This article is written by Srestha Nandy, from IMS Unison University, Dehradun. This is an exhaustive article which deals with the issues related to Spes Succession and Estoppel under Indian Laws. This article has been edited by Sanjana Jain and Jannat.
In a legal context, the word “Property” refers to a collection of rights that can be owned individually, collectively, or by a group of persons for enjoyment, destruction, or disbursement. Blackstone defined property as ‘the sole and full dominion which a man claims over the things of the world to the exclusion of others.’ The term ‘property’ originated from the Latin word ‘proprius’ which means “one own.” But it is not necessary that property needs to be something materialistic, it can be virtual also.
In a legal atmosphere, there exist various provisions of property relating to its transfer and existence. Consequently, properties are also separated into various categories having distinctive features. To be specific, properties are of two types movable and immovable. In the case of immovable property in real movement of rights, possession, and ownership takes place. Under Section 3 of the Transfer of Property Act 1882, the term ‘immovable property’ is not defined distinctively. The section gives a concept of immovable property which states that the standing timber, growing grass is not immovable property. Whereas the General Clauses Act 1897 states that immovable property is something attached to the earth, benefits of which arising out of the land. The definition is given under Section 3 clause 26 of the Act. Also, the definition given under Section 2 clause 6 of the Registration Act 1908 includes other particulates such as hereditary allowances, rights to ways, light, ferries, fisheries, or those which are attached to the earth.
The given case deals with immovable property which includes the aspects of estoppel and those conditions under which a property cannot be transferred. But the interesting fact lies here that often it is misunderstood that spes succession and estoppel are contradictory, but it is not true. In case of any fraudulent transfer by a spes successionis, the transferee can claim his deserved share on the grounds of estoppel where he has provided the consideration in good faith and was unaware of the misrepresentation.
An overview of Section 6(A) and Section 43 of the Transfer of Property Act
Section 6(A) of the Transfer of Property Act 1882
There is a distinct idea called Doctrine of Spes Successionis. It states the right of an individual who is an heir currently will receive the property after the death of the owner. This doctrine signifies the possibility that the heir apparent expects to succeed to property by will or succession.
Section 6(A) of the Transfer of Property Act, 1882 defines this concept.
The transferability of property focuses on alienation rei prefertur juri accrescendi. This maxim states alienation is better than the accumulation of property. The spes succession signifies the simple succession which exists in ancestral property, self-acquired property, wherever the property moves to the ascendants in case of death of the owner. But the special feature of this is the time of transfer, in case the owner is alive, one’s heirs only hold the right on the property that in future one will possess the ownership, but at present one cannot exercise any rights to transfer the property.
For instance in case C is having a small grocery business. His son D is the only child of C. D gets an offer from a promoter that if he sells the land and the shop to him in return he will receive an apartment. D agrees to this and hands over the property deeds without the consent of C. C holds no knowledge about this transfer. This transfer will be void ab initio, as C has the only right to transfer his property. Here D will only have the right to transfer when the property comes to him, legally either after the death of his father or before if he receives it as a gift from his father.
In Latafat Husain And Ors vs. Hidayat Husain And Ors case, the plaintiff’s husband and husband’s brother had equal shares on a property. When the brother dies, his share of the property (⅛ of the share) goes to his mother. The mother gifted the property to the son of the plaintiff’s husband. Plaintiff was the second wife of Fasahat Husain. Fasahat appointed the plaintiff as mutwali who only receives the possession of the property of their son. Also earlier, she had relinquished the dower and claimed inheritance from the property of her husband. After the death of Fasahat Hussain, the plaintiff claimed for ⅛ share as the inheritance of her husband. To this, the court said that she will only retain the possession of the property as mutawali and no claim shall be entertained as previously she had relinquished herself from the inheritance.
The judgment was based on two aspects, first, when one has only possession, one cannot exercise any right or claim on that, and second on the estoppel, or in simpler words when one has promised for something one cannot deny that in future.
One famous maxim states ‘nemo dat quod non habit’ which signifies ‘no one gives what he doesn’t have.’ Specifically, maxim means in case any individual purchases something from someone who himself doesn’t have the ownership right, then it prevents the purchaser from obtaining the ownership title. So in simpler words, Section 43 of the Transfer of Property Act 1882 states no immovable property can be transferred by any individual, who is not authorized to do so. If a person does not possess the title to transfer the property and the same being transfers the property to another, it will be considered void.
Section 43 of the Transfer of Property Act 1882
This context is also known as ‘feeding the grant by estoppel.’
Section 43 is based on two aspects, one is ‘doctrine of estoppel’ and the other is ‘equitable estoppel.’ This doctrine signifies that when a person promises for something more than one possesses, then one has to complete one’s promise when one in real acquires the concerning immovable property.
In Ram Bhawan Singh vs. Jagdish case, the judgment of the case denoted that the doctrine applies to the sale, mortgage, lease, exchange, and charge. Also, the doctrine is not applicable when the acquired interest of the transferor is not the subject matter of the concerned property but to any other immovable property. The court also held that, when the larger part of the interest comes to the transferor, it automatically passes to the transferee, which was misrepresented earlier as the transferor’s property.
