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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

ANALYSIS OF THE DOCTRINE OF FEEDING THE GRANT

BY ESTOPPEL

Kumar Kislay, Christ (Deemed To be) University, Delhi NCR

ABSTRACT

The transfer of Property Act,1882 contains specific provisions regarding

what constitutes transfer and the conditions attached to it. According to the
Act, " transfer of the property" means an act by which a person conveys
property to one or more persons, or oneself and one or more other persons.
The act of transfer may be done in present or for future. The person may
include an individual, company or association or body of individuals, and
any kind of property can be transferred.

A transfer of property passes forthwith to the transferee, all the interest which
the transferor is then capable of passing in the properties, unless a different
intention is expressed or implied.

According to Section 43 of the Transfer of Property Act,1882, in case a

person either fraudulently or erroneously represents that he is authorized to
transfer certain immovable property and does some acts to transfer such kind
of property for consideration, then such a transfer will continue to operate in
future. It will operate on any interest which the transferor might acquire in
such property.

This will be at the option of the transferee and can be done during the time
during which the contract of transfer exists. According to this rule, the rights
of bona fide transferee, who has no notice of the earlier transfer or of the
option, are protected. This rule embodies a rule of estoppel i.e., a person who
makes a representation cannot later on go against it.

Each individual, whoever is competent to contract, is competent to transfer

property, which could be transfer in whole or in part. One should be entitled
to the transferable property, or authorized to dispose off transferable property
which is not his own.

The right may be either absolute or conditional, and the property may be
movable or immovable, present or future.

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

Scope

The scope of this paper is to bring out the concept of property in the minds of the reader and
make out the clear-cut image that it will wash out all the darkness of the misconception the
various facts regarding property and section 43 of Transfer of Property Act,1882. We will come
through various precedents which will help us to identify the various decisions in landmark
cases. It will also cover the issue regarding the concepts of Section 6 and 43 of this Act.

Objective

The objective of this paper is that the topic of this research should be engraved in the minds of
the people going through this paper. There is no intention someone's feeling and one's
perspective. After going through this paper, the readers would be able to,

-
* Gain knowledge about section 43
* Comparison between section 43 and section 6(a)
* Provisions of section 43
* Rule of estoppel
* And exceptions.

Introduction

According to ley man Property can be defined as the thing on which a person has full ownership
over and has the full entitlement to enjoy the property. Here we will talk about the concept
about the transfer of property and how transfer takes place and how fraud becomes a part in
the path of transfer of property and what are the remedies for it. For knowing any fraud, we
should know at least who are competent to transfer the property and to whom to transfer. This
concept has been discussed in the section 6 of The Transfer of Property Act, 1882. How section
6 and 43 gives the property rights to the people would be discussed in this paper. So, we let's,
start with the discussion of our topic i.e., section 43. So, it is very common that to understand
any topic we have learn the basics of the concept. Let's know what the word estoppel stands
for. So, estoppel has been word from the term 'estoup' which means shut the mouth and
prevents the party from denying the truth. The Rule of Estoppel signifies if a person promises
something to the other beyond his capability then he is not qualified to make such promise and
if he later acquires the power to fulfil the promise then he cannot make excuse of incompetency.
This competency feeds the estoppel, Estoppel signifies stop, this makes you stick to what you
have said earlier. Taking example just A professes B that he is capable to transfer the property

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but in reality, he is not capable. Believing what A said B pays the consider but this transfer is
inoperative but later he acquires the right to transfer the property by the way of will and he
would be compelled make the transfer and could not take the ground of incompetency at that
time just to safeguard himself from his liabilities.

The Rule of Estoppel has been adopted in Indian Legislations from the common law. The Rule
of Estoppel has been embodied in the section 43 of the "Transfer of Property Act,1882" which
tries to illustrate the concept of What happens when property transferred by the unauthorized
person, but later on he acquires interest in the property transferred.

Section 43- The Protagonist

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

Where a person fraudently or erroneously represents that he is authorized to transfer certain

immovable property, and professes to transfer such property for consideration, such transfer
shall, 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 options.

