-By Muhammad Iftekhar Khan, student of LLB (Hons.) at Banaras Hindu University.
Introduction
The case of Jumma Masjid vs Kodi Maniandra is related to the Transfer of Property Act 1882, and deals with a very crucial conflict related to the Property Act. It deals with the distinction between Section 6(a) and section 43 of the Act. The Honourable Supreme Court in this case observed that both laws belongs to two different spheres and there is no any conflict between them.
Now before pondering into the facts of the case it is important to understand what are the provisions given under both sections and what is point of subsisting conflict.
What the two law says ?
Sec 6(a)- Spes-Successionis
Section 6 of the TPA 1882 talks about what may be transferred. According to this section, 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.
And on dissenting clause (a) of section 6 we get,
(1) The chance of an apparent heir succeeding to an estate,
(2) the chance of a relation obtaining legacy on the death of a kinsman, or
(3)any other mere possibility of a like nature, cannot be transferred.”
Now it is to be understood that the term heir apparent is based on the maxim “nemo est heres viventis”, which means that a living person does not have any heir, i.e. to whom the property will pass to can only be determined upon the death of the owner of the property. The possibility of the apparent heir to inherit an intestate property is called spes successionis and the transfer of the same is void ab initio. It is to be noted that this void transfer also does not create any right in favor of the transferee, even if the transferor who transfers a chance may in fact become the owner of the same property in future. The point which is to be highlighted here is that the transferee has the knowledge that the transferor has no any right relating to property at present and knowingly the transaction has been made.
Sec 43- Feeding the grant by Estoppel
Section 43 of the Act deals with such transfers which is done by an unauthorized person who subsequently acquires interest in property transferred.
And on the dissection of the same we get
- Where a person fraudulently or erroneoussly represent that he is authorized to transfer certain immovable property,
- and profess to transfer 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 subsist.
- Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option”
The rule contained under this provision is known as rule of “Feeding the grant by estoppel”. In simple terms it can be undertood that if a person fraudulently misrepresents themselves to transfer the interest of a certain immovable property of which he is not an owner but later acquired the proper interest over such property, then the transferee has the right to either rescind the contract or go ahead with it and acquire the said property and the willingness of the transferor to sell or not to sell does not matter anymore. The point here to be noted is that the transferee has no knowledge of the fraud being committed and has acted on the representation in good faith with consideration.
Conflict between Section 6(a) and section 43
In the transfers made under both the said sections, the transferor has no right to transfer at the time of making transfer and there lies the point of conflict. Sec 6(a) favours no transfer while Sec 43 favours transfer if promised earlier, the only difference is that transferee had no knowledge and had acted in good faith on representation. So the entire gamut of conflict revolves around the knowledge of the fact that transferor has the authority to transfer or not and whether Ss 6(a) comes within the scope of Ss. 43.
The picture was cleared by the Supreme Court in Case of Jumma Masjid vs Kodimaniandra. Let us see the fact of the case
Fact of the case
In this case three brothers (X1, X2, X3) had mortgaged property in the year 1990 for a period of twenty years. It was stated that after the completion of twenty years, the property will be returned to the family of the three brothers.
In the family, the two brothers were married, and their wives were w1 and w2, while the third brother was unmarried. These three brothers also had a sister S1, and she had two children, and three grandsons ( P, Q, and R). Everybody died, just the two wives and the grandchildren remained.
Now as per the established rule, till the wives are alive they will hold the property and if both the wives dies the property will go to the sister and to the grandsons thereafter. The interest of the three grandsons in the property was a mere spes successionis and according to Section 6(a), non transferable.
It happened that the grandsons transferred the property to a transferee and misrepresented the fact that they held the ownership. To this w2 filed a case against the grandson. In the 1st appeal, the court favoured the w2 and dismissed the case. After this 2nd appeal made, meanwhile w2 died, and the property went to the grandsons. Now the transferee claimed for the property as there was an existence of consideration behind the transfer u/s 43.
Interestingly a new party entered named Jumma Masjid claiming that the property was transferred to them in the form of a gift deed by the w2.
Contention raised
- The claim of the transferee on the ground of estoppel.
- Jumma Masjid claimed gift deed they received. Another argument was that the grandsons are the heir and under spes succession hence section 43 must be read as subject to the provision of Ss 6(a) of the Act and they are not eligible for transfer of the property thus making the whole transfer to transferee to be invalid.
Issue raised
- Whether a transfer of property made by a person who has only a speculative succession u/s 6(a) falls under the protection of Section 43 of TPA ?
- Whether Ss.43 is destroying the idea behind Ss. 6(a)?
What the court observed?
The Apex Court held that Section 43 applies when a person transfers property, representing that they have a present interest in it, but in reality, they only have Spes Successionis. The court upheld transferees title, concluding that the transfer to him was valid since he had acted on the faith of the grandsons’ representation and had offered consideration for the transfer .
The court observed, Ss. 6(a) and Ss. 43 relate to two different domain, and there is no necessary conflict between them. Section 6(a) gives the rule of a substantive law, while Ss. 43 enacts a rule of estoppel. Both provisions operate on different fields and under different conditions and there is no ground for reading a conflict between them.
Court further clarified that what is material for Ss.43 is that transferor made representation and the transferee has acted on it. Where the transferee had the knowledge of the 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 transfer. Ss.43 would then have no application, and the transfer will fail under Ss. 6(a)
Conclusion
Section 43 of the Act enables a special provision for the protection of the right of the transferees for the consideration given, and the same was upheld by the court. The Apex court also settled the nuances between the two said section of Transfer of Property Act 1882
Relevant Case laws
In case of Alamanaya Kunigari Nabi Sab v. Murukuti Papiah 1915 it was held that if the transferee acted on thetransferor’s representation, which is a spes succession, the case would support the doctrine of estoppel, and the transferee will have all the rights and ground equired to acquire the property
In case of Robinson v Macdonnell it was observed that a property, which at the date of the assignment, is either not in existence, or not the grantor’s property, is not transferable.
