Chapter -1

1.Introduction
Transfer by unauthorized person who subsequently acquires interest in property transferred. Where a person fraudulently or represents that he is authorized to transfer certain immovable 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.

1.1 Research Methodology

Research is to know about something of which you have curiosity. There are two types of research methods - (i) Doctrinal and; (ii) Non- Doctrinal. In this report both methods are used. The research was conducted under the supervision of faculty of Law Of Property. Some major libraries for research were: Library of University Five Year Law College Library of University of Rajasthan.

1.2 Hypothesis
In this project topic researcher try to find out the rule of feeding and its implication on law of property act and researcher also study its effect in the india. In this project topic researcher study the rule of estopples.

1.3 Scope of Study

The scope of the Transfer of property act is , however, limited. It does not apply to all the transfers of properties which take place in india. Although the act covers a large area of the law of transfer of immovable property, it does not profess to be a complete code.
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Chapter-2
2.Feeding The Estoppel
The principle of the section is based partly on the English doctrine of estoppel by deed and partly on the equitable doctrine that a man who has promised more than, he can perform must take good his promise when he acquires the power of performance. The English doctrine of estoppel by deed as enunciated in Rajapakshi v. Femando,1 is as follows: Where a grantor has purported to grant an interest in land, which he did not at the time possess but subsequently acquires, the benefit of the subsequent acquisition goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel. The section follows the English doctrine in that 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 only at the option of the transferee. Second, the transferee may be defeated by a purchaser for value without notice.

2.1Essentials:- To attract the application of the section, three conditions are necessary:
(1) A fraudulent or erroneous representation that the transferor had authority to transfer the property, (2) The transfer is for consideration, (3) The transferor subsequently acquires the interest which he had professed to transfer. If a Hindu dies leaving behind two widows, they succeed as joint tenants with a right of survivorship. They were entitled to obtain partition of the separate portions of property so that each may enjoy her equal share of the income accruing there from. Each can deal as she pleases with her own life interest but she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the right of survivorship or a future reversionary. If they act together, they can burden the reversion with any debts owing to legal necessity but one of them acting without the authority of the other cannot prejudice the right of survivorship by alienating any part of the

(1920)A.C.892 at p.897

estate. The mere fact of partition between the two while it gives each a right to fruits of separate estate assigned to her, it does not imply a right to prejudice the claim of the survivorship to enjoy full fruits of the property during her lifetime. The transfer made by one daughter without the consent of the other was only voidable at the instance of the other co-limited owners or at the instance of the reversionary. In any case Smt. M. after the death of her two sisters came into exclusive possession of the entire estate left by Smt. A. widow of L. Therefore the transferees would be entitled to the protection of Section 43 of the Transfer of Property Act which substantially amounts to satisfying the equitable principle of feeding the grant by estoppel.2 Applicability of Doctrine of feeding grant by estoppels:- There was an auction of plot by DDA. Auction was set aside by High Court on grounds that plot was situated in green belt and cannot be treated as developed plot. It was held that the acceptance of bid and deposit of 25% amount does not constitute transfer of property. Mere fact that disability attached with plot has ceased to exist on the date of petition is no ground to apply the doctrine. DDA cannot be compelled to finalise sale and deliver possession to bidder after lapse of 14 years or in alternative to allot another plot3.

2.2Representation:In order that Section 43 can apply, it is necessary that there should be misrepresentation, fraudulent or erroneous, about the right to transfer the property. The word represents in the section clearly shows that the person in whose favour the enquiry is allowed to operate must have acted on the representation.1 in other words, the transferee must have been misled into the impression that the transferor had power to transfer. The benefit of this section cannot be claimed by the transferee if he did not believe in or act upon the representation. There is no estoppel when truth is known to both parties. Accordingly if he is aware of the defective title he cannot get the benefit. Thus, where an undivided Hindu father had two sons A and B. A who was entitled only to one-third of the property, mortgaged one-half of it to C, who knew that A was entitled to one-third. Subsequently, As father died and A having become to a half share, C sued
2 3

Kanpur and others v.Prem kumar and others A.I.R1985S.C.1102 Delhi Development Authority v.Ravindra Mohan A.I.R.1999 S.C.1256

on the mortgaged seeking to make As half share liable, it was held that he could enforce the mortgage only against the one-third. Even in cases where no representation is made, the transferor may on equitable ground be compelled to perform the contract when he is able to do so on acquisition of the interest. Where evidence regarding the representation is vague and the true facts were known to those who purchased the plots, it cannot operate to create any title. Estoppel is but a rule of evidence and except in cases like those under Section 43,T.P. Act, when a grant is led by estoppel the rule does not operate to create interest in property regarding which the representation is made.

