Kartar Singh v Harbans Kaur (1994)

Jumma Masjid (case 04) is the case where s. 43 worked. Kartar Singh is the case where it failed, and it fails on both limbs at once. That is why the two must always be read together: an answer that gives only Jumma Masjid states the doctrine, an answer that gives both states its boundaries.

The opening words of para 7 are the best five-word summary of the doctrine on the syllabus: "Section 43 feeds its estoppel."

On 19 April 1961 Smt Harbans Kaur executed a sale deed in favour of Kartar Singh, alienating land on her own behalf and on behalf of her minor son, Kulwant Singh. The marginal note of the deed itself recorded her position:

"... 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."

No permission of the district court was obtained under the Guardians and Wards Act for the alienation of the minor's estate.

On attaining majority Kulwant Singh sued in 1975 and obtained a declaration that the sale of his share was void and did not bind him. Before taking delivery of possession he died. His mother, Harbans Kaur, being a Class I heir under s. 8 of the Hindu Succession Act 1956, then succeeded to his estate — that is to say, the very half share she had purported to sell in 1961 came to her afterwards.

Kartar Singh accordingly claimed the benefit of s. 43: the transferor had acquired the interest she had earlier professed to transfer. The High Court refused the relief. He appealed.

Whether a purchaser from a guardian, who bought a minor's share without the sanction required by law and with the guardian's limited capacity disclosed on the face of the deed, can claim s. 43 when the guardian afterwards inherits that share.

No. The appeals were dismissed.

"Firstly, that there is a fraudulent or erroneous representation made by the transferor to the transferee that he is authorised to transfer certain immovable property and in the purported exercise of authority, professed to transfer such property for consideration. Subsequently, 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."

Section 43 is a rule of estoppel, and estoppel by deed applies "only when the transferee has been misled". The marginal note in the deed disclosed that the mother was acting as guardian of her minor son. That put the purchaser on notice of her limited right. A transferee "must make all reasonable and diligent enquiries regarding the capacity of the transferor and the necessity to alienate the estate of the minor", and must satisfy himself that permission of the district court has been obtained, for "the estate of the minor cannot be alienated unless a specific permission in that behalf is obtained from the district court". None was obtained; no enquiry was made. On the Court's finding, the purchaser had not acted reasonably in taking the transfer, so the first limb was not satisfied.

The Court restated Jumma Masjid on precisely this point:

"It is only material to find out whether in fact the transferee has been misled. For the purpose of the section, it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and if the transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer."

This is the subtler half, and the more examinable. Section 43 operates only while the contract of transfer subsists. Once the sale of the minor's share had been declared void, "in the eye of law the contract is non est to the extent of the share of the minor from its inception". And "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."

So the after-acquired title had nothing to fasten on. Note the difference from Jumma Masjid, where the 1920 sale was not void but merely ineffective for want of title in the vendors, and remained on foot until the vendor acquired the title.

- The declaration operated only as to the minor's half share. The Court made clear that the decree had no effect on the half share the mother conveyed in her own right, and left open any independent cause of action the purchaser might have against her under the contract. - The Court's own text reads "Section 43 would then have no application and the transfer will fail under Section 6(1) of the Transfer of Property Act" in one place. Read s. 6(a); the reference earlier in the same paragraph, and in Jumma Masjid from which it is taken, is to s. 6(a). There is no s. 6(1).

1. Section 43 is an estoppel and protects only a transferee who was in fact misled. Where the deed itself discloses the transferor's limited capacity, the transferee is put on notice and must make reasonable and diligent enquiry; failing that he cannot say he acted on the representation. 2. Section 43 requires a subsisting contract of transfer. A transfer that is void from inception — here, an unauthorised alienation of a minor's estate — never subsists, and no after-acquired interest can feed it.