TRANSFER OF PROPERTY ACT, 1882

- Khyati Nayak
 CONTENT OUTLINE
MODULE 5
Basic Principles Governing Transfer
Understanding the following principles governing transfer such as:
What May be transferred ?
Who is competent to transfer ?
Sections Referred: Section 6 and 7, 8, 9

MODULE 6
Doctrine of feeding the grant by estoppels
Understanding the doctrine of feeding the grant by Estoppel
Sections Referred: Section 43

MODULE 16
Coparcenary, Joint and Co – Ownerships
Understudying the concept of Coparcenary, Joint and Co – Ownerships and law governing the same.
Sections Referred: Sec. 44 – 47of the Transfer of Property Act, 1882
BASIC PRINCIPLES GOVERNING TRANSFER

What May be transferred ?

Who is competent to transfer ?
How transfer operates ?
In which manner property can be transferred ?
 SECTION 5. “TRANSFER OF PROPERTY”
Section 5. “Transfer of property” defined.—
In the following sections “transfer of property” means
an act by which a living person conveys property,
in present or in future,
to one or more other living persons, or to himself, or it himself and one or more other living persons;
and “to transfer property” is to perform such act.

In this section “living person” includes a company or association or body of individuals, whether
incorporated or not, but nothing herein contained shall affect any law for the time being in force relating
to transfer of property to or by companies, associations or bodies of individuals.
 ESSENTIALS OF VALID TRANSFER:
Transferability of property (Section 6)
What may be transferred.—Property of any kind may be transferred, except

Competency of parties (Section 7)

Persons competent to transfer.—Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is
competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed
by any law for the time being in force.

Lawful Consideration (Section 6(h)(2))

for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872
(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) [for an unlawful object or consideration within the meaning of section
23 of the Indian Contract Act, 1872 (9 of 1872)], or (3) to a person legally disqualified to be transferee;

Manner (Section 9)
Oral transfer.—A transfer of property may be made without writing in every case in which a writing is not expressly required by law.
WHAT KIND OF PROPERTY CAN BE TRANSFERRED
(TRANSFERABILITY)

(Section 6)
What may be
transferred ?
 WHAT CAN BE TRANSFERRED…
( SECTION 6)
Section 6 of the transfer of property act deals with the concept of what may be transferred.

Property of any description.

Property and interests in property as a general rule are transferable.

PROPERTY OF ANY KIND… Property of any kind may be transferred, except as otherwise provided by this act or even by any other law for time being
in force.
●Property – Rights/intrest
●Property – used in widest possible sense
●All rights and legal interests which man has in land & Chattels to the exclusion of others. All rights and legal interests which a man can possibly possess.

The very transferability of the property is based on the maxim ‘alienation rei prefertur juri accrescendi’, and the meaning of the maxim goes
like this– Law favours alienation to accumulation.

Section 6 - It specifically speaks about, what may be transferred.

Property of any kind may be transferred, except as otherwise provided by this act or even by any other law for time being in force, and
these exceptions will be discussed in detail in the sub-sections to Section 6.
 WHAT CAN NOT BE TRANSFERRED…
(SUB-SECTIONS TO SECTION 6)
Property of any kind may be transferred, except as otherwise provided by this act or even by any other
law for time being in force.

Exceptions…
The exceptions will be discussed in detail in the following sub-sections.
 SUB-SECTION(A)- TRANSFER OF SPES SUCCESSION

Section 6 (a) –
I. The chance of an heir-apparent succeeding to an estate,
II. The chance of a relation obtaining a legacy on the death of a kinsman, or
III. Any other mere possibility of a like nature, cannot be transferred;
A mere chance of succession/ mere possibility
No present interest/ only a chance that he may succeed the property in future

