DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

SESSION: 2021-2026

LAW OF PROPERTY

FINAL DRAFT

COMPREHENSIVE ANALYSIS OF SECTION 43 OF THE TRANSFER OF

PROPERTY ACT, 1882

SUBMITTED TO- SUBMITTED BY-

Dr. MANISH SINGH Kritin Bahuguna
ASSOCIATE PROFESSOR ENROLMENT NO.-210101075
(LAW) B.A LL.B. (HONS.)
Dr. Ram Manohar Lohiya National Law University 5th SEMESTER, SECTION-A

1
 TABLE OF CONTENTS

ACKNOWLEDGEMENT ................................................................................................... 3

DECLARATION.................................................................................................................. 3

RESEARCH METHODOLOGY ....................................................................................... 4

INTRODUCTION................................................................................................................ 4

DOCTRINE OF FEEDING THE GRANT BY ESTOPPEL ............................................ 6

ESSENTIALS OF SECTION 43 ......................................................................................... 7

RELATION BETWEEN SECTION 6(A) AND SECTION 43 ....................................... 10

CONCLUSION .................................................................................................................. 11

BIBLIOGRAPHY .............................................................................................................. 12

2
 ACKNOWLEDGEMENT

I have taken a lot of efforts in compiling this project. However, it would not have been possible
without the kind support and help of many individuals and organisations. I would like to extend
my sincere thanks to all of them.

I express my immense gratitude to Dr. Manish Singh for providing me with his exemplary
guidance, support and encouragement throughout the course of this project.

I would like to extend my deepest gratitude to my parents and friends for their continuous
words of encouragement and support which helped me in completing this project.

Finally, This project is a result of my efforts combined with all the means and environment that
has been provided to me by Dr. Ram Manohar Lohiya National Law University, Lucknow and
its authorities and I am thankful to them.

DECLARATION

I hereby declare that the project ‘Comprehensive Analysis of Section 43 of the Transfer of
Property Act, 1882’ submitted by me to Dr. Ram Manohar Lohiya National Law University,
Lucknow, Uttar Pradesh in partial fulfilment requirement for the award of the degree of
B.A.L.L.B(Hons.) is a record of bonafide project work carried out by me under the guidance
of Dr. Manish Singh.

I further declare that the work reported in this project has not been submitted , and will not be
submitted either in part or in full, for the award of any other degree or diploma in this institute
or any another university.

Kritin Bahuguna

ENROLMENT
NO.-210101075
B.A LL.B. (HONS.)
5th SEMESTER, SECTION-A

3
 RESEARCH METHODOLOGY

The research is strictly doctrinal, the sources being exhaustive and limited to the internet,
books, journals and newspaper articles, although reference to all of the aforementioned sources
may not be necessarily made. For the presentation of information in the correct perspective,
due care has been ensured.

INTRODUCTION

“Life, liberty, and property do not exist because men have made laws. On the
contrary, it was the fact that life, liberty, and property existed beforehand that caused
men to make laws in the first place”. ~ Frederic Bastiat

Due to the increasing disputes related to property it becomes important to develop a mechanism
to resolve such dispute. By this objective, to protect the property as well as the interest of the
innocent person, whether the transferor or transferee, in 1882, British government enacted “The
Transfer of Property Act”. The person gets property by possession, prescription, agreement or
by inheritance. In each case when a person gets the property he also gets the bundle of rights
along with that property. These rights include right to possess, use and dispose of the property.
If the person has the right over the property, he can transfer the property to another person. In
this condition the person who gets the property is called Transferee and the person who
transfers his right is called Transferor. But what if the person who does not have the right over
the property transfers such property to transferee? In this condition the transfer will be
considered void. Sometimes situations arise where such an unauthorized person subsequently
get the right over that condition. In this case is there any remedy available to transferee or the
property remains with the transferor himself ? At the time of coming into the agreement he did
not have the ownership of the property making the contract void. Earlier the position was
different but In Holroyd v. Marshall1, Lord Westbury observed:

“It is quite true that a deed which professes to convey property which is not in existence
at the time is as a conveyance void at law, simply because there is nothing to convey.
So, in equity, a contract which engages to transfer property, which is not in existence,

1
10 HLC 191 : 33 LJ Ch 193.

