1 The essential ingredients of section 43 are as follows:

(i) The transferor makes a representation to the effect that he is competent to

transfer a particular piece of immovable property;

(ii) This representation may be erroneous or fraudulent;

(iii) This representation is not true;

(iv) The transferee believes or is made to believe that the representation is correct

and the transferor is competent to transfer the property, i.e., he does not know

the defect in title or lack of capacity on part of the transferor;

(v) The transferor professes to transfer the property for a consideration;

(vi) The transferee acts on the representation and enters into the contract;

(vii) The transferor subsequently acquires competency to transfer the same

property;

(viii) The contract is subsisting;

(ix) The property is still with the transferor, i.e., he has not transferred it to a bona

fide purchaser who takes it without actual or constructive notice of this earlier

contract between the transferor and the transferee;

(x) The transferee exercises the option to signify his intention to go ahead with the

contract;

The transfer shall become valid and enforceable in a court of law

This rule of estoppel is based on two common law doctrines—the doctrine of estoppel

and the equitable doctrine. Following the doctrine of estoppel by deed, it prevents a

person who promises more than what he can perform from claiming his incompetency

as a legitimate excuse to avoid his liabilities in a situation when he acquires

competency to fulfill his promise, and following the equitable doctrine, such a person is
compelled to make good his promise when he becomes competent to perform it. In

fact, without any further act of his, the transfer becomes good the moment he acquires

competency to do so. This competency feeds the estoppel immediately. Under

common law, if a person misrepresents to another that he is competent to convey a

good title, professes to do so for consideration, and making the other act on this

representation, enters into a contract with him, on the transferor subsequently

acquiring a good title to the property, the property instantaneously passes to the

transferee. Common law, therefore, does not require the transferee to exercise the

option; nor does it give any opportunity to the transferor to later mislead the transferee

and introduce in the scenario, a bona fide purchaser for consideration, so as to defeat

the rights of the original transferee. The only condition is that the contract should have

been subsisting

Indian law on the other hand differs from the common law in several aspects.

In India, the doctrine of feeding the grant by estoppel applies only where the transferee

has been misled by a representation from the transferor and not otherwise. Thus, the

sine qua non for application of section 43 is that at the initial stage the person should

have fraudulently or erroneously represented that he is authorized to transfer certain

immovable property or professes to transfer such property for consideration. Only if

this pre-condition is satisfied, the question of option of the transferee arises in case the

transferor acquires any interest in the property at any time during which the contract of

transfer subsists.

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.
If the transferor does not acquire a further interest in the property transferred,

or if such further interest is acquired not by the transferor but by his successor in

interest, or where the heirs of the transferor acquire property in their own right and

not as heirs of the transferor,this section has no application.

For instance, A transferred property belonging to his wife, representing to X that he is

competent to transfer the same. His wife made a Will of her property in favour of her

son S. A died and then his wife died, and the son took the property under the Will. The

transfer would not be valid at the option of X, as the heir had acquired the property in

his own right. Where a son fraudulently transferred property owned by his mother but

never acquired any interest in it during his life time either by inheritance, succession or

otherwise, the doctrine of feeding the grant by estoppel would not be applicable as

against his heirs who succeeded stridhan properties of their grandmother. The

petitioner in such cases cannot claim any benefit of subsequent acquisition

2 A forfeiture under section 111, clause (g), is waived by acceptance of rent which has
become due since the forfeiture, or by distress for such rent, or by any other act on the
part of the lessor showing an intention to treat the lease as subsisting.

Acceptance of rent due after a breach constitutes a waiver even if accepted 'under protest'
or accepted as compensation for use and occupation ; or if it is credited to a suspense
account; but receipt of rent due before the breach does not operate as a waiver, After a
breach if the notice to quit is given at a future day it amounts to a waiver, because the
giving of the notice recognises the continuance of the tenancy up

to that day. Where the lessor, by his conduct, shows that he intends to treat the lease as
subsisting, it will amount to a waiver such as filing a suit for rent, or making an
alternative prayer inconsistent with the determination of the lease but where the lessor
describes the lessee as a 'tenure', or fails to communicate the waiver to the tenant, it
would not amount to a waiver. The lessor must be aware that the forfeiture has been
 incurred. Where rent is accepted after the institution of a suit to eject the Lessee on the
ground of forfeiture, such acceptance is not a waiver. Acceptance of rent after a suit for
eviction or a prayer for rent or mesne profits in a suit for ejectment on the ground of
forfeiture will not necessarily operate as a waiver. Receipt of rent accruing subsequent to
suit would amount to a waiver. Once he has made the election either by express words or
unequivocal act, the election is irrevocable. Waiver of past breaches does not preclude the
lessor from enforcing forfeiture when the same or another condition is subsequently
broken. The mere fact that the lessor does not take action for getting an unauthorised
construction made by the lessee removed does not stop the lessor from suing for
ejectment.

