INTRODUCTION

The principle expressed in Section 43 of the Transfer of Property Act has been defined in various
ways as the common doctrine of ‘feeding the grant by estoppels or as the ‘doctrine of equity’
which treats what should be done as done or as a combination of both but, having given the
principle a legal form, it is the section itself that ultimately has to decide its reach and the
condition of its application. Clearly, in order for Section 43 to apply, there must have been a false
or erroneous representation by an individual that he was allowed to transfer immovable property
and that he must have professed to transfer such property, but there is nothing in the section that
allows the transferor to be aware of the error of the representation made by him. The transferor
may have honestly believed in the representation’s reality that he was allowed to convey the
property he wished to sell, but that would not make the section inapplicable. It will be
remembered that even before the introduction into the section of the term ‘fraudulently’ in 1929,
misrepresentation was constructed as including alt images, whether corrupted or untouched by
fraud. The amendment has now made it clear that even if the transferor is unaware of the mistake
nature of the representation made by him, the section will be applicable. The matter is concluded
by the following observations of the Supreme Court in the case of Tumma Masjid Mercara v.
Kodimaniandra Deviah1 “Whether the transferor behaves in a bonafide manner or in rendering
the statement fraudulently is immaterial. It’s only information to find out if the transferor was
deliberately fooled. It should be remembered that when the judgement under review was issued
the relevant words of Section 43 “where a person represents erroneously”, and now as amended
by law 20 of 1929, it is “where a person represents fraudulently or erroneously”, and this
emphasizes that it is not necessary for the purpose of the section whether the transferee behaved
fraudulently or innocently.

The next point to be considered is whether a transferee is deprived to the advantage of section 43
if he is aware of the representation’s error or might have discovered his error by taking
reasonable care or by seeking fair enquiry. In connection with the first part of the question,
reference must be made to this Court’s full bench judgement in the case of Parma Nand v.
Champa Lal 2, although the question must now be resolved in accordance with what their
Supreme Court lordship have formed in the case of Jumma Masjid. The question referred to the
1
AIR 1962 SC 847.
2
AIR 1956 All 225.
full bench in Parma Nand’s case was: “Provides section 43 of the Transfer of Property Act,
specifies that the transferor who can take advantage of it should be one to whom not only a false
or incorrect representation of the transferor’s authority to transfer the property is made, but also
one who has no knowledge of the truthful position and has merely acted on the conviction of the
transferor’s mistaken or fraudulent representation.

Nevertheless, in the case of Jumma Masjid, the Supreme Court defined the law as follows:
“Where the transferor knew as a fact that the transferor didn’t have the name he represented, then
he could not be said to have relied on it when making a transfer. Section 43 would then have no
meaning.....”

TRANSFER BY UNAUTHORIZED PERSON WHO SUBSEQUENTLY

ACQUIRES INTEREST IN PROPERTY TRANSFERRED

Where a person represents fraudulently or erroneously that he is entitled to transfer such

immovable property and profess to transfer that property for consideration, that transfer shall, at
the transferor’s discretion, function on any interest that the transferor may obtain in that property
at any period during which the transfer contract subsists. Nothing in this section shall impede in
good faith the right of the transferor to recognize the existence of the said alternative without
warning.

Illustration: - A, a Hindu who has split from his father B, sells three fields to C, X, Y and Z,
reflecting that A is allowed to move the same field Z does not belong to A, it has been retained
by B on the partition, but on B's dying A as heir gets Z. C, not rescinding the sales contract, may
allow A to supply him with Z.

Move to estoppel by an unauthorized person who subsequently acquires interest in that land. He's
got to pass on anything he gets. Provided that the grantor wants it.
Provided some other bonafide purchaser doesn’t take the interest gained afterwards for profit
without warning.

ESSENTIAL OF THIS SECTION

Three requirements are required to attract the application of this section:-

  A fraudulent or erroneous representation that is authorized by the transferor to transfer
the property.

 The transfer is for consideration.

 Subsequently, the transferor acquires the interest he had agreed to transfer.

Amendment: - By the 1929 amending act of 20, the words “fraudulently or” were inserted. The
purpose of the amendment is to make it clear that the misrepresentation is capable of being either
innocent or false. It would have the same impact.

