Case Summary
| Citation | Jumma Masjid, Mercara v. Kodimaniandra DeviahAIR 1962 SC 847 : 1962 Supp (1) SCR 554 |
| Keywords | Sec 6(a), 43 TPA. Feeding the grant by estoppel |
| Facts | A Hindu joint family consisted of three brothers Br 1, Br 2, Br 3 and one sister Si. Brothers one died unmarried, and the other two died one after another, leaving behind their widows W 2 and W 3, but no children. Sister, who had three grandsons A, B and C, who were the reversioners to their property, they would get the property but on the death of the two widows. Till the death of the widows, the interest that they had in the property was a mere spes successionis, that according to s. 6(a) is untransferable. However, they represented to the transferee that this property belonged to the joint family and after the death of W 2, it devolved on them as reversioners, and hence they were competent to transfer the same. They did not disclose the fact that W 3 was still alive. W 3 resisted the suit of transferee for possession of property on the ground that till she was alive, and no one else has a right to possess the property. W 3 died later, and the transferee applied before the revenue authorities for transferring the patta for the property standing in the name of W 3 to his name on the strength of the sale deed executed by the reversioners. At this time, Jumma Masjid intervened and contended that first, the whole of the properties vested in them on the strength of a gift deed executed by W 3 in their favour, and secondly, they alleged that one of the reversioners, A, had relinquished his share in the property in their favour for a consideration of R s. 300. The contention of Jumma Masjid was that s. 43 must be read as subject to the provisions of s. 6(a), that specifically prohibits the transfer of spes successions and therefore s. 43 should apply only in cases other than those covered under s. 6(a). |
| Issues | Whether a transfer of property, in return for some consideration made by a person who represents that he has a present and transferable interest in that property, while in reality he possess only a spec succession, is within the protection of sec 43 tpa? |
| Contentions | |
| Law Points | Ganpathi (transferee) contended that he had no knowledge about the seller’s ownership title over the property as they misled him by claiming to be the actual owner. However, after the death of W3, they gained actual possession of it, and now the rule of estoppel applies, entitling him to get the title of the property. The Apex Court observed that Sections 6(a) and 43 are two different subjects: Section 6(a) deals with certain interests in property and prohibits the interest, but Section 43 deals with representations as to title made by a transferor who had no title at the time of transfer. Section 6(a) enacts a rule of substantive law, whereas Section 43 enacts a rule of estoppel, which is one of evidence. The court observed that the claim of Ganpathi is valid. |
| Judgement | Court held that when a person transfers property representing himself of having present interest in that property, whereas he has only spes successionis, then transferee will get benefit of sec 43, if he has represent himself and transfer for consideration. |
| Ratio Decidendi & Case Authority |
Full Case Details
VENKATARAMA AIYAR, J. – This is an appeal against the Judgment of the High Court of
Madras, dismissing the suit filed by the appellant, as Muthavalli of the Jumma Masjid, Mercara, for
possession of a half-share in the properties specified in the plaint. The facts are not in dispute. There
was a joint family consisting of three brothers, Santhappa, Nanjundappa and Basappa. Of these,
Santhappa died unmarried, Basappa died in 1901, leaving behind a widow Gangamma, and
Nanjundappa died in 1907 leaving him surviving his widow Ammakka, who succeeded to all the
family properties as his heir. On the death of Ammakka, which took place in 1910, the estate
devolved on Basappa, Mallappa and Santhappa, the sister’s grandsons of Nanjundappa as his next
reversioners. The relationship of the parties is shown in the following genealogical table.
2. On August 5, 1900, Nanjundappa and Basappa executed a usufructuary mortgage over the
properties which form the subject-matter of this litigation, and one Appanna Shetty, having obtained
an assignment thereof, filed a suit to enforce it, OS 9 of 1903, in the court of the Subordinate Judge,
Coorg. That ended in a compromise decree, which provided that Appanna Shetty was to enjoy the
usufruct from the hypotheca till August 1920, in full satisfaction of all his claims under the mortgage,
and that the properties were thereafter to revert to the family of the mortgagors. By a sale deed dated
November 18, 1920, Ex. III, the three reversioners, Basappa, Mallappa and Santhappa, sold the suit
properties to one Ganapathi, under whom the respondents claim, for a consideration of Rs 2000.
