The Jumma Musjid Mercara vs Kodimani Andra Devaiah and Others

Satyanarayana Rao, J.—This appeal raises a question u/s 43, Transfer of Property Act, on which there is conflict of opinion in this Court.

Two decisions of this Court, -- Alamanayakunigari Nabi Sab by next friend and mother Fakir Bee Vs. Murukuti Papiah and Others, and --

Vellayammal and Others Vs. N.P. Palaniyandi Ambalam, , have taken a view favourable to the respondents. But a different view was taken in --''

The Official Assignee of Madras and Another Vs. Sampath Naidu, , by a Bench. Madhavan Nair J, in --''Sreeramulu v. Somaraju'', 1930 Mad

WN 1054(D), followed the earlier decisions and the Allahabad High Court has also accepted the earlier decisions of this Court as laying down the

law correctly. There is also a decision of a single Judge Wadsworth J. in --''Akkamma v. Ramalinga Reddi'', 1937 Mad WN 416(E). In view of

these conflicting decisions I think it is but proper that this appeal should be heard by a Bench and the papers will be placed before the Honourable

the Chief Justice so that he may decide whether this case should be posted before a Bench or even at the outset before a Full Bench as it is

essential that the conflict should be resolved once for all.

JUDGMENT

SATYANARAYANA RAO J.: This appeal was referred to a Full Bench as there were conflicting decision''s regarding the interpretation of

Section 43, Transfer of Property Act.

The plaintiff who was unsuccessful in the lower Court preferred this appeal against the judgment and decree of the District Court of Coorg in O.

S. No. 1 of 1945. The plaintiff is the Jumma Masjid, Mercara, represented by its Mutavalli, Khan Sahib Abdul Rahman Khan. The suit is for

recovery of possession of a half share in the Immovable properties described in the schedule attached to the plaint. According to the case of the

plaintiff, the properties in suit originally belonged to one Sh. Basappa, and after his death in 1901, they devolved on his widow, Gangamma, who

became a convert to Islam, and made a gift of these properties on 5-9-1932 to the Masjid. The properties continued in the possession of the

plaintiff till the death of Gangamma which occurred on 17-2-1933. But on her death, Santappa and Basappa (this Basappa is a different person

from Basappa the husband of Gangamma) the sister''s son''s sons of Gangamma''s husband Basappa, became entitled to the properties as the

reversioners to the estate. On 3-3-1933, under Ex. A. Santappa sold his half interest in the properties to the Mosque and therefore, it is claimed

that under this document, the plaintiff will be entitled at least to a half share in the suit properties.

The father of defendants 1 to 3 one Rao Bahadur Subbayya, claimed on the death of Gangamma that the properties belonged to him and his joint

family, as they were purchased on 18-11-1920 ''under Ex. III from Santhappa Basappa, and another in the name of his son, Ganapathi, who

subsequently died leaving his widow the 4th defendant. He applied for transfer of patta and the Revenue authorities effected the transfer, and in

pursuance of the order of the Revenue authorities, Rao Bahadur Subbayya took possession of the properties from the plaintiff. It is claimed by the

plaintiff that the defendants had no title at all to the properties and that the plaintiff is entitled to a half share. It may be mentioned, even at the

outset, that the title put forward by the plaintiff under the gift deed of Gangamma was not established in the trial Court. No deed of gift was

produced and that title is now abandoned in the appeal. The title, therefore, of the plaintiff is now confined to the title acquired under the sale deed,

Ex. A. executed by Santhappa.

The defendants'' case was that the suit properties belonged originally to three brothers, Nanjundappa, Santhappa and Basappa, who constituted

members of a joint family. Basappa died first in 1901, Santhappa died in 1903, and the properties survived thereafter to Nanjundappa, the last of

the coparceners. He died in 1907 leaving behind him his widow, Ammakka. She died in 1910. After her death, the reversioners to the estate,

namely, Basappa, Mallappa and Samhappa the sister''s sons'' sons of the last holder, sold under Ex. III dated 18-11-1920 the properties to

Ganapathi, the husband of defendant 4 and the son of Rao Bahadur Subbayya, for the benefit of their joint family. This was followed by a

rectification deed, Ex. IV, dated 12-3-1921, by which the omission in Ex. III of certain properties was made good. Ganapathi instituted O. S. No.

11 of 1921 on the file of the Subordinate Judge''s Court of Coorg on the strength of Exs. III and IV to recover possession of the properties. The

suit was contested by Gangamma, the widow of Basappa, on the ground that they were the self-acquired properties of Basappa. Her contentions

were upheld by the trial Court and also on appeal by the District Judge and the Judicial Commissioner. When the appeal was pending before the

Judicial Commissioner, the suit was remanded for a finding on the question whether Ammakka''s marriage with Nanjundappa was in an approved

form or not. But before the appeal could be disposed of, Gangamma died, and the matter was not proceeded with further by the appellant, viz.,

Ganapati, and the appeal was dismissed.

The upshot of this litigation was that except two survey numbers Which are not now in suit, the rest of the properties, the subject-matter of the

present suit, were held to be the self-acquired properties of Basappa. The family was undoubtedly a joint family, there being no division. This

finding is clearly binding on the parties to this litigation and the appeal was argued on the footing that the properties now in the suit were the self-

acquired properties of Basappa. On that basis, it will be seen that at the time Ganapati purchased the properties from the three reversioners on the

footing that the properties were joint family properties which survived to Nanjundappa, and after his death passed to Ammakka that in fact, they

had no title and their right to succeed to Basappa''s estate on the footing that they were the self-acquisitions of Basappa, was only an expectancy

and a ''spes successionis''. The title however was sought to be supported in the trial Court u/s 43, Transfer of Property Act, which embodies the

well known principle of feeding the grant by estoppel. As the reversioners, the vendors of Ganapati, succeeded after the death of Gangamma to

the estate of Basappa. If this contention is well founded, Santhappa''s conveyance to the plaintiff on his share in the reversion, after it had opened

cannot take effect and the title of the defendants would prevail.

The trial Court accepted the contentions of the defendants and upheld their title dismissing the plaintiff''s suit.

