JAMIA MILLIA ISLAMIA UNIVERSITY

PROJECT – PROFILE

“DOCTRINE OF FEEDING
THE GRANT BY THE
ESTOPPEL”

Submitted to- Submitted by-

Dr. Qazi Mohd Usman Azeem Mian
Assistant Professor B.A.LL.B(Regular)
JMI III Semester

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-ACKNOWLEDGEMENT-

First and foremost, I would like to thank our subject teacher Dr. Qazi Mohd Usman Sir, for
the valuable guidance and advice. He inspired us greatly to work on this interesting assignment.

His willingness to motivate us contributed tremendously to our assignment. I also would like to

thank him for showing us some sample assignments on how to go about the research assignment.

It gave me an opportunity to analyze and learn about the operation of various sections of

Transfer of Property Act 1882 relating to the topic . Besides, I would like to thank the Faculty

staff for providing us with a good environment and facilities for completing this assignment. In

addition, I would also like to thank my seniors who provided me with the valuable information

acting as a source of guidance in making the assignment. Finally, an honorable mention goes to

my family and friends for their understandings and supports in completing this assignment.

Without the help of the particulars mentioned above, making of this assignment would not have

been possible.

THANK YOU!

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-SYNOPSIS-

 Introduction

 Transfer by unauthorized person who subsequently

acquires interest in property transferred
 Feeding the estoppels

 Section 43 incorporates this principle in India

 Estoppel of sec 43

 Estoppel by Deed

 Doctrine of estoppels only partly recognize in India

 Equitable doctrine

 Ingredients of section 43

 Section 43 and 6(a)

 Section 43 and 41 compare

 Conclusion

 Bibliograpghy

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-INTRODUCTION-
The principle embodied in Section 43 of the Transfer of Property Act has been variously

described as the Common Law doctrine of 'feeding the grant by estoppel' 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. In order that Section 43 may

apply there must obviously have been a fraudulent or erroneous representation by a person that

he was authorized to transfer immoveable property and he must have professed to transfer such

property, but there is nothing in the section requiring that the transferor should have been aware

of the erroneousness of the representation made by him. The transferor might have honestly

believed in the truth of the representation that he was authorised to transfer the property which he

professed to transfer, but that would not render the Section inapplicable. It will be noted that

even before the introduction of the word 'fraudulently' into the section in 1929, erroneous

representation was construed as including alt representations whether tainted or untainted with

fraud. The amendment has now made it clear that the section will be applicable even it the

transferor is unaware of the erroneous nature of the representation made by him. The matter is

concluded by the following observations of the Supreme Court in the case of Tumma Masjid

Mercara v. Kodimaniandra Deviah1,

"It is immaterial whether the transferor acts bona fide or fraudulently in making the

representation. It is only material to find out whether in fact the transferee has been misled. It is

to be noted that when the decision under consideration was given the relevant words of Section

1
AIR 1962 S C 847

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43 were 'where a person erroneously represents', and now, as amended by Act 20 of 1929

they are 'where a person fraudulently or erroneously represents' and that emphasises that for the

purpose of the section it matters not whether the transferor acted fraudulently or innocently is

making the representation, and that what is material is that he did make a representation and the

transferee has acted on it."

The point next to be considered is whether a transferee is deprived of the benefit of Section 43 if

he is aware of the erroneousness of the representation or could have discovered its erroneousness

by exercising reasonable care or pursuing reasonable inquiry. In connection with the first part of

the question reference must be made to the Full Bench decision of this Court in the case of

Parma Nand v. Champa Lal,2 , although the question has now to be decided in accordance with

what has been laid down by their Lordships of the Supreme Court in the Jumma Masjid case, .

The question referred to the Full Bench in Parma Nand's case, was:

"Does Section 43, T. P. Act, require that the transferee who can take advantage of it should be

one to whom not only a fraudulent or erroneous representation about the transferor's authority to

transfer the property is made but should also be one who did not have knowledge of the true

factual position and had merely acted on the belief of the erroneous or fraudulent representation

made to him by the transferor."

