KARTAR SINGH V. HARBANS KAUR, (1994) 4 SCC 730
FACTS
A Hindu woman executed a sale deed of the lands belonging to her minor son in 1961.he son on attaining majority filed a suit for a declaration that this sale was not binding on him, and was void, which was granted.But before the son could take the possession of the property, he died, and the mother as a class I heir succeeded to the property.The transferee, X, claimed the benefit of Section 43.
ISSUE
- Whether X is entitled to the interest acquired by the mother by operation of S. 43 of TPA, 1882?
HELD
- The court held that for the application of s. 43, two conditions must be satisfied.
- First, a fraudulent or erroneous representation made by the transferor to the transferee that he is authorised to transfer certain immovable property.
- Secondly, when it is discovered that the transferor acquired an interest in the transferred property, at the option of the transferee, he is entitled to get the restitution of interest in property got by the transferor, provided the transferor acquires such interest in the property during which contract of transfer must subsist.
- It is settled law that the transferee must take all reasonable and diligent enquiries regarding the capacity of the transferor and necessity to alienate the estate of minor.
- Under the Guardians and Wards Act, the estate of the minor cannot be alienated unless a specific permission in that behalf was obtained from the court.
- As the transferor failed to properly enquire, the first limb of section 43 is not satisfied.
- The second requirement of section 43 that the contract should be subsisting at the time of the claim is also not satisfied in the present case. Here, at the inception, the contract was void or non est, because the transferee ought to have known about the incompetence of the transferor, this void contract cannot be deemed to be subsisting at the time when the mother due to inheritance acquired competency.
- If by making some inquiries or verifying certain facts, as a normal reasonable prudent person, the transferee could have detected the incompetency of the transferor to transfer the property, but he failed to do that, law would impute constructive notice of the same on him, and as the consequences of actual and constructive notice are identical, in case of imputation of constructive notice also, the plea of misrepresentation, erroneous or fraudulent would not be accepted by the court.
- In such a case, Section 6 (a) would be applicable under which this transfer would be considered void, and Section 43 will not apply.