HARDEV SINGH versus GURMAIL SINGH (DEAD) BY LRS.

Citation: [2007] 2 S.C.R. 141 · Decided: 02-02-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

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Judgment (excerpt)

HARDEY SINGH 
A 
v. 
GURMAIL SINGH (DEAD) BY LRS. 
FEBRUARY 2, 2007 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
B 
Transfer of Property Act, 1882-Sections 43, 52 and 41-Transfer of 
property by husband to wife in lieu of maintenance-Wife claiming absolute 
oivnership-During pendency, husband selling the property to third party C 
and giving possession-Third party claiming benefit of s. 43 and 41-Plea 
of legal heirs of wife that as bonafide of third party not proved, claim under 
s. 43 not sustainable-Held: No finding that the third party was aware that 
the husband had no title over the property-Transaction was not void-
" Husband could raise plea of inapplicability of section 43 and not the LR's 
whose claim was based on the Will-Principle of feeding the estoppel will D 
apply against the husband and not LR's-Principle of feeding the estoppel. 
Original defendant no. I-husband transferred some properties in favour 
of his wife in lieu of maintenance. Wife filed suit against her husband claiming 
absolute ownership over the property. Trial Court held that the wife was 
entitled to enjoy the property during her life time. However, appellate court E 
held her to be full owner of the property. During pendency, husband sold the 
land to the respondent by sale deed and gave him the possession thereof. Wife 
filed another suit. Trial Court and appellate court held the transaction to be 
hit by doctrine of /is pendens. In the meantime, wife expired. Respondent filed 
second appeal and raised an additional ground that on death of wife, her F 
properties devolved upon LR's of wife and also her husband in equal shares, 
and thus, respondent should be declared to be owner of the land in terms of 
sections 41 and 43 of the Transfer of the Property Act, 1882. High Court 
held that only section 43 would be attracted. Hence the present appeal. 
Appellant contended that as the bonafide of the respondent was not G 
proved and the High Court held the respondent was not entitled to the benefit 
of section 41 of the Act, his claim in terms of the section 43 thereof cannot 
be sustained. 
141 
H 
142 
SUPREME COURT REPORTS 
[2007] 2 S.C.R. 
A 
Dismissing the appeal, the Court 
HELD: 1.1. The doctrine offeeding the estoppel envisages that 'where 
a grantor has purported to grant an interest in land which he did not at the 
time possess, but subsequently acquires, the benefit of his subsequent 
acquisition, goes automatically to the earlier grantee, or as it is usually 
B expressed,feeds the estoppel'. (Para 14] (146-G-H( 
1.2. The principle is based on an equitable doctrine that a person who 
promised to perform more than he can perform must make good his contract 
when he acquires the power of performance. The difference between the ambit 
C of Sections 41 and 43 of the Transfer of Property Act is apparent. Whereas 
Section 41 provides that a transfer by an ostensible owner cannot be avoided 
on the ground that the transferor was not authorised therefor, subject to the 
condition that the transferee should take reasonable care to ascertain that 
the transferor had power to make the transfer and to act in good faith before 
a benefit thereof is claimed by him. Section 43, on the other hand, enables 
D the transferee to whom a transferor has made a fraudulent or erroneous 
representation to lay hold, at his option, of any interest which the transferor 
may subsequently acquire in the property, unless the right of any subsequent 
purchaser for value without notice is in effect. (Para 15( (147-A-C( 
Jumma Masjid, Mercara v. Kodimaniandra Deviah. AIR (1962) SC 847 
E : (1962] Supp.2 SCR 554, relied on. 
2.1. High Court declined to grant any relief to the respondent in terms 
of Section 41 of the Act, inter alia, on the premise that the husband admitted 
that he had sold the property to the respondent in order to frustrate the claim 
of his wife; that a public notice was not given; and that the respondent knew 
F regarding the pending litigation, and it was for the respondent to show that 
he had no knowledge about the litigation. In applying the provisions of Section 
43 of the Act, High Court held that it was the husband who had pleaded the 
mischief; that after the death of wife, husband would be the natural heir of 
the half share of her property. [Paras 16 and 17( (147-D-F[ 
G 
H 
2.2. Trial Judge and the First Appellate Court had decreed the suit of 
wife only on the basis that she acquired the suit property during the pendency 
of the ear

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