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(…Continued from this Article)
Introduction
In the previous Article we saw as to how the Hindu Succession Act, 1956 has changed the entire landscape for women by giving them Absolute Rights in the Property. Earlier they were only a Life Interest Holder which was a very restricted right, not allowing a person to even sell the property. Furhter we saw as to how a purchaser of a property can protect himself from a potential fraud by following the First Advice of this Author. Earlier also we saw how a property devolves and on whom when its a Separate Property and when it is a Joint Hindu Family Property.
As we saw in the Previous Article how the dynamics of Separate Property and Joint Hindu Family Property plays out, now its time to move to the next stage of the Case and continue with our discussion from where we left in previous Article.
Brief Facts (…Continued)
C’s wife proved that the property was indeed a Separate Property as her husband only used his own money for purchasing it and hence won the case on this ground but during appeal she died. This essentially meant that C’s wife being issueless the property which was declared her husband’s Separate Property devolved anyways on the male Reversioners i.e. X, Y and Z. As now there was no problem for the Respondent as the property anyways devolved on X, Y and Z, the Respondent applied to the Revenue Authorities to transfer the Patta of the land (the property which was bought by him from X, Y and Z), which was standing in the name of the C’s wife’s name because she won the case as explained earlier, to himself. This is called Mutation. (The Revenue Authorities in a rural village are similar to the Municipal Authorities in an urban city like Delhi or Mumbai. So, if you purchase a land from someone in a rural area make sure that you apply for mutation in the Revenue Records i.e. get the name of the vendor removed and your name entered in the records. The case will be same when the land purchased belongs to an urban area but the revenue authority will be replaced by a municipal authority. The main effect of a Mutation is to show that now you are in the possession of the land or flat. [Second Advice: Also in case you buy a plot it is important to check that the seller’s name is present in the revenue/municipal records and it will give you double protection from any kind of fraud].
But when the Respondent applied to revenue authorities to mutate his name in the revenue records the Appellant i.e. Jumma Masjid, Mercara opposed the mutation on the ground that both C’s wife and Z have given their shares in the property to it vide a Release Deed and hence it has become the owner of the property.
The reasoning given by the Appellant for the said claim was this: When X, Y & Z sold their land to the Respondent they were not owners of the land, but C’s wife was the owner. So they cannot sell the land which was never theirs in the first place. Also the Appellant argued that even assuming that XYZ believed that the property will finally devolve on them, as C’s wife did not have any children, even then they had only a Spes Successionis in the property which is incapable of being transferred as Section 6(a) of Transfer of Property Act, 1882 (in short TPA).
This is a complex argument so let’s see what the Appellant meant by the above contention. Actually Section 6(a) of TPA states that some rights in a property cannot be sold or transferred. One of these rights is expectation that a person will get a property someday in future. Let’s make it clear by way of an illustration. Let’s assume L is the owner of a bungalow in Karol Bagh. He has only one son namely P and L’s wife is dead. P being the only son of L is going to succeed to L’s estate and get the bungalow after L’s death. But beware, today he is not the owner and what he has in present is only a chance that after the death of L he will get the Karol Bagh bungalow. Though that chance is very real but there might be a situation in which P may not get the bungalow, for example when P dies before L or L before his death sells the bungalow to some 3rd party or due to dispute with his son, L makes a will giving the Bungalow to his brother G. So though in future the chance of P getting the Bungalow is very real and strong, it is nevertheless a chance today and not reality. Now let’s say based on P’s chance of getting the Bungalow in future, he sells it to W who fully knows that the property belongs to L and not P but he also believes that after the death of L, P will anyways become the owner of the property and there is nothing wrong in buying the property from P. Now according to Section 6(a) this sale is not valid because on the date of the sale P is not the owner of the property but only an Expectant Heir (having a chance to succeed to the property), a right which is incapable of sale. Simply said Section 6(a) of TPA says only because you believe that tomorrow you will become the owner of a property you cannot sell it today.
So, the Appellant based on this argument challenged the title of the Respondent. But Appellant failed to understand that there is another section namely Section 43 of the same TPA which states that if a W buys the property from P, not knowing that P is not the true owner then he is protected by this Section 43. Section 43 essentially says that if a Purchaser/Vendee buys property from a Seller/Vendor without knowing the defect in his title, then such Purchaser can force the Seller to sell the property to him in case the Seller obtains the property on a future date. Let’s understand it by way of the previous example in respect of of L, P and W with the modification that P falsely represented to W that he is the owner of the Bungalow which was believed by W, and W without knowing that L is the true owner of the Bungalow, purchases it from P for a sale consideration of Rs. 100/-. Now as soon as P receives the Sale Price of the Bungalow and W reaches the Bungalow to take its possession L, P’s Father, tells him that he is the true owner and doesn’t allow W to enter into the Bungalow. Felt cheated W files a case against the P for getting the Bungalow in 2021. In 2023 while the case was still going on L dies and P being his only son becomes owner of the Bungalow as per Section 8 of Hindu Succession Act. Now Section 43 comes into picture and W can ask the Court to force P to transfer the Bungalow in his name. This is the true interpretation of Section 43.
(A note of caution is pertinent to mention here that the bona fides of the purchaser are a must in this case. If W would have known that there was a defect in the title of the Seller P then Section 43 would have been inapplicable and the sale would be void)
Again reverting back to the main case. Though X, Y and Z were not owners on the date of sale to the Respondent but on the date of C’s wife death they became owners of the Property. So on the very same date Respondent became the owner of the property. And this was the reason that the Hon’ble Supreme Court gave decision in favour of the Respondent.
Conclusion
From the combined reading of the Previous Article and the Present Article, we can very well say that the Law and the Courts both favour an honest purcahser of property who has no intention of cheating anyone. The Law, especially the Transfer of Property Act, have sufficient safeguards to protect a Bona Fide Purcahser in case he does not get the property despite paying a sale price which is generally huge, as in Delhi and other metropolitan cities property prices are almost always on the rise. Therefore if a person does not get the property despite his best intentions he should not lose hope and the best way is to approach the Court at the earliest to get the desired relief.
Parveen Semwal
Advocate, High Court of Delhi and Supreme Court of India