Therein the vendors recite that the properties in question belonged to the joint family of Nanjundappa
and his brother Basappa, that on the death of Nanjundappa, Ammaka inherited them as his widow,
and on her death, they had devolved on themselves the next reversioners of the last male owner. On
March 12, 1921, the vendor executed another deed, Ex. IV, by which Ex. III was rectified by
inclusion of certain items of properties, which were stated to have been left out by oversight. It is on
these documents that the title of the respondents rests.
3. On the strength of these two deeds, Ganapathi sued to recover possession of the properties
comprised therein. The suit was contested by Gangamma, who claimed that the properties in question
were the self-acquisitions of her husband Basappa, and that she, as his heir, was entitled to them. The
Subordinate Judge of Coorg who tried the suit accepted this contention, and his finding was affirmed
by the District Judge on appeal, and by the Judicial Commissioner in second appeal. But before the
second appeal was finally disposed of, Gangamma died on February 17, 1933. Thereupon Ganapathi
applied to the Revenue Authorities to transfer the patta for the lands standing in the name of
Gangamma to his own name, in accordance with the sale deed Ex. III. The appellant intervened in
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these proceedings and claimed that the Jumma Masjid, Mercara, had become entitled to the
properties held by Gangamma, firstly, under a Sadakah or gift alleged to have been made by her on
September 5, 1932, and, secondly, under a deed of release executed on March 3, 1933, by Santhappa,
one of the reversioners, relinquishing his half-share in the properties to the mosque for a consideration
of Rs 300. By an order dated September 9, 1933, Ex. II, the Revenue Authorities declined to accept
the title of the appellant and directed that the name of Ganapathi should be entered as the owner of the
properties. Pursuant to this order, Ganapathi got into possession of the properties.
4. The suit out of which the present appeal arises was instituted by the appellant on January 2,
1945, for recovery of a half-share in the properties that had been held by Gangamma and for mesne
profits. In the plaint, the title of the appellant to the properties is based both on the gift which
Gangamma is alleged to have made on September 5, 1932, and on the release deed executed by
Santhappa, the reversioner, on March 3, 1933. With reference to the title put forward by the
respondents on the basis of Ex. III and Ex. IV, the claim made in the plaint is that as the vendors had
only a spes successionis in the properties during the lifetime of Gangamma. the transfer was void and
conferred no title. The defence of the respondents to the suit was that as Santhappa had sold the
properties to Ganapathi on a representation that he had become entitled to them as reversioner of
Nanjundappa, on the death of Ammakka in 1910, he was estopped from asserting that they were in
fact the self-acquisitions of Basappa, and that he had, in consequence, no title at the dates of Ex. III
and Ex. IV. The appellant, it was contended, could, therefore, get no title as against them under the
release deed, Ex. A, dated March 3, 1933.
5. The District Judge of Coorg who heard the action held that the alleged gift by Gangamma on
September 5, 1932, had not been established, and as this ground of title was abandoned by the
appellant in the High Court, no further notice will be taken of it. Dealing next with the title claimed by
the appellant under the release deed, Ex. A, executed by Santhappa, the District Judge held that as
Ganapathi had purchased the properties under Ex. III on the faith of the representation contained
therein that the vendors had become entitled to them on the death of Ammakka in 1910, he acquired a
good title under Section 43 of the Transfer of Property Act, and that Ex. A could not prevail as against
it. He accordingly dismissed the suit. The plaintiff took the matter in appeal to the High Court,
Madras, and in view of the conflict of authorities on the question in that Court, the case was referred
for the decision of a Full Bench. The learned Judges who heard the reference agreed with the court
below that the purchaser under Ex. III had, in taking the sale, acted on the representation as to title
contained therein, and held that as the sale by the vendors was of properties in which they claimed a
present interest and not of a mere right to succeed in future, Section 43 of the Transfer of Property Act
applied, and the sale became operative when the vendors acquired title to the properties on the death
of Gangamma on February 17, 1933. In the result, the appeal was dismissed. The appellant then
applied for leave to appeal to this Court under Article 133(l)(c), and the same was granted by the High
Court of Mysore to which the matter had become transferred under Section 4 of Act 72 of 1952.
