Mohd Raees Vali And Others vs Sukhvindar Singh And Others

Vivek Jain, J

The present petition has been filed by the petitioners being aggrieved by the order dated 30.10.2025 passed by the Executing Court of 30th District Judge, Jabalpur, thereby rejecting the application/objection of the petitioners under Section 47 CPC submitted before the executing Court. The Executing Court has discarded the objections of the petitioners to the execution of the decree holding that the petitioners being subsequent purchasers after passing of decree, hence, have no right to object to the decree as they are hit by Section 52 of the Transfer of Property Act. Consequently, the Executing Court has directed registration of the sale deed in compliance of the judgement and decree of specific performance of agreement.

The counsel for the petitioners has vehemently argued before this Court that the very agreement of the decree holder i.e. present respondent No.1 was barred by law being hit by Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976 because it was in respect of a land which had been declared to have vested in the Government as per provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (for short hereinafter referred to as "Ceiling Act, 1976"). It is argued that once the land had vested in the State Government, then there was prohibition on transfer of urban property and further in view of Section 5 of the Ceiling Act, 1976, as per sub-section (2) and (3) thereof, any transfer of excess vacant land is deemed to be null and void. It is further contended that as per Section 10(3) of the said Act, upon notification of the land as surplus, the land is deemed to be vested in the State Government free from all encumbrances with effect from the date of such notification/declaration under Section 10 (3).

It is, therefore, contended that the agreement having been executed in favour of the decree holder in the year 1998, though the land had stood vested in the State Government in the year 1995 upon notification under Section 10(3), the agreement was void, and no suit could have been filed and decreed for enforcement of such an agreement. Therefore, it is contended that the Executing Court has erred in applying Section 52 of the Transfer of Property Act by saving the agreement, which was void. The learned senior counsel further referred to judgment of the Hon'ble Supreme Court in the case of Thomson Press (India) Limited vs. Nanak Builders and Investors Private Limited and others, reported in (2013) 5 SCC 397 to contend that transfer of property pendente lite is not void ab initio in any case. In similar terms, judgement of the Hon'ble Apex Court in Civil Appeal No.7305 of 2024 (Yogesh Goyanka vs. Govind & Ors.) is relied upon wherein in paragraph 16, the Hon'ble Supreme Court has held that Section 52 of the Transfer of Property Act does not render all transfers pendente lite to be ab initio void and it only renders rights arising from such transfers as subservient to rights of the parties to the pending litigation. Further reliance is made on judgement of the Hon'ble Supreme Court in the case of Howrah Daw Mangla Hat B.B. Samity vs. Pronab Kumar Daw, reported in (2001) 6 SCC 534 wherein it has been held by the Hon'ble Supreme Court that the executing Court can allow objection under Section 47 of CPC to executability of the decree if it is found that the decree is void ab initio or it is a nullity or having passed in ignorance of legal provisions. On these assertions, it is prayed to set aside the order of the executing Court and to hold that the decree was inexecutable being contrary to interest of the petitioners who have purchased the land from the original owner after the land had been released from Ceiling vide order of Revenue Authority passed on 17.11.2015.

Heard.

The basic facts for the purpose of consideration of the grounds raised by learned counsel for the petitioners are that the original owner of the land was admittedly respondent No.2 Ram Singh, who is now being represented by his legal heirs. The land stood vested in the State Government as per Section 10(3) of the Ceiling Act, 1976 in the year 1995 as per assertions the petitioners, though no such order has been placed on record. The agreement in favour of the decree holder was executed on 04.07.1998. The original owner Ram Singh thereafter sold the land to a third person named Mukesh Dubey on 30.09.1999. The land was released from ceiling by order of Revenue Authority on 17.11.2015 and sale deed in favour of petitioner No.1 took place on 13.03.2016 which was executed by original owner Ram Singh. In between, a civil suit had been filed by the respondent No.1 on 13.10.1999 which was decreed on 28.02.2004 but since the subsequent purchaser Mukesh Dubey had filed appeal before the appellate Court, therefore, the decree was not put to execution and it was in the year 2024 that the First Appeal filed by subsequent purchaser Mukesh Dubey was dismissed for want of prosecution on 18.12.2023 and then the decree was put to execution by the respondent No.1.