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 sell of which Z does not belong to A, it been retained by partition but
on the death of B A acquires the Z and now it is his liability to give Z to C as per the contract
made with C. 2

This will be at the option of the transferee and can be done during the time during which the
contract of transfer exists. As per this rule, the rights of bona fide transferee, who has no notice
of the earlier transfer or of the option, are protected. This rule embodies a rule of estoppel i.e.,
a person who makes a promise later cannot go against it.
Every person who is competent to contract is competent to transfer the property in whole or in
part, he should be entitled to the transferrable property or authorized to dispose off the property
which is not owned by him. The right may be either absolute or conditional, and the property

1 Section-43, The Transfer of Property Act,1882, No.4, Acts of Parliament,1882(INDIA).

2 R.K. Sinha, The Transfer of Property Act, (21ed.).

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

may be movable or immovable, present or future. Such a transfer can be made orally unless a
transfer in writing is required by the law. 3

The doctrine of feeding the grant by estoppel compels a man to perform when the performance
becomes possible. It does give the transferor the option of going ahead with the transfer, it then
completely depends upon the transferee if he is still willing to go ahead with the transfer after
the transfer becomes a viable option 4

.
In Ram Bhawan Singh v Jagdish5 ,the court observed that "when a person having a limited
interest in the property transfers a larger interest to the transferee on a representation, and
subsequently acquires the larger interest, the larger interest passes to the transferee at the
latter's option. This doctrine not only applies to sale but also applies to a mortgage, lease,
charge, and exchange. Where no grant or interest in immovable property is involved, the
doctrine would not apply. The doctrine also does not apply in cases where the transferor has
acquired interest not in the property which is the subject matter of the transfer, but in some
other property.

The law incorporated in section 43 is based on the principles of equity. Equity has it that if a
person promises to perform more than he can, he must fulfil his promise when he acquires the
capacity to do so. The law under this section is an example of the maxim of equity that equity
regards as done which is ought to be done. When an transferor agrees to an interest without an
authority, his act is unjust and against the principle of equity. But subsequently, when he
acquires the authority the equity will demand that the transferor should now shift that very
interest to the transferee. Thus, as soon as the unauthorised person gets the authority for
transfer, an equitable estate is created in the favour of transferee. However, a further
conveyance is necessary before the transfer is completed in the favour of transferee. Therefore,
under this section the unauthorized transferor may be compelled to transfer the property which
he had promised without having any authority. 6

3 Section-9, Supra note 1.

4 Alisha Luthra, Doctrine of Feeding Grant by Estoppel, Dec'11,2019.
5 Ram Bhawan Singh v Jagdish, (1994)4, SCC 309(INDIA).
6 Id at 2, ref.pg.167

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Provisions of Section 43

Section 43 enacts that-

" If a person professes to transfer an immovable property by fraudulently or, erroneously

representing that he has authority to do so, and
" The transfer is for consideration, and
" Such transferor acquires the authority subsequently.

Then the transferee may at his option compel the transferor to pass on the property to him:

Provided that the interest of subsequent transferee for value is protected if he had no notice of
existence of such option. 7

Essentials Requirements

In order to take the benefit from section 43 the Transferee must prove the following essential
requirements:

1. There was a fraudulent or erroneous representation by the transferor while

transferring the property;
2. It was to the effect that the transferor is entitled to transfer the immovable property;
3. The transfer of property must be for consideration, if it is made without consideration
then the same will not be considered as valid;
4. The transferor must subsequently acquire some interest in the property which he
professed to transfer;
5. The Transferee has not rescinded the contract if he does so then no claim can be made
by him;
6. The Transferee has acted in good faith for consideration and without notice of the
rights under the prior transfer.

7 Ibid, ref.pg. 168.

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

For Instance:

A person named as X fraudulently represents to Y that he is authorized to transfer the property

'AB' whereas in fact he is not authorized to transfer the same as because the real owner of the
property was his father Z, however, Y in good faith has paid the consideration for such
property. Now X has failed to transfer the property as he had no authority. But later on, he
acquires the interest in property 'AB' under the will of his father Z.

Here, Y does not have rescinded the contract may require X to deliver the property 'AB' to
him. Thus, where a transferor has transferred interest in property which he did not at that time
possess, but subsequently acquire, the benefit of his subsequent acquisition goes automatically
to the earlier transferee.

P and Q entered into a contract of transfer of property but P falsely represented the facts to Q,
after knowing this Q terminated the contract. P, later acquires an interest in the property of the
contract. Now here the doctrine does not apply as the contract no longer subsists between P
&Q. 8

Important Cases

Rajapakse v. Fernando9

In this case the basis of the rule of Estoppel stated by the Privy Council that where a grantor
had purported to grant an interest in land which he did not at time possess but subsequently
obtained, the benefit of his subsequent acquisition goes automatically to the benefit of earlier
grantee. This means once the transferor acquires the interest in the property then the same will
automatically transfer to the transferee.

