TUG OF WAR BETWEEN SECTION 6(A) AND SECTION43?

Property and interests in property as a general rule are transferable. This rule of transferability is grounded on the maxim alienation rei prefertur juri accrescendi, which means law favours alienation to accumulation. Under Transfer of Property Act, 1882 too circulation of property is encouraged except under Section 6 which defines what property is not transferable.



EVALUATION OF SECTION 6(A) :-

Section 6(a) reads that the chance of an heir apparent succeeding to the property of an intestate; the chance of a relation obtaining a legacy on the death of a family member, or any other possibility of a similar nature cannot be transferred. There is a hope, expectancy or a chance that he may succeed to the property, but no certainty that such an eventuality must happen. This chance is referred to as spes successionis. If a person transfers this chance, the status of this transfer in law is void ab initio. It does not convey any right in favour of the transferee, even if the transferor who transfers a chance may, in fact, become the owner of the same property in future. Heir does not have a vested interest in the property, but only a contingent interest hanging on the future expectancy. The same was upheld in Ananda Mohan Roy v. Gaur Mohun Mullick (1923) that the prohibition under Section 6(a) would become futile, if agreements to transfer property, where acquisition of title was based on possibilities, could be enforced.



EVALUATION OF SECTION 43 :-

Section 43 lays down the rule of estoppel and equity principle. This means a person who by made a promise by misrepresenting his capacity to transfer shall fulfil it when (and if) he subsequently acquires it. It is only when the transferee is led to believe of absolute interest on part of the transferor and transferee acts on that representation bona fidely, that he is entitled to take advantage of the fact that the transferor subsequently gets the full interest or becomes the owner of the property. It was held in Jharu Ram Roy v. Kanijet Roy (2009). In Hardev Singh v. Gurmail Singh (2007), where the husband transfers the property of his wife without taking her consent and she challenges its validity in the court but dies during its pendency and the husband inherits the same as her legal heir, the Apex Court held that if a person pretends to be the owner of the property and subsequently becomes the owner, the transfer by him conveys a good title. If the transferee has any knowledge or notice either constructive or actual about the fraudulent representation of capacity to transfer then the protection of section 43 could not be availed.



In Kartar Singh v. Harbans Kaur, a Hindu woman executed a sale deed of the lands belonging to her minor son in 1961. The son on attaining majority in 1975, filed a suit to the effect that this sale was not binding on him, and was void. The court passed a decree that this sale, executed by the mother owned by her minor son was void, and directed that the possession of these properties be restored to the son. Before the son could take possession of the property, he died, and the mother as a Class I heir succeeded to the property. The transferee, X, claimed the benefit of section 43. The court held that as right at the beginning, the contract was void, because the transferee ought to have known about the incompetency of the transferor and hence section 43 would have no application. The transferee is entitled to the benefit of this doctrine only when the transferor subsequently acquires an interest in the property that he originally represented as his. If the transferor does not acquire a further interest in the property transferred, this section has no application. There is no automatic validation of the transfer, as no rights are vested in the transferee from the inception of this transfer. The option must be exercised by the transferee.


DIFFERENCE BETWEEN SECTION 6(a) and SECTION. 43:-

(i) Section 6(a) enacts a rule of substantive law, while Section 43 incorporates a rule of estoppel.

(ii) Under Section 6(a), the fact that it is a transfer of spes successionis is within the knowledge of both the transferor as well as the transferee. There is no misrepresentation from either side about their competency. Section 43 is very clear of the fact that its application will cover only those cases, where due to the making of a representation by the transferor, that he is competent to transfer a piece of property, the transferee has been expressly misled.

(iii) Section 43 applies only in those cases, where the transfer is for consideration. It does not apply to gratuitous transfers. It applies only in those cases where despite a misrepresentation, the transferor, either takes or seeks to take a monetary benefit from the transferee. On the other hand, the prohibition under Section 6 (a) applies to all kinds of transfers, irrespective of whether they are for consideration or gratuitous transfers.


(iv)The status of a transfer under Section 6(a) is void in its inception, i.e., void ab initio, However, under Section 43, the transfer is voidable at the option of the transferee.

Jumma Masjid Mercara v. Kodimaniandra Deviah solidified this distinction pointing out that they do relate to different spheres, and that there is no conflict between them. Section 43 clearly applies whenever a person transfers property to which he has no title on the representation that he has a present and transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration. 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. Section 6(a) prohibits the transfer of chance as it is not certain to begin with. Here the transferor generally has an interest though it may come into force in future. Section 6 (a) enacts a rule of substantive law, while Section 43 enacts a rule of estoppel, which is one of evidence. The distinction is between purporting to transfer the chance of an heir apparent and ‘erroneously representing that the transferor is authorised to transfer certain immovable properties upheld by Alamanaya Kunigari Nabi Seb v. Murukuti Papiah.



CONCLUSION:-

The two sections dealing with spes successionis and estoppel are definitely not contradictory. They have their own sphere of operation which may seem overlapping but are not overriding. Section 6(a) is applicable where there is no fraudulent representation and both the parties know about the capacity of transferor while Section 43 applies where there is a misrepresentation by the transferor and acting on such representation bona fide transferee did something, for consideration. It may seem that there is a tussle between both the sections, time and again parties have also contended one having upper hand over the other according to their suitability but they are harmoniously constructed and have a clear line of demarcation between them.



[1] Transfer of Property Act, 1882

[2] Ananda Mohan Roy v. Gaur Mohun Mullick AIR 1923 PC 189.

[3] Transfer of Property Act, 1882

[4] Jharu Ram Roy v. Kanijet Roy (2009) 4 SCC 60

[5] Hardev Singh v. Gurmail Singh, AIR 2007 SC 1058

[6] Kartar Singh v. Harbans Kaur (1994) 4 SCC 730.

[7] Jumma Masjid Mercara v. Kodimaniandra Deviah AIR 1962 SC 847

[8] Alamanaya Kunigari Nabi Seb v. Murukuti Papia AIR 1915 Mad 972.


BOOK REFERENCE: -

  • Poonam Pradhan Saxena: Property Law



This article is written by VANSHIKA GUPTA of Campus Law Centre, University of Delhi.

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