From the aforesaid facts, it is clear that the agreement in favour of the petitioners was executed by original owner in the year 1998 when the land was under ceiling and sale deed in favour of the petitioner No.1 has been executed by same person Ram Singh in the year 2016. There is a decree against Ram Singh passed by the trial Court on 28.02.2004, for specific performance and the petitioner has purchased the land from Ram Singh despite there being a decree of specific performance against Ram Singh which Ram Singh i.e. present respondent No.2 has never put to challenge but he has chosen to get around the decree by selling the same land to the petitioner No.1.

Now, in place of taking any action against Ram Singh or his legal heirs for having defrauded the petitioner No.1 or for refund of the sale consideration with interest, the petitioners say that the decree passed in favour of respondent No.1 is a nullity and it is not executable because the agreement was executed when the land had not been released from ceiling and notification under Section 10(3) of the Ceiling Act, 1976 was in force.

The petitioners do not derive title from the State Government and it is not the case that when there was valid notification in operation under Section 10(3) of the Ceiling Act, 1976 that the State Government which had the title at that time, had parted with the title in favour of the petitioners. It is a case where the petitioners as well as the decree holder derive title from the same person Ram Singh who executed his agreement in favour of respondent No.1, who lost in the Civil Court and after having lost from the Civil Court, then executed the sale deed in respect of the same property in favour of petitioner No.1.

So far as reliance on judgements of the Hon'ble Apex Court by learned senior counsel for the petitioners is concerned, it cannot be disputed that by force of Section 52 of the Transfer of Property Act, the transfer in itself is not void ab initio against all, but it is subservient to the rights of the parties to the pending litigation. Here, the petitioners are not claiming any rights against any third person or any stranger to the litigation but are claiming rights against the respondent No.1 who was party to the litigation and who has succeeded to the litigation and the case of the petitioners is that the agreement executed by Ram Singh in favour of respondent No.1 was void and the decree is nullity being contrary to law.

Now this Court proceeds to deal in detail the effect of Sections 10(3), 5(3) and 27 of the Ceiling Act, 1976.

11 . Relevant Sections 5(3), 10(3) and 30(5) of Ceiling Act, 1976 are as under:-

“5(3) In any State to which this Act applies in the first instance and in any State which adopts this Act under clause (1) of article 252 of the Constitution, no person holding vacant land in excess of the ceiling limit immediately before the commencement of this Act shall transfer any such land or part thereof by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement under section 6 and a notification regarding the excess vacant land held by him has been published under sub-section (1) of section 10; and any such transfer made in contravention of this provision shall be deemed to be null and void.

10.(3) At any time after the publication of the notification under subsection (1), the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to, in the notification published under sub -section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.

(1) Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions of sub-section (3) of section 5 and sub-section (4) of section 10, no person shall transfer by way of sale, mortgage, gift, lease for a period exceeding ten years, or otherwise, any urban or urbanisable land with a building (whether constructed before or after the commencement of this Act) or a portion only of such building for a period of ten years of such commencement or from the date on which the building is constructed, whichever is later, except with the previous permission in writing of the competent authority.

(2) Any person desiring to make a transfer referred to in sub-section (1), may make an application in writing to the competent authority in such form and in such manner as may be prescribed.

(3) On receipt of an application under sub-section (2), the competent authority may, after making such inquiry as it deems fit, by order in writing, grant or refuse to grant the permission applied for: Provided that the competent authority shall not refuse to grant the permission applied for unless it has recorded in writing the reasons for doing so and a copy of the same has been communicated to the applicant.

(4) Where within a period of sixty days of the date of receipt of an application under this section the competent authority does not refuse to grant the permission applied for or does not communicate the refusal to the applicant, the competent authority shall be deemed to have granted the permission applied for.

(5)(a) Where the permission applied for is for the transfer of the land with the building or, as the case may be, a portion only of such building referred to in sub-section (1) by way of sale, and the competent authority is of the opinion that such permission may be granted, then, the competent authority shall have the first option to purchase such land with building or a portion only of such building on behalf of the State Government at such price as may be agreed upon between the competent authority and the applicant or, in a case where there is no such agreement, at such price calculated in accordance with the provisions of the land Acquisition Act, 1894 or of any other corresponding law for the time being in force.

(b) If the option referred to in clause (a) is not exercised within a period of sixty days from the date of receipt of the application under ,his section, it shall be presumed that the competent authority has no intention to purchase such land with building or a portion only of such building on behalf of the State Government and it shall be lawful for such person to transfer the land to whomsoever he may like:

Provided that where the competent authority exercises within the period aforesaid the option to purchase such land with building or a portion only of such building, the execution of the sale deed shall h completed and the payment of the purchase price thereof shall be made within a period of three months from the date on which such option is exercised.

