S.

6 what may be transferred

 Property of any kind may be transferred, except as otherwise
provided by this Act or by any other law for the time being in
force:
(a) 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.

Doctrine of spes successionis

 The above shall be understood with S.60 of the CPC which depicts
of exclusions in the process of execution of decree or order.
 The things non-transferable under this clause are:
 (1) The chance of an heir succeeding to an estate,
 (2) The chance of a relation obtaining legacy (a gift
by will) on the death of a kinsman, and
 (3) any other mere possibility of a like nature.
(winning a lottery or prize in a certain
competition), right to future offerings.
 S.43 Transfer by an authorized
person who subsequently acquires
interest in property transferred
Where a person fraudulently or erroneously represents
that he is authorized to
transfer certain immovable property and
professes to transfer such property
for consideration,
such transfer shall,
at the option of the transferee,
operate on any interest which the transferor may acquire in
such property
at any time during which the contract of transfer subsists.
 Nothing in this section shall impair the right of
transferees in good faith for consideration without
notice of the existence of the said option.
Illustration: A, a Hindu who has separated from his
father B, sells to C three fields, X, Y and Z, representing
that A is authorized to transfer the same. Of these
fields Z does not belong to A, it having been retained
by B on the partition; but on B’s dying A as heir obtains
Z. C, not having rescinded the contract of sale, may
require A to deliver Z to him.
 Essentials:
1. A fraudulent or erroneous
. representation that the
transferor had authority to transfer the immovable
property;
2. The transfer is for consideration;
3. The transferee subsequently acquires the interest
which he had professed to transfer, and
4. At any time during which the contract of transfer
subsists.
 This section shall not impair the right of transferees
in good faith for consideration without notice of the
existence of the said option.
 Transfer by an unauthorized person.
 Whether the transferor acts bona fide or
fraudulently or innocently.
 Where the transferee does act on the
representation he will have the benefit of the
equitable doctrine u/s.43 however fraudulent the
act may be.
 Feeding the grant of estoppel:
 This works partly on the english doctrine that a
man who has promised more than what he can
perform, must make good his promise when he
acquires the power of performance.
 Representation: The benefit of this section cannot
be claimed by the transferee if he did not believe in
or act upon it.
 There is no estoppel when truth is known to both
the parties.
 Transfer is for consideration:
 It is not applicable when the transfer is gratuitous.
By way of gift it is not applicable.
 Transfer forbidden by law:
 If it is invalid as being forbidden by law or contrary
to public policy.
 IEA S.115 Estoppel:
 When one person has,
by his declaration, act or omission,
intentionally caused or permitted
another person to believe
a thing to be true and
to act upon such belief,
neither he nor his representatives shall be allowed,
in any suit or proceeding
between himself and such person or
his representative,
to deny the truth of that thing.
 Jumma Masjid, Mercara v.
Kodimaniandra Deviah (AIR1962 SC
847)

Santhappa Nanjudappa Basappa Mallammal

Ammakka(W) Gangamma(W)

