Abdul Motaleb and others Vs. Md. Waziuddin and others, 3 LNJ (2014) 835

Case No: Civil Revision No. 3104 of 2004

Judge: Md. Abu Tariq,

Court: High Court Division,,

Advocate: Mr. Sadananda Rana,Mr. A. B. M. Matiar Rahman,,

Citation: 3 LNJ (2014) 835

Case Year: 2014

Appellant: Abdul Motaleb and others

Respondent: Md. Waziuddin and others

Subject: Doctrin of Estoppel,

Delivery Date: 2011-08-10

HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
Md. Abu Tariq, J.

Judgment on
10.08.2011
 
  Abdul Motaleb and others
…Defendant-appellant
Petitioners.
-Versus-
Md. Waziuddin and others
…Plaintiff-respondent.
Opposite-parties
Khodeza Khatun and 14 others
...Plaintiff-respondents
Opposite-parties.
 

Transfer of Property Act (IV of 1882)
Section 43
Where in the case of a sale an erroneous representation is made by the transferor that he is the full owner of the land sold, then if the transferor happens later to obtain the real title on that land, the previous transfer shall be operated on that title. When a person fraudulently or erroneously transfers certain land in which he had no title at the time of such transfer, but the transferor subsequently acquired title in the said land, the benefit of such acquisition shall go to the transferee on the principle of feeding the estoppel. . . . (8)

Evidence Act (I of 1872)
Section 115
In the present case, the plaintiff Bhomar Bepari intentionally and falsely lead the predecessor of the defendants, the predecessor of the defendant No.1-7 to believe that the land in question belonged to the plaintiff and thereby he induced the said Maniruddin Bepari to buy and pay for it. Subsequently, the plaintiff purchased .22 ½ decimals of land from his brother Hussainuddin Bepari and acquired title. Now the plaintiff must not be allowed to prove his want of title that at the time of the sale, he had no title in the land. . . . (8)

Specific Relief Act (I of 1877)
Section 18
The right of a person contracting to purchase or to take in lease property from a person who at the time of the contract does not own it but subsequently acquired it. . . . (9).

[Decisions referred: 7DLR (FC) 70, 55DLR (HC)257]
 
Mr. Sadananda Rana, Advocate
. . . For the petitioners.
Mr. A. B. M. Matiar Rahman, Advocate
. . . For the opposite parties. 

Civil Revision No. 3104 of 2004
 
JUDGMENT
Md. Abu Tariq, J:
 
This Rule is directed against the judgment and decree dated 11-04-2004 passed by the learned Joint District Judge, 2nd Court, Gazipur in Title Appeal No. 161 of 1996 affirming the judgment and decree dated 31-08-1996 passed by the learned Senior Assistant Judge, 3rd Court, Kapasia in Title Suit No. 430 of 1979 renumbered as Title Suit No. 37 of 1995 decreeing the suit in-part.

The case of the plaintiff, in short, is that the suit land originally belonged to Akabbor Dewan who gifted the same to his wife Anari Bibi and C.S. khatian was recorded in her name. Anari Bibi died leaving behind 03 daughters namely (1) Talukjan Bibi, (2) Kadarjan Bibi and (3) Anisa Bibi as heirs. Talukjan Bibi died leaving behind only daughter Samiron Nessa and this Samiron Nessa sold her entire share to Maniruddin Bapari (father of the defendant No.01-07). Kadarjan Bibi died leaving behind 03 sons namely (1) Bhomor Bapari (plaintiff), (2) Maniruddin Bapari (father of the defendant no 01-07) and (3) Hossainuddin Bapari and 02 daughters namely (1) Shohagi and (2) Nekjan Bibi. These two sisters (Shohagi and Nekjan Bibi) sold their entire share to Maniruddin Bapari.  The plaintiff sold his entire share to one Noimuddin and subsequently Noimuddin sold the same to Maniruddin Bapari by registered deed. Subsequently the plaintiff purchased .22 decimals of land from his brother Hossainuddin Bapari by registered deed dated 22-02-1953 in C.S plot No.110 and since purchase the plaintiff has been in possession to the suit land in esmali property with other co-shares. The plaintiff and Maniruddin Bapari were co-sharers in the suit land but S.A and R.S. khatian were recorded wrongly in the name of only Maniruddin Bapari excluding the name of the plaintiff.  The plaintiff requested the defendants (sons of Maniruddin Bapari) for amicable partition of the suit property but the defendants did not response to the request. Hence, the suit for partition.