FEEDING THE ESTOPPEL

The basis of this theory expressed in section 43 calling for the transfer to provide subsequently
necessary property to the transferor, who must have acted on his misrepresentation and injured
himself by paying money for what he was unable to receive, and thus “feeding the estoppels”
produced against him. If a person may subsequently become entitled to, who alienated property
to which he has no present title, he must uphold his pledge commitment. Since he cannot
derogate from his own grant, he feeds the estoppels, raised by the previous grants and perfects
the alienee’s title. The common rule of estoppels is: Where a grantor has purported to grant an
interest in land that he did not acquire at the time, but which he acquires subsequently, the value
of his subsequent acquisition automatically goes to the earlier grantor or feeds the estoppels as it
is generally said.3

INCORPORATION OF SECTION 43 IN INDIA

The court of equity in England applies a similar but wider principle in that it is not based on
estoppels by the recital of the deed: “The doctrine of the court of Equity is that if a person
contracts to convey or to mortgage a property to which he does not have a title at the time of his
contract, but then acquires the title to which he is entitled to execute his contract, he is bound to
do. This is well established principle.”4

3
Rajapakse v. Fernando, AIR 1920 P.C 216.
4
Smith v. Osborne, 6 H.L.C. 390.
Hardev Singh v. Gurmail Singh5 is the Supreme Court’s decision to define Section 43. In this
case, in accordance with the maintenance argument, the defendant transferred those assets to his
spouse. Under Section 14(1) of Hindu Succession Act, 1956, the wife claimed to have become
the absolute owner. She filed a claim complaint. Husband sold the property to the respondents
during the pendency. The wife died while the case was pending. The buyer believed his seller
(husband) had become full owner and had to comply with Section 41 and Section 43. Section 41
was not to be enforced by the High Court. The Court observed that one thing is to say that the
respondent was aware of the case, but another thing is to say that he did not buy the property on
husband’s behalf. The court said whether the respondent knew that Harcharan Singh had no title
over the property is not clear by history. The Court held that that Harcharan Singh and not the
appellant Hardev Singh could have taken up the idea of feeding the estoppels. The appeal has
been denied. In terms of section 41 and 43, the appellant was unable to provide a claim
apologizing for being the land owner.

ESTOPPEL OF SECTION 43

The rule set out in section 43 of the Transfer of Property Act is based in part on the common law
principle of "estoppels by the deed" and in part on the equitable doctrine that a person who has
agreed more than he can deliver must make good his contract once he receives the power of
performance. Section 43 of the Act describes both the law of estoppels and the principle of
justice as to what should be done.6

ESTOPPEL BY DEED

The principle of estoppels by deed is "if a person who has no right, whatever to land, grants it by
means of conveyance, which would hold the legal estate in form, and then acquires sufficient int
erest to fulfill the grant, the estate passes immediately.”7

The terms "the estate passes instantly" were relevant because the estate passed without any
further act of the transferor under the common law principle and the estoppel prevailed for value

5
AIR 2007 SC 1058.
6
https://www.academia.edu.
7
http://www.lawyersclubindia.com.
even against the purchaser. Some factors complicate the implementation of the common law
statute, and it does not apply in India.8

INGREDIENTS OF SECTION 43

 Fraudulent or Erroneous Representation

Where the transferor's representation in respect of his authority to convey the property is
dishonest or erroneous, the present paragraph may apply. It is important that the transferor's
representation deceived the transferee. Whether the statement is false or erroneous, it must be of
such a type that the transferor believed it and ion good faith acted upon it; if both parties were
aware of the fact of the transferor's faulty name, conspiracy occurs and section 43 cannot be
applied.9 While section 43 needs the representation to be dishonest or incorrect, it does not need
to be intentionally false, “in any particular form it does not need to be”. In the case of
Muthuswami, the father in a joint family consisting of himself and his two sons sold family
property claiming that it was his self-acquired property and one of the sons died awaiting the
ownership claim of the vendor, the vendor was held entitled to the gain of his accession to the
estate of the father and was awarded half of the land. 10 The section applies only when a party
with special knowledge makes an incorrect statement to the other party to the contract by which
the other party is compelled to enter into the contract and the person making the representation
receives its benefit.11

