DIFFERENCE BETWEEN SECTION 6(a)

AND 43
.
INTRODUCTION
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.
CONTD.
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.
AN OVERVIEW OF SECTION 6(A) AND SECTION 43 OF THE
TRANSFER OF PROPERTY ACT
Section 6 of the Transfer of Property Act talks about what may be transferred. 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 Section 6(a) further says 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;
In common law, A property, which at the date of the assignment, is either not in
existence, or not the grantors property, is not transferable.
Section 6 lays down the exceptions to what property may be transferred. According to
Section 6(a) no property can be transferred by the person who is an heir-apparent. The term
heir apparent is based on the maxim nemo est heres viventis meaning that a living person
does not have any heir. The heir, to whom the property will be passed to and if the property
will be available or not can only be determined upon the death of the owner of the property.
CONTD.
According to Section 6(a) of the Act: The chance of an heir apparent succeeding to the property
of an intestate; the chance of a relation obtaining a legacy on the death of a kinsman, or any other
possibility of a like nature cannot be transferred. Now the chance of the heir-apparent to inherit a
property intestate is called spes successionis and the transfer of this chance is void ab initio. It
does not convey any right in favor of the transferee, even if the transferor who transfers a chance
may in fact become the owner of the same property in future. 
Section 43 of the Act talks about Transfer by an unauthorized person who subsequently acquires
interest in property transferred. The statute says that, 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.
CONTD.
Now Section 43 talks about transfer of property by unauthorized person who
subsequently acquired interest in property transferred. According to this section if a
person fraudulently misrepresents themselves to transfer the interest of a certain
immovable property more than what they own and then later acquired the proper interest
over such property, the transferee has the right to either rescind the contract or go ahead
with it. If the transferee has decided to go ahead with the sale then the willingness of the
transferor to sell or not to sell does not matter anymore.
The rule incorporated in this section deals with such transfers of property where the
transferor has no capacity to make such a transfer from the very beginning but has still
decided to enter into a transaction to transfer the said property by the way of
misrepresentation with respect to the title of the property. The transferor then makes the
other party act on this representation and then acquires the title of the property in the
future.
CONTD.
This rule of estoppel is based on two doctrine of common law namely the
equitable doctrine and the doctrine of estoppel. The doctrine of estoppel
prevents a person who promises more than what he can perform from claiming
his incompetency as a legitimate excuse to avoid his liabilities in a situation
when he acquires competency to fulfil his promise. The equitable doctrine states
that,  Such a person who makes such a promise is compelled to make good his
promise when he becomes competent to perform it.
DIFFERENCE BETWEEN SECTION 6(a) AND SECTION 43
Section 6(a) enacts a rule of substantive law, while section 43 incorporates a rule of
estoppel.
The doctrine of spec successionis applies both to movable and immovable
properties, while the rule of estoppel under section 43 applies only in case of
transfer of immovable property.
Section 43 applies only in those cases, where the transfer is for consideration. It does not
apply to gratuitous transfers. It applies in cases where despite a misrepresentation, the
transferor, either takes or seeks to take a monetary benefit from the transferee. It,
therefore, would not apply to cases where a person transfers the property by way of gift.
On the other hand, the prohibition under section 6 (a) applies to all kinds of transfers,
irrespective of whether they are for consideration or gratuitous transfers. A gift of
property that a person hopes to inherit is also void.
CONTD.
Under section 6(a), the fact that it is a transfer of spes successions is within the knowledge of both
the transferor as well as the transferee. There is no misrepresentation from the side of the transferor
about his competency to pass a good title in present to the transferee. Under section 43, due to an
express representation, fraudulent or even erroneous, the transferee, at the behest of the transferor,
is assured of a good title. section 43 is very clear of the fact that its application will cover only those
cases, where due to the making of a representation by the transferor, that he is competent to transfer
a piece of property, the transferee has been expressly misled. The transferee had no knowledge
about the defect or lack of title on part of the transferor, and due to the express representation
coming from the transferor, he is made to believe in the competency of the transferor to transfer the
property.
The status of a transfer under section 6(a) is void in its inception, i.e., void ab initio, However,
under section 43, the transfer is voidable at the option of the transferee provided two conditions are
satisfied. First, that the contract should be subsisting at the time the transferor attains competency to
transfer the property, i.e., it should not have been rescinded or brought to an end and secondly the
property should be available with the transferor. It should not be in the hands of a bona fide
transferee for value.
