Devku and Another vs Rama Dogra and Others

Y. P. Bhatnagar, J.—This Civil Suit was instituted by Gehru in forma pauperis through Devku as next friend on the allegations that Gehru was a deaf and dumb person possessing low intelligence. Devku was stated to be his wife having no interest adverse to Gehru and, therefore, a fit person to act as his next friend. Gehru died during the pendency of this suit. His daughter Kimtu and aforesaid Devku were brought on the record as Gehru''s legal representatives subject to just exceptions.

It was alleged in the plaint that Gehru was the owner of the land mentioned in the heading of the plaint at ''A''. However, one lady, representing herself to be Kimtu, daughter of the Plaintiff, moved an application u/s 8 of the Hindu Minority and Guardianship Act, 1956 on May 22, 1975, before the District Judge, Kullu, for being granted permission to sell or lease the said property. This application was filed through Shri Charan Dass Dogra as her advocate. The District Judge, Kullu, allowed this application on May 31, 1975. Purporting to act on the authority of the permission thus granted by the District Judge, said Kimtu executed a sale deed in favour of her advocate, Charan Dass Dogra, on June 6, 1975 for an ostensible consideration of Rs. 48,000/-. Simultaneously, said Kimtu also executed a special power of attorney in favour of one Lottan Dass, authorising him to represent her before revenue officer for getting the mutation of the aforesaid land sanctioned. Mutation No. 2304 was, accordingly, sanctioned in favour of Charan Dass Dogra on June 17, 1975. The Plaintiff''s case was that the entire proceedings were void being vitiated by fraud and undue influence exercised by Charan Dass Dogra, Advocate.

Mst. Devku, it was further alleged in the plaint, filed Civil Revision No. 37 of 1975 in the High Court against the order dated May 31, 1975 of the District Judge, Kullu, impleading Charan Dass Dogra, Advocate, as a Respondent. The High Court quashed the impugned order on October 3.1, 1979 holding it to be without jurisdiction due to the reason that Gehru was not a minor within the ambit of Hindu Minority and Guardianship Act, 1956 which had no application whatsoever to his case. This rendered the order dated May 31, 1975, so the Plaintiff alleged, non-est and all the subsequent proceedings including the sale in favour of Charan Dass Dogra void ab initio and not binding on the Plaintiff. Charan Dass Dogra has, therefore, been in unauthorised and illegal possession of the suit land for the last about 4 years. Besides, he is liable to reimburse to the Plaintiff a sum of Rs. 51,000/- as mesne profits derived from the said land.

It was further alleged by the Plaintiff that Charan Dass Dogra knew that the sale transaction in his favour was void. It was specially so when the High Court accepted Civil Revision No. 37 of 1975, decided on October 31, 1979. Nevertheless, he executed three separate sale deeds in favour of Defendants No. 2, 3 and 4 on November 3, 1979, in respect of a part of the above-mentioned land comprised in khasra Nos. 6001/1346 for a total consideration of Rs. 99,949/-. Defendants No. 2 and 3 had come to village Ghurdor on November 2, 1979 to inspect the land and had been warned by Mst. Devku and other villagers about the defective title of Charan Dass Dogra, Advocate. The sales to Defendants No. 2, 3 and 4 are, therefore, ineffective qua the Plaintiff. In case the Court comes to the conclusion that the said Defendants are bonafide purchasers for consideration and without notice, the Plaintiff, it is averred, is entitled to recover the amount of Rs. 99,949/- with interest at the rate of 12% per annum from Charan Dass Dogra, Advocate. In the end, it has been prayed that the Plaintiff be granted a decree for possession of the suit land as described in heading ''A'' and a decree for the recovery of Rs. 51,000/- as mesne profits. In case the Plaintiff does not succeed with respect to his prayer for possession of land comprised in khasra No. 6001/1346, a decree for recovery of Rs. 99,949/- with interest may also be passed against Charan Dass Dogra, Advocate.

It may be stated here that Charan Dass Dogra, Advocate, died during the pendency of this suit. His legal representatives No. 1-A to 1-F were brought on record. Originally, Charan Dass Dogra had been impeladed as Defendant No. 1.

