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Case Comment "Jumma Masjid, Mercara vs. Kodimaniandra Deviah, AIR 1962 SC 847"

1) This case discusses a property dispute within a joint family involving multiple transfers of the property over time. 2) It examines the application of Sections 43 and 6(a) of the Transfer of Property Act 1882 regarding unauthorized transfers and transfers of a "spes successionis" interest. 3) The Supreme Court ultimately upheld the validity of the initial transfer to the transferee (T) under Section 43, dismissing the claim of Jumma Masjid.

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Deepa Saroj
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306 views

Case Comment "Jumma Masjid, Mercara vs. Kodimaniandra Deviah, AIR 1962 SC 847"

1) This case discusses a property dispute within a joint family involving multiple transfers of the property over time. 2) It examines the application of Sections 43 and 6(a) of the Transfer of Property Act 1882 regarding unauthorized transfers and transfers of a "spes successionis" interest. 3) The Supreme Court ultimately upheld the validity of the initial transfer to the transferee (T) under Section 43, dismissing the claim of Jumma Masjid.

Uploaded by

Deepa Saroj
Copyright
© © All Rights Reserved
Available Formats
Download as PDF, TXT or read online on Scribd
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CASE COMMENT

“JUMMA MASJID, MERCARA VS. KODIMANIANDRA DEVIAH,


AIR 1962 SC 847”

There was a joint family consisting of three brothers Santhappa, Nanjundapa and
Basappa. Santhappa died unmarried. Basappa die leaving behind a widow Gangamma
and Nanjundapa died. Leaving behind his widow Ammakka, who succeeded to all the
family properties as his heir. On the death of the widow Ammakka in 1910 , the estate
devolved on Nanjundapa’s sister grandsons as his next reversioners.
Nanjundapa and Basappa executed a usufructuary mortgage over the properties which
form the subject matter of this litigation.
The grandsons transferred the property to a transferee (T) and misrepresented the fact
that they held the ownership. To this Basappa’s widow Gangamma filed a case
against the grandsons as she was still alive. It was the 1st appeal, where the court
favoured the Basappa’s widow Gangamma and dismissed the case. But it is to be
noted that the transfer to a transferee (T) was still valid on the grounds of “Section 43
of the Transfer of Property Act 1882”1.
Basappa’s widow Gangamma died, and the property went to the grandsons. Here the
transferee (T) claimed for the property as there was an existence of consideration
behind the transfer.
To this a new party entered named Jumma Masjid claiming that the property was
transferred to them in the form of a gift deed by the Basappa’s widow Gangamma,
also Grandson had given them his portion i.e., ½ of the share with consideration of
rupees 300.
Jumma Masjid invoked “Section 43” to compel him to pass the property to Jumma
Masjid. The transferor contended that the interest transferred was spes successionis
and void ab initio under “Section 6(a) of the Transfer of Property Act 1882”2 and,
therefore, “Section 43” could not be applied to make a transfer valid which was void
ab initio.
The Supreme Court observed that “Section 43” applies to all transfers which fulfil the
conditions of the defect of title been in the transferor arises by reason of his having no
interest whatsoever, in the property or, of his interest therein being that of an heir
apparent. Even where a person having a mere spes successionis represent that he is
the owner thereof, and transfers it to another he is precluded from questioning the
validity of the transfer, if he later on succeeds there to or acquires an interest therein.
The Court further observed that “Section 6(a)” and “Section 43” relates to two
different subjects. “Section 6(a)” enacts a rule of substantive law while “Section 43”
enacts a rule of estoppels which is one of evidence or procedural law.

1
43. Transfer by unauthorised person who subsequently acquires interest in property transferred- BARE ACT
OF THE TRANSFER OF PROPERTY ACT 1882
2
6(a) 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- BARE ACT OF THE
TRANSFER OF PROPERTY ACT 1882
The transferee claimed to be valid. And dismissed the claim of Jumma Masjid. This
judgment signifies the rule of estoppels which is an evidentiary aspect while “Section
6(a)” substantive law and also mentions that in this case both the grounds cannot be
combined, else it will lose the purpose of the doctrine.

COMMENT
In the comparison of the English law and Indian law on estoppels, it appears
that in the case of early transfer of property by an individual who does not
possess the ownership, it happens like this that whenever the individual
receives the property, the property automatically gets transferred to the
transferee without any claim from the side of the transferee. But in Indian law,
it happens that the claim by the transferee is necessary to obtain the property
under the ground of estoppels. In this case, transferee (T) had already claimed
for his transfer, so this could not be ignored.

The judgment in the case of Alamanaya Kunigari Nabi Sab v. Murukuti


Papiah3 acted as the precedent to the current case. In this case, it was held that
if the transferee acted on the transferor’s representation, which is a spes
successionis, the case would support the doctrine of estoppels, and the
transferee will have all the necessary grounds to acquire the property.

It is submitted that since one of the conditions for the applicability of “Section
43” is that the transferee must have been misled on the erroneous
representation of the transferor, therefore, if the transferee had no knowledge
of the spes successionis then “Section 43” is to apply. But if the facts are
known to the transferee there is no question of being misled; there is then
collusion and “Section 6(a)” is to apply.

SUBMITTED BY- DEEPA SAROJ


ROLL NO. 216539
SECTION ‘H’

3
29 IND CAS 439

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