DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
ACADEMIC SESSION: 2016 -17

PROPERTY LAW I
SIMILARITIES AND DISSIMILARITIES BETWEEN THE
PROVISIONS OF SECTIONS 41 & 43 OF THE TRANSFER OF
PROPERTY ACT, 1882.

Submitted To:

Submitted By:

Dr. Radheyshyam Prasad

Ashutosh Yadav

Assistant Professor

Roll No. 044

Department of Law.

Section A
Semester V of
B.A.LL.B. (Hons)
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ACKNOWLEDGEMENT
At the outset, I would like to express gratitude to my subject teacher Dr. Radhey Shyam Prasad
Sir, as not only he guided us in the choosing our topic or helping us with this project, but he
imparted us with all the necessary and crucial information required to understand the subject of
Code of Criminal Procedure. He with his supreme patience and style of teaching introduced us to
the subject.
I would like to thank Honble Vice Chancellor sir for providing our institute with all the facilities
which are required for the completion of this project.
I would also like to thank our classmates for their support, which helped using this endeavour.

-Ashutosh Yadav

Contents
Introduction......................................................................................................................................4
Section 41 of TPA............................................................................................................................5
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Ostensible Owner:........................................................................................................................5
Consent:.......................................................................................................................................6
Transfer for consideration:...........................................................................................................6
Transferee to take reasonable care:..............................................................................................6
The transferee to act honestly and in good faith:.........................................................................7
Section 43 of TPA............................................................................................................................7
Representation, Fraudulent or Erroneous:...................................................................................8
Transfer must not be otherwise prohibited:..................................................................................8
Roll of consideration:...................................................................................................................9
Subsequent Acquisition of Interest by the transferor:..................................................................9
Comparative study between the two..............................................................................................10
Conclusion:....................................................................................................................................12
Similarities:................................................................................................................................12
Dissimilarities:...........................................................................................................................12
Bibliography..................................................................................................................................13

Introduction

After going through the perusal of Sections 41 and 43 of the Transfer of the Property Act, 1882
we find that there are similarities between the two as both the Sections are based on the principle
of estoppels where on a representation made by one party and acted upon by the another, the

rights of the latter are affected. Section 41 requires- (a) good faith, and (b) exercise of reasonable
care on the part of the transferee.
But under Section 43 mere belief on the part of the transferee and acting upon the representation
is enough. The Section does not cast on the transferee the duty to make inquiry as regards the
power of the transferor to transfer the property.
Resting this project on these premises of the argument, an extensive discussion on the topic
SIMILARITIES

AND DISSIMILARITIES BETWEEN THE PROVISIONS OF

TRANSFER OF PROPERTY ACT,

SECTIONS 41 & 43

OF THE

1882 is as following:

Section 41 of TPA

The Section 41 of TPA, 1882, reads as: Transfer by ostensible owner: Where, with the consent,
express or implied, of the persons interested in immovable property, a person is the ostensible
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owner of such property and transfers the same for consideration, the transfer shall not be
voidable on the ground that the transferor was not authorized to make it:
PROVIDED that the transferee, after taking reasonable care to ascertain that the transferor had
power to make the transfer, has acted in good faith.
The principle underlying this Section seems to be that when two innocent persons are defrauded
or cheated by one, who after transferring the property of one without his consent, to other, is no
longer present, and the two person enter into the litigation with respect to the property
transferred, then out of these two apparently innocent persons, the one who by his conduct or
consent, enable the fraud to take place will suffer.
The key term used in the Section can be explained as:
Ostensible Owner:

Ostensible literally means apparent or seeming. An ostensible owner is a person who

apparently or seemingly appears to be the owner, though in reality he is not. He is a person
having all indicas of ownership having being real ownership.1
His behavior and conduct appears to be that of owner of the property with the consent or
conduct of the real owner.2
Illustration:
A women owning a property and at the same time permitting her husband to deal with it as if
he is the owner would be illustration for ostensible owner.