 Subsequent Acquisition

The next section condition is for the transferor to gain any interest in the transferred assets.
Obviously, the paragraph cannot be applied in the absence of such acquisition. If a subsequent
transaction happens, it does not matter if the transfer cannot be fulfilled in toto, the reason being
that the acquisition of interest in the transferred property guarantees the transferor's gain. 12
The provision shall apply equally where the transferor has less interest than that transferred and

8
https://www.scribd.com/doc/106451636/Feeding-the-Estoppel.
9
E.Patra v. E.R. Patra 1980 All 365.
10
Muthuswami Pillai v. Sandana Velan.
11
AIR 1944 Mad. 530.
12
Azeem Mian, “Doctrine of Feeding The Grant By Estoppels”, pg. 12, (2009).
that interest is subsequently broadened, e.g. by lifting an alienation limitation or by discharging a
prior obligation.

 Transferee’s Option

The section also allows a transferee to claim an interest subsequently gained by the transferee
and does not stipulate that interest in the transferee shall be in his favour from the date of
execution of the transfer contract. When he refuses to assert it, his right is subject to beneficial
consideration to the right of any other transfer in good faith to whom it may be transferred by the
transferor.
Once, in order to exercise the right, he must see that the transfer continues and that the unrealize
part of it is not rescinded by the transferor or his representative requesting a redress in damages.
Where the transferor obtains a decree on his convey, in the case of any subsequent acquisition of
interest in the transferred assets, it is not available to him to exercise the option for a contractual
obligation to be extinguished when it becomes the object of a decree. The transferor does not
need to inform the transferor immediately that he is attempting to keep him bound by the
agreement.13

 Bonafide Purchaser for Value Without Notice

If request is late and the transferor gives the property without warning to a third person who is a
bona fide buyer for value, the right of first convey ends and the right of bona fide buyer for value
without notice prevails.

COMPARISON BETWEEN SECTIONS 43 AND 6(a)

Section 6(a) and section 43 apply to two different topics and no disagreement is required
between them. Section 6(a) deals with certain forms of interest in the above assets and forbids
the transfer of such interests to a simplicitor. Section 43 deals with representations of title made
by a transferor who had no title at the time of transfer and provides that the transfer is to be
added to the name subsequently obtained by the transferor.14 There seems to be some dispute
between section 43 and section 6(a) concerning the non-transferability of spes successionis and
to this effect some confusion has been raised. Yet Jumma Masjid's Supreme Court, Mercara v.
13
https://www.slideshare.net/ashatresa/transfer-of-property-s43.
14
https://www.academia.edu.
Kodimaniandra,15 settled the dispute that both laws in their respective domains could be given
full force. The court held that if a person transfers property representing that he has an interest in
it when, in fact, he has only one spes successionis, the transferor is entitled to the benefit of
section 43 if he has taken the transfer for consideration on the faith of that representation. Within
sections 41 and 43, there is no dispute and both can work at the same time.

COMPARISONS BETWEEN SECTION 41 AND 43

Sections 41 and 43 are both based on the principle of estoppels in which the interests of the latter
are compromised on the basis of a claim created by one party and acted upon by another.

Section 41 requires–(a) good faith, and (b) the transferee to show reasonable care.

But the mere belief on the part of the transferee and acting on the representation is necessary
under section 43. The section does not place the duty of investigation on the transferor as to the
transferor's right to transfer the assets.

CONCLUSION

15
AIR 1962 SC 847.
The principle expressed in Section 43 of the Transfer of Property Act has been defined in various
ways as the doctrine of the Common Law of ' feeding the grant by estoppels ' or as the doctrine
of equity which treats what should be done as done ' or as a combination of both, but given the
principle a legislative nature, it is the section itself that must ultimately determine its scope.
Clearly, in order for Section 43 to apply, there must have been a false or erroneous representation
by an individual licensed to move immovable property and he must have professed to transfer su
ch property, but there is nothing in the section requiring the transferor to be aware of the error of
the representation made by him.

The transferor may have honestly believed in the representation's reality that he was allowed to
convey the property he wished to sell, but that would not make the Section inapplicable. It will
be remembered that even before the introduction into the section of the term' fraudulently' in
1929, misrepresentation was construed as including alt images, whether corrupted or untouched
by fraud. The amendment has now made it clear that even if the transferor is unaware of the
mistaken existence of the representation made by him, the clause will be valid.