1. The facts necessary for the disposal of this appeal are shortly these: On 15th April 1912 the defendant borrowed Rs. 1,000 from the father of the plaintiffs and executed a mortgage by conditional sale in his favour: the mortgage property consisted of four fields Nos. 39/1, 42, 43 and 41/1 of Mauza Paras. Subsequently, on 11th August 1913, he again borrowed Rs. 500 and executed another mortgage deed by conditional sale; the mortgage property in this transaction being only one field of the same village which bore No. 34/3. The plaintiffs brought a suit to enforce both these mortgages.
2. Various pleas were raised in defence, the most important one however being that both the mortgages were void because at the date of the mortgages the whole of the mortgage property belonged, exclusively to the defendant's mother in which he had only a spes successionis; and that the plaintiff's father had knowledge of this flaw in the plaintiff's title, but on account of false representations got the mortgages executed. It may be noted that at the time when the present suit was brought the defendant's mother had died and the defendant had succeeded to three out of the five fields mortgaged viz. fields Nos. 39/1, 42 and 43. In reply the plaintiff denied the allegations regarding the alleged invalidity of the mortgages and claimed a foreclosure decree as against the three fields only of which, on his own admission, the defendant had now become the owner. On the principal contentions raised by the parties the trial Court held that the two mortgages in suit were not executed by the defendant under the alleged misrepresentations of the plaintiff's father, that assuming that the mortgage property belonged to defendant's mother at the date of the mortgages since the defendant had now become the owner of a portion of it, Section 43 of the Transfer of Property Act, applied to the case and the plaintiffs mortgagees were entitled to get a decree against the three fields only by way of substituted security, and that Section 6(a) of the Transfer of Property Act, did not Apply because what was apparently mortgaged was not merely spes successionis in the mortgage property, but the property itself. On these findings the usual foreclosure decree for the whole amount claimed was passed as against fields Nos. 39/1, 42 and 43.
3. It is from this decree that the defendant has now come up in first appeal and on his behalf only two points were urged an arguments:
(1) that on the assumption that the mortgage property belonged to the defendant's mother at the date of the mortgages, what was mortgaged by the defendant could only be a spes successionis and the transaction was therefore void under Section 6(a) of the Transfer of Property Act, and that to such a transaction S. 43 ibid had no application; and (2) that the mortgagees having had knowledge of the defect in the title of the defendant could not claim the benefit of Section 43 of the Transfer of Property Act.
4. In support of the first contention reliance was placed by the applicant's counsel on Maroti v. Raiwant Rao, A.I.R 1928 Nag. 262 and Bindeshwari Singh v. Har Narain, A.I.R 1929 Oudh 185, in both of which it is undoubtedly laid down that if a person purports to transfer property in praesenti, but in which he has only a reversioner's interest at the date of the transfer, such a transaction is void at its inception under Section 6(a) of the Transfer of Property Act, and therefore S. 43 ibid has no application to such a case. In both these cases however no distinction seams to have been made between a transfer which is professedly one of a mere right and a transfer of specific property which the transferor erroneously represents he is authorized to transfer though he may, for the time being, have merely a reversionary right therein. Transfers of the former class would obviously fall within the purview of Section 6(a) of the Transfer of Property Act, and would be void at initio, while those of the latter class would be governed by S. 43 of the Act. For these reasons it is difficult, with due deference to the learned Judges who decided these cases, to follow their dicta as a correct exposition of the law.
5. Section 6(1) in question enacts that
“the chance of an heir-apparent succeeding to an estate * * * or any other mere possibility of a like nature cannot be transferred.”
6. This prohibition can only refer to a transaction which, on the face of it, purports to transfer a right of reversion or expectancy; if it were otherwise S. 43 of the Act would be rendered nugatory and the illustration appended thereto valueless.
7. Section 43 and the illustration appended to it run as under:
“Where a person erroneously represents that he is authorized to transfer certain immovable 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.
