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DR. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY LUCKNOW
SESSION 2016-17

Final Draft
Law of Property I

SECTION 43 IS BASED ON DOCTRINE BY DEED AND

EQUITABLE DOCTRINE

SUBMITTED TO: SUBMITTED

BY:
Dr. Radheshyam Prasad Harmandeep Singh

(Asst. Prof.) Roll No. 63

Dr. RMLNLU, Lucknow 5th Semester

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ACKNOWLEDGEMENT

I would hereby extend a bouquet of thanks to my Property Law teacher Dr.

Radheshyam Prasad Lecturer in law who encouraged me to make a project on
such a comprehensive topic. This was really a tedious job but speaking truth, this
truly enlightened my mind and provided me with great knowledge about the
subject.
I would also like to extend my gratitude towards my friends and seniors who
supported me through thick and thin. They were always ready for any kind of help
I needed in the hardest times.

I also wish to acknowledge that this project couldnt be completed without the help
of my university Library Dr. Madhu Limaye library and through universitys
internet.

Thanking all.

Harmandeep Singh

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Table of Contents:

1. INTRODUCTION
2. RESEARCH METHODOLOGY
3. HYPOTHESIS
4. SCOPE OF STUDY
5. FEEDING THE ESTOPPEL
6. ESSENTIALS
7. REPRESENTATION
8. TRANSFER FOR CONSIDERATION
9. TRANSFER FORBIDDEN BY LAW
10. ILLUSTRATION TO SECTION 43
11. DOCTRINE
12. APPLICABILITY OF THE SECTION
13. CASE LAWS
14. CONCLUSION

Introduction

Transfer by unauthorized person who subsequently acquires interest in property transferred.

Where a person fraudulently or 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

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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.

In order that Section 43 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 authorized
to transfer the property which he professed to transfer, but that would not render the Section
inapplicable.

Research Methodology

Research is to know about something of which you have curiosity. There are two types of
research methods - (i) Doctrinal and; (ii) Non- Doctrinal. In this report both methods are used.
The research was conducted under the supervision of faculty of Law Of Property. Some major
libraries for research were:

Library of University Five Year Law College

Library of University of Madhu Limaye Library.

Hypothesis
In this project topic researcher try to find out the rule of feeding and its implication on law of
property act and researcher also study its effect in the india. In this project topic researcher study
the rule of estopples.

Scope of Study

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The scope of the Transfer of property act is , however, limited. It does not apply to all the
transfers of properties which take place in india. Although the act covers a large area of the law
of transfer of immovable property, it does not profess to be a complete code.

Feeding The Estoppel

The principle of the section is based partly on the English doctrine of estoppel by deed
and partly on the equitable doctrine that a man who has promised more than, he can perform
must take good his promise when he acquires the power of performance. The English doctrine of
estoppel by deed as enunciated in Rajapakse v. Femando,1 is as follows:

Where a grantor has purported to grant an interest in land, which he did not at the time
possess but subsequently acquires, the benefit of the subsequent acquisition goes automatically
to the earlier grantee, or as it is usually expressed, feeds the estoppel.

The section follows the English doctrine in that the subsequent estate passes to the
transferee without any further act of the transferor. But it departs from the English doctrine in
two respects. First, the estate does not pass instantly but only at the option of the transferee.
Second, the transferee may be defeated by a purchaser for value without notice.

Essentials:- To attract the application of the section, three conditions are necessary2:

(1) A fraudulent or erroneous representation that the transferor had authority to

transfer the property,
(2) The transfer is for consideration,
(3) The transferor subsequently acquires the interest which he had professed to
transfer.

1AIR 1920 PC 216(A)

2Property Law (Lexis Nexis) : Poonam Pradhan Saxena

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Illustration: If a Hindu dies leaving behind two widows, they succeed as joint tenants with a right
of survivorship. They were entitled to obtain partition of the separate portions of property so that
each may enjoy her equal share of the income accruing there from. Each can deal as she pleases
with her own life interest but she cannot alienate any part of the corpus of the estate by gift or
will so as to prejudice the right of survivorship or a future reversionary. If they act together, they
can burden the reversion with any debts owing to legal necessity but one of them acting without
the authority of the other cannot prejudice the right of survivorship by alienating any part of the
estate. The mere fact of partition between the two while it gives each a right to fruits of separate
estate assigned to her, it does not imply a right to prejudice the claim of the survivorship to enjoy
full fruits of the property during her lifetime.3

