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Lakshman Subrao Bijur Vs. Babani Soiru Bhandari - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 121 of 1930
Judge
Reported inAIR1932Bom244; (1932)34BOMLR366
AppellantLakshman Subrao Bijur
RespondentBabani Soiru Bhandari
Excerpt:
.....possession and to transfer such an interest upon possession accruing to the promisor. 929 7. the transfer of property act, section 6(a), is to the effect 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. upon that occasion he said, he never liked equity so well as when it was like law. the day before i heard lord mansfield say, he never liked law so well as when it was like equity; remarkable sayings of those two great men, which made a strong impression on mymemory. those who have hopes or expectations of being the heirs of a living person, may have their hopes or expectations defeated, (1) they may predecease thepropositus. they may..........resolution being passed), was capable of being transferred, the appellant has acquired that right from narayan.4. when the facts of the present case are considered in the light of the authorities that i have cited in babani v. dulba, to which i will presently refer, it becomes obvious that this is not the case of such a change as is mentioned in section 6 of the transfer of property act. 5. anant was bound to give to. narayan and to defendant no. 6, who claims under narayan, a share to the extent of a quarter out of a moiety of the property-restored at the time when narayan entered into this agreement, the government resolution had already been promulgated, providingfor the restoration of the property. the government resolution was dated december 20, 1912. narayan's agreement was.....
Judgment:

Tyabji, J.

1. This appeal raises a question allied to that with which I have just dealt in Babani v. Dulba (1931) 34 Bom. L.R. 357 The present case, however, is clearer, because the person to whom the property was ' restored,'-one Anant Habbu-stated to the authorities that he was not entitled to more than one-half the property. The appellant is a transferee from the persons who wereentitled to a quarter of the other half. The respondents refused to recognise the right of the appellant to get that quarter. They succeeded in the lower Courts. The Court of the first instance considered that the appellant was not entitled to any relief, because the transfer to him was (under the Transfer of Property Act. Section 6) a transfer of a chance of an heir-apparent succeeding to an estate.

2. The learned District Judge considered the applicability of Sections 27 and 18 of the Specific Relief Act, and held that the facts did not come within those provisions, because he considered that the appellant's transferor had ' neither the expectancy as used in legal terminology, nor imperfect nor a full title to the property he was agreeing to sell.'

3. The remarks of the Master of the Rolls and Lord Justice Romer in Biss, In re. Bias v. Biss (1903) 2 Ch. 40 to which I referred in my judgment in Babani v. Dulba show the nature of positions held by the parties in cases of this kind. It was the duty of Anant to hold the benefit that he acquired under the restoration order, not only for himself, but for the others who were entitled to the restoration of the lands under the Government Resolution, The right to that benefit, after it had become definite (on the Government Resolution being passed), was capable of being transferred, The appellant has acquired that right from Narayan.

4. When the facts of the present case are considered in the light of the authorities that I have cited in Babani v. Dulba, to which I will presently refer, it becomes obvious that this is not the case of such a change as is mentioned in Section 6 of the Transfer of Property Act.

5. Anant was bound to give to. Narayan and to defendant No. 6, who claims under Narayan, a share to the extent of a quarter out of a moiety of the property-restored At the time when Narayan entered into this agreement, the Government Resolution had already been promulgated, providingfor the restoration of the property. The Government Resolution was dated December 20, 1912. Narayan's agreement was made on December 18, 1913. Therefore, the position of Narayan, and the transferee from Narayan, was very different from that of an heir-apparent- I shall refer to it more fully later to the position of an heir-apparent who is trying to deal with the chance of succession, and to the purchaser of such a chance. The right had already accrued to Narayan under the decision of Government; he could lawfully bind himself for a consideration to the appellant to transfer the right to which he had become entitled. When the property to which he became entitled under the Government Resolution came to him he became liable, under his previous agreement to transfer that property to the appellant: and this is what he purported to do.

6. There was nothing like a contract, by a reversionary heir to sell an interest expectant upon the death of a widow in possession and to transfer such an interest upon possession accruing to the promisor.-Annada Mohan Roy v. Gour Mohan Mullick (1923) L.R. 60 IndAp 239 : I.L.R. 50 Cal. 929

7. The Transfer of Property Act, Section 6(a), is to the effect 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.'

8. What is meant by these ' chances' or ' possibilities' can be understood by referring to decided cases. Lord Westbury referred in Davis v. Angel (1862) 4 G.F. & J.524 to the ' distinction between an interest that has arisen and is represented, and an interest that has not arisen and that never may arise, but with regard to which there is a remote possibility that the event which has not occurred and upon which it is made to hang may hereafter occur. The latter is not an interest, it is not a right; it is nothing more than a bare expectation of a future right. The expectation of a future interest, or rather, of a future event which may give an interest, is not a thing which would justify a Court of equity in entertaining a suit at the instance of party having that and nothing more.'

