2 purchased the premises No. 60, Alwarpet Street, the front portion abutting the street, bearing the municipal door No. 2/ 60, now

named as Pillaiyar Koil Street from defendants 2 and 3 on 3.3.1962. The first plaintiff was put in possession of the said property. They were

enjoying the suit property along with the vacant site measuring 7 feet by 33 feet on the western side of the suit property and passage on the south

and vacant site on the front with easement rights appurtenances thereto. In 1967, the first defendant purchased the back portion of the suit house

from the defendants 2 and 3. After the purchase, he attempted to raise a pucca masonry construction on the back portion trespassing on the

plaintiffs'' property. He raised the wall to a height of 4'' in spite of objections and a lawyers'' notice. First defendant demolished three rooms on the

northern side conveyed to the first plaintiff and in that place, he attempted to put up a new construction. He demolished a cattle shed, which was

situated in the plot of land on the west of the plaintiffs'' house. The plaintiffs have a right of passage to the well situated in the portion of the first

defendant to draw water. The plaintiffs have easementary right of passage and leave and licence regarding the western portion. Hence, the suit was

filed for declaration that the first defendant is only entitled to right of way over the passage lying on the southern portion of the plaintiffs'' house and

for direction to remove all the articles stored in the passage and to direct not to put up any construction in the passage.

The defence was that he did not attempt to build pucca masonry construction by committing trespass. As far as the southern passage is

concerned, it was in the possession of the first defendant and he alone has absolute right over it. There was a 5'' vacant space on the west of the

plaintiffs'' building, Further, he constructed the eastern wall of his premises on the old foundation and there is no trespass. Defendants 2 and 3 filed

a joint statement. They denied that the first plaintiff was put in possession of the passage on the southern side. The sale deed in favour of the first

plaintiff contain fraudulent statement. The plaintiffs have no easementary right on the western side wall. They have no easementary right of passage

to the well. The well was closed immediately after the purchase of the front portion by the plaintiff, Only the front portion was sold and purchased

by the plaintiff. The first plaintiff was given permission to use the two F.O.Ls. in the passage on the southern side, till he constructed his own

F.O.L. in the open space in front for use. The passage on the south was not belonging to the defendants 2 and 3, when they sold the front portion

to the plaintiff. They purchased it for their own use to gain entry and to go to the back portion.

The trial court framed 23 issues. He found all the issues in favour of the plaintiff at one stroke and decreed the suit with costs as prayed for. Out

of 23 issues, 22 issues related to the subject matter and the 23rd issue was with reference to the relief to be granted. He considered all the 22

issues together and gave a finding by simply stating that he found all the issues in favour of the plaintiff.

The appellate court, namely, the Principal Judge, City Civil Court, Madras, considered three points, namely, whether the portion marked

ABCD and coloured green in Ex.A-19 belonged to the plaintiff. Secondly, whether the site lying on the south of the plaintiff belonged to the

plaintiff and the defendants have no right. Thirdly, whether, the plaintiff was entitled to compensation of Rs. 650.

The lower appellate court rightly considered the second point as the most important one and found that the plaintiffs were not entitled to the

declaration. On the first point, he found that the first defendant encroached upon the 2'' in the land belonging to the plaintiffs, As regards the third

point, namely, damages, he found that the plaintiffs were not entitled to damages. In the typed set of papers filed along with the second appeal, the

appellants herein have typed the finding of point No. 1 as follows;

For the reasons aforesaid, I find that the first defendant has encroached upon 2'' in the land belonging to the plaintiffs.

While the original judgment reads as follows :

For the reasons aforesaid, I find that the first defendant has not encroached upon 2'' in the land belonging to the plaintiffs.

(The authenticated copy of the judgment contains this vital mistake. This has to be regretted). I mention this only for the purpose of indicating that

sufficient care should be taken by the Advocates to correct the mistakes committed by the Typist, before authenticating it and producing it to court

for its use.

After finding all the three points in favour of the defendants, the lower appellate court allowed the appeal and dismissed the suit.

