TMI Blog2007 (2) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, she was 'entitled to enjoy the fruits thereof only during her life time'. An appeal was preferred there against and the Appellate Court declared her to be the full owner in possession of the suit land. Indisputably, during pendency of the said suit, Harcharan Singh sold the said land to the respondent herein by a deed of sale dated 17.3.1982 and he had been given possession thereof. Another suit was filed by Udham Kaur. 3. The appellant, in the suit, inter alia, raised a plea that he was a bonafide purchaser for value, whereas the case of Udham Kaur was that as the properties were purchased during pendency of the suit, the same was hit by the 'doctrine of lis pendens, as envisaged under Section 52 of the Act. The said contention of the respondent was not accepted by the learned Trial Judge as also by the First Appellate Court holding that the transaction was hit by the doctrine of lis pendens. In the Second Appeal, one additional ground was taken by him, viz., having regard to the death of Udham Kaur, the properties devolved upon the appellant herein as also on Harcharan Singh in equal shares; and, thus, he should be declared to be the owner of the lands in term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion thereto, although the same could not have been lawfully done without his consent and he thereby induces others to do that from which they might have abstained - he could not question the legality of the act he had so sanctioned to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct. The ingredients of Section 41 of the Act are: 1) the transferor is the ostensible owner; 2) he is so by the consent, express or implied, of the real owner; 3) the transfer is for consideration; 4) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer. 7. Section 43, on the other hand, embodies a 'rule of feeding the estoppel' and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts thereupon and it is immaterial whether the transferor acts bona fide or fraudulently in making the representation. [See Jumma Masjid, Mercara v. Kodimaniandra Deviah AIR1962SC847 In order to get the benefit of the said provision, the conditions which must be satisfied are: (1) the contract of transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Harcharan Singh who had pleaded the mischief; ii) After the death of Udham Kaur, Harcharan Singh would be the natural heir of the half share of her property. 10. The learned Trial Judge and the First Appellate Court had decreed the suit of Udham Kaur only on the basis that she acquired the suit property during the pendency of the earlier litigation. Section 52 of the Act merely prohibits a transfer. It does not state that the same would result in an illegality. Only the purchaser during the pendency of a suit would be bound by the result of the litigation. The transaction, therefore, was not rendered void and/or of no effect. In Jumma Masjid, Mercara (supra), speaking for a four Judge, Bench, Aiyar, J. opined: Considering the scope of the section on its terms, it clearly applies whenever a person transfers property to which he has no title on a representation that he has a present and transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration. When these conditions are satisfied, the section enacts that if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntract must be a subsisting one at the time of the claim. A void contract is no contract in the eye of law and was never in existence so the second limb of Section 43 is not satisfied. The said finding was arrived at, inter alia, on the premise that Kulwant Singh was a minor on the date on which the property was transferred and in the marginal note of the sale deed specifically mentioned: ...that the land had been acquired by her and by her minor son by exercising the right of pre-emption and that she was executing the sale deed in respect of her own share and acting as guardian of her minor son so far as his share was concerned. It was held that under the Guardian and Wards Act, the estate of the minor could not have been alienated unless a specific permission in that behalf is obtained from the district court and admittedly, no such permission had been obtained. In that view of the matter, the sale of the half share of the interest of the minor son made by his mother was void. 13. We have noticed hereinbefore that the transaction was not void. It was not contrary to any provision of law. It was not hit by Section 23 of the Indian Contract Act. We, therefore, do not ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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