2.3Transfer for consideration:The doctrine of feeding the estoppel by grant is applicable only to the transfers of properties for value. This section is not applicable where the transfer is gratuitous, i.e., without consideration. Thus, where the property has been transferred by way of gift, the provisions of this section cannot apply because a gift of property in which the donor has no present fixed right at the date of the transfer, is void. (See Section 124, T.P. Act ).

2.4Transfer forbidden by law:The section will not apply if the transfer is invalid as being forbidden by law or contrary to public policy. In such a case the principle of this section cannot be invoked to compel a person to transfer the property. A mortgage made by a disqualified person does not therefore become valid on that person ceasing to be disqualified. Similarly, the interest of a Hindu reversionary is spes successionis or a mere chance of succession under Section 6 (a) and this chance of succession is inalienable. If therefore, the reversionary transfers such interest and afterwards acquires the property, this section will not operate so as to compel such heir to transfer the property. But a full bench of the Madras High Court in Jumma Masjid v. Kodimaniandra Deviah,4 has held that even in case of spes successionis, the transferor is precluded from questioning the validity of the transfer if he later on acquires interest in the property. It is submitted that a distinction should be drown between (1) a transfer which is professedly one of a mere right or a mere chance of succession, and (2) a transfer of a specific property which the transferor erroneously represents
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(1953)Mad.427

that he is right of the female to be maintained out of the family property and the right of the reversionary would get extinguished. Moreover, in such a case, the transferees would not be entitled to get the benefit of Section 43 of the Transfer of Property Act even when the properties devolved on the step sons of the female, the transferors, on her death in consequence of section 15 (1) (b) of the Succession Act as she had no daughter, when the transferees had full knowledge at the time of the transfer that the transferors had no title to the property. The transferees could not be said to be misled by any misrepresentation of the tnansferors.

2.5Sections 41 and 43 compared:Both section 41 and 43 are based on the principle of estoppel where on a representation made by one party and acted upon by another, the rights of the latter are affected. Sections 41 requires-(a) good faith, and (b) exercise of 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.

2.6Illustration to section 43:In this illustration, when A sold the field Z to C, he had only a spes successionis. But he having subsequently inherited, it became entitled to it. Illustration 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 transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition; but on B' s dying A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him.

2.7 Punjab:In Punjab, where the transfer of spes successionis is valid, the principles of Section 43 have been applied in several cases. If, therefore, A mortgages certain properties in which he has only reversionary interest, the mortgaged becomes effective when subsequently A acquires an absolute interest in the property through succession.
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Chapter-3
3.Doctrine - Feeding The Grant By Estoppel Sec. 43 Transfer of Property Act
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 authorised to transfer immoveable property and he must have professed to transfer such property, but there is nothing in the section requiring that the trans-feror 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 un aware of the erroneous nature of the representation made by him. The matter is concluded by the following observations of the Supreme Court in the case of Tumma Masjid Mercara v. Kodimaniandra Deviah,5:"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."The point next to be considered is whether a transferee is deprived of the benefit of Section 43 if he is aware of the erroneousness of the
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AIR 1962 S C 847

representation or could have discovered its ertoneousness by exercising reasonable care or pursuing reasonable inquiry. In connection with the first part of the question reference must be made to the Full Bench decision of this Court in the case of Parma Nand v. Champa Lal, 6, 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 case7,. The question referred to the Full Bench in Parma Nand's case,8 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 con curred 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." In the Jumma Masjid case, , 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 repre-sents he has, then he cannot be said to have acted on it when taking a transfer.

3.1Applicability of the section:The option exercised by the transferee under Section 43 is not required to be exercised in express terms or in a particular form. The exercise of option by the transferee can be implied from the very fact that the plaintiff has been claiming his right over the entire property and that he was proceedings against not only the transferor but also the so-called subsequent transferees.
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AIR 1956 All 225 AIR 1982 S C 847 8 AIR 1958 All 225

Chapter-4 4.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.