Even if the lease contains a clause to the contrary, a notice in writing manifesting a clear
intention, delivered or served by registered post is an essential condition of forfeiture taking
effect in law. A breach of a condition makes the lease voidable and the lessor, by giving
notice, exercises his option to determine the lease. If the lessors are tenants in common, the
notice has to be by or on behalf of all. Failure to give the notice will not terminate the lease.
No separate notice is necessary if a notice under section 111(h) has already been given.

A lease of immovable property is determined on the expiration of a notice to determine

the lease, or to quit, or of intention to quit, the property leased, duly given by one party to
the other.

No notice is necessary to determine a tenancy for a fixed term,i.e., that determines by

efflux of time or where the tenancy is at sufferance. A tenancy

at will is determinable at the will of either party, by the tenant giving up possession, orby
a demand for possession by the landlord, or by the death of either party. A simple tenancy
can therefore be terminated by service of notice under section 106 of the Transfer of
Property Act, 1882 and once a valid notice is served, the tenant becomes a trespasser. A
notice under the Act is valid if it calls upon the tenant to hand over vacant, peaceful and
khas possession of the premises. A suit filed by the landlord without issuance of notice is
not maintainable.
 [s 112] Waiver of forfeiture.—A forfeiture under s. 111, clause (g) is waived by
acceptance of rent which has become due since the forfeiture, or by distress for such rent,
or by any other act on the part of the lessor showing an intention to treat the lease as
subsisting:

Provided that the lessor is aware that the forfeiture has been incurred:

Provided also that, where rent is accepted after the institution of a suit to eject the lessee
on the ground of forfeiture, such acceptance is not a waiver.

[s 113] Waiver of notice to quit.—A notice given under section 111, clause (h), is waived,
with the express or implied consent of the person to whom it is given, by any act on the
part of the person giving it showing an intention to treat the lease as subsisting.

A notice to quit given under section 111, clause (h), can be waived, with the express or
implied consent of the person to whom it is given, by any act on the part of the person
giving it showing an intention to treat the lease as subsisting.

Waiver is a contractual agreement not to assert a right. On the expiry of the first notice to
quit, a second notice, if given, should show that the lessee has remained in the property
rightfully. A second notice amounts to a waiver of the first notice to quit, provided that there
has been express or implied consent of the lessee to such waiver. Such consent can be
implied from the payment of rent in respect of the period after the lease would have expired
under the first notice. But the terms of the second notice may show that this was not the
intention of the lessor, e.g., if the notice is merely a demand for possession. The very fact that
the landlord gives a second notice does not necessarily imply waiver on his part of the first
notice, as it might be possible that despite the second notice, there was no intention to waive
the notice to quit. Waiver of notice is not a pure question of law as waiver is a question of
fact and must be properly pleaded and proved. No plea of waiver can be allowed to be raised
unless it is pleaded and factual foundation for it is laid in the pleadings and in the absence of
appropriate pleading, there can be no distinct issue. In order to constitute a waiver there must
be an intention not only on the part of the lessor, but also the lessee to treat the lease as
subsisting but that act must be an act on the part of the landlord or somebody acting on his
behalf. So, in the case of a lease by joint lessors, an act of one cannot operate as a waiver as
against the other.
A monthly tenancy can validly be terminated by giving a 15 days' notice. A tenancy, except
where it is at will, may be determined only on the expiry of the period of notice of a specified
duration under the contract custom or statute governing the premise in question. The
provision as to notice to quit applies to cases where the parties are not regulated by their own
contract. Both the period of the lease and the length of notice may be determined by the
contract. If the contract provides for a different period, the requirement of 15 days' notice
does not apply. Notice is not necessary where the tenancy comes to an end by efflux of time
or when tenant holds under a rent note or where the relationship of landlord and tenant
between the parties has been created not by a lease, but by a decision of a court. Filing of the
eviction suit under the general law in itself is a notice to quit on the tenant.

A notice is necessary in case of a tenancy at will or a lease which is determined by forfeiture,

or when it is a periodic tenancy from year to year or from month to month.

In case of joint tenancy, notice to one of the joint tenants is sufficient notice as against the
other joint tenants and, it is not necessary to give any separate notice to each tenant. The
notice to quit must be addressed to all. If a tenant evicted without notice to quit sues for
possession claiming as full owner and that claim fails, he cannot turn round and claim to be
restored to possession for want of notice.

A notice must be in writing, signed by or on behalf of the person giving it. The notice to quit
must be addressed to all. If a tenant evicted without notice to quit sues for possession
claiming as full owner and that claim fails, he cannot turn round and claim to be restored to
possession for want of notice.