FACULTY OF LAW

UNIVERSITY OF LUCKNOW

“ FEEDING THE GRANT BY THE ESTOPPEL”

Submitted to: Submitted by:

DR. ANJANI KANT HIMANSHU KUMAR KHARWAR
PROFESSOR LLB (HONS) 3rd SEM. 2018.
LUCKNOW UNIVERSITY ROLL NO:-18, SEC:- A
 ACKNOWLEDGEMENT

First and foremost, I would like to thank our subject teacher Dr. Anjani
kant 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

• Feeding the estoppels

• Section 43 incorporates this principle in India

• Estoppel of sec 43

• Estoppel by Deed

• Doctrine of estoppels only partly recognize in India

Ingredients of section 43

• Section 43 and 41 compare

• Conclusion

• Bibliography
 1-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.

 2:-FEEDING THE ESTOPPEL:

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 law rule of estoppels is :

“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 earlier grantee, or as it is usually

expressed, feeds the estoppels.”

3:-SEC. 43 INCORPORATES THIS PRINCIPLE

IN INDIA:

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 bound to do so.

This principle is well established.”

Hardev Singh v. Gurmail singh 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 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 to be the owner of lands in terms of section 41

and 43.

4:-ESTOPPEL OF SEC:- 43

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 regards that as

done which ought to be done.

5:-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 interest sufficient to satisfy the grant, the estate

instantly passes.”
 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 complexities, and it does not apply

in India.

6:-DOCTRINE OF ESTOPPEL ONLY PARTLY

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.

 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.

7:-INGREDIENTS OF SECTION 43:

• First: Fraudulent or Erroneous Representation-

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 by the representation of the transferor.

Whether the representation is fraudulent or erroneous, it 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 43 cannot apply. The representation, though required by section 43 to be

fraudulent or erroneous, need not be intentionally false, “not need be in any

particular form.” 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. In Muthuswami’s case,the 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.

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.

• Second : Subsequent Acquisition –

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. 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. 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

restriction on alienation, or by the discharge of a prior encumbrances.

Third : Transferee’s Option-

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. 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.

Where the transferee obtains a decree on his transfer, it is not open to him to

exercise the option in case of any subsequent acquisition of interest in the

property transferred , for a contractual 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. 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.

Fourth : Bona Fide Purchaser for Value without notice

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 purchaser for value without notice

prevails.

8:-Section 41 and 43 Compared:

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 –

• Good faith, and

• Exercise of a reasonable care on the part of the transferee.

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 power of the transferor to transfer the

property.
 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 nature

of the representation made by him.

 -BIBLIOGRAPGHY-

• Books referred :

1. Dr. G.P. Tripathi , Transfer of Property Act, 19th Edition

2. G.C. Bharuka, The Transfer of Property Act, 10th Edition

. Website referred:

• Indian Kanoon

• SCC Online

• Manupatra