lN2

!i«rdar s,.'"4

T• Soifa"1i•

SdH

T,

·no, Stai. of Biid.,

1962

Jonu"'JI IJ.

554 SUPREME COURT REPORT8 [I!lti2J SUPP.

guarantee under Art. 2.i (I) and rcnderini: thll

protection illusory.

Jn

my

view th" petitio1vr iH entitled to the

relief that he seeks and the petition will accordingly

be allowed.

}fr Conn : In Ae<·ordaiwe with the majority

view of this Court, the vetition is allowed. The

petitioner is entitled to his costs.

Petition all<JWed.

---

THE JOMMA MASJID, .MERCARA

v.

KODIMANIANDRA DE\'IAH

(J. L. KAPUR, M. HIDAYA.TULJ,AH, J. C. SHAH and

T. L. VENKA1'ARA.:l!A AJYAH, JJ.)

Tran"fer of Proptrty-Sa/e by ret-ersioner for co11airkration

-Fra"Udu/,e.nt or errc>nt:ou.9 repre.lienlati()tz--f'rr.~1 nt transferable

int1.re~t, tl1ou9h in/act sprs ,'."ucce~,~inni.t .. S11bRr.quenl-acquiaition

of title-Ejfect-Rult of "''"N><i-11'1.tn lcr uc resort'd to Transfer

of Property Act, 18$2(4 of 18821, •· 6(a). Intuprtlalion of

Statute-( 'onsiruing of aertion-1/ nP111 rrvrda wuld be read 1"nto

it-11/u.atration to a section When rou/d be ustd lo enlarge the

language-If admissiilt ,,, construi1ig a section.

M and S claiming t0 be revenioners to the estate of N

sold the property in dispute to G predecessor-in-interest

of the re.pondents. The sale dred recited that the property belongcrl

to the joint family of two brothers N and B, and on the death

of N it was inherited by his widow and on her death it had

devolved upon them as reversioners· to the stato. G sued to

recover possession

of the

propcrties. The suit was contested

by the wiclow of B(brother of N) claiming that the property

was

the

self acquired pn·pcrty of her hushand. During the

pendency

of the

litiFatio·' the widow died, and G applied to

the revenue authoritin to transfer the 'pattas' in his name.

The appellants intervened alleging that the property was gifted

to them by the widow,

and

S one of the reversioners had also

executed a release of the said property for a consideration.

This objection was rejected. The appellants then sued for

posac!Sion of a half share in the properties held by the widow

of B, relying upon the gift by the widow, and the deed of

surrender by S one of the two reversioners to the estate of N.

They contended that the Vendors of the property to G had

2 S.C.R. SUPREME COURT REPORTS 555

only a spe.• succcssionis during the life time of the widow of B,

and the transfer was on that account void and conferred no

title. The heirs of G contended that the property was sold to

G by M

and

S on a rep1esentation that the Vendor had

become entitled thereto, and the appellants as transferees

from S were <Stopped from asserting that it was in fact the

self.acquisition of B and that in ron.•equence he had no title at

the date of the sale.

Held, that where a ptrson transfers property representiug

that he has a present interest therein, whereas he has, in fact,

only a spes successfuru'a, the transferee is entitled to the benefit

of s. 43 of lhe Transfrr of Property Act, 1882, if he has taken

the transfer for consideration

and on the faith of the

represen ta ti on.

Htld, further, that apart from the exc~ption in favour

of transferees for consideration in good faith

and without

notice

of the rights under the prior transfer s. 43 of the

Transfer of

Property Act is absolute and unqualified in its

operation.

It applies to

all transfrrs 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 in the property, or of his interest

therein being that of an expectant heir. The section deals

with transfers which fail for want of title in the transferor

and not lvant of capacity in him at the time of transfer. It

embodies a nile 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 the representation.

