2007 SCMR 1120 (PLP)

NASIR-UL-MULK, J.

This appeal by leave of the Court arises from a suit filed by. the appellants on 12-11-1983 in the Court of Civil Judge, Jhang against Muhammad Ali son of Wali Muhammad, seeking declaration that they are owners in possession of the disputed land, measuring 58 Kanals, 7 Marlas. The plaintiffs had, by a registered sale-deed dated 15-12-1976, purchased from the defendant 169 Kanals, 16 Marlas for Rs.25,000, However, later it was found from the Revenue Record that the defendant owned only 87 Kanals, 12 Marlas. The mutation of the sale remained unattested when in the year 1981 the defendant's brother, Khurshid, died issueless, from whom the defendant inherited the 58 Kanals, 7 Marlas. After the transfer of this additional land to the defendant the plaintiffs approached the Revenue officials seeking transfer in their names, the 87 Kanals, 12 Marlas as well as the additional land of 58 Kanals, 7 Marlas. However, only 87 Kanals, 12 Marlas, originally owned by Muhammad Ali at the time of the sale was attested in favour of the plaintiffs and the additional land inherited by the defendant from his brother was not transferred to the plaintiffs on the ground that defendant had' become owner of the property subsequent to the sale-deed. It was in these circumstances, that the appellants/plaintiffs filed the present suit.

2. The trial Court on 24-11-1987 decreed the appellants' suit and the Additional District Judge, upheld the decree in appeal on 17-3-1988. The Honourable Judge in Chambers of the Lahore High Court, in exercise of revisional jurisdiction, set aside the judgments and decree of the two Courts and dismissed the appellants suit on the ground that the two Courts had misapplied the provisions of section 43 of the Transfer of Property Act as the defendant did not misrepresent the quantum of his ownership as his misconception was based upon documents.

3. Leave was granted to the appellants by this Court on 2-9-2004 essentially to consider the application of section 43 of the Transfer of Property Act to the facts of the case. Since the contentions of the learned counsel appearing for the parties were also restricted to the applicability of section 43, it is appropriate to reproduce the same which runs as under:-- "Where a person fraudulently or erroneously presents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."

4. Mr. Gul Zarin Kiani, learned Advocate Supreme Court entered appearance for the appellants and Mr. Tafazul Hussain Rizvi, learned Advocate Supreme Court appeared for the respondents, the legal heirs of Muhammad Ali defendant, who had in the meanwhile passed away. The learned counsel appearing for the appellants contended that the Honourable Judge in Chamber in the High Court had erred by holding that the plaintiffs were not entitled to the benefit of section 43 as there was no misrepresentation by the defendant. The learned counsel pointed out that the said statutory provision was not restricted to fraudulent representation but included erroneous representation. He further referred to the contents of the registered sale-deed, in which the defendant had in clear words declared that he was owner of 169 Kanals and 16 Marlas of land by inheritance vide mutation dated 14-2-1976 and that he was selling the same to the appellants, coupled with an undertaking that he would be responsible for any defect in the defendant's title to the land. The learned counsel maintained that equity also favoured the appellants as they had paid the price of 169 Kanals, 16 Marlas whereas they received only half of that area. To support his contentions, the learned counsel placed reliance upon Krishnadhan Chandra v. Kanailal Ghosp and another AIR 1973 Cal. 422, Mohan Singh and others v. Pandit Sewa Ram and others AIR 1924 Oudh 209, Ganga Prasad v. Mt. Raghubansa AIR 1937 Oudh 127, Ramaswamy Pattamali and others v. Lakshmi and others AIR 1962 Kerala 313, Mst. Fazal Bibi and others v. Settlement Commissioner and others PLD 1983 SC 163, Shamoon and others v. Ahmad and others 1986 SCMR 888 and Ziauddin Rafi v. Muhammad Khan and others PLD 1962 (W.P.) Lah. 321.

5. In response to the above contentions, Mr. Tafazul Hussain Rizvi, argued that there was no allegation of fraud made by the appellants in the plaint against the defendants/vendees. That upon discovery by the appellants that defendants' ownership was limited to 87 Kanals, 12 Marlas, the appropriate remedy for the appellants was to file a suit for damages. By not taking that course for five long years, they were content with the land already transferred to them. Referring to the provision of section 43, the learned counsel argued that 58 Kanals, 7 Marlas inherited by Muhammad Ali from his brother was different property than the one sold to the appellants and, therefore, would not fall within the scope of "such property" mentioned in section 43.

6. The defendant had admitted the execution of the registered sale-deed dated 15-12-1976. Undoubtedly, an area of 169 Kanals, 16 Marlas was sold to the appellants through the deed for Rs,25,

000. There is no dispute that the defendant actually owned only 87 Kanals, 12 Marlas on the date on which the sale-deed was executed. In his written statement, the defendant had given a vague and unconvincing explanation of the difference in the area of the land mentioned in the sale-deed and that actually owned by him. He stated that the stamp papers for the sale-deed were purchased by the appellants who themselves had incorporated the area of the land sold and that in any case, the appellants were fully aware of the actual area owned by defendant. hi the memorandum of the civil revision filed by the defendant before the High Court, another explanation was put forth, that the defendant's mother, a refugee from India, was allotted land measuring 479 Kanals, 5 Marlas vide RL-II No.117/1 and after her death 169 Kanals and 16 Marlas was sanctioned in favour of the defendant through inheritance mutation, which he sold to the appellants on 15-12-1976. The defendant further explained that in the village where the land is situated, land in excess of that available was allotted to the refugees, thus, necessitating proportionate reduction in the allotment already made and consequently during the consolidation, the defendant's share was accordingly reduced. However, from available record it is not clear as to how and why the defendant's share was reduced. This controversy however, would not be of much relevance for the determination of questions before us as the plaintiffs had not alleged fraud by the defendant and nor was it so urged by their counsel and thus, we proceed on the premise that the defendant at the time of entering the sale transaction with the appellants was unaware of his actual holding.

