DOCTRINE OF FEEDING THE GRANT BY ESTOPPEL

(Assignment towards the completion of Project Assignment in the Subject of Law of

Property, Trust and Equity)

Winter Semester

January-May, 2o2o

Submitted by: d Submitted to:

Shivankar Sukul & Jatin Soni Mr. Aniruddh Panicker

Roll No: 1638 and Assistant Professor

UG Semester IV Law of Property, Trust and Equity

1
 TABLE OF CONTENTS

List of Cases..............................................................................................................................ii

Chapter 1 - Introduction.........................................................................................................1

Overview................................................................................................................................1

Literature Review...................................................................................................................2

Research Objective.................................................................................................................3

Research Questions................................................................................................................3

Research Methodology...........................................................................................................3

Chapterization........................................................................................................................3

Chapter 2 – Concept of Feeding the Grant By Estoppel......................................................5

Definition of Representation..................................................................................................5

‘Fraudulent or erroneously represents’..................................................................................6

For Consideration...................................................................................................................7

Notice.....................................................................................................................................8

Chapter 3 – Legal Conflicts And Comparisons...................................................................10

Section 41 and Section 43 of Transfer of Property Act distinguished.................................10

Rule of Estoppel in sec 115, Evidence Act and sec 43 of Transfer of Property Act...........10

Section 18 (a), Specific Relief Act, 1877 [Sec 13 of Specific Relief Act, 1963] and Sec 43
of Transfer of Property Act..................................................................................................11

Idiosyncrasy between Section 43 and Section 6(a) of the Transfer of Property Act...........12

Chapter 4 – Application of Section 43..................................................................................13

Chapter 5 – Conclusion.........................................................................................................16

Bibliography...........................................................................................................................18

2
3
 LIST OF CASES

 Jumma Masjid v. Kodimaniandra Deviah 1962 Supp (1) SCR 554

 Parma Nand v. Champa Lal AIR 1956 All 225

 Bhanwari Lal v. Sukhdarshan Dayal (1973) 1 SCC 294

 Hardev Singh v. Gurmail Singh (1973) 1 SCC 294

 Ni. Pra Channabasava D.S Mathadhipatigalu Kannada Mutt v. C.P Kaveeramma

(2o99) 11 SCC 28

 Rajapakshi v. Fermando (192o)AC 892

 Ram Bhawan Singh v. Jagdish (199o) 4 SCC 3o9

 Ganesh Das v. Kamla Bai AIR 1952 Nag 29 (3o)

 Pickard v Sears (1837) 6 A&E 469

 Sarat Chunder v Gopal Chunder (1893) ILR 2o Cal 296, 19 IA 2o3 (PC)

 Jaggan Nath v Dibbo (19o8) ILR 31 All 53

 Hattikdur v Andar (1915) 28 Mad LJ 44, 27 IC 785

 Jamuna Mayee v Koimaindra AIR 1953 Mad 427

 Saradamoyi v Atul Chandra 68 IC 2o3

 Syed Nurul Hossein v Sheosahai (1893) ILR 2o Cal 1

 Aisha Bibi v Mahfuz-un-nissa (1924) ILR 46 All 31o

 Mokhoda Debi v Umesh Chandra (19o7) 7 Cal LJ 381

 Saradamoyi v Atul Chandra 68 IC 2o3

 Kamla Prasad v Nathuni 66 IC 149

 Muthuswamy Pillai v Sandana Velan (1927) 53 Mad LJ 218

 Sundar Lal v Ghissa (1929) 27 All LJ 1o87

4
 Velluswamy Thevar v Ganesa Thevar (1976) 2 Mad LJ 115

 Jaggan Nath v Dibbo (19o8) ILR 31 All 53

 Ganga Baksh v Madho Singh (1955) ILR 1All 587

 Arulayi Nadachi v Jagadeesiah Nadar AIR 1964 Mad 122

 Jote Singh v Ram Das Mahto AIR 1996 SC 2773

 Sundariah v Ramasastry (1955) ILR Mys 1

 Silla Chandra Sekharam v Lalita Shahuani AIR 1959 Orissa 169

 Jumma Masjid v. Kodimaniandra Deviah 1962 Supp (1) SCR 554

 Alamanaya Kunigari Nabi Sab v Murukuti Papah (1915) 29 Mad LJ 733

 Jote Singh v Ram Das Mahto AIR 1996 SC 2773

 Arulayi Nadachi v Jagadeesiah Nadar AIR 1964 Mad 122

 Kartar Singh v Harbans Kaur (1994) 4 SCC 73o (DB)