It is immaterial whether the transferor acts bona fide or

fraudulently in making the representation. It i; only material

to find out whether in fact

the transferee has been misled. In

view of

the sprcific provision of'· 43 the principle of c8toppel

against a statute does not apply to transfers prohibited by

s. 6 (a) of the Act. The two provisions operate in different

fields and under different conditions. There is no necessary

conflict between

them, and the ambit of one cannot be cut

down by reference to the other. Section 6(a) enacts a 'rule

of

substantive law, while s.

43 enacts a rule of estoppel which is

one of evidence.

Held, also, that if rhe language of the section clearly

txcludcs from its purview certain matter!Z, it would not be

legitimate to use the illustration to the section to enlarge it. It

is not to be rradiJy assumed that an illustration to a ~ction is

repugnant to it and rejected.

Vicker& v. EtVJna, (1910)79 L.J.K.B. 955, relied on.

1962

The .fumma Ma.tjidt

M1rc1tr•

v.

K oJimmtiandra

I>evi1h

TAt J 11mmo MasjiJ,

Mnco..•o

••

KMW.Mi1atb•

Dnioh

556 SUPREME OOUR1' REPOR'fS [1962] SU.PP,

Sadiq Ali Khan v.Jai Ki•hori, A.LR. 1928 P.C. 152,

Gadigeppa v. Balangauda, (1931) l.L.R. 5i Born. 741,

Ajudhia Prasad v. Chandan fol, l.L.R. ( 1937) All. 860 F. B.;

Molwm<d Syedol Arif!in v. Y eoh Ooi Gark; ( 1916) L.R. 43 I.A .

256; I.ovinr v. BrOU!lham, (1909) 25 T.L.J<.. 265; LM'ie [,t1l. v.

Sh<iU, [ 1914] 3 K 13. 607 and Khn Gui v. };ikh" Singh ( 1928)

I.L.R. 9 Lah. 701(F. B.), referred to .

• tl(in11111.aya Kunigari l{abi Sab v. ,\lurukuti Papiah,

(1915) 29 M.L.J. 733, Sl1yam Sarain v. Mungu/ i'ra1md, (1935)

l.L.R. 57 All. 474, Vithal!ai v. Malh"r iif.ankar, l.L.R. (1938)

Born. 155, Ram .Japan v.Jugeaara KIP'r, A.LR. 1q39 Pat. 116

and Syed Biamil/a v. Munulal Chal.iil•h•, A.IR·. 1931 Na~. 51,

approved.

Official Assignte, ,lfadm .. v. Sam]>'lth .\"ai<lu, 63 M.L.J.

588 and Binde.•hwari Singh v. liar .'{arain Sinq!,, (1'129) 1.L.R.

4 Luck. 622, disapproved.

CrvIL APPELT.ATE Jumsvw1·10;-;: CiYil Appeal

No. 207 of 1956.

Appeal from t.he judgment and decree dated

November 5, 1952, of the Madras High Court in

Appeal No.

852 of 1948.

R.

Thiagarajan and G. Gop<ilakrishrum, for the

appellant.

Gan apathy 1 yer, for

1962. January' 11.

Court was delivered by

roRpondent

No. 3.

The Judgment of the

VENKATARA.~IA AIYAH, J.-This is an appeal

against the Judgment of the High Court of Madras,

dismissing the suit filed by the appellant, as Mutha­

valli of the Jumma Masjid, Mercara for possession

of a half-share in the propertie1 specified in the

pis.int. The facts are not in dispute. There was a

joint family comieting of three brothers, Santhappa,

Nanjundappa and B&tiapp.•.. Of these, 8anthappa

died unmarried, Ba.sappa died in 190 J, leaving

behind a widow Gangamma, and Najundappa 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 Ba.aa.ppa, Mallappa

and Santhappa, the &illter's grandsons of

,,

'

2 S .. C.R. SUPREME COURT REPORTS 557

Nanjundappa as·his next reversioners. The relation·

ship of the parties is shown in the following gene·

alogioal table.

