VENKATABAMA AIYAR, J.: - (1.) THE following Judgment of the court wasdelivered by
(2.) THIS is an appeal against the Judgment of the High court of Madras,dismissing the suit filed by the appellant, asMuthavalli of the Jumma Masjid, Mercara forpossession of a half-share in the propertiesspecified in the plaint. The facts are not indispute. There was a joint family consisting ofthree brothers, Santhappa, Nanjundappa andBasappa. Of these, Santhappa died unmarried,Basappa died in 1901, leaving behind a widowGangamma, and Najundappa died in 1907 leaving himsurviving his widow Ammakka, who succeeded to allthe family properties as his heir. On thedeath ofAmmakka, which took place in 1910, the estatedevolved on Basappa, Mallappa and Santhappa, thesister's grandsons ofNanjundappa as his next reversioners. Therelationship of the parties is shown in thefollowing genealogical table. JUDGEMENT_847_AIR(SC)_1962Image1.jpg On 5/08/1900, Nanjundappa and Basappaexecuted a usufructuary mortgage over theproperties which form the subject-matter of thislitigation, and one Appanna Shetty, havingobtained an assignment thereof, filed a suit toenforce it, O.S. 9 of 1903, in the court of theSubordinate Judge, Coorg. That ended in acompromise decree, which provided that AppannaShetty was to enjoy the usufruct from thehypotheca till August, 1920, in full satisfactionof all his claims under the mortgage, and that theproperties were thereafter to revert to the familyof the mortgagors. By a sale deed dated 18/11/1920, Ex. III, the three reversioners,Basappa, Nallappa and Santhappa, sold the suitproperties to one Ganapathi, under whom therespondents claim, for a consideration of Rs.2,000.00. Therein the vendors recite that theproperties in question belonged tothe jointfamily of Nanjundappa and his brother Basappa,that on the death of Nanjundappa, Ammakkainherited them as his widow, and on her death,they had devolved on them as the next reversionersof the last maleowner. On 12/03/1921, the vendors executedanother deed, Ex. IV, by which Ex. III wasrectified by inclusion of certain items ofproperties, which were stated to have been leftout by oversight. It is on these documents thatthe title of the respondents rests. On the strength of these two deeds, Ganapathisued to recover possession of the propertiescomprised therein. The suit was contested byGangamma, who claimed that the properties inquestion were the self-acquisitions of her husbandBasappa, and that she, as his heir, was entitledto them. The Subordinate Judge of Coorg who triedthe suit accepted this contention, and his findingwas affirmed by the District Judge on appeal, andby the, Judicial Commissioner in second appeal.But before the second appeal was finally disposedof, Gangamma died on 17/02/1933. ThereuponGanapathi applied to the revenue authorities totransfer the patta for the lands standing in thename of Gangamma to his own name, in accordancewith the sale deed Ex. III. The appellantintervened in these proceedings and claimed thatthe Jumma Masjid, Mercara, had become entitled tothe properties held by Gangamma, firstly, under aSadakah or gift alleged to have been made by heron 5/09/1932, and, secondly, under a deedof release executed on 3/03/1933, bySanthappa, one of the reversioners, relinquishinghis half-share in the properties to the mosque fora consideration of Rs. 300.00. By an order dated 9/09/1933, Ex. II, the revenue authoritiesdeclined to accept the title of the appellant anddirected that the name of Ganapathi should beentered as the owner of the properties. Pursuantto this order, Ganapathi got into possession ofthe properties. The suit out of which the present appealarises was instituted by the appellant on 2/01/1945, for recovery of a half-share in theproperties thathad been held by Gangamma and for mesne profits.In the plaint, the title of the appellant to theproperties is based both on the gift whichGangamma is alleged to have made on 5/09/1932, and on the release deed executed bySanthappa, the reversioner, on 3/03/1933. Withreference to the title put forward by therespondents on the basis of Ex. III and Ex. IV,the claim made in the plaint is that as thevendors had only a spes succession is in theproperties during the lifetime of Gangamma, thetransfer was void and conferred no title. Thedefence of the respondents to the suit was that asSanthappa had sold the properties to Ganapathi ona representation that he had become entitled tothem as reversioner of Nanjundappa, on the deathof Ammakka in 1910, he was estopped from assertingthat they were in fact the self-acquisitions ofBasappa, and that he had, in consequence, no titleat the dates of Ex. III and Ex. IV. The appellant,it was contended, could, therefore, get no titleas against them under the release deed Ex. A,dated 3/03/1933. The District Judge of Coorg who heard theaction held that the alleged gift by