 Radheylal v Mahesh Prasad 7 All. 864

 Ganesh Patra v Banabihari Patna AIR 2oo4 Ori 23

 Narayan Chandra Saha v Dipali Mukherji AIR 2oo2 Cal 229

 Sheo Ram v Gauri Shankar AIR 1954 All. 452

5
 CHAPTER 1 - INTRODUCTION

Overview

Doctrine of feeding the grant by estoppels is a common law doctrine whose principle

principally encapsulated in Section 43 of the Transfer of Property Act, 1882. Section 43 of

the act says:

43. Transfer by unauthorised person who subsequently acquires interest in property

transferred.—Where a person 1[fraudulently or] erroneously represents that he is authorised

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.

The main elements of this doctrine as elaborated by the above-metioned section i

 A person is not the owner of an immovable property;

 but fraudulently or erroneously presents himself as the righteous owner who has the

authority to transfer;

 transfers the property to the transferee;

 and the latter purchases the property in good faith and consideration;

   the rights of the transferee will remain.

 The transferee will have the option to either rescind the contract or may continue the

contract whereby when the transferor acquires interest in the immovable property, the

property will get transferred to the transferee.

6
“Where a grantor has purported to grant an interest in land which he did not at the time

possess but subsequently acquires the benefit by his subsequent acquisition goes

automatically to the earlier grantee or, as it is usually expressed feeds the estoppels.” 1

Although, this principle of feeding the grant by estoppel is inapplicable where the transfer

itself is invalid.2

Literature Review

For primary resources we have used various case laws which are Jumma Masjid v.

Kodimaniandra Deviah,3 Parma Nand v. Champa Lal,4 Bhanwari Lal v. Sukhdarshan Dayal,5

Hardev Singh v. Gurmail Singh,6 Ni. Pra Channabasava D.S Mathadhipatigalu Kannada

Mutt v. C.P Kaveeramma7. Among these the researchers has primarily focused on Jumma

Masjid v Kodimaniandra Deviah and Parma Nand v Champa Lal. The researcher has referred

to the Transfer of Property Act, 1882.

For secondary sources the researcher has used the commentaries of M.R. Mallick 8, Dr Sir

Hari Singh Gour9 and Mulla10 which gives a very useful and comprehensive insight on the

law of of transfer of property relating to the doctrine of feeding the grant by estoppel. Mulla

being the latest commentary on the topic has covered all the recent developments in this area

of law. Another helpful source on the understanding and subject of estoppels was the Thesis

by K.P. Satheesan.11 These sources have provided a better understanding on the contemporary

as well as the historical stance on the laws of estoppel.

1
Rajapakshi v. Fermando (192o)AC 892
2
Ram Bhawan Singh v. Jagdish (199o) 4 SCC 3o9
3
1962 Supp (1) SCR 554
4
AIR 1956 All 225
5
(1973) 1 SCC 294
6
(2oo7) 2 SCC 4o4
7
(2o99) 11 SCC 28
8
M.R. Mallick, Goyle’s A Commentary on the Transfer of Property Act, 2nd edn (Eastern Law House, 2oo1)
9
Dr Hari Singh Gour, Commentary on the Transfer of Property Act, 11th edn vol 1 (Delhi Law House, 2oo5)
10
Mulla, The Transfer of Property Act, 12th edn (Lexis Nexis, 2o15)
11
K.P. Satheesan, Thesis for the Degree of Doctor of Philosophy of Faculty of Law (Cochin University of
Science and Technology, November 2oo2)

7
Research Objective

 to understand the doctrine of feeding the grant by estoppel

 to study the evolution of law relating the same in the Indian law

 to understand the need of such laws in India

Research Questions

 Whether the significant terms constituting the elements of section 43 of Transfer of

Property Act has conflicting or mixed structures?