For Example - A family consists of father F and son S, F being the owner of the property has the ownership with him
during his lifetime and no one else including his son is allowed to sell the property, without his consent. Now, if F dies
intestate, s would inherit his property and hence, here it can be said that S is the Heir Apparent.
Here S’s succession to the property in the future is a chance due to two main reasons.
Firstly, As F is the owner of the property he may sell it, dispose of it in any manner he thinks or make a will in someone else’s favour.
Eventually, nothing will be left for S.
Secondly, son S dies during the lifetime of his father. Thus, if S during the lifetime of his father transfers the property without his father’s
consent then the transfer would be void ab initio and is also expressly prohibited by the act.
Lord Bacon laid down this rule as –
The Law doth not allow of grants except there be a foundation of an interest in the grantor;
For the law will not accept grants or titles of things in action which are imperfect interest;
Much less will it allow a man to grant or encumber that which is no interest at all, but merely future.

Nemo est hares viventis – No one is a heir during predecessor’s life

Until heir actually succeed- his interest is mere possibility or speculative and transfer of the same can not be enforced as being
opposed to public policy.

In the case of Official Assignee, Madras v. Sampath Naidu

It was observed by the court that a mortgage executed by an heir apparent is void even if he subsequently acquired the property as an heir.
Hence, from above it can be concluded that the transfer of spes succession is void ab initio.
 SUB-SECTION (B)- RIGHT OF RE-ENTRY
(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the
property affected thereby.

The right of re-entry means the right to resume the possession of the land which would have been given to some other
person for a certain period of time.
And the cases of re-entry are usually seen in the cases of leases, which would empower the lessor (OWNER) to re-enter upon
the demised premises if the rent is in arrear for a certain period or if there is a breach of covenants in the lease.
Re Davis and Company, in this case, A purchased certain goods from B, which was on a hire purchase agreement.
This agreement contained a clause which was that after purchase, A would take the property and would also pay the
instalments on time, and in case A fails to pay the instalments B would enter A’s premise and take the possession of the
property.
The important point to be noted here is that the right to Re-enter is a personal right of B and the same cannot be transferred
by him, and in any case, if he transfers this right to entry, to his creditors or anyone, then the same would be void.

Vagu Ram v. Rangayyanagar 31 All 304

Held : What was transferred was not the right of re-entry by itself, but the reversion as based on the clause for forfeiture. (Lease terminated on default)
 SUB-SECTION (C)- EASEMENT

(c) An easement cannot be transferred apart from the dominant heritage;

An easement can be quoted as a right which the owner or the occupier of certain land has in his
possession for the beneficial enjoyment of the said land, or it may even be to do, or to continue to
do something or to prevent something from being done.
Example: Where A as an owner has the right of way over the way of the land of another for
purposes which are connected with the beneficial use of his own land then, this can be termed as an
easement.
It should also be noted that an easement cannot be transferred apart from the dominant heritage to
which by the nature of the right it is attached, and this was held in the case of Sital v. Delanney.
Bhagwan Sahai v., Narshingh Sahai, 31 All 612
Realease of easement in favour of owner
Section 38 of the Easements Act states that an easement is extinguished when the dominant owner releases it, expressly or impliedly
to the servient owner.
An extinguishment of easement by the dominant owner by assigning or releasing the same in favour of the servient owner is not hit
by Section 6(c) of the Act.
What Section 6(c) of the Act prohibits is a transfer of easement apart from the dominant tenement by the dominant owner to a
person not being the servient owner.
 SUB-SECTION (D)- RESTRICTED INTERESTS

(d) All interest in property restricted in its enjoyment to the owner personally cannot be transferred by him;
This clause states that a person cannot transfer anything which is interest restricted in its enjoyment to him.
For example- Two brothers partition a property among themselves and in addition give a right of
pre-emption, which means one of them if at all wants to sell the property should first offer it to the other
brother, who would be preferential in buying it.
Here it should be known that these rights are personal rights and cannot be transferred.

