The Jumma Masjid, Mercara Vs.
Kodimaniandra Deviah  INSC 3 (11 January 1962)
11/01/1962 AIYYAR, T.L.
VENKATARAMA AIYYAR, T.L. VENKATARAMA KAPUR, J.L.
CITATION: 1962 AIR 847 1962 SCR Supl. (2) 554
Transfer of Property-Sale by reversioner for
consideration-Fraudulent or erroneous representation-Present transferable
intereset, though in fact spes successionis-Subsequent acquisition of
title-Effect-Rule of estoppel-When to be resorted to Transfer of Property Act,
1882(4 of 1882), s. 6(a). Interpretation of Statute- Consiruing of section-If
new words could be read into it-Illustration to a section-When could be used to
enlarge the language-If admissible in construing a section.
M and S claiming to be reversioners to the
estate of N sold the property in dispute to G predecessor-in-interest of the
respondents. The sale deed recited that the property belonged to the joint
family of two brothers N and B, and on the death of N it was inherited by his
widow and on her death it had devolved upon them as reversioners to the state.
G sued to recover possession of the properties. The suit was contested by the
widow of B(brother of N) claiming that the property was the self acquired
property of her husband. During the pendency of the litigation the widow died,
and G applied to the revenue authorities to transfer the 'pattas' in his name.
The appellants intervened alleging that the property was gifted to them by the
widow, and S one of the reversioners had also executed a release of the said
property for a consideration.
This objection was rejected. The appellants
then sued for possession of a half share in the properties held by the widow of
B, relying upon the gift by the widow, and the deed of surrender by S one of
the two reversioners to the estate of N. They contended that the Vendors of the
property to G had 555 only a spes successionis during the life time of the
widow of B, and the transfer was on that account void and conferred no title.
The heirs of contended that the property was sold to by M and S on a
representation that the Vendor had become entitled thereto, and the appellants
as transferees from S were estopped from asserting that it was in fact the
self-acquisition of and that in consequence he had no title at the date of the
Held, that where a person transfers property
representing that he has a present interest therein, whereas he has, in fact,
only a specs successions, the transferee is entitled to the benefit of s. 43 of
the Transfer of Property Act, 1882, if he has taken the transfer for
consideration and on the faith of the representation.
Held, further, that apart from the exception
in favour of transferees for consideration in good faith and without notice of
the rights under the prior transfer s. 43 of the Transfer of Property Act is
absolute and unqualified in its operation.
It applies to all transfers which fulfill the
conditions prescribed therein, and it makes no difference in its application
whether the defect of title in the transferor arises by reason of his having no
interest in the property, or of his interest therein being that of an expectant
The section deals with transfers which fail
for want of title in the transferor and not want of capacity in him at the time
of transfer. It embodies a rule of estoppel and enacts that a person who makes
a representation shall not be heard to allege the contrary as against a person
who acts on the representation. It is immaterial whether the transferor acts
bona fide or fraudulently in making the representation. It is only material to
find out whether in fact the transferee has been misled. In view of the
specific provision of s. 43 the principle of estoppel against a statute does
not apply to transfers prohibited by s. 6 (a) of the Act. The two provisions
operate in different fields and under different conditions. There is no
necessary conflict between them, and the ambit of one cannot be cut down by
reference to the other. Section 6(a) enacts a rule of substantive law, while s.
43 enacts a rule of estoppel which is one of evidence.
Held, also, that if the language of the
section clearly excludes from its purview certain matters, it would not be
legitimate to use the illustration to the section to enlarge it. It is not to
be readily assumed that an illustration to a section is repugnant to it and
Vickers v. Evans, (1910)79 L.J.K.B. 955,
556 Sadiq Ali Khan v. Jai Kishori, A.I.R.
1928 P.C. 152, Gadigeppa v. Balangauda, (1931) I.L.R.
55 Bom. 741, Ajudhia Prasad v. Chandan Lal,
(1937) All. 860 F.B.; Mohomed Syedol Ariffin
v. Yeoh Ooi Gark; (1916) L.R. 43 I.A. 256; Levine v.
Brougham, (1909) 25 T.L.R. 265; Leslie Ltd.
v. Sheill,  3 K B. 607 and Khan Gul v. Lakha Singh (1928) I.L.R. 9 Lah.