In the lower Court, as many as 8 issues were framed, leaving the formal issue relating to relief. But in the appeal now before us, the argument

was restricted and confined only to the correctness of the view taken by the trial Court that Section 43, Transfer of Property Act, would avail the

defendants to defeat the title Of the plaintiff to half the properties under the sale deed of Santhappa.

The main argument on behalf of the appellant was that the transfer by the reversioners in favour of Ganapati when it was made, was in fact and

in effect, though not in form, the transfer of a chance of an heir apparent to succeed to an estate, which was prohibited by Section 6(a), Transfer of

Property Act, and Section 43 cannot be invoked to defeat the provision in Section 6(a). There can be, it was contended, no estoppel against a

statute.

The sale deed, Ex. III, definitely proceeds to state that Nanjundappa and Basappa were members of an undivided family, that the properties

were joint family properties, and survived to Nanjundappa after the death of Basappa, that after Nanjundappa''s death, they devolved on

Ammakka, and after her death, they became the absolute owners of the property. Some of the properties, it is alleged in this deed, were in the

possession of Gangamma for purposes of maintenance, and that as she was keeping a Mussalman and behaving herself contrary to caste, custom

and law, she had not even the right of maintenance from the said property. This was the representation made to the purchaser by the reversioners

who executed the deed in favour of Ganapati in 1920. There is nothing on record to show that at that time the purchaser was aware that the

property was in fact either wholly or in part the self-acquired property of Basappa, to which they had no immediate right to succeed. In fact, in the

judgment in O. S. No. 11 of 1921 it was found that some of the items, at least two, were joint family properties, The point, therefore, for

consideration is whether Section 43, Transfer of Property Act, would help the defendants in securing the title to the properties, notwithstanding the

fact that at the moment of the transfer which they obtained, their vendors had in fact only an expectancy which could not be transferred u/s 6(a) of

the Act.

Before referring to the conflicting decisions on this point, it would be convenient to state our view of the effect of Section 6(a) and Section 43,

Transfer of Property Act read together. Section 43 was amended by the Amending Act 20 of 1929 by inserting the words ""fraudulently"" or before

the words ""erroneously represents"". The section as amended read as follows:

Where a person fraudulently or erroneously represents that he is authorised 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.

Then follows an illustration which is also relevant:

A, a Hindu, who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorised 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.

The section assumes that the transferor had no title at the time of the transfer or in any event that he had no authority to make a transfer, even if he

had title. The essence of the principle underlying the section is that the person making the transfer makes a. representation that he is authorised to

transfer the property, and professes to transfer such property for consideration. After the amendment, the representation may even be fraudulent.

The effect of the amendment is to make it clear that the erroneous representation may be an innocent misrepresentation or fraudulent

misrepresentation. In either case the section applied. Believing the representation so made, the transferee parts with the money, obtains the

transfer, which of course is ineffective to convey the property. If thereafter the transferor acquires any interest in the property so transferred, he

must make good the transfer to the extent of the interest which he had so acquired subsequently. From this analysis, it follows that if no

representation is made and the transferor in fact purports to transfer an expectancy or property which he had no right to transfer without making

any representation that he had authority to transfer, the section will not help. Similarly if both the transferor and transferee knew the truth, the

section cannot be invoked by the transferee. The section proceeds on the fundamental assumption that the erroneous or fraudulent representation

induced the transferee to part with the consideration without knowing the true facts, and therefore such a transferee should be allowed to claim

from the transferor if he subsequently acquires any title to the property that the transfer should operate on that title. A transfer which was made on

an erroneous representation may, in fact and in effect, be, a transfer of an expectancy, which is prohibited by the statute. That does not, in our

opinion, prevent the section from operating. It is not concerned with the ultimate effect of the transfer when it was made. It is concerned only with

an erroneous representation by the transferor of his authority to transfer when in fact he had none.

The same statute contains the two Sections 6(a) & 43. If it was the intention of the Legislature that in all cases of transfer whether the transfer was

made disclosing the true facts or was made with an erroneous representation regarding the authority, no effect should be given to the transfer, as

the transfer is prohibited under : Section 6(a) it would have stated so and created an exception to Section 43. On the other hand, the illustration to

the section indicates a contrary intention on the part of the legislature, for in the illustration, on B''s dying, A as heir obtains Z and C is entitled to

require A to deliver Z to him, though when A sold Z to C, his interest was in fact only an expectancy. At the time of the transfer, A made a

representation that he was authorised to transfer the same, and he is called upon to make good the transfer, after the title, had devolved on him, It

is said that this illustration goes beyond the section, that it should be ignored and should not be taken into consideration in interpreting Section 43.

This, in our opinion, is to put the cart before the horse and to assume in the first instance that Section 43 does not apply under any circumstances

to transfers within the purview of Section 6(a) and then reach the conclusion that the illustration goes beyond the section.

In this connection, the words of Lord Shaw of Dunfermline in -- ''Mahomed Syedol Arifin v. Yeoh Goi Gark'', AIR 1916 P. C. 242 (F) should he

borne in mind, as they contain the true view to take regarding the value of illustrations to a section in an Act. The learned Lord observes at page.

244:

It is the duty of a Court of law to accept, if that can be done the illustrations given as being both of relevance and value in the construction of the

text. The illustrations should in no case be rejected because they do not square with the ideas possibly derived, from another system of

jurisprudence as to the law with which they or 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 not 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.

See also Craies on Statute law at pp. 203 and 204 and Maxwell''s Interpretation of Statutes, Edn. 9 at p. 46.

On a plain reading, therefore, of the sections and having regard to the recitals in the document, Ex. III, and the finding of the trial Court that the

transferee was not aware of the truth at that time, it seems to be a clear case to which Section 43 would aptly apply. This view is supported by

some of the decisions of this Court, though there are also decisions against that view. It is now necessary to examine the decisions cited at the Bar

in detail.

