Holding

The transaction was not void; Section 43 applies, but the feeding‑estoppel principle operates against the original transferor, not the appellant, and the appeal is dismissed.

Summary

Harcharan Singh transferred property to his wife Udham Kaur for maintenance. Udham Kaur claimed absolute ownership, which was upheld by the appellate court. During the pendency of her suit, Harcharan Singh sold the land to Gurmail Singh, who took possession. After Udham Kaur's death, Gurmail Singh sought ownership under Sections 41 and 43 of the Transfer of Property Act, but the High Court allowed only Section 43. Hardey Singh, claiming title under an unproved will, appealed, arguing that Gurmail Singh was not a bona‑fide purchaser and that Section 43 could not apply. The Supreme Court held that no finding showed Gurmail Singh knew the husband lacked title, the transaction was not void, and the doctrine of feeding the estoppel applies against the original transferor, not the appellant. Consequently, the appeal was dismissed.

Issues considered

Whether Section 43 of the Transfer of Property Act applies to a purchaser when the transferor had no title at the time of sale but later acquires an interest.
Whether Section 41 of the Transfer of Property Act is attracted in the present facts.
Whether the doctrine of lis pendens (Section 52) renders the sale to the purchaser void.
Whether the purchaser was a bona‑fide purchaser for value without notice of the pending litigation.
Whether the appellant can raise the plea of inapplicability of Section 43.

Legislation cited

Indian Contract Acts. 23
Indian Evidence Act, 1872s. 68
Indian Succession Acts. 63
Transfer of Property Act, 1882s. 41, s. 43, s. 52

Subjects

Transfer of Property ActSection 43Section 41EstoppelFeeding the estoppelLis pendensBona fide purchaserSuccessionWillProperty transfer

Judgment

HARDEY SINGH A
v.
GURMAIL SINGH (DEAD) BY LRS.

FEBRUARY 2, 2007

[S.B. SINHA AND MARKANDEY KA TJU, JJ.] B

Transfer of Property Act, 1882-Sections 43, 52 and 41-Transfer of
property by husband to wife in lieu of maintenance-Wife claiming absolute
oivnership-During pendency, husband selling the property to third party C
and giving possession-Third party claiming benefit of s. 43 and 41-Plea
of legal heirs of wife that as bonafide of third party not proved, claim under
s. 43 not sustainable-Held: No finding that the third party was aware that
the husband had no title over the property-Transaction was not void-
" Husband could raise plea of inapplicability of section 43 and not the LR's
whose claim was based on the Will-Principle of feeding the estoppel will D
apply against the husband and not LR's-Principle of feeding the estoppel.

Original defendant no. I-husband transferred some properties in favour
of his wife in lieu of maintenance. Wife filed suit against her husband claiming
absolute ownership over the property. Trial Court held that the wife was
entitled to enjoy the property during her life time. However, appellate court E
held her to be full owner of the property. During pendency, husband sold the
land to the respondent by sale deed and gave him the possession thereof. Wife
filed another suit. Trial Court and appellate court held the transaction to be
hit by doctrine of /is pendens. In the meantime, wife expired. Respondent filed
second appeal and raised an additional ground that on death of wife, her F
properties devolved upon LR's of wife and also her husband in equal shares,
and thus, respondent should be declared to be owner of the land in terms of
sections 41 and 43 of the Transfer of the Property Act, 1882. High Court
held that only section 43 would be attracted. Hence the present appeal.

Appellant contended that as the bonafide of the respondent was not G
proved and the High Court held the respondent was not entitled to the benefit
of section 41 of the Act, his claim in terms of the section 43 thereof cannot
be sustained.

141 H
142 SUPREME COURT REPORTS [2007] 2 S.C.R.

A Dismissing the appeal, the Court

HELD: 1.1. The doctrine offeeding 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
B expressed,feeds the estoppel'. (Para 14] (146-G-H(

1.2. 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
C of Sections 41 and 43 of the Transfer of Property 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
D 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 effect. (Para 15( (147-A-C(

Jumma Masjid, Mercara v. Kodimaniandra Deviah. AIR (1962) SC 847
E : (1962] Supp.2 SCR 554, relied on.
2.1. High Court declined to grant any relief to the respondent in terms
of Section 41 of the Act, inter alia, on the premise that the husband admitted
that he had sold the property to the respondent in order to frustrate the claim
of his wife; that a public notice was not given; and that the respondent knew
F 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 Act, High Court held that it was the husband who had pleaded the
mischief; that after the death of wife, husband would be the natural heir of
the half share of her property. [Paras 16 and 17( (147-D-F[
G
2.2. Trial Judge and the First Appellate Court had decreed the suit of
wife 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.
H
HARD EV SINGH v. GURMAIL SINGH (DEAD) BY LRS. 143
Therefore, the transaction was not rendered void and/or of no effect. [Para A
181 [147-F-GI

2.3. 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 original defendant no. I. In fact, from the judgment of the
courts below, it does not appear that any finding has been arrived at to the B
effect that the respondent was aware that the said original defendant no. 1
had no title over the property. [Para 211 [148-FI

Kartar Singh (Dead) by LRs. and Ors. v. Harbans Kaur, [1994] 4 SCC
730, referred to.
c
2.4. The transaction was not void. It was not contrary to any provision
of law. It was not hit by section 23 of the Contract Act. Therefore, it cannot be
said that the ingredients of section 41 would also be applicable in a case falling
under Section 43 of the Act. [Para 25) [149-F)

N. Srinivasa Rao v. Special Court under the A.P. Land Grabbing D
(Prohibition) Act and Ors., [20061 4 SCC 214, distinguished.

