Jumma Masjid, Mercara v Kodimaniandra Deviah

Facts

Three brothers who had only a spes successionis (chance of succeeding as reversioners) transferred immovable property to the appellant, representing that they were the present absolute owners. They later acquired title to the property. The transferee sought to hold the property under section 43, while it was argued that the transfer was void under section 6(a) as a transfer of a mere chance of succession.

Issues

• Whether section 43 (transfer by an unauthorised person who subsequently acquires interest) applies where the transfer was of a spes successionis prohibited by section 6(a).
• Whether a bona fide transferee misled by a fraudulent representation of present title can claim the benefit of feeding the grant by estoppel.

Arguments

The transferee argued that the transferors had represented an existing title, so on subsequently acquiring it the estoppel in section 43 fed the grant in his favour. The contesting party argued that a transfer of spes successionis is void under section 6(a) and section 43 cannot validate what section 6(a) forbids.

Held

The Supreme Court held that sections 6(a) and 43 operate in different fields: section 6(a) deals with what is transferable in fact, while section 43 enacts a rule of estoppel protecting transferees misled by a representation of present ownership. Where the transferee did not know the true facts and acted on a representation that the transferor was presently the full owner, section 43 applies and feeds the estoppel once the transferor acquires title. The Court expressly overruled Official Assignee of Madras v Sampath Naidu, holding section 43 is available even though the interest transferred was in truth only a chance of succession.

Ratio decidendi

Section 6(a) and section 43 are not in conflict; a bona fide transferee for value who is misled by a fraudulent or erroneous representation of present title can invoke section 43 when the transferor later acquires the property, notwithstanding that the subject was a spes successionis.

Significance

Leading authority reconciling section 6(a) with section 43; it settled the long-standing High Court conflict on whether the doctrine of feeding the grant by estoppel can cure a transfer of an expectancy, and is consistently followed.

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