INTRODUCTION
‘Property’ is a comprehensive term that also encompasses the rights and interests implied by a physical and tangible object. It refers to three fundamental interests- the right of ownership, the right to possess and enjoy the property, and the right to alienate the same. When all these rights are transferred, it is called an ‘absolute transfer of property.’
The principle is that alienation is better than accumulation. This idea forms the foundation of the legal framework’s approach to property transferability. However, for the transfer to occur, the transferor must possess a legitimate and subsisting title of the said property. Section 6(a) and Section 43 of the Transfer of Property Act discuss the same, with a fine line difference between the two i.e., between spes successionis and feeding the grant by estoppel, which this blog aims to explore.
SPES SUCCESSIONIS UNDER SECTION 6(a):
Spes Sucessionis is a Latin phrase that means “hope of succession.” It implies the expectation of getting the property through succession i.e. either through inheritance or a will.
According to Section 6(a) of the Transfer of Property Act, a transfer of spes successionis is void ab initio. This is because it only deals with the transfer of mere hope or expectation of inheriting the property, rather than the actual property itself.
For example: B, the only son of A, hopes or expects to succeed on the family farm after his father’s death. Acting on this mere expectation, B transfers this family farm to C. C, being aware of B’s incapacity or lack of title, agrees to this transaction.
Here, this transfer by B is an example of spes successionis and is void ab initio under section 6(a) of the Transfer of Property Act. The reason is, that B does not actually possess the farm as A is still its rightful owner. B does not possess a valid and existing title to the farm at the time of the transfer. He transferred the mere expectation of inheriting the property to C, which is still uncertain. B actually needs to possess the property for this transfer to be deemed lawful under the Act.
THE DOCTRINE OF FEEDING THE GRANT BY ESTOPPEL UNDER SECTION 43
The principle is that one should not promise more than what he can perform, and if he does, he must deliver the same after he eventually acquires the capacity to perform. This principle forms the foundation of the doctrine of feeding the grant by estoppel under Section 43.
In the context of the transfer of property, this doctrine is applied to prevent unauthorized transfers where the transferor, through misrepresentation, transfers the property, even though he lacks the capacity to do so.
The following are the fundamental essentials under Section 43 of TPA:
- The transferor makes a representation that he is competent to transfer a particular immovable property when in reality, he lacks the capacity because he holds no interest in the said immovable property.
- This representation by the transferor must be either erroneous or fraudulent to make sure that the transferee acted bonafide.
- The transferee believes this representation to be correct, unaware of the defect in the title or lack of capacity of the transferor. He acts on this misrepresentation and enters into a contract with the transferor.
- This transaction must involve consideration. It can’t be gratuitous as the transferee would suffer no inducement in such a case.
- The transferor subsequently acquires the competency, i.e. he somehow acquires the said immovable property either through interstate transfer, through will, or a gift. However, the transferor has retained this property with himself and is refusing to transfer it to the transferee who acted bonafide.
If all the above conditions are satisfied, then the transfer will be voidable at the end of the transferee and he will have two options. If the contract still exists, he can proceed with the transfer. In such a case, the transferor will have to transfer the said immovable property, as promised, to the transferee who acted bonafide. Such a transfer is considered a valid transfer under Section 43. Or, the transferee can choose to rescind or revoke the same. In this scenario, the transfer will become invalid or void.
Exceptions: However, there will be no application of this rule if the transferee is not misled; i.e. if the transferee knew about the defect in the title and still proceeded with the transaction then the rule under this section will not be applicable. The transferee doesn’t need to have actual knowledge about the facts. If the circumstances are such that as a reasonable person, the transferee would have made reasonable inquiry enough to detect the lack of title, he would be deemed to have constructive notice of the deficiency, and Section 43 would not be applicable. This is known as the rule of caveat emptor (let the buyer beware).
DIFFERENCES BETWEEN SECTION 6(a) AND SECTION 43
After discussing the essentials of both, one can easily conclude that there is a fine line difference between the doctrine of spes successionis and the doctrine of feeding the grant by estoppel. It is important to understand the differences to prevent contradictions in the rights of succession between the owner and the heirs. The distinction between the two can be drawn on the following basis:
Rules established: Section 6(a) establishes the rule of substantive law because it attests to a fundamental legal rule- limiting the types of property interests that can be transferred, whereas Section 43 establishes the rule of estoppel as it prohibits or stops the transferor from denying the validity of a transfer, once he acquires the title of the said property.
Nature of Transfer: Section 6(a) involves an attempted transfer of a mere chance of inheriting the property (spes successionis) because here only the hope or expectation is transferred, whereas section 43 involves the transfer by a person who does not have a present title but later acquires it.
Applicability: Section 6(a) applies to all kinds of transfers, including gratuitous transfers, because only the hope and expectancy of getting the property is transferred and no inducement is suffered by the transferee. Whereas, Section 43 only applies to such transfers where consideration is involved (i.e., despite the misrepresentation, the transferor took monetary benefits from the transferee when the transferee was only acting bonafide); hence, it does not apply to gratuitous transfers.
Knowledge to transferee: Under Section 6(a), the fact that it is a transfer of spes successionis is within the knowledge of both transferor and transferee, whereas under Section 43 representation on the part of the transferor is erroneous or fraudulent which is out of the knowledge of transferee; that is, the transferee is unaware of the defect in title.
Validity of transfer: Transfers under Section 6(a) are void ab initio because the transferor has no title to the property to begin with, whereas the transfers under Section 43 are voidable on the part of the transferee as it can be perfected once the transferor gets the title.
Scope: Section 6(a) applies to both movable and immovable property as it broadly defines what interests in the property are transferable and non-transferable, whereas Section 43 applies only to immovable property as the doctrine of estoppel vastly deals with the vesting of title later on, which usually happens in the cases of immovable property itself.
CONCLUSION
Therefore, both Section 6(a) and Section 43 of the Transfer of Property Act address situations where the transferor lacks a current title to the property, but they operate on distinct legal principles. Section 6(a) prohibits the transfer of mere hope or expectation of inheriting the property, ensuring that future, uncertain interests remain non-transferable. On the other hand, Section 43 allows a remedy for unauthorized transfers, enabling the transferee to claim the property when the transferor later acquires a valid title. Thus, Section 43 is an exception to the rule laid down in Section 6(a).
Author(s) Name: Anushka Khard (Vivekananda Institute of Professional Studies, Delhi)
