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Comparison Of Sections 6(A) And Section 43 - Jumma Masjid Mercara v/s Kodi Maniandra Deviah

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 between them. 

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 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;
In common law, A property, which at the date of the assignment, is either not in existence, or not the grantor�s 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.

According to 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 43

The primary differences between the two are as follows:
  1. Section 6(a) enacts a rule of substantive law, while section 43 incorporates a rule of estoppel
  2. 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.
  3. 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.
  4. 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.
  5. 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 value.

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 party�s 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 widows.

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 husband�s 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.

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