4
 cannot operate as an immediate alienation merely because there is nothing to transfer.
But if a vendor or mortgagor agrees to sell or mortgage property .................... of which
he is not possessed at the time, and he receives the consideration for the contract, and
afterwards becomes possessed of property answering the description in the contract,
there is no doubt that a Court of Equity would compel him to perform the contract, and
that the contract would, in equity, transfer the beneficial interest to the mortgagee or
purchaser immediately on the property being acquired.”

This principle of law is referred to as Feeding The Grant By Estoppels. If a man does not
have the title over the property, grants it by to transferee, and he subsequently acquires an
interest sufficient to complete the transfer then the estate, at the option of transferee, instantly
passes.

The same principle was adopted by Indian Legislation in Section 43 (hereinafter S.43) of
Transfer of Property Act, 1882.2 This section talks about the transfer of property by an
unauthorized person. Where the transferor fraudulently or erroneously represents that he is
authorized to transfer certain immovable property and transfers the same, the provisions of
Section 43 of the Act would apply. The doctrine of ‘feeding the estoppels’, i.e. S.43, is not
applicable where there was no evidence of any fraudulent or erroneous representation by the
vendor, acting on which the vendor had purchased the property.3 The provision of Section 43
of the act would not apply where the transferee has not been misled and he had knowledge that
the transferor had no title which he represented to have.4 The section lays down a rule of
estoppel,5 not the estoppel which is a rule of evidence preventing a party from alleging and
proving the truth of facts but a kind of estoppel which affects legal relations. 6 The rule of
estoppel can be invoked in the interest of justice.7

The core of this section is to promote equity among people and based on the maxim of equity,
i.e. "Equity regards as done that which ought to be done" along with Common Law principle
of Doctrine of Estoppel Deed. The maxim creates the doctrine of anticipation, whereby a
specifically performable agreement to create or transfer a property right will be good in equity,

2
Transfer of Property Act 1882, s43.
3
B.N. Raju v M.K. Mudaliar AIR 1998 Mad 193.
4
Govindraja Padayachi v Vijayakumara Vijaya Oppillade 1998 AIHC 2670 (Mad).
5
Jumma Masjid Mercara v Kodimaniandra Deviah AIR 1962 SC 847.
6
Ramaswamy v Lakshmi AIR 1962 Ker 313.
7
Muthiah v Peter Nadar (1974) 2 Mad LJ 404 (407).

5
even if not finally effective at law. This section is there to promote and establish equity and the
details of the section is discussed in further portion.

DOCTRINE OF FEEDING THE GRANT BY ESTOPPEL

Where a grantor purports to grant an interest in an immovable property, which he does not, at
the time, possess, but subsequently acquires, the benefit of his subsequent acquisition goes, at
the option of the transferee, to the earlier transferee. The principle is based—

1. partly on the common law doctrine of estoppel by deed; and

2. 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.

The essentials for the application of this doctrine are as follows:

1. Transferor is not the owner of property

2. but he fraudulently or erroneously represents himself that he is the owner or has the
authority to transfer and
3. makes the transfer of property to a transferee
4. where transferee purchases it in good faith and for consideration
5. by this act the right of transferees in not impaired because the transfer was in good faith
for consideration without notice of the existence of the said option.
6. In this case the transferee may either rescind the contract or may keep the contract alive.
7. If the transferee keeps the contract alive and in future if the transferor acquires interest
in such property (which did not belong to him at the time of sale) the property will
automatically get transferred in the hands of transferee.

In India, as soon as the property is afterwards acquired, no estate passes 8 but an obligation is
annexed to the property,9 and the transferor becomes a trustee of it for the transferee. 10 This
section lays down the rule that, if a man, who has no title whatever, to the property, or a lesser
title to the property, transfers a larger title to the property, and he subsequently acquires an
interest sufficient to satisfy the transfer, the subsequently acquired estate at the option of
transferee, instantly passes without any further act of the transferor. And the transferee becomes

8
Transfer of Property Act 1882, s54.
9
Transfer of Property Act 1882, s40.
10
Specific Relief Act 1963, s13(a).

6
entitled to the interest acquired by the transferor, directly the property comes into existence or
falls into the hands of the intending transferor.11

Doctrine of feeding the estoppel will arise only when there is fraudulent or erroneous
conveyance, but if the parties knowingly include an extent to which the vendor have no title,
the question of feeding the estoppel does not arise.12

In order to attract the principle of that section, it is necessary to show that there has been an
erroneous or fraudulent representation. If both the parties are aware of the absence of or defect
in the title of the transferor, that will not be a case where there is an erroneous representation.
In such a case there is no scope for applying the rule of estoppel embodied in Section 43 of the
Transfer of Property Act.