The decisions cited before us may be classified under two categories: (a) those relating to transfers by expectant heirs and (b) alienations of

service inams. It has been held in this Court by Sir John Wallis C. J. and Tyabji J. in -- ''Lakshmi Narayana Jagannadha Raju v. Varala Lakshmi

Narasimma'', AIR 1916 Mad 579 (G), that contracts for sale of expectancies are void and are not specifically enforceable by a suit, as to do so

would be to defeat the provision in Section 6, Transfer of Property Act and would also be against public policy within the meaning of Section 23,

Contract Act. This decision was confined to a case where a person purports and agrees to convey in present or in future the chance of an heir

apparent to succeed to an estate and such a contract, it was held, could not be specifically enforced. The learned Judges in that case were not

called upon to consider a case falling u/s 43, Transfer of Property Act. This decision was approved by the Privy Council in --''Ananda Mohan Roy

v. Gour Mohan Mullick'', AIR 1923 P. C. 189 (H). We refer to these decisions to show that they are not concerned with the interpretation of

Section 43, Transfer of Property Act, as in some decisions which will be referred to later. -- AIR 1916 Mad 579 (G)'', was referred to in support

of the contrary conclusion that to facts similar to the present case Section 43 does not apply.

-- Alamanayakunigari Nabi Sab by next friend and mother Fakir Bee Vs. Murukuti Papiah and Others, '', a decision of Ayling and Tyabji JJ. is

a case which directly supports the contention of the respondent. The mortgage in that case was by the son, and he bad no right to it as his father

was alive at the time of the alienation. As they were Mahomedans, after the death of the father, the estate devolved on the son, the mortgagor,

under Mahomedan law. The mortgagee contended that u/s 43, Transfer of Property Act the mortgage purported to be made by the, son will

operate on the interest which he had acquired after the death of the father. The question was whether Section 43 supported the contention of the

mortgagee. In the deed of mortgage, the son acknowledged that he had borrowed the amount for his necessity and stated that the land were

mortgaged by him and that he would not alienate the properties in favour of others till the debt was discharged. This undoubtedly implied that the

son was the absolute owner of the properties, and it is on that representation that the mortgagee advanced the amount as a loan on the security of

the property. It was con-tended on behalf of the mortgagor that Section 43 should not be construed in such a manner as to nullify Section 6(a),

Transfer of Property Act by validating a transfer which was at its inception void u/s 6(a). And reliance in support of the contention was placed

upon -- ''RamaKami Naick v. Ramaswami Chetti'', 30 Mad 255 (I), which related to an alienation of a service inam. Tyabji J. who delivered the

leading judgment in that case met this contention by pointing out that the argument neglects the distinction between ''purporting to transfer the

chance of an heir-apparent"" and ""erroneously representing that he (the transferor) is authorised to transfer certain immoveahle property"". The deed

under consideration fell under the latter class. There was a clear representation by the transferor to the transferee that he was authorised ''in

praesenti'' to transfer the property, while in -- 30 Mad. 255 (I)'', the transferor purported to transfer a mere possibility of succession which clearly

was within the prohibition of Section 6(a), Transfer of Property Act.

The learned Judge then distinguished the cases cited before him on the ground that there was no erroneous representation in those cases either

because both parties knew the true facts or the transferee was not misled by the erroneous representation of the transferor. The learned Judge also

relied upon the illustration to Section 43 in support of his heir that the transaction in question was within the purview of Section 43 and that the

transferee was entitled to require the transferor to make good the title by substituting the title subsequently acquired for what was purported to be

conveyed. It must be noted that the teamed Judge, Tyabji J. who was a party to the earlier decision in -- AIR 1926 Mad 579 ''(G)'', which was

finally disposed of on 24-3-1915 was also a party to the decision in -- Alamanayakunigari Nabi Sab by next friend and mother Fakir Bee Vs.

Murukuti Papiah and Others, , which was pronounced on 29-3-1915. It is not as if the learned Judge was not alive to the distinction between the

two classes of cases, viz., (1) those in which the alienation in question on the face of it purports to transfer the chance of an heir-apparent and (2)

those in which the alienation proceeds on an erroneous representation that the transferor was authorised to transfer the property, though in fact he

was not, as the learned Judge definitely adverts to this distinction, at p. 974 in -- Alamanayakunigari Nabi Sab by next friend and mother Fakir

Bee Vs. Murukuti Papiah and Others, '', and what is more, distinguishes the case in -- 30 Mad 255 (I)'', on this very ground.

In our opinion, this decision correctly interprets the section and clearly brings out the distinction between cases falling u/s 6(a) of the Act and cases

protected by Section 43, though, in substance and in effect the transfer may be one which was hit at by Section 6(a). The principle of this decision

is in consonance with the decision of Krishnan Pandalai J. -- Vellayammal and Others Vs. N.P. Palaniyandi Ambalam, '', though the learned Judge

does not refer to the decision itself. It was also a case of a transfer by an expectant heir. The significant words used by the learned Judge at p. 357

were:

The plaintiff''s father having sold this property by Ex. II-a, as if it belonged to him and to the plaintiff, at a time when they had admittedly no title

thereto, the plaintiff cannot now be heard to set up that fact after acquiring the title as reversioner in 1921.

It must be noticed that that sentence clearly brings out the distinction between a transaction which was protected by Section 43 and one which is

not so protected.

To a similar effect is the decision of Wads-worth J. in -- 1937 Mad W. N. 416 (E)''. The learned Judge distinguishes the decision in -- The Official

Assignee of Madras and Another Vs. Sampath Naidu, '', in which a contrary view was taken by Beasley C. J. and Bards-well J. on the ground

that it was a case in which ""the transfer, although framed as a transfer of an existing title, was in fact to the knowledge of the parties a transfer of a

''spes successionis'' such as is prohibited u/s 6(a), Transfer of Property Act."" If there is no such knowledge and the alienee believed the

representation made by the alienor, in such a case, Section 43, according to the learned Judge, would undoubtedly apply. -- Muthuswami Pillai

Vs. Sandana Velan and Others, , a decision of Krishnan and Odgers JJ. also takes the same view. At p. 649, it was observed :

In appeal it is contended that Section 43 is not applicable to this case. The question is whether defendant 1 represented that he was authorised to

transfer the whole property and whether the transferee accepted the sale on that representation. There can be no doubt from Ex. A. that defendant

1 did purport to sell the whole property on behalf of himself and that the recital therein that he has purchased the property out of his self-earnings

was in order to make the purchaser believe that he was getting a good title to the property. It is no indication that what was sold was less than the

whole property.

