SPES SUCCESSIONIS AS AN EXCEPTION TO TRANSFERABILITY

 

SWASIT MAHAPATRO

ABSTRACT

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 paper aims at analyzing the position of the same while looking at a case study to understand why this is an exception to the general rule and how it is different from other cases of a like nature.

1.INTRODUCTION

Except as specified in various clauses of s.6 of the act,property of any kind may be transferred. Therefore,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. Similarly,a gift of spes successionis is invalid and confers no title on the donee.

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) of s.6

POSITION IN ENGLAND

In English law,though ‘expectancy’ is not regarded as property which can be assigned,there is no express prohibition of an assignment of an expectancy for value and such assignment operates as a contract to assign as soon as the expectancy becomes an interest.In England also the expectancy of an heir apparent is not capable of being assigned. In the case of In re Parsons it was observed that:

“It is indisputable law that no one can have any estate or interest at law or in equity , contingent or other ,in the property of a living person to which he hopes to succeed as heir at law or next of kin of such living person. During the lifetime of such person no one can have more than a spes successions,an expectation or hope of succeeding to his property.”

DIFFERENCE BETWEEN INDIAN LAW AND ENGLISH LAW

The Indian law differs from the English law in that under the former even an agreement to assign a Spes Successionis is nullity thus,a contract to assign is as much within the mischief of section 6(a) of the transfer of property act as an actual assignment.

2.MULTIPLE POSITIONS OF SPES SUCCESSIONIS

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. In the case of Kanti Chandra v. Ali Nobi ,a provision in the family arrangement whereby certain Hindu brothers divided the family property belonging to them among themselves and agreed that upon any of them dying without any issue, his share would pass on to the surviving brothers,was merely an arrangement among the expectant heirs to divide a property in a particular way but did not amount to transfer. As it was not a transfer, it would not be hit by s.6(a) nor did it contravene the provisions of Hindu law.

VESTED INTEREST

A vested interest or vested remainder in immoveable property is a present interest in the property which can be sold by private alienation and even be attached in execution of a decree . The interest of remainder man is not a mere chance or possibility but a vested interest. Therefore, it is not property of nature described in cl.(a) of s.6.

CONTINGENT INTEREST

Contingent interest is a property and is transferable. There is nothing in cl.(a) to prohibit the transfer of a contingent interest. In the case of Ma Yait v. Official Assignee , the settlor by a deed of settlement directed the trustees to hold certain properties up to the death of youngest child and thereafter to be divided among the children then living. While the properties were in the hands of the trustees, one of the sons of the settler transferred the interest under the settlement. It is held that it is a transfer of a contingent interest and not hit by s.6(a) and was valid.

TRANSFER OF EXPECTANCY BY CONSENT DECREE OR COMPROMISE

The court does not allow the transfer of a mere right to succession to be effected even by means of a consent decree. In the case of Abdul Kadir v. Taraganar ,the sons and grandsons of T undertook to maintain T on T’s giving up his rights in the family property and T instituted a suit claiming a liquidated sum on account of past and future maintenance, the assignment of the claim before the decree was held to be void being assignment of a mere possibility and the assignee was not allowed to execute the decree passed on compromise.

TRANSFER BY HINDU REVERSIONER

By the Hindu law,the right of a reversionary heir expectant on the death of a Hindu widow is a spes successionis,and it’s transfer is a nullity and has no effect in law. In Amrit Narayan v. Goya Singh ,the Privy Council said,

“A Hindu reversioner has no right or interest in presenti in the property which the female owner holds for her life. Until it vests in him on her death, should he survive her, he has nothing to assign or relinquish or even to transmit to his heirs. His right becomes concrete only on her demise, until then it is mere spes successionis.”

ESTOPPEL OF A REVERSIONER

Although both the transfer and the agreement to transfer a reversionary interest are void,yet a reversioner may be estopped from claiming the reversion by his conduct if he has consented to an alienation by a widow or other limited heir. The position can be further explained by an illustration: A Hindu widow executed a deed of gift of a part of her husband’s property to D.F who was then the nearest reversioner joined in the deed. On the widow’s death F claimed the property pleading that the gift was invalid F having consented to the gift is estopped from disputing its validity.

MOHOMEDAN LAW AND TRANSFER OF SPES SUCCESSIONIS

It has been held that in the case of Mahomedans 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.

CHANCE OF A LEGACY

The chance of a relation or a friend receiving a legacy is a possibility even more remote than the chance of succession of an heir, and is not transferable.

