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: (a) 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.
Doctrine of spes successionis
The above shall be understood with S.60 of the CPC
which depicts of exclusions in the process of execution of decree or order. The things non-transferable under this clause are: (1) The chance of an heir succeeding to an estate, (2) The chance of a relation obtaining legacy (a gift by will) on the death of a kinsman, and (3) any other mere possibility of a like nature. (winning a lottery or prize in a certain competition), right to future offerings. Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable 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 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not belong to A, it having been retained by B on the partition; but on B’s dying A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him. Essentials: (1) A fraudulent or erroneous representation that the transferor had authority to transfer the immovable property; (2) The transfer is for consideration; (3) The transferee subsequently acquires the interest which he had professed to transfer, and (4) At any time during which the contract of transfer subsists. This section shall not impair the right of transferees in good faith for consideration without notice of the existence of the said option. Transfer by an unauthorized person. Whether the transferor acts bona fide or fraudulently or innocently. Where the transferee does act on the representation he will have the benefit of the equitable doctrine u/s.43 however fraudulent the act may be. Feeding the grant of estoppel: This works partly on the english doctrine that a man who has promised more than what he can perform, must make good his promise when he acquires the power of performance. Representation: The benefit of this section cannot be claimed by the transferee if he did not believe in or act upon it. There is no estoppel when truth is known to both the parties. Transfer is for consideration: It is not applicable when the transfer is gratuitous. By way of gift it is not applicable. Transfer forbidden by law: If it is invalid as being forbidden by law or contrary to public policy. When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. Santhappa Nanjudappa Basappa Mallammal Ammakka Gangamma
Rameshgowda Malleshgowda
Basappa Mallappa Santhappa
Brief facts: The facts are not in dispute. There was a joint family consisting of 3 brothers, Santhappa, Nanjudappa and Basappa and one sister, Mallammal. Santhappa died unmarried. Basappa died in 1901, leaving behind a widow Gangamma. Nanjudappa died in 1907 leaving his widow Ammakka and she died in 1910. The estate devolved on Basappa, Mallappa and Santhappa as next reversioners. By a sale deed Ex.III the three reversioners B, M and S, sold the properties to one Ganapathi, under whom respondents claim, for a consideration of Rs.2000/- as they are the last male owners. The vendor executed another deed, EX-IV through which certain items of properties were included. On the strength of these two deeds, Ganapathi sued to recover possession of the properties comprised therein. It was contested by Gangamma who claimed that they were self acquisitions of her husband, and that she, as his heir, was entitled to them. It was accepted by the Trial Courts. Gangamma died in 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 claimed that the ‘Gangamma’ has transferred the property through a Gift on dated Sep 5, 1932. Secondly, under a deed of release executed by Santhappa, one of the reversioners, relinquishing his half-share in the properties to the mosque for a consideration of Rs.300/- on March,1933 through Ex-A The Revenue authorities declined to accept the title of the appellant and directed to give the possession of the properties to Ganapathi. Issue: 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 only a spes successionis is within the protection of S.43 of the TPA or not? 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 defense argument was that as Santhappa had sold the properties to Ganapathi on a representation that he had become entitled to them as reversioner on the death of Ammakka. So he was estopped from asserting that he had no title at the dates of EX-III and EX-IV Considering the scope of the S.43 of the TPA “that it clearly applies whenever a person transfers property to which he has no title on a representation that he has a present and transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration”. If the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transferee has not cancelled the contract. The contention on behalf of the appellant is that S.43 must be read subject to S.6(a) of the TPA 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 S.43 is to be interpreted that will have effect of nullifying S.6(a), and that therefore it would be proper to construe S.43 as limited to cases of transfers other than those falling within S.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 tranferee any title, if the transferor had at the date of the transfer an interest of the kind mentioned in S.6(a)”. If we accede to this contention, we will not be construing S.43, but rewriting it. “We are not entitled”, observed Lord Loreburn L.C., in Vickers v. Evans “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”. 