Indian SC answers a pertinent property question | The Daily Star
12:00 AM, February 12, 2019 / LAST MODIFIED: 12:00 AM, February 12, 2019

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Indian SC answers a pertinent property question

The Supreme Court of India (SCI) granted relief to a party, who was misled to purchase a property by erroneous representation of title by the vendor. The appellant purchased the property on January 6, 1990, without noticing that it was declared as ceiling surplus land by the government two years ago. However, on September 14, 1990, the land was declared free of ceiling limit. Later, he effected mutation of the property in 1991. Four years later, the vendor trespassed into the property and took over its possession. This led to the institution of the title suit.

Although the trial court decreed the suit, the first appellate court reversed it, holding that the vendor had no marketable title on the day of conveyance. The first appellate court also came to the conclusion that the defendants' rights over the suit land also could not be established under Section 53A of the Transfer of Property Act. The judgment of first appellate court was confirmed by High Court in second appeal.

In the further appeal by the plaintiff, the SCI accepted his claim. Explaining the import of the Section 43 of the Transfer of Property Act 1882 (TP Act), the judgment authored by Justice Shah held:  "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".

The purpose of section 43 of the TP Act is that nobody can be permitted to take the benefits of his own wrong. The Court held that to apply section 43 TP Act, it was immaterial whether the transferor acted bona fide or fraudulently in making the representation. It is only material to find out whether the transferee has been misled because, section 43 uses the words ""where a person fraudulently or erroneously represents". Applying the principle in the case, the Court found that the vendor had acquired title over the property, when it was declared ceiling free after the sale. Therefore, the appeal was allowed, declaring the rights of the plaintiff.




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