TABLE OF CONTENTS

1. CHAPTER-I

• Section 6(a) of Transfer of property act

2. CHAPTER- II

• Section 43 of Transfer of Property act

• 18 of Specific Relief act

• Principle of Estoppel 114 QSO

3. CHAPTER- II

• To discuss difference between S. 6(a) and 43 to TPA

CONCLUSION

BIBLIOGRAPHY
 INTRODUCTION
The Transfer of Property Act 1882 contains specific provisions regarding what constitutes
transfer and the conditions attached to it. According to the Act, 'transfer of property' means an act
by which a person conveys property to one or more persons or himself and one or more other
persons. The act of transfer may be done in present or for future. The person may include an
individual, company or association or body of individuals, and any kind of property may be
transferred. In a legal context, the word “Property” refers to a collection of rights that can be
owned individually, collectively, or by a group of persons for enjoyment, destruction, or
disbursement.1

Blackstone defined property as „the sole and full dominion which a man claims over the things
of the world to the exclusion of others.‟ The term „property‟ originated from the Latin word
„proprius’ which means “one own” But it is not necessary that property needs to be something
materialistic, it can be virtual also.

In a legal atmosphere, there exist various provisions of property relating to its transfer and
existence. Consequently, properties are also separated into various categories having distinctive
features. To be specific, properties are of two types movable and immovable.

In the case of immovable property in real movement of rights, possession, and ownership takes
place.Under Section 3 of the Transfer of Property Act 1882, the term „immovable property‟ is
not defined distinctively. The section gives a concept of immovable property which states that the
standing timber, growing grass is not immovable property.Whereas the General Clauses Act
1897 states that immovable property is something attached to the earth, benefits of which arising
out of the land. The definition is given under Section 3 clause 26 of the Act.Also, the definition
given under Section 2 clause 6 of the Registration Act 1908 includes other particulates such as
hereditary allowances, rights to ways, light, ferries, fisheries, or those which are attached to the

earth .

1
1. Mulla, D. F. (2014). Transfer of Property Act, 1882. (14th ed.). LexisNexis Butterworths.
 CHAPTER-I
AN OVERVIEW OF SECTION 6(A) OF THE TRANSFER OF
PROPERTYACT

SECTION 6(a)

What may be transferred Property of any kind may be transferred, except as otherwise provided
by this Act or by any other law for the time being in force-
(a) The chance of an heir-apparent succeeding to an estate, the chance for relation obtaining a
legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be
transferred.
EXPLANATION

The general law lays down that all property is transferable under the section unless there is some
legal restriction to the contrary. Section 6 makes property of any kind alienable subject to the
exception set out which cannot be supposed to be selected by reason of the future character of
the chances.. It is well settled that a transfer of property clearly contemplates that the transferor
has an interest in the property, which is sought to be conveyed.2

First, in Chance of an Heir Apparent/ Spes Succession-The technical expression for the chance of
an heir apparent succeeding to an estate is called spes secessionis.

It means succeeding to a property. This means an interest which has not arisen but which may
arise in future. It is in anticipation or hope of succeeding to an estate of a deceased person. Such a
chance is not property an as such cannot be transferred. If it is transferred, the transfer is wholly
void . Clause (a) of section 6 of the Transfer of Property Act excludes mere chance of an heir
apparent of succeeding to an estate from the category of transferable property. The technical
expression for such a chance is „Spes Successionis‟. During the lifetime of a person. the chance
of his heir apparent succeeding to the estate or the chance of a relation obtaining a legacy under
his will is a „Spes Successionis‟(chance of succession). Such an expectancy does not amount to an
interest in property and cannot be made the subject matter of a transfer.

