Pandiri Bangaram and Others vs Karumoory Subbaraju and Others

The plaintiff has obtained a decree against the one-third share of the first defendant. He purported to mortgage one half during ""his father''s life-

time when he was only entitled to a third. It is found by the District Judge in paragraph 17 of his judgment, and we entirely agree with him, that the

plaintiff knew at the date of the mortgage that the first defendant was only entitled to a third share in the property. We are also clear that the

plaintiff did not bargain and pay for a half share. Under these circumstances the question is raised whether the plaintiff can bring his case within the

four corners of Section 43 of the Transfer of Property Act. We are asked to say that, in the absence of words in Section 43 to the effect that the

benefit of that section can only be claimed by a person who has believed in and acted upon the representation, the plaintiff is entitled to proceed

against the added interest of the father. We are unable to accept this view. It is true Section 41 of the Act requires a person who has obtained a

transfer from the ostensible owner to have done so in good faith and after due enquiry in order to become entitled to the interest purported to be

transferred. But, as pointed out by the learned Advocate-General, the difference in language between Sections 41 and 43 of the Act may be due

to the fact that under the latter section mere belief in and acting upon the representation may be sufficient to pass the subsequently acquired

interest, while u/s 41 such mere belief of the transferee is insufficient. The case of L. Angannayya and Others Vs. Daroor Narasanna and Others,

does not decide the question under consideration. On the other hand, the Advocate-General has drawn our attention to the observations in

Mokhoda Debi v. Umesh Chandra Banerjee (1908) Cri.L.J. 381 and Gangabai v. Baswant ILR (1910) Bom. 175 which seem to show that the

principle of Section 43 of the Transfer of Property Act is the acting by the transferee on the erroneous representation of the transferor. Further, the

well-known maxim of the law to which effect is given in Section 41 is interest feeds the estoppel. That section only enunciates a rule which is an

illustration of the general principles of estoppel not confined to the law of evidence, but ! extending to the region of substantive law. No authority

has been cited to us to induce us to take a different view of the section. We must therefore hold that the decree of the District Judge is right. It is

unnecessary be express any opinion on the other questions, and especially on the genuineness of the will. We dismiss the appeal with costs.