This Doctrine was firstly accepted in Indian Jurisprudence in the case of Tilakdhari Lal v.
Khedan Lal,13 it was observed by the Privy Council that:

“If a man has no title whatever to property but grants it by a conveyance which
in form would carry the legal estate, and he subsequently acquires an interest
sufficient to satisfy the grant, the estate instantly passes.”

ESSENTIALS OF SECTION 43

“Where a person fraudulently or erroneously represents that he is authorized to

transfer certain immoveable 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.” 14

PRE CONDITION:

11
Abdul Kabir v Jamila Khatoon AIR 1951 Pat 315 (316).
12
B. Narayanaswamy Raju v M. Krishnamoorthy Mudaliar alias M.K. Murthy AIR 1998 Mad 193.
13
AIR 1921 PC 112.
14
Transfer of Property Act 1882, s43.

7
For the application of the provision of this section fraudulent or erroneous representation by
that person that he is authorized to transfer immovable property is a condition precedent. The
provisions of Section 43 of the Act would not apply where no fraudulent representation was
made to the plaintiff by the defendant.15 Provision of Section 43 would apply where the
transferee act on the representation made by the transferor.
LIMITATIONS:

The rule, enacted in this section, assumes,—

1. that the transfer intended would be otherwise good, except for want of a perfect title in
the transferor;
2. that it is made by the fraudulent or erroneous representation of the transferor;
3. that the transferor is competent to contract; and
4. that the property he proposes to transfer is transferable.

If, therefore, the transferor is incompetent to contract, or the transfer is prohibited by law, the
transfer is not a ‘transfer’ as contemplated by this section.

The section applies only to cases where the invalidity of a transfer is due merely to the
transferor, either—

1. not having a title, or

2. having only a defective title;

In which cases, the subsequent acquisition of a good title enables the transferee to claim the
benefit of that good title, but it can have no application where to the knowledge of the
transferee, the transfer is forbidden by law.16 Nor can it apply to cases where the transferee
fails to obtain a registered deed of transfer,17 The reason is, that as the transfer of the property,
or its transfer except in a certain mode, is absolutely prohibited, any transfer made in
contravention of law, being ab initio illegal, and being null and void, cannot be enforced, even
if the prohibition against it is subsequently removed. The case is otherwise, if the transfer is
not absolutely prohibited, or there is a fraudulent or erroneous representation which misleads
the transferee.

15
M. Rathnam v Susheelamm AIR 2009 Kar 79.
16
Ramasamy v Ramasamy ILR 30 Mad 255.
17
Kurry Veera Reddy v Kurry Bapi Reddi ILR 29 Mad 336 (FB).

8
This section is applicable to a case where 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 such
representation, the transferee takes a transfer for consideration and if the transferor
subsequently acquires the property the transferee becomes entitled to it, if the transfer has not
been cancelled and is subsisting.18

The section is inapplicable, where a person does not profess to transfer property in his personal
capacity. So, where a Hindu mother contracts to sell immovable property belonging to her son,
in her capacity as mother and guardian, this section is inapplicable.

PRINCIPLE:

When a person purports to transfer property to which he has no title and which he is proposing
to acquire on a future date and it is acquired later the purported transfer may operates an
executor contract and when subsequently he acquires it that becomes operative. This is on the
principle that the equity deems as done that which ought to be done. This is a principle which
has been well accepted and has become part of the common law of the land. If the transferor’
professed to sell a transferable interest Section 43 would apply, even though in fact the
transferor may not have had a transferable interest. The sale would fasten on the transferable
interest if it is acquired later on.19

Where a transferor purports to transfer a particular property, and does not have the title under
which he professes to make the transfer, the transferee must, at his option, be satisfied out of
any title which the transferor afterwards acquires in the same property. If a man sells an estate
to which he had no title, and after the sale acquires the title, he must be compelled, at the option
of the purchaser, to convey it to the purchaser. The rule enunciated in the section assumes that
the transferor had no title over the whole or a part of the property he had professed to transfer,
but which he has since acquired and in which case, he is bound to make good his representation
to the transferee.

