Alamanayakunigari Nabi Sab (Minor) v. Murukuti Papiah and Others (1915)

Section 6(a) says the chance of an heir-apparent succeeding to an estate cannot be transferred. Section 43 says that where a person erroneously represents that he is authorised to transfer immoveable property and later acquires an interest in it, the transfer operates on that interest at the option of the transferee. When a son mortgages his living father's land and then inherits it, which section wins?

This case is the Madras answer: s. 43 applies. The son did not purport to transfer his hope of inheriting; he represented that he owned the land now. Section 6(a) forbids the first; s. 43 deals with the second. It is one side of the conflict of High Court authority that the Supreme Court later resolved in Jumma Masjid, Mercara v. Kodimaniandra Deviah (1962).

The judgment is also a clear statement of the Muhammadan law on completing a gift by delivery of possession, particularly a gift to a minor.

On 2 December 1907 the 1st defendant mortgaged certain fields to the plaintiff for Rs. 300. He described himself as the son of the 2nd defendant (his father, Fakruddin) and signed the deed alone. The deed said: "These lands bearing this assessment are mortgaged by me." The land in fact belonged not to him but solely to his father.

When the plaintiff sued to enforce the mortgage, the father was alive. The plaintiff's case was that the son had acted as manager of the family and as agent for his father. The father denied this, and pleaded that he had already gifted the land to the 3rd defendant — his minor grandson (the son's son), a boy of seven — under a deed of gift, Exhibit I.

Before the suit was heard the father died, and under Muhammadan law his whole estate devolved on the 1st defendant. The plaintiff now relied on s. 43: the son had mortgaged land he did not own, and had since inherited it, so the mortgage should bite on it.

The defendants answered that (1) the land had been validly gifted to the grandson in the father's lifetime, so it never came to the son; and (2) even if it had, s. 43 did not apply. Both lower courts held the gift invalid and s. 43 applicable. The minor grandson brought this second appeal.

1. If the gift was invalid, does s. 43 make the son's mortgage operate on the land he later inherited — or would that allow a transfer of a spes successionis forbidden by s. 6(a)?
2. Was the father's gift to his minor grandson valid under Muhammadan law, so that the land never passed to the son?

The second appeal was dismissed with costs.

Section 43 applies (both judges agreed)

It was argued that applying s. 43 would let the son validly transfer his chance of succeeding as heir-apparent, contrary to s. 6(a). Tyabji J held that this argument "neglects the distinction between purporting to transfer the chance of an heir apparent," and "erroneously representing that he (the transferor) is authorised to transfer certain immoveable property." It was the second that happened here: "It was represented to the transferee that the transferor was" presently entitled to and thus authorised to transfer the property. In Ramasami Naik v. Ramasami Chetti, by contrast, the transferors had purported to transfer "mere possibilities of succession".

The illustration to s. 43 was "exactly in point except that the transfer is here by way of mortgage and in the illustration it is a sale." Here, as in the illustration, the son represented that he could transfer property which was in fact his father's; if he later obtained it as heir, the transferee could have it declared subject to the mortgage.

Ayling J said: "As regards the applicability of Section 43 of the Transfer of Property Act, in case the gift should be held invalid, I entirely agree with him."

Whether the son inherited: the gift

That turned on whether the father's gift to the grandson had been completed. Tyabji J stated the Muhammadan law:

• A gift "must be completed by the donor. He cannot be forced to complete a gift which he has not completed."
• "When, therefore, transfer of ownership is purported to be made, it is not complete unless transfer of possession is also made."
• If the property is already in the donee's possession, the donor need only declare that it is thenceforth to be held by the donee as his own; and where the donee is a minor, his place is taken by the person who in law is in charge of the minor's property.

But the question of possession "is primarily one of fact". The real question — lost sight of below — was whether, after the gift, the donee got the benefit of the property, or whether its produce continued to be taken by the donor for his own benefit as before. Where the donor keeps using the property exactly as before, it would be "very unreasonable to hold, in the absence of some explanation, that the transaction is real or that there is any intention to make a gift". The rule that a guardian's gift to his ward is complete by declaration is not meant to let a guardian keep the property and set up a gift against third parties: "The law is not made up of unmeaning technicalities."

The Court therefore called for a finding on whether the produce or benefit of the land was applied to the use of the donee after the gift.

The finding and the result

The District Judge of Cuddapah found that the produce and benefit of the land were not applied to the donee's use, and continued to be applied as before the gift. The High Court accepted the finding. The gift therefore failed; the land passed to the son as heir; and under s. 43 the mortgage operated on it.

1. Where a person who is only an expectant heir mortgages or sells immoveable property while representing that he is presently entitled to it, and later inherits it, s. 43 of the Transfer of Property Act makes the transfer operate on the inherited interest at the transferee's option. Section 6(a) does not stand in the way, because the transferor did not purport to transfer a chance of succession; he erroneously represented a present title.
2. Under Muhammadan law a gift is complete only when the donor transfers possession. Even where a declaration is enough (as with a guardian's gift to his ward of property already in his control), the gift fails if the donor in fact continues to take the benefit of the property exactly as before.

• Direct question: Explain the relationship between Sections 6(a) and 43 of the Transfer of Property Act. Use this case for the view that s. 43 applies when the transferor represents a present title — the distinction between transferring a spes successionis and erroneously representing ownership. Then state how the Supreme Court settled the High Court conflict in Jumma Masjid, Mercara.
• Problem question: A mortgages land belonging to his living father, describing it as his own; the father dies and A inherits. Can the mortgagee enforce the mortgage against the land? Apply s. 43 and this case: yes, at the mortgagee's option, provided he was misled by the representation.
• Point worth marks: the Court treated the fact that the transfer was a mortgage and not a sale (as in the illustration to s. 43) as making no difference.
• Cross-reference (Muslim law): gift to a minor and delivery of possession — the benefit test: who took the produce after the declaration of gift?