NDLI: Mrs. Umadevi Nambiar Vs. Thamarasseri Roman Catholic Diocese Rep By Its Procurator De

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Transfer of Property Act 3 – Power of Attorney – Alienation of Property 1882: ss. 41
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Transfer of Property Act, 1882: ss. 41, 3 – Power of Attorney – Alienation of Property – In the instant case the appellant executed a general Power of Attorney in favour of her sister – After sometime the said power of attorney was cancelled by the appellant – But in the meantime the appellant’s sister executed four different documents in favour of third parties, assigning/releasing some properties – Thereafter the appellant filed suit against the assignees/releasees and the same was decreed but later the appellant came to know that the latter had sold the property to the respondent – Appellant filed another suit seeking partition and separate possession of her share in the suit property and the same was decreed – The respondent preferred appeal against the decision before the High Court and the same was allowed on the ground that the appellant failed to seek relief of setting aside the document of tranfer even though the appellant has constructive notice of such alienation u/s 3 of the Act and therefore the appellant was not entitled to a decree of partition and the fact that the transferee cannot be held to have excercised ‘reasonable care’ as required by the Proviso to s. 41 of the Act is of no help as the appellant has acquiescenced to such alienation by not seeking the relief of setting aside the document of transfer – Hence instant appeal – Held: It is a fundamental principle of law of transfer of property that ‘no one can confer a better title than what he himself has’ (Nemo dat quod non habet) – There was concurrent finding of both the trial court and the High Court that the respondent did not excercise reasonable care as required by the Proviso to s. 41, which if they had excercised they could have easily found out that there was no power of sale with the holder of the power of attorney – Since the drafting of power of attorney was plain and simple by which the holder was empowered to lease out the property, power to execute document offering property as security for any borrowal and there was no mention of any express power to sell and therefore the alienation made the appellant’s sister (Holder of Power of Attorney) was illegal and as the vendors of the respondent did not have any title they had nothing to convey – High Court order is set aside and order of trial court is restored. Transfer of Property Act, 1882 – s. 3, Explanation I and II – Interpreatation Clause – Constructive Notice – Legal Position – Two things are important for the interpretation clause to come into effect so far as ‘constructive notice’ is concerned (i) wilful abstention from an enquiry or search; and (ii) gross negligence – Explanation I and Explanation II under the interpretation clause are applicable to the person acquiring an immovable property, the transaction relating to which is required by law to be effected by a registered instrument. Suit of Partition – Cancellation of alienation – When necessary – Legal Position – It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations – There are several reasons behind this principle – One is that the alienees as well as the co- sharer are still entitled to sustain the alienation to the extent of the share of the co-sharer – It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner.
Judge	Hon'ble Mr. Justice V. Ramasubramanian
Neutral Citation	2022 INSC 381
Petitioner	Mrs. Umadevi Nambiar
Respondent	Thamarasseri Roman Catholic Diocese Rep By Its Procurator De
SCR	[2022] 5 S.C.R. 579
Judgement Date	2022-04-01
Case Number	2592

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Mrs. Umadevi Nambiar Vs. Thamarasseri Roman Catholic Diocese Rep By Its Procurator De

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