High Court Of Judicature At Calcutta
Civil Second Appeal No. 157 Of 1967
DATE : 05-08-1975
Samir Kumar Haldar
Nirmal Chandra Banerjee
M.M. DUTT, J.
(1) THIS appeal arises out of a suit for specific performance of an agreement for sale. The appellant is the assignee of the original plaintiff Bishnupada Bose.
(2) THE property in suit belonged to one Nemai Chandra Banerjee, the brother of the defendant No. 1 Nirmal chandra Banerjee. By an agreement dated February 24, 1950, Nirmal Chandra Banerjee agreed to sell the property to the plaintiff for a consideration of Rs. 10,000/ -. It is recited in the agreement that his brother Nemai suddenly disappeared on May 21, 1946. He was suffering from various ailments. He made searches for his brother but he could not be traced. He believes that his brother is not alive and that he has committed suicide. Further, it is stated that after the death of his brother he is his only heir and that he has been in enjoyment and possession of the disputed property. In order to be sure as to the death of his brother he agreed to defer the execution of the sale deed till six months after May 21, 1953. On the date of the agreement the plaintiff paid a sum of rs. 2,500/- to his vendor Nirmal Chandra Banerjee on account of earnest money. It is the plaintiff’s case that although he was ready and willing to perform his part of the contract the defendant No. 1 failed and neglected to complete the same by executing the sale deed as agreed. Instead, he transferred the disputed property by a registered deed of conveyance dated October 1, 1954, to the defendant No. 2, the predecessor-in-interest of the defendants Nos. 2 (a) to 2 (d). On the afore said allegations the plaintiff Bishnupada Ghosh prayed for a decree for specific performance of the contract or in the alternative, for refund of the earnest money.
(3) THE suit was contested by the defendant No. 2 and subsequently, after his death, by one of his heirs the defendant No. 2 (a). One of the contentions of the contesting defendant was that the agreement to sell executed by the defendant No. 1 in favour of the plaintiff was hit by the provision of section 6 (a) of the Transfer of Property Act, for what was agreed to be transferred was a mere chance of the vendor to succeed to his brother Nemai. The other defences, which were taken by the defendant, are not relevant for our present purpose.
(4) THE trial court came to the find ing that by the said agreement the defendant No. 1 agreed to transfer spes successionis and it was, therefore, hit by the provision of section 6 (a). In coming to the said finding the trial court took the view that no presumption of the death of Nemai arose on the day the said agreement was executed, for seven years did not pass from the date of his disappearance. Upon the said findings, the trial court dismissed the suit. On appeal by the plaintiff, the lower appellate court took the same view as that of the trial court. The lower appellate court held that the parties were aware of the truth that the defendant was an heir apparent to his elder brother, at the time of the agreement and that the agreement was in substance an agreement to transfer spes successionis which the defendant no. 1 had in the property. Further, it was held that the agreement taken as a whole showed that the vendor was not sure of the death of his elder brother from whom he would inherit the property and that he was conscious of his doubtful or inchoate title. According to the lower appellate court, as the defendant No. 1 was, on the date of the agreement, merely an heir apparent of Nemai, who was the owner of the property in the absence of any presumption under section 108 of the evidence Act, what was transferred by him was mere spes successionis. In that view of the matter, the lower appellate court upheld the judgment of the trial and dismissed the appeal. Hence, this second appeal.
(5) IN our view, both the courts below have misunderstood the legal position. Under section 6 of the Transfer of Property Act, property of any kind may be transferred except as otherwise provided by the Act or by any other law for the time being in force. Clauses (a) to (i) of section 6 enumerates the properties which cannot be transferred. Clause (a) provides that 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. What is forbidden by clause (a) is a mere chance of an heir succeeding to an estate or a mere possibility of a like nature. When the transfer is a transfer by an heir-apparent on his chance to succeed to an estate, the transfer will be hit by section 6 (a). But where the transfer is not of the right of expectancy but of the property itself, it cannot be said, to be a transfer of a mere chance to succeed to an estate. The position was made clear long ago in a Bench decision of the Allahabad high Court consisting of Sulaiman, c. J. and Rachhpal Singh, J. (Shyam narain Misir and another v. Mangal prasad Misir and others) reported to a. I. R. 1935 All. , 244. The question that arose for consideration in that case was whether there was a conflict between the illustration to section 43 of the Transfer of Property Act and section 6 (a). Their Lordships observed as follows :
“s. 6 does not prohibit emphatically the transfer of a chance of an heir ; nor does it make it absolutely illegal so as to vitiate the entire contract. It merely lays down that the property of any kind may be transferred, but the chance of an heir cannot be transferred. This is no more than saying that a transfer of a mere chance of an heir is void in law and is of no effect. S. 6 (a) would therefore apply to cases where professedly there is a transfer of a mere spes successionis, the parties knowing that the transferor has no more right than that of a mere expectant heir. The result, of course, would be the same where the parties knowing the full facts fraudulently clothe the transaction in the garb of an out and out sale of the property, and there is no erroneous re presentation made by the transferor to the transferee as to his owner ship. But where an erroneous representation is made by the transferor to the transferee that he is the full owner of the property transferred and is authorised to transfer it and the property transferred is not a mere chance of succession, but immovable property itself, and the transferee acts upon such erroneous representation, then if the transferor happens later, before the contract of transfer comes to an end, to acquire an interest in that properly, no matter whether by private purchase, gift, legacy or by inheritance or otherwise, the previous transfer can at the option of the transferee operate or the interest which has been subsequently acquired, although it did not exist at the time of the transfer. ”
(6) IT is clear from the above observation that unless the transfer is professedly of a mere spes successionis and the parties are aware of the same, it does not come within the purview of section 6 (a). When the property transferred is not a mere chance of succession, but immovable property itself, the transfer is not hit by section 6 (a). In the instant case, the agreement to sell relates to the immovable property, that is, the property in suit, and not a mere chance of succession of the defendant No. 1 to that property as an heir of his elder brother Nemai.