The following kinds of interest can be held non-transferable:

Services Tenure
Religious Office
A right of Pre-emption
Emoluments which are attached to the priestly office

But it should, however, be noted that the right to receive offerings which are made at a temple is
independent of on obligation to perform services which would involve qualifications of personal
nature, and such rights are transferable. (Mahamaya v. Haridas)
 SUB-SECTION (DD)- RIGHT TO FUTURE
MAINTENANCE

(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be
transferred;]
The sub-section of maintenance, it has been established that a right to future maintenance is solely for the
personal benefit of the person to whom it has been granted and therefore, this very right cannot be
transferred further.
Thus an example can be quoted here regarding the rights of a woman to either receive maintenance
from her husband under a decree or award of the court.
This right can neither be transferred nor can it be attached by a court’s decree.
And this was held in the case of Dhupnath v. Ramacharit.

Nanak Chand v. Kishan Chand, 1 PLR 209

held that the right of a Hindu widow to maintenance is a personal right and from its nature can not be transferred.
Province of Orissa v. Venkatta Rangamma AIR 1950 Ori 220
Held - The future right to maintenance is not assignable, as property and hence not attachable, though there can be appointed
a receiver in respect of the proceeds thereof, which are at the disposal of the judgment-debtor.
 SUB-SECTION(E)- MERE RIGHT TO SUE
(e) A mere right to sue cannot be transferred;

It was in the landmark case of Sethupathi v. Chidambaram, where it was held that a mere right to sue is something which cannot be
transferred.
Here the word ‘mere’ itself means that the transferee has developed no interest than just a bare right to sue.
For Example- A contracts to buy goods from B On due date A fails to take delivery and B sells the goods in the market at a loss of
Rs.10000. B transfers the right to recover the damages to C. The transfer is invalid.

Murlidhar v Rupendra AIR 1953 Cal 289

Property along with right to recover damage

Kowtha Suryanaryan v Yarudala, AIR 1923 Mad 177

Transfer of arrears of rent along with immovable property

Sankarappa v. Khatumbi 11 Pa. 266

Mesne Profit
 SUB-SECTION (F)- PUBLIC OFFICE
(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become
payable.

It should be noted in the first place that a public officer cannot be transferred.
In the same fashion, even the salary of the police officer cannot be transferred whether before or after it becomes
payable.
The word public officer is meant to be someone who has been appointed to discharge a public duty, and in turn,
receive a monetary return of it which is in the form of the salary.
Here, as the salary becomes something which is given on return of the personal service of a person.
MSM Railways v. Rupchand, AIR 1950 Bom 155
it can neither be transferred or attachable.
In the case of Ananthayya v. Subba Rao AIR 1960 Mad 188, it was held that where there is an agreement
between two people and according to which a person agreed to pay a certain proportion of his income to his
brother in consideration of his having been maintained by the latter, now in such cases this provision will not be
applicable, which was held by the court.
 SUB-SECTION (G)- PENSIONS
Stipends allowed to military [naval], [air-force] and civil pensioners of the [Government] and political
pensions cannot be transferred;

Pension is like a salary, it is a sum of money periodically payable by the government which can be to an
ex-serviceman or to a person who has ceased to be in employment.
In the case of Saundariya Bai v. Union of India , it was held that pension is non-transferable, so long as it is
unpaid and in the hands of the government.
Another important aspect which should be taken into consideration is that pension is different from bonus and
rewards, and also, on the contrary, these are transferable.
 SUB-SECTION (H)- TRANSFER
OPPOSED TO NATURE OF INTEREST
(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) 6[for
an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872)], or
(3) to a person legally disqualified to be transferee;

1. No transfer can be made insofar as it is opposed to the nature of the interest affected thereby.
1. Thus, the things which are dedicated to public or religion uses or service inam, cannot be transferred.
1. Anjaneyulu v. Srivenugopal 45 Mad 620

2. Transfer for Unlawful object or Consideration – Any transfer which is for an unlawful object or consideration is
not permissible under this section. And it is also in consonance with section 23 of the Indian Contract Act, which
provides that consideration or object is unlawful if
1. Is Fraudulent
2. It is opposed to public policy
3. It is forbidden by law.
4. Is of such a nature that it defeats the provisions of any law.

