# THE JOMMA MASJID, .MERCARA v. KODIMANIANDRA DE\'IAH

- **Citation:** [1962] Supp. 2 S.C.R. 554
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** J. L. Kapur, M. Hidaya.Tulj, J. C. Shah, T. L. VENKA1'ARA.:l!A AJYAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-jomma-masjid-mercara-v-kodimaniandra-de-iah-2323
- **Pages:** 17

## Headnote

Tran"fer of Proptrty-Sa/e by ret-ersioner for co11airkration
-Fra"Udu/,e.nt or errc>nt:ou.9
repre.lienlati()tz--f'rr.~1 nt transferable
int1.re~t, tl1ou9h in/act sprs ,'."ucce~,~inni.t .. S11bRr.quenl- acquiaition
of title-Ejfect-Rult of "''"N><i-11'1.tn lcr uc resort'd to Transfer
of Property Act,
18$2(4 of 18821, •· 6(a).
Intuprtlalion of
Statute-( 'onsiruing of aertion-1/ nP111 rrvrda wuld be read 1"nto
it-11/u.atration to a section
When
rou/d be ustd lo enlarge the
language-If admissiilt ,,, construi1ig a section.
M and S claiming t0 be revenioners to the estate of N
sold the property in dispute to G predecessor-in-interest of the
re.pondents. The sale dred recited that the property belongcrl
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 stato. G sued to
recover possession of the propcrties. The suit was contested
by the wiclow of B(brother of N) claiming that the property
was the self acquired pn·pcrty of her hushand. During the
pendency of the litiFatio·' the widow died, and G applied to
the revenue authoritin 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
posac!Sion 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
2 S.C.R.
SUPREME COURT REPORTS
555
only a spe.• succcssionis during the life time of the widow of B,
and the transfer was on that
account void
and conferred no
title. The heirs of G contended that the property was sold to
G by M and S on a
rep1esentation
that the Vendor had
become entitled
thereto, and the appellants as transferees
from S were <Stopped
from
asserting that it was in fact the
self.acquisition of B and that in ron.•equence he had no title at
the date of the sale.
Held, that where a ptrson transfers property representiug
that he has a present interest therein, whereas he has, in fact,
only a spes successfuru'a, the transferee is entitled to the benefit
of s. 43 of lhe Transfrr of Property Act, 1882, if he has taken
the transfer for consideration and
on
the
faith of the
represen ta ti on.
Htld, further, that apart from the exc~ption 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 transfrrs which fulfil 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 heir.
The section deals
with transfers which fail for want of title in the transferor
and not lvant of capacity in him at the time of transfer.
It
embodies a nile 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 i; only material
to find out whether in fact the transferee has been misled. In
view of the sprcific provision of'· 43 the principle of c8toppel
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 rhe language

## Text

lN2
!i«rdar s,.'"4
T• Soifa"1i•
SdH
T,
·no, Stai. of Biid.,
1962
Jonu"'JI IJ.
554
SUPREME COURT REPORT8 [I!lti2J SUPP.
guarantee under Art. 2.i (I) and rcnderini: thll
protection illusory.
Jn my view th" petitio1vr iH entitled to the
relief that he seeks and the petition will accordingly
be allowed.
}fr Conn : In Ae<·ordaiwe with the majority
view of this Court, the vetition is allowed. The
petitioner is entitled to his costs.
Petition all<JWed.
---
THE JOMMA MASJID, .MERCARA
v.
KODIMANIANDRA DE\'IAH
(J. L. KAPUR, M. HIDAYA.TULJ,AH, J. C. SHAH and
T. L. VENKA1'ARA.:l!A AJYAH, JJ.)
Tran"fer of Proptrty-Sa/e by ret-ersioner for co11airkration
-Fra"Udu/,e.nt or errc>nt:ou.9
repre.lienlati()tz--f'rr.~1 nt transferable
int1.re~t, tl1ou9h in/act sprs ,'."ucce~,~inni.t .. S11bRr.quenl- acquiaition
of title-Ejfect-Rult of "''"N><i-11'1.tn lcr uc resort'd to Transfer
of Property Act,
18$2(4 of 18821, •· 6(a).