Rameshgowda Malleshgowda

Basappa Mallappa Santhappa

 Brief facts:
 The facts are not in dispute.
 There was a joint family consisting of 3 brothers,
Santhappa, Nanjudappa and Basappa and one
sister, Mallammal.
 Santhappa died unmarried. Basappa died in 1901,
leaving behind a widow Gangamma.
 Nanjudappa died in 1907 leaving his widow
Ammakka and she died in 1910.
 The estate devolved on Basappa, Mallappa and
Santhappa as next reversioners.
 By a sale deed Ex.III the three reversioners B, M and
S, sold the properties to one Ganapathi, under
whom respondents claim, for a consideration of
Rs.2000/- as they are the last male owners.
 The vendor executed another deed, EX-IV through
which certain items of properties were included.
 On the strength of these two deeds, Ganapathi
sued to recover possession of the properties
comprised therein.
 It was contested by Gangamma who claimed that
they were self acquisitions of her husband, and that
she, as his heir, was entitled to them.
 It was accepted by the Trial Courts.
 Gangamma died in February 17, 1933.
 Thereupon Ganapathi applied to the Revenue
Authorities to transfer the patta for the lands
standing in the name of Gangamma to his own
name, in accordance with the sale deed Ex.III.
 The appellant claimed that the ‘Gangamma’ has
transferred the property through a Gift on dated
Sep 5, 1932.
 Secondly, under a deed of release executed by
Santhappa, one of the reversioners, relinquishing
his half-share in the properties to the mosque for a
consideration of Rs.300/- on March,1933 through
Ex-A
 The Revenue authorities declined to accept the title
of the appellant and directed to give the possession
of the properties to Ganapathi.
 Issue: The sole point for determination in this
appeal is:
 whether a transfer of property for consideration
made by a person who represents that he has a
present and transferable interest therein only a
spes successionis is within the protection of S.43 of
the TPA or not?
 Observations
 The claim made in the plaint is that as the vendors
had only a Spes successionis in the properties
during the lifetime of Gangamma, the transfer was
void and conferred no title.
 The defense argument was that as Santhappa had
sold the properties to Ganapathi on a
representation that he had become entitled to
them as reversioner on the death of Ammakka.
 So he was estopped from asserting that he had no
title at the dates of EX-III and EX-IV
 Considering the scope of the S.43 of the TPA
“that 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”.
If the transferor subsequently acquires the property,
the transferee becomes entitled to it, if the transferee
has not cancelled the contract.
 The contention on behalf of the appellant is that
S.43 must be read subject to S.6(a) of the TPA 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”.
The argument is that if S.43 is to be interpreted
that will have effect of nullifying S.6(a), and that
therefore it would be proper to construe S.43 as
limited to cases of transfers other than those falling
within S.6(a).
 In effect, this argument involves importing into the
section a new exception to the following effect:
 “Nothing in this section shall operate to confer on
the tranferee any title, if the transferor had at the
date of the transfer an interest of the kind
mentioned in S.6(a)”.
 If we accede to this contention, we will not be
construing S.43, but rewriting it.
 “We are not entitled”, observed Lord Loreburn L.C.,
in Vickers v. Evans “to read words into an Act of
Parliament unless clear reason for it is to be found
within the four corners of the Act itself”.
 If it is, then on the facts found by the courts below,
the title of the respondents under Ex.III and Ex.IV
must prevail over that of the appellant under Ex-A.
 The contention on behalf of the appellant is that
S.43 must be read subject to S.6(a) of the TPA 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”.
 S.6(a) and S.43 relate to two different subjects, and
there is no necessary conflict between them.
 S.6(a) deals with certain kinds of interests in
property mentioned therein, and prohibits a
transfer simpliciter of those interests.
 S.43 deals with representations as to title made by
a transferor who had no title at the time of
transfer and got the title subsequently.
 S.6(a) enacts a rule of substantive law, while S.43
enacts a rule of estoppel which is one of evidence.
 The two provisions operate on two different fields,
and different conditions, and we see no ground for
reading a conflict between them.
 In our opinion, both of them can be given full effect on
their own terms, in their respective spheres.
 It is also contended that as under the law there can be
no estoppel against a statute, transfers which are
prohibited by S.6(a) could not be held to be protected by
S.43.
 Rules of estoppel are not to be restored for defeating or
circumventing prohibition enacted by statutes on
grounds of public policy.
 The point for decision is simply whether on the facts the
respondents are entitled to the benefit of this section.
 The plea of estoppel raised by them on the terms of the
section is one pleaded under, and not against the
statute.
 We shall now proceed to consider the more important cases
wherein the present question has been considered
 The official Assignee, Madras v. Sampath Naidu (AIR 1933 Mad 795),
where a different view was taken.
 The facts were that one V.Chetti had executed two mortgages over
properties in respect of which he had only spes successionis.
 Then he succeeded to those properties as heir and then sold them
to one Ananda Mohan.
 A mortgagee claiming under Anand Mohan filed a suit for a
declaration that the two mortgages created by Chetty before he had
become entitled to them as heir, were void as offending S.6(a) of
TPA.
 The mortgagee contended that in the events that had happened the
mortgages had become enforceable u/s. 43.
 The Court negatived this contention and held that as the mortgages,
when executed, contravened S.6(a) and they could not become valid
u/s.43.
 Whether a distinction could be drawn between a transfer of what
is on the face of its spes successionis, and what purports to be an
interest in presenti.
 If such a distinction is allowed then that leads to:

“The effect would be that by a clever description of the property

dealt in a deed of transfer one would be allowed to conceal the real
nature of the transaction and evade a clear statutory prohibition”.
 It is immaterial whether the transferor acts bonafide or

fraudulently in making the representation.