The suit has been resisted on several grounds. Defen dants No. 1-A to 1-F, in their amended written statement, have submitted that the Plaintiff was not an indigent person and Mst. Devku was not entitled to act as his next friend. On merits, it has been averred that Devku is not legally wedded wife of Gehru. She is, in fact, the wife of Ram Ditta, resident of village Raison in District Kullu. However, Kimtu has been admitted to be the daughter of the Plaintiff. The passing of the order dated October 31, 1979 by the High Court quashing the order of the District Judge, Kullu, has been admitted but it has been stated that the order was made on the basis of a concession by the counsel without any authority and, therefore, was not binding on Charan Dass Dogra, Advocate. In any event, Charan Dass Dogra was a bonafide purchaser for valuable considera tion. He had also made improvements over the land with the Plaintiff''s knowledge and spent huge amounts. All other allega tions made in the plaint have been denied by Defendants No. 1-A to 1-F. They have further resisted the suit on the ground that Kimtu was appointed as general attorney by her father Gehru on May 6, 1975 and she had created a lease in respect of the land described at ''A'' in favour of Charan Dass Dogra and put him in possession. Later on, she sold the land to him. Thus, she is estopped from filing the present suit by her act and conduct. Also, the lease created in favour of Charan Dass Dogra would revive in case the sale of land by Kimtu is held to be invalid. Devku is not entitled to file or maintain this suit as she is not the legally wedded wife of Gehru. These Defendants have also pleaded that the suit has not been properly valued for the purposes of Court-fee and jurisdiction. Another plea raised in para 5 of the written statement filed on behalf of Charan Dass Dogra (deceased) is to the effect that he never exercised any fraud or undue influence.

The suit has also been resisted by Defendants No. 2 to 4 mainly on the ground that they are bonafide purchasers for valuable consideration and are protected by Section 41 of the Transfer of Property Act.

The following issues were framed on August 10, 1932:

Whether the sale made on behalf of the Plaintiff by Smt. Kimtu in respect of the land mentioned in the heading of the plaint at ''A'' in favour of Charan Dass Dogra deceased, the predecessor-in- interest of Defendants 1-A to 1-F was valid and Smt. Kimtu was competent to effect that sale on behalf of the Plaintiff ? (OPD)

Whether Defendants Nos. 2 to 4 are bonafide purchasers for valuable consideration and are protected by Section 41 of the Transfer of Property Act ? (OPD)

Whether the Plaintiff is estopped by his own conduct from filing this suit ? (OPD)

Whether the Defendants made any improvements on the land in dispute after its purchase ? If so, of what value and to what effect ? (OPD)

Whether the suit is properly valued for purposes of Court fee and jurisdiction ? (OPP)

Whether the suit is bad for reasons mentioned in para No. 5 of the written statement filed on behalf of Charan Dass Dogra (deceased) Defendant No. 1 ? (OPD)

Whether and if so to what amount is the Plaintiff entitled on account of mesne profits ? (OPP)

Whether and if so, to what relief and against which Defendant(s) the Plaintiff is entitled ? (OPP)

The following additional issues were framed on October 25, 1982:

Whether Smt. Kimtu was appointed general attorney by Shri Gehru vide registered power of attorney dated 6-5-1975 as alleged by Defendants?

Whether Smt. Kimtu in her capacity as attorney of Shri Gehru created any lease in respect of the suit land before the impugned sale ? If so to what effect?

Yet two more issues were framed on August 28, 1984 as a result of Defendants No. 1-A to 1-F having been allowed to amend their written statement. The said issues read thus:

Whether Smt. Devku is the legally wedded wife and as such the widow of Gehroo deceased as alleged? If so its effect? (OPP)

Whether Smt. Kimtu is estopped from filing the suit as alleged in the amended written statement ?

(OPD)

Issue Nos. 1 and 3 (framed on August 10, 1982) and Issue No. 2 (framed on August 28, 1984):

These issues are inter-connected and can be convenien tly dealt with together.