In this appeal, the only contention urged before this Court is that whether the lower appellate court was right that the plaintiffs are entitled to

declaration that the site lying south of the plaintiffs'' house belongs to them and defendants 1 to 4 are entitled only to a right of passage. This was

the third point discussed by the lower appellate court and found against the appellant. The other two points were not urged before this Court. The

learned Counsel for the appellants put the said point in a different perspective and sought the aid of principle of feeding the estoppel as

contemplated by Section 43 of the Transfer of Property Act.

Mr. V. Raghavachari, learned Counsel for the appellants, relies upon the following recitals in the ''B'' schedule conveyed under Ex.A-20 to the

first plaintiff.

...being part of R.S.No. 3755/7 and C.C.No. 895 measuring an extent of (31 ft. x 43 ft.) 1,333 sq.ft. or thereabouts situate in Mylapore revenue

division and according to the new boundaries (as said to be now in vogue) bounded on the north by Kannappa Mudaliar''s land; on the west by

the property in ''C'' schedule hereunder belonging to the vendors herein; on the south bounded by M. Narayanaswami Ayyar''s land and on the

East by the newly formed public street and being part of R.S.No. 3755/7 and C.C.No. 895 measuring an extent of (31 ft. x 43 ft.) 1,333 sq.ft., or

there abouts containing an electrified Mangalore tiled superstructure covering the extent of (20 ft. x 32 ft.) 640 sq. ft., or there abouts made up of a

veranda and five rooms namely two living rooms and three small rooms and the said superstructure having on the East an open space of the extent

of 4 ft. x 35 ft, or thereabouts in its front enclosed by the boundary wall abutting the said street; on the North an open space of the width of 3 ft. in

a diminishing plant with a boundary wall covering the said 3 ft. north to south; on the west an open space of the extent of about 7 ft. x 33 ft. or

thereabouts including a masonry cow shed room (without roof) on the west; and on the south an open space of the extent of about 6 ft. x 31 ft. or

thereabouts which is subject to reconveyance as per terms herein.

According to the learned Counsel for the appellants, an open space of the extent of about 6'' x 31'' are there and which is subject to

reconveyance, is included in the ''B'' schedule. The last paragraph before the ''A'' schedule also states about this vacant site in the following terms :

...Vacant site of the width of about six feet facing the street to a length of about 31 ft. east to west lying to the south of the main superstructure....

This passage is subject to reconveyance and this is the passage mentioned in ''B'' schedule. According to the learned Counsel this 6'' X 31''

passage lying on the south is beyond 31'' x 43'' laid with the superstructure conveyed under the said sale deed. Even though originally the vendors

of the plaintiffs namely, M. Palani Naicker and P. Karpagam Animal had no right in the passage lying south of the property purchased by them

under Ex.A-20 and conveyed to the plaintiff as per the said document, they acquired the passage mentioned in Ex.A-20 by virtue of a sale deed

under Ex.A-28 by one of the vendors namely, Karpagam Ammal. The plaintiffs automatically get a right in the passage by virtue of Section 43 of

the Transfer of Property Act. In substance, the transfer under Ex.A-20 will extend to the property purchased by the plaintiffs vendors under Ex.B-

12.

First of all the plaintiff has not pleaded about the right which she acquired by the doctrine of feeding the estoppel contained u/s 43. There is no

issue framed also on this, even though, as we have indicated, as many as 23 issues were framed by the trial court. However, issue No. 21 refers to

the paragraph 16 (2) of the relief sought for in the plaint that the plaintiff is entitled to the benefit of the sale deed dated 16.7.1964 in the name of

the third defendant. The trial court has considered this and applied the principle of feeding the estoppel covered u/s 43 of the Transfer of Property

Act. However, the lower appellate court reversed the said finding; of course, it has not fully considered the scope of Section 43 of the Transfer of

Property Act. But what it says is that at the time of execution of Ex. A-20, the second and third defendant 6 knew that they have title to the extent

and the plaintiff was also aware of it. Hence, according to the lower appellate court, there was no fraud or erroneous representation. Therefore,

the lower appellate court has rejected the application of the doctrine of principle of feeding the estoppel.