701(F.B.), referred to.
Alamanaya Kunigari Nabi Sab v. Murukuti
Papiah, (1915) 29 M.L.J. 733, Shyam Narain v. Mangal Prasad, (1935) I.L.R. 57
All. 474, Vithabai v. Mathar Shankar, I.L.R. (1938) Bom. 155, Ram Japan v.
Jagesara Kuer, A.I.R. 1939 Pat. 116 and Syed Bismilla v. Munulal Chabildas, A.I
R. 1931 Nag. 51, approved.
Official Assignee, Madras v. Sampath Naidu,
65 M.L.J. 588 and Bindeshwari Singh v. Har Narain Singh, (1929) I.L.R. 4 Luck.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 207 of 1956.
Appeal from the judgment and decree dated
November 5, 1952, of the Madras High Court in Appeal No. 852 of 1948.
R. Thiagarajan and G. Gopalakrishnan, for the
Ganapathy Iyer, for respondent No. 3.
1962. January 11. The Judgment of the Court
was delivered by VENKATARAMA AIYAR, J.-This is an appeal against the Judgment
of the High Court of Madras, dismissing the suit filed by the appellant, as
Muthavalli of the Jumma Masjid, Mercara for possession of a half-share in the
properties specified in the plaint. The facts are not in dispute. There was a
joint family consisting of three brothers, Santhappa, Nanjundappa and Basappa.
Of these, Santhappa died unmarried, Basappa died in 1901, leaving behind a
widow Gangamma, and Najundappa died in 1907 leaving him surviving his widow
Ammakka, who succeeded to all the family properties as his heir. On the death
of Ammakka, which took place in 1910, the estate devolved on Basappa, Mallappa
and Santhappa, the sister's grandsons of 557 Nanjundappa as his next
reversioners. The relationship of the parties is shown in the following
--------------------------------------------- ----- | | | | Santhappa
Nanjundappa Basappa Mallammal d. 1907 d. 1901 | =Ammakka =Gangamma | d.1910
--------------- ------ | | Ramegowda Mallegowda | | ----------------- | | | |
Basappa Mallappa Santhappa On August 5, 1900, Nanjundappa and Basappa executed
a usufructuary mortgage over the properties which form the subject-matter of
this litigation, and one Appanna Shetty, having obtained an assignment thereof,
filed a suit to enforce it, O.S. 9 of 1903, in the court of the Subordinate
Judge, Coorg. That ended in a compromise decree, which provided that Appanna
Shetty was to enjoy the usufruct from the hypotheca till August, 1920, in full
satisfaction of all his claims under the mortgage, and that the properties were
thereafter to revert to the family of the mortgagors. By a sale deed dated
November 18, 1920, Ex. III, the three reversioners, Basappa, Nallappa and
Santhappa, sold the suit properties to one Ganapathi, under whom the
respondents claim, for a consideration of Rs. 2,000. Therein the vendors recite
that the properties in question belonged to the joint family of Nanjundappa and
his brother Basappa, that on the death of Nanjundappa, Ammakka inherited them
as his widow, and on her death, they had devolved on them as the next
reversioners of the last male 558 owner. On March 12, 1921, the vendors
executed another deed, Ex. IV, by which Ex. III was rectified by inclusion of
certain items of properties, which were stated to have been left out by
oversight. It is on these documents that the title of the respondents rests.
On the strength of these two deeds, Ganapathi
sued to recover possession of the properties comprised therein. The suit was
contested by Gangamma, who claimed that the properties in question were the
self-acquisitions of her husband Basappa, and that she, as his heir, was
entitled to them. The Subordinate Judge of Coorg who tried the suit accepted
this contention, and his finding was affirmed by the District Judge on appeal,
and by the, Judicial Commissioner in second appeal.
But before the second appeal was finally
disposed of, Gangamma died on February 17, 1933. Thereupon Ganapathi applied to
the revenue authorities to transfer the patta for the lands standing in the
name of Gangamma to his own name, in accordance with the sale deed Ex. III. The
appellant intervened in these proceedings and claimed that the Jumma Masjid, Mercara,
had become entitled to the properties held by Gangamma, firstly, under a
Sadakah or gift alleged to have been made by her on September 5, 1932, and,
secondly, under a deed of release executed on March 3, 1933, by Santhappa, one
of the reversioners, relinquishing his half-share in the properties to the
mosque for a consideration of Rs. 300. By an order dated September 9, 1933, Ex.
