A

PRESENTATION ON
SECTION 6(a) and 43 OF TPA 1972
SECTION 114 OF QSO
SECTION 18 SPECIFIC RELIEF ACT

Submitted to: Respected Sir Zakria

Submitted by: Aamir Ali Channar
Roll no.02
Semester- 3rd
Section-A

INSTITUTE OF LAW
UNIVERSITY OF SINDH
 OBJECTIVES
1. To discuss Section 6(a) of Transfer of property act

2. To discuss Spes Succession

3. To discuss Section 43 of Transfer of Property act

4. To discuss 18 of Specific Relief act

5. To discuss Principle of Estoppel 114 QSO

6. To discuss grant of estoppel in Section 43 of TPA and 18 of

Specific Relief act

7. To discuss difference between S. 6(a) and 43 to TPA

8. To discuss and distinguish Section 43 TPA AND 114 QSO

9. To distinguish section 18 of Specific Relief Act with 43 TPA

The Transfer of Property Act 1882 contains specific provisions regarding what
constitutes transfer and the conditions attached to it. According to the Act, 'transfer
of property' means an act by which a person conveys property to one or more persons
, or himself and one or more other persons. The act of transfer may be done in present
or for future. The person may include an individual, company or association or body
of individuals, and any kind of property may be transferred.

SECTION 6(a)
What may be transferred Property of any kind may be transferred, except as
otherwise provided by this Act or by any other law for the time being in force-
(a) The chance of an heir-apparent succeeding to an estate, the chance for
relation obtaining a legacy on the death of a kinsman, or any other mere
possibility of a like nature, cannot be transferred.

EXPLANATION
The general law lays down that all property is transferable under the section unless
there is some legal restriction to the contrary. Section 6 makes property of any kind
alienable subject to the exception set out which cannot be supposed to be selected
by reason of the future character of the chances.. It is well settled that a transfer of
property clearly contemplates that the transferor has an interest in the property,
which is sought to be conveyed.

First, in Chance of an Heir Apparent/ Spes Succession-The technical expression for

the chance of an heir apparent succeeding to an estate is called spes secessionis. It
means succeeding to a property. This means an interest which has not arisen but
which may arise in future. It is in anticipation or hope of succeeding to an estate of
a deceased person. Such a chance is not property an as such cannot be transferred. If
it is transferred, the transfer is wholly void.

Clause (a) of section 6 of the Transfer of Property Act excludes mere chance of an
heir apparent of succeeding to an estate from the category of transferable property.
The technical expression for such a chance is ‘Spes Successionis’. During the
lifetime of a person. the chance of his heir apparent succeeding to the estate or the
chance of a relation obtaining a legacy under his will is a ‘Spes Successionis’(chance
of succession). Such an expectancy does not amount to an interest in property and
cannot be made the subject matter of a transfer.

The general rule is that property of any kind may be transferred as laid down in s.6
and the person pleading non-transferability must prove the existence of any usage or
custom which restricts the right of transfer. Clause (a) of section 6 of the transfer of
property act discusses the chance of an heir apparent to succeed to the property. A
person having interest which is spessuccessionisi.e mere expectancy to succeed to
the property in future is not a right and is not capable of being transferred. Such a
person cannot bring a suit on the basis of such chance of succession.

Where the transfer is not of the right of expectancy of an heir apparent but of the
property itself, it cannot be said to be a transfer of a mere chance to succeed. Thus,
when a person is not heard of for a long time and is believed to be dead an agreement
to transfer the property entered into by his brother who is in enjoyment and
possession of the property in dispute is not a transfer of the right of expectancy but
of the property itself and is not hit by cl (a).
Family Settlement

A family settlement is based on the assumption that there was an antecedent title of
some kind in the parties, and the agreement acknowledges and defines what the title
was. It cannot be deemed to be a transfer of property because by such arrangement
no right, either vested or contingent is conveyed by one party to another, it would
not be hit by s.6(a) nor did it contravene the provisions of Hindu law.