Now, when we consider Ex.A-20, the passage is said to be lying on the south of the property conveyed under the said document and was

measuring 6'' X 3''. From a reading of the portion of ''B'' schedule, which I have extracted above, there is no mention about this passage lying

beyond 31'', but what it actually says is that there was a superstructure measuring 20'' X 32'' and the recital about this passage is that the said

superstructure having on the south an open space of an extent of about 6'' x 31'' or thereabouts. The total extent of the land conveyed is 1,333

sq.ft. though it actually works out to 1,364 sq.ft. because the measurement given is 31'' x 43'', which in turn works out to 1,364 sq.ft. Out of that

extent of land the built up portion measures 640 sq.ft. only. So, the passage lying on the south of the structure alone is mentioned and it cannot be

taken that there is a passage south of the ''B'' schedule property i.e., 31'' x 43''. This aspect has not been taken note of by both the courts below.

When the building is 640 sq.ft. there must be space on all the sides because the total extent is 1,364 sq.ft. There are about 724 sq.ft. This is set out

as vacant and lying on all the four sides of the superstructure. As per ''B'' schedule mentioned above, open space is mentioned on all the four sides

i.e., on the east, north, west and south. A thorough scrutiny of the schedule under Ex.B-3 and Ex.A-20 does not specifically mention anything

about the passage south of the property conveyed. But as I mentioned above, only a passage south of the superstructure within the larger

boundary. Therefore, in my view, the question of application of the doctrine of feeding the estoppel does not arise at all.

What we actually find is that after the selling of the ''B'' schedule property under Ex.A-20, the vendors of the plaintiff retained the ''C'' schedule

property. The ''B'' schedule property under Ex.A-20 measuring only 31'' north to south on the east. After the sale under Ex.A-20, the ''C schedule

property retained by the vendors under Ex.A-20 had title only 33'' north to south on the east. Even though they purported to have purchased 38''

north to south on the east, under Ex.B-7, their vendor Subramani had title only for 33'' north to south on the east and west as per Ex.B-6. After

the front portion was conveyed to the plaintiffs under Ex.A-20 i.e., selling 31'' north to south on the eastern side in the plot owned by the plaintiffs''

vendors if there would have been difficulty for having ingress and egress to the ''C'' schedule property retained by them under Ex.A-20, even

though in the beginning when the adjacent land on the southern side there would not have been any difficulty as this property lying on the south was

also vacant subsequently difficulty would have arisen when the southern side portion was sold to somebody only because of the difficulties

expressed by the vendors of the plaintiffs. They have purchased the triangular portion in 1964 as per Ex.A-28. Then only they get 6'' north to south

on the eastern side of their property. This 6'' north to south portion has been added to the property retained by them. If they had really a passage

of 6'' as already found in Ex.A-20, there was no necessity for purchase of this triangular portion at all, because that 6'' passage could have been

kept as common passage for the plot purchased by the plaintiffs under Ex.A-20 and for the ''C'' schedule plot retained by them. Therefore, this

circumstance also indicates that there would not have been a passage surrounding the property conveyed to the plaintiffs i.e., the ''B'' schedule

property purchased by the plaintiffs. The passage mentioned in the ''B'' schedule should refer only to the open space surrounding the superstructure

mentioned in Ex.A-20 and shown in ''B'' schedule. Therefore, as we have seen above, the vendors of the plaintiffs could not have fraudulently or

erroneously conveyed the passage claimed by the plaintiffs. Consequently, the question of feeding the estoppel contemplated u/s 43 of the Transfer

of Property Act does not arise at all. In this case, this aspect has also not been properly appreciated by the courts below.

The learned Counsel for the respondents relied upon The Jumma Masjid, Mercara Vs. Kodimaniandra Deviah, , to show that the doctrine of

feeding the estoppel will arise only when there is fraudulent or erroneous conveyance. But if the parties knowingly include an extent to which the

vendors have no title, the question of feeding the estoppel does not arise. But as I have found in this case, there is no conveyance of any extra

extent or passage, and the question of application of the doctrine does not arise at all.

We have already seen that the plaintiffs have not raised the plea of the application of Section 43 of the Transfer of Property Act in the plaint.