Intuprtlalion of
Statute-( 'onsiruing of aertion-1/ nP111 rrvrda wuld be read 1"nto
it-11/u.atration to a section
When
rou/d be ustd lo enlarge the
language-If admissiilt ,,, construi1ig a section.
M and S claiming t0 be revenioners to the estate of N
sold the property in dispute to G predecessor-in-interest of the
re.pondents. The sale dred recited that the property belongcrl
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 stato. G sued to
recover possession of the propcrties. The suit was contested
by the wiclow of B(brother of N) claiming that the property
was the self acquired pn·pcrty of her hushand. During the
pendency of the litiFatio·' the widow died, and G applied to
the revenue authoritin 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
posac!Sion 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
2 S.C.R.
SUPREME COURT REPORTS
555
only a spe.• succcssionis during the life time of the widow of B,
and the transfer was on that
account void
and conferred no
title. The heirs of G contended that the property was sold to
G by M and S on a
rep1esentation
that the Vendor had
become entitled
thereto, and the appellants as transferees
from S were <Stopped
from
asserting that it was in fact the
self.acquisition of B and that in ron.•equence he had no title at
the date of the sale.
Held, that where a ptrson transfers property representiug
that he has a present interest therein, whereas he has, in fact,
only a spes successfuru'a, the transferee is entitled to the benefit
of s. 43 of lhe Transfrr of Property Act, 1882, if he has taken
the transfer for consideration and
on
the
faith of the
represen ta ti on.
Htld, further, that apart from the exc~ption 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 transfrrs which fulfil 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 heir.
The section deals
with transfers which fail for want of title in the transferor
and not lvant of capacity in him at the time of transfer.
It
embodies a nile 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 i; only material
to find out whether in fact the transferee has been misled. In
view of the sprcific provision of'· 43 the principle of c8toppel
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 rhe language of the section clearly
txcludcs from its
purview certain matter!Z, it would not be
legitimate to use the illustration to the section to enlarge it. It
is not to be rradiJy assumed that an illustration to a ~ction is
repugnant to it and rejected.
Vicker& v. EtVJna, (1910)79 L.J.K.B. 955, relied on.
1962
The .fumma Ma.tjidt
M1rc1tr•
v.
K oJimmtiandra
I>evi1h
TAt J 11mmo MasjiJ,
Mnco..•o
••
KMW.Mi1atb•
Dnioh
556 SUPREME OOUR1' REPOR'fS [1962] SU.PP,
Sadiq Ali Khan v.Jai Ki•hori, A.LR. 1928 P.C. 152,
Gadigeppa
v. Balangauda, (1931)
l.L.R. 5i Born. 741,
Ajudhia Prasad v. Chandan fol,
l.L.R. ( 1937) All. 860 F. B.;
Molwm<d Syedol Arif!in v. Y eoh Ooi Gark; ( 1916) L.R. 43 I.A .
256; I.ovinr v. BrOU!lham, (1909) 25 T.L.J<.. 265; LM'ie [,t1l. v.
Sh<iU, [ 1914] 3 K 13. 607 and Khn Gui v. };ikh" Singh ( 1928)
I.L.R. 9 Lah. 701(F. B.), referred to .
• tl(in11111.aya
Kunigari l{abi Sab v. ,\lurukuti Papiah,
(1915) 29 M.L.J. 733, Sl1yam Sarain v. Mungu/ i'ra1md, (1935)
l.L.R. 57 All. 474, Vithal!ai v. Malh"r iif.ankar, l.L.R. (1938)
Born. 155, Ram .Japan v.Jugeaara KIP'r, A.LR. 1q39 Pat. 116
and Syed Biamil/a v. Munulal Chal.iil•h•, A.IR·. 1931 Na~. 51,
approved.
Official Assignte, ,lfadm .. v. Sam]>'lth .\"ai<lu, 63 M.L.J.
588 and Binde.•hwari Singh v. liar .'{arain Sinq!,, (1'129) 1.L.R.
4 Luck. 622, disapproved.
CrvIL APPELT.ATE Jumsvw1·10;-;: CiYil Appeal
No. 207 of 1956.
Appeal from t.he judgment and decree dated
November 5, 1952, of the Madras
High Court in
Appeal No. 852 of 1948.
R. Thiagarajan and G. Gop<ilakrishrum, for the
appellant.
