What is the spes suuessionis and whether it is transferable?
A Hindu Owning seprate property died leaving widow B and brother C. Brother C
has only a bare chance of succession in case he survived. Can C transfer this
chance of succession? (Asked in UPHJS 2007)
As per section 6 of TPA property of any kind may be
transferred. Only test to see whether a property is transferable or not, is to
see whether such a transfer is prohibited or not. There are 14 exceptions of
the general rule of transferability in the section itself.
(1) Spes
successionis or the chance of an heir-apparent - clause 6 (a)
(2) Mere right of re-entry except to owner - clause 6 (b)
(3) Mere easement without dominant heritage - clause 6 (b)
(4) Personal right of enjoyment - sec 6 (d)
(5) Future maintenance - sec 6 (dd)
(6) Mere right to sue - sec 6 (e)
(7) Public office or salary - sec 6 (f)
(8) Stipends - sec 6 (g)
(9) If transfer is opposed to the nature of interest - sec 6
(h)
(10) If transfer is for an unlawful object or consideration-
sec 6 (h)
(11) If transfer is to a person legally disqualified to be
transferee - sec 6 (h)
(12) Non-transferable tenancy right - sec 6 (i)
(13) Farmer who made default in paying rent revenue - sec 6 (i)
(14)
Lessee under the management of a Court of Wards - sec 6 (i)
Spes successionis is a person who
has a chance
of succeeding to an estate or legacy or any other mere possibility of a like
nature and it cannot be transferred. It is mere a mere hope or
anticipation. It
was held in Ananda Mohan Vs
Gour Mohan that a reversionary heir in Hindu Law cannot transfer the
property as it is a mere chance of getting the property. Thus a transfer in
contravention of sec 6 is not valid and C in given question cannot transfer
property which is merely an expectation or spes successionis but there is
another doctrine which some times works as an exception to the exceptions of
sec 6, that is feeding the empty grant by
estoppel though it is not a real exception and both work on different fields and under different
conditions
This doctrine is provided in sec 43 of TPA and sec 115 of Indian Evidence Act.
Sec
43 provides validity of transfer by unauthorised person who subsequently
acquires interest in property transferred and that unauthorized person may be a
spes successionis. For application of sec 43 there should be fraudulently or
erroneously representation about authority to transfer and transfer is for
consideration. Thus for application of sec 43 transferee should not Sec 43 has no
effect on the right of third person or transferees in good faith for
consideration without notice.
Illustration of sec 43-
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.
On
the same line sec 115 provides that 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.
Hon'ble
Supreme Court of India observed in The Jumma Masjid, Mercara Vs
Kodimaniandra Deviah AIR 1962 SC 847, “Whenever a person transfers property
to which he has no title on a representation that he has a present and
transferable interest therein, and acting on that representation, the
transferee takes a transfer for consideration. When these conditions are
satisfied, the section enacts that if the transferor subsequently acquires the
property, the transferee becomes entitled to it, if the transfer has not
meantime been thrown up or cancelled and is subsisting. There is an exception
in favour of transferees for consideration in good faith and without notice of
the rights under the prior transfer. But apart from that, the section is
absolute and unqualified in its operation. It applies to all transfers which
fulfill the conditions prescribed therein, and it makes no difference in its
application, whether the defect of title in the transferor arises by reason of
his having no interest whatsoever in the property, or of his interest therein
being that of an expectant heir….
Section
43 deals with representations as to title made by a transferor who had no title
at the time of transfer, and provides that the transfer shall fasten itself on
the title which the transferor subsequently acquires. Section 6(a) enacts a
rule of substantive law, while s. 43 enacts a rule of estoppel, which is one of
evidence. The two provisions operate on different fields, and under different
conditions, and we see no ground for reading a conflict between them or for
cutting down the ambit of the one by reference to the other. In out opinion,
both of them can be given full effect on their own terms, in their respective
spheres. To hold that transfers by persons who have only a spes successionis at
the date of transfer are not within the protection afforded by s. 43 would
destroy its utility to a large extent….
When
a person transfers property representing that he has a present interest
therein, whereas he has, in fact, only a spes successionis, the transferee is
entitled to the benefit of s. 43, if he has taken the transfer on the faith of
that representation and for consideration.”
Thus
as per this case transferee should be mislead by representation of transferor
and sec 43 has no applicability if transferee had knowledge of the defect in
title. It was also held in some cases that a valid relinquishment of share
might be done despite the fact that there is no fraud or misrepresentation and
estoppel will apply specifically in case of relinquishment with consideration.
See
Shehammal vs Hasan Khani
Rawther & Ors on 2 August, 2011 where
it was held by Hon’ble Supreme Court of India that “There is little doubt that
ordinarily there cannot be a transfer of spes successionis, but in the
exceptions pointed out by this Court in Gulam Abbas's case, the same can be
avoided either by the execution of a family settlement or by accepting
consideration for a future share. It could then operate as estoppel against the
expectant heir to claim any share in the estate of the deceased on account of
the doctrine of spes successionis. a testamentary disposition by a Mohammedan
is binding upon the heirs if the heirs consent to the disposition of the entire
property and such consent could either be express or implied. Thus, a
Mohammedan may also make a disposition of his entire property if all the heirs
signified their consent to the same. In other words, the general principle that
a Mohammedan cannot by Will dispose of more than a third of his estate after
payment of funeral expenses and debts is capable of being avoided by the
consent of all the heirs. In effect, the same also amounts to a right of
relinquishment of future inheritance, which is on the one hand forbidden and on
the other accepted in the case of testamentary disposition. Having accepted the
consideration for having relinquished a future claim or share in the estate of
the deceased, it would be against public policy if such a claimant be allowed
the benefit of the doctrine of spes successionis. In such cases, we have no
doubt in our mind that the principle of estoppel would be attracted.”
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