Transfer of Property Act (TPA)
Feeding the Grant by Estoppel under Section 43, and Transfer by One Co-owner under Section 44
Two provisions, each dealing with a transferor who could not give all that he purported to give. Under section 43 he had no title at all, represented that he had, and afterwards acquired one: the transferee may then require the transfer to operate on what has come to him. Under section 44 he had a genuine but partial title — a share in property held with others — and the transferee steps into his shoes, with a right to joint possession and to a partition, subject to one important exception for the family dwelling house.
Figure 1: The grant fed by the after-acquired interest, and the position of a transferee from a co-owner
1. Section 43: The Section
Section 43, TPA '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.' |
2. The Essentials of Section 43
- A fraudulent or erroneous representation by the transferor that he is authorised to transfer the property. Dishonesty is not necessary — an honest mistake is enough, which is what the word 'erroneously' is doing.
- Immoveable property, and a transfer professed for consideration. A gratuitous transfer is outside the section.
- The transferor afterwards acquires an interest in the same property — by inheritance, by purchase, by partition, or in any other way.
- The contract of transfer is still subsisting. If the transferee has rescinded it, there is nothing on which the after-acquired interest can operate.
- The transferee elects to take. The section gives him an option; he is not obliged to accept the interest, and he may instead pursue his remedies for the breach.
- And the transferee must have been misled. One who knew that the transferor had nothing to give cannot invoke an estoppel; there was no representation on which he relied.
3. The Act's Illustration to Section 43
The three fields A, a Hindu who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorised to transfer them. Of these, field Z does not belong to A, having been retained by B on the partition. On B's death A obtains Z as heir. C, not having rescinded the contract of sale, may require A to deliver Z to him. The grant, made when A had nothing, is fed by the interest that has since come to him. |
4. The Proviso: A Later Bona Fide Transferee
The option created by section 43 is not absolute. The second paragraph preserves the right of transferees in good faith for consideration and without notice of the existence of the option. So if the transferor, having acquired the interest, sells it to a purchaser who pays value and knows nothing of the earlier transaction, that purchaser prevails and the first transferee is left to his remedy in damages. The section thus allocates the risk between two innocent people in the same way as the rest of the chapter.
5. Section 44: Transfer by One Co-owner
Section 44, TPA Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of the property or any interest in it, the transferee acquires, as to that share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition — but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Second paragraph — where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in the section entitles him to joint possession or other common or part enjoyment of the house. |
6. What the Transferee From a Co-owner Gets
Right | Position |
|---|---|
The share itself | He acquires the share or interest transferred — no more, since the co-owner could give no more |
Joint possession and common enjoyment | He steps into the transferor's shoes, so far as is necessary to give effect to the transfer — except in the dwelling-house case |
The right to enforce a partition | He may sue for partition, and this is his principal remedy where joint possession is denied him |
Subject to equities | He takes subject to the conditions and liabilities affecting the share at the date of the transfer — for example, an obligation to account, or a charge on the share |
Against the other co-owners | They cannot treat the transfer as a nullity; but their own rights in the property are unaffected |
7. The Dwelling-House Exception
- The property must be a dwelling-house. A commercial building or agricultural land is outside the second paragraph.
- It must belong to an undivided family. The expression is not confined to a Hindu joint family; it covers a family living in a state of union with respect to the house.
- The transferee must not be a member of the family. A transfer to another member of the family raises no objection.
- What is denied is joint possession, not the share. The stranger keeps what he bought and may sue for a partition — and when he does, the Partition Act, 1893 allows the family to buy him out at a valuation.
8. The Two Sections Compared
Point | Section 43 | Section 44 |
|---|---|---|
The transferor's position | He had no title at all, and misrepresented his authority | He had a genuine but undivided share |
The difficulty | There was nothing to transfer at the time | There was something to transfer, but it is held with others |
The remedy | The transfer operates on the after-acquired interest, at the transferee's option | The transferee takes the share, with the right to joint possession and to a partition |
Consideration | Essential | Not expressly required by the section, which speaks of a transfer of the share |
The protective limit | A later transferee in good faith for value without notice of the option | No joint possession in a family dwelling-house for a transferee who is not a member of the family |
Retention aid Forty-three feeds an empty grant; forty-four fits a purchaser into a shared one. In the first the question is whether the transferee was misled; in the second the question is whether the property is the family's home. |
9. Landmark Cases
📖 Jumma Masjid, Mercara v. Kodimaniandra Deviah, AIR 1962 SC 847 Held: The section enacts a rule of estoppel. Where a person transfers property representing that he is authorised to transfer it, and the transferee acts on that representation, the transferee is entitled at his option to have the transfer operate on the interest which the transferor subsequently acquires, provided the contract of transfer subsists and the transferee has not rescinded it. Ratio: The section applies wherever the transferee was misled, and it is not confined to cases where the transferor had some interest at the date of the transfer. |
10. Related Topics and Provisions
- Section 41 vs Section 43 — the two protective provisions compared
- Section 43 vs Estoppel — the statutory rule against the rule of evidence
- Section 43 vs Spes Successionis under Section 6(a) — and the decision in Jumma Masjid
- Section 44 and the Partition Act, 1893 — the stranger's suit and the family's right to buy him out
- Sections 45, 46 and 47, TPA — joint transfers, distinct interests, and transfers by co-owners
- Transferee With Notice vs Transferee for Consideration Without Notice — the proviso to section 43