The answer given by Agarwala, J. in which the other Judges constituting the Full Bench

concurred was as follows

"I am clearly of opinion that the correct view is that Section 43, T. P. Act, does not require that

the transferee who can take advantage of it should be one to whom not only a fraudulent or

2
AIR 1956 All 225

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erroneous representation about the transferor's authority to transfer the property is made but

should also be one who did not have knowledge of the true factual position and had merely acted

on the belief of the erroneous or fraudulent representation made to him by the transferor.

If, however, both the transferor and the transferee knew of the true position, and colluded to

enter into a transaction which is invalid in law, the state of knowledge of the transferee becomes

material and Section 43 cannot be availed of by him."

In the Jumma Masjid case, however, the Supreme Court laid down the law as follows :

"Where the transferee knew as a fact that the transferor did not possess the title which he repre-

sents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would

then have no application ....."

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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 transferee in good faith for consideration

without notice of the existence of the said option.

Illustration: A, a Hindu, who has separated from his father B, sells to C three fields,X,Y

and Z , representing that A is authorized to transfer the same of these fields Z does not

belong to A , it having been retained by B on the partition; but on B’s dying A as heir

obtains Z. C, not having rescinded the contract of sale , may require A to deliver Z to him

Transfer by unauthorized person who subsequently acquires interest in that property is bound to

feed the transfer grant by estoppel . He has to pass on whatever he gets. Provided the grantee

demands it .

Provided some other bona fide purchaser for value without notice does not take that interest

acquired subsequently .

Power Points- transfer is

 Based on (a) fraudulent, or (b) erroneous representative

 There is representation

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 As to the authority to transfer , and

 Professes to transfer

 For consideration

 Such transfer shall operate,

 At the option of the transferee, on

 Any interest the transferor acquires subsequent thereto at any time,

 Provided contract of transfer subsists

 Except wherein ,

Bona fide purchaser for value without notice of option gets in.

Amendment – The words “fraudulently or” were inserted by the amending act 20 of 1929.

The effect of the amendment is to make it clear that the erroneous representation may either

innocent or tainted with fraud. The effect would be same .

-FEEDING THE ESTOPPEL-

The basis of the principle embodied in section 43 calling upon the transfer to deliver the

subsequently required property to the transferee, who must have acted upon his false

representation and did harm to himself by paying money for , what he could not get , and

thereby “feeding the estoppels” created against him. If a person , who alienated property to

which he has no present title, may subsequently become entitled to , he must honour his

commitment . Since he cannot derogate from his own grant , his subsequently acquired

interest, feeds the estoppel, raised by the prior grant and perfects the title of the alienee. The

common law rule of estoppels is :

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“Where a grantor has purported to grant an interest in land which he did not, at the time

,posses, but subsequently acquires , the benefit of his subsequent acquisition goes

automatically to the earlier grantee, or as it is usually expressed, feeds the estoppels.”3

SEC. 43 INCORPORATES THIS PRINCIPLE IN INDIA

The court of equity in England, applies a similar but wider principle in that it is not based

upon an estoppel by the recitals of the deed : “The doctrine of the court of equity is that if a

man contracts to convey or to mortgage an estate, which he has not at the time of his contract

a title to, but he afterwards acquires such a title as enables him to perform his contract, he

shall be bound to do so. This principle is well established.”4

Hardev Singh v. Gurmail singh5 is the decision of Supreme Court involving interpretation

of section 43. In this case, defendant transferred some properties to his wife in compromise

of the claim for maintenance. The wife claimed to have become absolute owner under

section 14(1) of the Hindu Succession Act, 1956. She filed suit for declaration. During

pendency, husband sold that property to the respondents. The wife died during pendency of

suit. The purchaser claimed that his seller (husband) had become full owner and must comply

with section 41 and 43. The High Court held section 41 would not apply. The court observe,

it is one thing to say that the respondent was aware of the litigation but it is another thing to

say that he did not purchase the property on representation of Harcharan Singh (husband).