This view was followed by the Allahabad High Court in--'' Shyam Narain Misir and Another Vs. Mangal Prasad Misir and Others, '', by Sir

Mahomed Sulaiman C. J. and Rachhpal Singh J. in which a)l aspects of the question were fully and elaborately considered by the learned Judges.

After a review of the authorities for and against, the learned Judges conclude at p. 246 as follows:

It seems to us that when there were clear cases under the unamended Transfer of Property Act applying Section 43, to the cases of heirs, and

there was a specific illustration to Section 43 which was in point, and the Legislature has not thought fit to delete the illustration in the amended Act,

it is impossible to hold that the illustration is repugnant to the provisions of Section 6 and is really wrong. Every attempt should be made to

reconcile the provisions of Section 43, together with illustration, with the provisions of Section 6. Such a reconciliation is, in our opinion, patent

enough. Section 6 does not prohibit emphatically the transfer of a chance of an heir; nor does it make it absolutely illegal so as to vitiate the entire

contract. It merely lays down that property of any kind may be transferred, but the chance of an heir cannot be transferred. This is no more than

saying that a transfer of a mere chance of an heir is void in law and is of no effect. 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 clothed the transaction in the garb of an out and out sale

of the property, and there is no erroneous representation made by the transferor to the transferee as to his ownership. But where an erroneous

representation was made by the transferor to the transferee that he was the full owner of the property transferred and was authorised to transfer it

and what was purported to be the property transferred was not a mere chance of succession but the property itself, & the transferee acts upon

such erroneous representation, then if the transferor happens later before the contract of transfer comes to an end, to acquire 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. The illustration to

Section 43 is, in our opinion, directly applicable to such a case.

This passage summarises the view of the learned Judges considered from all aspects, with the additional reason that the continuance of the

illustration to Section 43 in the amended Act even after the view expressed in some of the decisions that the illustration goes beyond the section is

an indication that that view is not accepted by the Legislature.

The Nagpur, Bombay and Patna High Courts have also taken the same view: See -- Vithabai Dattu Patar Vs. Malhar Shankar Kulkarni, ,

which follows Shyam Narain Misir and Another Vs. Mangal Prasad Misir and Others, , -- Ram Japan Missir Vs. Mt. Jagesara Kuer and Others, ,

and -- AIR 1931 51 (Nagpur) .

-- The Official Assignee of Madras and Another Vs. Sampath Naidu, '', was strongly relied upon by the learned advocate for the appellant in

support of his argument. It related to a mortgage of ''spes successionis'' and the learned Judges held that though in form the transaction represents a

conveyance of present interest in the property, in substance and effect the transfer was of a ''spes successionis'' which was forbidden u/s 6(a),

Transfer of Property Act does not become valid by the application of Section 43 and that the illustration to Section 43 of the Act is repugnant to

Section 6(a) and goes beyond Section 43. The reasoning of the learned Judge was based partly on -- ''AIR 1916 Mad 579 (G)'', which as

pointed out already, has nothing to do with Section 43. It was further observed that the decision in -- Alamanayakunigari Nabi Sab by next friend

and mother Fakir Bee Vs. Murukuti Papiah and Others, '', was opposed to the Full Bench decision in -- Vaddadi Sannamma Vs. Koduganti

Radhabhayi and Others, , and the Privy Council decision in -- AIR 1923 P. C. 189 (H). The Privy Council derision in -- AIR 1923 P. C. 189

(H)'', related to the enforcement of a contract to sell an expectancy, like the decision in -- AIR 1916 Mad 579 (G)'', and has nothing to do with

Section 43, Transfer of Property Act. The Full Bench decision in -- Vaddadi Sannamma Vs. Koduganti Radhabhayi and Others, '', will be

considered presently. The learned Judge, Bardswell J. who delivered the judgment of the Court also remarked that the same learned Judge, Tyabji

J. who was a party to -- AIR 1916 Mad 579 (G)'', and -- Alamanayakunigari Nabi Sab by next friend and mother Fakir Bee Vs. Murukuti

Papiah and Others, '', drew a distinction in -- Alamanayakunigari Nabi Sab by next friend and mother Fakir Bee Vs. Murukuti Papiah and Others,

'', between transfers which purported to be transfers of the chance of an heir-apparent and transfers which proceeded on an erroneous

representation that the transferee was authorised to transfer certain Immovable property. And then follows the significant sentence at p. 796:

Reason has, however, already been given for holding that such a distinction cannot be drawn, at any rate when the erroneous description is

deliberately made with knowledge of its falsity.

If this sentence is intended to mean that both the alienor and alienee were aware of the truth and they purposely and deliberately clothed the

transaction with false recitals in order to circumvent the prohibition in Section 6(a), no exception can be taken to it. It is perhaps on the basis of this

sentence that the learned Judge, Wadsworth J. in -- 1937 M W. N. 516 (E)'', treated this decision as a case in which both parties knew the truth,

and so did the Allahabad Judges in Shyam Narain Misir and Another Vs. Mangal Prasad Misir and Others, ''. If, on the other hand, it is meant to

lay down by this that if the transferor alone knew the truth and that he deliberately made an erroneous representation which was believed by the

transferee who was ignorant of the truth, even in such a case, Section 43 cannot be invoked by the transferee to his aid to validate the grant, we

must respectfully differ from the view of the learned Judges. The very foundation of the section is that it is intended to protect the innocent

transferee and bind the transferor who made the erroneous representation to make good his representation, provided he has subsequently acquired

an interest in the property. As pointed out by the Judicial Committee at p. 118 in -- ''Tilakdhari Lal v. Kheden Lal'', AIR 1921 P. C. 112 (P), the

basis of the doctrine is: ""This principle of law, which is sometimes referred to as feeding the grant by estoppel, is well established in this country. If

a man who has no title whatever to property grants it by a conveyance which in form would carry the legal estate, and he subsequently acquires an

interest sufficient to satisfy the grant, the estate instantly passes. In such a case there is nothing on which the second grant could operate in

prejudice to the first."" (15) The very object of the section would be defeated if the transferor who makes the erroneous representation is allowed

to escape on this principle by merely establishing that he knew the truth and his representation was not an innocent representation. It is to do away

with any such fine distinction that the Legislature has now made it clear that whether the representation is innocent or fraudulent the section would

apply, so as to put an end to all doubt. The illustration was brushed aside by Bardswell J. on the ground that it is opposed to Section 6(a) ''and no

attempt was made to reconcile the illustration with the section. It is also stated that the illustration is opposed to the Privy Council decision in --

AIR 1923 P. C. 189 (H)''. One is not able to find anything that is said in -- AIR 1923 P. C. 189 (H)'', to justify the observation of the learned

Judges at p. 796 of -- The Official Assignee of Madras and Another Vs. Sampath Naidu, '', in support of this view, as -- AIR 1923 P. C. 189

(H), did not. concern itself with Section 43, Transfer of Property Act.