II, 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. Pursuant to this order, Ganapathi got into possession of the
The suit out of which the present appeal
arises was instituted by the appellant on January 2, 1945, for recovery of a
half-share in the properties that 559 had been held by Gangamma and for mesne
In the plaint, the title of the appellant to
the properties is based both on the gift which Gangamma is alleged to have made
on September 5, 1932, and on the release deed executed by Santhappa, the
reversioner, on March 3, 1933. With reference to the title put forward by the
respondents on the basis of Ex. III and Ex. IV, the claim made in the plaint is
that as the vendors had only a spes succession is in the properties during the
lifetime of Gangamma, the transfer was void and conferred no title. The defence
of the respondents to the suit was that as Santhappa had sold the properties to
Ganapathi on a representation that he had become entitled to them as
reversioner of Nanjundappa, on the death of Ammakka in 1910, he was estopped
from asserting that they were in fact the self-acquisitions of Basappa, and
that he had, in consequence, no title at the dates of Ex. III and Ex. IV. The
appellant, it was contended, could, therefore, get no title as against them
under the release deed Ex. A, dated March 3, 1933.
The District Judge of Coorg who heard the
action held that the alleged gift by Gangamma on September 5, 1932, had not
been established, and as this ground of title was abandoned by the appellant in
the High Court, no further notice will be taken of it. Dealing next with the
title claimed by the appellant under the release deed, Ex. A executed by
Santhappa, the District Judge held that as Ganapathi had purchased the
properties under Ex. III on the faith of the representation contained therein
that the vendors had become entitled to them on the death of Ammakka in 1910,
he acquired a good title under s. 43 of the Transfer of Property Act, and that
Ex. A could not prevail as against it. He accordingly dismissed the suit. The
plaintiff took the matter in appeal to the High Court, Madras, and in view of
the conflict of authorities on the question in that Court, the case was refer
560 red for the decision of a Full Bench. The learned Judges who heard the
reference agreed with the court below that the purchaser under Ex. III had, in
taking the sale, acted on the representation as to title contained therein, and
held that as the sale by the vendors was of properties in which they claimed a
present interest and not of a mere right to succeed in future, s. 43 of the Transfer
of Property Act applied, and the sale became operative when the vendors
acquired title to the properties on the death of Gangamma on February 17, 1933.
In the result, the appeal was dismissed.
The appellant then applied for leave to
appeal to this Court under Art. 133(1)(c), and the same was granted by the High
Court of Mysore to which the matter had become transferred under s. 4 of Act 72
of 1952. That is how the appeal comes before us.
The sole point for determination in this
appeal is, 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 spes succession is, is within the protection of
s. 43 of the Transfer of Property Act. If it is, then on the facts found by the
courts below, the title of the respondents under Ex. III and Ex. IV must
prevail over that of the appellant under Ex. A. If it is not, then the
appellant succeeds on the basis of Ex A.
Section 43 of the Transfer of Property Act
runs as follows:- "Where a person fraudulently or erroneously represents
that he is authorised to transfer certain immovable 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 contact of transfer subsists.
561 Nothing in this section shall impair the
right of transferees in good faith for consideration without notice of the
existence of the said option." Considering the scope of the section on its
terms, it clearly applies whenever a person transfers property to which he has
no title on a representation that he has a present and transferable interes
therein, and acting on that representation, the transferee takes a transfer for
consideration. When these conditions are satisfied, the section enacts that if
the transferor subsequently acquires the property, the transferee becomes
entitled to it, if the transfer has not meantime been thrown up or cancelled
and is subsisting. There is an exception in favour of transferees for
consideration in good faith and without notice of the rights under the prior
transfer. But apart from that, the section is absolute and unqualified in its
operation. It applies to all transfers which fulfill the conditions prescribed
therein, and it makes 1. O 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 contention on behalf of the appellant is
that s. 43 must be read subject to s. 6 (a) of the Transfer of Property Act
which enacts 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."