2
1. Singh, S. S. (1983). Transfer of Property Act, 1882: An Analysis. Journal of Indian Law
Institute, 25(2), 147-164.
 The general rule is that property of any kind may be transferred as laid down in s.6 and the
person pleading non-transferability must prove the existence of any usage or custom which
restricts the right of transfer. Clause (a) of section 6 of the transfer of property act discusses the
chance of an heir apparent to succeed to the property. A person having interest which is
spessuccessionisi.e mere expectancy to succeed to the property in future is not a right and is not
capable of being transferred. Such a person cannot bring a suit on the basis of such chance of
succession.

Where the transfer is not of the right of expectancy of an heir apparent but of the property itself,
it cannot be said to be a transfer of a mere chance to succeed. Thus, when a person is not heard of
for a long time and is believed to be dead an agreement to transfer the property entered into by his
brother who is in enjoyment and possession of the property in dispute is not a transfer of the right
of expectancy but of the property itself and is not hit by cl (a).3

Family Settlement

A family settlement is based on the assumption that there was an antecedent title of some kind in
the parties, and the agreement acknowledges and defines what the title was. It cannot be deemed
to be a transfer of property because by such arrangement no right, either vested or contingent is
conveyed by one party to another, it would not be hit by s.6(a) nor did it contravene the
provisions of Hindu law.

MOHOMEDAN LAW AND TRANSFER OF SPES SUCCESSIONIS

It has been held that in the case of Mohammadans the transfer of expectancy by a heir presumptive
is void ab initio and that no question of an estoppel can, therefore arise by reason of the heir
renouncing her claim before the expectancy opens

3
Journal of Indian Law Institute.
 CHAPTER-II

AN OVERVIEW OF SECTION 43 OF THE TRANSFER OF

PROPERTYACT

SECTION 43 (TPA)

Transfer by unauthorized person who subsequently acquires interest in property transferred.

Where a person '[fraudulently or] erroneously 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.

Noting in this section shall impair the right of transferees in good faith for consideration without
notice of the existence of the said option.

EXPLANATION

According to Section 43 of the Transfer of Property Act 1882, in case a person either fraudulently
or erroneously represents that he is authorized to transfer certain immovable property and does
some acts to transfer such property for consideration, then such a transfer will continue to operate
in future. It will operate on any interest which the transferor may acquire in such property.

This will be at the option of the transferee and can be done during the time during which the
contract of transfer exists. As per this rule, the rights of bona fide transferee , who has no notice
of the earlier transfer or of the option, are protected. This rule embodies a rule of estoppel i.e. a
person who makes a representation cannot later on go against it. Every person, who is competent
to contract, is competent to transfer property, which can be transferred in whole or in part. He
should be entitled
4

4
Journal of Law and Commerce
to the transferable property, or authorized to dispose of transferable property which is not his
own. The right may be either absolute or conditional, and the property may be movable or
immovable, present or future. Such a transfer can be made orally, unless a transfer in writing is
specifically required under any law.

CONDITIONS FOR APPLACATION OF S. 43

1. The transfer is an unauthorized person.

2. There is fraudulent and erroneous representation by transfer regarding his right to

transfer.

3. The transfer should be for consideration.

4. The transferor subsequently acquires authority for the transfer.

S. 114 OF QANUN-E-SHAHADAT ORDER, 1984

Estoppel: When one person has by his declaration, act or omission, intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief, neither he nor
his representative shall be allowed, in any suit or proceeding between himself and such person or
his representative, to deny the truth of that thing.

It means that when a person by his words or by his conduct makes a representation to another
that certain state of things is true and induces him to act on that belief and when the other person
relying upon the representation alter his previous position, then the person making such
representation would be estopped from denying the truth of his previous representation.
APPLACTION OF ESTOPPEL (114 QSO) ON SECTION 43 OF TPA
Estoppel will come into play when a transfer is made by person who has no title to that property
transferred but later on he acquires title to that property. This will be at the option of the transferee
and can be done during the time during which the contract of transfer exists. As per this rule, the
rights of bona fide transferee , who has no notice of the earlier transfer or of the option, are
protected. This rule embodies a rule of estoppel i.e. a person who makes a representation cannot
later on go against it. Every person, who is competent to contract, is competent to transfer
property, which can be transferred in whole or in part. He should be entitled to the transferable
property, or authorised to dispose off transferable property which is not his own. The right may be
either absolute or conditional, and the property may be movable or immovable, present or future.
So grant of estoppel will be provided and transferor is to be transfer that title under doctrine of
estoppel.
APPLACTION OF ESTOPPEL (114 QSO) ON SECTION 6 (A) AND ITS
DIFFERENTIATION
WITH SECTION 43 OF TPA