For these reasons, we are unable to accept the view taken by the learned Judges in -- The Official Assignee of Madras and Another Vs.

Sampath Naidu, ''.

As the learned Judges in The Official Assignee of Madras and Another Vs. Sampath Naidu, '', placed reliance on the Full Bench decision in

Vaddadi Sannamma Vs. Koduganti Radhabhayi and Others, , which relates to service inams, it becomes necessary to deal with that class of cases.

The starting point for the discussion of this group of cases is the decision of Benson and Wallis JJ. in 30 Mad 255''. The alienation in question

related to an impartible estate, and the question arose in execution proceedings in pursuance of a decree for sale on foot of a mortgage executed

on 6-10-1892 by defendants 1 to 5 in a suit, mortgaging an impartible estate which was inalienable. Defendant 1 was the zamindar on the date of

the decree, and defendants 2 to 5 were among the group of day-ad is who were entitled to the succession to the zamindari. Defendant 2

subsequently succeeded to the zamindari, and one of the contentions raised was that even if the mortgage by defendants 2 to 5 was invalid u/s

6(a), Transfer of Property Act, as defendant. 2 had succeeded to the zamindari, the mortgage could be given effect to against him. This contention

was rejected on the ground that if the Indian statute intended that transfers forbidden by Section 6(a) should take effect against the transferors as

and when they succeeded to the estate, a provision should have been inserted to that effect in Section 43, Transfer of Property Act in the same

manner as they have provided in the case of persons erroneously representing that they were authorised to transfer Immovable property. There

was no contention in that case that defendant 2 was within the provision of Section 43, as he made no sort of erroneous representation that he was

authorised to transfer the property. As we were curious to know the language of the deed, we examined the printed records in the case and found

that in the hypothecation deed the transfer was specifically of the right of expectancy to succeed to the impartible estate. It stated as follows :

We are entitled to succeed and enjoy one after another according to seniority of age the aforesaid Ammayanayakanur zamin within the four

boundaries mentioned herein. We have hypothecated to you the aforesaid Ammayanayakanur Zamin being item No. 1 mentioned herein.

It is for the reason that the deed did not proceed on the basis of any representation regarding the authority to transfer that the learned Judges

observed at p. 262 and treated the case as directly falling u/s 6(a) and that no exception was provided in Section 43 to transfers simpliciter of an

expectancy so as to apply the doctrine of Section 43 in cases in which the transferors succeeded to the estate later. The case, therefore, has

absolutely no application to alienations which purport to transfer the property on an erroneous representation that the transferor had authority to

deal with it. Had this distinction been noticed, the later decisions would have been the other way.

This was followed and applied in --''Angannayya v. Narasanna'', 18 Mad LJ 247(Q), which related to the sale of a village service inam. The sale

was in 1889. The inam was enfranchised or resumed in 1891 and was subsequently mortgaged by the alienee in 1892. The transfer of the inam

which formed the emoluments of a village office was prohibited by Regulation 6 of 1831 which was in force on the date of the alienation and the

alienation was null and void. The lands, however, became alienable after it was enfranchised. The learned Judges applied Section 43 as under the

deed of 1889, Ex. A, the alienor purported to transfer certain Immovable property as having fallen to his share which constituted a definite

representation that he was authorised to transfer them. There was no disclosure that it was at that'' date an unenfranchised village service inam, the

transfer of which was prohibited by statute. In our opinion, Section 43, Transfer of Property Act was rightly applied in that case. The decision in

30 Mad 255, was distinguished on the ground that it was not a case to which Section 43 could be applied.

The next case which related to a service inam is --''Narahari Sahu v. Korithan Naidu'', 24 Mad LJ 462(R), a decision of Ben-son and Sundara

Aiyar JJ. The judgment is very short, and it proceeds on the assumption that the transfer was of a service inarn which was prohibited by law and

Section 43 had no application. They applied the decision in 30 Mad 255(1) but expressed the view that the learned Judges were unable to agree

with the decision in 18 MLJ 247(Q)''. The distinction pointed out in 30 Mad 255, was not noticed by the learned Judges. Owing to this conflict of

opinion between 18 M LJ 247 (Q)'' and 24 M LJ 462 (R)'', the matter was referred to a Full Bench by Abdur Rahim and Bakewell JJ. in Vaddadi

Sannamma Vs. Koduganti Radhabhayi and Others, . It also related to village service inams which was situate in a proprietary estate, and therefore

Madras Act 2 of 1894 applied. On 18-8-1906, an inam title deed was granted, but the necessary notification as required by Section 17 of the Act

was issued later fixing 1-4-1911 as the date from which enfranchisement would take effect. The result of postponing the notification was to

continue the tenure of the inam as before with the incident of inalienability until the notification was issued. In between these dates, 1906 and 1911,

on 23-1-1909 the lands were mortgaged, and the mortgagor stated expressly that the land was ""enfranchised mirasi inam land belonging to them"".

We examined the printed papers in the case to find out whether the mortgage was on record, but unfortunately it was not. We have therefore to

take the contents of the deed from the extracts in the judgment of the learned Judges. Abdur Rahim J, at p. 123 expressly stated that ""the lands

were described in the deeds"" as ""the enfranchised mirasi and inam lands belonging to us"". And the title deed issued did not mention anything about

the enfranchisement of the inam or that the lands were dis-annexed from the condition of service, but they continued to be subject to the service

until the notification was issued Had the transferee looked into the title deed to satisfy himself whether it was enfranchised inam which was alienable

or not, he would have noticed that as the necessary notification was not issued by that date, it could not be alienated, there was no erroneous

representation on the part of the transferor that the property was such that he was authorised absolutely to transfer it. Sir John Wallis C. J. after

stating the contents of the inam title deed, observed at page 125 that

It said nothing about the enfranchisement of the inam or the lands from the condition of service and they remained liable as before, and continued

to form the emoluments of the village office until the issue of the notification which was after the date of the alienation now in question.