 Whether the contemporary law governing doctrine of feeding the grand by estoppel is

resolved with respect to case laws?

Research Methodology

The method of my research was doctrinal. I have used both primary and secondary sources of

information including case laws, books, journals, articles, newspaper articles on the

respective topic. I found them using SCC, Manupatra, HeinOnline, WestLaw, LexisNexis and

resources available in the TPS Chawla Library of National Law University, Delhi.

Chapterisation

1. Introduction – This chapter gives a brief understanding of the topic and its relation

and implementation in the Transfer of Property Act, 1882. It provides the Overview,

Literature Review, Objectives, Research Questions and Research Methodology.

2. Concept of Feeding the Grant By Estoppel – This chapter will wholly be dedicated

to understanding the complex structure and terminologies used in section 43 to get a

more exhaustive understanding of the law.

8
3. Legal Conflicts and Comparisons – This chapter elaborates and clarifies the stance

on certain conflicting judgements like Jumma Masjid and Parma Nand, and compares

sec 43 to other provisions of TP Act as well as other legislations like the IEA.

4. Application of section 43 – This chapter deals with how section 43 has been applied

to case laws over the years. It is also a comparison between the application in

previous years and application in contemporary times.

5. Conclusion – This chapter summarizes the information on the above-mentioned

chapter in a brief manner.

9
 CHAPTER 2 – CONCEPT OF FEEDING THE GRANT BY ESTOPPEL

In Jumma Masjid Mercara v Kodimaniandra Deviah12 the Supreme Court held that 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 such representations. 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 transferor 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 have no application and the transfer will fail.

Hence there are several terms which need to be scrutinised to understand the section wholly.

The importance of understanding the legal terms mentioned below cannot be emphasised

enough.

Definition of Representation

‘Representation’ in the context of Transfer of Property Act has the same meaning as under

the contract law.13 A representation is said to mean “a statement made by or on behalf of one

person to another with the intention that it will come to the notice of the other person, which

relates, by way of affirmation, denial, description or otherwise to a matter of fact.” 14 A matter

of fact means, either an existing fact or a thing or a past event. Thus representation has to

contain two distinct factors:

1. Communication among two or more persons – Communication cannot be done

with a stranger. A statement which gets overheard by a person alien to the

conversation cannot be considered as a communication to him. Similarly, if a person

12
AIR 1962 SC 847
13
Ganesh Das v. Kamla Bai AIR 1952 Nag 29 (3o)
14
Turner, Law relating to estoppel by representation, 3rd edn, 1997.

10
 overlooks statements in a private document, it is not communication. Hence

communication can be made only by the representer to a representee.

2. Relating to a fact, present or past – Any statement which purports to affirm, deny,

describe or otherwise relates to any existing fact, or a past event or thing or a

circumstance can be considered as a representation. The substance need to be

considered to determine whether a statement amounts to representation, and not the

form.

‘Fraudulent or erroneously represents’

The doctrine of estoppel by deed was extended by equity to estoppel by representation in the

English common law. This extension dates from Pickard v Sears. 15 In India this rule was

explained in Sarat Chunder v Gopal Chunder.16 As the equitable doctrine of estoppel requires

a man to make his representation good, the words ‘fraudulently or erroneously represents’

have been said to make estoppel the foundation of the section, and in the absence of such

representation, the section doesn’t apply.17 The representation need not be intentionally

false.18 It requires an erroneous or fraudulent representation 19 and whether it is erroneous is a

question of fact.20 Where a vendor sold as an agent of a Hindu widow and then became her

heir, the section did not operate, for he had sold as agent and had made no erroneous

representation.21 However, when a Mahomedan mortgaged his wife’s property purporting to

act on a power of attorney which was not proved, the share which he inherited at her death

was liable for the mortgage.22 A ghatwal mortgaged land which he held on restricted tenure

alleging it to be his jagheer, and subsequently got a mokrari lease of it. He was estopped from