Basappa

I

I I

Santhappa

Nanjundappa

d. 1907

=Ammakka

d. HHO

I

Basappa.

d. 1901

=Gangamma

~

Mallammal

i'

I

Ramegowda

I

Mallegowda

I

I

Santhappa

I

Basappa

I

Mallappa

On August 5, 1900, Nanjundappa and Basappa

executed a usnfructuary mortgage over the proper­

ties which form the subject-matter of this litigation,

and one Appanna Shetty, having obtained an assign·

ment thereof, filed a suit to enforce it, 0. S. 9 of

1903, in the court of the Subordinate Judge, Coorg.

That endRd in a compromise decree, which provided

that Appanna Shetty was t.o enjoy the nsnfruct from

the hypotheca till August, 1920, in full satisfaction

of all his claims under the mortgage, and

tliat the

properties were thereafter to revert to the family

of the mortgagors. By a sale deed dated Novem·

ber 18, 1920, Ex. III, the three reversiciners,

Basappa, Nallappa and Santhappa, sold the suit

. properties to one Ganapathi, under whom the res­

pondents claim, for a consideration of Rs. 2,000.

Therein

the vendors recite that the properties in

question belonged

to the joint

family of Nanjun-

. dappa and bis brother Basappa, that on the death

of Nanjundappa, Ammakka inherited them as his

widow,

and on her death, they had devolved on

them as the

next reversioners of the

last male

-

n..·J-· llflt"'4

-

y,

JIH I lfHlllW

~

-·

1HZ

~l-Jloqii,

M1t,ara

v.

'"'"-""" .. Dniah

AiJ« J,

558 SUPRBME OOURT REFORTS [1962] SUPP.

owner. On March 12, 1921, the vendors executed

another deed, Ex. IV, by which Ex. III was recti­

fied by inclusion of certain items of prope1 ti••s

which wore stated to have been lcfL out by over'.

sight. It is on these documents that tho title of tho

respondents rests.

On the strength of these two deeds, Ganapathi

sued to recowr pos.<ession of the properties com­

prised therein. The suit was contested by Gan­

gamma, who claimed that the properties in question

were the self-acquiditions of her husband Basa.ppa,

and that she, as his heir, was entitled to them. The

Subordinate Judge of Coorg who tried tho suit

accepted this rontcntion, and his finding was affir­

med by the District ,Judge l1n appc.\l, and by the

Judicial Commissioner in second appeal. But before

the second appeal was finally disposed of,

Ganga.mum died on February 17, 1933. Thereupon

Ga.napathi a.pplied to tho rl'vcnue authorities to

transfer the patta for tho lands standing in the name

of Gangamma to his own name, in accordance with

the sale deed Ex. III. The ••ppcllant intervened

in these procet·ding~ and claimed that tho Jumma

Masjid, Mercara, had become 1·ntitled to the proper­

ties hcM by Ga.ngam.na, firstly .. urnler a Sadak® or

gift alleged to have been mac!P by h~r on Septomher

5, 1932, and, secondly, under a deed of rcleat«J

executed on March 3, l93:l, by S1mth.ippa, one t>f

the rov<'rsioner~. relinquishini: his half-~hare in th.,

properties

to the mosque

for a cpn.~idcration of

Rs. 300. By an ord<>r dated Sq1tcmlu>r H, l!l3:l,

Ex. II, the l'even11e authoritie~ dt,eli1H'd to acePpt

the titll' of the appellant and <lin•c:tcd that the name

of Ganapathi eh on Id be cntere<l ns the own,·r of tho

properties. Pur•uant to thi~ order, C:anapathi got

into posRession of tho propcrti< s.

The suit out of whirh the prC'srnt appeal arise.~

was instituted by the appdlant on Janu'"Lr.v '.!, 1945,

for recovery of a half.sh,..rn in the propcrliC's that

l - '

,.

..

" ,

2 s.c.R. SUPREME COURT REPORTS 559

had been held by Gangamma and for mesne profits.

In the plaint, the title of the appellant to the pro­

perties 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.

