The aim of this paper is to draw a comparison between Section 6(a) and Section
43 of the Transfer of Property Act, 1882. The paper takes up the case of Jumma
Masjid Mercara v Kodi Maniandra Deviah to draw out the differences between the
Rule of Feeding the Grant by Estoppel under Section 43 and Spec Successions
under Section 6(a). The case in point proves that the Supreme Court treats the
two laws as belonging to two different spheres and that there exists no conflict
Section 6(a) of the Transfer of Property Act
Section 6 of the Transfer of Property Act talks about what may be transferred.
Property of any kind may be transferred, except as otherwise provided by this
Act or by any other law for the time being in force Section 6(a) further says
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;
In common law, A property, which at the date of the assignment, is either not in
existence, or not the grantorís property, is not transferable.
This was held
in the case of Robinson v Macdonnell
. There is however an exception to this
rule where such a transfer can be made if the grantor already has a potential
property in it as its present owner or possessor of that which is expected to
produce it. This was held in the case of Grantham v Hawley
Section 6 lays down the exceptions to what property may be transferred.
According to Section 6(a) no property can be transferred by the person who is an
heir-apparent. The term heir apparent is based on the maxim nemo est heres
viventis meaning that a living person does not have any heir. The heir, to whom
the property will be passed to and if the property will be available or not can
only be determined upon the death of the owner of the property.
Section 6(a) of the Act:
The chance of an heir apparent succeeding to the
property of an intestate; the chance of a relation obtaining a legacy on the
death of a kinsman, or any other possibility of a like nature cannot be
transferred. Now the chance of the heir-apparent to inherit a property
intestate is called spec successionis and the transfer of this chance is void ab
initio. It does not convey any right in favor of the transferee, even if the
transferor who transfers a chance may in fact become the owner if the same
property in future.
Section 43 of the Transfer of Property Act
Section 43 of the Act talks about Transfer by unauthorized person who
subsequently acquires interest in property transferred. The statute says that,
Where a person fraudulently or erroneously represents that he is authorized 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.
Now Section 43 talks about transfer of property by unauthorized person who
subsequently acquired interest in property transferred. According to this
section if a person fraudulently misrepresents themselves to transfer the
interest of a certain immovable property more than what they own and then later
acquired the proper interest over such property, the transferee has the right to
either rescind the contract or go ahead with it. If the transferee has decided
to go ahead with the sale then the willingness of the transferor to sell or not
to sell does not matter anymore. The rule incorporated in this section deals
with such transfers of property where the transferor has no capacity to make
such a transfer from the very beginning but has still decided to enter into a
transaction to transfer the said property by the way of misrepresentation with
respect to the title of the property. The then makes the other party act on this
representation and then acquires the title of the property in the future.
This rule of estoppel is based on two doctrine of common law namely the
equitable doctrine and the doctrine of estoppel. the doctrine of estoppel
prevents a person who promises more than what he can perform from claiming his
incompetency as a legitimate excuse to avoid his liabilities in a situation when
he acquires competency to fulfil his promise. The equitable doctrine states
that, Such a person who makes such a promise is compelled to make good his
promise when he becomes competent to perform it.
Difference between Section 6(a) and Section 43The primary differences between the two are as follows:
- Section 6(a) enacts a rule of substantive law, while section 43
incorporates a rule of estoppel
- The doctrine of spec successionis applies both to movable and immovable
properties, while the rule of estoppel under section 43 applies only in case of
transfer of immovable property.
- Section 43 applies only in those cases, where the transfer is for
consideration. It does not apply to gratuitous transfers. It applies in
cases where despite a misrepresentation, the transferor, either takes or
seeks to take a monetary benefit from the transferee. It, therefore, would
not apply to cases where a person transfers the property by way of gift. On
the other hand, the prohibition under section 6 (a) applies to all kinds of
transfers, irrespective of whether they are for consideration or gratuitous
transfers. A gift of property that a person hopes to inherit is also void.
- Under section 6(a), the fact that it is a transfer of spes successions
is within the knowledge of both the transferor as well as the transferee.
There is no misrepresentation from the side of the transferor about his
competency to pass a good title in present to the transferee. Under section
43, due to an express representation, fraudulent or even erroneous, the
transferee, at the behest of the transferor, is assured of a good title.
section 43 is very clear of the fact that its application will cover only
those cases, where due to the making of a representation by the transferor,
that he is competent to transfer a piece of property, the transferee has
been expressly misled. The transferee had no knowledge about the defect or
lack of title on part of the transferor, and due to the express
representation coming from the transferor, he is made to believe in the
competency of the transferor to transfer the property.
- The status of a transfer under section 6(a) is void in its inception,
i.e., void ab initio, However, under section 43, the transfer is voidable at
the option of the transferee provided two conditions are satisfied. First,
that the contract should be subsisting at the time the transferor attains
competency to transfer the property, i.e., it should not have been rescinded
or brought to an end and secondly the property should be available with the
transferor. It should not be in the hands of a bona fide transferee for
Case Law in point: Jumma Masjid Mercara v Kodi Maniandra Deviah
In the above-mentioned case, a Hindu joint family which consisted of three
brothers had collectively executed a usufructuary mortgage. An usufructuary
mortgage is one where a legal right called the usufruct is present or accorded
to a person or a party that bestows a temporary right to use and derive income
or benefit from another partyís property and is usually conferred for a limited
time period. The family had executed such a mortgage in favor of another party.