6. The sole point for determination in this appeal is, whether a transfer of property for
consideration made by a person who represents that he has a present and transferable interest therein,
while he possesses, in fact, only a spes successionis, is within the protection of Section 43 of the
Transfer of Properly Act. If it is, then on the facts found by the courts below, the title of the
respondents under Ex. III and Ex. IV must prevail over that of the appellant under Ex. A. If it is not,
then the appellant succeeds on the basis of Ex. A. Considering the scope of the section on its terms, it
clearly applies whenever a person transfers property to which he has no title on a representation that
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he has a present and transferable interest therein, and acting on that representation, the transfree
takes a transfer for consideration. When these conditions are satisfied, the section enacts that if the
transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has
not in the meantime been thrown up or cancelled and is subsisting. There is 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 conditions prescribed therein, and it makes no difference in its application, whether the
defect of title in the transferor arises by reason of his having no interest whatsoever in the property, or
of his interest therein being that of an expectant heir.
8. The contention on behalf of the appellant is that Section 43 must be read subject to Section 6(a)
of the Transfer of Property Act which enacts that: “The chance of an heir apparent succeeding to an
estate, the chance of a relation obtaining a legacy on the death of a kinsman or any other mere
possibility of a like nature, cannot be transferred”. The argument is that if Section 43 is to be
interpreted as having application to cases of what are in fact transfers of spes successionis, that will
have the effect of nullifying Section 6 (a), and that therefore it would be proper to construe Section 43
as limited to cases of transfers other then those falling within Section 6(a). In effect, this argument
involves importing into the section a new exception to the following effect: “Nothing in this section
shall operate to confer on the transferee any title, if the transferor had at the date of the transfer an
interest of the kind mentioned in Section 6(a)”. If we accede to this contention, we will not be
construing Section 43, but rewriting it. “We are not entitled”, observed Lord Loreburn L.C., in
Vickers v. Evans [(1910) 79 LJ KB 954] “to read words into an Act of Parliament unless clear reason
for it is to be found within the four corners of the Act itself”.
9. Now the compelling reason urged by the appellant for reading a further exception in Section 43
is that if it is construed as applicable to transfers by persons who have only spes successionis at the
date of transfer, it would have the effect of nullifying Section 6(a). But Section 6(a) and Section 43
relate to two different subjects, and there is no necessary conflict between them. Section 6(a) deals
with certain kinds of interests in property mentioned therein, and prohibits a transfer simpliciter of
those interests. Section 43 deals with representations as to title made by a transferor who had no title
at the time of transfer, and provides that the transfer shall fasten itself on the title which the transferor
subsequently acquires. Section 6(a) enacts a rule of substantive law, while Section 43 enacts a rule of
estoppel which is one of evidence. The two provisions operate on different fields, and under different
conditions, and we see no ground for reading a conflict between them or for cutting down the ambit of
the one by reference to the other. In our opinion, both of them can be given full effect on their own
terms, in their respective spheres. To hold that transfers by persons who have only a spes successionis
at the date of transfer are not within the protection afforded by Section 43 would destroy its utility to a
large extent.
10. It is also contended that as under the law there can be no estoppel against a statute, transfers
which are prohibited by Section 6(a) could not be held to be protected by Section 43. There would
have been considerable force in this argument if the question fell to be decided solely on the terms of
Section 6(a). Rules of estoppel are not to be resorted to for defeating or circumventing prohibitions
enacted by statutes on grounds of public policy. But here the matter does not rest only on Section
6(a). We have, in addition, Section 43, which enacts a special provision for the protection of
transferees for consideration from persons who represent that they have a present title, which, in fact,
they have not. And the point for decision is simply whether on the facts the respondents are entitled to
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the benefit of this section. If they are, as found by the court below, then the plea of estoppel raised
by them on the terms of the section is one pleaded under, and not against the statute.
12. So far we have discussed the question on the language of the section and on the principles
applicable thereto. There is an illustration appended to Section 43, and we have deferred consideration
thereof to the last as there has been a controversy as to how far it is admissible in construing the
section. It is as follows:
“A, a Hindu, who has separated from his father B, sells to C three fields, X, Y and Z,
representing that A is authorized to transfer the same. Of these fields Z does not belong to A,
it having been retained by B on the partition; but on B dying, A as heir obtains Z. C, not
having rescinded the contract of sale, may require A to deliver Z to him”.