UI and Ex. IV, the claim made in the plaint

is

that as tho vendors had only a

apes successionis

in the properties during the lifetime of Gangamnil!>,

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

& representation that he had become entitled to

them as reversioner of Nanjundappa, on the death

of Ammakka in 1910, he was estopped from assert­

ing

that they were in fact the self-aoquisitions 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, got no title as

against them under the release deed Ex. A, dated

March 3, 1933.

The District Judge of Coorg who heard the

action he Id that the alleged gift by Gangamma on

September 5, 1932, had not been established, and

as this ground of title was abandoned by the appel­

lant in the High Court, no further notice will be

taken

of it. Dealing next with tho title claimed by

the appellant under the release deed,

Ex. A. execu­

tecl by Santhappa, the District Judge hold that as

Ganapathi had purchased the properties under Ex.

III on tho

faith of the representation contained

therein

that the vendors had

become entitled to them

on th" death of Ammakka in HJIO, he acquired a

good title under s. 43 of the Transfer of Property

Act, and

that

Ex. A could not prevail as against

it. l:Je accordingly dismissed the suit. The plain­

tiff took the matter in appeal to the High Court,

Madras, an1l in view of the conflict of authorities

on the question in

that

Court, the case was refer

IftB:

n, J,,,,,.,, llltitJiili

Ml'llN-

v.

K otlimqia-4.1*.

D•iliiiA.

.ii.>t!r I,

"·

rt · ''"

Dioid

-

A{loor J,

•

IS60 SUPREME OOURT REPORTS [1962] SUPP.

red for the decision of a. Full Bench. The lea.med

Judges who heard the refer•moe agreed with the

court below

that the purcha.ser under

Ex. III ha.d,

in ta.king the sa.le, aeted on the representa.tion a.s

to titl!I conta.ined therein, a.nd held tha.t as the sa.le

by the vendors was of properties in which

they claimed a. preaent interest and not of a.

mere right to succeed in future, s. 43 of the Tra.ns­

fer of Property Act a.pplied, and the sale bees.me

opera.tive when the vendors acquired title to the

properties on the

death of

Gangamma on Febru­

ary 17, 1933. In the roault, the appeal was

dismissed. The appellant then applied for leave

to appeal to this Court under Art. l33(l)(e), and

the same was granted by the High Court of Mysore

to which the matter had become transferred under

s.

4 of Act 72 of 1952. That is how the appeal

comes before us.

The sole point for determination

in this appeal

is, whether a transfer of property for consideration

made by

a person who rcpre•ents that he ha.s a

present and transferable int-0rest therein, while he

posseBBes, in fact, only a spes .'IUccessionis, is within

the protection

of s. 43 of the

Trnnsfer of Property

Act. If it is, then on the facts found by t.hc courts

below, the title of the rcspond0nts und<·r Ex. III

and Ex. IV must prevail over tluit of the appellant

under Ex. A. If it is not, th"n the RJ•pellant

succeeds on the basis of J<~x A.

Section 43 of the Tra.nsfor of Property Act

runs as follows :-

"Where a. person frauuul<>ntl.v or errone­

ously represents th'. h" i 1 nuthorised to

transfer eertain irmnovablc property and

professes to t.rn.n,fer H11ch property for con­

sideration such tran~frr slrn.11, at. the option

of the transferee, op<'rato on any interest

which the transferor may n.cquire in such pro­

perty at any timo during which the contact

of trall8fer su heists.

'

2 S.C.R. . SUPREME COURT REPORTS 561

Nothing in this section shall impair the

right of transferees in good faith for consi­

deration without notice of the existence of

the said option.''

Considering the scope of the section on its terms,

it

clearly applies whenever a person transfers property

to which he bas no title on a representation that

be bas a present and transferable interest therein,

·and acting on that representation,

the transferee

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

bas not 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

ia absolute and

unqualified in its operation.

It applies to all

transfers which fulfil the

condit.ions prescribed

therein, and

it makes

1. 0 difference in its applica­

tion, whether the defect of title in the transferor

arises by reason 1lf bis having no interest whatso­

ever in the property, or or bis interest therein

being that of an expectant heir.