(7) IT is true that on the date the agreement was executed, that is, after 3 years 9 months of the date of disappearance of Nemai, the legal presumption under section 108 of the Evidence act was not available. In our opinion, the provision of section 108 is not relevant. The defendant No. 1 believed that his brother was dead and that be inherited the disputed property as his sole hair. He agreed to transfer the property itself to the plaintiff Bishnupada Bose on the footing of his firm belief that his brother was dead. By no stretch of imagination can it be said that he agreed to transfer his chance of succession. It is true that the execution of the deed of sale or the completion of the sale was deferred till six months after May 21, 1953, that is, after 7 years, in order to avail of that legal presumption. But, in our view that is quite immaterial. That might have been done for the purpose of fortifying or strengthening his sound belief that his brother was dead and also for the purpose of an additional assurance. But that has nothing to do with the question whether he agreed to transfer a mere chance of succession to his brother’s estate. The courts below thought that after the lapse of 7 years, his brother could be said to have died. Section 108 of the Evidence Act does not lay down any such provision. All that has been provided for in that section is that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. It only raises a presumption of death when a person is not heard or for seven years. But it does not say that after the lapse of seven years it can be said that the man is definitely dead. In this connection we may refer to Article 624, page 345, Vol. 15, 3rd Edition of Halsbury’s Laws of england, which is as follows :
“there is no legal presumption either that the person concerned was alive up to the end of the period of not less than seven years, or that he died at any particular point of time during such period, the only presumption being that he was dead at the time the question arose, if he has not been heard of during the preceding seven years. If it is necessary to establish that a person died at any particular date within the period of seven years, this must be proved as a fact by evidence raising that inference ; for example, that when last heard of he was in bad health. or exposed to unusual perils, or had failed to apply for a periodical payment upon which he was dependent for support. ”
(8) APART from the legal presumption under section 108, it can be shown that the man died at any time after his disappearance, even before the expiry of the period of seven years. In this case, the statements in the agreement, which have not been denied or disputed by the defendant, show that nemai was suffering from various aliments and that accordingly, the defendant No. 1 was justified in inferring that his brother was dead.
(9) IT has been already stated that section 108 of the Evidence Act is not relevant for the purpose of considering as to whether the agreement is hit by section 6 (a) of the Transfer of Property Act. All that has to be seen is whether by a contract of transfer or by a deed of transfer, spes successionis is agreed to be transferred or has been transferred. In this case, the defendant No. 1 agreed to transfer the immovable property itself and not his right of expectancy. In the circumstances, in our view, the agreement is not void ad held by the courts below.
(10) IT is not disputed that the defendant No. 2, the predecessor-in-interest of the present contesting respondent, purchased the disputed property from the defendant No. 1 with know ledge of the agreement in favour of the plaintiff Bishnupada Bose. In these circumstances, the sale of the disputed property by the defendant No. 1 to the defendant No. 2 is void. The plaintiff must succeed and he is entitled to a decree as prayed for by him.
(11) IN the result, the judgments and decrees of the courts below are set aside. The suit for specific performance is decreed with costs against the contesting defendant No. 2 (a). The appellant is directed to deposit in the trial court a sum of Rs. 7,500/- (Rupees seven thousand and five hundred), the balance of the consideration money, to the credit of the defendants nos. 2 (a) to 2 (d) within one month of the arrival of the records in the trial court. The appellant shall also put in within the said period, the requisite stamps, draft conveyance and the cost of registration. The defendant No. 1 nirmal Chandra Banerjee is directed to execute and register a deed of sale in respect of the disputed property within two months of the arrival of the records in the trial court. The defendants Nos. 2 (a) to 2 (d) will also join in the sale deed that will be executed by the vender, the defendant no. 1. If the defendants fail to execute the document of sale as directed, the trial court will execute the sale deed on behalf of all the defendants and get the same registered in accordance with law at the cost of the appellant. The defendants Nos. 2 (a) to 2 (d) are also directed to deliver possession of the disputed property to the appellant within two months of the arrival of the records in the trial court, failing which the appellant will be entitled to recover khas possession of the disputed property in execution of the degree. The appeal is allowed, but there will be no order for costs in this Court.