7. The learned Judge in chambers had non-suited the appellants on the sole ground that the defendant, had, on the strength of the documents, RL-II, No.117/1 and inheritance Mutation No.1141, believed that he owned 169 Kanals and 16 Marlas, which he sold to the appellants and thus, there was no misrepresentation by him so as to entitle the appellants the benefit of section 43 of the Transfer of Property Act. The RL-II shows allotment of 479 Kanals, 5 Marlas to Mst. Noor Bibi, upon whose death, Muhammad Ali inherited 169 Kanals, 16 Marlas 2/5 share). Thus, we can grant the defendant the benefit of doubt that he was not aware that his holding had been reduced to 87 Kanals, 12 Marlas. Section 43 of the Transfer of Property Act comes into play when the representation made by the transferor is either fraudulent or erroneous. The erroneous representation may be innocent and would cover a situation where the transferee is not even aware of lack of his authority to transfer the immovable property. The two words "fraudulently" and "erroneously" have been used in the alternative and the latter is not to be confused with misrepresentation. Misrepresentation is to give a misleading account of facts, often intentionally whereas "erroneously" means mistakenly. The use of the two words "fraudulently" and "erroneously" is to cover deliberate as well as mistaken incorrect presentation. In this context, one may refer to a judgment from the Allahabad High Court in the case of Jagat Narain v. Laljee AIR 1965 All. 504 where it was held "there is nothing in the section 43 requiring that the transferor should have been aware of the erroneousness of the representation made by him. The transferor might have honestly believed in the truth of the representation that he was authorized to transfer the property which he professed to transfer, but that would not render the section inapplicable". The Court did however, go on to hold that a transferee aware of the absence of the transferable interest would be disentitled to the benefit of section

43. Though a contrary view has been expressed in the case of Ramaswamy Pattamali and others v. Lakshmi and others AIR 1962 Kerala 313, that knowledge of the transferee of the defect in the title of the transferor would, not affect the applicability of section 43, even if the view in Jagat Narain's case is accepted as correct, the defendant in the present case had not been able to substantiate his averment in the plaint of the appellants knowledge of the defendant's actual holding. To the contrary, the document produced in the Court show that even the defendant was most likely unaware that his holding was not 169 Kanals, 12 Marlas. The High Court proceeded on the wrong premises that the transferee of property seeking benefit of section 43D must establish misrepresentation by transferor. Since in the present case; the defendant was unaware of the true extent of his ownership, he was suffering from a mistake of fact and his presentation in the sale-deed that he owned 169 Kanals, 12 Marlas was erroneous. The finding of the High Court that the appellants could not successfully press into service section 43 of the Transfer of Property Act as there was no misrepresentation by the defendant can therefore, not be sustained and is accordingly reversed.

8. We next attend to the other arguments raised on behalf of the defendant that the suit property inherited by the defendant from his brother was not the same property, for the purpose of section 43 of the Transfer of Property Act, which was sold vide the registered deed. This question has not been addressed by the High Court, nor it seems was raised before, or discussed by, the other two Courts. However, since it has been urged before us, we will attend to it. It may be recalled that the mother of the defendant, Mst. Noor Bibi, was originally allotted the entire land, which was inherited, upon her death, by the defendant (2/5 share), his brother, Khurshid (2/5 share) and their sister (1/5 share). The suit property, inherited by the defendant upon the death of Khurshid as well as the property inherited by him from his mother, and then sold to the appellants, was part and parcel of the same property that was originally allotted to his mother. Even in the recitals of the sale-deed of 15-12-1976, the defendant had referred to his 2/5 share in the total holding allotted to his mother vide RL-II, No.117/1. On this point guidance can be sought from a judgment of the Privy Council in Jan Muhammad v. Karm Chand PLD 1947 Privy Council 62 where in the context of section 43 of the Transfer of Property Act, it was held that where a widow, who was entitled only to a share in the property of deceased husband, sold the entire property on the representation that she was the sole owner thereof, the transferee could claim the property inherited subsequently, by the widow upon the death of her daughter. Since the property sold by the defendant and the suit property was part of the same property originally allotted to their mother, the case would be covered by the provisions of section

43. In this context, there is another aspect of the case. The total allotment to the mother of the defendant was reduced from 479 Kanals, 5 Marlas to 218 Kanals. The defendant was thus, selling 169 Kanals out of 218 Kanals, out of which he was entitled to sell only 87 Kanals, 12 Marlas whereas he had no authority to sell the remaining 82 Kanals, 4 Marlas. The part of the property unauthorizedly sold by the defendant included the share of the defendant's brother, Khurshid. Thus, the defendant acquired interest in the property within the meaning of section 43 of the Transfer of Property Act which he had initially no authority to sell. The contention of the learned counsel for the respondents that the property inherited by the defendant from his brother could not be subjected to the provision of section 43 of the Transfer of Property Act .is therefore, without substance.

9. Additionally, equity also favours the appellants, who undisputedly had paid the price for 169 Kanals, 16 Marlas of land when he was transferred only 87 Kanals, 12 Marlas, though even the transfer of the suit-land of 58 Kanals, 7 Marlas would also not be sufficient to make up the deficiency.

10. For the reasons aforestated, we are inclined to agree with the concurrent findings of the trial and the Appellate Courts and consequently by allowing this appeal, the impugned judgment of the High Court is set aside and that of the trial Court restored with no order as to costs. S.A.K./R-6/SC Appeal accepted.