The court said that it is not clear by record whether the respondent was aware that

Harcharasn Singh had no title over the property. The court held that the principle of feeding

3
Rajapakse v. Fernando, AIR 1920 P.C 216
4
Smith v. Osborne, 6 H.L.C. 390.
5
A.I.R. 2007 SC 1058

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the estoppel being inapplicable , this plea could have been taken by Harcharan Singh and not

by the appellant Hardev Singh. The appeal was dismissed. The appellant could not get

declaration prayed for to be the owner of lands in terms of section 41 and 43.

-ESTOPPEL OF SECTION 43-

The rule enunciated by section 43, Transfer of Property Act is based partly on the common

law doctrine of “estoppels by the deed” and partly on the equitable doctrine that a man who

has promised more than, he can perform, must make good his contract when he acquires the

power of performance. “section 43 of the Act gives expression to the rule of estoppel as well

as equity regards that as done which ought to be done.6

-ESTOPPEL BY DEED-

The doctrine of estoppels by deed is “if a man who has no title, whatever to property, grants

it by conveyance, which in form would carry the legal estate, and he subsequently acquires

an interest sufficient to satisfy the grant, the estate instantly passes.7”

The words “the estate instantly passes” are important, for under the common law rule the

estate passed without any further act of the transferor and the estoppel prevailed even against

a purchaser for value. The application of the common law rule is complicated by many

complexities, and it does not apply in India.8

6
Ramdeo and another v. Dy. Director of Consolidation, U.P., A.I.R. 1968 ALL. 262
7
Tilakdhari Lal v. Khedan Lal, 47 I.A. 239 at p. 254. Buckmaster, L.J.
8
Dooli Chand v. Brij Bhookun, (1800) 6 Cal L.R. 528 : Tilakdhari Lal v. Khedon Lal, 47 I.A. 239.

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-DOCTRINE OF ESTOPPEL ONLY PARTLY

RECOGNISED IN INDIA-

The whole of the doctrine, however, is not recognized in section 43 of the Act. The section

follows this doctrine only to the extent that the subsequent estate passes to the transferee

without any further act on the part of the transferor. The illustration given to the section clearly

marks the word ‘deliver’ in this context. The estate feeds the estoppels and, therefore, becomes

an interest. From the moment, therefore, the transfer begins to operate on the interest acquired by

the transferor in the property, it is no longer in the region of estoppels, but becomes an interest

and the commencement of the interest is from the date when the transferor had acquired interest

in the property.9

The section differs from the doctrine in two respects, namely, that as under the doctrine ,

neither does the estate pass instantly nor does the transferee get a title which cannot be defeated

by another transferee for value without notice. The transferee under the section must call upon

the transferor to deliver the property to him, and before he does so , if it is transferred to another

person for value and without notice of the first transfer, he would not be able the title of the

subsequent transferee.

9
Bankair Ammal v.Ram Chandra , I.L.R (1954) Mad. 861.

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-EQUITABLE DOCTRINE-

The section is partly based on the equitable doctrine enunciated in Halroyd v. Marshall,10

Collyer v. Issacs,11 and Taibly v. Official Reciever,12, etc. , which “regard that as done which

ought to be an equitable estate in it passes to the transferee. But a further conveyance is

necessary before the transfer is completed. The distinction between this doctrine and the doctrine

of estoppels by deed is that the former simply contemplates the case of a contract of transfer,

while the latter as also section 43 of the Act contemplate the case of a transfer completed by a

conveyance. Another distinction is , that in the former a further conveyance is necessary while in

the latter, it is not. The equitable doctrine is enacted in section 18(a) of the Specific Relief Act,

1963, whereby a purchaser or a lessee is entitled to compel, the vendor or the lessor, as the case

may be, to make good the contract out of the interest he has acquired subsequently to the sale or

lease. In these cases, as under the equitable doctrine in England, a further conveyance will be

necessary to complete the transaction. Section 43, however, follows the equitable in two

respects, namely-

(I) Until the option is exercised by the transferee, he is treated as a beneficiary of the trust in

respect of the subsequently acquired interest: and

(II) he is liable to be defeated by a transferee for value without notice.

