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Report No. 70

Chapter 34

Transfer by Limited Owners

Section 38

34.1. Section 38.-

With section 38 begins a group of sections which is concerned only with the transfer of immovable property. Of these sections, the first is section 38, dealing with transfer by a person authorised only under certain circumstances to transfer. According to Mulla,1 the section would appear to be based on the leading case of Hanooman Prasad,2 the principle whereof, laid down in the specific situation of the manager for an infant heir under Hindu law, has been regarded as applicable also to a Hindu widow or other limited heir,3 and to transactions in which a father has made an alienation of an ancestral family estate.4

The same principle applies to alienations by a Mahant or Shebait of property.5 Though some of the situations have lost their importance because of the reform of the Hindu Law of succession, many of them have not, partly because the Hindu law of co-parcenership has not yet been modified and partly because the Hindu law of religious and charitable endowments has been left untouched by legislation so far as the limited nature of the power of Mahant or Shebait is concerned.

1. Mulla, (1973), p. 179.

2. Hanooman Prasad v. Mst. Bibee, (1856) 6 Moores Indian Appeals 393 (423).

3. Devi Prasad v. Gulal Bhagat, 1913 ILR 40 Cal 721 (FB).

4. Kameshwar Prasad v. Run Bahadur, 1881 Law Reports 8 (Indian Appeals) 8.

5. Niladri Sahu v. Mahantan Mahant Chaturbhuj Das, AIR 1926 PC 112.

34.2. Illustration.-

The illustration to section 38 takes a familiar case, now obsolete, of a Hindu widow whose husband has left 'collateral heirs'- described in the text-books as reversioners-where the property held by her as such widow is insufficient for her maintenance and she agrees for purposes neither religious nor charitable to sell a field which is part of the property to B. Sale for the purpose of maintenance, it may be stated, is competent if there is a real necessity.

The illustration further states that B satisfies himself by reasonable enquiry that the income of the property is insufficient for maintenance and the sale of the property is necessary. So satisfying himself and acting in good faith B buys the field from the Hindu widow. In such circumstances, as between the purchaser B and the widow and the reversioners, a necessity for sale shall be deemed to have existed.

34.3. Crux.-

The crux of section 38 lies in the expression "authorised only under circumstances in their nature variable to dispose of immovable property". This is the draftsman's way of describing what the Judicial Committee in Hanooman Prasad's case described as a limited and qualified power which can only be exercised rightly in the case of need or for the benefit of the estate, what is a case of need or which transfer is for the benefit of the estate must depend on circumstances which are in their nature variable.

34.4. English law.-

In England, a somewhat similar principle seems to have been followed in regard to transfer per stripes1. Ultimately, the rationale of the provision favouring the beneficial purchaser for value without notice is protection against latent frauds perpetrated by the limited owner. This is not to say that any person can transfer the property of any other person.

The section pre-supposes at least some right to transfer in the transferor, though that right is dependent on circumstances in their nature variable. The other conditions laid down in the section must also be satisfied in order to bring the rule of equity into operation. But neither good faith nor value nor reasonable enquiry will suffice to confer title where the transfer is by a person who has not a semblance of interest of property.

1. Societe General Paris v. Walker, 11 AC 20 (28).

34.5. No change.- The above discussions discloses no need to change the law.

The Transfer of Property Act, 1882 Back

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