Property Law

Jumma Masjid, Mercara v. Kodimaniandra Deviah

AIR 1962 SC 847; 1962 Supp (2) SCR 554

Facts

Certain persons executed a sale deed in favour of Ganapathi, representing that they presently owned the property and were competent to sell it.
In reality, their claimed ownership had not yet vested.
At the relevant time, they possessed only a chance of succeeding to the property after the death of the existing owner.
Such a chance was a spes successionis and could not be transferred under Section 6(a) of the Transfer of Property Act.
The sale was nevertheless for consideration and was made as though the sellers possessed an existing title.
The sellers later acquired an actual interest in the property.
A dispute arose between the earlier purchaser and persons claiming through subsequent transactions.
The earlier purchaser relied on Section 43 and asked that the sellers’ subsequently acquired interest feed the earlier grant.

Whether Section 43 can apply when the transferors originally possessed only a non-transferable chance of succession.
Whether Section 6(a), which prohibits transfer of spes successionis, prevents the later-acquired title from passing to the earlier transferee.

Section 6(a) provides that the chance of an heir apparent succeeding to an estate cannot be transferred.
Section 43 applies where:
a person fraudulently or erroneously represents that they are authorised to transfer property;
the transfer is for consideration;
the transferee acts upon the representation; and
the transferor later acquires an interest in the property while the contract remains subsisting.
In that situation, the transferee may elect to have the subsequently acquired interest applied to the earlier transfer.
The principle is commonly called feeding the grant by estoppel.

The Court held that Sections 6(a) and 43 operate in different fields.
Section 6(a) asks whether the interest actually possessed at the date of transfer was legally transferable.
Since a mere expectancy is not property capable of transfer, the attempted transfer could not immediately pass title.
Section 43 addresses a different situation: a transferor has represented that a present title exists and later obtains the very title purportedly transferred.
The doctrine does not validate the original transfer of the expectancy.
Instead, it prevents the transferor from denying the earlier representation after acquiring an actual transferable interest.
The transferors in this case had not openly sold only their future chance.
They had represented themselves as present owners and executed a sale for consideration.
The purchaser acted upon that representation.
Once the transferors later acquired title, equity required them to make good the earlier grant.
The Court rejected the view that applying Section 43 would indirectly defeat Section 6(a).
There would be no application of Section 43 where:
the transferee knew that the transferor possessed only a future chance;
no representation of present authority was made;
the transaction lacked consideration; or
the contract had ceased to subsist before the title was acquired.
Here, the statutory conditions were satisfied, so the purchaser could elect to take the later-acquired interest.

Section 43 applies even where the transferor’s original defect arose because the transferor had only a spes successionis.
Section 6(a) did not prevent operation of the doctrine after actual title was acquired.
The earlier purchaser obtained the benefit of the transferors’ subsequently acquired interest.
The competing claim against that purchaser failed.