In this illustration, when A sold the field Z to C, he had only a spes successionis. But he having
subsequently inherited it, C became entitled to it. This would appear to conclude the question against
the appellant. But it is argued that the illustration is repugnant to the section and must be rejected. If
the language of the section clearly excluded from its purview transfers in which the transferor had
only such interest as is specified in Section 6(a), then it would undoubtedly not be legitimate to use
the illustration to enlarge it. But far from being restricted in its scope as contended for by the
appellant, the section is, in our view, general in its terms and of sufficient amplitude to take in the
class of transfers now in question. It is not to be readily assumed that an illustration to a section is
repugnant to it and rejected. Reference may, in this connection, be made to the following observations
of the Judicial Committee in Mahomed Syedol Ariffin v. Yeoh Ooi Gark [AIR 1916 PC 242] as to the
value to be given to illustrations appended to a section, in ascertaining its true scope:
“It is the duty of a court of law to accept, if that can be done, the illustrations given as
being both of relevance and value in the construction of the text. The illustrations should in no
case be rejected because they do not square with ideas possibly derived from another system
of jurisprudence as to the law with which they or the sections deal. And it would require a
very special case to warrant their rejection on the ground of their assumed repugnancy to the
sections themselves. It would be the very last resort of construction to make any such
assumption. The great usefulness of the illustrations, which have, although not part of the
sections, been expressly furnished by the legislature as helpful in the working and application
of the statute, should not be thus impaired”.
13. We shall now proceed to consider the more important cases wherein the present question has
been considered. One of the earliest of them is the decision of the Madras High Court in Alamanaya
Kunigari Nabi Sab v. Murukuti Papiah [AIR 1915 Mad 972]. That arose out of a suit to enforce a
mortgage executed by the son over properties belonging to the father, while he was alive. The father
died pending the suit, and the properties devolved on the son as his heir. The point for decision was
whether the mortgagee could claim the protection of Section 43 of the Transfer of Property Act. The
argument against it was that “Section 43 should not be so construed as to nullify Section 6(a) of the
Transfer of Property Act, by validating a transfer initially void under Section 6(a)”. In rejecting this
contention, the court observed:
“This argument, however, neglects the distinction between purporting to transfer ‘the
chance of an heir-apparent’, and ‘erroneously representing that he (the transferor) is
authorised to transfer certain immovable property’. It is the latter course that was followed in
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the present case. It was represented to the transferee that the transferor was in praesenti entitled
to and thus authorise to transfer the property”. (p.736)
On this reasoning, if a transfer is statedly of an interest of the character mentioned in Section 6(a),
it would be void, whereas, if it purports to be of an interest in praesenti, it is within the protection
afforded by Section 43.
14. Then we come to the decision in The Official Assignee, Madras v. Sampath Naidu [AIR
1933 Mad 795], where a different view was taken. The facts were that one V. Chetti had executed two
mortgages over properties in respect of which he had only spes successionis. Then he succeeded to
those properties as heir and then sold them to one Ananda Mohan. A mortgagee claiming under
Ananda Mohan filed a suit for a declaration that the two mortgages created by Chetty before he had
become entitled to them as heir, were void as offending Section 6(a) of the Transfer of Property Act.
The mortgagee contended that in the events that had happened the mortgages had become enforceable
under Section 43 of the Act. The court negatived this contention and held that as the mortgages, when
executed, contravened Section 6(a), they could not become valid under Section 43. Referring to the
decision in Alamanaya Kunigari Ndbi Sab v. Murukuti Papiah, the court observed that no
distinction could be drawn between a transfer of what is on the face of it spes successionis, and what
purports to be an interest in praesenti. “If such a distinction were allowed”, observed Bardswell, J.,
delivering the Judgment of the court. “the effect would be that by a clever description of the property
dealt with in a deed of transfer one would be allowed to conceal the real nature of the transaction and
evade a clear statutory prohibition”.
15. This reasoning is open to the criticism that it ignores the principle underlying Section 43. That
section embodies, as already stated, a rule of estoppel and enacts that 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. It is to be
noted that when the decision under consideration was given, the relevant words of Section 43 were,
“where a person erroneously represents”, and now, as amended by Act 20 of 1929, they are “where a
person fraudulently or erroneously represents”, and that emphasises that for the purpose of the section
it matters not whether the transferor acted fraudulently or innocently in making the representation, and
that what is material is that he did make a representation and the transferee has acted on it. Where the
transferee knew as a fact that the transferor did not possess the title which he represents he has, then
be cannot be said to have acted on it when taking a transfer. Section 43 would then have no
application, and the transfer will fail under Section 6(a). But where the transferee does act on the
representation, there is no reason why he should not have the benefit of the equitable doctrine
embodied in Section 43, however fraudulent the act of the transferor might have been.
