Singh Vs. Gurmail Singh (Dead) By Lrs  Insc 87 (2 February 2007)
S.B. Sinha & Markandey Katju
S.B. Sinha, J.
This appeal raises an interesting question of law in regard to
interpretation of Section 43 of the Transfer of Property Act, 1882 ("the
Act", for short).
Harcharan Singh, the original Defendant No.1, allegedly transferred some
properties in favour of his wife Udham Kaur in lieu of maintenance pursuant to
a compromise entered into by and between them. She claimed herself to be the
absolute owner thereof in terms of Section 14(1) of the Hindu Succession
Act. 1956. She filed a suit against her husband Harcharan Singh for a
declaration that she was the owner in possession of the suit land.
The learned Trial Judge was of the opinion that as she had been in
possession of the property in lieu of maintenance, she was 'entitled to enjoy
the fruits thereof only during her life time'. An appeal was preferred
thereagainst and the Appellate Court declared her to be the full owner in
possession of the suit land. Indisputably, during pendency of the said suit,
Harcharan Singh sold the said land to the respondent herein by a deed of sale
dated 17.3.1982 and he had been given possession thereof. Another suit was
filed by Udham Kaur.
The appellant, in the suit, inter alia, raised a plea that he was a bonafide
purchaser for value, whereas the case of Udham Kaur was that as the properties
were purchased during pendency of the suit, the same was hit by the 'doctrine
of lis pendens', as envisaged under Section 52 of the Act.
The said contention of the respondent was not accepted by the learned Trial
Judge as also by the First Appellate Court holding that the transaction was hit
by the doctrine of lis pendens. In the Second Appeal, one additional ground was
taken by him, viz., having regard to the death of Udham Kaur, the properties
devolved upon the appellant herein as also on Harcharan Singh in equal shares;
and, thus, he should be declared to be the owner of the lands in terms of
Sections 41 and 43 of the Act.
The High Court, although, rejected the contention of the respondent herein
that Section 41 of the Act would be attracted, but opined that Section 43
would. Appellant is, thus, before us.
Mr. A. Mariarputham, learned counsel appearing on behalf of the appellant
took us through the judgment of the High Court and contend that as the bonafide
of the respondent was not proved and furthermore in view of the fact that the
High Court itself opined that he was not entitled to the benefit of Section 41
of the Act, the judgment of the High Court upholding his claim in terms of the
Section 43 thereof cannot be sustained.
Mr. R.K. Kapoor, learned counsel appearing on behalf of the respondent, on
the other hand, supported the judgment.
Although, in this appeal we are not concerned with the applicability of
Section 41 of the Act, with a view to appreciate the rival contentions raised
by the parties we may notice the provision of both Sections 41 and 43 of the
Act, which are as under :
"Transfer by ostensible owner. Where, with the consent, express or
implied, of the persons interested in immoveable property, a person is the
ostensible owner of such property and transfers the same for consideration, the
transfer shall not be voidable on the ground that the transferor was not
authorised to make it: provided that the transferee, after taking reasonable
care to ascertain that the transferor had power to make the transfer, has acted
in good faith."
"Transfer by unauthorized person who subsequently acquires interest
in property transferred. Where a person 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 distinction between the said two provisions is apparent.
Application of Section 41 of the Act is based on the law of estoppel to the
effect that if a man has represented that the transferor consents to an act
which has been done and that he would not offer any opposition thereto,
although the same could not have been lawfully done without his consent and he
thereby induces others to do that from which they might have abstained he
could not question the legality of the act he had so sanctioned to the
prejudice of those who have so given faith to his words or to the fair
inference to be drawn from his conduct.
The ingredients of Section 41 of the Act are :
the transferor is the ostensible
he is so by the consent, express or
implied, of the real owner;
the transfer is for consideration;
the transferee has acted in good
faith, taking reasonable care to ascertain that the transferor had power to
Section 43, on the other hand, embodies a 'rule of feeding the estoppel' and
enacts that a person who makes a representation shall not be heard to allege
the contrary as against a person who acts thereupon and it is immaterial whether
the transferor acts bona fide or fraudulently in making the representation.