The transfer made by one daughter without the consent of the other was only voidable at
the instance of the other co-limited owners or at the instance of the reversionary. In any case
Smt. M. after the death of her two sisters came into exclusive possession of the entire estate left
by Smt. A. widow of L. Therefore the transferees would be entitled to the protection of Section
43 of the Transfer of Property Act which substantially amounts to satisfying the equitable
principle of feeding the grant by estoppel.4

Applicability of Doctrine of feeding grant by estoppels:- There was an auction of plot by

DDA. Auction was set aside by High Court on grounds that plot was situated in green belt and
cannot be treated as developed plot. It was held that the acceptance of bid and deposit of 25%
amount does not constitute transfer of property. Mere fact that disability attached with plot has
ceased to exist on the date of petition is no ground to apply the doctrine. DDA cannot be
compelled to finalise sale and deliver possession to bidder after lapse of 14 years or in alternative
to allot another plot5.

3 http://www.lawyersclubindia.com/articles/Doctrine-Feeding-The-Grant-By-Estoppel-
3131.asp

4 Kanpur and others v.Prem kumar and others A.I.R1985S.C.1102

5 Delhi Development Authority v.Ravindra Mohan A.I.R.1999 S.C.1256

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Representation:-

In order that Section 43 can apply, it is necessary that there should be misrepresentation,
fraudulent or erroneous, about the right to transfer the property. The word represents in the
section clearly shows that the person in whose favour the enquiry is allowed to operate must
have acted on the representation.1 in other words, the transferee must have been misled into the
impression that the transferor had power to transfer. The benefit of this section cannot be claimed
by the transferee if he did not believe in or act upon the representation. There is no estoppel
when truth is known to both parties. Accordingly if he is aware of the defective title he cannot
get the benefit. Thus, where an undivided Hindu father had two sons A and B. A who was entitled
only to one-third of the property, mortgaged one-half of it to C, who knew that A was entitled to
one-third. Subsequently, As father died and A having become to a half share, C sued on the
mortgaged seeking to make As half share liable, it was held that he could enforce the mortgage
only against the one-third. Even in cases where no representation is made, the transferor may on
equitable ground be compelled to perform the contract when he is able to do so on acquisition of
the interest.

Where evidence regarding the representation is vague and the true facts were known to those
who purchased the plots, it cannot operate to create any title. Estoppel is but a rule of evidence
and except in cases like those under Section 43,T.P. Act, when a grant is led by estoppel the rule
does not operate to create interest in property regarding which the representation is made.

Transfer for consideration:-

The doctrine of feeding the estoppel by grant is applicable only to the transfers of properties
for value. This section is not applicable where the transfer is gratuitous, i.e., without
consideration. Thus, where the property has been transferred by way of gift, the provisions of
this section cannot apply because a gift of property in which the donor has no present fixed right
at the date of the transfer, is void. (See Section 124, T.P. Act ).

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Transfer forbidden by law:-

The section will not apply if the transfer is invalid as being forbidden by law or contrary to
public policy. In such a case the principle of this section cannot be invoked to compel a person to
transfer the property. A mortgage made by a disqualified person does not therefore become valid
on that person ceasing to be disqualified. Similarly, the interest of a Hindu reversionary is spes
successionis or a mere chance of succession under Section 6 (a) and this chance of succession is
inalienable. If therefore, the reversionary transfers such interest and afterwards acquires the
property, this section will not operate so as to compel such heir to transfer the property. But a full
bench of the Madras High Court in Jumma Masjid v. Kodimaniandra Deviah,6 has held that even
in case of spes successionis, the transferor is precluded from questioning the validity of the
transfer if he later on acquires interest in the property. It is submitted that a distinction should be
drown between (1) a transfer which is professedly one of a mere right or a mere chance of
succession, and (2) a transfer of a specific property which the transferor erroneously represents
that he is right of the female to be maintained out of the family property and the right of the
reversionary would get extinguished.

Moreover, in such a case, the transferees would not be entitled to get the benefit of Section 43 of
the Transfer of Property Act even when the properties devolved on the step sons of the female,
the transferors, on her death in consequence of section 15 (1) (b) of the Succession Act as she
had no daughter, when the transferees had full knowledge at the time of the transfer that the
transferors had no title to the property. The transferees could not be said to be misled by any
misrepresentation of the tnansferors.

Illustration to section 43:-

In this illustration, when A sold the field Z to C, he had only a spes successionis. But he having
subsequently inherited, it became entitled to it.

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
6 (1953)Mad.427

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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.

