Differences of s.6 & s.43: Decided in a case law.

Rohit Tiwari, The North Cap University, Gurugram

Jumma Masjid, Mercara v. Kodimaniandra Deviah

Statement of Facts

· A Joint family consisted of three brothers, Santhappa, Nanjundappa and Basappa. Of these, Santhappa died unmarried, Basappa died in 1901 and Najundappa died in 1907, leaving behind their widows, Gangamma and Ammakka respectively who succeeded to their properties. Later, Ammakka died in 1910 and the property devolved upon Basappa, Mallappa and Santhappa, who were the reversioners in the property by virtue of Najundappa’s sister, Mallammal’s grandsons.

· On August 5, 1900, Nanjundappa and Basappa executed a usufructuary mortgage[1] over the properties and there being a dispute in the use of the mortgage property, Appanna Shetty, being the mortgagee filed a suit and the court decided that Appanna Shetty was to enjoy the usufruct of the property till August, 1920 and the property will revert back to the mortgagors thereafter.

· On November 18, 1920, the three reversioners, Basappa, Mallappa and Santhappa, sold the properties to Ganapathi for a consideration of Rs 2000. They made a representation that the impugned properties belonged to Nanjundappa and his brother Basappa and on the death of Nanjundappa, Ammakka inherited them as his widow and later on her death, they have devolved upon them as the reversioners. This led to the execution of another sale deed which included some other properties, left earlier due to an oversight and it was this final sale deed on which the title of the respondents rest.

· On the basis of this deed, Ganapathi sued for the possession of the property and the same was contested by Gangamma (Basappa’s wife) and she claimed that on her husband’s death, she was entitled to them. The dispute went before the Subordinate Judge, who accepted her contention and later in appeal, went to the District Judge and then in second appeal to the Judicial Commissioner, where both of them affirmed to her contention. But before the second appeal could have been finally disposed of, Gangamma died on February 17, 1933.

· Thus, Ganapathi approached the Revenue Authorities to transfer the title deed for the properties in question in his name which were in the name of Gangamma, in respect of the sale deed executed by the reversioners. However, Jumma Masjid, Mercara intervened in between by claiming that they are entitled to the impugned properties, for the reasons stated that Gangamma had made a Gift in their favor on September 5, 1932 and also, one of the reversioners, Santhappa has relinquished his half-share in the properties to the mosque for a consideration of Rs 300. This Right of ownership in the properties to be deemed in whose favor became the point of consideration before the Court.

Hon'ble Judges/Coram

The present case for the final appeal before the Supreme Court of India was presided over by J.C. Shah, J.L. Kapur, M. Hidayatullah and T.L. Venkatarama Aiyyar, JJ.


District Court

On September 9, 1933, the Revenue Authorities rejected the claim of the appellant and passed the order in favor of Ganapathi, thereby granting him the possession of the properties.

After that, the matter came before the District Judge where it was held that the alleged gift made by Gangamma was not established and with regard to the second contention of the appellant, of holding title by way of release deed executed by Santhappa, the court held that the properties were purchased by Ganapathi on a representation that the reversioners had become entitled to them on the death of Ammakka in 1910 and thus Ganapathi acquires a good title under Section 43 of the Transfer of Property Act, 1882 and thereby dismissed the suit.

High Court

An appeal was made to the High Court and the court agreed with the District Court’s decision that Ganapathi acted on the representation made by the reversioners that they had a present interest in the property and not a mere right to succeed in future. Section 43 thereby applies and thus on February 17, 1933, when the reversioners acquired title to the properties on the death of Gangamma, the sale deed executed in the favor of Ganapathi becomes operative. The High Court dismissed the appeal.

Supreme Court

The reversioners then applied for a leave to appeal before the Supreme Court under Article 133(1)[2] of the Indian Constitution and the same was granted by the High Court. The Supreme Court withstanding the decision taken by the courts below held that Section 43 is correct to be applied and said that when a person has transferred a property by contending that he has a present interest therein, whereas he has only a spes successionis, the transferee is entitled to avail the protection under Section 43, provided that he has acted upon such representation and the transfer is in furtherance of consideration. In this case, Santhappa, the reversioner, made a representation that he has a present interest in the properties and based on the finding, the transferee has acted on such representation, thus is entitled to be protected by Section 43 by providing him the title of the properties which was subsequently acquired by Santhappa on the death of Gangamma on February 17, 1933 and held that the subsequent dealing by Santhappa over the properties by way of release deed in the favor of the appellant will not vest any title. The appeal was dismissed.