[See Jumma Masjid, Mercara v. Kodimaniandra Deviah, AIR 1962 SC 847 : 1962
Supp.2 SCR 554.] In order to get the benefit of the said provision, the
conditions which must be satisfied are :
the contract of transfer was made by
a person who was competent to contract; and (2) the contract would be subsisting
at the time when a claim for recovery of the property is made.
However, the provisions would have no application if the transfer was
invalid as being forbidden by law or contrary to public policy, as envisaged
under Section 23 of the Indian Contract Act. Thus, no estoppel can be pleaded
contrary to the provisions of a statute. The 'rule of feeding the estoppel'
shall apply in absence thereof.
The doctrine of feeding the estoppel envisages that '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 his subsequent acquisition, goes
automatically to the earlier grantee, or as it is usually expressed, feeds the
The principle is based on an equitable doctrine that a person who promised
to perform more than he can perform must make good his contract when he
acquires the power of performance. The difference between the ambit of Section
41 and 43 of the Act is apparent. Whereas Section 41 provides that a transfer
by an ostensible owner cannot be avoided on the ground that the transferor was
not authorised therefor, subject to the condition that the transferee should
take reasonable care to ascertain that the transferor had power to make the
transfer and to act in good faith before a benefit thereof is claimed by him.
Section 43, on the other hand, enables the transferee to whom a transferor has
made a fraudulent or erroneous representation to lay hold, at his option, of
any interest which the transferor may subsequently acquire in the property,
unless the right of any subsequent purchaser for value without notice is in
With the aforementioned proposition in mind, we may notice that the High
Court has declined to grant any relief to the respondent herein in terms of
Section 41 of the Act, inter alia, on the premise (1) that Harcharan admitted
that he had sold the property to the respondent in order to frustrate the claim
of Udham Kaur; (2) a public notice was not given; and (3) that the respondent
knew regarding the pending litigation, and it was for the respondent to show
that he had no knowledge about the litigation.
In applying the provisions of Section 43 of the Transfer of
the High Court, however, held :
It was Harcharan Singh who had pleaded the mischief;
After the death of Udham Kaur, Harcharan Singh would be the natural heir
of the half share of her property.
The learned Trial Judge and the First Appellate Court had decreed the suit
of Udham Kaur only on the basis that she acquired the suit property during the
pendency of the earlier litigation. Section 52 of the Act merely prohibits a
transfer. It does not state that the same would result in an illegality. Only
the purchaser during the pendency of a suit would be bound by the result of the
litigation. The transaction, therefore, was not rendered void and/or of no
In Jumma Masjid, Mercara (supra), speaking for a four Judge, Bench, Aiyar,
J. opined :
"Considering the scope of the section on its terms, it clearly applies
whenever a person transfers property to which he has no title on a
representation that he has a present and transferable interest therein, and
acting on that representation, the transferee takes a transfer for
consideration. When these conditions are satisfied, the section enacts that if
the transferor subsequently acquires the property, the transferee becomes
entitled to it, if the transfer has not meantime been thrown up or cancelled
and is subsisting"
Referring to the illustration appended to Section 43 of the Act, it was held
"...But far from being restricted in its scope as contended for by the
appellant, the section is, in our view, general in its terms and of sufficient
amplitude to take in the class of transfers now in question. It is not to be
readily assumed that an illustration to a section is repugnant to it and
It was concluded :
"...We accordingly hold that when a person transfers property
representing that he has a present interest therein, whereas he has, in fact,
only a spes successionis, the transferee is entitled to the benefit of s.43, if
he has taken the transfer on the faith of that representation and for
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. In fact, from the judgment of the courts
below, it does not appear that any finding has been arrived at to the effect
that the respondent herein was aware that the said Harcharan Singh had no title
over the property.