After a litigation it was decided that the mortgagee had the right to hold onto
the property for a period of 20 years which is till 1920 after the said period
was over, the property would revert back to the family.
Out of the three brothers, one died without leaving any heirs while the other
two died leaving behind their widows but no children. The brothers had sisters
who then bore three grandchildren who were the reversioners to the property. One
of the grandsons Santhappa was to get one-half of the property whereas the other
two grandsons namely Basappa and Mallappa were to inherit one-fourth of the
property each. This inheritance was however applicable upon the death of the two
Therefore, the interest of the three grandsons in the property was a mere spec
successionis and according to Section 6(a), untransferable. The grandsons made a
representation to the transferee that the property in question was a joint
family property and would devolve upon them as reversioners upon the death of
the widows and hence they were competent to make such a transfer.
However, the reversioners did not disclose the fact that one of the widows was
still alive and that her presence prevented them from making good on their
promise to transfer the property. Since the transferee was not aware of the
presence of the widow, he gave the consideration to the reversioners upon the
representation made by them and then later filed a suit for possession of
property when the property was not delivered to them.
The widow countered this suit by arguing that she was still alive and that no
one had the right to transfer the property till she was alive. She argued that
the property was her husbandís self-acquisition and she being the legal heir of
her husband had the right of possession over it. In the suit, the subordinate
court, the district court and even the judicial commissioner accepted her
arguments and the possession were not given to the transferee. However, before
the second appeal which was filed in front of the judicial commissioner could be
decided the widow passed away and the transferee hence applied to the revenue
authorities for the transfer to the property which was in the name of the widow
to strengthen the sale deed which was made and executed by the reversioners.
At this stage, Jumma Masjid intervened and interrupted the transfer of property
to the transferee. They contended that the property in question in whole should
be passed onto them because firstly, an alleged gift deed was executed by the
widow during her life time in their favor and secondly they argued that one of
the reversioners, Santhappa had allegedly sold his share of the property for a
consideration of Rs. 300. The revenue authorities upon hearing these arguments
rejected the contention made by Jumma Masjid and upheld the transfer of the
property to the transferee. Jumma Masjid later filed a suit for recovery of
possession of property that ultimately went to the Supreme Court.
The contention made by Jumma Masjid was that Section 43 must be read as subject
to the provisions of Section 6(a) of the Act, that specifically prohibits that
transfer of spec successions and therefore Section 43 should apply only in cases
other than those covered under Section 6(a). The issue in front of the court
was therefore 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 spec successionis, is within the protection of Section
43 of the Act.
The court rejected the argument made by Jumma Masjid and pointed out that both
the sections deal with different spheres of law and that there is no conflict
between them. Section 43 is applied when a person made a representation of
having a title to a property but not actually having but still making a transfer
under the representation. The transferee taking the representation made by the
person can take a transfer for a consideration. When these following conditions
are met, Section 43 dictates that the if the transferor, who made the
representation, later acquired good title of the property in question, the
transferee is entitled to that property if the transfer in the meantime has not
been cancelled. There is an exception in favor of transferees for consideration
in good faith and without notice of the rights under the prior transfer.
Apart from this exception, what the section says is absolute and unqualified. It
is applicable to all kinds of transfers that satisfy the conditions laid down in
the statute 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.
The court in the issue said, Section 6(a) and S. 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 s. 43 enacts a rule of estoppel, which is one of evidence. The two
provisions operate on different fields and under different conditions and there
is no ground for reading a conflict between them, or cutting down the ambit of
the one by reference to the other.
The court in its opinion said that both the parties can be given the possession
and ownership of the property depending upon their respective spheres of law but
to hold that transfers by persons who have only a spec successionis at the date
of the transfer are not within the protection awarded under Section 43 of the
Act., would destroy its utility to a great extent. Section 43 of the Act
enables a special provision for the protection of the right of the transferees
for the consideration given to the party that made a representation of a current
title, when in reality they do not have one.
The court further said that:
While it is true that rules of estoppel cannot be resorted to for defeating or
circumventing prohibitions enacted by statutes on grounds of public policy, but
here, it is not a ground of public policy alone by means of a specific provision
in specific enactment.
The court therefore held that the transferee in the given case entered into a
transaction because of the representation made by the reversioners that they had
an interest or title in the property in question. The transferee would
therefore, acquire the title of possession and ownership of the property in
accordance to Section 43 of the Act, when the reversioners received the true
title of the property after the death of the widow. The property was therefore
awarded to the transferee with whom the sale deed was executed by the
reversioners and the contentions made by Jumma Masjid were rejected. The Supreme
Court in doing so laid down certain and absolute distinction when it came to the
applicability of Section 6(a) and Section 43 of the Transfer of Property Act.