The central legal point established in the judgment is that the validity of mortgage deeds is determined by the provisions of the Transfer of Property Act, specifically Section 6(a).

Bardswell, J.

1. The suit under appeal is one for a declaration that two mortgage deeds, executed on the 18th March, 1914 and 17th November, 1920, respectively, in favour of the predecessors of defendants 1 and 2, as well as a decree obtained thereon, are void and inoperative in law to the extent to which these defendants seek to exercise their rights over the suit property. The plaintiff has been granted a decree as prayed for and the defendants are appealing.

2. The suit properties belonged originally to G. Section Venkatakrishnama Chetti who had three daughters. These daughters succeeded to his estate on his death, and the last of them died in October, 1926. On her death B. Venkatakrishnama Chetti, the son of another of the three sisters, succeeded to the estate. The suit mortgages were executed by this B. Venkatakrishnama Chetti when he had only a spes successions. After the death of Narasammal, the last survivor of the three sisters, he sold the suit properties on 6th December, 1926, to Ananda Mohan Chetty by whom they were mortgaged on 21st January, 1927, to the plaintiff. As to the validity of the plaintiffs mortgage deed (Ex. A) there is no question.

3. The learned trial Judge, Sundaram Chetty, J., has held that the mortgages to the 1st and 2nd defendants cannot be deemed to have become valid, even by an application of Section 43 of the Transfer of Property Act to them, as they were made in contravention of Section 6(a) of that Act which runs thus:

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.

4. There can be no doubt but that at the time of the execution of the two mortgage deeds in question, Exs. III and II, their executant B. Venkatakrishnama Chetti had nothing to mortgage except his right as a presumptive reversioner and that he was perfectly aware that such was the position. It was urged by the learned advocate for the appellants that what is recited as being conveyed in each of these two documents is not a spes successionis but a present interest in the property but, as has been remarked by the learned trial Judge, the fact that the documents contain these untrue recitals cannot affect the situation. What has to be looked to is the substance of the transaction and not merely the form or colour of it. The learned trial Judge has in this connection quoted pertinent remarks from Maxwell on the Interpretation of Statutes (6th Edition, pages 207-209) and has also referred to what was said in Sri Jagannada Raju v. Sri Rajah Prasada Rao I.L.R. (1915) 39 Mad. 554 : 28 M.L.J. 650 that

It would be defeating the provisions of the (Transfer of Property) Act to hold that though such hopes or expectations cannot be transferred in present or future, a person may bind himself to bring about the same results by giving to the agreement the form of a promise to transfer not the expectations but the fruits of the expectations, by saying that what he has purported to do may be described in a different language from that which the legislature has chosen to apply to it for the purpose of condemning it. When the legislature refers to the transaction as an attempt to transfer a, chance, it indicates the true aspect in which it requires the transaction to be viewed.

5. It is unnecessary to add anything to what has been said in this connection by the learned trial Judge.

6. The appellants lay emphasis on two main points, that there is in their favour a decision of this Court in Alamanayakunigari Nabi Sab v. Murukuti Papiah (1915) 29 M.L.J. 733 and that the illustration to Section 43 of the Transfer of Property Act also supports them. Sundaram Chetty, J. has found himself unable to follow the decision in Alamanayakunigari Nabi Sab v. Murukuti Papiah (1915) 29 M.L.J. 17 as he finds it opposed to the Full Bench decision in Sannamma v. Radhabhayi I.L.R. (1917) 41 Mad. 418 : 34 M.L.J. 17 as well