Gan apathy 1 yer, for
1962. January' 11.
Court was delivered by
roRpondent No. 3.
The Judgment of the
VENKATARA.~IA AIYAH, 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 propertie1 specified in the
pis.int. The facts are not in dispute. There was a
joint family comieting of three brothers, Santhappa,
Nanjundappa and B&tiapp.•.. Of these, 8anthappa
died unmarried, Ba.sappa died in 190 J, 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 Ba.aa.ppa, Mallappa
and
Santhappa,
the
&illter's
grandsons
of
,,
'
2 S .. C.R.
SUPREME COURT REPORTS
557
Nanjundappa as·his next reversioners. The relation·
ship of the parties is shown in the following gene·
alogioal table.
Basappa
I
I
I
Santhappa Nanjundappa
d. 1907
=Ammakka
d. HHO
I
Basappa.
d. 1901
=Gangamma
~
Mallammal
i'
I
Ramegowda
I
Mallegowda
I
I
Santhappa
I
Basappa
I
Mallappa
On August 5, 1900, Nanjundappa and Basappa
executed a usnfructuary mortgage over the properties which form the subject-matter of this litigation,
and one Appanna Shetty, having obtained an assign·
ment thereof, filed a suit to enforce it, 0. S. 9 of
1903, in the court of the Subordinate Judge, Coorg.
That endRd in a compromise decree, which provided
that Appanna Shetty was t.o enjoy the nsnfruct from
the hypotheca till August, 1920, in full satisfaction
of all his claims under the mortgage, and tliat the
properties were thereafter to revert to the family
of the mortgagors. By a sale deed dated Novem·
ber 18, 1920, Ex. III, the three
reversiciners,
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 Nanjun-
. dappa and bis 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
-
n..·J-· llflt"'4
-
y,
JIH I
lfHlllW
~
-·
1HZ
~l-Jloqii,
M1t,ara
v.
'"'"-""" ..
Dniah
AiJ« J,
558 SUPRBME OOURT REFORTS [1962] SUPP.
owner. On March 12, 1921, the vendors executed
another deed, Ex. IV, by which Ex. III was rectified by inclusion of certain items of prope1 ti••s
which wore stated to have been lcfL out by over'.
sight. It is on these documents that tho title of tho
respondents rests.
On the strength of these two deeds, Ganapathi
sued to recowr pos.<ession of the properties comprised therein.
The suit was contested by Gangamma, who claimed that the properties in question
were the self-acquiditions of her husband Basa.ppa,
and that she, as his heir, was entitled to them. The
Subordinate Judge of Coorg who tried tho suit
accepted this rontcntion, and his finding was affirmed by the District ,Judge l1n appc.\l, and by the
Judicial Commissioner in second appeal. But before
the
second
appeal
was
finally
disposed of,
Ganga.mum died on February 17, 1933.
Thereupon
Ga.napathi a.pplied to tho rl'vcnue authorities to
transfer the patta for tho lands standing in the name
of Gangamma to his own name, in accordance with
the sale deed Ex. III. The ••ppcllant intervened
in these procet·ding~ and claimed that tho Jumma
Masjid, Mercara, had become 1·ntitled to the properties hcM by Ga.ngam.na, firstly .. urnler a Sadak® or
gift alleged to have been mac!P by h~r on Septomher
5, 1932, and, secondly, under a deed of rcleat«J
executed on March 3, l93:l, by S1mth.ippa, one t>f
the rov<'rsioner~. relinquishini: his
half-~hare in th.,
properties to the mosque for a cpn.~idcration of
Rs. 300.
By an ord<>r dated Sq1tcmlu>r H, l!l3:l,
Ex. II, the l'even11e
authoritie~ dt,eli1H'd to acePpt
the titll' of the appellant and <lin•c:tcd that the name
of Ganapathi eh on Id be cntere<l ns the own,·r of tho
properties.
Pur•uant to
thi~ order, C:anapathi got
into posRession of tho propcrti< s.
The suit out of whirh the prC'srnt appeal arise.~
was instituted by the appdlant on Janu'"Lr.v '.!, 1945,
for recovery of a half.sh,..rn in the propcrliC's that
l - '
,.
..
"
,
2 s.c.R.