10
(1862) 10 H.L.C. 191.
11
(1881) 19 Ch. D. 342
12
(1888) 13 A.C. 523

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The principle of the section has been held to apply to the Hindu conveyance and to transactions

before 1872 when the Indian Evidence Act enacted the equitable rule of estoppels in section

115.13

But the doctrine of feeding the estoppels or the provision of section 43 does not apply to the

provision and restriction contained in section 5 (3) (as amended in 1978) of Karnataka Village

Office’s Abolition Act, 1961. The provision of the said act provides immediate possession of the

estate but forbids transfer for certain period. This bar on alienation indicates that during the

subsistence of bar title vests in the state. Without title a property cannot be validly transferred. 14

13
Krishna Chandra v. Rasik Lal, (1916) 12 C.W.N. 218
14
M.C. Lakshminarasappa v. Asst. Commissioner. Chikkaballapur, A.I.R. 1993 Kant. 326

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-INGREDIENTS OF SECTION 43-

 First: Fraudulent or Erroneous Representation-

Where the representation by the transferor is fraudulent or erroneous with respect to his authority

to transfer the property, the present section will apply. It is essential that the transferee was

misled by the representation of the transferor. Whether the representation is fraudulent or

erroneous, it must be of such nature that the transferee has believed it and ion good faith acted

upon it.; if the fact of the defective title of the transferor is known to both the parties, there is

collusion and section 43 cannot apply.15 The representation, though required by section 43 to be

fraudulent or erroneous, need not be intentionally false, “not need be in any particular form.” 16 It

may be by word of mouth or by a document. Thus, where a Mohammedan mortgage his wife’s

property purporting to act on a power-of-attorney which was not proved, the share which he

inherited on her death, was held to be liable for the mortgage. 17 In Muthuswami’s case,18the

father in a joint family consisting of himself and his two sons sold family property representating

that it was his self-acquired and one of the sons died pending the vendee’s suit for possession,

the vendee was held entitled to the benefit of his accession to the father’s estate and was awarded

half of the property.

15
E. Patra v. E.R. Patra, 1980 ori. 95
16
Hatti Kudar v. Andar, 28 M.L.J. 44; Jamuna Mayee v. Koimaindra, I.L.R 1953 Mad. 427
17
Aisha Bibi v. Mahfuz- Unnisa, 46 ALL. 310
18
Muthuswami Pillai v. Sandana Velan, 1927 Mad. 649

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The section applies only when a party in possession of special knowledge makes an incorrect

statement, to the other party to the contract whereby the other party is induced to enter into

the contract and the person making the representation gets the benefit of it.19

 Second : Subsequent Acquisition –

The next requirement for section is that the transferor must acquire some interest in the

property that is transferred. In the absence of such acquisition, naturally, the section cannot

be invoked. If there is a subsequent acquisition, it does not matter if it cannot satisfy the

transfer in toto, the reason being that every acquisition of interest in the property transferred

ensures for the benefit of the transferee.20 Accordingly, where the plaintiff who was suing for

pre-emption mortgage the property in suit in order to raise money for the litigation in

anticipation of a decree and obtained a decree and got possession, equity treating that as done

which ought to have been done, gave the mortgage a charge on the property and placed him

in the position of a mortgagee.21 The section will equally apply where the transferor has got

lesser interest than that transferred, and that interest is subsequently enlarged, e.g. by the

removal of a restriction on alienation,22 or by the discharge of a prior encumbrances.23

19
A.I.R 1944 Mad. 530
20
Mohan Singh v. Sewa Ram, 1924 Oudh 209
21
Gayaddin v. Kashi, 29 ALL 163
22
Mokhoda Debi v. Umesh Chandra, 7 C.L.J 381
23
Mangappa v. Krishnayya, 29 Mad. 113

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 Third : Transferee’s Option-

The section only enables a transferee to claim an interest which the transferor acquires

subsequently and does not lay down the proposition that interest shall vest in the transferee

from the date of the execution of the document of transfer in his favour.24 If he fails to claim

it , his right becomes subject to the right of any other transfer in good faith to whom it may

be transferred by the transferor for valuable consideration. Again, in order to exercise the

option, he must see that the transfer subsists and that the unperformed part of it, is not

rescinded by him seeking a remedy in damages against the transferor or his representative.25