Consent:

1 Kannashi Vershi v. Ratanshi Nenshi; AIR 1952 Kutch 85

2 Kashmir Sing v. Panchayat Samiti; (2004) 6 SCC 207
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The possession and ostensible ownership must be with the consent of the real owner of the
property. The real owner must be capable of giving consent 3 to the transfer and and should
have given it with freewill.4
Transferor should be shown to have been the ostensible owner with the expressed or implied
consent of the true owner but the transfer itself need not be with the consent of the true
owner.5
However the real owner may be innocent in allowing the world at large to think that someone
else is the owner, but if the transferee has made proper inquiries and has acted in good faith,
his interest is to be protected6.
Transfer for consideration:

The principle of protecting a transferee applies only where the transfer if for consideration. A
gratuitous tranfereevis not protected. Thus the principle does not apply in case of gifts and
other transaction effected without monetary consideration.7
Transferee to take reasonable care:

3 Property Law by Dr Poonam Pradhan Saxena Lexis Nexis 2nd Edition, page 180
4 (Gurcharan Singh v. Punjab State Electric Board; AIR 1989 P&H 127
5 Aria v. Bhagwat; AIR 1957 Ori 1957
6 Baidya Nath v. Alefian; AIR 1923 Cal 240
7 Property Law by Dr Poonam Pradhan Saxena Lexis Nexis 2nd Edition, page 183
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What is absolutely essential to show is to show is that the transferee had taken such
reasonable care8 as an ordinary man f business would take 9. A duty is imposed upon
transferee to make inquiries into the title of the transferor.10
The transferee must show that he had made such enquiries as a reasonable man would have
taken to safeguard his own interests.11
The transferee to act honestly and in good faith:

In order to protect his own interest it is important that the transferee not only act honestly and
in good faith but he must also establish that he inquiries 12 to confirm his faith13. He cannot be
allowed to true facts such as defect in title14 or be guided by misconceptions.15
It is necessary that transaction be a genuine one and not a sham transaction16.

Section 43 of TPA

8 Gurcharan Singh v. Surjit Kaur; AIR 2006 P&H 18

9 Kanhu Lal v. Palu Sahu; (1920) 5 Pat LJ 521
10 Kahtun Fatima v. Sahib Singh AIR 1933 All 917
11 Property Law by Dr Poonam Pradhan Saxena Lexis Nexis 2nd Edition, page 184
12 Khwaja Afjal v Saheb AIR 1936 Nag 214
13 Layak Ram v. Dharmavati, AIR2010 P&H 95
14 Mollaya v. Krishnaswami AIR1925 Mad 25
15 Property Law by Dr Poonam Pradhan Saxena Lexis Nexis 2nd Edition, page 185
16 Quandhara Singh v. UoI, AIR 1984 P&H 51
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At the same time The Section 43 of TPA, 1882, reads as

Transfer by unauthorized person who subsequently acquires interest in property
transferred:
Where a person fraudulently or erroneously represents that he is authorized to transfer certain
immovable property and professes to transfer such property for consideration, such transfer
shall, at the option of the transferee, operate on any interest which the transferor may acquire
in such property at any time during which the contract of transfer subsists.
Nothing in this Section shall impair the right of transferees in good faith for consideration
without notice of the existence of the said option.

The principle underlying this Section is that transfers where the transferor, to begin with, has no
capacity to transfer the property, yet entered into transaction with a misrepresentation with
respect to the title of the property. He makes the other part act on this representation, and then
acquires a good title to the same property in future. In such case s if the contract is subsisting and
the property is available, then it gives the transferee the option to go either go ahead with the
transfer, or rescind the same.17
An imperfect title may be rendered complete by the doctrine of feeding the grant by estoppel
under Section 43 of the Act. By the virtue of this doctrine, where a granter has purported to grant
an interest in land which he did not at that time possess, but subsequently acquired, the benefit of
the subsequent acquisition goes automatically to the grantee. The grantor is stopped from
pleading that his grant was imperfect.18
According to the Supreme Court in Hardev Singh v. Gurmail Singh 19 if the transferee still wants
the transferor to perform his part of the contract, he can exercise his option to validate this
17 Property Law by Dr Poonam Pradhan Saxena Lexis Nexis 2nd Edition, page 187
18 G.C.V. Subbarao, Law of Property, available at:
<http://14.139.60.114:8080/jspui/bitstream/123456789/3383/1/005_1980_Law%20of%20Property.pdf.
19 AIR 2007 SC 1058
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transfer that was imperfect to begin with and the transfer shall become valid on the exercise of
such option by the transferee.
The key concepts related to the Section 43 are as following:

Representation, Fraudulent or Erroneous:

The representation under the Act may be fraudulent or even erroneous. It may involve a case
where the transferor genuinely believed that he has the competency to transfer the property.
Even in such cases if due to his representation, for which he is not maliciously responsible,
the other party has been made to act on it, Section 43 would apply. 20 In absence of
representation this Section does not apply.21
Transfer must not be otherwise prohibited:
For the validation of the validation of the transfer made by an unauthorized person under a
representation, this contract in the first place should not have been against any law in any
form whatsoever, i.e., not only the parties should be competent to contract, but the purpose of
the contract should be lawful,22 and not opposed to public policy. Thus if the transferors
incompetency was owing to his minority23 , or insanity24 , Section 43 would not confer an
option in favor of the transferee to validate the transfer on minors attaining majority or
curing of insanity.

20 Property Law by Dr Poonam Pradhan Saxena Lexis Nexis 2nd Edition, page 189
21 Lado Narain v. Gobardhan AIR 1925 Pat 470
22 Ram BHawan Singh v. Jagdish (1990) 4 SCC 309
23 Ajudhia Prasad v. Chandan Lal AIR 1937 All 610
24 Johri v. Mahila Draupati, AIR 1991 Andh Prad 288
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Roll of consideration:
It is of immense importence for the purpose of applying Section 43 is that the transfers
should be for consideration25. The Section does not apply to gratuitous transfers like gifts
etc26.
Subsequent Acquisition of Interest by the transferor:
The transferee is entitled to the benefit of this doctrine only when the transferor subsequently
acquires an interest in the property that he originally represented as his.27
If the transferor does not acquire further interest in the property transferred or if such further
interest is acquired not by the transferor but by his successor in interest etc this Section wont
apply.28

Contract Subsisting:

An essential condition for application of Section 43 is that for the validation of the transfer at
the option of the transferee the contract must be subsisting. It should not have been rescinded
or otherwise brought to an end by the act of the parties. When the contract is brought to an
end it is not subsisting. The original contract must be subsisting in order for the transferee
to exercise the option.29
25 Deoman v. Atmaram AIR 1948 Nag 122
26 Ganga Baksh v. Madho Singh AIR 1955 All 587
27 Jumma Masjid v. K deviah AIR 1962 SC 847
28 Ram krishan v. Anasuyabai, AIR 1924 Bom 300, Ramdeo v. Deputy Director, AIR 1968 ALL 262
29 Property Law by Dr Poonam Pradhan Saxena Lexis Nexis 2nd Edition, page 195
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The transferee obtains a decree on the contract30 or the property has been sold31 or the charge
has been assigned32 the doctrine would have no application.

Comparative study between the Section 41 and Section 43

The principle embodied in both sections viz. Section 41 and Section 43 of the Transfer of
Property Act both been variously described as the Common Law doctrine of 'feeding the grant by
estoppels' or as the doctrine of Equity that 'equity' treats that as done which ought to be done' or
as a combination of both, but, a statutory shape having, been given to the principle, it is the
section itself which must ultimately determine its scope and the conditions of its application.33
Thus we see that rules contained in both the Section have their origin in estoppels, though
they run somewhat differently in their courses. But the element common to them is the belief
produced in the transferee of his transferors good title, though, in a case falling under Section
41, it is produced by the conduct of the real owner, while in a case falling under Section 43, it is
the result of erroneous representation of the transferors himself.