The argument is that if s. 43 is to be interpreted as having application to
Cases of what are in fact transfers of spes successions, that will have the
effect of nullifying s. 6 (a), and that therefore it would be proper to
construe s. 43 as limited to cases of transfers other than those falling within
. G(a). In effect, this argument involves importing 562 into the section a new
exception to the following effect; "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 s. 6 (a)." If we accede. to
this contention we will not be construing s.43. but rewriting it. "We are
not entitled", observed Lord Loreburn L. C., in Vickers v. Evans (1),
"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." Now the compelling
reason urged by the appellant for reading a further exception in s. 43 is that
if it is construed as applicable to transfers by persons who have only spes
succession is at the date of transfer, it would have the effect of nullifying
s. 6(a). But section 6(a) and s. 4 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 we see no ground for
reading a conflict between them or for outing down the ambit of the one by
reference to the other. In our opinion, both of them can he given full effect
on their own terms, in their respective spheres. To hold that transfers by
persons who have only a spes successionis at the date of transfer are not
within the protection afforded by s. 43 would destroy its utility to a large
It is also contended that as under the law
there can be no estoppel against a statute transfers 563 which are prohibited
by s. (6a) could not be held to be protected by s. 43. There would have been
considerable force in this argument if the question The fell to be decided
solely on the terms of s. 6 (a). Rules of estoppel are not to be resorted to
for defeating or circumventing prohibitions enacted by Statutes on grounds of
public policy. But here the matter does not rest only on s. 6 (a). We have in
addition, s. 43, which enacts a special provision for the protection of
transferees for consideration from persons who represent that they have present
title, which, in fact, they have not. And the point for decision is simply whether
on then facts the respondents are entitled to the benefit of this section. If
they are, as found by the courts below, then the plea of estoppel raised by
them on the terms of the section is one pleaded under, and not against the
statute, The appellant also sought to rely on the decisions wherein it has been
held that a plea of estoppel could not be raised against a millor who had
transferred property on a representation that he was of age, and that s. 43 was
inapplicable to such transfers, vide Sadiq Ali Khan v. Jai Kishori Gadigeppa v.
Balanagauda (2) Ajudhia Prasad v. Chandan Lal(3)But the short answer to this
contention is that s. 43 deals with transfers which fail forwant of title in
the transferor and not want of capacity in him at the time of transfer. It may
further be observed in this connection that the doctrine of estoppel has been
held to have no application to persons who have no contractual capacity where
the claim is based on contract, vide Mahomed Syedol Ariffin, v. Yeoh Oai Gark
(4); Levine v. Brougham (5), Leslie Ltd. s. Sheil); Khan Gul v. Lakha Singh
(7). Decisions on transfers by minors therefore are of no assistance in
ascertaining the true scope of s. 43.
564 So far we have discussed the question on
the language of the section and on the principles applicable thereto. There is
an illustration appended.to s. 43, and we have deferred consideration thereof
to the last as there has been a controversy as to how far it is admissible in
construing the section. It is as follows:- "A, a Hindu, who has separated
from his father B, sells to C three fields, X, Y and Z, representing that A is
authorized to transfer the same. Of these fields Z does not belong to A, it
having been retained by B on the partition; but on B's dying A as heir obtains Z.
C, not having rescinded the contract of sale, may require A to deliver Z to
In this illustration, when A sold the field Z
to C, he had only a spes successionis. But he having subsequently inherited it,
became entitled to it.