Critical Analysis

Issue 1: Whether the delimitation done by the court between the scope of Section 43 and Section 6(a) is correct or not?

Yes, the act of defining the scope of both the sections on the part of the court is correct. The appellant came with a defense that Section 43[3] is subjected to Section 6(a)[4] which means that Section 43 will apply only to those situations where Section 6(a) does not find a mention; otherwise the rule embedded in Section 6(a) will become futile. This reasoning of the appellant was based on the ground that Section 43 is analogous to Section 6(a) by virtue of the fact that there being similarities between both of them and thus, Section 43 is subservient to Section 6(a).

Following the aforesaid reasoning, the appellant contended that in the present case, the reversioners at the time of making the sale deed in the name of Ganapathi had a mere spes successionis[5] and thus the transfer falls within the purview of Section 6(a) making it void ab initio and no further reference to Section 43 is required.

However, Section 6(a) and Section 43 are two different sides of the same coin. Though there being a similarity that in both the cases, the transferor is not actually having a present interest in the impugned property but this does not mean that they are inter related to each other. By referring to Alamanaya Kunigari Nabi Sab v. Murukuti Papiah[6], where a mortgage deed was executed by the son over the properties that belonged to his father, who was alive at that time. But before the suit could have been finally disposed of, the father died and the son inherited the properties in question. Now, whether the mortgagee could claim protection under Section 43 was in dispute. The Court made a clear demarcation between the transfers, one, where there is a chance of an heir-apparent and the other, where the transferor has made an erroneous representation that he is authorized to transfer certain property. The latter was upheld by the court in this case.

Also, both the sections differ from each other in various other contexts. Section 43 comes into picture only when a fraudulent or erroneous representation has been made by the transferor and the transferee has acted on the same but he should not have a prior knowledge of the defect in the title and if he has so, then he will not find a rescue under Section 43. This section applies only in case of immovable properties in question and where the transfer has been done for consideration. It also makes the transfer voidable at the option of the transferee, in case he has been misled by the transferor therein. But Section 6(a) has a different application altogether. If in a transfer, both the parties have knowledge about the lack of title on the transferor and despite having such knowledge, a transfer is being made, then such transfer will be void ab initio. This section applies to both movable and immovable properties and there is no specific want of consideration, unlike in the case of Section 43.

In Shyam Narain v. Mangal Prasad[7], the difference with respect to knowledge was highlighted by the court, where Ram Narayan sold the properties to respondents in 1910 which actually belonged to her mother who died in 1926 and he succeeded to the properties and then sold them to the appellants in 1927. Now, the appellants contended that when Ram Narayan sold the properties to respondents, he only had a spes successionis and the respondents on the other hand, claimed the title in the properties when the transferor subsequently acquired interest in 1926. The court held that the respondents acquire a good title to the properties.

Here, a clear line of distinction was drawn by the court with respect to the application of Section 6(a) and Section 43 which was as follows- Section 6(a) applies in a transfer, where both the parties have knowledge about the lack of title on the transferor and despite having such knowledge, a transfer is being made, then such transfer will have no result other than being void ab initio. On the other hand, Section 43 is applied in a situation where the transferor has made an erroneous or fraudulent representation that he has the power to transfer a property and the transferee acting on such representation without knowing the defect in the title, will have the option with regard to the property when the transferor will acquire a subsequent interest in the property during the subsistence of the transfer.

Thus, in the case in hand, the reversioners have made a clear representation that they are entitled to the properties which they were not and Ganaparthi acted on such misrepresentation, with the transfer being executed for consideration, Ganapathi is entitled to protection under Section 43 and this leaves no error in the judgment.

Issue 2: Whether the invoking of exception in this case by the appellant under Section 43 was legit or not?

No, the exception provided under Section 43 in the favor of transferees was not appropriate to be applied in this case. If we take the exception into consideration with regard to the present case, Jumma Masjid, Mercara has contended that Gangamma had made a Gift in their favor on September 5, 1932 and also, one of the reversioners, Santhappa had relinquished his half-share in the properties to the mosque for a consideration of Rs 300.

When we talk about the application of the exception under Section 43, it has to first fulfil certain conditions which have been laid down in a case, Antharman v. Moithu and Ors.[8] Here in this case, Moideen transferred a property to Avulla representing erroneously to be his own but actually belonged to Biyyathumma, who was Moideen’s mother being alive at that time. When the mother died, Moideen inherited the property and transferred his share to his son. When the question of protection under Section 43 came into being, the court laid down certain conditions for its application- (1) the transfer should have been made erroneously or fraudulently by the transferor that he is authorized to make the transfer and he is actually not capable of doing the same, (2) the transfer should be for valuable consideration and (3) there shall not be any other transferee who in good faith for consideration and without a notice of prior transfer has entered in the transfer. The court held that the transfer from Moideen to his son was without any valuable consideration and the exception in the second para of Section 43 cannot find a place in this case.