 It is only material to find out whether in fact the transferee has

been misled.
 S.43 words were “where a person erroneously represents” and

now, as amended in 1929 they are “where a person fraudulently

or erroneously represents”.
 It does not matter in the cases of whether the transferor
acted fraudulently or innocently in making the
representation, what is material is that he did make a
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, then S.43 would have no application, and the
transfer will fail u/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.
 In our view Official Assignee, Madras case decision
was erroneous and rightly overruled subsequently in
the following case:
 Shyam Narain v. Mangal Prasad (1935 ILR 57 All 474):
 One Ram Narayan, who was the daughter’s son of the
last male owner, sold the properties in 1910 to the
Respondents, while they were vested in the daughter,
Akashi.
 On her death in 1926, he succeeded to the properties
as heir and sold them in 1927 to the appellants.
 The court held that although he was not having the
title at the time of the initial transfer however he
subsequently got the title then S.43 apply.
 Before the contract of transfer comes to an end, the
transferor acquires 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.
 Conclusion:
 we accordingly hold 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
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
presenti, and it has been found that the purchaser
entered into the transaction acting on that
representation.
 He, therefore acquired title to the properties u/S.43
of the TPA, when Santhappa on the death of
Gangamma on Feb 17, 1933, and the subsequent
dealing with them by Santhappa by way of release
u/Ex.A did not operate to vest any title in the
appellant.
 The appeal must be dismissed with costs.
Kartar Singh v. Harbans Kaur (1994) 4
SCC 730
 Brief Facts:
 Smt.Harbans Kaur – respondent executed the sale deed
in 1961, in favor of the appellant of alienating the lands
on her behalf and on behalf of her minor son, Kulwant
Singh.
 He, after attaining majority filed a case in 1975 for a
declaration that the sale of his share in the lands
mentioned in the schedule attached thereto by his
mother was void and does not bind him.
 The decree ultimately was granted declaring that the
sale was void as against the minor.
 But, before taking delivery of the possession,
Kulwant Singh died.
 She, the mother being the class I heir succeeded to
the estate of the deceased.
 The appellant laid his claim to the benefit of S.43 of
the TPA, which was refused by the High Court.
 Thus these appeals by special leave.
 Issues: Whether the S.43 of the TPA applies to
protect the rights on the property of the appellant
or not?
 Observations:
 The contention for the appellant is that in view of
the finding that Harbans Kaur had succeeded by
operation of law, hence he is entitled to the
interest acquired by her by operation of S.43 of
the Act and
 The H.C has misapplied the ratio of decisions of
this Court in Jumma Masjid, Mercara case, instead
it would have applied the decision of the Patna
H.C. in Jhulan Prasad v. Ram Raj Prasad (AIR 1979
Pat 54).
 To apply S.43 two conditions must be satisfied.
1. There is a fraudulent or erroneous representation
made by the transferor to the transferee that he is
authorized to transfer certain immovable property
and in the purported exercise of authority,
professed to transfer such property for
consideration.
2. When it is discovered that the transferor acquired
an interest in the transferred property, at the option
of the transferee, he entitled to get the restitution
of interest in property got by the transferor,
provided the transferor acquires such interest in the
property during which contract of transfer must
subsist.
 In this case, admittedly, Kulwant Singh was a minor on the
date of the transfer. The marginal note of the sale deed
specifically mentions to the effect:
“….that the land had been acquired by her and by her minor
son by exercising the right of pre-emption and that she was
executing the sale deed in respect of her own share and
acting as guardian of her minor son so far as his share was
concerned”.
It is settled law that the transferee must make all reasonable
and diligent enquiries regarding the capacity of the
transferor and the necessity to alienate the estate of the
minor.
On satisfying those requirements, he is to enter and have the
sale deed from the guardian or manager of the estate of the
minor.
 Under the Guardian and Wards Act, the estate of the
minor cannot be alienated unless a specific permission
in that behalf is obtained from the district Court.
 Admittedly, no such permission was obtained.