9. 'The expectancy of an heir apparent, during the life-time of his ancestor,' is described as ' less than a possibility being nothing but a mere hope or anticipation'. This is quoted in In re Parsons. Stookley V. Parsons (1890) 45 Ch. D. 51 There the cases are elaborately considered. Amongst them Lord Eldon's 'clear and emphatic' words in Lord Dursley v. Fitzhardinge Berkeley (1801) 6 Ves. jun. 251 are cited (I omit portions of the quotation): 'The case of Smith v. The Attorney General (in Chancery, 1777) cited in 6 Ves. 26, 15 Yes. 183, 136)', said Lord Eldon, 'went upon this; that the next of kin had no interest whatever in the property. Put the case as high as possible ; that the lunatic is intestate; that he is in the most hopeless state, a moral and a physical impossibility, though the Law would not so regard it, that he should ever recover, even, if he was inarticle mortis, and the bill was filed at that instant, the Plaintiff could not qualify himself as having any interest in the subject of the suit. The case of an heir apparent was very properly put by Lord Chief Justice De Grey in his most luminous judgment. Upon that occasion he said, he never liked Equity so well as when it was like Law. The day before I heard Lord Mansfield say, he never liked Law so well as when it was like Equity; remarkable sayings of those two great men, which made a strong impression on mymemory... If the ancestor was in a fever, or delirium, having made no will, and it was not possible for him to recover, still the Law would look upon him as a mere heir apparent, having nothing but anexpectation,... and as having no interest whatever upon that ground ...; the whole judgment went upon distinguishing between that expectation, which the next of kin have in that case, and any sort of right, which the Law allows to be an interest,' (p. 260).

10. The right in the case before me accrued to the heirs of the original owner when the Government Resolution was promulgated, announcing its decision to restore the property to the original owner, and by necessary implication, to his heirs on his being dead. This created a vested interest in the heirs. The position of Narayan was that of an actual heir on the death of thepropositus. He was no more a mere expectant heir. His position cannot be styled a mere possibility similar to the 'chance' of an 'heir apparent' succeeding to an estate or as a chance of a relation obtaining a legacy on the death of kinsman, which are referred to in the Transfer of Property Act, or as the 'bare expectation', so vividly described by Lord Eldon and Lord Westbury.

11. No one is the heir of a living person. While a person is living, there may only be persons hoping to be his heirs. Those who have hopes or expectations of being the heirs of a living person, may have their hopes or expectations defeated, (1) They may predecease thepropositus. (2) His testamentary dispositions may defeat their hopes or expectations. They may be defeated in other ways. Such persons are (in the lifetime of the propositus) euphemistically styled expectant heirs. The Transfer of Property Act refers depreciatingly to the ' chance ' of their succeeding. That ' chance' is again referred to as a ' mere possibility'. Lords Eldon and Westbury point out in picturesque language the precariousness of such hopes, chances, possibilities, expectations or expectancies. They emphatically repudiate any recognition of such hopes or chances by the law : no interests or rights can be based on them. The case, however, is altogether different when the propositus has died. Then his heirs become certain. On his death his estate vests in his ascertained heirs. The rights of the heirs (after the death of propositus) are such as the law re cognises. If it happens-as has happened in this case-that something accrues to the estate half a century after the death of the propositus, then as soon as the accrual takes place it vests in the heirs. The heirs have long ago passed the stage of expectancy, if they ever were in that stage. The accrual took place on December 20, 1912; and the dealing with the property was on December 18, 1913.

12. The suit seeks specific performance of the contract, dated December 18, 1913, which, in my opinion, was a contract competent to the parties.

13. I accordingly set aside the decree of the lower Courts; the decree will declare that the plaintiff is entitled to specific performance of the contract dated December 18, 1913; that the defendants Nos. 1 to 6 be ordered toexecute the necessary deed, and on the plaintiff paying to the defendants Rs. 1,730, to deliver to the plaintiff possession by partition of two acres and six and a half gunthas out of the lands specified in the plaint.

14. The appellant will have costs throughout.


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