The necessity for comparison between the two provisions
There is a thin line that makes both aspects different from each other. The existence of such difference makes the facts and the judgment of the case proper because otherwise there will be a contradiction in the rights for succession, between the owner and the heirs. Also without this, fraudulent practices and misrepresentations will get favored and no definitive justice will be served.
The other major point to be considered is that estoppel is only applicable for immovable properties along with consideration behind the transfer while Sec 6(a) or spes successionis are applied to both movable and immovable properties. Transfers are void-ab initio under Sec 6(a) but for estoppel, the contract should be in existence till the transferor attains competency.
In the case of spes succession, both the parties are mostly aware of the existence of the properties and the rules regarding successions. But in the case of estoppel, the chances of misrepresentation and fraudulent practices are more so it becomes easier to identify the grounds where the case stands based on the facts.
Jumma Masjid Mercara v. Kodi Maniandra Devia
Facts of the case
- In this case, three brothers( B1, B2, B3) had mortgaged property in the year 1990 to the mortgagee for a period of twenty years, from 1900 to 1920. In the terms of the contract it was mentioned that after the completion of twenty years, the property will be returned to the family of the three brothers.
- In the family, the two brothers were married, and their wives were W1 and W2, while the third brother was unmarried. These three brothers also had a sister S, and she had two children, and three grandsons ( Gr1, Gr2, and Gr3). All the brothers died and the sister too. Just the two wives and the grandchildren remained.
- According to the law, till the wives are alive they will hold the property. In case both the wives die the property will go to the sister and eventually to the grandsons. Grandsons were the heirs under the ground of spes succession. It was also mentioned that Gr1 will receive ½ of the share of the property while the other grandsons will get ¼ of the share of the property each.
- Under The Transfer of Property Act 1882 in this case, Sec 6(a) favors no transfer while Sec 43 favors transfer if promised earlier.
- It happened that the grandsons transferred the property to a transferee (T) and misrepresented the fact that they held the ownership. To this W2 filed a case against the grandsons as she was still alive. It was the 1st appeal, where the court favored the W1 and dismissed the case. But it is to be noted that the transfer to T was still valid on the grounds of Sec 43.
- After this before the 2nd appeal, W2 died, and the property went to the grandsons. Here the transferee T claimed for the property as there was an existence of consideration behind the transfer.
- To this a new party entered named Jumma Masjid claiming that the property was transferred to them in the form of a gift deed by the W2, also Gr1 had given them his portion i.e, ½ of the share with consideration of rupees 300.
The contention of the parties
- This case holds two contentions. First the claim of the transferee T on the ground of estoppel. As in Indian law, the transferee has to claim for his share on the ground of Estoppel.
- The second is Jumma Masjid’s claim, which is based on a gift deed they received and a share of 1/2 of the property they received from Gr1 in consideration of 300 rupees. Also, Jumma Masjid argued that the grandsons are the heir and under spes succession Sec 6a, they are not eligible for transfer of the property so that is nothing but fraud and misrepresentation making the whole transfer to be invalid.
Observation of the Court
- The court observed that the transferee claimed to be valid. And dismissed the claim of Jumma Masjid. This judgment signifies the rule of estoppel which is an evidentiary aspect while Section 6a substantive law and also mentions that in this case both the grounds cannot be combined, else it will lose the purpose of the doctrine.
- So finally transferee T got the property where his claim was considered as a valid claim. It was also determined by the court that if the claim of Jumma Masjid was considered then it would lead to a consequence where the provision of spes succession would get vague and the right to transfer would lose dignity.
Precedent judgments referred by the Court while deciding the case
In the comparison of the English law and Indian law on estoppel, it appears that in the case of early transfer of property by an individual who does not possess the ownership, it happens like this that whenever the individual receives the property, the property automatically gets transferred to the transferee without any claim from the side of the transferee. But in Indian law, it happens that the claim by the transferee is necessary to obtain the property under the ground of estoppel. In this case, transferee T had already claimed for his transfer, so this could not be ignored.
The judgment in the case of Alamanaya Kunigari Nabi Sab v. Murukuti Papiah acted as the precedent to the current case. In this case, it was held that if the transferee acted on the transferor’s representation, which is a spes succession, the case would support the doctrine of estoppel, and the transferee will have all the necessary grounds to acquire the property.
In cases like this, where there are limited grounds for getting the favor of the court, it is necessary to consider some essential points. Those include the timing of the petitions filed, and because the validity of the grounds won’t be for a long time, after considering all the facts of the case it is really necessary to raise the effective ground to get the decision of the court in favor of the appeal. Even a small initiative could make the case upside down. For instance, if the transferee did not claim for his transfer of property, then Jumma Masjid, will get all the grounds to pull the case in his favor. So in case of subsequent appeals, it is important to analyze the facts as a small gap can lead to a big change.
- Latafat Husain And Ors vs. Hidayat Husain And Ors
- Nemo dat quod non habet – Academike.
- Ram Bhawan Singh vs. Jagdish
- Alamanaya Kunigari Nabi Sab v. Murukuti Papiah
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