3. Transfer of Person Legally Disqualified– A transfer to a person to be legally disqualified to be a transferee is

not permitted.
 SUB-SECTION (I)- STATUTORY PROHIBITIONS ON THE
TRANSFER OF INTEREST
(i) Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an
estate in respect of which default has been made in paying revenue, or the lessee of an estate, under the management of a
Court of Wards, to assign his interest as such tenant, farmer or lessee.

Nothing in this section shall be deemed to authorize

1. a tenant having an untransferable right of occupancy,
2. the farmer of an estate in respect of which default has been made in paying revenue, or
3. the lessee of an estate, under the management of a Court of Wards,

to assign his interest as such tenant, farmer or lessee.

This section makes it clear that a tenant having an un-transferable right of occupancy cannot in any way transfer his interest,
and this was held in the case of Shanti Prasad v. Bachchi Devi.
This clause even contains an exception to the general rule which says that all tenancies or leaseholds are transferable. It gives
effect to different enactments whereby it says certain categories of leasehold interests or tenancies are made
non-transferrable.
Similarly, where a farmer of an estate, in respect of which default has been made in paying revenue, cannot assign his interest
in the holding.
 (Section 7)
COMPETENCY Who can transfer
(PERSONS COMPETENT TO TRANSFER)
property ?
 COMPETENCY (SECTION 7)
7. Persons competent to transfer.—
1. Every person competent to contract and
2. entitled to transferable property, or
3. authorised to dispose of transferable property not his own,
is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the
circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.
●Person must be competent to contract
○ Raja Balwant Rao V. Rao Maharaj Singh 34 All 296

○ Minor - Subba Reddy v. Curuva Reddy

○ Person of Unsound Mind - Johri v. Mahila Darupati air 1991

●Entitled to transfer property

○ Nemo dat Quid non habet

●Authorised to dispose of property not his own

○ Balai Chandra Mondal v. Indurekha Devi AIR 1973 (Collection of rent & manage the estate)
○ Karta of Hindu Family
○ Guardian - Courts of Wards Act - Jivan Lal v Gokul Das (1904)
○ Executor of will - Section 307 Succession Act - Power of executor or administrator to dispose of property
○ Receiver appointed by courts
 (Section 8)
OPERATION OF TRANSFER –
How transfer
Operates ?
 HOW TRANSFER OPERATES

8. Operation of transfer. —
Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the
transferee
all the interest which the transferor is then capable of passing in the property and
in the legal incidents thereof.
 LEGAL INCIDENTS OF TRANSFER
Such incidents include, where the property is land, the easements annexed thereto, the rents and profits
thereof accruing after the transfer, and all things attached to the earth;
and, where the property is machinery attached to the earth, the moveable parts thereof;
and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the
transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use
therewith;
and, where the property is a debt or other actionable claim, the securities therefor (except where they are
also for other debts or claims not transferred to the transferee), but not arrears of interest accured before
the transfer;
and, where the property is money or other property yielding income, the interest or income thereof
accruing after the transfer takes effect.

Arkkani v Subramaniam AIR 2007 Mad

(Transfer of land with trees or a well)
Hence,

The Rule is :

Transfers are - Unqualified & Unconditional

“Unless” a different intention is expressed or necessarily implied

In absence of any express or implied contract between the parties.

Sumathy Amma v. Sankara AIR 1987

Depends on the terms and condition of the contract

Mahomed Shamsool v. Shewukram (1875)

Life intrest
 PRINCIPLES
1) Grantor shall not derogate from his own grant.
The rule that a party should not derogate from its grant embodies a general legal principle that, if A agrees to confer a benefit
on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit. (Quite Enjoyment)
Derogation from grant is commonly referred to in the context of landlord and tenant relationships. Where a landlord has taken
steps, or granted rights to another party, which render the premises unfit or unsuitable for the purpose for which they were let, the
landlord is said to have derogated from its grant (under the lease).