OTHER POSSIBILITIES OF A LIKE NATURE

The words of a ‘like nature’ indicate that the possibility referred to herein must belong to the same category as the chance of an heir-apparent or the chance of a relation obtaining legacy. In this case,the usual illustration of a possibility is the case of a fisherman’s net. There is no certainty that any fish will be caught,and the fisherman has no interest in the fish until they are caught. An agreement for the sale of Otkarnam lands is a possibility and therefore void.

There is a conflict of decisions as to whether a right to receive future offerings at a temple can be assigned. With reference to the right to receive offerings at the sacred shrine of Shri Vaishno Devi ji(Jammu and Kashmir),it has been held that this right is heritable. The High Court observed,”although the right to receive the offerings from the pilgrims resorting to the shrine depends upon the chance that future pilgrims and worshippers will give offerings, the right to receive the offerings made is a valuable, definite and tangible right and is not merely a possibility of the nature referred to in s 6(a) of the transfer of property act.”

 

3. CASE STUDY

Dodda Subbareddi

v.

Sunturu Govindareddi

FACTS

The Defendant is the appellant. The defendant contended that the suit property was gifted to Subbamma, one of the daughters of Venkata Reddy by her mother, Konamma, as per the oral directions of her father, Venkata Reddy. There is a family arrangement under which Subbamma’s

absolute rights in the suit properties were recognized and that, in any even the plaintiff who brought about the attested the Dakhal deed dated 14-10-1906 Ex. B-7 executed by Konamma in

favour of Subbamma was estopped from challenging the validity of the Dakhal deed. The defendant claimed as the donee, under Exhibit B-8 from Bakki Reddy who claimed title from Subbamma under a settlement deed executed by her on 3-4-1930 and makred as Exhibit B-9.

PROCEDURAL FACTS

The lower courts below concurrently found that the defendant did not establish the family arrangement as well as the oral gift set up by them. On the question of estoppel, the District Munsif held in paragraph 22 of his judgment said that it was impossible to hold that the plaintiff

was estopped from questioning Subbamma’s absolute title to the suit land. He also observed that “the defendant’s learned Pleader too has not gone to the length of contending that the bar of estopel can be raised against the plaintiff based on his connection with the original of Ex. B-7 alone.”

Though no specific ground of appeal was raised by the defendant in regard to estoppel in the Memorandum of Appeal, filed before the Subordinate Judge of Tenail, the Subordinate Judge raised the question of estoppel as the 4th point for consideration and disposed it of in paragraph in a single sentence that he was not able to see how plaintiff was estopped on account of his being a party attestor in the gift deed Exhibit B-7.

ISSUES

Whether the right of succession of Subbamma is only „SpesSuccessionis‟.or only a mere

chance of succession, within the meaning of section 6 of the Transfer of Property Act?

 

JUDGEMENT ANALYSIS

It was established beyond doubt that during the lifetime of the widow, the reversioner has no interest in praesenti in the suit property. Her right is only Spes Successionis or a mere chance of succession, within the meaning of section 6 of the Transfer of Property Act. It is not a vested interest, but only an interest expectant on the death of a limit heir. It cannot, therefore, be sold, mortgaged or assigned, nor can it be relinquished.

A presumptive reversioner who gives his consent to a gift made by a widow without receiving any consideration whatsoever is entitled to recover the property when he succeeds to the estate on the death of the widow. The appellant in this case is only a donee from a done from Subbamma who claims title under Ex B. 7, therefore there is no equitable considerations applicable to the facts of the present case.

4.CONCLUSION

Thus accordingly, 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. The truth is that an attempted conveyance of non existent property may, when made for consideration, be valid as a contract and when the object comes into existence equity fastens upon the property and the contract to assign becomes a complete assignment. 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.

Section 6 provides that, in general, every kind of property can be transferred from one person to another. However, following are the exceptions to this general rule, which the researcher has analysed.

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 secession is. 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.

Second, Right of Re-Entry- This is a right which a lesser has against the leasee for breach of an express condition of lease which provides that on its breach the leaser may re-enter the land. The transferor reserves this right to himself after having parted with the possession of the property. This right is for his personal benefit and cannot, therefore, be transferred.

Third, Transfer of Easement- Easement means an interest in land owned by another that entitled his holders to a specific limited use or enjoyment. An easement cannot be transferred without the property which has the benefit of it.

