Jumma Masjid, Mercara v Kodimaniandra Deviah (1962)

Sections 6(a) and 43 appear to contradict each other. Section 6(a) says the chance of an heir apparent cannot be transferred. Section 43 says that a transferor who erroneously represents a title he does not have, and later acquires it, may be compelled to make the transfer good. If the transferor's only interest was a chance of succession, which section wins?

Jumma Masjid answers it, and does so with a distinction that is the single most quotable line in Module I: s. 6(a) is a rule of substantive law; s. 43 is a rule of estoppel, which is a rule of evidence. They operate in different fields.

A joint family of three brothers. Nanjundappa died in 1907 leaving a widow, Ammakka, who succeeded to the family properties. She died in 1910, on which the estate devolved on Basappa, Mallappa and Santhappa, the sister's grandsons, as next reversioners. Basappa (the brother) had died in 1901 leaving a widow, Gangamma.

By a sale deed of 18 November 1920 the three reversioners sold the suit properties to Ganapathi for Rs 2,000, reciting that the properties had belonged to the joint family and had devolved on them as the next reversioners of the last male owner. A rectification deed followed on 12 March 1921.

Ganapathi sued for possession. Gangamma successfully defended, establishing that the properties were the self-acquisitions of her husband Basappa, so that she and not the reversioners was entitled. On that footing the vendors of 1920 had had no present interest at all — only a chance of succeeding on Gangamma's death.

Gangamma died on 17 February 1933. Before that, on 3 March 1933 — and after her death, on the Court's chronology, the title vested — Santhappa executed a release deed in favour of the Jumma Masjid, Mercara, relinquishing his half share for Rs 300. The mosque sued in 1945 for a half share, saying that the 1920 sale was of a mere spes successionis and therefore void under s. 6(a). The purchaser's answer was s. 43.

Whether a transfer for consideration made by a person who represents that he has a present and transferable interest, while in fact he has only a spes successionis, is within the protection of s. 43.

Yes. The appeal was dismissed with costs. Santhappa had represented a present title; the purchaser acted on that representation; when Santhappa became entitled on Gangamma's death in 1933 the earlier sale fastened on the after-acquired title, and the release to the mosque passed nothing.

1. The section on its own terms. Where a person transfers property to which he has no title on a representation that he has a present and transferable interest, and the transferee takes for consideration acting on it, then if the transferor later acquires the property the transferee becomes entitled to it, provided the transfer is still subsisting. Save for the exception protecting a later transferee for consideration in good faith and without notice, "the section is absolute and unqualified in its operation", 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".

2. Reading in an exception would be rewriting the section. The appellant asked the Court to treat s. 43 as inapplicable wherever the transferor's interest was of the s. 6(a) kind. That would be to import a new proviso: "Nothing in this section shall operate to confer on the transferee any title, if the transferor had at the date of the transfer an interest of the kind mentioned in Section 6(a)". The Court's answer, borrowing Lord Loreburn LC in Vickers v Evans, is that a court is not entitled "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".

3. The two sections do not collide. This is the passage to learn:

"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 Section 43 enacts a rule of estoppel which is one of evidence."

4. Estoppel under the statute, not against it. The objection that there can be no estoppel against a statute was met squarely. Rules of estoppel are indeed not to be used to circumvent statutory prohibitions founded on public policy. But here the matter does not rest on s. 6(a) alone: the legislature has itself enacted s. 43 for the protection of transferees for consideration, so the plea "is one pleaded under, and not against the statute".

5. The illustration to s. 43 settles it. In the illustration A, separated from his father B, sells fields X, Y and Z to C representing that he is authorised to transfer them; Z in truth belongs to B, and A obtains it only on B's death; yet C may require A to deliver Z. At the moment of sale A had only a spes successionis. The Court refused to reject the illustration as repugnant, quoting the Privy Council in Mahomed Syedol Ariffin v Yeoh Ooi Gark: "It is the duty of a court of law to accept, if that can be done, the illustrations given as being both of relevance and value in the construction of the text", and it would be "the very last resort of construction" to assume repugnancy.

| Decision | View taken | |---|---| | Alamanaya Kunigari Nabi Sab v Murukuti Papiah (Mad, 1915) | s. 43 applies. It distinguishes purporting to transfer the chance of an heir apparent from erroneously representing authority to transfer immovable property; here the transferor was represented as entitled in praesenti | | Official Assignee, Madras v Sampath Naidu (Mad, 1933) | s. 43 does not apply; a transfer void under s. 6(a) cannot be validated. Bardswell J feared that a distinction would let "a clever description of the property dealt with in a deed of transfer" conceal the real transaction and "evade a clear statutory prohibition" | | Jumma Masjid (SC, 1962) | The Nabi Sab view is correct; Sampath Naidu is erroneous |

The distinction the Supreme Court approved is the operative one for problems: if the deed says on its face that what is sold is a chance of succession, the transfer is void under s. 6(a); if it asserts a present interest which the transferor does not have, s. 43 applies.

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.

The section protects only a transferee who was in fact misled. As the later restatement in Kartar Singh v Harbans Kaur (case 05) makes explicit, where the transferee "knows as a fact that the transferor does not possess the title which he represents he has", he cannot be said to have acted on the representation, s. 43 has no application, and the transfer fails under s. 6(a). The other limits are on the face of the section: the transfer must be for consideration, it must be subsisting and not rescinded when the option is exercised, and the section does not defeat a later transferee for consideration in good faith and without notice.