The defendant-opposite party (1 to 7) contested the suit by filing written statements contending, inter alia, that the suit land originally belonged to Anari Bibi in C.S. record, who got the same from her husband Ekabbar Dewan. Anari Bibi died leaving behind 03 daughters namely (1) Talukjan Bibi, (2) Gafarjan Bibi and (3) Afroza Bibi. Talukjan died leaving behind one daughter Samiron Nesa and this Samiron Nesa sold her entire share to Maniruddin Bapari (father of the defendant no.01-07). Gafarjan Bibi died leaving behind 03 sons namely (1) Bhomor Bapari (plaintiff), (2) Maniruddin Bapari and (3) Hossainuddin Bepari and 02 daughters namely Shohagi and Nekjan. Afroza Bibi died leaving behind 02 sons namely, Basiruddin and Sana Ullah. Basiruddin died leaving behind only son Tasiruddin. Afroza Bibi died leaving behind only son Sanaulla and Sanaullah died leaving behind a son Samsuddin. Sumsuddin sold his entire share to Maniruddin Bepari (father of the defendant No.1-7). The plaintiff Bhomor Bapari inherited .25 decimals of land from his mother Gafarjan Bibi, but he sold .47 decimals of land by two registered deeds to the predecessor of the defendants and by this he sold .22 decimals beyond his title. In the transaction mentioned above Maniruddin Bapari acquired the total .46 ½ decimals of land and accordingly S.A and R.S record was prepared in his name. The plaintiff transferred his entire property to the predecessor of the defendants and the plaintiff or his heirs are not in possession to the suit land thus the plaintiff filed the suit claming false title and therefore the suit in liable to be dismissed.

The plaintiff and the contesting defendants examined P. Ws. and D. Ws. in support of their respective cases and both the parties adduced some documentary evidence.

The learned Assistant Judge, on consideration of the materials on record decreed the suit in part holding that the plaintiff is entitled to get .22½ decimals of land. Then the defendants preferred Title Appeal No.161 of 1996 before the learned District Judge, Gazipur and on transfer, the Title Appeal was heard by the learned Joint District Judge, Court No. 2, Gazipur who by the judgment and decree dated 11-04-2004 affirmed the judgment and decree of the trial Court. Then the petitioner moved this Revisional application before this Court and obtained the present Rule.  

Mr. Sadananda Rana, learned Advocate for the defendant-petitioner submits that the plaintiff did not own .46 ½ decimals of land in the C.S. Khatian No.18, but he erroneously transferred the land by Exhibit-B and C (registered deed) which was in excess of .23½ decimals of land. But subsequently the plaintiff purchased .22½ acres of land from his brother Hassainuddin Bepari by Exhibit-2 and by this, the wanting title of the plaintiff was cured and the defendants got title in the whole of .46½ decimals in C.S. Khatian No.18. The Courts below acted illegally in not finding the title of the defendants for entire .46½ decimals of land in their favour by invoking section 43 of the Transfer of Property Act. The learned Advocate further submits that both the Courts below failed to consider the effect of section 43 of the Transfer of property Act in the transactions and failed to construe the said section in arriving at correct finding that the defendant No.1 to 7 acquired title of the whole of .46½ acres of the land on the basis of Doctrine of feeding the grant by estoppel. In this connection, the learned Advocate referred the decision reported in 7 D.L.R. (F.C) 70 and 55 D.L.R. (HC) 257 and submitted that the decisions entirely covered the points of law and support clearly the claim of defendant No. 1 to 7 in the whole of .46½ decimals of land by dint of his purchase from the plaintiff. The Courts below erred in law in decreeing the suit in part without considering the Doctrine of feeding the grant by estoppel provided in section 43 of the Transfer of Property Act and section 115 of the Evidence Act.