JUMMA MASJID MERCARA V KODI MANIANDRA DEVIAH
A Hindu joint family which consisted of three brothers had collectively executed a usufructuary
mortgage. An usufructuary mortgage is one where a legal right called the usufruct is present or
accorded to a person or a party that bestows a temporary right to use and derive income or
benefit from another party’s property and is usually conferred for a limited time period. The
family had executed such a mortgage in favor of another party. After a litigation it was decided
that the mortgagee had the right to hold onto the property for a period of 20 years which is till
1920 after the said period was over, the property would revert back to the family.
Out of the three brothers, one died without leaving any heirs while the other two died leaving
behind their widows but no children. The brothers had sisters who then bore three grandchildren
who were the reversioners to the property. One of the grandsons Santhappa was to get one-half of
the property whereas the other two grandsons namely Basappa and Mallappa were to inherit one-
fourth of the property each. This inheritance was however applicable upon the death of the two
widows.
CONTD .
Therefore, the interest of the three grandsons in the property was a mere spec successionis
and according to Section 6(a), untransferable. The grandsons made a representation to the
transferee that the property in question was a joint family property and would devolve upon
them as reversioners upon the death of the widows and hence they were competent to make
such a transfer.
However, the reversioners did not disclose the fact that one of the widows was still alive and
that her presence prevented them from making good on their promise to transfer the property.
Since the transferee was not aware of the presence of the widow, he gave the consideration to
the reversioners upon the representation made by them and then later filed a suit for
possession of property when the property was not delivered to them.
The widow countered this suit by arguing that she was still alive and that no one had the right
to transfer the property till she was alive. She argued that the property was her husband’s self-
acquisition and she being the legal heir of her husband had the right of possession over it.
CONTD.
In the suit, the subordinate court, the district court and even the judicial commissioner accepted
her arguments and the possession were not given to the transferee. However, before the second
appeal which was filed in front of the judicial commissioner could be decided the widow
passed away and the transferee hence applied to the revenue authorities for the transfer to the
property which was in the name of the widow to strengthen the sale deed which was made and
executed by the reversioners.
At this stage, Jumma Masjid intervened and interrupted the transfer of property to the transferee.
They contended that the property in question in whole should be passed onto them because
firstly, an alleged gift deed was executed by the widow during her life time in their favor and
secondly they argued that one of the reversioners, Santhappa had allegedly sold his share of the
property for a consideration of Rs. 300. The revenue authorities upon hearing these arguments
rejected the contention made by Jumma Masjid and upheld the transfer of the property to the
transferee. Jumma Masjid later filed a suit for recovery of possession of property that
ultimately went to the Supreme Court.
CONTD.
The contention made by Jumma Masjid was that Section 43 must be read as subject to the
provisions of Section 6(a) of the Act, that specifically prohibits that transfer of spec successions and
therefore Section 43 should apply only in cases other than those covered under Section 6(a). The
issue in front of the court was therefore-Whether a transfer of property for consideration made
by a person who represents that he has a present and transferable interest therein, while he
possesses in fact only a spec successionis, is within the protection of Section 43 of the Act.
The court rejected the argument made by Jumma Masjid and pointed out that both the sections deal
with different spheres of law and that there is no conflict between them. Section 43 is applied when
a person made a representation of having a title to a property but not actually having but still
making a transfer under the representation. The transferee taking the representation made by the
person can take a transfer for a consideration. When these following conditions are met, Section 43
dictates that the if the transferor, who made the representation, later acquired good title of the
property in question, the transferee is entitled to that property if the transfer in the meantime has not
been cancelled. There is an exception in favor of transferees for consideration in good faith and
without notice of the rights under the prior transfer.
CONTD.
Apart from this exception, what the section says is absolute and unqualified. It is applicable
to all kinds of transfers that satisfy the conditions laid down in the statute and it makes no
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 court in the issue said, Section 6(a) and S. 43 relate to two different subjects, and
there is no necessary conflict between them. Section 6(a) deals with certain kinds of
interests in property mentioned therein and prohibits a transfer simpliciter of those interests.
Section 43 deals with representations as to title made by a transferor who had no title at the
time of transfer and provides that the transfer shall fasten itself on the title which the
transferor subsequently acquires. Section 6(a) enacts a rule of substantive law, while s. 43
enacts a rule of estoppel, which is one of evidence. The two provisions operate on different
fields and under different conditions and there is no ground for reading a conflict between
them, or cutting down the ambit of the one by reference to the other.
CONTD.
The court in its opinion said that both the parties can be given the possession and
ownership of the property depending upon their respective spheres of law but to hold
that transfers by persons who have only a spes successionis at the date of the transfer are
not within the protection awarded under Section 43 of the Act., would destroy its utility
to a great extent. Section 43 of the Act enables a special provision for the protection of
the right of the transferees for the consideration given to the party that made a
representation of a current title, when in reality they do not have one.