Transfer of property in section 6 is ab intio void and it is totally forbidden by law being against
public policy. Grant of estoppel will not be provided in this case because situation in 43 is
different from 6 in many aspects. In the case of spes successionis the transfer by heir apparent is
ab intio null and void. Similarly where property is non transferable within meaning of sec 6
clause a, 43 cannot validate the transfer because initial transaction is itself contrary to law.
Secondly, Mohammadan law doesn‟t allow the transfer of spes successionis.
Transfer of property in section 6 a is based on expectancy which may or may not be acquired so
chance is based on hope.Section 43 apply where transfer misrepresent the title and doesn‟t
represent the right in spes successionis. But is transfer represent spes successionis then transferee
cannot acquire benefit of 43.

Section 6 prescribes a rule of substantive law and Section 42 prescribes procedural for estoppel.
Section 42 applies to case when transferor has non transferor interest which subsequently become
transferable. Section 43 cannot be applied to the transfer of chance of spes successionis it applies
only when transfer purports to be one of present interest in property and transferee is not aware
of defect of title.
 CASE LAW ON CONTROVERSY OF 43 AND 6 of TPA

There appears to be some conflict between section 43 and section 6(a) dealing with the non-

transferability of spes sucoessionis and some controversy was raised to this effect. But the

supreme court in Jumma Masjid, Mercara v. Kodimaniandra,1 set at rest the controversy

holding that both the provisions can be given full effect in their respective spheres.

The court held that when a person transfers property representing that he has present interest

therein whereas he has, in fact, only a spes successionis, the transferee is entitled to the

benefit of section 43 if he has taken the transfer on the faith of that representation and for

consideration. There is no conflict in sections 41 and 43 and both can operate simultaneously.

In Jumma Masjid case, an heir apparent sold his would be share In a join property to the

Masjid, claimed the subsequently acquisition under section 43 as the contract was not

revoked. The argument of the transferor was that interest at the date of transfer was one of spes

successionis and void ab initio under section 6(a). it was argued further that a transfer void

under section 6(a) cannot be validated by invoking section 43.

1
A.I.R 1962 S.C. 847
The Supreme Court held that section 43 would apply and subsequent acquisition shall pass on to

the Masjid. The court held section 6(a) was a rule of substantive law whereas section 43 is a rule

of evidence. It is based on estoppel.

DISTINCTION IN 43 TPA AND 114 QSO

Both section deals with estoppel but there is distinguishing factor. According to the 43 of transfer
of property act, erroneous representation is enough but under article 114 it must be made
intentionally and falsely. Where state of things is known to both and there is no proof of erroneous
misrepresentation, question of estoppel does not arise.

SECTION 18 OF SPECIFC RELIEF ACT

Purchaser‟s rights against vendor with imperfect title. Where a person contracts to sell or let
certain property, having only an imperfect title thereto, the purchaser or lessee (except as
otherwise provided by this Chapter) has the following rights:–

(a) if the vendor or lessor has subsequently to the sale or lease acquired any interest in the
property, the purchaser or lessee may compel him to make good the contract out of such
interest;
 CHAPTER-III

DIFFERENCE BETWEEN SECTION 43 OF TPA AND 18 OF SPECIFIC RELIEF ACT

The Specific Relief Act came into force in 1877 whereas the Transfer of Property Act, came into
force in 1882. It is true that there is some overlapping between section 43 of the Transfer of
Property Act and Section 18(a) of the Specific Relief Act, hut there is an essential difference
between the two. Section 43 of the Transfer of Property Act applies only where there is
fraudulent or erroneous representation by the transferor and there is a transfer of property for
consideration.Then, at the option of transferee such transfer may operate on any interest which
the transferee may acquire in the property at any time. Section 18(a) of the Specific Relief Act is
however restricted to two classes of transfers only namely sale or lease, and not to any other
class.