Thus, in the present case, after Gangamma had died, Section 43 gained importance and Ganapathi immediately claimed his interest but was obstructed by the appellant on the ground that he being the second transferee also holds a good title. But the same was rejected by the court due to want of consideration as only a gift was made in his favor which has been explicitly prohibited to invoke the exception as one of its grounds. Thus, the court’s ruling was correct.

Also, when we look into Section 52[9], it talks about the “Doctrine of Ut Lite Pendente Nihil Innovetur”, i.e. nothing new should be introduced in a pending litigation. In the case of Dalip Kumar v. Jeevan Ram[10], A filed a suit for possession by virtue of Right of Pre-emption of a property that was transferred to B. The lower court granted him the decree for Pre-emption and the same was challenged by the adverse party to the High Court but the appeal was dismissed. Later, he went to the Supreme Court, after the appeal got rejected there, he filed a leave to that appeal and it was accepted by the court. But in the meantime, A sold the property to X and X claimed to be a bona fide purchaser. The court held that when the litigation was pending, the property in question was sold and would get hit by the rule of Lis Pendens[11].

In the present case, the gift made by Gangamma in the favor of Jumma Masjid, Mercara was when the suit was pending before the Judicial Commissioner and thus, if she would have survived, the claim of Jumma Masjid might have had been hit by the Rule of Lis Pendens, as none of the parties could deal with the impugned property in any way which would affect the rights of the other party in the suit, till the suit subsists.

Coming to another facet of the dispute, where Santhappa relinquished his half-share in the property for a consideration of Rs 300. In the above discussed case of Antharman v. Moithu and Ors., when Moideen subsequently gained an interest in the property, the transferee immediately claimed his interest and later in the case, the court granted him protection under Section 43. Now, in the present case, Ganapathi had claimed his interest in the properties reasonably early when Gangamma died, from the reversioners. Thus, any subsequent dealing by Santhappa after he has subsequently acquired interest in the properties will fall futile, irrespective of the exception and its conditions fulfilled thereby.

Issue 3: Whether the reliance upon the illustration by the court under Section 43 was valid in deciding the case?

Yes, only when the illustration is appropriate to be applied in a particular case. Likewise, in this case, the court has relied upon the illustration which says that after partition, A sold three fields X, Y, Z to C representing that he is entitled to them and authorized to sell them. On such representation, C entered into the transfer but of the three fields, Z was retained by the father during the partition. Later, when father died, Z was inherited by his son, A and now, C can exercise the option and claim his interest in the property.

Regarding the value that can be given to an illustration, I would like to cite a case which was also referred to by the court in this case. In Mahomed Syedol Ariffin v. Yeoh Ooi Gark[12], in this case the Judicial Committee said that the court shall not restrict itself from applying an illustration in any case, provided that the illustration is relevant and adds value to the case in hand. An illustration must not be rejected on the face of it and shall be construed unless it deals with a different context other than the one in hand and thus provided for the importance of an illustration.

Similarly, in this case, following the illustration under Section 43 which explicitly covers a major part of the dispute and thus, after the reversioners have acquired a subsequent interest in the properties on the death of Gangamma, Ganapathi has exercised the option of proceeding further with the transfer and the same has been delivered to him. This shows that the application of illustration in this case is legit.


[1] Usufructuary mortgage is a special type of mortgage where the mortgagor delivers possession, either expressly or by implication. He authorizes him to retain such possession until payment of the mortgage money. Though, the usufruct, i.e. the benefits of the property can be used by the mortgagor to pay off the debt.

[2] Article 133- Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under Article 134A

(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court

[3] Section 43- Transfer by unauthorized person who subsequently acquires interest in property transferred.—Where a person fraudulently or erroneously represents that he is authorized to transfer certain immoveable 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.

[4] 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

[5] The chance of an heir-apparent succeeding to an estate

[6] (1915) 29 M.L.J. 733

[7] I.L.R. [1935] All. 474

[8] 1961KLJ969

[9] Section 52- Transfer of property pending suit relating thereto.—During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation.—For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.

[10] AIR 1996 P&H 158

[11] ‘Lis’ stands for suit or litigation and ‘pendens’ for pending

[12] [1916] 2 A.C. 575

  • LinkedIn
  • Facebook
  • YouTube
  • Instagram