THIS ARTICLE IS WRITTEN BY ADITI TIWARI ,BALLB (HONS.),MANIPAL UNIVERSITY JAIPUR DURING HER INTERNSHIP AT LEDROIT INDIA
INTRODUCTION
The doctrine of feeding the grant by estoppel is based on the maxim “nemo dat quod nonhabet which implies that no one can give to another, which he himself does not possess’.
The popular common law concept of “estoppel by deed” and the equity principle of “equity regards things to be done that ought to be done” serve as some of the foundations for the theory of feeding the grant by estoppel.
The Indian legal system is familiar with the concept of estoppel because it has been incorporated into numerous laws. The idea of estoppel basically states that if someone makes a promise to do something and the promisee follows through on it, the promise maker is obligated to honor the promise.
The rule of estoppel under the common law
The common law doctrines of estoppel and equity serve as the foundation for this rule.
According to the tenets of estoppel by deed, it prohibits someone from making unfulfilled promises adhere to the equitable doctrines, which require such a person to fulfill his promise when he regains the capacity to do so, rather than using his incapacity as a justification for avoiding his liabilities in a situation where he gains the capacity to fulfill it. In fact, the transfer is complete without any further action from him the moment he gains the ability to do . This skill instantly feeds the estoppel. According to common law, if someone falsely represents to another that he is capable of transferring a good title, claims to be able to do so in exchange for payment, and the other party acts on this representation, entering into a contract with him, the property immediately passes to the transferee when the transferor later obtains a good title. Therefore, common law does not compel the transferee to exercise the option or provide the transferor with any chance to later deceive the transferee and add a legitimate purchase for consideration to the situation in order to undermine the rights of the original transferee.
The sole prerequisite is that the agreement ought to have been in effect. In these situations, the transferee need not take any further action; the transfer will be finalized in his favor as soon as the transferor demonstrates competency. In India, a transferee may only be entitled to a grant by estoppel if the transferor made false representations, and in no other circumstance. Therefore, in order for Section 43 to be applied, it is necessary that the person involved have initially falsely or fraudulently represented that he was authorized to transfer specific immovable property in exchange for payment. The transferee’s option only becomes relevant if the precondition is met and the transferor gains any interest in the property at any point while the contract is in effect.
Exceptions to the doctrine of ‘feeding the grant by estoppel’
No application of the rule when the transferor is not represented
Equity demands that the transferor falsely or fraudulently represent that he is capable of transferring the property. The theory is irrelevant in the absence of representation. That does not, however, imply that the transferor can avoid the application of the estoppel rule against him if he remains silent about his capacity when he is under an obligation to speak. The requirement that the transferee be duped is crucial. If the transferee makes no representations, it indicates that they were informed of the title defect and were not duped. The transferee can only benefit from the transferor’s subsequent full interest or ownership of the property if he is made to believe that the transferor has an absolute interest or title and acts in accordance with that representation.
It implies that the person receiving the transfer is unaware of the facts and relies on the representation, since there would be no presumption that the truth is known to both parties. It is important that the other party be given the chance to raise its defence if and when the doctrine is pleaded. The representation can be expressed or implied.
Word-of–mouth or a written document can be used. When the law makes it an implied term of the transfer, it is implied that it is implied. The doctrine didn’t apply where a person sold the property as an agent for the widow and later became her heir, as there was no erroneous representation. But where the husband transfers the property of his wife without taking her consent and she challenges its validity in the Court, but dies during its pendency.
Transfers without representations occur.
Although the Section mentions erroneous or fraudulent representations, it is possible that there is a transfer by a person who is incapable of transferring the same, but he does so without making a representation, even though the person transferring is unaware of his incompetence. When a person says ‘he will transfer the property,’ it means that he is conveying to the other that he is authorized to do so.
Even so, the principle of preclusion will apply to the person making the transfer, and if he proves competent, he will be disqualified from violating his contractual obligations. Three coparceners held the property in Viraya v. Hanumanta One of them, A, sold the property to B, an alienee, but failed to deliver it because the transfer was effected without the consent of the other coparceners. A brought a legal action against A to enforce the contract. One of the other coparceners died during the pendency of the litigation, and A‘s share in the property increased to one half. B was entitled to half of the property that was the share of A, according to the court.