2) Res essorira sequitur rem principaleur

The maxim explains that an accessory thing does not lead but follows the principal thing to which it is accessory.

3) Accessorium non ducitsed sequitur suum principaleur

This maxim is a abbreviated form of Latin maxim ‘Accessorium non ducit sed sequitur suum principale, which means that an
accessory does not draw, but follows its principal.’ Thus, an accessory thing does not lead but follows the principal thing to which it is
accessory.
 (RELATED TO PRINCIPLES)
Malik v. Union of India and another, 1969 SCC OnLine All 276 ,: AIR 1970 All 268 (FB)
In the judgment of this case court mentioned that when the principal right is lawfully extinguished, the alternative right,
which is accessory to the principal right, cannot survive. The accessory right does not lead but follows its principal.
Thus, when the obligation of the principal is extinguished by release or discharge, the obligation of the surety is
also extinguished. The creditor cannot then complain that the extinction of the obligation of the surety impairs the
obligation of his contract with the principal debtor. So here, on the lawful extinguishment of the principal right to
payment in sterling, the alternative right of conversion of sterling into rupees is automatically extinguished,
( Accessorium non ducit sed sequitur suum principale).

Joseph Parker Camp, Appt., v. Kate Willard Boyd, 1913 SCC OnLine US SC 203 : 229 US 530 (1913)
The rule at law is that by a grant of the reversion, the rent reserved will pass; but they by a grant of the rent, the
reversion will not pass.
‘The incident, accessory, appendant, and regardant, shall in most cases pass by the grant of the principal, without
the words cum pertinentiis, but not e converse; for the principal doth not pass by the grant of the incident,
etc. Accessorium non ducit, sed sequitur, suum principale.’
The list whether exhaustive ?
In, Rajendra v. Chinhathambi Gounder AIR 2007

Intention behind section 8 ?

Raja Gaur Chandra v. Raja Mukunda, 1904

Right of 3rd Party ?

Ram Rao v. Rustam Khan, 3 Bom. L.R. 717

Transfer to female relations

Mohammad Shamshool v. Shewakaram, 2 IA 7 (1874)

Nathu lal v. Durga Prasad 1954 SC

MANNER OF TRANSFER (Section 9)
In which manner property can
be transferred ?
 MODE OF TRANSFER OF PROPERTY
9. ORAL TRANSFER.—
A transfer of property may be made without writing
in every case in which a writing is not expressly required by law.

Writing is necessary in the following cases:

(i) Sale of immovable property having a value of more than rupees hundred. (Provided under section 54 of the Transfer of
Property Act, 1882)
(ii) Sale or reversion or other intangible things. (Provided under section 54 of the Transfer of Property Act, 1882)
(iii) Simple mortgage. (Provided under section 59 of the Transfer of Property Act, 1882)
(iv) All other mortgages are securing rupees hundred or more. (Provided under section 59 of the Transfer of Property Act,
1882)
(v) Leases of immovable property from year to year or for a term exceeding one year or reserving a yearly rent. (Provided
under section 107 of the Transfer of Property Act, 1882 )
(vi) Exchange. (Provided under section 108 of the Transfer of Property Act, 1882)
(vii) Gift of immovable property. (Provided under section 123 of the Transfer of Property Act, 1882)
(viii) Transfer of actionable claim.(Provided under section 130 of the Transfer of Property Act, 1882)
 Section 43
Understanding the doctrine of
FEEDING OF GRANT BY ESTOPPEL feeding the grant by Estoppel
(Doctrine of feeding the grant by estoppels)
 FEEDING OF GRANT BY ESTOPPEL
SECTION 43 IN THE TRANSFER OF PROPERTY ACT, 1882

43. Transfer by unauthorized person who subsequently acquires interest in property transferred.—
1. Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property
2. and professes to transfer such property for consideration,
3. 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 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.
 SECTION
(ANALYSIS)
43
Where, Transfer is :
Based on representations
(a) Fraudulent (inserted in 1929), or
(b) erroneous representation;
There is representations;
as to the authority to transfer; and
Professes to transfer,
For consideration,