It was treated therefore as a decision falling within the principle of 30 Mad 255 and 24 MLJ 462 (R)''. The decision in 18 M LJ 247(Q)'', was

dismissed with the remark that the learned Judges, White C. J. and Miller J. did not cite any authority in support of the view, and the original

illegality of the transfer was not referred to. Apart from the correctness of this criticism, the case which came up for decision before the Full Bench

was one in which there was no sort of erroneous representation by the alienor. The decision therefore in Vaddadi Sannamma Vs. Koduganti

Radhabhayi and Others, '', does not at all support the inference that even in cases where in respect of what was in fact a transfer of an expectancy

an erroneous representation is made by the transferor and the transferee believed in that representation and paid consideration, S, 43 could not be

invoked by the transferee to claim the benefit of the subsequent title acquired by the transferor. The reliance by the learned Judges who decided

''AIR 1933 Mad 795 (C)'', on this decision in support of their view was not justified.

In our view, therefore, the decision in Alamanayakunigari Nabi Sab by next friend and mother Fakir Bee Vs. Murukuti Papiah and Others, '',

lays down the law correctly and applies to the facts of the present case. The decision in The Official Assignee of Madras and Another Vs.

Sampath Naidu, '', was wrongly decided and must; be overruled.

The result is, the view taken by the lower Court is correct, and the decision must be affirmed. The appeal js dismissed with costs.

Subba Rao, J.

I agree. My only justification for a separate judgment is the importance of the question raised in the appeal.

The facts are fully and accurately stated in the judgment of my learned brother and it is not necessary to restate them. The question is whether a

person with only a chance of succession or expectancy to a property, representing that he is the owner, transfers it to another and succeeds to the

same, is precluded from questioning the validity of the transfer on the principle that the subsequent acquisition feeds the estoppel. The relevant

provisions of the Transfer of Property Act affording a solution to the question raised may now be read.

Section 6: 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.

Section 43 : Where a person fraudulently or erroneously represents that he is authorised 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 authorised to transfer the

same. Of these fields Z ''does rot 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.

The argument of the learned counsel for the appellant, Mr. Krishna Rao may be briefly stated thus : u/s 6, Transfer of Property Act, ''spes

successionis'' cannot be transferred and that provision is based upon principles of public policy. Section 43 obviously based upon the principle of

estoppel cannot be so construed as to defeat the statutory provisions embodied in Section 6(a) conceived in public interests, for, if so construed, it

would offend the principle that there cannot be an estoppel against statute. Alternatively, he would exclude the operation of the provisions of

Section 43 in regard to a case where the transferor with knowledge that he is possessed of only a ''spes succes-sionis'' professes to transfer the

same as if he had an interest ''in praesenti'' in it.

At the outset, unhampered by judicial decisions, I shall attempt to consider the scope of the statutory provisions in accordance with the plain

meaning of the words used therein. Section 43 is modelled on English law. The English common law doctrine of estoppel by deed was extended

by equity to estoppel by representation. The rule in India is the rule extended by equity. The Section is conceived in the interests of a ''bona fide''

transferee. It assumes that the transferor had no title over at least a portion of the property he had engaged to transfer. It also presupposes that the

transferor had a capacity to transfer the property. The foundation of the doctrine embodied in Section 43 is the representation made by a

transferor either fraudulently or erroneously. Under the section, he is bound to make good the representation made by him. If he subsequently

acquires good title to the property conveyed by him,'' the said interest would feed the estoppel. The section saves only a transferee in good faith

for consideration. In other respects, the wording of the section is imperative and it is not permissible to engraft any other exception to the statutory

provision. If the Legislature intended to exclude properties, whose transfer is prohibited either by statute or by public policy, it would have added

to the section a proviso or an exception to that effect. Far from enacting any such exception, it added an illustration, which directly covers the

instant case.

Under the illustration, though a transfers the property at a time when his father is alive and therefore has only an expectancy in the same, the

transferee is entitled to require A to deliver the property to him when he succeeds to the property.

It is well settled rule of construction that ""illustrations appended to sections of a statute should ordinarily be accepted & should only be rejected as

repugnant to the sections as the last resort of construction."" (See Maxwell on Interpretation of Statutes, Edn. 9, p. 46). In (1916) 2 A. C. 575(F)'',

the Judicial Committee had laid down the rule of construction in clear terms. Lord Shaw of Dumfermline delivering the judgment of their Lordships

observed at p. 581 : ""It is the duty of a Court of law to accept, if that can be done, the illustrations given as being both of relevance and value in the

construction of the text ..... 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 not 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."" In this case, as I have already pointed out, the illustration is in full accord with the scope of the section. It brings out the

meaning and dispels any lurking doubt on the true construction of the section. It is, therefore, clear that the mere fact, that the subject-matter of the

transfer is untransferable by reason of some statutory restriction or principle of public policy, cannot take the case out of the operation of the

section. The want of title or a prohibition against transfer in a property affects the title purported to be conveyed. In either case, the transferee does

not acquire title but that fact does not affect the competency of the transferor. To illustrate, a lunatic or a minor cannot transfer property. But in the

case of ''spes successionis'' or in the case of property in regard to which the transferor has no title, his transfer may not convey title but it cannot be

said that he has no capacity to convey property. In one case, the representation is made by a person possessing a legal competency to convey an

interest in property and, therefore, he will be bound to make good his representation. In the other case, his representation itself cannot bind him as

he has no legal competency to transfer property. As representation is the basis of the section, the person, who is legally competent to make the

representation, will be bound to make good his representation. If this distinction between legal competency to transfer a property and a statutory

prohibition against transfer of a particular property is borne in mind, there will be no difficulty in reconciling the provisions of Section 43 with that of

Section 6(a), Transfer of Property Act.

It will be convenient, at this stage to notice the cases cited at the Bar.

