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Project - Profile: Doctrine of Feeding The Grant by The Estoppel
Project - Profile: Doctrine of Feeding The Grant by The Estoppel
PROJECT – PROFILE
“DOCTRINE OF FEEDING
THE GRANT BY THE
ESTOPPEL”
-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!
-SYNOPSIS-
Introduction
Estoppel of sec 43
Estoppel by Deed
Equitable doctrine
Ingredients of section 43
Conclusion
Bibliograpghy
-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 43 were 'where a
1
AIR 1962 S C 847
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
"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
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
2
AIR 1956 All 225
one who did not have knowledge of the true factual position and had merely acted on the belief of
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
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
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
Nothing in this section shall impair the right of transferee in good faith for consideration
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
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 .
There is representation
Professes to transfer
For consideration
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
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
“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
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
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 the estoppel being
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
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
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
-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
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
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.
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.
-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
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
10
(1862) 10 H.L.C. 191.
11
(1881) 19 Ch. D. 342
12
(1888) 13 A.C. 523
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
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
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
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
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
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
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
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
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
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
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
28
A.I.R 1962 S.C. 847
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
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 –
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
-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
-BIBLIOGRAPGHY-
Books referred :
Website referred :
- Indian Kanoon
- SCC Online
- Manupatra
- Legal Crystal
- Legalservice India
“THANK
YOU”