Possibly a case may fall under both the Sections; but the distinguishing feature between two
Sections is that while under Section 41, the transferees belief in the transferors title is produced
by the indica of ownership being with the latter. Section 43 operates on the mind of the
transferee, not by what he sees but by what transferor says. While under Section 41 mere belief is
30 Jadoo Bans v. Sheojit Singh 10 IC 443
31 Arulayi v. Jagdeesiah AIR 1964 Mad 122
32 Mohan Singh v. Sewa Ram AIR 1924 Oudh 209
33 Doctrine- Feeding the Grant by Estoppel, (September 4, 2010), available at
<http://www.lawyersclubindia.com/articles/Doctrine-Feeding-The-Grant-By-Estoppel3131.asp>
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insufficient, under Section 43 mere belief and acting upon a representation may be sufficient to
pass the subsequently acquired interest.34
To entitle a transferee to the benefit of Section 43a) There must be a fraudulent or erroneous representation by the transferor that he is
authorized to transfer the property which he professes to transfer.
b) The transfer must be for consideration.
It is not essential that the transferee must have acted in ignorance of the true facts and must have
believed in the true representation made by the transferor, as it is in a case under this Section.
Further, an erroneous representation does not cease to be such because the transferee knows the
true facts. Though it may not deceive the transferee yet it is erroneous. A transferee who takes a
transfer of property absolutely and pays full consideration, acts on the representation of the
transferor as to title incorporated in the deed of transfer and is entitle to the benefit of Section 43
even though, to his knowledge the title might be defective. Section 43 does not require that the
transferee should have made any independent enquiry or taken reasonable care to ascertain that
the transferor had power to transfer the property before claiming the benefit of that Section.35
Under both the Sections, to point out another similarity between the two, merely to show that the
deed was forged is no ground for granting protection under the Section as held in case of
Brahmanand Rai v. Dy. Director of Consolidation36.

34 Pandiri v. Karumoory, 8 IC 388

35 South Bihar Sugar Mills v. Maharaja Prasad AIR 1966 Pat 75
36 Brahmanand Rai v. Dy. Director of Consolidation AIR 1987 All 100
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Conclusion:
Similarities:
Thus we see that Section 41 and 43 when compared, both Sections 41 and 43 are based on the
principle of estoppel where on a representation made by one party and acted upon by another, the
rights of the latter are affected.
In both the Sections there is a belief produced in the transferee of his transferors good title, and
subsequently when he acts further on this belief Section 41 and 43 come to his rescue and his
interested is protected. A case may fall under both the Sections; but there are distinguishing
feature in both the Section which are briefly discussed further.

Dissimilarities:
Section 41 requires (a) good faith, and (b) exercise of reasonable care on the part of the
transferee and acting upon the representation is enough. The Section does not cast on the
transferee the duty to make inquiry as regards the power of the transferor to transfer the property.
Considering the scope of Section 43 on its terms, it clearly applies whenever a person transfers
property to which he has no title, on a representation that he has a present and transferable
interest therein, and acting on that representation, the transferee takes a transfer for
consideration. Where as in Section 41 the ostensible owner hold title to the property, he can said
to be a de jure owner of the party, the same is not the case with Section 41.
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The ostensible owner also known as transferor for the purpose of Section 41 is can be said to be
de jure owner, but the position of transferor in Section 41 differs from Section 43 in the sense
that in latter Section when the said transaction is being entered into the transferor holds no good
to the title, he is neither du jure nor de facto owner of the property. But later on when he become
the real owner he has to abide by what he has agreed upon if the requirements of the Section 43
met with properly.

Bibliography
Bare Act:
Universal Law Publishing, Transfer of Property Act, 1882.
Law Reporters:

All India Reporter

Supreme Court Cases
Manupatra

Books:
Dr.PoonamPradhanSaxena, Property Law, (Lexis Nexis, 2nd Edition, 2011)
Sir Dinshaw Fardunji Mulla, The Transfer Of Property Act, (Lexis Nexis Edition, 10th Edition).
1 Sanjiva Row, Transfer of Property Act (Universal Law Publication Co, New Delhi, 7th Edition)

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