SUPREME COURT REPORTS
559
had been held by Gangamma and for mesne profits.
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. UI and Ex. IV, the claim made in the plaint
is that as tho vendors had only a apes successionis
in the properties during the lifetime of Gangamnil!>,
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
& 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-aoquisitions 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, got no title as
against them under the release deed Ex. A, dated
March 3, 1933.
The District Judge of Coorg who heard the
action he Id 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 tho title claimed by
the appellant under the release deed, Ex. A. executecl by Santhappa, the District Judge hold that as
Ganapathi had purchased the properties under Ex.
III on tho faith of the representation contained
therein that the vendors had become entitled to them
on th" death of Ammakka in HJIO, he acquired a
good title under s. 43 of the Transfer of Property
Act, and that Ex. A could not prevail as against
it. l:Je accordingly dismissed the suit. The plaintiff took the matter in appeal to the High Court,
Madras, an1l in view of the conflict of authorities
on the question in that Court, the case was refer
IftB:
n, J,,,,,.,, llltitJiili
Ml'llNv.
K otlimqia-4.1*.
D•iliiiA.
.ii.>t!r I,
"·
rt · ''"
Dioid
-
A{loor J,
•
IS60
SUPREME OOURT REPORTS [1962] SUPP.
red for the decision of a. Full Bench.
The lea.med
Judges who heard the refer•moe agreed with the
court below that the purcha.ser under Ex. III ha.d,
in ta.king the sa.le, aeted on the representa.tion a.s
to titl!I conta.ined therein, a.nd held tha.t as the sa.le
by the vendors was
of properties in
which
they claimed a.
preaent interest and not of a.
mere right to succeed in future, s. 43 of the Tra.nsfer of Property Act a.pplied, and the sale bees.me
opera.tive when the vendors acquired title to the
properties on the death of Gangamma on February 17, 1933.
In the roault, the appeal was
dismissed. The appellant then applied for leave
to appeal to this Court under Art. l33(l)(e), 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 rcpre•ents that he ha.s a
present and transferable int-0rest therein, while he
posseBBes, in fact, only a spes .'IUccessionis, is within
the protection of s. 43 of the Trnnsfer of Property
Act. If it is, then on the facts found by t.hc courts
below, the title of the rcspond0nts und<·r Ex. III
and Ex. IV must prevail over tluit of the appellant
under Ex. A.
If it is not, th"n the RJ•pellant
succeeds on the basis of J<~x A.
Section 43 of the Tra.nsfor of Property Act
runs as follows :-
"Where a. person frauuul<>ntl.v or erroneously represents th'.\t h" i 1 nuthorised to
transfer eertain irmnovablc property and
professes to t.rn.n,fer H11ch property for consideration such
tran~frr slrn.11, at. the option
of the transferee, op<'rato on any interest
which the transferor may n.cquire in such property at any timo during which the contact
of trall8fer su heists.
'
2 S.C.R. . SUPREME COURT REPORTS
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 bas no title on a representation that
be bas 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
bas 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 ia absolute and
unqualified in its operation.
It applies to
all
transfers which fulfil the
condit.ions prescribed
therein, and it makes 1. 0 difference in its application, whether the defect of title in the transferor
arises by reason 1lf bis having no interest whatsoever in the property, or or bis interest therein
being that of an expectant heir.
The contention on behalf of the appellant is
that e. 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."
Th~
argument is that if s. 43 is to be interp.reted as
having application to cases of what are in fact
transfers of spes successiunis, that will have the
effect of nullifying s. 6 (a), and that therefore it
:wo.uld be proper to construe s. 43 as limited to
cases of transfors other than those falling within
s. 6(a). In effect, this argument involves importing
196Z
The iumma ~lfasjid,
-~fercar•
v .
. Ko1ima. 1 iJndra
Devi ah
Aiyar J.
ll!tZ
~
.,·..,,,,,," M rujid,
M~c•ro
v.
Kodilnaimu/,a
Ihoi.h
562
SUPREME OOURT REPORTS [1!162] SUPP.
into the section a new oxception to the following cfftict ; "Nothing in this section shall operate
to confer on the transforee any tit!(', if the trans·
furor ha<l at tho date of the transfer an interest of
the kind mentioned ins. 6 (a)." If we accede
to this contention wo will not be construing
.a.43. but rewriting it.