Fourth, Interest Restricted in its Enjoyment-The cases which fall under this head would include the right of “Pujari” in a temple to receive offerings, the right of a “Widow” under Hindu law to residence and maintenance, etc. The rights given in these cases are purely of a personal nature and cannot, therefore, be transferred. These rights are restricted to the person to whom they belong.

Fifth, Right to Future Maintenance- A right to future maintenance in whatsoever manner arising can‟t be transferred. It is solely for the personal benefits of the person to whom it is granted. However, the arrears of the past maintenance can be transferred.

Sixth, Right to Sue- Mere rights to sue can‟t be transferred. However, if it is incidental to transfer of another right, it can be transferred.

Seventh, Public Offices and Salaries, Stipends, Pension, Etc.- Transfer of public offices and salaries, stipends, pension etc., cannot be transferred on the grounds of public policy.

And finally, eighth, Occupancy Rights- Transfer of occupancy rights of a tenant is prohibited on the ground of public policy. This restriction is imposed by law for the purpose of regulating relation between landlords and tenants.

 

REFERENCES

BOOKS

• MULLA,THE TRANSFER OF PROPERTY ACT,10TH EDITION,LEXIS NEXIS BUTTERWORTHS

• GOYLE,A COMMENTARY ON THE TRANSFER OF PROPERTY ACT,2ND EDITION,EASTERN LAW HOUSE

• B.B MITRA,THE TRANSFER OF PROPERTY ACT 1882,18TH EDITION,KAMAL LAW HOUSE

 

Context Rule and Its Development in English Law

English LawIntroduction:

A statute is basically the formal act enacted by the legislature in written form. In lay man’s term, statute can be called as a command of the legislature which is to be obeyed. Statute law helps in distinguishing the laws passed by the parliament from common law and equity. A single enactment of the parliament is known as “act of parliament”. When a statute is enacted, it cannot be explained by the individual opinions of the legislature.”After the enacting process is over, the legislature becomes functus officio, so far as that particular act is concerned, so that it cannot itself interpret it.” Thus the legislature can only make amendments in the act by passing a new statute. So here comes in the concept of “interpretation of statutes” where it is determined what the intention of the legislature was because it is the duty of the judiciary to “act upon the true intentions” of the legislature. Hence, the words of the statutes have to be interpreted in their true sense or legal sense.

Now the problem with any language is that the words do not have any precise or definite meaning. Thus to understand the act we need to know in what sense the words in the act were used. There are various approaches to the interpretation of statutes. The four main rules in the interpretation of statutes are:

  • Mischief  Rule;

In mischief rule, the emphasis is laid on the objective of the act. Here the main objective is to find out what were the circumstances which led to the enactment of the act, what was the condition before the act was enacted and what consequences did the enactment bring in.

  • Literal Rule;

Literal rule states that if the words in an act are precise and unambiguous then they should be used in their natural and ordinary sense. If any doubt arises then the circumstances behind the enactment of the act are taken into consideration. Thus if the words are clear in themselves then they are to be put into effect.

Golden Rule;

In golden rule, the meaning of the words is modified in order to avoid “repugnance, inconsistency or absurdity”.

  • Context Rule;

In context rule, the meaning of a word of an act is understood with reference to the words which are in immediate connection to it.

In this research I emphasize on the fourth rule, i.e., the context rule. In my view context rule is a more accurate way of interpreting a statute. I believe that every rule has some essence of context rule in it. This is so because in each rule we tend to find out the meaning of a statute by learning about the context in which it was written. I have made an attempt to prove my point by looking into three different segments of the legal system, which I have discussed further.

 Research Methodology:

The basis of my research rests on the subject “context rule”. Context Rule is a way through which statutes are interpreted in a legal system. On the bedrock of my past knowledge, I hypothesize that context rule refers to the interpretation of words with reference to the words found in immediate connection to it. I believe it refers to how the statutes are interpreted in context of the facts of the case. On the background of this hypothesis, I begin my research. 

The main intention of this research is to find out how context rule has developed in the English law. It also lays emphasis on its role in different segments of law. In order to find this out, I shall first find out the facts which would prove as a foundation to my research. I shall then arrange the facts through doctrinal survey wherein I prefer to various books from the library belonging to renowned and well recognized authors which served as a primary source in the collection of facts. I shall also take aid from various internet websites in order to get some fundamental knowledge on what “interpretation of statutes” does actually mean which served as a secondary source of collecting facts. After arranging the facts I would view them from an analytical perspective. I would analyse context rule and differentiate it from other laws of interpretation of statutes. I shall then talk about the usage of context rule in different circumstances. I shall also give an example of Princess Sophia Naturalization Act,1705 to look at how interpretation of statutes helps in the court of law. I shall refer to the Harvard Blue Book citation guide for the citations and footnotes.

