Transfer of property Act assignment

on
spes successionis

SUBMITTED TO

PROF. DR. ASEEM PALIWAL

SUBMITTED BY

NIHIT MISHRA

ENROLLMENT NO. – 1006AL0063

SEMESTER-7-B
 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.

An overview of Section 6(A) and Section 43 of the Transfer of

Property Act

Section 6(A) of the Transfer of Property Act 1882

There is a distinct idea called Doctrine of Spes Successionis. It states the

right of an individual who is an heir currently will receive the property
after the death of the owner. This doctrine signifies the possibility that
the heir apparent expects to succeed to property by will or succession.

Section 6(A) of the Transfer of Property Act, 1882 defines this

concept.

The transferability of property focuses on alienation rei prefertur juri

accrescendi. This maxim states alienation is better than the accumulation
of property. The spes succession signifies the simple succession which
exists in ancestral property, self-acquired property, wherever the
property moves to the ascendants in case of death of the owner. But the
special feature of this is the time of transfer, in case the owner is alive,
one’s heirs only hold the right on the property that in future one will
possess the ownership, but at present one cannot exercise any rights to
transfer the property.

For instance in case C is having a small grocery business. His son D is

the only child of C. D gets an offer from a promoter that if he sells the
land and the shop to him in return he will receive an apartment. D agrees
to this and hands over the property deeds without the consent of C. C
holds no knowledge about this transfer. This transfer will be void ab
initio, as C has the only right to transfer his property. Here D will only
have the right to transfer when the property comes to him, legally either
after the death of his father or before if he receives it as a gift from his
father.

In Latafat Husain And Ors vs. Hidayat Husain And Ors case, the
plaintiff’s husband and husband’s brother had equal shares on a
property. When the brother dies, his share of the property (⅛ of the
share) goes to his mother. The mother gifted the property to the son of
the plaintiff’s husband. Plaintiff was the second wife of Fasahat Husain.
Fasahat appointed the plaintiff as mutwali who only receives the
possession of the property of their son. Also earlier, she had relinquished
the dower and claimed inheritance from the property of her husband.
After the death of Fasahat Hussain, the plaintiff claimed for ⅛ share as
the inheritance of her husband. To this, the court said that she will only
retain the possession of the property as mutawali and no claim shall be
entertained as previously she had relinquished herself from the
inheritance.

The judgment was based on two aspects, first, when one has only
possession, one cannot exercise any right or claim on that, and second
on the estoppel, or in simpler words when one has promised for
something one cannot deny that in future.

One famous maxim states ‘nemo dat quod non habit’ which signifies ‘no
one gives what he doesn’t have.’ Specifically, maxim means in case any
individual purchases something from someone who himself doesn’t have
the ownership right, then it prevents the purchaser from obtaining the
ownership title. So in simpler words, Section 43 of the Transfer of
Property Act 1882 states no immovable property can be transferred by
any individual, who is not authorized to do so. If a person does not
possess the title to transfer the property and the same being transfers the
property to another, it will be considered void.
Section 43 of the Transfer of Property Act 1882

This context is also known as ‘feeding the grant by estoppel.’

Section 43 is based on two aspects, one is ‘doctrine of estoppel’ and the

other is ‘equitable estoppel.’ This doctrine signifies that when a person
promises for something more than one possesses, then one has to
complete one’s promise when one in real acquires the concerning
immovable property.

In Ram Bhawan Singh vs. Jagdish case, the judgment of the case
denoted that the doctrine applies to the sale, mortgage, lease, exchange,
and charge. Also, the doctrine is not applicable when the acquired
interest of the transferor is not the subject matter of the concerned
property but to any other immovable property. The court also held that,
when the larger part of the interest comes to the transferor, it
automatically passes to the transferee, which was misrepresented earlier
as the transferor’s property.

The necessity for comparison between the two provisions

There is a thin line that makes both aspects different from each other.
The existence of such difference makes the facts and the judgment of the
case proper because otherwise there will be a contradiction in the rights
for succession, between the owner and the heirs. Also without this,
fraudulent practices and misrepresentations will get favored and no
definitive justice will be served.
The other major point to be considered is that estoppel is only applicable
for immovable properties along with consideration behind the transfer
while Sec 6(a) or spes successionis are applied to both movable and
immovable properties. Transfers are void-ab initio under Sec 6(a) but for
estoppel, the contract should be in existence till the transferor attains
competency.

In the case of spes succession, both the parties are mostly aware of the
existence of the properties and the rules regarding successions. But in
the case of estoppel, the chances of misrepresentation and fraudulent
practices are more so it becomes easier to identify the grounds where the
case stands based on the facts.

Jumma Masjid Mercara v. Kodi Maniandra Devia

Facts of the case

In this case, three brothers( B1, B2, B3) had mortgaged property in the
year 1990 to the mortgagee for a period of twenty years, from 1900 to
1920. In the terms of the contract it was mentioned that after the
completion of twenty years, the property will be returned to the family
of the three brothers.
In the family, the two brothers were married, and their wives were W1
and W2, while the third brother was unmarried. These three brothers
also had a sister S, and she had two children, and three grandsons ( Gr1,
Gr2, and Gr3). All the brothers died and the sister too. Just the two
wives and the grandchildren remained.

According to the law, till the wives are alive they will hold the property.
In case both the wives die the property will go to the sister and
eventually to the grandsons. Grandsons were the heirs under the ground
of spes succession. It was also mentioned that Gr1 will receive ½ of the
share of the property while the other grandsons will get ¼ of the share of
the property each.

Under The Transfer of Property Act 1882 in this case, Sec 6(a) favors no
transfer while Sec 43 favors transfer if promised earlier.

It happened that the grandsons transferred the property to a transferee

(T) and misrepresented the fact that they held the ownership. To this W2
filed a case against the grandsons as she was still alive. It was the 1st
appeal, where the court favored the W1 and dismissed the case. But it is
to be noted that the transfer to T was still valid on the grounds of Sec 43.

After this before the 2nd appeal, W2 died, and the property went to the
grandsons. Here the transferee T claimed for the property as there was
an existence of consideration behind the transfer.
To this a new party entered named Jumma Masjid claiming that the
property was transferred to them in the form of a gift deed by the W2,
also Gr1 had given them his portion i.e, ½ of the share with
consideration of rupees 300.

The contention of the parties

This case holds two contentions. First the claim of the transferee T on
the ground of estoppel. As in Indian law, the transferee has to claim for
his share on the ground of Estoppel.

The second is Jumma Masjid’s claim, which is based on a gift deed they
received and a share of 1/2 of the property they received from Gr1 in
consideration of 300 rupees. Also, Jumma Masjid argued that the
grandsons are the heir and under spes succession Sec 6a, they are not
eligible for transfer of the property so that is nothing but fraud and
misrepresentation making the whole transfer to be invalid.

Observation of the Court

The court observed that the transferee claimed to be valid. And

dismissed the claim of Jumma Masjid. This judgment signifies the rule
of estoppel which is an evidentiary aspect while Section 6a substantive
law and also mentions that in this case both the grounds cannot be
combined, else it will lose the purpose of the doctrine.
So finally transferee T got the property where his claim was considered
as a valid claim. It was also determined by the court that if the claim of
Jumma Masjid was considered then it would lead to a consequence
where the provision of spes succession would get vague and the right to
transfer would lose dignity.

Precedent judgments referred by the 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 favor 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 favor 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 favor. So in case of subsequent appeals, it is important to analyze
the facts as a small gap can lead to a big change.