Analyse the case of Jumma Masjid V K.

Deviah (AIR 1962 SC 847)

Petitioner: Jumma Masjid

Respondent: VK 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.

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. 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.

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.

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. 

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 spec 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:

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.