To begin with, I have first tried to find out what context rule actually is. Then I searched for the various aspects of context rule where I researched about the usage of context rule in various instances. In each topic I have tried to make my stand clear with the help of case studies. In order to make the reader comfortable with the rule, I have divided my research into different chapters, which are as follows:

Context Rule-Closer Perspective;

Here I shall give a better explanation of what context rule actually is. I shall include various rules required. My research will be based on library as well as internet research.

  • Usage of Context Rule;

Under this chapter I shall make an attempt to analyse the employment of context rule under different situations. My research will be based on library research. I made an approach to include this chapter in my research just to make the understanding more clear with the help of examples.

  • Princess Sophia Naturalization Act,1705;

In this chapter I look at how the context rule is applied in the court of law in interpreting a statute. This chapter is based on internet research. The need to include this chapter was to understand how context rule is beneficial in the interpretation of laws.

  • Conclusion;

At the end of my research, I shall conclude here with my hypothesise which shall be based on my findings.

Context Rule-Closer Perspective:

Context rule is expressed in the Latin maxim “noscitur-a-sociis” which Henry Fielding defined as “a word may be known by the company it keeps”. Thus in context rule we understand the meaning of the statutes by taking into mind the words which stand with it. In State of Bombay vs. Hospital Mazdoor Sabha[1], the Supreme Court said: the basic scope and applicability of noscitur-a-sociis rule is that associated words take their meaning from one another under doctrine of noscitur-a-sociis, the philosophy of which is that the meaning of doubtful word may be ascertained by reference to the meaning of words associated with it.[2] 

Now when interpreting a statute, the “intention of the legislature” is taken into consideration. But certain situations might arise which may come within the words of a statute or may not. In such situations, there is a probability that the legislature must have also foreseen it. Thus, the parliament will be equally puzzled with the situation as the judges are. Hence, “intention of the legislature” is a tale of fantasy. So, the courts aren’t actually concerned with the intention of the law makers. According to Lord Simmon,

“In the construction of written documents including statutes, what the court is concerned to ascertain is, not what the promulgators of the instruments meant to say, but the meaning of what they have said.”[3]

The words we use, though they have a central core of meaning that is relatively fixed, have a fringe of uncertainty when applied to the infinitely variable facts of experience.[4] For instance, if the legislature passes a rule that tax shall be levied on vehicles. Now it is not clear as to whether the word “vehicle” includes two-wheelers, three-wheelers, or four-wheelers. Thus if the judge takes an auto rickshaw not as a vehicle then it would be adding a clause to the statute giving it a narrower view. Hence one may say that the judge acts as a legislator in such cases. These decisions may be acceptable both socially as well as legally, but they may not give the exact interpretation to the legislature.

To understand this better, we can take the example of Nisbet vs. Rayne & Burne[5],in this case the word “accident” has been deciphered in the light of the Workmen’s Compensation Act. The court came into a conclusion that the widow of the deceased would get a compensation as the murder occurred in the course of employment.


Usage Of Context Rule:

Now, when we read a statute two kinds of situations arise-one when the words are precise and ambiguous and second when two or more words are connected. In the first case the meaning of the words should be taken as they are, i.e. in their ordinary sense but in the second case the meaning of the words should be determined by the immediate words associated with them. The general word, which follows a particular, must be read in the context the particular word is used in the statute. This further leads to different situations which have been discussed below:

  • Different meaning of words in different contexts:

Words in any language derive their meaning of those which surround them. When we read a sentence we do not find out its meaning by taking the meaning of each individual word into hand. We understand its meaning by associating the meaning of each word with each other. For instance in Bourne vs. Norwich Crematorium ltd[6], the question was whether operating a commercial crematorium was a trade consisting in “the subjection of goods or materials to any process” to which Stamp J held that human corpses are not “materials” though most people would surely hold that they are.

  • Determining the meaning of a neutral word:

Where an enactment includes a word which in itself is neutral, then the context provides its meaning. For instance in Gartforth (Inspector of Taxes) vs. New smith Stainless ltd[7], Walton J said that the word payment “has no one settled meaning but…takes its colour very much from the context in which it is found.” Similarly in Lee-Verhulst(investments) ltd vs Harwood Trust[8], Stamp LJ said “the words ‘occupation’ and ‘occupies’ are not words of art having an ascertained legal meaning applicable, or prima facie applicable wherever you find them in a statement, but take their colour from the context of the statute in which they are found.”