Where the transferee obtains a decree on his transfer, it is not open to him to exercise the

option in case of any subsequent acquisition of interest in the property transferred , for a

contractual obligation becomes extinguished by merger when it becomes the subject of

decree. The transferee need not immediately to give notice to the transferor that he proposes

to hold him bound by the agreement.26 The transferor has option to leave the transfer to

operate on merely created interest. Option need not be exercised in specific form. The section

does not contemplate any exercise of option ( such as notice ) by the transferee. All that is

contemplated is indication of its existence by any overt act such as institution of suit by the

transferee.27

24
Narayan v. Laxmikant, 1955 Nag. 204
25
Ganesh Das v. Kamlabai, 1952 Nag. 29; Sheo Ram v. Ganesh Shanker, 1954 ALL. 452
26
Sri Jagannada v. Sri Raja Prasad Rao, 39 Mad 554; Ananda Mohan v. Gour Mohan, 50 Cal. 929
27
A.I.R 1962 Ker. 313

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 Fourth : Bona Fide Purchaser for Value without notice

If demand is late and meanwhile the transferor gives that property to third person who is

bona fide purchaser for value without notice, the right of first transferee ends and that of

bona fide purchaser for value without notice prevails.

Section 43 and 6 (a)

There appears to be some conflict between section 43 and section 6(a) dealing with the non-

transferability of spes sucoessionis and some controversy was raised to this effect. But the

supreme court in Jumma Masjid, Mercara v. Kodimaniandra,28 set at rest the controversy

holding that both the provisions can be given full effect in their respective spheres.

The court held that when a person transfers property representing that he has present

interest therein whereas he has, in fact, only a spes successionis, the transferee is entitled to

the benefit of section 43 if he has taken the transfer on the faith of that representation and for

consideration. There is no conflict in sections 41 and 43 and both can operate simultaneously.

In Jumma Masjid case, an heir apparent sold his would be share In a join property to the

Masjid, claimed the subsequently acquisition under section 43 as the contract was not

revoked. The argument of the transferor was that interest at the date of transfer was one of

spes successionis and void ab initio under section 6(a). it was argued further that a transfer

void under section 6(a) cannot be validated by invoking section 43.

28
A.I.R 1962 S.C. 847

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The Supreme Court held that section 43 would apply and subsequent acquisition shall pass

on to the Masjid. The court held section 6(a) was a rule of substantive law whereas section 43

is a rule of evidence. It is based on estoppel.

Section 41 and 43 Compared :

Both the section 41 and 43 are based on the principle of estoppels where on a representation

made by one party and acted upon by another, the rights of the latter are affected. Sections 41

requires –

(a) Good faith, and

(b) Exercise of a 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.

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-CONCLUSION-

The principle embodied in Section 43 of the Transfer of Property Act has 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. In order that Section 43 may

apply there must obviously have been a fraudulent or erroneous representation by a person that

he was authorised to transfer immoveable property and he must have professed to transfer such

property, but there is nothing in the section requiring that the transferor should have been aware

of the erroneousness of the representation made by him. The transferor might have honestly

believed in the truth of the representation that he was authorised to transfer the property which he

professed to transfer, but that would not render the Section inapplicable. It will be noted that

even before the introduction of the word 'fraudulently' into the section in 1929, erroneous

representation was construed as including alt representations whether tainted or untainted with

fraud. The amendment has now made it clear that the section will be applicable even it the

transferor is unaware of the erroneous nature of the representation made by him.

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-BIBLIOGRAPGHY-

 Books referred :

-Dr. G.P. Tripathi , Transfer of Property Act, 19th Edition

-GC Bharuka, The Transfer of Property Act, 10th Edition

 Website referred :

- Indian Kanoon

- SCC Online

- Manupatra

- Legal Crystal

- Legalservice India

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“THANK

YOU”

DOCTRINE OF FEEDING THE GRANT BY THE ESTOPPLE