15
(1837) 6 A&E 469
16
(1893) ILR 2o Cal 296, 19 IA 2o3 (PC)
17
Jaggan Nath v Dibbo (19o8) ILR 31 All 53
18
Hattikdur v Andar (1915) 28 Mad LJ 44, 27 IC 785
19
Jamuna Mayee v Koimaindra AIR 1953 Mad 427
20
Saradamoyi v Atul Chandra 68 IC 2o3
21
Syed Nurul Hossein v Sheosahai (1893) ILR 2o Cal 1
22
Aisha Bibi v Mahfuz-un-nissa (1924) ILR 46 All 31o

11
pleading his subsequent title, and the mortgage got the benefit of the mokarari interest. 23 Two

brothers mortgaged their interest in a tank in which their cousin had a half share. They

subsequently acquired their cousin’s share by inheritance but the mortgage who had got the

decree for sale on his mortgage, purchased the property and sold it to the plaintiff. The

plaintiff did not get the benefit of the cousin’s share as there had been no representation,

erroneous or fraudulent.24 But when the head of the joint family mortgaged joint family

property representing that he had a right to do so, he was bound to make good his

representation to the extent of a share which came to him afterwards on partition. 25 Again the

father of the joint family consisting of himself and two sons sold family property representing

that it was his self-acquisition. The vendee sued for possession and pending the suit one of

the sons died. The vendee got the benefit of of this accession to the father’s estate and was

awarded half the property.26 So also, where a member of a joint hindu familu mortgaged his

undivided share in the joint property in favour of another person, alleging that he was

separate from the rest of the members, and thereafter there was a partition giving such

member certain property which fell to such member’s share. 27 No fraudulent or erroneous

representation was found when the sale showed the transferor had 8 anna share in the land

and he sold only that much.28

For Consideration

The section does not apply if the transfer is not for consideration. 29 It does not apply to a

transaction of gift.30

23
Mokhoda Debi v Umesh Chandra (19o7) 7 Cal LJ 381
24
Saradamoyi v Atul Chandra 68 IC 2o3
25
Kamla Prasad v Nathuni 66 IC 149
26
Muthuswamy Pillai v Sandana Velan (1927) 53 Mad LJ 218
27
Sundar Lal v Ghissa (1929) 27 All LJ 1o87
28
Velluswamy Thevar v Ganesa Thevar (1976) 2 Mad LJ 115
29
Jaggan Nath v Dibbo (19o8) ILR 31 All 53
30
Ganga Baksh v Madho Singh (1955) ILR 1All 587

12
Notice

 Jumma Masjid Mercara v Kodimaniandra Deviah 31: "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. It is to be noted
that when the decision under consideration was given the relevant words of Section
43 were - where a person erroneously represents - and now, as amended by Act 20 of
1929 they are - where a person fraudulently or erroneously represents - and that
emphasises that for the purpose of the section it matters not whether the transferor
acted fraudulently or innocently is making the representation, and that what is
material is that he did make a representation and the transferee has acted on it."

 In Parma Nand v Champa Lal 32, although the question has now to be decided in
accordance with what has been laid down by their Lordships of the Supreme Court in
the Jumma Masjid case, AIR 1982 S C 847. The question referred to the Full Bench in
Parma Nand - s case, (S) AIR 1958 All 225 was:

"Does Section 43, T. P. Act, require that the transferee who can take advantage of it should
be one to whom not only a fraudulent or erroneous representation about the transferor - s
authority to transfer the property is made but should also be one who did not have knowledge
of the true factual position and had merely acted on the belief of the erroneous or fraudulent
representation made to him by the transferor."

The answer given by Agarwala, J. in which the other Judges constituting the Full Bench
concurred was as follows:

"I am clearly of opinion that the correct view is that Section 43, T. P. Act, does not require
that the transferee who can take advantage of it should be one to whom not only a fraudulent
or erroneous representation about the transferor’s authority to transfer the property is made
but should also be one who did not have knowledge of the true factual position and had
merely acted on the belief of the erroneous or fraudulent representation made to him by the
transferor."