MOHOMEDAN LAW AND TRANSFER OF

SPES SUCCESSIONIS
It has been held that in the case of Mohammadans the transfer of expectancy by a
heir presumptive is void ab initio and that no question of an estoppel can, therefore
arise by reason of the heir renouncing her claim before the expectancy opens.
 SECTION 43 (TPA)
Transfer by unauthorized person who subsequently acquires interest in
property transferred. Where a person '[fraudulently or] 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.

Noting in this section shall impair the right of transferees in good faith for

consideration without notice of the existence of the said option.

EXPLANATION
According to Section 43 of the Transfer of Property Act 1882, in case a person either
fraudulently or erroneously represents that he is authorized to transfer certain
immovable property and does some acts to transfer such property for consideration,
then such a transfer will continue to operate in future. It will operate on any interest
which the transferor may acquire in such property.

This will be at the option of the transferee and can be done during the time during
which the contract of transfer exists. As per this rule, the rights of bona fide
transferee , who has no notice of the earlier transfer or of the option, are protected.
This rule embodies a rule of estoppel i.e. a person who makes a representation cannot
later on go against it. Every person, who is competent to contract, is competent to
transfer property, which can be transferred in whole or in part. He should be entitled
to the transferable property, or authorized to dispose of transferable property which
is not his own. The right may be either absolute or conditional, and the property may
be movable or immovable, present or future. Such a transfer can be made orally,
unless a transfer in writing is specifically required under any law.

CONDITIONS FOR APPLACATION OF S. 43

1. The transfer is an unauthorized person.

2. There is fraudulent and erroneous representation by transfer regarding his

right to transfer.

3. The transfer should be for consideration.

4. The transferor subsequently acquires authority for the transfer.

S. 114 OF QANUN-E-SHAHADAT ORDER, 1984

Estoppel: When one person has by his declaration, act or omission, intentionally
caused or permitted another person to believe a thing to be true and to act upon such
belief, neither he nor his representative shall be allowed, in any suit or proceeding
between himself and such person or his representative, to deny the truth of that thing.

It means that when a person by his words or by his conduct makes a representation
to another that certain state of things is true and induces him to act on that belief and
when the other person relying upon the representation alter his previous position,
then the person making such representation would be estopped from denying the
truth of his previous representation.
APPLACTION OF ESTOPPEL (114 QSO) ON
SECTION 43 OF TPA
Estoppel will come into play when a transfer is made by person who has no title to
that property transferred but later on he acquires title to that property. This will be at
the option of the transferee and can be done during the time during which the contract
of transfer exists. As per this rule, the rights of bona fide transferee , who has no
notice of the earlier transfer or of the option, are protected. This rule embodies a rule
of estoppel i.e. a person who makes a representation cannot later on go against it.
Every person, who is competent to contract, is competent to transfer property, which
can be transferred in whole or in part. He should be entitled to the transferable
property, or authorised to dispose off transferable property which is not his own. The
right may be either absolute or conditional, and the property may be movable or
immovable, present or future. So grant of estoppel will be provided and transferor is
to be transfer that title under doctrine of estoppel.
APPLACTION OF ESTOPPEL (114 QSO) ON
SECTION 6 (A) AND ITS DIFFERENTIATION
WITH SECTION 43 OF TPA
Transfer of property in section 6 is ab intio void and it is totally forbidden by law
being against public policy. Grant of estoppel will not be provided in this case
because situation in 43 is different from 6 in many aspects. In the case of spes
successionis the transfer by heir apparent is ab intio null and void. Similarly where
property is non transferable within meaning of sec 6 clause a, 43 cannot validate the
transfer because initial transaction is itself contrary to law. Secondly, Mohammadan
law doesn’t allow the transfer of spes successionis.
Transfer of property in section 6 a is based on expectancy which may or may not be
acquired so chance is based on hope.Section 43 apply where transfer misrepresent
the title and doesn’t represent the right in spes successionis. But is transfer represent
spes successionis then transferee cannot acquire benefit of 43.