The contention on behalf of the appellant is

that e. 43 must be read subject to s. 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." Th~

argument is that if s. 43 is to be interp.reted as

having application to cases of what are in fact

transfers of spes successiunis, that will have the

effect of nullifying s. 6 (a), and that therefore it

:wo.uld be proper to construe s. 43 as limited to

cases of transfors other than those falling within

s.

6(a). In effect, this argument involves importing

196Z

The iumma ~lfasjid,

-~fercar•

v .

. Ko1ima. 1 iJndra

Devi ah

Aiyar J.

ll!tZ

~ .,·..,,,,,," M rujid,

M~c•ro

v.

Kodilnaimu/,a

Ihoi.h

562 SUPREME OOURT REPORTS [1!162] SUPP.

into the section a new oxception to the follow­

ing cfftict ; "Nothing in this section shall operate

to confer on the transforee any tit!(', if the trans·

furor ha<l at tho date of the transfer an interest of

the kind mentioned

ins.

6 (a)." If we accede

to this contention

wo will not be

construing

.a.43. but rewriting it. "\To arc not ontitled",

obsorved Lord Loreburn L. C., in Vickers

v. Evans ('), "to read words into an Act of Parlia·

mcnt unless clear reason for it is to be found

within the four corners

of the Act

itself."

No~ the compelling reason urged by the

appellant for reading a further exception in s. 43

is that if it is construed 118 applicable to transfers

by persons who have only spu succea.sWnis at the

date of transfer, it would have the effect of nullify:

ing s, G(a). But section 6(a) ands. 43 relate to two

difforont. subjects, an<l 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 tho time

of transf<·r, and provides that.. the transfer shall

fasten itRc!f on the title which the transferor sub­

sequently acquires. ~oction 6 (a) enarta a rule of

substanth-e law, whil<l s. 4;~ enact~ a rule of estoppel

which

is one of

evidencP. Tho two provisions

operate on different fidds, and under different

conditions,

and wo sec 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

term~. in their respective spheres. To

hold

that transfers by persons who have only

a

spe,s S'UCCe.~sionis at the date of tr.ansfer are not

within the protection afforded by s. 43 would

destroy its utility to a large exwnt.

It is alao contended that as under the law

there can be no eetoppel against a statute transfers

(I) (1910) 79 L. I. K. B. ~5.

2S.C.R. SUPREME COURT REPORTS, 563

which are prohibited by s. ( 6a) could not be held to

be protected by s. 43. There would have been

considerable force in this argument

if the question

fell

to be decided solely on the terms of s. 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 s. 6 (a). We have

in addition,

s. 43, which enacts a

special provision

for the protection

of transferees for c0nsideration

from persons who represent

that they have a

present t.itle, which, in

fact, they have not. And

the point for· decision is simply whether on the

facts the respondents are entitled to the benefit of

this section. If they are, as found by the eourt_s

below, then the plea of estoppel raised by them on

the terms of the section is one pleaded under, and

not against the statute.

The appellant also sought to rely on the

decisions wherein

it has been

held that a plea of

estoppel could not be raised against a miuor who

had transferred property on a representation that

he was of age, and that s. 43 was inapplicable to

such trnnsfers, m'de Sadiq Ali Khan v. Jai Kishori (')

Gadigeppa v. Balanagawlrt (') Ajttdhia Prasad v.

Ghandan Lal(') But the short answer to this contention

is

thats. 43

deals with transfers which fail for want

of title in the transferor" and not want of capacity in

him

at the timo of transfer. It may further be

observed in this connection

that the doctrine of

estoppel has been held to have no

application to

persons who have no contractual capacity where

the c\aim is based on contract, vide Mahomed Sye,dol

Ar{ffin v. Yeoh Ooi Gark ('); Levine v. Brougham

('}, Le.slie Ltd. v. Sheill ('); Khan Gul v. Lakita

Singh ('). Decisions on transfer8 by minors there­

fore a.re of no assbtance in ascertaining the true

scope

of s. 43.