If, however, both the transferor and the transferee knew of the true position, and colluded to
enter into a transaction which is invalid in law, the state of knowledge of the transferee
becomes material and Section 43 cannot be availed of by him."
31
AIR 1962 S C 847
32
AIR 1956 All 225

13
In the Jumma Masjid case33, however, the Supreme Court laid down the law as follows :

"Where 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 then have no application ....."

33
AIR 1962 S C 847

14
 CHAPTER 3 – LEGAL CONFLICTS AND COMPARISONS

Section 41 and Section 43 of Transfer of Property Act distinguished.

Both the sections (Sections 41 and 43) are fundamentally based on the same principle of

estoppel and they also protect the rights of a bona fide purchaser. Hence there remained a

confusion regarding their applicability for a long time.

The apex court clearly distinguished between the Sections 41 and 43 in the matter of Hardev

Singh v Surmail Singh. This distinction was reiterated in the matters of Smt Sharadamma v.

R Vishvanath Section 41 provides that a transfer by ostensible owner cannot be avoided on

the grounds that the transferor was not authorised for it, subject to the condition that the

transferee should have taken reasonable care to ascertain that the transferor had power to

make the transfer. While on the other hand Section 43 enables a transferee to impose a

contract on the transferor who had fraudulently or erroneously sold any interest in the

property provided that he subsequently acquires the said interests in the property. 34 The

provisions of sec 41 and sec 43 are inapplicable in matters relating to involuntary transfers

like auctions.35

Rule of Estoppel in sec 115, Evidence Act and sec 43 of Transfer of Property Act

There is a difference between the rule of estoppel contained in sec 115 of Evidence Act and

one contained in sec 43 of Transfer of Property Act. 36 In the latter estoppel which exists by

reason of the representation has the effect of transferring the property to the purchaser the

moment the transferor obtains the same during the subsistence of the contract. In the former

case there is no question of any transfer of property or of feeding the original grant. Under

34
Smt Sharadamma v. R Vishwanath ILR 2015 Karnataka 3353
35
Jote Singh v Ram Das Mahto AIR 1996 SC 2773; Also See
36
Dr. Hari Singh Gour, Commentary on Transfer of Property Act, 12th edn vol 1 (Delhi Law House, 2o13)

15
Section 115 of the Evidence Act, the person who makes the representation and his successor

are merely precluded from denying that they did not have the interest which by reason of

their representations they made the transferee to believe and act upon such belief to their

detriment37

Sec 43 enacts a rule of estoppel which has the effect of automatic transfer of the property

Section 18 (a), Specific Relief Act, 1877 [Sec 13 of Specific Relief Act, 1963] and Sec 43

of Transfer of Property Act

Section 13(1)(a) of the Specific Relief Act provides that a vendee has the right to compel the

vendor to make good the contract to sell the immovable property when he acquires the

property provided that he had no authority or imperfect title at the time of contract. Section

43 enables a transferee to impose a contract on the transferor who had fraudulently or

erroneously sold any interest in the property provided that he subsequently acquires the said

interests in the property. Thus, both these sections are somewhat overlapping.

However, the difference between them was identified by the court in the matters of Silla

Chandra Sekharam v Lalita Shahuani 38 where the court observed the difference between the

two sections. In the case of the operation of s. 43, no recourse to Court is necessary. The

transfer operates on the property transferred and the transferee can call upon the transferor to

deliver the property to him. The purchaser or the lessor having the right mentioned Section 18

of Specific Relief Act has to go to Court to compel the vendor or lessor to perform the

contract out of the interest subsequently acquired by him. Secondly on one hand the Section

13 of the Specific Relief Act can only be applied in the matters involving sale and lease

however on the other hand Section 43 of the transfer of property act can be applied in the

cases involving any interest.

37
Arulayi Nadachi v Jagadeesiah Nadar AIR 1964 Mad 122
38
Silla Chandra Sekharam v Lalita Shahuani AIR 1959 Orissa 169

16
Idiosyncrasy between Section 43 and Section 6(a) of the Transfer of Property Act

Sec 6 (a) and sec 43 relate to two different subjects, and there are no conflicts between them.