Strong reliance is placed on the judgment of the Full Bench in -- Vaddadi Sannamma Vs. Koduganti Radhabhayi and Others, '', and it is

contended that the said decision finally and authoritatively decided that there is no scope of the application of Section 43, Transfer of Property Act

when the transfer is prohibited by law. A casual glance at the judgment seems to support the said contention but a deeper scrutiny of the facts

discloses its irrelevance. There the mortgagor had by a deed dated 23-1-1909 mortgaged what he described as an enfranchised inam belonging to

him. It appears that the authorities had decided to enfranchise the iam on 18-8-1906 but the formal notification spoken of in Section 17 of Madras

Act 2 of 1894, fixed 1-4-1911 as the date from which the enfranchisement would take effect. The Full Bench held that the alienation being a

prohibited and illegal one, on the date on which it was made, the subsequent removal of the prohibition by the notification of enfranchisement of the

service inam land did not render the alienation valid and that Section 43, Transfer of Property Act could not be applied to make a transfer valid

which on the date on which it was made was prohibited by a statute. The decision did not turn upon any principle of representation, either

fraudulent or innocent. It proceeded on the basis that) on the date of the transfer of the service inam in regard to which though enfranchisement

proceedings were started but not completed, Section 43, Transfer of Property Act could not apply as the transfer was one forbidden by law on

the ground of public policy.

-- ''30 Mad 255 (1)'', is also a decision where an expectancy was transferred. The facts were the owner of an impartible and inalienable zamindari

who had only a life estate mortgaged the same to another in 1892 without possession. The four male members of the family who were in the line of

heirs joined the owner of the estate in executing the mortgage. In the suit filed to enforce the mortgage, a consent decree was passed making the

mortgagors liable for the amount. It was agreed that the amount decreed should be recovered from the owner for the time being and from other

defendants when they succeeded to the estate. The impartible estate-holder died in 1904 and one of the mortgagors succeeded to the estate in

1905. When the decree was sought to be executed against the heir, the learned Judges held that ''the mortgage was a transfer of a bare expectancy

and was a nullity u/s 6(a), Transfer of Property Act. When it was contended that S, 43, Transfer of Property Act would save the document, the

learned Judges made following observations at p. 262:

We are unable to accept this contention. If the framers of the Indian Statute had intended, that transfers forbidden by Section 6(a) should take

effect against the transferors whenever they succeeded to the estate they would have inserted a provision to this effect as they have in Section 43 in

the case of persons erroneously representing that they are authorised to transfer Immovable property. It has not been contended that defendant 2

comes within the provisions of that section, and we see no ground on which a similar rule can be applied to cases u/s 6(a). ''Equitas sequitur legem''

and we do not think that we are at liberty to limit the operation of the express provisions of Section 6(a) in the manner suggested.

This case is, therefore, only an illustration to the proposition that transfer of ''spes successionis'' is invalid and is, therefore, not saved by Section

43, Transfer of Property Act. It has no application to a case where a person sells the property representing that he is the owner of: the same.

The decision in -- Alamanayakunigari Nabi Sab by next friend and mother Fakir Bee Vs. Murukuti Papiah and Others, '', brings out in bold relief

the distinction between a transfer of an expectancy simpliciter and a transfer wherein a representation is made that the transferor is the owner of the

property. A person mortgaged a property belonging to his father erroneously representing that he was entitled to the property ''in prsesenti'' and on

his father''s death he became entitled to the property as heir. In that case the learned Judges applied the provisions of Section 43, Transfer of

Property Act and held that the mortgagee could enforce his mortgage against the property mortgaged. When a similar contention now argued

before us was raised before them Tyabji J. repelled the contention in the following words:

This argument, however, neglects the distinction between purporting to transfer ''the chance of an heir-apparent'' and erroneously representing that

he (the transferor) is authorised to transfer certain irnmoveable property. It is the latter course that was followed in the present case. It was

represented to the transferee that the transferor was ''in praesenti'' entitled to and thus authorised to transfer the property. In -- 30 Mad 255 (I)'',

what the transferors purported to transfer, were mere possibilities of succession within the prohibition in Section 6(a), Transfer of Property Act

In -- Vellayammal and Others Vs. N.P. Palaniyandi Ambalam, , the property was originally in the possession of the mother of the last maleholder

and her daughter. They sold the property to defendant 6''s father. Thus then reversioners, the plaintiff and his father filed a suit to set aside the

alienation. Pending the suit the disputes were settled and one half of the property was restored to the reversioners and the other half was retained

by the purchaser. The father of the plaintiff for himself and representing his sons including the plaintiff executed sale deeds conveying the property

to defendant 6''s father. When the succession opened the plaintiff filed a suit for setting aside the sale deeds. The learned Judge nonsuited the

plaintiff relying upon the provisions of Section 43, Transfer of Property Act. The learned Judge stated at p. 857:

Under Section 43, Transfer of Property Act the plaintiff''s father having sold the property by Ex. 1I-A as if it belonged to him and to the plaintiff,

at a time when they had admittedly no title thereto, the plaintiff cannot now be heard to set up that fact after acquiring the title as reversioner in

1921.

In this state of law the question fell to be considered by a Bench consisting of Sir Horace Owen Compton Beasley C. J. and Bardswell J. in -- The

Official Assignee of Madras and Another Vs. Sampath Naidu, ''. There, the suit properties originally belonged to G. S. Venkata-krishnama Chetti

who had three daughters. These daughters succeeded to his estate on his death and the last of them died in October 1926; on her death

Venkatakrishnama Chetti the son of another of the three sisters, succeeded to the estate. The suit mortgages were executed by this

Venkatakrishnama Chetti when he had only a ''spes successionis''. After the death of the last survivor of the three sisters, he sold the properties to

Ananda Mohan Chetti who in turn mortgaged the same to the plaintiff. The plaintiff filed the suit for a declaration that the two mortgages executed

by Venkatakrishnama Chetti before succession opened were inoperative in law. The learned Judges accepted the contention. When the decision of

-- Alamanayakunigari Nabi Sab by next friend and mother Fakir Bee Vs. Murukuti Papiah and Others, '', was cited and the distinction drawn by

the learned Judge between ""purporting to transfer the chance of an heir-apparent"" and ""erroneously representing that he is authorised to transfer

certain Immovable property"" was brought to their notice they refused to follow the reasoning and rejected the distinction made on the ground that if

such a distinction were accepted

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.