"\\To arc not ontitled",
obsorved Lord Loreburn
L. C.,
in Vickers
v. Evans ('), "to read words into an Act of Parlia·
mcnt unless clear reason for it is to be found
within the four corners of the Act itself."
No~ the compelling reason urged by
the
appellant for reading a further exception in s. 43
is that if it is construed 118 applicable to transfers
by persons who have only spu succea.sWnis at the
date of transfer, it would have the effect of nullify:
ing s, G(a).
But section 6(a) ands. 43 relate to two
difforont. subjects, an<l 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 tho time
of transf<·r, and provides that.. the transfer shall
fasten itRc!f on the title which the transferor subsequently acquires.
~oction 6 (a) enarta a rule of
substanth-e law, whil<l s. 4;~ enact~ a rule of estoppel
which is one of evidencP.
Tho two provisions
operate on different fidds, and under different
conditions, and wo sec no ground for reading a
conflict between them or for cutting down the
ambit of the one by reference to the other. In our
opinion, both of.them can be given full effect on
their own term~. in their respective spheres. To
hold that transfers by persons who have only a
spe,s
S'UCCe.~sionis at the date of tr.ansfer are not
within the protection afforded by s. 43
would
destroy its utility to a large exwnt.
It is alao contended that as under the law
there can be no eetoppel against a statute transfers
(I) (1910) 79 L. I. K. B. ~5.
2S.C.R.
SUPREME COURT REPORTS,
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
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 c0nsideration
from persons who represent that they have a
present t.itle, which, in fact, they have not. And
the point for· decision is simply whether on the
facts the respondents are entitled to the benefit of
this section.
If they are, as found by the eourt_s
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 miuor who
had transferred property on a representation that
he was of age, and that s. 43 was inapplicable to
such trnnsfers, m'de Sadiq Ali Khan v. Jai Kishori (')
Gadigeppa v. Balanagawlrt (') Ajttdhia Prasad v.
Ghandan Lal(') But the short answer to this contention
is thats. 43 deals with transfers which fail for want
of title in the transferor" and not want of capacity in
him at the timo 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 c\aim is based on contract, vide Mahomed Sye,dol
Ar{ffin v. Yeoh Ooi Gark ('); Levine v. Brougham
('},
Le.slie Ltd. v. Sheill ('); Khan Gul v. Lakita
Singh (').
Decisions on transfer8 by minors therefore a.re of no assbtance in ascertaining the true
scope of s. 43.
(l) A.I.R. 1928 PC. 152
(2) (1931) I.L.R. 55 Bom. 741,
(3) l,L.R. (1937) All. 860 F.D. (4)(1916) L.R. 43 I.A.256; [ l 916]2A.C.S75,
(5)
(1909) 25 I.L.R. 265.
(6) [19H) 3 K. B. 607.
(7) (1928) LL.R. 9 Lab, 701 (F. B,).
1962
Th. Jumma Marjid,
Mncara
v.
Kodimaniandra
Deviah
·-
77w JutftlM Ma .ji1,
M1rca1a
v.
Kotlima11iant/ra
D1V14'r
564 SUPREME OOURT REPORTS [1!162] SUPP.
So far we havo discussed the question on the
langua.go of the section and on
the
principle~
applica.hle thereto. There is an illustration appended
to s. 43, and we h!!.ve deferred consideration thereof
to tho la.st
&R 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 tha.t A is authorized to transfer the ea.mo.
Of these fields Z does not be·
long to A, it having been retained by Bon
the partition ; but on B's dying A as heir
obtains Z.
C, not having rescinded the contract of salt\ may require A tn deliver Z to
him."
In this illustration, when A sold the field Z to C, he
had only a speJJ successionis.
But he having subsequently inherited it, C became entitled to it. This
would appear to conclude the question aga;nst the
appellant: But it is argued th<tt the illustration is
repuznant to the section and must be rejected. If
the langual!'O of the section clearly excluded from
its purvinw tranPfers in which the transforor 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 contPnded 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
asmmed that an illustration to a section is repugnant to it and rejected. Reference may, in this
connection, be made to tho following observations
of the judicial Committee in Malwrned Sye.dol Arif/in
v. Y eoh Ooi Gark ( 1) as to the value to be given to
illustratio11s appended to a section, in &Pcertaining
its true scope :
(I) (1916) L. R. 43. I.A.TM; (1916] 2 A. C. 575.