Sec 6 (a) prohibits transfers of spes succession or hope of succession. Sec 43 deals with

representations as to title made by a transferor who had no title at the time of transfer, and

provides that the transfer shall fasten itself on the title which the transferor subsequently

acquires. Sec 6 (a) enacts a rule of substantive law, while sec 43 enacts a rule of estoppel

which is one of evidence. To hold that transfers by persons who have only a spes successions

at the date of transfer are not within the protection afforded by sec 43 would destroy its utility

to a large extent.39

In Alamanaya Kunigari Nabi Sab v Murukuti Papah 40 arose out of suit to enforce a mortgage

executed by the son over properties belonging to the father, while he was alive. The father

died pending the suit and the properties devolved on the son as his heir. The point for

decision was whenever the mortgage could claim the protection of sec 43 of TPA. The

argument against it was that Section 43 should not be construed as to nullify sec 6 (a) of the

TPA, by validating a transfer initially void under 6 (a). The court rejected this argument and

held that

“None of these objections apply in the present case. On the contrary the illustration to

Section 43 seems exactly in point except that the transfer is here by way of mortgage and in

the illustration, it is a sale. Here, as in the illustration, the son represented that he was

authorised to transfer the property which in fact was not his property but his father's: and if,

therefore, the son subsequently as heir obtained the property of his father the transferee may

require the son to deliver it to him in this case to have it declared subject to the mortgage.”

39
Jumma Masjid v. Kodimaniandra Deviah 1962 Supp (1) SCR 554
40
(1915) 29 Mad LJ 733

17
Recently in a similar case apex court yet again clarified the position of law. In the matters of

Tulsa v. Sita41 this court held that when a person transfers property representing that he is a

person interested therein whereas he is in fact only a spes-successionis, the transferee is

entitled to benefit of equitable doctrine known as the doctrine of feeding the grant by estoppel

since he had transferred share on the faith of that representation and for consideration.

41

18
 CHAPTER 4 – APPLICATION OF SECTION 43

This chapter focuses on the application of sec 43 in this chapter we will try to lay down the

conditions which are sine qua non for application of section 43 of the Transfer of Property

Act.

Fraudulent or Erroneous Transfer

Even the bare reading of the section 43 provides that there should have been a fraudulent or

erroneous representation in which transferor claims to have the right to transfer the said

property for attraction of Section 43 of the Act. Earlier the section only mentioned

“erroneous” however the term “fraudulently” was added by the 1929 Amendment.

In the matters of Radheylal v Mahesh Prasad42 the court elaborated on the addition of the

term ‘fraudulently’ to sec 43 of TPA. Earlier the term ‘erroneously’ was meant to establish

both fraudulent misrepresentations and non-fraudulent misrepresentations. But Radheylal

case has clarified that the ‘fraudulently’ was meant to further clarify the meaning of

‘erroneously’. If a person is wary of the facts of a situation, he cannot be said to be deceived.

When a person represents himself as the one truly authorised to transfer a property, including

many kinds of transfers like sale and mortgage, it is meant that no one else has the same right.

Presence of Consideration

Presence of consideration is another important essential condition for application of Section

43 of the Transfer of property Act. The need of this condition was emphasized in the matters

of Renu Devi v. Mahendra Singh43 where, a couple named Rameshwar Singh and

Dhaneshwari Devi had gifted the property to their daughter-in-law and grandsons on

42
Radheylal v Mahesh Prasad 7 All. 864
43
(2003) 10 SCC 200.

19
22.3.1979 when they had not actually acquired title to the property however they had a pre-

existing interest in the suit property by virtue of being members of the Joint Hindu Family

and their interest and right to partition had been upheld by the preliminary decree dated

13.2.1978. By the subsequent decree dated 24.5.1979 they acquired a clear and complete title

in the same property which they had gifted to their daughter in law on 22.3.1979. Supreme

Court while using this case as an illustration stated that doctrine could not be applied in this

case as it was a gifted property i.e. one without consideration

Knowledge of Transferee

According to the settled case law, for application of Section 43 of the Transfer of Property

Act, the transferee should have acted on the representation of the transferor thus the section is

inapplicable in the cases where the transferee is aware of the fact that the transferor does not

have the authority to sell the said the property.

