JHARU RAM ROY versus RAMJIT ROY AND ORS.

Citation: [2009] 1 S.C.R. 305 · Decided: 13-01-2009 · Supreme Court of India · Bench: S.B. SINHA, MUKUNDAKAM SHARMA · Disposal: Dismissed
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Judgment (excerpt)

(2009) 1 S.C.R. 305 
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JHARU RAM ROY 
A 
v. 
RAMJIT ROY AND ORS. 
(Civil Appeal No. 151 of 2009) 
JANUARY 13, 2009 
B 
[S.B. SINHA, DR. MUKUNDAKAM SHARMA AND ASOK 
KUMAR GANGUL Y, JJ.] 
... 
, 
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TRANSFER OF PROPERTY ACT, 1882: 
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s. 43-Transfer by unauthorized person who subsequently 
acquires interest in property transferred - Member of a family 
governed by Dayabhaga School of Hindu law, transferring 
agricultural lands during the lifetime of his father representing 
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his father as dead - In the suit filed by other son, after the 0 
death of his father for declaration of title and claiming 
possession over the transferred land, transferee claiming the 
benefit of s. 43 - HELD: First appellate court has recorded a 
finding of fact that transferee was party to the fraud and that 
he was not a victim thereof - The finding has been affirmed 
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by High Court - Fraud vitiates all solemn acts - As the 
transferee was aware of the fact that father of the transferor 
was alive on the date of the sale deeds, provisions of s. 43 
cannot be said to have any application to the case - Doctrine 
of feeding the estoppel - Fraud .. 
F 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 151 
of 2009. 
From the Judgment/Order dated 04-06-2007 passed in 
R.S.A. No. 169106 by the Hon'ble High Court of Guwahati. 
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..... 
Rituraj Biswas and Gopal Singh for the Appellant. 
K. Sarda Devi for the Respondent. 
305 
H 
306 
SUPREME COURT REPORTS 
[2009) 1 S.C.R. 
A 
The Judgment of the Court was delivered by 
;..,,_.,, 
ORDER 
1. Leave granted. 
B 
2. This appeal is directed against a judgment and order 
dated 4.6.2007 passed by the learned Single Judge of the High 
Court Gauhati in RS.A No. 169/2006 preferred by the appellant 
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herein, whereby and whereunder the judgment and order dated 
.....
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18.4.2006 passed by a Civil Judge, Senior Division, was 
affirmed. 
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3. The basic fact of the matter is not in dispute. 
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4. One Nakho Ram was the owner of the suit property. He 
D had two sons, namely, Rajiv Lochan Roy and Kamjit Roy. The 
property in the suit admeasured 16 Bighas 4 Kathas. 
,._ 
5. Rajiv Lochan executed two deeds of sale in 1982, in 
respect of about 4 Bighas of land, inter alia, contending that 
E he had half share in the said property. It is not in dispute that 
the family of Nakho Ram was governed by Dayabhaga School 
of Hindu Law. It is furthermore not in dispute that in 1982, Nakho 
Ram was alive and he expired only in the year 1990. Appellant, 
however, claimed that in terms of the aforementioned deeds 
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of sale executed by Rajiv Lochan in the year 1982, .he had 
remained in possession of the vested property since the date 
of purchase. 
6. It is, furthermore, not in dispute that in the year 1990, a 
proceeding under Section 107 as also Section 145 of the Code 
G of Criminal Procedure was initiated and therein, Respondent 
No.1 herein was put in possession of the property. 
... 
7. Respondent No.1 filed a suit in the year 1991 for 
declaration of his title, confirmation of possession as also a 
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JHARU RAM ROY v. RAMJIT ROY AND ORS. 
307 
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decree for setting aside two deeds of sale executed by Rajiv 
A 
Lochan in the year 1982. The said suit was dismissed by the 
learned Trial Judge, inter alia holding that the legal 
representatives of the proforma respondents having not been 
brought on record, the suit had abated. It was furthermore held 
that the defendant-appellant acquired title to the suit property 
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by adverse possession. The suit so far as it ·related to setting 
aside the aforementioned deeds of sale was, however, held to 
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be barred by limitation. 
8. The First Appellate Court, however, on an appeal c 
preferred by the contesting respondents, reversed the said 
findings of the Trial Court opining that as the defendant-
appellant was a party to the fraud perpetrated by Rajiv Lochan 
in so far as he was, at all material times, aware that in the year 
1990, Nakho Ram was alive and not dead, he cannot take 
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-f. 
benefit of the said deeds of sale and the same were void ab 
initio. The High Court, as noticed hereinbefore, has affirmed 
the said view. 
9. Learned counsel appearing on behalf of the appellant 
would contend that the High Court committed a serious error 
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in passing the impugned judgment in so far as it failed to take 
into consideration the provisions of Section 43 of the Transfer 
of Property Act, in terms whereof, having regard to the fact that 
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Rajiv Loc
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