| introduction | jurisprudence |
| section | section 6(a), 43 TPA |
| relevant case laws | Jumma Masjid vs Kodimaniandra Kartar Singh vs Harbans Kaur |
| present problem | question related |
| conclusion | decision as per our reasoning |
Transfer of Property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and “to transfer property” is to perform such act.
Essentials of Valid Transfer
For a valid transfer:
- -The property must be transferable (Section 6)
- -The transferor must be competent to Transfer (Section 7).
- -The transferee must be competent.
- -The transfers must be according to the provisions of the act
Spes successionis means chance of getting property through succession.Spes successionis is a Latin legal phrase that refers to the possibility of inheriting someone’s property after their death.According to the Transfer of Property Act, this expectation does not grant any actual ownership interest in the property and cannot be transferred.
The doctrine of spes successionis recognises that such an expectation does not confer an immediate ownership stake or right over the property. In essence, spes successionis serves as a legal concept that addresses the speculative nature of future property inheritance, highlighting the distinction between a present fixed interest and a prospective contingent right in matters of succession.
Section 6(a) Transfer of Property Act,
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;
This is an exception to the section 6 which says anything can be transferred except spes successionis or when a person is in hope that he/she will get the property in future, then transfers the same to third person, such transfer is not valid.
Essentials:
- – chance of an heir apparent
– chance of relation obtaining legacy
– any other possibility, (eg. lottery)
Section 43 TPA,
Transfer by unauthorised person who subsequently acquires interest in property transferred.—
Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.
Illustration
A, a Hindu who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorised 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’s dying A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him.
Section 43 talks about Feeding the grant by Estoppel which means that if a person misrepresents himself to other party, fraudlently or mistakenly, and that other person takes action upon it, then he or his representative is not allowed to deny the truth of the fact.
The doctrine ‘nemo dat quod non habet’ which means ‘no one can confer a better or higher right to property than what he himself possesses’. Section 43 of TPA, 1882 is an exception to this maxim.
Essentials of Section 43 TPA;
- – Transferor,
– misrepesentation, fraudlently or errorneously
– consideration
– claim by transferee — not void
Difference between Spes Successionis and Feeding the grant by estoppel:
| Section 6(a) Spes Successionis | Section 43 Estoppel |
| It is a rule of Substantive Law. | It is rule of Evidence |
| under this, both transferor and transferee have knowledge of the fact of Spes Successionis. | under this, only transferor have knowledge about misrepresentation. |
| void transaction | depends on consequences to be void or valid |
| consideration may or may not be there | consideration is must |
| it applies to both movable and immovable property. | it applies only to immovable property. |
Relevant Case Laws:
Jumma Masjid, Mercara vs Kodimaniandra Deviah
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).
issue:
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?
judgement:
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.
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.
Kartar Singh vs Harbans Kaur
facts:
Harbans Kaur and also on behalf of her minor son enter into sale agreement with Kartar Singh.
Kulwant Singh, filed a suit against her mother that she can’t transfer his share to anyone, Court passed decree in favour of Kulwant.
Before Kulwant take possession of his share of the land, he died and his share was inherited by his mother.
Karter Singh then filed a suit claiming that he was the owner in possession of the entire land as per sale deed made by Harban as the entire property belongs to her now.
issue:
Whether the defendant (Harban) fraudulently represented as the sole owner of land?
Whether the plaintiff is entitled to regain the possession as alleged?
judgement:
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 knows as a fact that the transferring does not possess the title which he cannot be said to have acted on it, when taking a transfer sec 43 would then have no application and the transfer will fail under sec 6(a).
Kartar Singh have knowledge about the share of Kulwant Singh wax being transfered, so he can’t get benefit of sec 43.
This Appeal is partly allowed. Suit filed by Kartar with respect to half share of land in dispute shall stand decreed whereas qua half the land which was share of Kulwant and subsequently inherited by his mother shall stand dismissed.
Present Problem:
‘A’, ‘B’, ‘C’ owned a property in equal shares. ‘A’ and ‘B’ leased the whole property to ‘X’ as if they were entitled it to the exclusion of ‘C’. ‘C’ died and bequeathed his share to ‘A’ and ‘B’. Decide the right of ‘X’ with the help of relevant legal provisions and Case Laws.
Answer: X has right over that property which is leased to him by A and B.(Kartar Singh case)
Rakesh has no title to Rockland but by making erroneous representation professes to transfer it to Suresh for consideration of 2 lakhs. Since Rakesh has no title Suresh acquires none from him. Subsequently Rakesh purchases Rockland from the true owner. Can Rakesh retain the Rockland or is he bound to hand it over to Suresh? Discuss the rule of feeding the grant by estoppels under Section 43 of the Transfer of Property Act, 1882.
Answer: Rakesh is bound to hand over the rockland to Suresh as he already made the deal for a consideration of 2 lakh rs.