16. The learned Judges were further of the opinion that in view of the decision of the Privy
Council in Ananda Mohan Roy v. Gour Mohan Mullick [AIR 1923 PC 189] and the decision in Sri
Jagannada Raju v. Sri Rajah Prasada Rao [AIR 1916 Mad 579] which was approved therein, the
illustration to Section 43 must be rejected as repugnant to it. In Sri Jagannada Raju case, the
question was whether a contract entered into by certain presumptive reversioners to sell the estate
which was then held by a widow as heir could be specifically enforced, after the succession had
opened. It was held that as Section 6(a) forbade transfers of spes successionis, contracts to make such
transfers would be void under Section 23 of the Contract Act, and could not be enforced. This
decision was approved by the Privy Council in Ananda Mohan Roy v. Gour Mohan Mullick where
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also the question was whether a contract by the nearest reversioner to sell property which was in the
possession of a widow as heir was valid and enforceable, and it was held that the prohibition under
Section 6(a) would become futile, if agreements to transfer could be enforced. These decisions have
no bearing on the question now under consideration, as to the right of a person who for consideration
takes a transfer of what is represented to be an interest in praesenti. The decision in Official Assignee,
Madras v. Sampath Naidu is, in our view, erroneous, and was rightly overruled in the decision now
under appeal.
17. Proceeding on to the decisions of the other High Courts, the point under discussion arose
directly for decision in Shyam Narain v. Mangal Prasad [(1935) ILR 57 All 474]. The facts were
similar to those in Official Assignee, Madras v. Sampath Naidu. One Ram Narayan, who was the
daughter’s son of the last male owner, sold the properties in 1910 to the respondents, while they were
vested in the daughter’ Akashi. On her death in 1926, he succeeded to the properties as heir and sold
them in 1927 to the appellants. The appellants claimed the estate on the ground that the sale in 1910
conferred no title on the respondents as Ram Narayan had then only a spes successionis. The
respondents contended that they become entitled to the properties when Ram Narayan acquired them
as heir in 1926. The learned Judges, Sir S.M. Sulaiman, C.J., and Rachhpal Singh, J., held, agreeing
with the decision in Alamanaya Kunigari Nabi Sab v. Murukuti Papiah, and differing from The
Official Assignee, Madras v. Sampath Naidu and Bindeshwari Singh v. Har Narain Singh [AIR
1929 Oudh 185] that Section 43 applied and that the respondents had acquired a good title. In coming
to this conclusion, they relied on the illustration to Section 43 as indicating its true scope, and
observed:
“Section 6(a) would, therefore, apply to cases where professedly there is a transfer of a
mere spes successionis, the parties knowing that the transferor has no more right than that of a
mere expectant heir. The result, of course, would be the same where the parties knowing the
full facts fraudulently clothe the transaction in the garb of an out and out sale of the property,
and there is no erroneous representation made by the transferor to the transferee as to his
ownership.
But where an erroneous representation is made by the transferor to the transferee that he is
the full owner of the property transferred and is authorized to transfer it and the property
transferred is not a mere chance of succession but immovable property itself, and the
transferee acts upon such erroneous representation, then if the transferor happens later, before
the contract of transfer comes to an end, to acquire an interest in that property, no matter
whether by private purchase, gift, legacy or by inheritance or otherwise, the previous transfer
can at the option of the transferee operate on the interest which has been subsequently
acquired, although it did not exist at the time of the transfer”.
18. The preponderance of judicial opinion is in favour of the view taken by the Madras High
Court in Alamanaya Kunigari Nabi Sab v. Murukuti Papiah, and approved by the Full Bench in the
decision now under appeal. In our judgment, the interpretation placed on Section 43 in those decisions
is correct, and the contrary opinion is erroneous. We accordingly hold that when a person transfers
property representing that he has a present interest therein, whereas he has, in fact, only a spes
successionis, the transferee is entitled to the benefit of Section 43, if he has taken the transfer on the
faith of that representation and for consideration. In the present case, Santhappa, the vendor in Ex. III,
represented that he was entitled to the property in praesenti, and it has been found that the purchaser
entered into the transaction acting on that representation. He therefore acquired title to the properties
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under Section 43 of the Transfer of Property Act, when Santhappa became in titulo on the death of
Gangamma on February 17, 1933, and the subsequent dealing with them by Santhappa by way of
release under Ex. A did not operate to vest any title in the appellant.
19. The Courts below were right in upholding the title of the respondents, and this appeal must be
dismissed with costs of the third respondent, who alone appears.