Jumma Masjid, Mercara vs. Kodimaniandra Deviah 0

In this case, the issue raised before the court that whether the transfer of property for
consideration made by a person who represents that he has a present and transferable interest
therein, while he possesses, in fact, only a spes successionis, falls within the ambit of Section

8 Santoshi karasi, Rule of Estoppel, Indian Legal Solution, Jun 29, 2020.
9 1920 AIR PC 216
10 Jumma Masjid, Mercara vs. Kodinaniandra Deviah 1962 AIR 847, 1962 SCR Supl. (2) 554.

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

43 of the Transfer of Property Act. The Court held that the transferee is entitled to the benefit
of Section 43 if he has taken the transfer in the good faith and for consideration.

This means it is clear with the above that if 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. Section 43 would not be applied.

Muthuswami pillai v. Sandana velan",

In Muthuswami's case, the father in a joint family consisting of himself and his two sons sold
family property representing that it was his self-acquired property 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 his property.

B. Narayan swami Raju v. Krishnamoorthy Mudalier12 ,

It was found that the vendee has purchased the property with full knowledge of their vendors.
There was also no evidence to show that there had been any fraudulent or erroneous
representation acting on which representation the vendee had purchased the property. The
Madras Hogh Court held that here the doctrine of Feeding the grant by estoppel was not
attracted. No estoppel can arise by reason of false statement where the truth is known to both
the parties.

Pandiri Bangaram v. Kurumoory1,

A was entitled to one-third share in a joint family property. He mortgaged half this property to
B. subsequently when A's father died, he became owner of half share in the family property.
B, the Mortgagee, enforced the mortgage half of the family property. It was held that since B
knew the fact at the time of mortgage that A was entitled to only one third share in the property
as he was not misleading therefore B could enforce his mortgage only against one third share
and not against half which A acquired subsequently. Thus, B could not get the benefit of section
43.

" Muthuswami pillai v. Sandana velan, 101 Ind Cas 619, (1927) 53 MU 218
12 B. Narayan swami Raju v. Krishnamoorthy Mudalier, AIR 1998, Mad.193(INDIA).
1 Pandiri Bangaram v. Kurumoory, (1911)34, Mad.
159.

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

Comparison with English Law

In English law, 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 at the option of the transferee. Under English law, the transfer is
automatically validated, without the need for any other action on part of either the transferee
or the transferor. Under Indian law, for its validation, the option must be exercised by the
transferee, for which three conditions must be fulfilled; the contract should be subsisting; the
property should be available and, the transferee should be willing to go ahead with the transfer.
Second, the transferee maybe defeated by a purchase for value without notice. Under English
law, as the original transfer is perfected the moment transferor acquires competency to transfer
the property, and the transfer is validated instantaneously, the scope of property not being
available due to the chances of the entry of a bona fide transferee for consideration does not
arise. 14

Difference between Section 41 and 43

1. In section 41 the transfer of property is complete though it is not by real owner whereas,
in section 43 there is no transfer of property; the unauthorized person merely professes
or contracts to transfer the property. Thus, in section 41 the transfer of property is
already complete but in section 43 the transfer of property has to be completed
subsequently.
2. It was necessary for the applicability of section 41 that the transferee, besides having
good faith must also exercise reasonable care in inquiring the authority of the transferor.
In section 43 the transferee need not exercise reasonable care in inquiring the authority
of transferor; it is sufficient that he was misled upon the representation of the transferor.
3. In section 41 the estoppel works against the real owner i.e., real owner is precluded
from denying the transfer. Whereas, in section 43 the estoppel works against the
unauthorized transferor.15

14 Alisha Luthra, Doctrine of feeding grant by estoppel, Law Times Journal, Dec'11,2019.
15 R.K. Sinha, The Transfer of Property Act, (21ed.).

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

Is Section 6(a) and Section 43 of Transfer of Property Act Contradictory??

Section 6 of the TPA (Transfer of Property Act) talks about what kind of property is
transferable. The legislatures have rather concocted provisions stating what kind of property is
prohibited to transfer. Section 6(a) states that any property that an heir-apparent has just a
chance of acquiring in succession to an estate or chance of a relation obtaining property on the
death of a kinsman or any other such kind of possibilities are not transferable. This rule talks
about Spec Succession i.e., a mere possibility of acquiring property in the future through
succession which is inheritance or will. Transfer of Specs succession is void ab initio.