Our attention has, however, been drawn to a decision of this Court in Kartar
Singh (Dead) by LRs. & Ors. v. Harbans Kaur [(1994) 4 SCC 730], wherein
this Court held :
"Section 43 feeds its estoppel. The rule of estoppel by deed by the
transferor would apply only when the transferee has been misled. The transferee
must know or put on notice that the transferor does not possess the title which
he represents that he has. When note in the sale deed had put the appellant on
notice of limited right of the mother as guardian, as a reasonable prudent man
the appellant is expected to enquire whether on her own the mother as guardian
of minor son is competent to alienate the estate of the minor. When such acts were
not done the first limb of Section 43 is not satisfied. It is obvious that it
may be an erroneous representation and may not be fraudulent one made by the
mother that she is entitled to alienate the estate of the minor. For the
purpose of Section 43 it is not strong material for consideration. But on
declaration that the sale is void, in the eye of law the contract is non est to
the extent of the share of the minor from its inception. The second limb of
Section 43 is that the contract must be a subsisting one at the time of the
claim. A void contract is no contract in the eye of law and was never in
existence so the second limb of Section 43 is not satisfied."
The said finding was arrived at, inter alia, on the premise that Kulwant
Singh was a minor on the date on which the property was transferred and in the
marginal note of the sale deed specifically mentioned :
"...that the land had been acquired by her and by her minor son by
exercising the right of pre-emption and that she was executing the sale deed in
respect of her own share and acting as guardian of her minor son so far as his
share was concerned."
It was held that under the Guardian and Wards Act, the estate of the minor
could not have been alienated unless a specific permission in that behalf is
obtained from the district court and admittedly, no such permission had been
obtained. In that view of the matter, the sale of the half share of the
interest of the minor son made by his mother was void.
We have noticed hereinbefore that the transaction was not void. It was not
contrary to any provision of law. It was not hit by Section 23 of the Indian
Contract Act. We, therefore, do not accept the submission of the learned
counsel that the ingredients of Section 41 would also be applicable in a case falling
under Section 43 of the Act. We may notice that in Jote Singh (dead) by LRs. v.
Ram Das Mahto & Ors. [AIR 1996 SC 2773], it was held that the provisions of
Sections 41 and 43 would not be available where the properties have been sold
In N. Srinivasa Rao v. Special Court under the A.P. Land Grabbing
(Prohibition) Act & Ors. [(2006) 4 SCC 214], to which our attention has
been drawn by learned counsel appearing on behalf of the appellant, it was held
that the transfer must be a valid one. Therein, the property in question was
transferred in violation of the provisions of Section 47 of the Andhra Pradesh
(Telangana Area) Tenancy and Agricultural Lands Act, 1950. It was, in the
factual matrix obtaining therein, opined :
"Even on the question of the applicability of Section 43 of the Transfer of
Property Act, we agree with the view taken by the High Court that when the
initial transfer itself between Uppari Ramaiah and Mir Riyasat Ali was invalid,
the question of application of Section 43 of the Transfer of
Property Act to such a transaction on account of subsequent acquisition of
title by Uppari Ramaiah would not be available."
The said decision, therefore, has no application to the facts of the present
There is another aspect of the matter which cannot be lost sight of.
Appellant claimed absolute interest in the property on the premise that his
mother has executed a Will in his favour on 3.10.1995. The said Will has not
been proved. If the title claimed is on the basis of the Will, the same was
required to be proved in the light of the provisions contained in Section 63 of
the Indian Succession Act and Section 68 of the Indian Evidence Act. If the
Will has not been proved, in the absence of such proof the general law of
succession and inheritance shall apply.
The plea of inapplicability of Section 43 of the Transfer of
could have been taken by Harcharan Singh and not by the appellant, who has
based his claim on the basis of the Will.
The principle of feeding the estoppel will apply against Harcharan Singh and
not against the appellant. He could not have, in our opinion, therefore, raised
the said plea.
For the reasons aforementioned, we do
not find any merit in this appeal, which is accordingly dismissed with costs.
Counsel's fee is assessed at Rs.5,000/-