Gangamma on 5/09/1932, had not been established, andas this ground of title was abandoned by theappellant in the High court, no further noticewill be taken of it. Dealing next with the titleclaimed by the appellant under the release deed,Ex. A executed by Santhappa, the District Judgeheld that as Ganapathi had purchased theproperties under Ex. III on the faith of therepresentation contained therein that the vendorshad become entitled to them on the death ofAmmakka in 1910, he acquired a good title under s.43 of the Transfer of Property Act, and that Ex. Acould not prevail as against it. He accordinglydismissed the suit. The plaintiff took the matterin appeal to the High court, Madras, and in viewof the conflict of authorities on the question inthat court, the case was referred for the decision of a full bench. The learnedJudges who heard the reference agreed with thecourt below that the purchaser under Ex. III had,in taking the sale, acted on the representation asto title contained therein, and held that as thesale by the vendors was of properties in whichthey claimed a present interest and not of a mereright to succeed in future, s. 43 of the Transferof Property Act applied, and the sale becameoperative when the vendors acquired title to theproperties on the death of Gangamma on 17/02/1933. In the result, the appeal was dismissed.The appellant then applied for leave to appeal tothis court under Art. 133(1)(c), and the same wasgranted by the High court of Mysore to which thematter had become transferred under s. 4 of Act 72of 1952. That is how the appeal comes before us.
(3.) THE sole point for determination in thisappeal is, whether a transfer of property forconsideration made by a person who represents thathe has a present and transferable interesttherein, while he possesses, in fact, only a spessuccessionis, is within the protection of s. 43 ofthe Transfer of Property Act. If it is, then onthe facts found by the courts below, the title ofthe respondents under Ex. III and Ex. IV mustprevail over that of the appellant under Ex. A. Ifit is not, then the appellant succeeds on thebasis of Ex A. Section 43 of the Transfer of Property Actruns as follows:-`Where a person fraudulently orerroneously represents that he is authorisedto transfer certain immovable property andprofesses to transfer such property forconsideration such transfer shall, at theoption of the transferee, operate on anyinterest which the transferor may acquire insuch property at any time during which thecontact of transfer subsists.Nothing in this section shall impair theright of transferees in good faith forconsideration without notice of the existenceof the said option.`Considering the scope of the section on its terms,it clearly applies whenever a person transfersproperty to which he has no title on arepresentation that he has a present andtransferable interes therein, and acting on thatrepresentation, the transferee takes a transferfor consideration. When these conditions aresatisfied, the S. enacts that if thetransferor subsequently acquires the property, thetransferee becomes entitled to it, if the transferhas not meantime been thrown up or cancelled andis subsisting. There is an exception in favour oftransferees for consideration in good faith andwithout notice of the rights under the priortransfer. But apart from that, the S. isabsolute and unqualified in its operation. Itapplies to all transfers which fulfil theconditions prescribed therein, and it makes 1. Odifference in its application, whether the defectof title in the transferor arises by reason of hishaving no interest whatsoever in the property, orof his interest therein being that of an expectantheir. The contention on behalf of the appellant isthat s. 43 must be read subject to s. 6 (a) of theTransfer of Property Act which enacts that, `Thechance of an heir apparent succeeding to anestate, the chance of a relation obtaining alegacy on the death of a kinsman or any other merepossibility of a like nature, cannot betransferred.` The argument is that if s. 43 is tobe interpreted as having application to Cases ofwhat are in fact transfers of spes successionis,that will have the effect of nullifying s. 6 (a),and that therefore it would be proper to construes. 43 as limited to cases of transfers other thanthose falling within . G(a). In effect, thisargument involves importinginto the section a new exception to the followingeffect; `Nothing in this section shall operate toconfer on the transferee any title, if thetransferor had at the date of the transfer aninterest of the kind mentioned in s. 6 (a).` If weaccede. to this contention we will not beconstruing s.43. but rewriting it. `We are notentitled`, observed Lord Loreburn L. C., inVickers v. Evans (1), `to read words into an Actof Parliament unless clear reason for it is to befound within the four corners of the Act itself.` ;