The requirement of Section 43 of the Act is that there must be a fraudulent or an erroneous representation in a sense the predecessor or the

vendee must be misled. Whether actually the plaintiffs were misled or not has to be ascertained only from the facts of the case. As there is no

specific plea in the plaint, the evidence is also not specific on this aspect. That is why the trial court has not given a finding. However, the lower

appellate court has simply stated that as the vendee purchased the property with full knowledge of the rights of their vendors, they are not entitled

to invoke the aid of Section 43 of the Act. In the circumstances, the plaintiffs are not entitled to raise the plea of the application of the doctrine of

feeding the estoppel.

The learned Counsel for the appellants cited the following decisions :

Muthuswami Pillai Vs. Sandana Velan and Others, 2. Jan Mohammed v. Karam Chand AIR 1947 RC. 99. 3. Ram Piari and Another Vs. Ram

Nath and Others, .

In the first case, the father has alienated the joint family property representing that the property was self-acquired. But later it was found that the

property was a joint family one. However, the father became entitled to half share on account of the death of the minor. Since the father became

entitled to half share in the alienated property, the doctrine of feeding the estoppel was made applicable in that case. So there was a plea of

misrepresentation or fraudulent representation.

In Jan Mohammad v. Karam Chand AIR 1947 RC. 99, a part owner sold the entire property, subsequently the vendor acquired full right.

Here also we find that the representation was there and accepting the representation the vendee purchased the property.

In Ram Piari and Another Vs. Ram Nath and Others, , also a coparcener sold certain family property. In the partition, the co-sharer became

entitled to the property. In that case also there was an erroneous representation by the coparcener.

In Abdul Kabir and Others Vs. Mt. Jamila Khatoon and Others, , the principle of feeding the estoppel is set out. Relying upon the decision

reported in Tilakdhari Lal v. Khedan Lal AIR 1921 P.C. 112, the Bench of the Patna High Court set out the principle of feeding the estoppel in

the following terms :

The principle of ''feeding by estoppel'' is based also on the equitable doctrine that a man who has promised more than he can perform must make

good his contract when he acquires the power of performance.

Here also the emphasis is on the promise. But we have seen in this case that there is no misrepresentation or false promise and the plaintiffs have

acted upon such false promise. hence, the aforesaid case cannot be applicable.

Further, the learned Counsel for the respondents cited the following cases :

The Jumma Masjid, Mercara Vs. Kodimaniandra Deviah, . 2. Ouseph Vs. Govindankutty Menon and Others, . E. Adinarayana Patra Vs.

Ramahari Patra and Others, . and contended that unless there was a representation and the person claiming the benefits u/s 43 of the Act acted

upon such representation, the doctrine, of feeding the estoppel does not arise. In The Jumma Masjid, Mercara Vs. Kodimaniandra Deviah, , the

Apex Court approving the decision reported in Alamanaya Kunigari Nabi v. Murukuti Papiah AIR 1915 Mad. 972 has categorically held that if a

person transfers a property representing that he has a present interest therein, whereas, he has, in fact only a spes successions, the transferee is

entitled to the benefit of Section 43, if he has taken the transfer on the faith of that representation and for consideration.

In Ouseph Vs. Govindankutty Menon and Others, , the aforesaid decision of the Supreme Court has been followed. A learned single Judge of

the Kerala High Court has held in paragraph 2 that if both the parties were aware of the absence of or defect in the title of the transferor, that will

not be a case where there is an erroneous representation.

In E. Adinarayana Patra Vs. Ramahari Patra and Others, also a Bench of the Orissa High Court in paragraph 14 has held that Section 43 is

applicable to a case where a person transfers property to which he has a present and transferable interest therein and acting on such

representation, the transferee takes a transfer for consideration.

On a consideration of the relevant facts and circumstances of the case and the decisions cited above, I am of the view that there is no evidence

in this case that there was any fraudulent or erroneous representation and acting on such representation, the plaintiff purchased the property under

Ex.A-20. In the circumstances, there is no merit in this appeal and the same is dismissed. However, there will be no Order as to costs.

Consequently, C.M.P.No. 2328 of 1992 is dismissed.