The order dated October 31, 1979 passed by the High Court in Civil Revision No. 37 of 1975 is at Ex. P-l. It is a brief order and may be usefully reproduced verbatim. It reads:

Smt. Kimatu, Respondent No. 1, made an application on 15-5-1975 u/s 8 of the Hindu Minority and Guardianship Act in the Court of the District Judge, Mandi praying for permission to sell certain properties of her father Shri Gehru who was described as deaf and dumb person. That application was presented before the Presiding Officer on 22-5-1975 for the first time and notices by proclamation were directed to be issued for 28-5-1975 on which date the case was adjourned to 31-5-1975 for evidence of the applicant. On the same day the impugned order was passed granting to Respondent No. 1, the applicant, the necessary permission to sell the properties of her father. This revision petition is filed against the afore- said order dated 31-5-1975 passed by the District Judge, Mandi. Shri K. D. Sood, learned Counsel for the Respondent agrees that this order cannot be supported in law as neither Smt. Kimtu was a natural guardian of Shri Gehru nor Shri Gehru was a minor within the meaning of Hindu Minority and Guardianship Act. The order as such is without jurisdiction and is accordingly quashed.

No appeal was preferred against the above order with the result that it became final.

Thus, the facts which are not disputed are that Kimtu filed an application under the provisions of Section 8 of the Hindu Minority and Guardianship Act in the Court of the District Judge, Kullu, praying for permission to sell certain properties belonging to her father Gehru. Shri Charan Dass Dogra, Advocate, Kullu was her counsel in that application. This application was allowed on May 31, 1975 and it was pursuant to this permission that the impugned sale was made by Kimtu barely 6 days thereafter, that is, on June 6, 1975 in favour of none else than her counsel Charan Dass Dogra, Advocate. The order dated May 31, 1975 passed by the District Judge, Kullu granting permission to Kimtu to alienate the properties belonging to Gehru was quashed being without juris- diction. It is on the above facts that the validity of the sale referred to above and the applicability of the doctrine of estoppe as incorporated in Section 43 of the Transfer of Property Act have to be examined.

Kimtu sold the land mentioned in the heading of the plaint at ''A'' in favour of Charan Dass Dogra on the basis of the permission granted to her by the District Judge. This basis stood knocked out when the High Court held the order granting permission without jurisdiction and quashed it. Kimtu had, thus no legal right to effect the sale in question on behalf of her father Gehru.

Gehru, Plaintiff, died during the pendency of this suit. Kimtu is admittedly his daughter and stands impleaded as one of his legal representatives. It has been urged by Mr. Inder Singh, learned Counsel for Defendant 1-A to 1-F (succes-sors-in-interest of Charan Dass Dogra), that Kimtu is bound by sale made by her on June 6, 1975 under the provisions of Section 43 of the Transfer of Property Act.

Section 43 reads:

Transfer by unauthorized person who subsequently acquires interest in property transferred.-Where a person fraudulently or erroneously represents that he is authorized 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.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.

The plain language of Section 43 of the Transfer of Property Act shows that the making of a fraudulent or erroneous representation so as to mislead the transferee is a sine qua non for bringing a case within the ambit of that Section and invoking estoppel. In other words, it will have to be shown that a representation had been made to Charan Dass Dogra by Kimtu fraudulently or erroneously about her title and that Charan Dass Dogra acted on the representation and was misled thereby to enter into the sale transaction. Kimtu, however, made no representation at all. Charan Dass Dogra was fully aware about the contents of the application moved before the District Judge by Kimtu because he himself was representing Kimtu as her counsel. In fact, this application, which was later on quashed by the High Court on the ground that it lacked jurisdiction, could not be but the handiwork of Charan Dass Dogra himself. The proceedings were being rushed through so much so that the application made on May 15, 1975 was finally disposed of and permission granted to Kimtu for selling properties of her father on May 31, 1975 and the sale deed executed by her in favour of Charan Dass Dogra on June 6, 1975. Therefore, it cannot be said under any stretch of imagination that Charan Dass Dogra was induced to enter into the contract or that he was not aware of the real facts and acted on any representation.

The real import of Section 43 of the Transfer of Property Act, has been brought out in para 15 of The Jumma Masjid, Mercara Vs. Kodimaniandra Deviah, which is as follows:

(15) This reasoning is open to the criticism that it ignores the principle underlying S. 43. That section embodies, as already stated, 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 bonafide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given, the relevant words of S. 43 were, ''where a person erroneously represents'', and now, as amended by Act 20 of 1929, they are ''where a person fraudulently or erroneously represents'', and that emphasises that 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 knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer, Section 43 would then have no application, and the transfer will fail under section. But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable doctrine embodied in S. 43, however, fraudulent the act of the transferor might have been.