Punjab:-

In Punjab, where the transfer of spes successionis is valid, the principles of Section 43
have been applied in several cases. If, therefore, A mortgages certain properties in which he has
only reversionary interest, the mortgaged becomes effective when subsequently A acquires an
absolute interest in the property through succession.

Doctrine - Feeding The Grant By Estoppel Sec. 43 Transfer of Property Act

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
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 un
aware 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 Deviah,7:"It is immaterial whether the transferor acts bona fide or fraudulently

7 AIR 1962 S C 847

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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 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, 8,
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 case9,. The question referred to the
Full Bench in Parma Nand's case,10 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
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

8 AIR 1956 All 225

9 AIR 1982 S C 847

10 AIR 1958 All 225

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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 represents he
has, then he cannot be said to have acted on it when taking a transfer.

Applicability of the section:-

The option exercised by the transferee under Section 43 is not required to be exercised in
express terms or in a particular form. The exercise of option by the transferee can be implied
from the very fact that the plaintiff has been claiming his right over the entire property and that
he was proceedings against not only the transferor but also the so-called subsequent transferees.

Case Laws

1. Rajapakse v. Femando11:

In this case the appellant who was plaintiff in action brought an action of ejectment against the
defendant in respect of certain lands described in a grant by the Crown to one Thomas Carry and
was registered in the land Registry of the District. The Grant is the foundation of the title of the
appellant but it is not necessary to set forth the various steps by which the appellant traces his
title from the said Crown grant as no objection is raised to them.

The court found that the lands in question were covered by the conveyance from Thomas Carry
to the respondent predecessor-in-title. The court see no reason to doubt the correctness of the
conclusion apart from the fact that there are two concurrent findings of fact to this effect in the
judgements in the Courts.12

11 AIR 1920 PC 216(A)

12 http://www.scconline.com/Members/SearchResult2014.aspx

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2. Kanpur and others Vs Prem Kumar and others.13:

If a Hindu dies leaving behind two widows, they succeed as joint tenants with a right of
survivorship. They were entitled to obtain partition of the separate portions of property so that
each may enjoy her equal share of the income accruing there from. Each can deal as she pleases
with her own life interest but she cannot alienate any part of the corpus of the estate by gift or
will so as to prejudice the right of survivorship or a future reversionary. If they act together, they
can burden the reversion with any debts owing to legal necessity but one of them acting without
the authority of the other cannot prejudice the right of survivorship by alienating any part of the
estate. The mere fact of partition between the two while it gives each a right to fruits of separate
estate assigned to her, it does not imply a right to prejudice the claim of the survivorship to enjoy
full fruits of the property during her lifetime.

The transfer made by one daughter without the consent of the other was only voidable at
the instance of the other co-limited owners or at the instance of the reversionary. In any case
Smt. M. after the death of her two sisters came into exclusive possession of the entire estate left
by Smt. A. widow of L. Therefore the transferees would be entitled to the protection of Section
43 of the Transfer of Property Act which substantially amounts to satisfying the equitable
principle of feeding the grant by estoppels.

3.Delhi Development Authority Vs Ravindra mohan.14

Applicability of Doctrine of feeding grant by estoppels:- There was an auction of plot by DDA.
Auction was set aside by High Court on grounds that plot was situated in green belt and cannot
be treated as developed plot. It was held that the acceptance of bid and deposit of 25% amount
does not constitute transfer of property. Mere fact that disability attached with plot has ceased to
exist on the date of petition is no ground to apply the doctrine. DDA cannot be compelled to
finalise sale and deliver possession to bidder after lapse of 14 years or in alternative to allot
another plot.

13 A.I.R1985S.C.1102

14 A.I.R.1999 S.C.1256

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4. Jumma Masjid v. Kodimaniandra Deviah:15

The Madras High Court in this case held that 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 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 ertoneousness by exercising reasonable
care or pursuing reasonable inquiry

Supreme Court laid down the law in this case "Where the transferee knew as a fact that the
transferor did not possess the title which he represents he has, then he cannot be said to have
acted on it when taking a transfer.

5. Parma Nand v. Champa Lal. 16

The question referred to the Full Bench in Parma Nand's case,17 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 :

15 (1953)Mad.427

16 AIR 1956 All 225

17 AIR 1958 All 225

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"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
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."

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

BIBLIOGRAPHY
1. www.manupatra.com

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2. http://www.scconline.com/Members/SearchResult2014.aspx
3. https://indiankanoon.org/doc/1907896/
4. Bare Act: Transfer of Property Act
5. Property Law (Lexis Nexis) : Poonam Pradhan Saxena
6. All India Reporter

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