(6) For the purpose of calculating the price of the land and building or, as the case may be, a portion only of such building under clause (a) of sub-section

(5) , it shall be deemed that a notification under sub-section (1) of section 4 of the Land Acquisition Act, 1894 or under the relevant provision of any other corresponding law for the time being in force, had been issued for the acquisition of that land and building or, as the case may be, a portion only of such building on the date on which the application was made under sub-section (2) .

30(5) Save as provided in this section, no court shall entertain any suit, application or other proceeding for injunction or other relief against the competent authority to restrain him from taking any action or making any order in pursuance of the provisions of this section.”

It is true that as per Section 5 (2) and (3), sale transactions are prohibited but the question that arises for determination is that whether the decree holder cannot take benefit of Section 43 and 52 of TP Act or can take benefit of Section 43 in case the landholder sells the land which is the subject matter of Ceiling Act, 1976 to a third person during penddency of litigation by subsequently getting the land released from ceiling. In the present case, it is undisputed that subsequently the Revenue authority has passed an order declaring the land to have been released from Ceiling Act, 1976 aand then sal took place in favour of the petitioners.

Section 43 and 52 of TP Act are as under.

“43. Transfer by unauthorised person who subsequently acquires interest in property transferred.—Where a person 3 [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. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.”

"52. Transfer of property pending suit relating thereto.—During the [pendency] in any Court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government 5 ***], of [any] suit or proceeding [which is not collusive and] in. which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

[Explanation.—For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order, has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]"

As per Section 43, where a person represents by fraud or error that he is authorized to transfer certain immovable property and such property is transferred for consideration, then such transfer shall at the option of transferee, operate on any interest which the transferor may acquire in such property. The said section is based upon the principle of “”feeding the estoppel” and as per necessary result of the aforesaid provision, it infers that no person can wriggle out of his obligations to honour a transfer which though initially could not be enforced against him due to his defect of title, but subsequently when he perfects his title, then it can be enforced against him. This principle is founded on equity.

Learned counsel for the petitioner though admitted that after passing of the decree for specific performance in the year 2004, the land has been released from Ceiling Act 1976 in year 2015, but submits that Section 43 would not apply because the initial transaction was void and barred by law and therefore after getting the land released from ceiling, the petitioners have sold the land to petitioners, and there was a clear averment in the agreement to sale, that the sale deed shall be executed after obtaining No-objection from Ceiling authorities, therefore, Section-43 would not apply, as there was no mis-representation by the vendor.

In this case it is the original defendant Ram Singh who first entered into agreement with the Plaintiff-respondent No.1 and then has transferred the land to some petitioners and now there is struggle by the petitioners to avoid the decree for specific performance by stating that the agreement and decree in favour of earlier purchaser would be void while the transfer made to later purchaser who has paid more amount or quantum of consideration, would be valid.

The almost exact issue came up for consideration before the Hon’ble Supreme Court in the case of Tanu Ram Bora v. Promod Ch. Das, (2019) 4 SCC 173. In the said case, the land had been declared surplus in the year 1988 and a sale was executed by the erstwhile owners on 06.01.1990 but the land was declared freed from Ceiling Act on 14.09.1990 after execution of the sale deed. Therefore, the facts of the said case are exactly similar to the present case and in that case the Hon’ble Supreme Court has applied Section 43 T.P. Act and has held as under:-

6.3. Section 43 of the Act reads as under:

“43. Transfer by unauthorised person who subsequently acquires interest in property transferred.— 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.

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

6.4. Section 43 of the TP Act provides that 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, operates on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Thus, if at the time of transfer, the vendor/transferor might have a defective title or have no title and/or no right or interest, however subsequently the transferor acquires the right, title or interest and the contract of transfer subsists, in that case at the option of the transferee, such a transfer is valid. In such a situation, the transferor cannot be permitted to challenge the transfer and/or the transferor has no option to raise the dispute in making the transfer.

6.5. The intention and objects behind Section 43 of the TP Act seem to be based on the principle of estoppel as well as the equity. The intention and objects seem to be that after procuring the money (sale consideration) and transferring the land, thereafter the transferor is estopped from saying that though he has sold/transferred the property/land on payment of sale consideration, still the transfer is not binding on him. That is why Section 43 of the TP Act gives an option to the transferee and not the transferor. The intention of Section 43 of the Act seems to be that nobody can be permitted to take the benefits of his own wrong. In the facts and circumstances of the case, Section 43 of the Act would come into play and protect the rights of the original plaintiff."