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. The contention on behalf of the appellant is that S.43 must be read subject to S.6(a) of the TPA 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”. S.6(a) and S.43 relate to two different subjects, and there is no necessary conflict between them. S.6(a) deals with certain kinds of interests in property mentioned therein, and prohibits a transfer simpliciter of those interests. S.43 deals with representations as to title made by a transferor who had no title at the time of transfer and got the title subsequently. S.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 two different fields, and different conditions, and we see no ground for reading a conflict between them. In our opinion, both of them can be given full effect on their own terms, in their respective spheres. It is also contended that as under the law there can be no estoppel against a statute, transfers which are prohibited by S.6(a) could not be held to be protected by S.43. Rules of estoppel are not to be restored for defeating or circumventing prohibition enacted by statutes on grounds of public policy. The point for decision is simply whether on the facts the respondents are entitled to the benefit of this section. The plea of estoppel raised by them on the terms of the section is one pleaded under, and not against the statute. We shall now proceed to consider the more important cases wherein the present question has been considered 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 Anand 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 S.6(a) of TPA. The mortgagee contended that in the events that had happened the mortgages had become enforceable u/s. 43. The Court negatived this contention and held that as the mortgages, when executed, contravened S.6(a) and they could not become valid u/s.43. Whether a distinction could be drawn between a transfer of what is on the face of its spes successionis, and what purports to be an interest in presenti. If such a distinction is allowed then that leads to:
“The effect would be that by a clever description of the
property dealt in a deed of transfer one would be allowed to conceal the real nature of the transaction and evade a clear statutory prohibition”. It is immaterial whether the transferor acts bonafide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. S.43 words were “where a person erroneously represents” and now, as amended in 1929 they are “where a person fraudulently or erroneously represents”. It does not matter in the cases of whether the transferor acted fraudulently or innocently in making the representation, 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 he cannot be said to have acted on it when taking a transfer, then S.43 would have no application, and the transfer will fail u/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. In our view Official Assignee, Madras case decision was erroneous and rightly overruled subsequently in the following case: Shyam Narain v. Mangal Prasad (1935 ILR 57 All 474): 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 court held that although he was not having the title at the time of the initial transfer however he subsequently got the title then S.43 apply. Before the contract of transfer comes to an end, the transferor acquires 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. Conclusion: 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 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 presenti, and it has been found that the purchaser entered into the transaction acting on that representation. He, therefore acquired title to the properties u/S.43 of the TPA, when Santhappa on the death of Gangamma on Feb 17, 1933, and the subsequent dealing with them by Santhappa by way of release u/Ex.A did not operate to vest any title in the appellant. The appeal must be dismissed with costs. Brief Facts: Smt.Harbans Kaur – respondent executed the sale deed in 1961, in favor of the appellant of alienating the lands on her behalf and on behalf of her minor son, Kulwant Singh. He, after attaining majority filed a case in 1975 for a declaration that the sale of his share in the lands mentioned in the schedule attached thereto by his mother was void and does not bind him. The decree ultimately was granted declaring that the sale was void as against the minor. But, before taking delivery of the possession, Kulwant Singh died. She, the mother being the class I heir succeeded to the estate of the deceased. The appellant laid his claim to the benefit of S.43 of the TPA, which was refused by the High Court. Thus these appeals by special leave. Issues: Whether the S.43 of the TPA applies to protect the rights on the property of the appellant or not? Observations: The contention for the appellant is that in view of the finding that Harbans Kaur had succeeded by operation of law, hence he is entitled to the interest acquired by her by operation of S.43 of the Act and the H.C has misapplied the ratio of decisions of this Court in Jumma Masjid, Mercara case, instead it would have applied the decision of the Patna H.C. in Jhulan Prasad v. Ram Raj Prasad (AIR 1979 Pat 54). To apply S.43 two conditions must be satisfied. 1. There is a fraudulent or erroneous representation made by the transferor to the transferee that he is authorized to transfer certain immovable property and in the purported exercise of authority, professed to transfer such property for consideration. 