Such transfer shall operate, at the option of the transferee,

On any interest the transferor acquires subsequent thereto at any time, (Subsequent Acquisition)

Provided contract of transfer subsists, Except wherein

Bona fide purchaser for value without notice of option gets in.
 ESSENTIALS FOR APPLICATION…
1. Fraudulent or erroneous representation
Fraudulent : dishonest, deceitful, wrong, false, untrue or faulty statement
Erroneous : rather reckless conduct (statement believing it to be true but it is untrue.)

2. Transfer for Consideration

Deoman v. Alimiya 1948
Transfer should be one for consideration, and not gratuitous.

3. Subsequent Acquisition
No estoppel if no subsequent acquisition of property
Sec. 43 : Transfer by unauthorized person who subsequently acquires interest in property transferred
4. Transferee’s Option
The section enables the transferee to claim interest and does not provide that the interest shall
vest in transferee from the date of subsequent acquiring of interest.

Ganesh Das v. Kalambi

If he fails to claim it – The right becomes subjected to the right of any other transfer in good
faith.

Sri Jagannaada v. Sri Raja Prasad Rao

The transferee need not to immediately give notice to transferor that he professes to hold him
bound by the agreement.
Basically, Section 43 is for the protection of victim of fraud; who is victim of his own carelessness ;
but there is a limit for this protection.
2 options :
- To revoke and claim damage (Section 17 & 18 of ICA)
- To subsist and wait (Section 48 of TPA)

So, Later transferee must use or demand the option forthwith. The transferee defrauded earlier
has to be vigilant. He must keep track of the subsequent acquisitions.

If the demand is late and meanwhile the transferor gives the property to third party who is
bonafide purchaser for value without notice, the right of first transferee ends.
 UNDERLYING PRINCIPLE
Principle : Equity treats as done which ought to be done.
(A man who has promised more than he can perform, must make good to the contract when he
acquires the power of performance.)
If a person, who alienated property to which he has no present title, many subsequently become
entitled to, he must honor his commitment. Since he can not derogate from his own grant, his
subsequently acquired interest, feeds the Estoppel, raised by the prior grant and perfects the title
of the alienee.

(Rule of Estoppel under English Law) The common law rule of Estoppel is :
“Where a grantor has purported to grant an interest in land which he did nor, at the time,
possess, but subsequently acquires, the benefit of his subsequent acquisition goes automatically to
the earlier grantee, or as it is usually expressed, feeds the Estoppel.”
 FEEDING OF GRANT BY ESTOPPEL
Ramdeo and another v. Dy. Director of Consolidation, AIR 1968
A man who has promised more than he can perform, must make good to the contract when he acquires the power of performance.

Jumma Masjid, Mercara v. Khodimaniandra Deviah AIR 1962

It is immaterial whether the transferor acts bonafide or fraudently in making the representation. It is only material to find out the
fact if the transferee has been misled.

Parma Nand v. Champa Lal AIR 1956

Transferee should be the one who did not have knowledge of the true factual position and had merely acted on belief of the
erroneous or fraudulent representations made by the transferor.
 SECTION 43 AND SECTION 6(A)
So, Basically this section can not apply to invalid transfers (i.e., transfers that are void
ab initio.)

Jumma Masjid, Mercara v. Khodimaniandra Deviah AIR 1962

Court held that Section 6(a) was the rule of substantive law whereas Section 43 is a rule of
evidence.
It is based on estoppel.
 JUMMA MASJID, MERCARA V.
KHODIMANIANDRA DEVIAH AIR 1962
Joint family consisting of 3 brothers and 1 sister
Collectively executed a usufractuary mortgage in favour of X.
Litigation – Result – 20 years possession – revert back to family.
1 brother died unmarried & 2 died leaving 2 widows behind (but without issue)
Sister – 3 grandson (A, B & C – REVERSIONERS)
Till death of widows – mere specs succession
While one of the widow was alive – B & C transferred this property by
misrepresenting
Widow resisted – died while pending suit
Before death - gifted this property to Jumma Masjid (Also A relinquished his claim in
their favour for consideration)
 RELEVANT CASES -
Official Assignee, Madras v. Sampath Naidu, AIR 1933 Mad 795
Mortgage of specs succession
But sold it to third party on acquiring the property
Knowledge of mortgagee (void) – Mere transfer of specs succession

