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rescinded the contract of sale, may require A to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 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 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 Gangamma

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 ‘G’ 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 and 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 of 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”.
 Observations: 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”.
 The argument is that if S.43 is to be interpreted
as having application to cases of what is in fact
transfers of spes successionis, that will have the
effect of nullifying S.6(a), and that therefore it
would be proper to construe to s.43 as limited
to cases of transfers of other than those falling
within S.6(a).
 If we accept this argument we are creating an
exception for S.43 through which we are not
construing the section rather we are rewriting
which “we are not entitled”.
 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.
 One of the earliest case: Alamanaya Kunigari Nabi
Sab v. Murukuti Papiah (AIR 1915 Mad 972) that
arose 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 TPA.
 It was represented to the transferee that the
transferor was in praesenti entitled to and thus
authorise to transfer the property.
 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 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.
 “The effect would be that by a clever description
of the property dealt with 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 became in
titulo 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 deliver 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
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;
 (b) 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 the 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, 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 (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
personal to the party aggrieved.
 Clause(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(g): Pensions: To Military and civil
pensioners of Government and political
pensions cannot be transferred. These are given
for the past services rendered.
 Clause(h): Nature of interest cannot be transferred.
Such as services of inam etc.,
 (ii) U/S 23 of the ICA, a consideration or object is
unlawful if it is
 (1) forbidden by law; or
 (2) is of such nature that it defeats the provisions of
any law; or
 (3) is fraudulent; or
 (4) involves or implies injury to the person or
property of another; or (adoption given for
consideration)
 (5) or the course regard it as immoral or
 (6) opposed to public policy.
 (iii) Disqualified to be a transferee: S.136,O21
r73.
 Clause(i): Untransferable right of occupancy.