Not only the above, but earlier in the case of Ram Pyare versus Ram Narayan reported in 1985(2) SCC 162, it has been held by the Hon’ble Supreme Court as under:-

"4. The decision in Dhani Ram v. Jokhu was approved by another Division Bench of the same court consisting of S.D. Khare and R.B. Misra, JJ., in Ram Swarup v. Deputy Director, Consolidation [ILR (1971) 1 All 698] . In the latter case the learned Judges expressed the further opinion that in a situation like the one before them, there was no reason why recourse should not be had to Section 43 of the Transfer of Property Act to feed the title as it were, if the necessary conditions were fulfilled. We agree with the reasoning of the learned Judges in Ram Swarup v. Deputy Director, Consolidation [ILR (1971) 1 All 698] . In that case, the matter was remanded to the Deputy Director of Consolidation to consider the question of the applicability of Section 43 of the Transfer of Property Act and proceed to dispose of the matter in accordance with law. In the present case, the facts speak for themselves and we do not think that it is necessary to remand the case to the lower courts for a decision on the question of the applicability of Section 43 of the Transfer of Property Act. The amount of deposit under Section 134 of the U.P. Zamindari Abolition Act was made on October 28, 1961 and it was on the same day that the sale deed was executed by Matbar Mal. It is clear that Matbar Mal erroneously represented to the vendee that he was authorised to transfer the property and professed to transfer such property for consideration. The very execution of the sale deed on the same day as the deposit of the requisite amount under Section 134 is significant enough to establish that the sale deed was the result of an# erroneous representation by Matbar Mal. It is also clear that the present plaintiffs who are the sons of the vendor, Matbar Mal cannot possibly claim to be transferees in good faith which indeed they do not claim to be. Section 43 clearly applies to the situation. The learned counsel for the respondents however attempted to disclaim the applicability of Section 43 of the Transfer of Property Act by referring to Jumma Masjid v. Kodimaniandra Deviah [AIR 1962 SC 847 : 1962 Supp (1) SCR 554 : (1962) 2 SCJ 303] . He invited our attention to the following observations of the learned Judges:

“Now the compelling reason urged by the appellant for reading a further exception in Section 43 is that if it is construed as applicable to transfers by persons who have only spes successionis at the date of transfer, it would have the effect of nullifying Section 6(a). 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 successionis at the date of transfer are not within the protection afforded by Section 43 would destroy its utility to a large extent.”

We are unable to see in what manner these observations can possibly assist the respondents. In the same decision, it has been observed later, referring to the decision of the Madras High Court in Official Assignee, Madras v. Sampath Naidu [AIR 1933 Mad 795 : 38 Mad LW 610 : (1933) 65 Mad LJ 588] :

“This reasoning is open to the criticism that it ignores the principle underlying Section 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 bona fide 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 Section 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 6(a). 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 Section 43, however fraudulent the act of the transferor might have been.”

In the present case, the ground that the agreement could not have been entered into by the original owner, Ram Singh, and that the agreement is void, was available to Ram Singh to have taken this defence in the suit, or in appeal. However, he even did not choose to file appeal against the decree of specific performance passed in 2004. He executed a sale deed more than twelve years after passing the decree. The petitioners cannot take a ground that even the original owner did not take, moreso, when this is not a case here that the suit is still pending, so that the subsequent purchaser may project himself to be a proper party, but an execution proceedings. The title in favour of the present petitioners was never in picture when the decree was passed in the year 2004, and they have a sale deed in their favour, that too, executed twelve years after passing of the decree.

Therefore, this court is not impressed with the ground of the petitioner that the suit must have failed and the plaint be rejected as the sale was void in terms of Section 5(3) and 27 of Ceiling Act 1976. The vendor could have taken this objection, that he did not take. The objections of the petitioners are clearly hit by section 52 of the T.P. Act, atleast as against the decree holders.

Consequently, this Court does not find any error in the order of the trial court in rejecting the application/objections of the present petitioners under Section 47. However, it is observed that the observations made above are only in respect of the right of the petitioners to object to execution of decree. Therefore, while granting liberty to the petitioners to raise all their defences in the suit filed by respondent No.1 including (in)applicability of Section 43 of T.P. Act, wherein the sale deed in favour of the petitioners is under challenge, the Revision petition is dismissed.