This would appear to conclude the question
against the appellant. But it is argued that the illustration is repugnant to
the section and must be rejected. If the language of the section clearly
excluded from its purview transfers in which the transferor had only such
interest as is specified in s. 6(a), then it would undoubtedly not be
legitimate to use the illustration to enlarge it. But far from being restricted
in its scope as contended for by the appellant, the section is, in our view,
general in its terms and of sufficient amplitude to take in the class of
transfers now in question. It is not to be readily assumed that all
illustration to a section is repugnant to it and rejected. Reference may, in
this connection, be made to the following observations of the judicial Committee
in Mahomed Shedol Ariffin v. Yeoh Ooi Gark (1) as to the value to given to
illustrations appended to a section, in ascertaining its true scope:
565 "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. The illustrations should in no case
be rejected because they do not square with ideas possibly derived from another
system of jurisprudence as to the law with which they are the sections deal And
it would require a very special case to warrant their rejection on the ground
of their assumed repugnancy to the sections themselves. It would be the very
last resort of construction to make any such assumption. The great usefulness
of the illustrations, which have, although no part of the sections, been
expressly furnished by the Legislature as helpful in the working and
application of the statute, should not be thus impaired." We shall now
proceed to consider the more important cases wherein the present question has
been considered. One of the earliest of them is the decision of the Madras High
court in Alamanaya Kunigari Nabi Sab v. Murukuti Papiah (1). That arose out of
a suit to enforce a mortgage executed by the son over properties belonging to
the father while he was alive. The father died pending the suit, and the
properties devolved on the son as his heir. The point for decision was whether
the mortgagee could claim the protection of s. 43 of the Transfer of Property
Act. The argument against is was that "s. 43 could not be so construed as
to nullify s. 6(a) of the Transfer of Property Act, by validating a transfer
initially void under s 6(a)". In rejecting this contention, the Court
observed:- "This argument, however, neglects the distinction between
purporting to transfer `the chance of an heir-apparent,' and `erroneously
representing that he (the transferor) is 566 authorised to transfer certain
immoveable property." It is the latter course that was followed in the
present case. It was represented to the transferee that the transferor was in
praesenti entitled to and thus authorise to transfer the property." (p. 736)
On this reasoning if a transfer is statedly of an interest of the character
mentioned in s. 6(a), it would be void, whereas, if it purports to be of an
interest in praesenti, it is within the protection afforded by s. 43 Then we
come to the decision in The official Assignee, Madras v. Sampath Naidu (1),
where a different view was taken. The facts were that one v. Chetti had
executed two mortgages over properties in respect of which he had only spes
successionis. Then he succeeded to those properties as heir and then sold them
to one Ananda Mohan. A mortgagee claiming under Ananda Mohan filed a suit for a
declaration that the two mortgages created by Chetty before he had become
entitled to them as heir, were void as offending s. 6(a) of the Transfer of
Property Act. The mortgagee contended that in the events that had happened the
mortgages had become enforceable under s. 43 of the Act. The Court negatived
this contention and held that as the mortgages, when executed, contravened s.
6(a), they could not become valid under s. 43. Referring to the decision in
Alamanaya Kunigari Nabi Sab v. Murkuti Papiah (2), the Court observed that no
distinction could be drawn between a transfer of what is on the face of it spes
successionis, and what purports to be an interest in praesenti. "If such a
distinction were allowed", observed Bardswell, J., delivering the Judgment
of the Court, "the effect would be that by a clever description of the
property dealt with in a deed of transfer one would be allowed to conceal the
real nature of the transaction and evade a clear statutory prohibition."
567 This reasoning is open to the criticism that it ignores the principle
underlying s. 43. That section embodies, as already stated, a rule of estoppel
and enacts that a person who makes a representation shall not be heard to
allege the contrary as against a person who acts on that representation. It is
immaterial whether the transferor acts bona fide or fraudulently in making the
representation. It is only material to find out whether in fact the transferee
has been misled. It is to be noted that when the decision under consideration
was given, the relevant word of s. 43 were, "where a person erroneously represents",
and now, a amended by Act 20 of 1929, they are "where a person
fraudulently or erroneously represents", and that emphasises that for the
purpose of the section it matters not whether the transferor act fraudulently
or innocently in making the representation, and that what is material is that
he did made representation and the transferee has acted on it.
Where the transferee knew as a 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 a transfer. Section 43 would then have
no application, and the transfer will fail under s. 6(a). But where the
transferee does act on the representation, there is no reason why he should not
have the benefit of the equitable doctrine embodied in s. 43, however
fraudulent the act of the transferor might have been.
