Introduction
The Transfer of Property Act, 1882 (TPA) governs the transfer of immovable property in India. Two key provisions—Section 43 (Doctrine of Feeding the Grant by Estoppel) and Section 6(a) (Prohibition on Transfer of Speculative or Non-Existent Interests)—seem to contradict each other.
While Section 43 allows a later-acquired right by a transferor to validate an earlier transfer, Section 6(a) declares that transferring a mere chance or expectancy, like that of an heir apparent, is void from the beginning. This article explores the essentials of Section 43, the scope of Section 6(a), and how courts have resolved this apparent conflict.
Section 43: Doctrine of Feeding the Grant by Estoppel
Section 43 is based on the idea that once a person claims to transfer a right, they cannot back out if they later acquire that right. It is built on two principles:
- Common Law Doctrine of Estoppel by Deed: If someone promises more than what they own at present, they must honor that promise once they gain the capacity.
- Principle of Equity: If a person makes a representation or assurance, they must fulfill it when they are able.
Essentials of Section 43
- Fraudulent or Erroneous Representation: The transferor, though unauthorized, claims to be competent to transfer.
- Transfer for Consideration: It applies only to transfers for consideration, not gifts.
- Subsequent Acquisition of Interest: The transferor later acquires the interest they had earlier claimed to transfer.
- Transferee’s Option: The transferee may claim the property only if they choose to exercise the option.
- Protection of Bona Fide Purchasers: If a second transferee buys the property in good faith, for value, and without notice of the first transferee’s rights, their title will prevail.
Limitations
Section 43 does not apply to:
- Transfers void from the beginning (e.g., by a minor, or transfers prohibited by law).
- Transfers against public policy.
Section 6(a): Prohibition on Transfer of Speculative Interests
Section 6 lists interests that cannot be transferred. Section 6(a) specifically forbids the transfer of a mere spes successionis (a chance of succession or expectancy). Examples include:
- The chance of an heir apparent inheriting property.
- The chance of a relative obtaining a legacy.
Such transfers are void from the very beginning because they are speculative and do not create legal rights.
The Apparent Conflict
At first, Section 43 seems to validate transfers made by persons without title, while Section 6(a) voids transfers of mere expectancies like heirship rights.
The crux:
- Section 43 → permits later feeding of title.
- Section 6(a) → strictly prohibits transfer of expectancies.
Judicial Reconciliation
In Jama Masjid vs. Kadimunindra (AIR 1962 SC 282), the Supreme Court held that a transferee can use Section 43 even in cases of expectancies. An heir apparent sold his future share in joint family property. When he later inherited the share, the transferee invoked Section 43. The Court upheld this, reasoning:
- Section 6(a): Substantive—it defines what cannot be transferred.
- Section 43: Procedural—it works through estoppel and equity once the transferor acquires rights.
Thus, both provisions can coexist. Section 43 does not make the initial void transfer valid, but it allows it to take effect once the transferor gains the title.
Distinction Between Section 41 and Section 43
- Section 41 (Transfer by Ostensible Owner): Transfer by one who appears to be the owner with the real owner’s consent.
- Section 43 (Feeding the Estoppel): Transfer by one without authority and without the real owner’s consent, but later validated when the transferor acquires the interest.
Conclusion
The supposed clash between Section 43 and Section 6(a) is more about interpretation than an actual contradiction. Section 6(a) prevents speculative transactions, while Section 43 ensures fairness by preventing transferors from going back on their promises once they acquire rights. Courts, especially in Jama Masjid, have balanced these provisions, holding that while Section 6(a) bars speculative transfers, Section 43 can still apply if the transferor later gains the title.