2 S.C.R.
SUPREME COURT REPORTS
b65
"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 shou)d
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 dea.l. And
it would require a very special case to wa.rrant
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 oases 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
a.rose 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
it was that "s. 43 should not be so construed
as
to nullify s. 6(a) of the Transfer of Property Act,
by validating a transfer initi<>lly void underti!'· lj( a)"
In rejecting this contention, th_e 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
(ll !1915) 29 M.L,J. 733.
J962
'lht Jumma Masj•d,
},; ercara
v.
Kodima'liandra
Dtviah
Ai)'a1J,
566 SUPREME OOURT REPORTS (1962) SUPP.
authorised to transfer certain immoveable
property." It is the latter course that wa.s
followed in the present ca.se. It wa.s 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, where&i, if it purports to be of an
.interest in praesenti, it is within the protection
afforded by s. 4.'i.
Then we come to the decision in The Official
Assignee, Madras v. Sampath Naidu ('), where a
different view was taken. The facts were that one
V. Chetti had executed two mortgages over proper·
ties in respect of which he had only spes succesaionis.
Then he succeeded to those properties as heir and
then sold them to one Ananda Mohan. A mort·
gagee claiming under Ananda Moh1m filed a suit
for a declaration that the two mortgages created by
Chetty oofore he had become entitled to them 88
heir, were void as offending a. 6(a) of the Transfer
of Property Aet. The mortgagee contended that in
the events that had happened the mortgages had
become enforceable under s. 43 of th0 Act. The
Court negatived this contention and held that as
the mortgages, when executed, contravened s. 6(a),
they could not become v:alid under s. 43. Refer·
ring to the decision in Alamanaya K unigari N obi Sab
v. Murul.-uti Papiah ('),the Court observed that no
distinction could be drawn between a transfer of what
is on the faoe of it apes succesaionis, and what pur·
porU! to be an interest in ~i. "If such a
distinction were allowed", observed Bardewell, J.,
delivering the Judgment of the Court, "the elfect
would be that by a clever description of the pro·
perty dealt with in a deed of transfer one would be
allowed to conceal ~ho real nature of the tr8Illl80·
tion and evade a olear statutory prohibition."
(I) (1933) 65 M.W. 588.
(2) (1915) 29 M. L.J. 733.
2 $.d.R. SUPREME COURT REPORTS
567
-Thia 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 . per~on who makes a representation
shall not be heard to allege the contrary as against a
person who acts
on that representation. It is
immateria,J whether the transferor acts lxma 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 und!'f consideration was given, the
relevant words of s. 43 were, "where a person
erroneously represents", and now, as amended by
Act 20 of 1929, they are "where a person fraudulently or erroneously· represents", and that
emph~.
sises 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 8aid to have acted on it
when taking a transfer. Section 43 wot1ld then
have no application, and the tr'1.nsfer 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 (') and
the decision in Sri Jagannada Raju v. Sri Rajah
Prasada Rao ('), which was approved therein, the
illustration to s. 43 must be rejected as repugnant
to it. In Sri Jagannada Raju's case ('), the question
was whether a contract entered into by certain
(1) i 1923) L.R. 50 I.A. 239; (1923) l.L.R. 50 Cal. 929.
(2) (1916) I.L.R. 39 Mad. 554
1961
ne Jumma Masji4.
M1rcara
v.
Ko<iimani<Andra
Deviah
A'iyar J.
1062
114 Jw1:111u MaJjid,
Mtrcara
••
hcu/imani .. 11 /r.'1
/J,~iah
;';U8
SCPREME COURT Rli:POR'l'S [196:!] SUPP.
pre~umptive reversionns to sell the estate which
waa then held by a widow as heir could be specifi·
cally enforced, after the succession had opened. It
was held that as s. 6 (a) forbade transfers of spes
s7tCCi'8sionis, contracts to make such transfers would
ho void under s. :!3 of the Contract Act, and could
not be enforced. 'J his decision waa approved by the
Privy Council in Anmula Mohan Roy v. Gour Mohan
Jlullick ('), where also the question was whether a
contract by the nearest reversioner to sell property
which was in the possrs.~ion of a widow as heir
wa.s valid and enforcpable, and it was held that the
prohibition under s. G(a) would become futile, if
agreements to transfer could be enforced. These
decisions havo no bearing on the questi<>n now
under !'Onsideration, as to the right of a person who
for consideration takes a transfer of what is represented to be an interest in prae.senJi.
