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1 - 10 of 10 (0.23 seconds)Section 52 in The Transfer Of Property Act, 1882 [Entire Act]
Section 74 in The Transfer Of Property Act, 1882 [Entire Act]
Faiyaz Husain Khan vs Munshi Prag Narain on 21 March, 1907
12. If the principle underlying Section 52 were based on the presumption of a constructive notice of the pendency of the suit by persons who take transfers from the parties thereto, the conclusion would be clear that the previous consent express for implied must be deemed to be revoked by the subsequent constructive notice of the pendency of the suit. Storey in his Equity Jurisprudence has put forward the proposition that the doctrine of lis pendens is based on some such constructive notice. I am of opinion that the remark of their Lordships of the Privy Council in the case of Faiyaz Husain Khan v. Prag Narain [1907] 29 All. 339, (at p. 345), precludes us from saying that the doctrine of lis pendens is founded upon any equitable principle of implied or constructive notice. All the same it is perfectly clear that when the Court is to record a finding whether a transfer takes place with the express or implied consent of the true owner it must take into account the fact that before the transfer the suit which is to establish the title of the principal owner against an ostensible owner was actually pending and the consent if it had existed before, had been definitely revoked. The institution of the suit is in itself a very strong and unmistakable proof of the fact that the consent did not subsist. I would not go so far as to say that a consent express or implied, once existing, can be revoked secretly without intimation to the parties who are acting upon that consent, but I have no doubt in my mind that the estoppel arising under Section 41 cannot be such as to override the imperative provisions of Section 52. Cases of an express consent given while a suit is pending or is intended to be filed may amount to an existing fraud which would alter the position of the parties completely. But in the absence of such fraud I do not see how Section 41 can override Section 52. Section 41 is a general section dealing with estoppel in the circumstances mentioned therein. Section 52 is a special section which applies to transfers during the pendency of a suit. In the presence of a special provision of law applicable to pending suits, the general provisions of estoppel contained in Section 41 would not apply. I have therefore no hesitation in holding that in spite of the finding of the District Judge that Samiullah Khan took the mortgage in good faith from an ostensible owner believing him to be the true owner and without actual knowledge of Shafiqullah's suit, the transfer taken by him is voidable at the option of Shafiqullah and the latter cannot be deprived of the benefit of Section 52 of any supposed estoppel operating against him. In this view the plaintiff's suit based on an enforcement of the mortgage taken pendente lite cannot be sustained.
Article 61 in Constitution of India [Constitution]
The Transfer Of Property Act, 1882
Section 69 in The Indian Contract Act, 1872 [Entire Act]
Woomesh Chandra Laskar vs Roma Nath Barman And Anr. on 25 March, 1909
Woomesh Chandra v. Roma Nath [1909] 1 I.C. 683, Sundaramayya v. Munnareddi Yanadamma [1911] 21 M.L.J. 180, Kandaswami Naicker v. Venkata Reddiar A.I.R. 1925 Mad.
Umrai Lal vs Musammat Rukmin Kuar And Ors. on 17 June, 1916
219 and Umrai Lal v. Rukmin Kuar [1916] 14 A.L.J. 953.
Chellamcherla Kalagayya Alias ... vs Mummareddi Yanadamma (Died) And Ors. on 20 December, 1910
Woomesh Chandra v. Roma Nath [1909] 1 I.C. 683, Sundaramayya v. Munnareddi Yanadamma [1911] 21 M.L.J. 180, Kandaswami Naicker v. Venkata Reddiar A.I.R. 1925 Mad.
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