Illustration.—A, a Hindu, who has separated from, his father B, sells to C three fields, X, Y and Z, representing that A is authorized 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.”
8. In the illustration, A clearly has, at the date of the transfer, no more than a reversionary right of succession in the property which he professes to transfer on the erroneous representation that he is authorized to transfer it. Notwithstanding this initial defect in his title when the succession opens, and A becomes the owner of the transferred property, C, the transferee, obtains, under this section, an indefeasible right to it in fulfilment of the original contract of transfer.
9. In Maroti v. Raiwant Rao, A.I.R 1928 Nag. 262 Kinkhede, A.J.C, relied on the six following Privy Council, case, but after examining these it is clear to me that the facts in each one of them were different and in none of them was the question of the applicability of Section 43 of the Transfer of Property Act, either raised or decided by their Lordships of the Privy Council. These precedents therefore hardly support the conclusions of law reached by the learned Additional Judicial Commissioner: Sham Sundar Lal v. Achhan Kunwar(1), Janaki Ammal v. Narayanasami Aiyar(2), Harnath Kuar v. Indar Bahadur Singh(3), Ananda Mohan Roy v. Gour Mohan Mullick(4), Amrit Narayan Singh v. Gaya Singh(5) and Gur Narayan v. Sheolal Singh(6).
10. In the case of Sham Sundar Lal v. Achhan Kunwar, the two mortgage deeds in question, on the face of them, purported to bind future rights of reversionary heirs, which their Lordships held could not be done under the Hindu law. No question of the applicability of Section 43 of the Transfer of Property Act, arose in the case.
11. In Janaki Animal's case no question of the applicability either of Section 6(a) or Section 43 of the Transfer of Property Act, arose for decision, or was decided. All that was held there was that a reversionary heir although having a contingent interest is recognized by the Courts as having a right to demand that the estate be kept free from waste and free from danger during its enjoyment by the widow or other owner for life and that such heir thus appealing to the Court does so in a representative capacity, so that the corpus of the estate may pass unimpaired to those entitled to the reversion.
12. In the case of Harnath Kuar v. Indar Bahadur Singh, the deed of transfer on the basis of which the suit was brought for possession was held to convey only a reversionary interest in the property, and the suit for possession failed, but the alternative claim for refund of consideration was decreed. The question of the application of Section 43 of the Transfer of Property Act, was neither raised nor considered by their Lordships of the Privy Council.
13. In the case of Ananda Mohan Roy v. Gour Mohan Mullick the plaintiff Bought to enforce agreements under which he purported to purchase from the defendants:
“their expectations under the will of their uncles, or alternatively their rights as nephews expectant upon the termination of the surviving widows' rights.”
14. It was therefore held that the transfer of such rights was illegal and void. No question of the applicability of Section 43 of the Transfer of Property Act, was raised or decided.
15. In the case of Amrit Narayan Singh v. Gaya Singh, while the plaintiff was a minor, his father agreed to certain terms of a compromise which had the effect of extinguishing the plaintiff's reversionary right in the estate of his grandfather, and it was held that the plaintiff was not bound by the award inasmuch as his right at the time of arbitration was a mere spes succession is which could not be dealt with on his behalf by his father. No question of the application of Section 43 of the Transfer of Property Act, also, arose in this case.
16. In the case of Gur Narayan v. Sheet Lal Singh, in a sale by a Hindu female, her grandson who was a contingent reversioner joined and purported to dispose of his future interest in the property. It was held that the association of the grandson in the deed of sale was wholly futile and had no legal effect in validating the transfer as it was on the face of it invalid. Their Lordships disposed of the question of estoppel raised, in the case by the following observations:
“There is absolutely no evidence that the vendee was induced to alter his position in any respect in consequence of Hanuman's representation contained in the deed of conveyance. The Subordinate Judge, in his able judgment, has given abundant reasons for holding that in the whole transaction Hanuman must have been a mere passive instrument in the hands of his elders and that his so-called statement could not have materially influenced either the vendor's or the vendee's conduct in the matter.”