If a transferor with a defective title purports and intends to transfer property for value, any
interest subsequently acquired by him in that property is available to make the transfer effectual
even though the defect in the title is apparent on the face of the transfer. There is nothing in the
provision of this section or of any law in force in India, which would preclude a Court from

18
E. Adinarayana Patra v Ramahari Patra AIR 1980 Orissa 95 (98).
19
Desh Raj v Lal Sohai Sing AIR 1973 All 292 (293).

9
giving effect to the principle of feeding the grant by estoppel. But a transfer which is void ab
initio cannot be validated by the provisions of this section. If a transferor, therefore, purports
to transfer property, which the law makes inalienable, that transfer cannot be given effect to
with reference to property which the transferor may subsequently acquire.20

RELATION BETWEEN SECTION 6(A) AND SECTION 43

Section 43 embodies a rule of estoppel and enacts that a person who makes a representation
shall not be heard to allege the contrary as against a person who acts on that representation. 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. Where the
transferee knows as a fact that the transferee does not possess the title which he represents he
has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then
have no application, and transfer will fall under Section 6(a). But where the transferee does act
on the representation, there is no reason why he should not have the benefit of the equitable
doctrine embodied in Section 43.

The question may arise, whether this section will help the transferee in securing the title to the
property, notwithstanding the fact that, at the moment of the transfer, the transferor had, in fact,
only an interest of a kind which could not be transferred; e.g., where he had only an expectancy
which could not be transferred under Section 6(a) of the Act. This section was amended by the
Amending Act, 1929, by inserting the words ‘fraudulently or’ before the words ‘erroneously
represents’. The section proceeds on the fundamental assumption that the fraudulent or
erroneous representation induced the transferee to part with the consideration without knowing
the true facts, and, therefore, such a transferee is allowed to claim from the transferor, if he
subsequently acquires any title to the property, such after-acquired interest.
Providing the relation between S. 6(a) and S. 43 of the act, or providing the mechanism for the
operation of both the section without any repugnancy, Allahabad High Court in the case of
Shyam Narain v. Mangal Prasad21 observed as follows:

“Section 6 does not prohibit the transfer of a chance of an heir; nor does it make
it absolutely illegal, so as to vitiate the entire contract. It merely lays downthat
property of any kind may be transferred, but the chance of an heir cannot

20
Mohan Singh v Sewa Ram AIR 1924 Oudh 209 (213, 216).
21
AIR 1935 All 244.

10
 be transferred. This is no more than saying that a transfer of a mere chance of
an heir is void in law and is of no effect. Section 6(a) would, therefore, apply to
cases, where professedly there is a transfer of a mere spes succession is, the
parties knowing that the transferor has no more right than that of a mere
expectant heir. The result, would be the same, where the parties, knowing the
full facts, fraudulently clothed the transaction in the garb of an out and out sale
of the property, and there is no erroneous representation made by the transferor
to the transferee as to his ownership. But where an erroneous representation
was made by the transferor to the transferee that he was a full owner of the
property transferred and was authorised to transfer it and what was purported
to bethe property transferred was not a mere chance of succession but the
property itself, and the transferee acts upon such erroneous representation, then
if the transferor happens later, before the contract of transfer comes to an end,
to acquire an interest in that property... the previous transfer can, at the option
of the transferee, operate on the interest which has been subsequently acquired,
although it did not exist at the time of the transfer.”

This is finally retreated by supreme court in Jumma Masjid Merecara v. Kodimaniandra

Deuiah22, where it was held, that when a person transfers property representing that he has a
present interest therein whereas he has, in fact, a spes succession is the transferee is entitled to
the benefit of this section, if he has taken the transfer on the faith of that representation and for
consideration otherwise S. 6(a) would be applicable.

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 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

22
AIR 1962 SC 847.

11
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. 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. Transfer of Property Act, 1882.

2. Dr. Poonam Pradhan Saxena, Property Law, Lexis Nexis.
3. Mulla, The Transfer of Property Act, Lexis Nexis.
4. SCC Online.
5. Manupatra.

12