The learned Judges were further of the
opinion that in view of the decision of the Privy Council in Ananda Mohan Roy
v. Gour Mohan Mullick (1) and the decision in Sri Jagannada Raju v. Sri Rajah
Prasada Rao (2), which was approved therein, the illustration to s. 43 must be
rejected as repugnant to it. In Sri Jagannada Raju's case (2), the question was
whether a contract entered into by certain 568 presumptive reversioners to sell
the estate which was then held by a widow as heir could be specifically
enforced, after the succession had opened. It was held that as s. 6(a) forbade
transfers of spes successionis, contracts to make such transfers would be void
under s. 23 of the contract Act, and could not be enforced. This decision was
approved by the Privy Council in Ananda Mohan Roy v. Gour Mohan Mullick(1),
where also the question was whether a contract by the nearest reversioner to
sell property which was in the possession of a widow as heir was valid and
enforceable, and it was held that the prohibition under s. 6(a) would became
futile, if agreements to transfer could be enforced. These decisions have no
bearing on the question now under consideration, as to the right of a person
who for consideration takes a transfer of what is represented to be an interest
in praesenti. The decision in The Official Assinee, Madras v.
Sampatha Naidu (2) is, in our view,
erroneous, and was rightly over ruled in the decision now under appeal.
Proceeding on to the decisions of the other
High Courts, the point under discussion arose directly for decision in Shyam
Narain v. Mangal Prasad (3). The facts were similar to those in The official
Assignee, Madras s. Sampath Naidu(2) One Ram Narayan, who was the daughter's
son of the last male owner sold the properties in 1910 to the respondents,
while they were vested in the daughter Akashi. On her death in 1926, he
succeeded to the properties as heir and sold them in 1927 to the appellants.
The appellants claimed the estate on the ground that the sale in 1910 conferred
no title on the respondents as Ram Narayan had then only a spes successionis.
The respondents contended that they became entitled to the properties when Ram
Narayan acquired them as heir in 1926. The learned Judge, Sir S. M. Sulaiman,
C. J., and Rachhpal, J., held, agreeing with 569 the decision in Alamanaya
Kunigari, Nabi Sab v. Murukuti Papiah (1),and deffering from The official
Assignee, Madras v. Sampath Naidu (2),and Bindeshwari Singh v. Har Narain Singh
(3), that s.43 applied and that the respondents, had acquired a good title. In
coming to this, conclusion, they relied on the illustration to s. 43 as,
indicating its, true scope, and observed:- "Section 6 (a) would,
therefore, apply to cases, where professedly there is, a transfer of a mere
spes successionis, the parties knowing that the transferor has, no more right
than that of a mere expectant heir. The result, of course, would be the same
where the parties, knowing the full facts, fraudulently clothe the transaction
in the garb of a an out and out sale of the property, and there is, no
erroneous representation made by the transferor to the transferor as, to his,
"But where an erroneous, representation
is, made by the transferor to the transferee that he is, the full owner of the
property transferred and is authorized to transfer it and the property
transferred is not a mere chance of succession but immovable property itself,
and the transferee acts, upon such erroneous representation, then if the
transferor happens, later, before the contract of transfer comes, to an end, to
acquire an interest in that property, no matter whether by private purchase,
gift, legacy or by inheritance or otherwise, the previous transfer can at the option
of the transferee operate on the interest which has, been subsequently
acquired, although it did not exit at the time of the transfer." (pp. 478,479).
This decision was followed by the Bombay High
Court in Vithabai v. Malhar Shankar (4) and by the 570 Patna High Court in Ram Japan v. Jagesara Kuer(1).
A similar view had been taken by the Nagpur
High Court in Syed, Bismilla v. Manulal Chabildas(2).
The preponderance of judicial opinion is in
favour of the view taken by the Madras High Court in Alamanaya Kunigari Nabi
Sab v. Murukuti Papiah (3), and approved by the Full Bench in the decision now
under appeal. In our judgment, the interpretation placed on s. 43 in those
decisions correct and the contrary opinion is erroneous. We accordingly hold
that 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. In the present case,
Santhappa, the vendor in Ex. III, represented that he was entitled to the
property in praesenti, and it has been found that the purchaser entered into
the transaction acting on that representation. He therefore acquired title to
the properties under s. 44 of the Transfer of Property Act, when Santhappa
became in titulo on the death of Gangamma on February 17, 1933, and the
subsequent dealing with them by Santhappa by way of release under Ex. A did not
operate to vest any title in the appellant.
The Courts below were right in upholding the
title of the respondents, and this appeal must be dismissed with costs of the
third respondent, who alone appears.