The decision
in The Official Assignee, Madras v. Sompal/; Naidu (')
is, in our view, erroncoll3, and was rightly over·
rulecl in tho deciilion now under appeal.
Proceeding on to the decisions of the oth~r
High Courts, the point under
discussion arose
directly for decision in Shyam Narain v. Mangal
Prasad ('). The facts were similar
to those in
'l'he Ojfici.al Assignee, Madras v. Samp:ith i\"aidu (').
One Ram Karayan, who was the daught<>r's t.on of
the last male owner sold the properties in 1910
to tho re~pondents, while they were vested in the
daughtrr
Akashi. On her death in 1926, he
succeeded to the properties as heir and sold them in
1!127 to tho appellants. The appellants claimed
the estate on the ground that the sale in 1910 con·
forred uo title on the respondents as Ram Narayan
had then only a spe,s succes.'lionis.
Tho respondents
contended that they became entitled to the properties when Ram Narayan acquired them as heir in
1926. The !Parned ,Judges, Sir S. M. Sulaiman,
C. J., and Rachhpal Singh, J,, held, agreeing with
(ll (192J: L. R. 501. A. 210;
(2)
(1~33) GS M. L. J. 588,
[19231 I. L. R. SO Cal. 929.
(3) l 1935] I.L.R. S7 All, ~7i,
2 S.C.R.
SUPREME COURT REPORTS
569
the decision in Alaroonaya Kunigari Nabi Sab v.
Murukuti
Papwh ('l,
and
deffering from The
Official
Assignee, Madras v. Sampath Naidu (')
and Bindeshwari Singh v.Har Narain Singh\'), thatj
s.43 applied and that the respondents had acquired
a good title. In corning to this conclusion, they
relied on the illustration to s. 43 as indicating its
true scop~, an'1 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 representat,ion made by the transferor to the
transferee as to his ownership.
" 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 trasferred is not a mere
chance of succession but immoveable 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, t.o 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 exist at the time
of the transfer." (pp. 478,479).
This deci~ion was followed by the Bombay High
Court in Vitluibai v. Jfalhar Shankar (') and by the
(I) [1915] 29 M. L. J. 738.
(3) ( 192 9) l. L. R. f Luck. G22.
(2) [1933] 65 M.L.J. 588.
(4) J. L. R. (1938) Bom.15>.
1962
The Jumma MaJiid,
M,,cara
v.
Kodimaniandra_
Devi ah
lM
1/,. J- Jl.V~.
"-·
••
Koli-*ir•
o..w.
A{,iw J.
570 SUPREME COURT REPORTS (1962] SUPP.
Patna High Court in Ram Japan v. Jage.mra Kuer(1).
A similar view had been taken by the Nagpur
High Court in Syed Bi,sinilla v. M anul,al Chabildas (').
Tho preponderance of judicial opinion is in
favour of the view taken by the Madras High
Court in Alamanaya K unigari N ali Sab v. JI urukuti
Papiah ('), 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.
Wo accordingly hold .that when a person transfers
property representing that hG has a presont interest
therein, whereas he has, in fact, only a «pes succe88ianis, tho 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 praesenli, and it has been found that the pur·
chaser entered into the transaction acting on that
representation. H .. therefore acquired title to the
prop1J1tics under s. H of the Transfer of Property
Act, when Santhappa became in titulo on the death
of Gangamma on Febrnary 17, 1033, and the
subsequent dealing with them by Sa.nthappa by
way of release undcor Ex. A did not operate to
vest any title in the appellant.
The Courts ht-low were right in upholding the
title of the respoudents, and this appeal must be
dismi88e<l with costs of the third respondent, who
alone appears.
Appeal di8mi.ssed.
(I) t, I. R.1939. Pat. 116,
(2) A. I. R 1931 Nag. 51.
(3) (1915] 29 M.L.J. 733.