2. When it is discovered that the transferor acquired an interest in the transferred property, at the option of the transferee, he entitled to get the restitution of interest in property got by the transferor, provided the transferor acquires such interest in the property during which contract of transfer must subsist. In this case, admittedly, Kulwant Singh was a minor on the date of the transfer. The marginal note of the sale deed specifically mentions to the effect: “….that the land had been acquired by her and by her minor son by exercising the right of pre-emption and that she was executing the sale deed in respect of her own share and acting as guardian of her minor son so far as his share was concerned”. It is settled law that the transferee must make all reasonable and diligent enquiries regarding the capacity of the transferor and the necessity to alienate the estate of the minor. On satisfying those requirements, he is to enter and have the sale deed from the guardian or manager of the estate of the minor. Under the Guardian and Wards Act, the estate of the minor cannot be alienated unless a specific permission in that behalf is obtained from the district Court. Admittedly, no such permission was obtained. Therefore, the sale of the half share of the interest of Kulwant Singh made by his mother is void. S.43 feeds its estoppel. The rule of estoppel by deed by the transferor would apply only when the transferee has been misled. The transferee must know or put on notice that the transferor does not possess the title which he represents that he has. As a reasonable prudent man the appellant is expected to enquire whether on her own the mother as guardian of minor son is competent to alienate the estate of the minor. When such acts were not done the first limb of S.43 is not satisfied. It is obvious that it may be an erroneous representation and may not be fraudulent one made by the mother that she is entitled to alienate the estate of the minor. For the purpose of S.43 it is not strong material for consideration. On declaration that the sale is void, in the eye of law the contract is non est to the extent of the share of the minor from its inception. The second limb of S.43 is that the contract must be a subsisting one at the time of the claim. A void contract is no contract in the eye of law and was never in existence, hence second limb of this section is not satisfied. Conclusion: In the face of the existence of the aforementioned note and in the light of the law, it could be concluded that S.43 does not apply to the facts of this case. The ratio of the Patna H.C. also does not apply to the facts in this case as rightly distinguished by the H.C. It is made clear that the declaration given by the H.C. is only qua the right of the minor and it is fairly conceded by the respondent that the decree does not have any effect on the half share conveyed by the mother. If the appellant has any independent cause of action subsisting under the contract against the respondent, this judgment may not stand in this way to pursue the remedy under the law. The appeals are accordingly dismissed. S.6(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby; Right of re-entry: In leases if the rents are in arrears or breach of covenants in the lease but the transfer of land is allowed. A mere right of re-entry for breach of a condition subsequent to the grant of the lease cannot be transferred. An option to sell the property is valid under the law and the assignee can enforce the performance against the vendee and the vendee cannot plead the absence of privity of contract. S.6(c) An easement cannot be transferred apart from dominant heritage. Examples are rights of way, rights of water, rights of light etc., S.4 of the Easement Act, 1882 defines the Easment:
“an easement is a right which
the owner or occupier of certain land possesses as such for the beneficial enjoyment of land, to do and continue to do something, or to prevent and to continue to prevent something being done, in or upon or in respect of, certain other land which is not his own”. S.6(d). All interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. Eg., lease- not to sublease without the permission from the land lord. a religious office, a right of pre-emption - after the partition the brothers should have priority in buying the property. S.6(dd) Right to future maintenance: The objective of maintenance is that a person unable to maintain himself or herself should not be left destitute and should be prevented from being in a state of vagrancy. If it is allowed then its very object will be defeated. Clause 6(e): Mere right to sue: Damages for breach of contract, or for tort. The object is to prevent gambling in litigation. Right to sue is a personal right of the party aggrieved. Clause 6(f): Public Office cannot be transferred. This prohibition works on public policy. The salary of a public officer is not transferable, although u/s.60 of CPC it is attachable with certain limits. Clause 6(g): Pensions: To Military and civil pensioners of Government and political pensions cannot be transferred. These are given for the past services rendered. Clause 6(h): Nature of interest cannot be transferred. Such as services of inam etc., (ii) U/S 23 of the ICA, a consideration or object is unlawful if it is (1) forbidden by law; or (2) is of such nature that it defeats the provisions of any law; or (3) is fraudulent; or (4) involves or implies injury to the person or property of another; or (adoption given for consideration). (5) or the course regard it as immoral or (6) opposed to public policy. (iii) Disqualified to be a transferee: S.136,O21 r73. Clause 6(i): Un transferable right of occupancy.