  • Adopting a restricted meaning:

The context may indicate that a restriction is intended of the literal or usual meaning. Taking an example, in LCC vs. Tann[9], it was held that the word “ordinance” must be given a limited meaning because of its association with the word “act”.

  • Determining extent of qualifying terms:

Where a string of words is followed by a general expression which is as much applicable to the first and other words as to the last, that expression is not limited to the last but is applies to all. For instance, in Great Western Rly co vs. Swindon and Cheltenham Rly co[10], in the phrase “horses, oxen, pigs and sheep, from whatever country they may come[11]the italicized words would apply to horses and oxen as much as to sheep.

This in this chapter we can observe the application of context rule. Further on I will be discussing about more specific areas of law wherein I shall include a case study in Princess Sophia Naturalization Act, 1705.

 Princess Sophia Naturalization Act,1705:

When a statute is ambiguous, its meaning should be understood in the light of other statutes, i.e. statutes in pari materia should be construed together. This can be understood with the help of a case study referring to AG vs HRH Prince Ernest Augustus[12]. There was an appeal in the House of Lords regarding the Princess Sophia Naturalization Act,1705. Now, Sophia was not considered to be an Englishwoman as she had not been born in England. This Act helped in naturalizing her and “the issue of her body” as English subjects. Naturalization was restricted to those of the Protestant faith. However, any person born to a descendant of Sophia could also claim to be the “issue of her body”. But the case arose when the British Nationality Act,1948.

The Attorney-General wanted to include the preamble in the enactment but there was strong opposition from the respondent. They claimed that the statute was clear and there was no need of including the preamble which cannot be read.

Lord Viscount Simond in this connection told that:

“I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its wildest sense as including not only other enacting provisions of the same statute, but its preamble, the existing state of law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy.”

Lord Somervell said:

“A question of construction arises when one side submits that a particular provision of an Act covers the facts of the case and the other submits that it does not or it may be agreed it applies, but the difference arises to its application. It is unreal to proceed as if the court looked first at the provision in dispute without knowing whether it was contained in a finance act or a Public Health Act. The title and general scope of the Act constitute the background of the context. When the Court comes to the Act itself, bearing in mind any relevant extraneous matters, there is, in my opinion one compelling rule. The whole, or any part, of the Act may be referred to and relied on.”

Sir John Nicoll opined:

“The key to the opening of every law is the reason and the spirit of the law—it is the animus imponentis, the intention of the law-maker, expressed in the law itself, taken as a whole. Hence to arrive at the true meaning of any particular phrase in statute, that particular phrase is not to be viewed detached from the context—meaning by this as well the title and the preamble as the purview or enacting part of the statute.”

Lord Norman too agreed with this.

Conclusion:

I had started this research with a hypothesis that context rule is the interpretation of the words of a statute in relation to the words which are in connection with it. At the end, I conclude that my hypothesis has somewhat been proved correct. Context rule is the interpretation of words with reference to the words with it. English words are ambiguous and thus they derive their meaning from the words which come along with it. The judge looks at the circumstances and interprets the statutes accordingly.

Bibliography:

  • Books Referred-
    • Justice G.P.Singh, Interpretation of Statutes(12th edition 2010)
    • A.B. Kafaltiya, Interpretation of Statutes
    • VCRAC Crabbe,Understanding Statutes(1994)
    • Francis Bennion, Bennion on Statutory Interpretation(5th edition 2008)
    • Peter Benson Maxwell, Interpretation of Statutes(1883)
    • Glanville Williams,Learning The Law(11th edition 2009)
  • Websites Referred-
  • Acts Referred-
    • British Nationality Act,1948
    • Princess Sophia Naturalization Act,1705

[1] AIR 1960 SC 610: (1960) 2 SCR 866.

[2] A.B.Kafaltiya,interpretation of statutes.

[3] Farrell vs. Alexander [1977] A.C. at 81G.

[4] Learning the law-Glanville Williams.

[5] [1910] 2 K.B, 689.

[6] [1967] 1 WLR 691.

[7] [(1979) 1 WLR 409 at 412.

[8] [1973] QB 204 at 217.

[9] [1954] 1 WLR 371.

[10] 1884-9 AC 787.

[11] Francis Bennion, Bennion on statutory interpretation 1229(5th edition 2008).

[12] (1957) 1 ALL ER 49.