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TMI Blog1962 (1) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... is shown in the following genealogical table. On August 5, 1900, Nanjundappa and Basappa executed a usufructuary mortgage over the properties which form the subject-matter of this litigation, and one Appanna Shetty, having obtained an assignment thereof, filed a suit to enforce it, O.S. 9 of 1903, in the court of the Subordinate Judge, Coorg. That ended in a compromise decree, which provided that Appanna Shetty was to enjoy the usufruct from the hypotheca till August, 1920, in full satisfaction of all his claims under the mortgage, and that the properties were thereafter to revert to the family of the mortgagors. By a sale deed dated November 18, 1920, Ex. III, the three reversioners, Basappa, Nallappa and Santhappa, sold the suit properties to one Ganapathi, under whom the respondents claim, for a consideration of ₹ 2,000. Therein the vendors recite that the properties in question belonged to the joint family of Nanjundappa and his brother Basappa, that on the death of Nanjundappa, Ammakka inherited them as his widow, and on her death, they had devolved on them as the next reversioners of the last male owner. On March 12, 1921, the vendors executed another deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents to the suit was that as Santhappa had sold the properties to Ganapathi on a representation that he had become entitled to them as reversioner of Nanjundappa, on the death of Ammakka in 1910, he was estopped from asserting that they were in fact the self-acquisitions of Basappa, and that he had, in consequence, no title at the dates of Ex. III and Ex. IV. The appellant, it was contended, could, therefore, get no title as against them under the release deed Ex. A, dated March 3, 1933. The District Judge of Coorg who heard the action held that the alleged gift by Gangamma on September 5, 1932, had not been established, and as this ground of title was abandoned by the appellant in the High Court, no further notice will be taken of it. Dealing next with the title claimed by the appellant under the release deed, Ex. A executed by Santhappa, the District Judge held that as Ganapathi had purchased the properties under Ex. III on the faith of the representation contained therein that the vendors had become entitled to them on the death of Ammakka in 1910, he acquired a good title under s. 43 of the Transfer of Property Act, and that Ex. A could not prevail as against it. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transferee takes a transfer for consideration. When these conditions are satisfied, the section enacts that if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not meantime been thrown up or cancelled and is subsisting. There is an exception in favour of transferees for consideration in good faith and without notice of the rights under the prior transfer. But apart from that, the section is absolute and unqualified in its operation. It applies to all transfers which fulfil the conditions prescribed therein, and it makes 1. O 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. The contention on behalf of the appellant is that s. 43 must be read subject to s. 6 (a) of the Transfer of Property Act 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question The fell to be decided solely on the terms of s. 6 (a). Rules of estoppel are not to be resorted to for defeating or circumventing prohibitions enacted by Statutes on grounds of public policy. But here the matter does not rest only on s. 6 (a). We have in addition, s. 43, which enacts a special provision for the protection of transferees for consideration from persons who represent that they have present title, which, in fact, they have not. And the point for decision is simply whether on then facts the respondents are entitled to the benefit of this section. If they are, as found by the courts below, then the plea of estoppel raised by them on the terms of the section is one pleaded under, and not against the statute, The appellant also sought to rely on the decisions wherein it has been held that a plea of estoppel could not be raised against a millor who had transferred property on a representation that he was of age, and that s. 43 was inapplicable to such transfers, vide Sadiq Ali Khan v. Jai Kishori Gadigeppa v. Balanagauda (2) Ajudhia Prasad v. Chandan Lal(3)But the short answer to this contention is that s. 43 deals with transfers which fail forwant of title in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the construction of the text. The illustrations should in no case be rejected because they do not square with ideas possibly derived from an other system of jurisprudence as to the law with which they are the sections deal And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the sections themselves. It would be the very last resort of construction to make any such assumption. The great usefulness of the illustrations, which have, although no part of the sections, been expressly furnished by the Legislature as helpful in the working and application of the statute, should not be thus impaired. We shall now proceed to consider the more important cases wherein the present question has been considered. One of the earliest of them is the decision of the Madras High court in Alamanaya Kunigari Nabi Sab v. Murukuti Papiah (1). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43. That section embodies, as already stated, a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given, the relevant word of s. 43 were, where a person erroneously represents , and now, a amended by Act 20 of 1929, they are where a person fraudulently or erroneously represents , and that emphasises that for the purpose of the section it matters not whether the transferor act fraudulently or innocently in making the representation, and that what is material is that he did made 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. Section 43 would then have no application, and the transfer will fail under s. 6(a). But where the transferee does act on the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The learned Judge, Sir S. M. Sulaiman, C. J., and Rachhpal, J., held, agreeing with the decision in Alamanaya Kunigari, Nabi Sab v. Murukuti Papiah (1),and deffering from The official Assignee, Madras v. Sampath Naidu (2),and Bindeshwari Singh v. Har Narain Singh (3), that s.43 applied and that the respondents, had acquired a good title. In coming to this, conclusion, they relied on the illustration to s. 43 as, indicating its, true scope, and observed:- Section 6 (a) would, therefore, apply to cases, where professedly there is, a transfer of a mere spes successionis, the parties knowing that the transferor has, no more right than that of a mere expectant heir. The result, of course, would be the same where the parties, knowing the full facts, fraudulently clothe the transaction in the garb of a an out and out sale of the property, and there is, no erroneous representation made by the transferor to the transferor as, to his, ownership. But where an erroneous, representation is, made by the transferor to the transferee that he is, the full owner of the property transferred and is authorized to transfer it and the property transferred is not a mere chance of succession ..... X X X X Extracts X X X X X X X X Extracts X X X X
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