Recognition of estoppel in S.18

As in section 43 of Transfer of property Act the estoppel will be considered in Section 18 of

Specific Relief Act. Sale be seller who at the time of sale was not the owner and has inchoate
title in the property sold would confer title on purchaser when seller subsequently became owner
of property and acquired inchoate title in property sold on principle of estoppel.

SUPREME COURT’S OBSERVATION

 For application of Section 43, TPA, two conditions must be satisfied, Firstly, that there is a
fraudulent or erroneous representation made by the transferor to the transferee that he is
authorized to transfer certain immovable property and in the purported exercise of authority,
professed to transfer such - property for consideration. Subsequently, when it is discovered that
the transferor acquired an interest in the transferred property, at the option of the transferee, he
is entitled to get the restitution of interest in property got by the transferor, provided the
transferor acquires such interest in the property during which contract of transfer must subsist.

 It is settled law that the transferee must make all reasonable and diligent enquiries regarding
the capacity of the transferor and the necessity to alienate the estate of the minor. On satisfying
those requirements, he is to enter into and have the sale deed from the guardian or manager of
the estate of the minor. Under the Guardian and Wards Act, the estate of the minor cannot be
 alienated unless a specific permission in that behalf is obtained from the District Court.
Admittedly, no such permission was obtained. Therefore, the sale of the half share of the
interest of the son S made by his mother is void.5

 Section 43, TPA, feeds its estoppel. The rule of estoppel by deed of 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 required to enquire whether on own the mother as guardian of
minor son is competent to alienate 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 contact 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 on the time of the claim. A void contract is no contract in the eye of land and was

never in existence so the second limb of Section 43 is not satisfied .

6

5
. Legal Services India: transfer-of-property-act-1882
6
Law Finder: transfer-of-property-act-1882/section-43
 CONCLUSION

In cases like this, where there are limited grounds for getting the favor of the court, it is
necessary to consider some essential points. Those include the timing of the petitions filed, and
because the validity of the grounds won‟t be for a long time, after considering all the facts of the
case it is really necessary to raise the effective ground to get the decision of the court in favor of
the appeal. Even a small initiative could make the case upside down. For instance, if the
transferee did not claim for his transfer of property, then Jumma Masjid, will get all the grounds
to pull the case in his favor. So in case of subsequent appeals, it is important to analyze the facts
as a small gap can lead to a big change
 BIBLIOGRAPHY
Books:
1. Mulla, D. F. (2014). Transfer of Property Act, 1882. (14th ed.). LexisNexis Butterworths.
2. Singh, A. (2018). The Transfer of Property Act, 1882. (12th ed.). Eastern Book Company.
3. Shukla, V. N. (2017). Transfer of Property Act, 1882. (10th ed.). Central Law Publications.

Articles:
1. Singh, S. S. (1983). Transfer of Property Act, 1882: An Analysis. Journal of Indian Law
Institute, 25(2), 147-164.
2. Agarwal, V. K. (1990). Section 43 of the Transfer of Property Act: A Critical Study. Journal
of Law and Commerce, 10(1), 33-48.

Online Resources:
1. Indian Kanoon: transfer-of-property-act-1882/section-6
2. Law Finder: transfer-of-property-act-1882/section-43
3. Legal Services India: transfer-of-property-act-1882

Journals:
1. Journal of Indian Law Institute.
2. The Indian Law Reports.