Whereas, Section 43 tells us what happens when a property is transferred by an unauthorized

person who will subsequently acquire interests in the property transferred. In this section,
firstly, the words 'unauthorized' and 'subsequently' must be analyzed closely. The one who
transferred the property does not have title over the property but he is guaranteed to have a
succession of such property in future. The transferor will subsequently acquire the property.
The representation by the transferor is fraudulent or erroneous. The transferee has to prove that
he was misled by the transferor by fraudulent or erroneous means that he was authorized to
make a transfer. Misrepresentation has to be concerning authority to sell. The transfer has to
be in return of consideration and not a gratuitous one. When the transferor acquires an interest
in the property somehow, the transferee should compel the transferor to pass the title of the
property. Till the acquirement of such property, it just remains a contract of the transfer. The
transferee can either rescind the contract or ask for damages or compensation or can avail the
benefit of this Section. This section also states that the rights of the transferee in good faith
with consideration will not be impaired even if he does not have notice of the said option. If
we set a comparison between the said sections, Section 43 sets a rule of estoppel whereas 6(a)
is a rule of substantive law. There is no misrepresentation in case of spec succession. Both the
transferor and transferee have to know this fact. Section 6(a) applies to all kinds of transfers
but Section 43 only encircles transfers with consideration. The rule of estoppels is only
applicable to immovable property whereas spec succession applies to both immovable and
movable property. The transfer of property under 6(a) is void ab initio but under Section 43, it
is voidable at the option of the transferee.

Thus, it is evident that the two sections are not contradictory. Section 43 is a remedy to
transferees upon being misrepresented. Such provision has been framed to protect the

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Indian Journal of Law and Legal Research Volume IV Issue II ISSN: 2582-8878

transferees from misrepresentations whereas, transfer based on expectancy of succession is

void from the very beginning. 16

Exceptions to the doctrine of 'feeding the grant by estoppel'-

When the transferee is aware of the true transaction

The benefit of this section cannot be claimed by the transferee if he did not believe in or act
upon the representation. There doctrine of estoppel does not operate when both the parties are
aware of the true transaction. Accordingly, if he is aware of the defect in title of the transferor,
he cannot get the benefit of Sec. 43. Thus, when an undivided Hindu father had two sons A and
B. A who was entitled only to 1/3 of property, mortgaged ½ of property to C, who knew that
A was entitled to 1/3.Later, A's father died and A having become entitled to a half share, C
sued on the mortgage seeking to make A's half share liable, it was held that C could avail only
1/3 share.

When the transfer is forbidden by law

The provisions of sec. 43 does not apply if the transfer is invalid as being forbidden by law or
contrary to public policy. Section 43 does not operate on illegal transactions. Transfer by a
minor or lunatic also do not qualify for the application of sec. 43.

When the second transferee acquires rights

The second paragraph of section 43 protects the rights of the second transferee in good faith
and for consideration who has no notice of the option in favour of the first transferee. Thus, the
only person who can defeat the right of an original transferee is a subsequent transferee.
Usually, the deed of transfer is registered, which operates as a notice of the existence of such
contract to the entire world. If, however, the deed is not registered, the original transferee is in
a vulnerable position.1 7

16Antra Biswas, Are Section 6(a) of Transfer of Property Act,1882 Contradictory? lawsisto, Jun'11,2020,
https://lawsisto.comlegalnewsread/NTY 1Mw==/Are-Section-6a-and-Section-43-of-The-Transfer-of-Property-
Act-1882-contradictory.
" Supra note 15.

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Analysis

From the above matter we can analyse that section 43 really plays a role of protagonist as it
prevents us from any fraud or misrepresentation. The concept goes by the term estoppel which
stops a person from taking any misleading steps towards the transfer of the property. It insists
a person to be an individual that is the symbol of his words in a positive sense i.e., a person
who stands for his words and his hands do not shake while taking the job into hand for the
purpose of completion of contract. So, this act work as a helping hand for those who are the
victims of fraudulent transfer of the property.

Conclusion

The Rule of Estoppel gives what precisely happens when an exchange is finished by an
unapproved individual who later gets the power to move something very similar, this teaching
doesn't make a difference in such conditions, where the transferee has repealed the agreement
or he is notable with the realities that the exchange is fake. This standard not just ensures the
privilege of the primary transferee yet in addition the privilege of the second transferee on
fulfilling the condition to act in a decent confidence as the transferee has the option to conjure
segment 43 of Transfer of property act on the off chance that if the transferee is distorted by
the transferor.

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