(l) A.I.R. 1928

PC. 152 (2) (1931) I.L.R. 55 Bom. 741,

(3) l,L.R. (1937) All. 860 F.D. (4)(1916) L.R. 43 I.A.256; [ l 916]2A.C.S75,

(5) (1909) 25 I.L.R. 265. (6) [19H) 3 K. B. 607.

(7) (1928) LL.R. 9 Lab, 701 (F. B,).

1962

Th. Jumma Marjid,

Mncara

v.

Kodimaniandra

Deviah

·-

77w JutftlM Ma .ji1,

M1rca1a

v.

Kotlima11iant/ra

D1V14'r

564 SUPREME OOURT REPORTS [1!162] SUPP.

So far we havo discussed the question on the

langua.go of the section and on the principle~

applica.hle thereto. There is an illustration appended

to s. 43, and we h!!.ve deferred consideration thereof

to tho la.st &R 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 tha.t A is authorized to trans­

fer the ea.mo. Of these fields Z does not be·

long to A, it having been retained by Bon

the partition ; but on B's dying A as heir

obtains Z. C, not having rescinded the con­

tract of salt may require A tn deliver Z to

him."

In this illustration, when A sold the field Z to C, he

had only a speJJ successionis. But he having subse­

quently inherited it, C became entitled to it. This

would appear to conclude the question aga;nst the

appellant: But

it

is argued th<tt the illustration is

repuznant to the section and must be rejected. If

the langual!'O of the section clearly excluded from

its purvinw tranPfers in which the transforor had

only such interest as

is specified in s. 6( a), then it

would undoubtedly not

•be legitimate to use the

illustration

to enlarge it. But

far from being res­

tricted in its scope as contPnded for by the appel­

lant, 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

asmmed that an illustration to a section is repug­

nant to it and rejected. Reference may, in this

connection, be made to tho following observations

of the judicial Committee in Malwrned Sye.dol Arif/in

v. Y eoh Ooi Gark (

1

)

as

to the value to be given to

illustratio11s appended to a section, in &Pcertaining

its true scope :

(I) (1916) L. R. 43. I.A.™; (1916] 2 A. C. 575.

2 S.C.R. SUPREME COURT REPORTS b65

"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

cons­

truction of the text. The illustrations shou)d

in no case

be rejected because they do not

square with ideas possibly derived from

an­

other system of jurisprudence as to the law

with which they are the sections dea.l. And

it would require a very special case to wa.rrant

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 no

part of the sections, been

ex­

pressly furnished by the Legislature as helpful

in the working

and application of the .statute,

should

not be thus

impaired."

We shall now proceed to consider the more

important oases 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 (

1

). That

a.rose 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 s. 43 of the

Transfer of Property Act. The argument against

it was that

"s. 43 should not be so construed as

to nullify s. 6(a) of the Transfer of Property Act,

by validating a transfer initi<>lly void underti!'· lj( a)"

In rejecting this contention, th_e Court observed:-

"This argument, however, neglects the

distinction between purporting

to transfer

'the chance

of an heir-apparent,' and 'erro­

neously representing that he (the transferor) is

(ll !1915) 29 M.L,J. 733.

J962

'lht Jumma Masj•d,

},; ercara

v.

Kodima'liandra

Dtviah

Ai)'a1J,

566 SUPREME OOURT REPORTS (1962) SUPP.

authorised to transfer certain immoveable

property." It is the latter course that wa.s

followed in the present ca.se. It wa.s repre­

sented 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 s. 6( a), it

would be void, where&i, if it purports to be of an

.interest

in

praesenti, it is within the protection

afforded by

s.

4.'i.

Then we come to the decision in The Official

Assignee, Madras v. Sampath Naidu ('), where a

different view was taken. The facts were that one

V. Chetti had executed two mortgages over proper·

ties in respect of which he had only spes succesaionis.