Section 6 prescribes a rule of substantive law and Section 42 prescribes procedural

for estoppel. Section 42 applies to case when transferor has non transferor interest
which subsequently become transferable. Section 43 cannot be applied to the transfer
of chance of spes successionis it applies only when transfer purports to be one of
present interest in property and transferee is not aware of defect of title.
 CASE LAW ON CONTROVERSY OF 43 AND 6 of TPA

There appears to be some conflict between section 43 and section 6(a) dealing

with the non- transferability of spes sucoessionis and some controversy was

raised to this effect. But the supreme court in Jumma Masjid, Mercara v.

Kodimaniandra,1 set at rest the controversy holding that both the provisions can

be given full effect in their respective spheres.

The court held that when a person transfers property representing that he has

present interest therein whereas he has, in fact, only a spes successionis, the

transferee is entitled to the benefit of section 43 if he has taken the transfer on the

faith of that representation and for consideration. There is no conflict in sections

41 and 43 and both can operate simultaneously. In Jumma Masjid case, an heir

apparent sold his would be share In a join property to the Masjid, claimed the

subsequently acquisition under section 43 as the contract was not revoked. The

argument of the transferor was that interest at the date of transfer was one of spes

successionis and void ab initio under section 6(a). it was argued further that a

transfer void under section 6(a) cannot be validated by invoking section 43.

1
A.I.R 1962 S.C. 847
 The Supreme Court held that section 43 would apply and subsequent

acquisition shall pass on to the Masjid. The court held section 6(a) was a rule of

substantive law whereas section 43 is a rule of evidence. It is based on estoppel.

DISTINCTION IN 43 TPA AND 114 QSO

Both section deals with estoppel but there is distinguishing factor. According to the
43 of transfer of property act, erroneous representation is enough but under article
114 it must be made intentionally and falsely. Where state of things is known to both
and there is no proof of erroneous misrepresentation, question of estoppel does not
arise.
SECTION 18 OF SPECIFC RELIEF ACT
Purchaser’s rights against vendor with imperfect title. Where a person
contracts to sell or let certain property, having only an imperfect title thereto,
the purchaser or lessee (except as otherwise provided by this Chapter) has the
following rights:–

(a) if the vendor or lessor has subsequently to the sale or lease acquired any
interest in the property, the purchaser or lessee may compel him to make
good the contract out of such interest;

DIFFERENCE BETWEEN SECTION 43 OF TPA

AND 18 OF SPECIFIC RELIEF ACT

The Specific Relief Act came into force in 1877 whereas the Transfer of Property
Act, came into force in 1882. It is true that there is some overlapping between section
43 of the Transfer of Property Act and Section 18(a) of the Specific Relief Act, hut
there is an essential difference between the two. Section 43 of the Transfer of
Property Act applies only where there is fraudulent or erroneous representation by
the transferor and there is a transfer of property for consideration.Then, at the option
of transferee such transfer may operate on any interest which the transferee may
acquire in the property at any time. Section 18(a) of the Specific Relief Act is
however restricted to two classes of transfers only namely sale or lease, and not to
any other class. Moreover, it is unnecessary that there should be either a fraudulent
or erroneous misrepresentation by the transferor. It applies where there is a sale or
lease by person having an imperfect title, irrespective of the representation that he
might have made to the purchaser or lessee. Merely because there is some
overlapping between the two sections, it will not be proper to give an artificial
construction to Section 18 of the Specific Relief Act ignoring the meaning of the
words "subsequently to the sale" which clearly show that there must be a completed
sale before the section be applied.

Recognition of estoppel in S.18

As in section 43 of Transfer of property Act the estoppel will be considered in

Section 18 of Specific Relief Act. Sale be seller who at the time of sale was not the
owner and has inchoate title in the property sold would confer title on purchaser
when seller subsequently became owner of property and acquired inchoate title in
property sold on principle of estoppel.