Fraudulent representation of title by transferor of property

Legally Speaking - Property and Housing Laws | By Solicitor Gajanan Khergamker

What is the relief by law with regard to a sale of property when it has been done fraudulently? We have purchased a property by a person who had fraudulently represented to ‘own’ the interest in the property but had no title at time of transfer.
 — K Vinesh, Loksahakar Nagar (Nasik)

The Transfer of Property Act’s Section 43 deals specifically with representation as to title made by transferor who had no title at the time of the transfer. It provides that the transfer shall fasten itself on the title which the transferor has made a fraudulent or erroneous representation to lay hold, at his option, of any interest which the transferor may subsequently acquire in the property, unless the right of any subsequent purchaser for value without notice is in effect.

The rule of estoppel comes into play here according to which a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. 

When transferee knows as a fact that the transferor did not possess the title which he represents he has, then he cannot avail the benefits of Section 43 of the Act and such transfer must fail under Section 6(a) of the Act, however fraudulent the act of the transferor might have been. 

The section provides an exception in favour of transferees for consideration in good faith and without notice of the rights under the prior transfer. But apart from that, the section is absolute and unqualified in its operation. 

It applies to all transfers which fulfil the condition prescribed and it makes no difference in its application, whether the defect of title in the transferor arises by reason of his having no interest whatever in the property, or of his interest therein being that of an expectant heir.

The principle recognised by the section is based partly on the common law doctrine of estoppel by deed and partly on the equitable doctrine that a man who promises more than he can perform must make good his contract when he acquires the power of performance. 

Hindu widow retains rights on remarriage 

Does a Hindu Widow lose her right to succeed following her remarriage? Please explain her position in law.
- Mala Sairaj, Vikhroli

Among the string of legislations created to right a sea of wrongs perpetuated by individuals or groups, the Hindu Widow’s Remarriage Act, 1856 was enacted to remove all legal obstacles to the marriage of Hindu widows.

While the Hindu Widow’s Remarriage Act, 1856 has not been repealed by the Hindu Succession Act, 1956, Section 4 of the Hindu Succession Act has an overriding effect and lands up abrogating the operation of the Hindu Widows Remarriage Act, 1856. 

Here, according to the Section 4 of the Hindu Succession Act, all existing laws (read Hindu Widow’s Remarriage Act, 1858) whether in the shape of enactments or otherwise, shall cease to apply to Hindus in so far as they are inconsistent with any of the provision contained in this Act.

In Thankam v. Rajan the Kerala High Court held that a wife’s remarriage cannot be a ground for her losing the right to succeed to her deceased husband’s property. 

In Kasturi Devi v. Deputy Directory of Consolidation, the court held that a mother cannot be divested of her interest in the deceased son’s property either on the ground of unchastity or remarriage.

In Velamuri Venkata Sivaprasad (Dead) by L.Rs. v. Kothuri Venjateshwadu (dead) by L.Rs & Ors., the Supreme Court held that “incidentally, Section 24 of the Succession Act of 1956 placed certain restrictions on certain specified widows in the event of there being a remarriage; while it is true that the section speaks of a pre-deceased son or son of a pre-deceased son but this is our view is a reflection of the Shastric Law on to the Statute.

The Act of 1956 in terms of Section 8 permits the widow of a Hindu male to inherit simultaneously with the son, daughter and other heirs specified in Class I of the Schedule. 

“As a matter of fact she takes her share absolutely and not the widow’s estate only in term of Section 14. 
Re-marriage of a widow stands legalised by reason of the incorporation of the Act or 1956 but on her remarriage she forfeits the right to obtain any benefit from out of her deceased husband’s estate and Section 2 of the Act of 1856 as noticed above is very specific that the estate in that event would pass on to the next heir of her deceased husband as if she were dead. 

“Incidentally, the Act of 1856 does not stand abrogated or repealed by the Succession Act of 1956 and it is only by Act 24 of 1983 that the Act stands repealed.”

This weekly legal column has been generated for The Draft News, Without Prejudice and In Good Faith. To book a Legal Consultation, Call 8080441593.

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