Then he succeeded to those properties as heir and

then sold them to one Ananda Mohan. A mort·

gagee claiming under Ananda Moh1m filed a suit

for a declaration that the two mortgages created by

Chetty oofore he had become entitled to them 88

heir, were void as offending a. 6(a) of the Transfer

of Property Aet. The mortgagee contended that in

the events that had happened the mortgages had

become enforceable under s. 43 of th0 Act. The

Court negatived this contention and held that as

the mortgages, when executed, contravened s. 6(a),

they could

not become

v:alid under s. 43. Refer·

ring to the decision in Alamanaya K unigari N obi Sab

v. Murul.-uti Papiah ('),the Court observed that no

distinction could

be

drawn between a transfer of what

is on the faoe of it apes succesaionis, and what pur·

porU! to be an interest in ~i. "If such a

distinction were allowed", observed Bardewell, J.,

delivering

the Judgment of the Court,

"the elfect

would

be that by a clever description of the

pro·

perty dealt with in a deed of transfer one would be

allowed

to conceal

~ho real nature of the tr8Illl80·

tion and evade a olear statutory prohibition."

(I) (1933) 65 M.W. 588. (2) (1915) 29 M. L.J. 733.

2 $.d.R. SUPREME COURT REPORTS 567

-Thia reasoning is open to the criticism that it

ignores the principle underlying s. 43. That section

embodies, as already stated, a rule of estoppel and

enacts

that a .

per~on who makes a representation

shall not be heard

to allege the contrary as against a

person

who acts on that representation. It is

immateria,J whether the transferor acts

lxma fide or

fraudulently in making the representation.

It is

only material to find out whether in fact the

trans­

feree has been misled. It is to be noted that when

the decision und!'f consideration was given, the

relevant words

of s. 43 were,

"where a person

erroneously represents", and now, as amended by

Act 20 of 1929, they are "where a person fraudu­

lently or erroneously· represents", and that emph~.­

sises that for the purpose of the section it matters

not whether the transferor act fraudulently or

innocently in making the representation, and

that

what is material is that he did made 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 he cannot be

8aid to have acted on it

when taking a transfer. Section 43 wot1ld then

have no application, and the tr'1.nsfer will fail under

s. 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

s. 43, however fraudulent the act of

the transferor might have been.

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 (') and

the decision in Sri Jagannada Raju v. Sri Rajah

Prasada Rao ('), which was approved therein, the

illustration to

s. 43 must be rejected as repugnant

to it. In

Sri Jagannada Raju's case ('), the question

was whether a contract entered into by certain

(1) i 1923) L.R.

50 I.A. 239; (1923) l.L.R. 50 Cal. 929.

(2) (1916) I.L.R. 39 Mad. 554

1961

ne Jumma Masji4.

M1rcara

v.

Ko<iimani<Andra

Deviah

A'iyar J.

1062

114 Jw1:111u MaJjid,

Mtrcara

••

hcu/imani .. 11 /r.'1

/J,~iah

;';U8 SCPREME COURT Rli:POR'l'S [196:!] SUPP.

pre~umptive reversionns to sell the estate which

waa then held by a widow as heir could be specifi·

cally enforced, after the succession had opened. It

was held that as s. 6 (a) forbade transfers of spes

s7tCCi'8sionis, contracts to make such transfers would

ho void under s. :!3 of the Contract Act, and could

not be enforced. 'J his decision waa approved by the

Privy Council in Anmula Mohan Roy v. Gour Mohan

Jlullick ('), where also the question was whether a

contract by the nearest reversioner to sell property

which was in the possrs.~ion of a widow as heir

wa.s valid and enforcpable, and it was held that the

prohibition under s. G(a) would become futile, if

agreements to transfer could be enforced. These

decisions havo no bearing on the questi<>n now

under !'Onsideration, as to the right of a person who

for consideration takes a transfer of what is repre­

sented to be an interest in prae.senJi. The decision

in The Official Assignee, Madras v. Sompal/; Naidu (')

is, in our view, erroncoll3, and was rightly over·

rulecl in tho deciilion now under appeal.

Proceeding on to the decisions of the oth~r

High Courts, the point under discussion arose

directly for decision in Shyam Narain v. Mangal

Prasad ('). The facts were similar to those in

'l'he Ojfici.al Assignee, Madras v. Samp:ith i\"aidu (').

