Musammat Khaleda Rajia Khan V. Mahtbuddin Chow. 30 DLR (AD) 27

Fact in Brief: 

A suit was instituted by the plaintifft for partition of a piece of land claiming a share therein, on the allegation that the said land belonged to a person who died leaving a son and three daughters of whom Abdur Rashid and two of his two sisters purported to sell the entire acre of land by a registered deed of Kushor Pal by Kabala sold .32 acre out of the land purchased by him to the defendants and subsequently, by .08 acre of the said land to one whom the plaintiff by a kabala purchased the said land. Before the said purchase made by plaintiff, The petitioner contested that the defendants purchased in the benami of defendants from the heirs by a registered kabala. This petition for special leave to appeal is against a Judgment of a Bench of the High Court Division dismissing a second appeal preferred against a judgment of reversal.

Issues:

Whether the transfer of immovable property shall be affected by a person who had no such right at the time of transfer.

Whether a transfer of an immovable  by a co-owners  takes effect proportionately to their shares

Rule of Law:

Section 43 read with section 47 of the Transfer of Property Act 1882.

Application to the fact:

The plaintiff was not entitled to claim the entire .08 acre of land on the principle of estoppels as incorporated in section 43 of the transfer of property Act in view of the fact that the vendors acquired interest by virtue of the deeds having regard to the provisions of the section 47 of the TP Act.

A transfer by a co-owner of an immovable property belonging to them takes effects proportionately to the extent of their respective shares is not attracted in the case of the purported transfer of .08 acre by the disputed kabala as it was not a transfer of property by its co-owners but no right therein. The principle deals with section 47 of the Transfer of Property Act 1882.

According to section 43 of the act , the transfer made by Abdur Rashid along with entire interest on.08 acre of land, which was subsequently acquired by Abdur Rashid from the heirs of them. Abdur Rashid and their heirs wrongly represented in the Kabala that they were competent to transfer entire land. Then Kushor Pashi had also executed a Nasabi deed relinquishing his purchased interest.

Decision:

The  court  in holding that the provision of the section43 of the Transfer of the property Act applied in the case that Abdur Rashid is purchaser to the benefit of Kushor Pashi. So the petition is dismissed.

Conclusion:

A transfer  made by the co-owners of an immovable property belonging to him  takes effect proportionately to the extent of the heirs respective shares and is not attracted the transfer of the land as it was not a transfer of a property by its co-owners, but persons who at the time of such transfer has no right therein.