 Therefore, the sale of the half share of the interest of
Kulwant Singh made by his mother is void.
 S.43 feeds its estoppel.
 The rule of estoppel by deed by the transferor would
apply only when the transferee has been misled.
 The transferee must know or put on notice that the
transferor does not possess the title which he represents
that he has.
 As a reasonable prudent man the appellant is expected
to enquire whether on her own the mother as guardian
of minor son is competent to alienate the estate of the
minor.
 When such acts were not done the first limb of S.43 is
not satisfied.
 It is obvious that it may be an erroneous representation
and may not be fraudulent one made by the mother
that she is entitled to alienate the estate of the minor.
 For the purpose of S.43 it is not strong material for
consideration.
 On declaration that the sale is void, in the eye of
law the contract is non-est to the extent of the
share of the minor from its inception.
 The second limb of S.43 is that the contract must be
a subsisting one at the time of the claim.
 A void contract is no contract in the eye of law and
was never in existence, hence second limb of this
section is not satisfied.
 Conclusion: In the face of the existence of the
aforementioned note and in the light of the law, it
could be concluded that S.43 does not apply to the
facts of this case.
 The ratio of the Patna H.C. also does not apply to the
facts in this case as rightly distinguished by the H.C.
 It is made clear that the declaration given by the H.C.
is only qua the right of the minor and it is fairly
conceded by the respondent that the decree does not
have any effect on the half share conveyed by the
mother.
 If the appellant has any independent cause of action
subsisting under the contract against the respondent,
this judgment may not stand in this way to pursue the
remedy under the law.
 The appeals are accordingly dismissed.
 S.6(b) A mere right of re-entry for breach of a condition
subsequent cannot be transferred to any one except
the owner of the property affected thereby;
 Right of re-entry: In leases if the rents are in arrears or
breach of covenants in the lease but the transfer of
land is allowed.
 A mere right of re-entry for breach of a condition
subsequent to the grant of a lease cannot be
transferred.
 An option to sell the property is valid under the law
and the assignee can enforce the performance against
the vendee and the vendee cannot plead the absence
of privity of contract.
 S.6(c) An easement cannot be transferred apart from
dominant heritage.
 Examples are rights of way, rights of water, rights of light
etc.,
 S.4 of the Easement Act, 1882 defines the Easment:
“an easement is a right which
the owner or occupier of certain land possesses as such
for the beneficial enjoyment of land,
to do and continue to do something, or
to prevent and to continue to prevent
something being done,
in or upon or in respect of,
certain other land which is not his own”.
 S.6(d). All interest in property restricted in its
enjoyment to the owner personally cannot be
transferred by him.
 Eg., lease- not to sublease without the permission
from the land lord.
 a religious office,
 a right of pre-emption - after the partition the
brothers should have priority in buying the
property.
 S.6(dd) Right to future maintenance:
 The objective of maintenance is that a person
unable to maintain himself or herself should not be
left destitute and should be prevented from being
in a state of vagrancy.
 If it is allowed then its very object will be defeated.
 Clause 6(e): Mere right to sue:
 Damages for breach of contract, or for tort.
 The object is to prevent gambling in litigation.
 Right to sue is a personal right of the party
aggrieved.
 Clause 6(f): Public Office cannot be transferred.
 This prohibition works on public policy.
 The salary of a public officer is not transferable,
although u/s.60 of CPC it is attachable with certain
limits.
 Clause 6(g): Pensions:
 To Military and civil pensioners of Government and
political pensions cannot be transferred.
 These are given for the past services rendered.
 Clause 6(h): No transfer can be made
 (i) In so far as nature of the interest affected thereby,
Such as services of inam etc., Or
 (2) for an unlawful object or consideration within the
meaning of S.23 of the ICA,1872, or
 (3) to a person legally disqualified to be transferee – S.136
and O 21 r 73 etc.,
 Clause (i)
Nothing in this section shall be
deemed to authorize a tenant
having an untransferable right of occupancy,
the farmer of an estate
in respect of which default has been made
in paying revenue, or
the lessee of an estate,
under the management of a Court of wards,
to assign his interest
as such tenant, farmer or lessee.