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Jumma Masjid, Mercara v. Kodimaniandra Deviah, AIR1962 SC 847

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 18-Aug-2023

Introduction  

  • This is the landmark judgment which draws a comparison between the Rule of Feeding the Grant by Estoppel under Section 43 of the Transfer of Property Act, 1882 (TOPA) and Spes Successionis under Section 6 (a) of the Act.  
  • In this case the Supreme Court considered the fact that these two laws belong to two different spheres and there exists no conflict between them.  

Facts 

  • There was a joint family consisting of 3 brothers namely B1, B2 & B3. 
  • B1 died unmarried, B2 died in 1901, leaving behind a widow W1, and B3 died in 1907 leaving him surviving his widow W2, who succeeded to all the family properties as his heir. 
  • These three brothers also had a sister S (died), and she had two children, and three grandsons (G1, G2, and G3). 
  • Grandsons were the heirs under the ground of spes successionis 
  • It was also mentioned that G1 will receive ½ of the share of the property while the other grandsons will get ¼ of the share of the property each. 
  • On Nov 18, 1920, the 3 grandsons sold the suit properties to one Ganapathi (T) making him believe that these three were actual owners of the property now. 
  • To this W1 filed a case against the grandsons as she was still alive, and property belonged to her. The court passed a decree in her favor 
  • However, transfer to T was still valid as per Section 43 of the Act. 
  • Ganapathi (T) applied to the Revenue Authorities to transfer the patta for the lands standing in the name of W1 to his own name, in accordance with the sale deed. 
  • After this before the 2nd appeal, W1 died, and the property went to the grandsons. 
  • Here the Jumma Masjid, Mercara intervened and claimed that it was entitled to the properties on 2 grounds : 
    • Firstly, under a gift alleged to have been made by W1 before dying, and 
    • Secondly, under a deed of release executed by B1, one of the reversioners, giving up his half-share in the properties to the mosque for Rs. 300 as consideration. 
  • The Revenue Authorities declined to accept the title of the appellant and directed that the name of Ganapathi should be entered as the owner of the properties.  
  • Ganapathi (T) contended that since he did not know that those three reversioners were not actually the owners because they themselves represented as if they had the title, and now when they are in actual possession after the death of W1, according to Sec. 43, TOPA, 1882 which includes Rule of Estoppel, he (T) should be entitled to get the title of the property. 
  • Masjid claimed that three reversioners were only expecting that property in succession and did not have any title then and therefore under section 6(a), those three reversioners were not entitled to transfer the property and that the sale of that property to Ganapathi (T) by 3 reversioners was void. 

Issue Involved 

Whether a transfer of property, in return for some consideration, made by a person who represents that he has a present and transferable interest in that property, while in reality he possesses only a spec succession, is within the protection of Section 43 of the TOPA, 1882? 

Observations 

  • On the contention by appellant (Jumma Masjid) that sale was void under Sec 6(a), TOPA the Apex Court observed that: 
    • Section 6(a) and Section 43 relate to two different subjects, and there is no necessary conflict between them. 
    • Section 6(a) deals with certain kinds of interests in a property mentioned therein and prohibits the transfer simply 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 Section 43 enacts a rule of estoppel which is one of the rules of evidence law. 
    • Both provisions cannot be combined. 
  • The court observed the Ganpathi (T) claimed to be valid. Hence, dismissed the claim of Jumma Masjid.  

Conclusion 

  • The court held that when a person transfers property representing that he has a present interest in that property, whereas he has, in fact, only a spes successionis, the transferee (means to whom the property is transferred) is entitled to the benefit of Section 43, if he has taken the transfer on the faith of that representation and for consideration. 
  • The Apex Court further held that the courts below were right in upholding the title of the respondents. 

Notes 

According to Section 6 (a) of the Transfer of Property Act, 1882 - 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, — 

(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; 

According to Section 43 of the Transfer of Property Act, 1882 - Transfer by unauthorised person who subsequently acquires interest in property transferred. —Where a person [fraudulently or] erroneously represents that he is authorised 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.