THE JUMMA MASJID, MERCARA Vs.

KODIMANIANDRA DEVIAH

1962 AIR 847 1962 SCR Supl. (2) 554

DATE OF JUDGMENT: 11/01/1962

Bench: Aiyyar, T.L. Venkatarama Bench: Aiyyar, T.L. Venkatarama Kapur, J.L.
Hidayatullah, M. Shah, J.C.

INTRODUCTION
In a legal context, the word “Property” refers to a collection of rights that can be owned
individually, collectively, or by a group of persons for enjoyment, destruction, or
disbursement. Blackstone defined property as ‘the sole and full dominion which a man claims
over the things of the world to the exclusion of others.’ The term ‘property’ originated from
the Latin word ‘proprius’ which means “one own.” But it is not necessary that property needs
to be something materialistic, it can be virtual also.

In a legal atmosphere, there exist various provisions of property relating to its transfer and
existence. Consequently, properties are also separated into various categories having
distinctive features. To be specific, properties are of two types movable and immovable. In
the case of immovable property in real movement of rights, possession, and ownership takes
place. Under Section 3 of the Transfer of Property Act 1882, the term ‘immovable property’
is not defined distinctively. The section gives a concept of immovable property which states
that the standing timber, growing grass is not immovable property. Whereas the General
Clauses Act 1897 states that immovable property is something attached to the earth, benefits
of which arising out of the land. The definition is given under Section 3 clause 26 of the Act.
Also, the definition given under Section 2 clause 6 of the Registration Act 1908 includes
other particulates such as hereditary allowances, rights to ways, light, ferries, fisheries, or
those which are attached to the earth.

The given case deals with immovable property which includes the aspects of estoppel and
those conditions under which a property cannot be transferred. But the interesting fact lies
here that often it is misunderstood that spes succession and estoppel are contradictory, but it
is not true. In case of any fraudulent transfer by a spes successionis, the transferee can claim
his deserved share on the grounds of estoppel where he has provided the consideration in
good faith and was unaware of the misrepresentation.
FACTS

Mallappa and Santhappa claiming to be reversioners to the estate of Nanjundappa sold the
property in dispute to Ganapathi predecessor-in-interest of the respondents. The sale deed
recited that the property belonged to the joint family of two brothers Nanjundappa and
Basappa, and on the death of Nanjundappa it was inherited by his widow and on her death, it
had devolved upon them as reversioners to the state. Ganapathi sued to recover possession of
the properties. The suit was contested by the widow of Basappa (brother of Nanjundappa)
claiming that the property was the self-acquired property of her husband. During the
pendency of the litigation the widow died, and Ganapathi applied to the revenue authorities to
transfer the ‘pattas’ in his name. The appellants intervened alleging that the property was
gifted to them by the widow, and Santhappa 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 possession of a half share in the properties held by the widow of
Basappa, relying upon the gift by the widow, and the deed of surrender by Santhappa one of
the two reversioners to the estate of Nanjundappa. The Appellants contended that the
Vendors of the property to Ganapathi had only a spes successionis during the life time of the
widow of Basappa, and the transfer was on that account void and conferred no title. The
respondents to the suit contended that the property was sold to Ganapathi by Santhappa on a
representation that he had become entitled thereto, and the appellants as transferees from
Santhappa were estopped from asserting that it was in fact the self-acquisition of property and
that in consequence he had no title at the date of the sale.

ISSUES

Whether a transfer of property, in return for some consideration, made by a person who
represents that he has a present and transferable interest in that property, while in reality he
possesses only a spec succession, is within the protection of section 43 of the TPA, 1882?

LEGAL OBSERVATIONS
The court while explaining the significance of Section 43, TPA said, “it clearly applies
whenever a person transfers property to which he has no title on a representation that he has a
present and transferable interest therein, and acting on that representation, the transfree 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.”

On the contention by appellants (Jumma Masjid) that sale was void under Sec 6(a), TPA the
apex Court observed that:

Section 6(a) and Section 43 relate to two different subjects, and there is no necessary conflict
between them.