Aalamanaya Kunigari Nabi Seb v. Marukuti Papiah, AIR 1915 Mad 972
Mortgage of specs succession (property of father by son)
During pendency of suit father died
Contention by son - Interpretation of section 43 is violative of section 6(a) – Rejected by court

Shayam Narain v. Mangal Prasad, AIR 1935 All 244

Transfer of specs succession
Section 43 will be applicable

Mahadeo v. Har Baksh, AIR 1928 Oudh 13

Sale By Wife After 5 Years – husband missing
 Understudying the concept of Coparcenary,
COPARCENARY, JOINT AND CO – Joint and Co – Ownerships and law
governing the same.
OWNERSHIPS : Sec. 44 – 47 of the Transfer of Property
Act, 1882
 44. TRANSFER BY ONE CO-OWNER.—
Where one of two or more co-owners of immovable property
legally competent in that behalf transfers his share of such property or any interest therein,
the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer,

The transferor's right to joint possession or other common or part enjoyment of the property,
and to enforce a partition of the same,

but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so
transferred.

Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family,
nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
 45. JOINT TRANSFER FOR
CONSIDERATION.—
Where immoveable property is transferred for consideration to two or more persons

and such consideration is paid out of a fund belonging to them in common,

They are, in the absence of a contract to the contrary, respectively entitled to interests in such property
identical, as nearly as may be, with the interests to which they were respectively entitled in the fund;
and,
where such consideration is paid out of separate funds belonging to them respectively,
they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in
proportion to the shares of the consideration which they respectively advanced.

In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the
shares which they respectively advanced,
such persons shall be presumed to be equally interested in the property.
 46. TRANSFER FOR CONSIDERATION BY
PERSONS HAVING DISTINCT INTERESTS.—
Where immoveable property is transferred for consideration
by persons having distinct interests therein,
the transferors are, in the absence of a contract to the contrary,
entitled to share in the consideration equally, where their interests in the property were of
equal value, and,
where such interests were of unequal value, proportionately to the value of their respective
interests.

Illustration

(a) A, owing a moiety, and B and C, each a quarter share, of mauzaSultanpur, exchange an eighth share of that mauza for a quarter share of mauzaLalpura. There
being no agreement to the contrary, A is entitled to an eighth share in Lalpura, and B and C each to a sixteenth share in that mauza.

(b) A, being entitled to a life-interest in mauzaAtrali and B and C to the reversion, sell the mauza for Rs. 1,000. A's lifeinterest is ascertained to be worth Rs. 600, the
reversion Rs. 400. A is entitled to receive Rs. 600 out of the purchase-money. B and C to receive Rs. 400.
 47. TRANSFER BY CO-OWNERS OF SHARE IN
COMMON PROPERTY.—
Where several co-owners of immovable property
transfer a share therein
without specifying that the transfer is to take effect on any particular share or shares of the
transferors,
the transfer, as among such transferors,
takes effect on such shares equally where the shares were equal,
and where they were unequal, proportionately to the extent of such shares.

Illustration
A, the owner of an eight-anna share, and B and C, each the owner of a four-anna share, in mauzaSultanpur, transfer a two-anna
share in the mauza to D, without specifying from which of their several shares the transfer is made. To give effect to the transfer
one-anna share is taken from the share of A, and half-an-anna share from each of the shares of B and C.
KHYATI NAYAK
Assistant Professor (Law)
KPMSOL, NMIMS, MUMBAI

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