The above observations have been extracted in Ram Pyare Vs. Ram Narain and Others, a case relied upon by Mr. Inder Singh. I am unable to see how these observations assist him. The facts of Ram Pyare''s case (supra) disclose that Matbar Mal, vendor, had erroneously represented to the vendee that he was authorised to transfer the property. Such representation is totally absent in the present case.

In Ganeshdas and Ors. v. Kamlabai AIR 1952 Nag 29 , it has been held that it is absolutely necessary that there should be no knowledge of true facts so far as a transferee is concerned in order that the rule of estoppel may be invoked. Where a transferee is aware of the absence of transferable interest, his knowledge disentitles him of the benefit of Section 43. (Also see Jagat Narain and Another Vs. Laljee and Others,

Mr. Indar Singh, learned Counsel for Defendants 1-A to 1-F, has cited Fernando v. Gunatillaka AIR 1921 PC 138, Miss J. J. Villa v. C.A. Patley AIR 1934 Ran 51 , Ram Japan Missir Vs. Mt. Jagesara Kuer and Others, Sundariah v. B.R. Ramasastry and Ors. AIR 1955 Mys 8 , Smt. Lakshmi Devi Vs. Smt. Kala Devi and Others, wherein the doctrine of "feeding the estoppel" as embodied in Section 43 has been discussed. I do not think any of these cases advance the argument Mr. Indar Singh has strenuously endeavoured to build. The facts of the present case are totally different and distinguishable. It may also be stated here that the very basis of Section 43 rests in equity. It has not been shown to me as to how the Defendants deserve any relief whatsoever in equity on the facts of this case. Here, it may also be borne in mind that there is fiduciary relationship between an Advocate and his client and a very heavy burden will rest on the shoulders of an Advocate for establishing that the transaction of sale entered into by him with his client was a clean one, if such transaction is challenged by a competent person.

There is yet Anr. reason why the provisions of Section 43 of the Transfer of Property Act cannot be pressed into service on behalf of the Defendants. Section 43 presupposes the existence of a valid contract to transfer. In the present case, as stated above, the sale was based on the permission granted by the District Judge which order was held to be without jurisdiction. Therefore, there was no valid contract at all.

In view of the above discussion, I hold that Kimtu was not competent to effect the impugned sale on behalf of Gehru and further that she is not estopped from filing the suit as alleged in the amended written statement. All the three issues are, therefore, decided against the Defendants.

Issue No. 2 (framed on August 10, 1982):

As stated above, the order dated May 31, 1975 made by the District Judge, Kullu, permitting Kimtu to transfer the properties of Gehru was challenged in the High Court by preferring Civil Revision No. 37 of 1975. Charan Dass Dogra had also been impleaded a Respondent in that Civil Revision and the Court restrained him from further alienating the pro perty sold to him by Kimtu on June 6, 1975. It was on October 31, 1979 that the said Civil Revision was disposed of and the order of the District Judge quashed. It is evident that Charan Dass Dogra concluded that the interim order restraining him from further alienating the properties sold to him by Kimtu stood amalgamated in the final order made by the High Court which has already been reproduced above. Since the final order did not impose any such prohibition, Charan Dass Dogra proceeded to sell land measuring 5 bighas 7 biswas comprised in khasra No. 6001/1346 out of the land purchased by him from Kimtu to Defendants No. 2, 3 and 4. For this purpose, three sale deeds were got registered in the sum of Rs. 33316.33 P. each and the allegation made by the Plaintiff is that the trifurca- tion was done to get over the Income Tax laws.

It is on the above facts that Defendants 2, 3 and 4 have pleaded that they are bona fide purchasers for value and are protected under the provisions of Section 41 of the Transfer of Property Act. But in order to invoke Section 41, a transferee has to establish that the transferor was the ostensible owner and further that he transferred the property with the consent, express or implied, of the real owner. In this connection, the law laid down in Ramrao Jankiram Kadam Vs. State of Bombay, and Motimul Sowcar v. Visala- kshi Ammal and Ors. AIR 1965 Madras 432, may be referred to. Gehru continued to be the real owner of the property and there is not an iota of evidence that he had expressly or impliedly consented to the transfer in favour of Defendants No. 2 to 4. The testimony of PW-2 Inder Singh and PW-3 Rup Chand affords Anr. ground why Defendants 2, 3 and 4 cannot succeed on this issue. Both these witnesses have deposed that Dev Raj, Defendant No. 2, had contacted them before the execution of the sale deeds by Charan Dass Dogra and they had informed the Defendant about the defect in Charan Dass Dogra''s title and the disputes going on with respect to the land. Now, these witnesses have not been cross-examined at all by the learned Counsel for Defendants No. 2 to 4 meaning thereby that this part of the testimony stands accepted. If so, it cannot be said that the vendees were not aware about the risk involved in the transaction and made the purchase in good faith.