Mr. A. B. M. Matiur Rahman, learned Advocate appearing for the opposite party submits that both the Courts below after observing all necessary documents, examining the P. Ws and D. Ws rightly passed the judgment and decree allowing partition partly for which there is no scope to interfere with the same and as such the Rule may be discharged.

I have heard the learned Advocates of both the parties and perused the revisional application and other materials on record. It appears that Bhomar Bepari, the predecessor of the plaintiffs and Maniruddin Bepari, predecessor of the contesting defendants No.1-7 are full brothers. Bhomar Bepari initially inherited .22½ decimals of land, but he sold .46½ decimals to his brother Maniruddin Bepari by registered deed (exhibit B and C). It was in excess of .23½ decimals of his transferable title. But subsequently Bhomar Bepari purchased .22½ decimals of land from his another brother Husainuddin Bepari by registered deed (exhibit-2) and by this purchase, he got wanting title to the land which he had transferred earlier without title. The provision of law in this regard provided in section 43 of the Transfer of Property Act as the principle of feeding the estoppel that where in the case of a sale an erroneous representation is made by the transferor that he is the full owner of the land sold, then if the transferor happens later to obtain the real title on that land, the previous transfer shall be operated on that title. In this regard section 115 of the Evidence Act is relevant that when a person fraudulently or erroneously transfers certain land in which he had no title at the time of such transfer, but the transferor subsequently acquired title in the said land, the benefit of such acquisition shall go to the transferee on the principle of feeding the estoppel. In the present case, the plaintiff Bhomar Bepari intentionally and falsely lead the predecessor of the defendants, the predecessor of the defendant No.1-7 to believe that the land in question belonged to the plaintiff and thereby he induced the said Maniruddin Bepari to buy and pay for it. Subsequently, the plaintiff purchased .22 ½ decimals of land from his brother Hussainuddin Bepari and acquired title. Now the plaintiff must not be allowed to prove his want of title that at the time of the sale, he had no title in the land.

The doctrine of feeding the grant by estoppel which appears as the solitary illustration of section 115 of the Evidence Act and in section 43 of the Transfer of Property Act is based on the ground that if a person, for value received, conveys what he does not own but subsequently he acquires the title which he conveyed, then against him similarly section 18 of the Specific Relief Act recognizes as enforceable at law the right of a person contracting to purchase or to take in lease property from a person who at the time of the contract does not own it but subsequently acquired it. In the decision reported in 55 D.L.R. (HC) 257 Omar Ali Shikh .Vs. Shamsul Alam Mridha and others held that where a person having partial interest in certain property, transfers a larger interest and subsequently acquired that interest, in that case the provision of section 43 of the Transfer of Property Act applies and the transferee is entitled to get interest so acquired.

Since Vromor Bepari received the value and conveyed the land to the predecessor of the defendants, what he did not own but subseq-uently he acquired title which he conveyed to the predecessor of the defendants can legally enforce the conveyance against the plaintiffs who where the heirs of Vhomar Bepari on the basis of Doctrine of feeding the grant by estoppel. The Courts below failed to consider this important point of law and committed error in law resulting in an error in the decision occasioning failure of justice.

In view of the discussion made above and the facts and circumstances, legal provision and the decision cited above I find merit in the Rule and the judgment and decree by the Courts below suffer from illegality and thus the Rule having merit succeeded.

In the result, the rule is made absolute.

The impugned judgment and decree dated 11-04-2004 passed by learned Joint District Judge, 2nd Court Gazipur in Title Appeal No.161 of 1996 affirming the judgment and decree dated 31-08-1996 passed by learned Senior Assistant Judge, 3rd Court, Kapasia, District Gazipur in Title Suit No. 37 of 1995 is hereby set aside and dismissed the suit.

There will be, however no order as to cost.

Send down the lower Court records expeditiously.

Ed.