The court further said that:
While it is true that rules of estoppel cannot be resorted to for defeating or
circumventing prohibitions enacted by statutes on grounds of public policy, but here, it is
not a ground of public policy alone by means of a specific provision in specific
enactment.
CONTD.
The court therefore held that the transferee in the given case entered into a
transaction because of the representation made by the reversioners that they had
an interest or title in the property in question. The transferee would therefore,
acquire the title of possession and ownership of the property in accordance
to Section 43 of the Act, when the reversioners received the true title of the
property after the death of the widow. The property was therefore awarded
to the transferee with whom the sale deed was executed by the reversioners
and the contentions made by Jumma Masjid were rejected. The Supreme
Court in doing so laid down certain and absolute distinction when it came to the
applicability of Section 6(a) and Section 43 of the Transfer of Property Act.
KARTAR SINGH V. HARBANS KAUR (1994) 4 SCC 730 (DB)
FACTS- The respondent (Harbans Kaur) executed the sale deed, in favour the
appellant/defendant (Kartar Singh) of alienating the lands on her behalf and on behalf of her
minor son S. On attaining majority, S filed case for a declaration that the sale of his share in
the lands by his mother was void and does not bind him. The decree ultimately was granted
declaring that the sale was void as against the minor. But before taking delivery of the
possession, S died. The respondent mother, being Class I heir under Section 8, HSA, 1956,
succeeded to the estate of the deceased son. The appellant/defendant, therefore, laid his
claim to the benefit of Section 43, TPA, 1882. The High Court, while setting aside the decree
of the trial court and declared that the sale is void, refused to grant the remedy under Section
43, TPA. Thus, the defendant came in appeal to this Court.
LEGAL ISSUE: Is it true to contend that in view of the finding that the respondent
(Harbans Kaur) had succeeded by operation of law, the appellant is entitled to the interest
acquired by the respondent by operation of Section 43, TPA?
SUPREME COURT’S OBSERVATION
For application of Section 43, TPA, two conditions must be satisfied, Firstly, that there is a
fraudulent or erroneous representation made by the transferor to the transferee that he is
authorized to transfer certain immovable property and in the purported exercise of authority,
professed to transfer such - property for consideration. Subsequently, when it is discovered
that the transferor acquired an interest in the transferred property, at the option of the
transferee, he is entitled to get the restitution of interest in property got by the transferor,
provided the transferor acquires such interest in the property during which contract of
transfer must subsist.
It is settled law that the transferee must make all reasonable and diligent enquiries regarding
the capacity of the transferor and the necessity to alienate the estate of the minor. On
satisfying those requirements, he is to enter into and have the sale deed from the guardian or
manager of the estate of the minor. Under the Guardian and Wards Act, the estate of the
minor cannot be alienated unless a specific permission in that behalf is obtained from the
District Court. Admittedly, no such permission was obtained. Therefore, the sale of the half
share of the interest of the son S made by his mother is void.
CONTD.
Section 43, TPA, feeds its estoppel. The rule of estoppel by deed of the transferor would
apply only when the transferee has been misled. The transferee must know or put on notice
that the transferor does not possess the title which he represents that he has. When note in
the sale deed had put the appellant on notice of limited right of the mother as guardian, as a
reasonable prudent man the appellant is required to enquire whether on own the mother as
guardian of minor son is competent to alienate estate of the minor. When such acts were not
done the first limb of section 43 is not satisfied. It is obvious that it may be an erroneous
representation and may not be fraudulent one made by the mother that she is entitled to
alienate the estate of the minor.
For the purpose of Section 43 it is not strong material for consideration. But on declaration
that the sale is void, in the eye of law the contact is non est to the extent of the share of the
minor from its inception. The second limb of Section 43 is that the contract must be a
subsisting on the time of the claim. A void contract is no contract in the eye of land and was
never in existence so the second limb of Section 43 is not satisfied.
DECISION
Admittedly, ‘S’ was a minor on the date when the respondent mother transferred
the property. Where the transferee knows as a fact that the transferor does 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
Section 6(a), TPA. In view of the finding that no diligent and reasonable
enquiries were made regarding the entitlement of the mother to alienate the half
share of the minor’s estate, it cannot be said that the appellant had acted
reasonably in getting the transfer in his favour.
In the face of the existence of the note in the sale deed about minority of ‘S’ and
in the light of the law, it could be concluded that Section 43, TPA does not apply
to the facts of this case. The appeals are accordingly dismissed.
CONCLUSION
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.