lN2

!i"rdar s,.'"4 T• Soifa"1i• SdH

T, no, Stai. of Biid.,

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

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.ret, tl1ou9h in/act sprs ,'."ucce~, inni.t .. S11bRr.quenlacquiaition 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 pnpcrty 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

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 excption 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.

The .fumma Ma.tjidt

M1rc1tr•

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

Nanjundappa ashis 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 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 -

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 procetding~ and claimed that tho Jumma Masjid, Mercara, had become 1ntitled to the properties hcM by Ga.ngam.na, firstly .. urnler a Sadak® or gift alleged to have been mac!P by hr 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 - '

.. " ,

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 tranfrr 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.

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,

Mc•ro

Kodilnaimu/, a

Ihoi.h

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,).

Th. Jumma Marjid,

Mncara

Kodimaniandra

Deviah

- 77w JutftlM Ma .ji1,

M1rca1a

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.™; (1916] 2 A. C. 575.

"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

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.

-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 . peron 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

Ko<iimani<Andra

Deviah

A'iyar J.

114 Jw1:111u MaJjid,

Mtrcara

•• hcu/imani .. 11 /r.'1

/J, iah

;'; U8 SCPREME COURT Rli:POR'l'S [196:!] SUPP.

preumptive 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 othr 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 repondents, 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,

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 deciion 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>.

The Jumma MaJiid,

M,, cara v.

Kodimaniandra_

Devi ah

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.