Knowledge may be actual or even Constructive
Knowledge on the part of the transferee with respect to the defect in title of the transferor is not necessary. As a reasonable, prudent person, the transferee, in order to safeguard his own interests, made sufficient inquiries that he ought to have made, or was vigilant, and upon doing so, he could have detected the absence of title.
A normal prudent person would have made reasonable inquiries as a prospective purchaser. He would be guilty of gross negligence or willful abstention if he failed to make such inquiries, and constructive knowledge with respect to defect in title would be imputed to him. The right to perfect the transfer would be lost if a person actually knew about it, as the consequences of imputation of constructive notice are identical to the consequences of a person actually knowing about it.
The Supreme Court, in Kartar Singh’s case, has overruled a plethora of cases, including Lord Halsbury’s famous statement, wherein it was held that section 43 does not impose upon the transferee the duty to take care.
In Kartar Singh v. Harbans Kaur, a Hindu woman executed a deed of sale for her minor son’s lands in 1961. After attaining majority in 1975, the son brought a legal action against the state.
The effect of this sale was that it was not binding on him, and was void. The Court ruled that this sale by the mother of the properties belonging to her minor son was invalid, and ordered that the possession of these properties be returned to the minor son. Before the son could take possession of the property, he died, and the mother, as a class I heir, succeeded to the property. When the remedy was refused by the High Court, the transferee, X, claimed the benefit of section 43 and went to the Supreme Court in appeal. The Court held that two conditions must be satisfied in order for s. 43 to be applied. There is a fraudulent or erroneous representation made by the transferor to the transferee that he is authorised to transfer certain immovable property.
The transferee is entitled to get the restitution of interest in property got by the transferor if it is discovered that the transferor acquired an interest in the transferred property. The Court here attempted to examine whether the transferee in the present case had knowledge of the fact that the mother was competent to transfer the property of her son, as the primary distinguishing factor between the application of sections 43 and 6(a) is knowledge of the lack of title or incompetence on the part of the transferee.
The transfer must not be otherwise prohibited.
For the validation of the transfer made by an unauthorised person under a representation, this contract should not have been against any law in any form whatsoever.The statutory incompetency that was appended to the minor or insane person, that prevented him from transferring the property, would not confer an option in favor of the transferee to validate the transfer on the minor’s attaining majority or curing of insanity. Similarly, if a particular piece of land has been declared to be specifically inalienable, such as Bhumidhari land, S. 43 cannot apply to such a situation. However, where the property was requisitioned by the military, and a lessee assigned his interest in this property conditional upon the property being de-requisitioned by the military, the Court held that after the property was so de-requisitioned,
Transfer must be for consideration.
Unauthorized transferors on false representations, and the option available under section 43, must consider that these transfers should be considered. It’s not necessary to show that some monetary consideration has already passed from the person making the transfer to the person making the transfer, but the transfer is in essence a consideration, and the person making the transfer has to pay. Thus, s. 43 does not apply to gratuitous transfers like tokens, etc.
The subsequent acquisition of an interest by the transferor.
The transferee is entitled to the benefit of this doctrine only when the transferor acquires an interest in the property that he originally represented as his. If the transferor does not acquire a further interest in the property transferred, or if such further interest is acquired not by the transferor but by his successor in interest, or if the heirs of the transferor acquire property in their own right and not as heirs of the transferor.
For instance, A handed over property belonging to his spouse, proving to X that he’s competent to handle the same. The son took the property under the Will after his wife died. The heir had acquired the property in his own right, so the transfer would not be valid. The doctrine of feeding of grant by estoppel would not be applicable as against their heirs who succeeded stridhan properties of their grandmother if a son fraudulently transferred the property owned by his mother but never acquired any interest in it during his lifetime either by inheritance, succession or otherwise. There is no benefit of subsequent acquisition for the petitioner in such cases.