Section 6(a) deals with certain kinds of interests in property mentioned therein, and prohibits
a transfer simply of those interests. Section 43 deals with representations as to title made by a
transferor who had no title at the time of transfer, and provides that the transfer shall fasten
itself on the title which the transferor subsequently acquires.

Section 6(a) enacts a rule of substantive law, while Section 43 enacts a rule of estoppel which
is one of evidence.

Where the transferee knew as a fact that the transferor did not possess the title which he
represents he has, then he cannot be said to have acted on it when taking a transfer. Section
43 would then have no application, and the transfer will fail under Section 6(a). Where the
transferee knew as a fact that the transferor did not possess the title which he represents he
has, then be cannot be said to have acted on it when taking a transfer. Section 43 would then
have no application, and the transfer will fail under Section 6(a).

On the contention by the appellants that there a plea of estoppels could not be raised against a
minor who had transferred property on a representation that he was of age above that of a
minor, the court observed, “Section 43 deals with transfers which fail for want of title in the
transferor and not want of capacity in him at the time 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 claim is based on contract. Decisions on
transfers by minors therefore are of no assistance in ascertaining the true scope of Section
43.” (In short Court said that neither section 43 nor the Rule of Estoppel deals with those
cases where the competency of the party to contract is in conflict rather, they deal with the
cases where the title of the transferor is in conflict at the time of transfer)

JUDGEMENT:

Considering the scope of the Section 43 on its terms, it clearly applies whenever a person
transfers property to which he has no title on a 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. But apart from that, the section is absolute and unqualified in its operation. It applies
to all transfers 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 whatsoever in the property, or of his interest therein being that of an expectant heir.

That section embodies, as already stated, a rule 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 that representation. It is immaterial whether the transferor acts bona 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 by the Courts below was given, the
relevant words of Section 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 emphasises 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 said to have acted on it when taking a transfer. Section 43 would then
have no application, and the transfer will fail under Section 6(a) of the Act. 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 Section 43, however fraudulent the act of the
transferor might have been
The Court held that when a person transfers property representing that he has a present
interest therein, whereas he has, in fact, only a spes successionis, the transferee is entitled to
the benefit of Section 43, if he has taken the transfer on the faith of that representation and for
consideration. In the present case, Santhappa, the vendor represented that he was entitled to
the property in praesenti, and it has been found that the purchaser entered into the transaction
acting on that representation. He therefore acquired title to the properties under Section 44 of
the Act, when Santhappa became in titular on the death of Gangamma on February 17, 1933,
and the subsequent dealing with them by Santhappa by way of release did not operate to vest
any title in the appellant.

PRECEDENT JUDGEMENTS REFERRED BY THR COURT WHILE DECIDING THE

CASE

In the comparison of the English law and Indian law on estoppel, it appears that in the case of
early transfer of property by an individual who does not possess the ownership, it happens
like this that whenever the individual receives the property, the property automatically gets
transferred to the transferee without any claim from the side of the transferee. But in Indian
law, it happens that the claim by the transferee is necessary to obtain the property under the
ground of estoppel. In this case, transferee T had already claimed for his transfer, so this
could not be ignored.

The judgment in the case of Alamanaya Kunigari Nabi Sab v. Murukuti Papiah acted as the
precedent to the current case. In this case, it was held that if the transferee acted on the
transferor’s representation, which is a spes succession, the case would support the doctrine of
estoppel, and the transferee will have all the necessary grounds to acquire the property.

CONCLUSION

In cases like this, where there are limited grounds for getting the favour of the court, it is
necessary to consider some essential points. Those include the timing of the petitions filed,
and because the validity of the grounds won’t be for a long time, after considering all the
facts of the case it is really necessary to raise the effective ground to get the decision of the
court in favour of the appeal. Even a small initiative could make the case upside down. For
instance, if the transferee did not claim for his transfer of property, then Jumma Masjid, will
get all the grounds to pull the case in his favour. So, in case of subsequent appeals, it is
important to analyse the facts as a small gap can lead to a big change.