One Ram Karayan, who was the daught<>r's t.on of

the last male owner sold the properties in 1910

to tho re~pondents, while they were vested in the

daughtrr Akashi. On her death in 1926, he

succeeded

to the properties

as heir and sold them in

1!127 to tho appellants. The appellants claimed

the estate on the ground that the sale in 1910 con·

forred uo title on the respondents as Ram Narayan

had then only a spe,s succes.'lionis. Tho respondents

contended

that they

became entitled to the proper­

ties when

Ram

Narayan acquired them as heir in

1926.

The

!Parned ,Judges, Sir S. M. Sulaiman,

C. J., and Rachhpal Singh, J,, held, agreeing with

(ll (192J: L. R. 501. A. 210;

(2) (1~33) GS M. L. J. 588,

[19231 I. L. R. SO Cal. 929.

(3) l 1935] I.L.R. S7 All, ~7i,

2 S.C.R. SUPREME COURT REPORTS 569

the decision in Alaroonaya Kunigari Nabi Sab v.

Murukuti Papwh ('l, and deffering from The

Official Assignee, Madras v. Sampath Naidu (')

and Bindeshwari Singh v.Har Narain Singh\'), thatj

s.43 applied and that the respondents had acquired

a good title.

In corning to this conclusion, they

relied on the illustration

to s. 43 as indicating its

true

scop~, an'1 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

tran­

saction in the garb of a an out and out sale of

the property, and there is no erroneous re­

presentat,ion 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 trasferred is not a mere

chance

of succession but immoveable property

itself,

and the transferee acts upon such

erroneous representation,

then if the

trans­

feror happens later, before the contract of

transfer comes to an end, t.o acquire an in­

terest in that property, no matter whether

by private purchase, gift, legacy or by

inheritance

or otherwise, the previous

trans­

fer 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." (pp. 478,479).

This

deci~ion was followed by the Bombay High

Court in Vitluibai v. Jfalhar Shankar (') and by the

(I) [1915] 29 M. L. J. 738.

(3) ( 192 9) l. L. R. f Luck. G22.

(2) [1933] 65 M.L.J. 588.

(4)

J. L. R. (1938)

Bom.15>.

1962

The Jumma MaJiid,

M,,cara

v.

Kodimaniandra_

Devi ah

lM

1/,. J-Jl.V~.

"-· ••

Koli-*ir•

o..w.

A{,iw J.

570 SUPREME COURT REPORTS (1962] SUPP.

Patna High Court in Ram Japan v. Jage.mra Kuer(1).

A similar view had been taken by the Nagpur

High Court in Syed Bi,sinilla v. M anul,al Chabil­

das (').

Tho preponderance of judicial opinion is in

favour of the view taken by the Madras High

Court

in Alamanaya K unigari N

ali Sab v. JI urukuti

Papiah ('), and approved by the Full Bench in the

decision now under appeal.

In our judgment, the

interpretation placed

on s. 43 in those

decisions

correct and the contrary opinion is erroneous.

Wo accordingly hold .that when a person transfers

property representing

that

hG has a presont interest

therein, whereas he has, in fact, only a «pes succe88i­

anis, tho transferee is entitled to the benefit of

s. 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 praesenli, and it has been found that the pur·

chaser entered into the transaction acting on that

representation. H .. therefore acquired title to the

prop1J1tics under s. H of the Transfer of Property

Act, when Santhappa became in titulo on the death

of Gangamma on Febrnary 17, 1033, and the

subsequent dealing with them by Sa.nthappa by

way

of

release undcor Ex. A did not operate to

vest any title in the appellant.

The Courts ht-low were right in upholding the

title

of the

respoudents, and this appeal must be

dismi88e<l with costs of the third respondent, who

alone appears.

Appeal di8mi.ssed.

(I) t, I. R.1939. Pat. 116, (2) A. I. R 1931 Nag. 51.

(3) (1915] 29 M.L.J. 733.