The case in point is Kartar Singh v. Harbans Kaur44 where Kartar Singh had a sale deed

made in favour of him, executed by Harbans Kaur, alienating certain lands on her behalf and

her minor son. The son filed a suit on attaining majority, declaring the alienation of his

property by his mother void. The court granted a decree in favour of the son but before he

could take the property in his possession, he died. The property eventually devolved on

Harbans Kaur. Kartar Singh claimed the said property under sec 43.

However, the court refused to apply Section 43 because the transferee was found to be aware

of the limited rights of the mother to sell the property. Th court observed that in cases where

the transferee is aware of the situation he cannot be called to be defrauded.

Transfer should be valid

44
Kartar Singh v Harbans Kaur (1994) 4 SCC 730 (DB)

20
 45
The court in the matters of Sharadamma v R Vishwanath has observed that for application

of Section 43 of the act is not applicable on invalid transfer as being forbidden by law or

contrary to public policy, as envisaged under Section 23 of the Contract Act. Thus, no

estoppel can be pleaded contrary to the provisions of a statute.

45

21
 CHAPTER 5 – CONCLUSION

The object of every law is to render justice. But sometimes the strict implementation of law

may result in injustice. Under such equity will step in to prevent the injustice. Estoppel in one

such concept evolved by equity, for rendering justice, deviating from strict legal principles.

The idea that a man must keep his word and must be responsible for the consequences of his

conduct when other men have trusted him is accepted by all civilizations. As law developed,

this was recognized as a part of the legal system even though the same is not codified as such.

Thus the estoppel was used by the courts for preventing injustice in appropriate fact

situations.

The Doctrine of feeding the grant by estoppel is one such doctrine of estoppel used when

there is representation in relation to a property for consideration which is erroneous or

fraudulent. This doctrine is encapsulated in sec 43 of Transfer of Property Act, 1882. The

representation made by a person need to be ‘communicated’ to the other person and that

communication needs to be related to a fact (past or present). The erroneous or fraudulent

representation is the jfoundation of the section without which the section would not apply.

This representation needs to erroneous or fraudulent only; it need not be intentionally false.

But whether it is erroneous is a question of fact. There necessarily needs to be consideration

which leads to the transfer of property; the transfer cannot be a gift.

There are several comparisons made in the paper between sec 43 and other provisions of the

same or different legislations. The difference between sec 41 and 43 of TPA is that sec 41

talks about the authority that the transferor needs to possess whereas sec 43 talks of

fraudulent or erroneous representation by the transferor. The rule of estoppel in sec 43 of

TPA feeds the grant by transfer of property when the property comes in the hands of the

22
transfer who made the representation whereas the rule of estoppel in sec 115 of IEA does not

feed the grant.

We also observe in chapter 4 that the courts by large have not changed the application of sec

43 over time. They have applied it as it has been worded, following the appropriate

precedents. Hence, the application of the section as well as the requisite components for its

application have remained the same over the years and are well established by case laws.

23
 BIBLIOGRAPHY

Legislations

 Transfer of Property Act, 1882

 Indian Evidence Act, 1872

 Indian Contracts Act, 1872

Books

 M.R. Mallick, Goyle’s A Commentary on the Transfer of Property Act, 2 nd edn

(Eastern Law House, 2oo1)

 Dr Hari Singh Gour, Commentary on the Transfer of Property Act, 11 th edn vol 1

(Delhi Law House, 2oo5)

 Mulla, The Transfer of Property Act, 12 th edn (Lexis Nexis, 2o15) Turner, Law

relating to estoppel by representation, 3rd edn, 1997

 Dr Hari Singh Gour, Commentary on Transfer of Property Act, 12 th edn vol 1 (Delhi

Law House, 2o13)

 Turner, Law relating to estoppel by representation, 3rd edn, 1997

Online Articles

 K.P. Satheesan, Thesis for the Degree of Doctor of Philosophy of Faculty of Law

(Cochin University of Science and Technology, November 2oo2)

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