Issue No. 2, is, therefore, decided against Defendants No. 2 to 4.

Issues No. 4 and 7 (framed on August 10, 1982):

It has been stated by DW 1 Rama Dogra, Defendant No. 1-A that her husband had converted the land purchased from Gehru into an orchard. There is, however, no evidence as to how much expenditure was made on that account. The case on the other side is that the orchard stood planted before the sale and that the Defendants are liable to pay mesne profits. Here also, there is no evidence as to what is the quantum of mesne profits. In the circumstances, issue No. 4 is decided against the Defendants and issue No. 7 against the Plaintiffs.

Issues No. 5 (framed on August 10, 1982):

This suit has been filed in forma pauperis and the applica tion made under Order 33, Rule 1 CPC allowed by the Court. The suit has been valued for the purpose of Court-fee and jurisdiction at Rs. 2,18,949/-. This valuation has not been challenged at the time of arguments. Issue No. 5, is, therefore, decided in favour of the Plaintiffs.

Issue No. 6 (framed on August 10, 1982):

This issue was not pressed on behalf of the Defendants at the time of arguments. Hence, it is decided against them.

Issue Nos. 1 and 2 (framed on October 25, 1982) :

learned Counsel for the Defendants conceded these issues at the time of addressing arguments. Otherwise too, no evidence has been adduced by the Defendants on these points. Both these issues are, therefore, decided against the Defendants.

Issue No. 1 (framed on August 28, 1984):

PW 1, Devku in her statement recorded on July 14, 1983, stated in her cross-examination that Gehru was her first husband. She, however, took a customary divorce from him and married Ram Ditta with whom she stayed for about 5 years. Ram Ditta then released her, once again, by a customary divorce after which she married Gehru again. This witness was examined once again on October 19, 1984. She has deposed on both the occasions that the factum of the above divorces and marriages were reduced into writing on stamp papers. However, no such document has been proved in evidence. PW 4 Gopal Dass, PW 5 Jhabe Ram and PW 6 Chuni Singh have supported Devku''s case to the extent that they have seen Devku living at the house of Gehru as the latter''s wife for the last so many years. In fact, Smt. Rama Dogra, DW 5 has herself admitted in the cross examination that Devku had been living in the house of Gehru with him under one roof. Devku still cannot be regarded as the legally wedded wife of Gehru at the time of Gehru''s death due to the reason that Gehru had admittedly one wife living when Devku is stated to have remarried him in or about the year 1970, This stands proved from the testimony of PW 4 Gopal Dass who is a witness examined on behalf of the Plaintiffs themselves. If so, the marriage must be regarded as void ab-initio. Section 5(i) read with Section 17 of the Hindu Marriage Act, 1955 introduces monogamy. It postulates that neither party to a valid marriage must have a spouse living at the time of marriage. As Gehru had one living wife at the time Devku is stated to have remarried him, Devku''s remarriage cannot clothe her with the status of a legally wedded wife. Therefore, she cannot be regarded as Gehru''s widow. Its effect is that Devku is not a legal representative of Gehru and cannot maintain this suit in that capacity. This issue is, therefore, decided against Devku and it is ordered that her name be struck off from the array of legal representatives which were substituted in place of Plaintiff Gehru on his death.

Relief:

In view of the above findings, Kimtu Plaintiff''s suit for possession of the land mentioned in the heading of the plaint at A is hereby decreed with costs. The suit for the recovery of Rs. 51,000/- as mesne profits is, however, dismissed.

A copy of this judgment be sent to the Collector, KuIIu, for suitable action as postulated under Order 33 Rule 14 of the Code of Civil Procedure.