When the illustration to Section 43, Transfer of Property Act was pressed upon them they held that the illustration was repugnant to the provisions

of Section 6(a) of the same Act. They founded their conclusion on the Full Bench decision in -- Vaddadi Sannamma Vs. Koduganti Radhabhayi

and Others, '', and that of the Judicial Committe in -- AIR 1923 P. C. 189 (H)''. They expressed their view in the following terms:

What has to be looked to is the substance of the transaction and not merely the form or colour of it.

This decision certainly supports the contention of the appellant. Learned counsel for the appellant contended that this decision lays down the

principle that if a transferor knowing that he has only a right of expectancy transfers the property with a false recital the transfer would be invalid as

the transferor has sold the same in contravention of the express prohibition in Section 6(a), Transfer of Property Act, To put it differently, his

argument was that the prohibition u/s 6(a) is against a person with only a right of expectancy, from transferring the same and if he transfers it any

camouflage or cloak adopted by him would not validate a transaction which is otherwise invalid.

I have gone through this judgment very carefully and I regret my inability to accept any of the reasons on which the judgment of the learned

Judges was founded. Neither the decision in -- Vaddadi Sannamma Vs. Koduganti Radhabhayi and Others, '', nor that of the Judicial Committee

in -- AIR 1923 P. C. 189 (H)'', lays down the principle adumbrated by the learned Judges. The Full Bench considered the question of the

applicability of Section 43, Transfer of Property Act to a transfer of a service inam inalienable in law on grounds of public policy. The Privy

Council held in -- AIR 1923 P. C. 189 (H)'', that an agreement to sell an expectancy is void for they pointed out that Section 6(a), Transfer of

Property Act, 1882, which forbids the transfer of expectancies would be futile if a contract of the above character was enforceable. The question

of the applicability of Section 43 in cases where representation was made fraudulently or erroneously did not arise for consideration in those

decisions. Nor can I agree with the learned Judges that the distinction pointed out by Tyabji J. in -- Alamanayakunigari Nabi Sab by next friend

and mother Fakir Bee Vs. Murukuti Papiah and Others, '', is without foundation. Indeed in my view the said distinction is the only correct basis for

reconciling the provisions of Section 6(a) with that of Section 43, Transfer of Property Act. I cannot also agree with the following observations at

p. 796 in -- The Official Assignee of Madras and Another Vs. Sampath Naidu, '', ""Reason has, however, already been given for holding that such

a distinction cannot be drawn, at any rate when the erroneous description is deliberately made with the knowledge of its falsity,"" To quote again

If such a distinction were allowed 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.

Section 43 was primarily enacted in the interests of a bona fide transferee and his interests cannot obviously be protected if the act of the transferor

is the guiding factor. Indeed the section protects a bona fide transferee from a clever description of the property by an unscrupulous transferor. At

the same time a collusive transferee would not derive any protection under this section for there can be no estoppel when the truth is known to the

transferee.

I also find it very difficult to agree with the learned Judges when they rejected the clear illustration on the ground that it was repugnant to the

provisions of Section 6(a), Transfer of Property Act. Repugnance in my view arises not because of statutory provisions but because of the wrong

interpretation put upon them. When the illustration can be reconciled with the provisions of Sections 43 and 6, Transfer of Property Act without

doing violence to either it is not permissible to reject the illustration. I have, therefore, no hesitation in holding that the aforesaid decision is not only

wrong on principle but also contrary to the express provisions of Section 43 of the Act. Wadsworth J. in -- 1937 MW N 416 (E)'' distinguished

the case in -- The Official Assignee of Madras and Another Vs. Sampath Naidu, '', on the ground that it ""was a case in which the transfer, although

framed as a transfer of an existing title, was in fact to the knowledge of the parties a transfer of ''spes successionis'' such as is prohibited u/s 6(a),

Transfer of Property Act."" The aforesaid statement of facts of that judgment and the reasoning of the learned Judge do not support the observation

of the learned Judge. The facts do not disclose that the transferee had knowledge of the fact that what was sold was only ''spes successionis''. The

decision in -- 1937 MW N 416 (E)'', accords with the view I have expressed. In that case one Ramanna executed a mortgage to the defendant l*s

husband and then left the village. His whereabouts were not known for over ten years. It was presumed that he died. His heirs sold the property to

the plaintiff. The plaintiff filed the suit for possession. The learned Judge applied the provisions of Section 43, Transfer of Property Act. In Shyam

Narain Misir and Another Vs. Mangal Prasad Misir and Others, '', Sulaiman C. J. states the law at p. 246 as follows :

S. 6 does not prohibit emphatically the transfer of a chance of an heir; nor does it make it absolutely illegal so as to vitiate the entire contract. It

merely lays down that property of any kind may be transferred but the chance of an heir cannot be transferred. This is no more than saying that the

transfer of a mere chance of an heir is void in law and is of no effect. 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 an out and out sale of tha

property and there is no erroneous representation made by the transferor to the transferee 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 authorised to transfer it and the

property transferred is not a mere chance of succession but Immovable property itself and the transferee acts upon such erroneous representation,

then if the transferor happens later before the contract of transfer comes to an end to acquire 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.

The learned Judges also pointed out in that case that the illustration is not repugnant to the provisions of Section 6, Transfer of Property Act. It

is not. necessary to consider It in detail the decisions of the other High Courts. It would be enough to state that the decision in Shyam Narain Misir

and Another Vs. Mangal Prasad Misir and Others, '', was followed by Bombay High Court in Vithabai Dattu Patar Vs. Malhar Shankar Kulkarni,

'' and by the Patna High Court in Ram Japan Missir Vs. Mt. Jagesara Kuer and Others, ''. The same view was expressed by the Nagpur High

Court in AIR 1931 51 (Nagpur) ''. I would therefore hold that The Official Assignee of Madras and Another Vs. Sampath Naidu, '', has been

wrongly decided.

I agree with my learned brother that the appeal is liable to be dismissed with costs.

Ramaswami, J.

I agree.