Jote Singh (dead) by LRs. v. Ram Das Mahto and Ors., AIR (1996) SC
2773, referred to.

2.5 Appellant claimed absolute interest in the property on the premise E
that his mother has executed a Will in his favour. 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
Succession Act and Section 68 of the Evidence Act. If the Will has not been
proved, in the absence of such proof the general law of succession and F
inheritance shall apply. [Para 28) (150-D-E)

2.6. The plea of inapplicability of section 43 of the Act could have been
taken by original defendant No. 1 and not by the appellant, who has based his
claim on the basis of the Will. The principle offeeding the estoppel will apply
against original defendant no. 1 and not against the appellant. Therefore, he G
could not have raised the said plea. (Paras 29 and 30) [150-E-F)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6222 of2000.

From the Judgment and Final Order dated 9.4.1999 of the High Court of
Punjab and Haryana at Chandigarh in R.S.A. No: 143/1989. H
144 SUPREME COURT REPORTS [2007] 2 S.C.R.

A A. Mariarputham, Pratibha M. Singh, Gaurav Sharma and Sumeet Bhatia
(for Maninder Singh) for the Appellant.

R.K. Kapoor, Mukesh K. Verma and S.S. Yadav (for Anis Ahmed Khan)
for the Respondents.

B The Judgment of the Court was delivered by

S.B. SINHA, J. I. 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).

C 2. Harcharan Singh, the original Defendant No. I, 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
D 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
E 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.

3. 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
F the properties were purchased during pendency of the suit, the same was hit
by the 'doctrine of /is 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 /is pendens. In the Second Appeal, one additional
G 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.

4. The High Court, although, rejected the contention of the respondent
H herein that Section 41 of the Act would be attracted, but opined that Section
HARDEY SINGH v. GURMAIL SINGH (DEAD) BY LRS. [S.B. SINHA, J.]] 45

43 would. Appellant is, thus, before us. A
5. 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 B
his claim in terms of the Section 43 thereof cannot be sustained.

6. Mr. R. K. Kapoor, learned counsel appearing on behalf of the
respondent, on the other hand, supported the judgment.

7. Although, in this appeal we are not concerned with the applicability C
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 ·

"41. Transfer by ostensible owner.-Where, with the consent, express
or implied, of the persons interested in immoveable property, a person D
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." E
"43. 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, F
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." G
8. The distinction between the said two provisions is apparent.
I
9. 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, H
146 SUPREME COURT REPORTS [2007] 2 S.C.R.

A 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.

B 10. The ingredients of Section 41 of the Act are :

(1) the transferor is the ostensible owner;
(2) he is so by the consent, express or implied, of the real owner;
(3) the transfer is for consideration;
c (4) the transferee has acted in good faith, taking reasonable care to
ascertain that the transferor had power to transfer.

11. 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
D 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(l962) SC 847: [1962] Supp.2 SCR554.]

12. In order to get the benefit of the said provision, the conditions
E which must be satisfied are :
(1) 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.
F
13. 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
G estoppel' shall apply in absence thereof.

14. 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
H the estoppe/'.
HARDEY SINGH v. GURMAIL SINGH (DEAD) BY LRS. [S.B. SINHA, J.) J47

15. The principle is based on an equitable doctrine that a person who A
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 B
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 C
value without notice is in effect.

16. 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 (I) that Harcharan
admitted that he had sold the property to the respondent in order to frustrate D
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
-i
to show that he had no knowledge about the litigation.

17. In applying the provisions of Section 43 of the Transfer of Property
Act, the High Court, however, held : E
(i) It was Harcharan Singh who had pleaded the mischief;

(ii) After the death of Udham Kaur, Harcharan Singh would be the
natural heir of the half share of her property.

18. The learned Trial Judge and the First Appellate Court had decreed
F
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 G
void and/or of no effect.

I9. 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 H
148 SUPREME COURT REPORTS [2007) 2 S.C.R.

A 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
B up or cancelled and is subsisting"

20. 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
c 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 rejected"

It was concluded :
D
" ... 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 consideration"
E
21. 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
F that the respondent herein was aware that the said Harcharan Singh had no
title over the property. "
22. 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 :
G
"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
H mother as guardian, as a reasonable prudent man the appellant is
HARD EV SINGH v. GURMAIL SINGH (DEAD) BY LRS. [S.B. SINHA, J.) 149

expected to enquire whether on her own the mother as guardian of A
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 B
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." C
23. 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 D
exercising the right of pre-empdon 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."

24. 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 E
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.

25. We have noticed hereinbefore that the transaction was not void. It F
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 G
the properties have been sold in auction.

1
26. 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 H
150 SUPREME COURT REPORTS (2007] 2 S. C.R.

A 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
B 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."
c 27. The said decision, therefore, has no application to the facts of the
present case.

28. 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
D 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.
E
29. The plea of inapplicability of Section 43 of the Transfer of Property
Act could have been taken by Harcharan Singh and not by the appellant, who
has based his claim on the basis of the Will.

30. The principle of feeding the estoppel will apply against Harcharan
F Singh and not against the appellant. He could not have, in our opinion,
therefore, raised the said plea. ,.

31. For the reasons aforementioned, we do not find any merit in this
appeal, which is accordingly dismissed with costs. Counsel's fee is assessed
G at Rs.5,0001-.

N.J. Appeal dismissed.