JUMMA MASJID MERCARA V. KODIMANIANDRA DEVIAH, AIR 1962 SC 847
FACTS
Three brothers (B1, B2, B3) had mortgaged property in the year 1990 to the mortgagee for a period of twenty years, from 1900 to 1920.
In the terms of the contract it was mentioned that after the completion of twenty years, the property will be returned to the family of the three brothers.
In the family, the two brothers were married, and their wives were W1 and W2, while the third brother was unmarried. These three brothers also had a sister S, and she had two children, and three grandsons ( Gr1, Gr2, and Gr3).
All the brothers died and the sister too. Just the two wives and the grandchildren remained.
According to the law, till the wives are alive they will hold the property. In case both the wives die the property will go to the sister and eventually to the grandsons. Grandsons were the heirs under the ground of spes succession.
It was also mentioned that Gr1 will receive ½ of the share of the property while the other grandsons will get ¼ of the share of the property each.
Under The Transfer of Property Act 1882 in this case, Sec 6(a) favors no transfer while Sec 43 favors transfer if promised earlier.
It happened that the grandsons transferred the property to a transferee (T) and misrepresented the fact that they held the ownership. To this W2 filed a case against the grandsons as she was still alive. It was the 1st appeal, where the court favored the W1 and dismissed the case. But it is to be noted that the transfer to T was still valid on the grounds of Sec 43.
After this before the 2nd appeal, W2 died, and the property went to the grandsons.
Here the transferee T claimed for the property as there was an existence of consideration behind the transfer.
To this a new party entered named Jumma Masjid claiming that the property was transferred to them in the form of a gift deed by the W2, also Gr1 had given them his portion i.e, ½ of the share with consideration of rupees 300.
ISSUE
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 successionis, is within the protection of s. 43 of the Act?
HELD
The court drew a distinction between s. 6(a) and s. 43, pointing out that they do relate to different spheres, and that there is no conflict between them.
Section 43 clearly applies whenever a person transfers property to which he has no title, on the representation that he has a present and transferable interest 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.
However, apart from this, the section is absolute and unqualified in its operation.
Pointing out that there is no controversy on this issue, the court said:
Section 6(a) enacts a rule of substantive law, while Section 43 enacts a rule of estoppel, which is one of evidence.
Section 6(a) deals with certain kinds of interests in property mentioned therein and prohibits transfer simpliciter of those interests. Section 43 deals with consequences of representations as to title made by a transferor.
The two provisions operate on different fields and under different conditions and there is no ground for reading a conflict between them, or cutting down the ambit of the one by reference to the other.
In the instant case, the transferee is a bonafide one because he acted on representation u/s 43, therefore, he is entitled to get the property.