M. Krishnamachariar v. T. Tiruvenkatachariar

JUDGMENT

Sadasiva Aiyar, J. — The only question of law arguable in this case is whether Sect. 43 of the Transfer of Property Act can be taken adantage of by a transferee who is not proved to have been misled by the erroneous representation of the transferor as to the latter's power to transfer.

It is true that the words “and the transferee has been misled by the erroneous representation” do not occur after the words “consideration” in Sect. 43. Pandiri Bangaram v. Karumoory Subbaraju(1) however decided that though such additional words do not occur in the section, the legislature must have intended to benefit only the transferees who have been really misled. The provision being one based on considerations, which Courts of equity rather than Courts applying strict law take notice of, it was evidently considered that a person who was really not misled could not have been intended to have the benefit of the provision.

I followed Pandiri Bangaram v. Karumoory Subbaraju, in Hottikudur Naraina Rao v. Audar Syad Abbas Sahib(2), (sitting with Hannay, J.,) though I felt some doubts whether such addition to the language of Sect. 43 could be taken, as having been intended by the legislature. I again followed it in Kodi Sankara Bhatta v. Moidin(3), sitting with Old field, J. Another Division Bench (Bakewell and Phillips, JJ.) has followed Pandiri Bangaram v. Karumoory Subbaraju, in Venkatalakshmi Narasayyar v. Meenakshi Ammal(4). (See also Swaminatha Mudali v. M. Saravana Mudali(5) where sitting with Spencer J. (I refer at page 378 to Pandiri Bangaram v. Karumoory Subbaraju, as having been followed by me with some hesitation in Hottikudur Naraina Rao v. Audar Syad Abbas Sahib. Patna High Court has also followed Pandiri Bangaram v. Karumoory Subbaraju, in Chakrapani Nandi v. Srimati Gyamoni Dassi.

There is no doubt as to the opinion of Doctor Gour, doubting the correctness of Pandiri Bangaram v. Karumoory Subbaraju, and there is an Oudh case, viz., Jag Mohan Singh v. Sita Ram Singh(6), in favour of the appellant and in support of the doubts I expressed in Hattikudur Naraina Rao v. Audar Sayad Abbas Sahib; but I think that the matter should now be deemed settled on the principle of stare decisis, by the uniform decisions in this Court for the past 10 years, since Pandiri Bangaram v. Karumoory Subbaraju, was decided in March 1910.

I would therefore dismiss the Second Appeal with plaintiff's costs.

Spencer, J.—This is not a case in which the appellant can claim the benefit of Sect. 43 of the Transfer of Property Act, as it has not been found as a fact that the 2nd defendant made any erroneous representation to Srinivasa Pillai who was 1st defendant's predecessor in title, when he sold the suit land to him in 1896.

It is not necessary for the purpose of this case to import any wider expansion of the principles of estoppel, than those which are contained in the plain words of the section. A transfer made not in consequence of any representation of title, but independently, or made with some representation, which is not an erroneous one, or is erroneous and the transferee knows it to be erroneous, will not come within the scope of the section. I consider that a correct construction was placed on this section in Pandiri Banaram v. Karumoory Subbaraju which confirmed a judgment of mine and in Venkata Lakshmi Narasayya v. Meenakshi Ammal and I should have no hesitation in following those decisions, if there was any diversity of rulings; but in fact no direct authority has been quoted in support of the appellant's vakil's argument that the effect of Sect. 43, has been misunderstood by the Lower Appellate Court. He Has only an observation in Gour's Transfer of Property Act, note 720 at page 446 and a decision of the Oudh Court in Jag Mohan Singh v. Sita Ram Singh, in his favour. The decision in Chakrapani Nandi v. Srimati Gayamoni Dassi is also against his contentions.

I agree that the Second Appeal should be dismissed with costs.

K.V.SAppeal dismissed.