17. In Bindeshwari Singh's case, A.I.R 1929 Oudh 185) reliance is placed only on the case of Ananda Mohan Roy v. Gour Mohan Mullick, but as I have already noticed, there the transfer was, on the face of, it, of mere spes succession is and no question of the applicability of Section 43 of the Transfer of Property Act, was raised or decided. Reference is also made in the Oudh case to Tilakdhari Lal v. Khedan Lal(7), but in this case their Lordships of the Privy Council did not decide the point of estoppel, but remitted the case to the Subordinate Judge for ascertaining if the “principle of law which is sometimes referred to as feeding the grant by estoppel” applied to the case.
18. On behalf of the plaintiffs-respondents reliance was placed on the decision of this Court in D. Sinclair v. Sitabkan(8), where Section 43 of the Transfer of Property Act, was applied to facts very similar to those of the present case. In this case a Mahomedan made a transfer of his house and sir land to his wife in lieu of dower. After the transfer he mortgaged the same property by conditional sale. The mortgagee foreclosed the mortgage in 1885 and in the next year the wife of the mortgagor died. The mortgagor, notwithstanding the foreclosure decree, claimed to hold the sir as an heir to his wife contending that he had no right to mortgage his wife's land and that the foreclosure decree could not affect his rights as an heir to his wife. It was held by the learned Judicial Commissioner that Section 43 of the Transfer of Property Act, applied and that as the mortgagor had mortgaged the land professing to have the power to do so, and as the same was now his property, he could not be allowed to defeat the mortgagee by showing that though the property was his now, it was not his when he had created the mortgage. It was also held that, although the mortgagee may have had notice of the claim of the mortgagor's wife, the question was immaterial and the mortgagor was in equity bound to fulfil his agreement because he had now the power to do so.
19. The same view is taken by the Madras. High Court in Alamanayahunigari Nabi Sab v. Murukuti Papiah(9). This was also a case in which a Mahomedan who had merely a spes succession is in his father's property mortgaged it upon an express declaration that he had a title in praesenti in it. During the progress of the suit to enforce the mortgage the mortgagor's father died and he became the owner by succession. His defence, that the transaction was void under Section 6(a) of the Transfer of Property Act, failed, and it was held that S. 43 ibid applied, and that the mortgagee could enforce the mortgage against the property. The following observations of Tyabji, J., at pp. 736-737 of the Report are very instructive and fully apply to the present case:
“On the contrary the illustration to S. 43 seems exactly in point, except that the transfer is here by way of mortgage, and in the illustration it is a sale. Here, as in the illustration the son represented that he was authorized to transfer property which in fact was not his property, but his father's, and if therefore the son subsequently as heir obtained the property of his father, the transferee may require the son to deliver it to him: in this case to have it declared subject to the mortgage.”
20. To the same effect are the decisions in Mahadeo Singh v. Har Baksh Dube, A.I.R 1928 Oudh 13 and Sarju Prasad v. Bindeshwar Bakhsh Pal(10).
21. For these reasons I uphold the decision of the lower Court that Section 6(a) of the Transfer of Property Act, has no application to the present case and that it is fully governed by S. 43 ibid. On the second point I agree with the lower Court's finding that it has not been established that the mortgagee had knowledge of the defect in the defendant's title at the date when he took the mortgages. There is no evidence on the point to prove the defendant's allegations on this pointy but it was urged that from the fact that the mortgagee had taken 20 years lease of the property from the defendant's mother, which lease admittedly expired in 1908, it should be presumed that in the year 1912 the mortgagee was aware that the defendant's mother was alive and the defendant had no title. It is indeed impossible to raise such a violent presumption.
22. The result is that on both points the appeal fails and is dismissed with costs.
K.N/R.K
23. Appeal dismissed.