Estoppel by Deed: in Writing", Is Known, Nowadays, As Estoppel by Deed. It Is A Rule, That, A Person Is Not

Chapter 4
Estoppel by Deed
One of the three kinds of estoppel, stated by Lord Coke as “estoppel by matter
in writing”, is known, nowadays, as estoppel by deed. It is a rule, that, a person is not
allowed to deny a statement of fact that he has made in a deed, nor is he allowed to
deny the validity of a property right that one has granted by deed. 995 Deeds, in former
times, were documents which had to be given effect under seal. The formality of seal
is not required in modern times, however, a deed is, generally, said to be validly
executed by an individual if it is signed by him in the presence of a witness or
witnesses who attest the signatures of parties upon such deeds. 996 Deeds are construed
in the same way as other documents save that where one party wishes to deny the
truth of a statement in the deed it may be estopped (prevented) from doing so by the
application of a rule known as estoppel by deed. 997 Estoppel by deed is based on the
principle that when a person has entered into a solemn engagement by a deed under
his hand and seal as to certain facts, he shall not be allowed or permitted to deny any
matter which he has so asserted.998 According to Halsbury‘s Laws of England,
Where there is a statement of fact in a deed made between parties, an

estoppel results, and is called ‗estoppel by deed‘999
Bigelow, states the principle of estoppel by deed in following words:
An estoppel by matter of deed may be defined to be preclusion against

the competent parties to a valid sealed instruments, and their privies, to
deny its force and effect by any evidence of inferior solemnity. 1000
995
Jonathan Michie,(ed.), Reader‟s Guide to the Social Sciences,(Fitzroy Dearborn, Chicago,2001)
available at
https://books.google.co.in/books?id=ip_IAgAAQBAJ&pg=PA499&lpg=PA499&dq=estoppel+by
+matter+of+writing&source (last accessed on 22nd September 2016)
996
Stephen Furst & Vivian Ramsey,Keating on Construction of Contracts,45(Sweet &
Maxwell,London,9th edition.(2012) Available at: book.google.co.in/books (last accessed on 13th
Nov. 2015)
997
Id.,at 89
998
Parma Nand v. Champa Lal, AIR 1956 All 225 at Para. 9
999
Halsbury‘s Laws of England ,volume 16(2): ―Estoppel‖,Paragraph 1052,(4th edition)
1000
Melville M Bigelow, A treatise on the Law of estoppel and its application in Practice” (Little,
Brown and Co,Boston,2ndedn,1876) available at (http://books.google.co.in/ books/ download/A_
185
Blackstone, in ―Commentaries on Law of England‖ has stated that ―a party to a
deed in most cases estopped or precluded from controverting any statement therein or
to show that it was executed with a diferent intent, or objects to which the deed itself
imports, except indeed, in cases of duress, fraud or illegality which defences the law
admits.‖1001 Recently, S. Vimala, J. of Madras High Court in Methavathy v.
Punyakodi,1002 defined the doctrine of estoppel by deed in following words:
Where there is a statement of fact in a deed between parties and

verified by their seals, an estoppel results and is called ‗estoppel by
deed‘. 1003
In the above stated case, the court held that where the defendant has executed
the sale deed in favour of plaintiff, he will be estopped from contending that the
plaintiff is not the owner of the said land. 1004 In the present chapter, an attempt is
made to study various aspects of the doctrine of ―estoppel by deed‖ and its application
in various branches of law especially in India.
4.1 Historical Background
The doctrine of Estoppel by Deed, gradually developed from estoppel by

record. In ancient times, statement contained in sealed writing, bound the party
making such statement and was conclusive against the party making it like a record.
An old Germanic principle stated that King‘s word is indisputable and King‘s seal to a
document makes the truth of the document incontestable. 1005 This principle led to the
modern doctrine of the verity of judicial records. In documents of private persons, the
indisputability of a document sealed by the king marked it with extraordinary quality,
much to be sought after. The habitual use of seal extended downwards from king to
private person in eleventh and twelfth century and was complete in thirteenth
Treatise_on_the_ Law_of_Estoppel. pdf%3Fid%3Dibs DAAAAQAAJ

%26output%3Dpdf%26hl%3Den) last accessed 16th Nov 20154
1001
Blackstone, Commentaries on Law of England, (Vol. 1, 1232) Available at
http://oll.libraryfund.org/title/2140 (last accessed on 16 October, 2016)
1002
(2013) 1 M.W.N Civil 126
1003
Id.,at Para. 9.2, Page 129
1004
Ibid.
1005
W.S Holdsworth,A History of English Law, Vol 9, 154( Methuen & Co. Ltd,London,1st edn,1926)
Available at https://ia801408. us.archive.org/35 /items/historyof english09holduoft/ history
fenglish09holduoft.pdf ( last accessed on 15 January,2015)
186
century.1006In this period, the basis of estoppel by record and estoppel by deed was
same. It was considered that a deed produced an estoppel, because, like a record, it
amounted to proof. Similar rules were applied to both kinds of estoppel. Thus, as
there could be no estoppel by record unless the court from which the record emanated
had jurisdiction, so the deed must be valid and operative in order to work as an
estoppel.1007However, with the passage of time, difference between a deed and record,
necessarily, gave rise to some differences in the mode in which the doctrine of
estoppel was applied. In the year 1584 it was held that though the parties might be
estopped by the deed, the jury is not bound. 1008 In the later centuries, the accepted
basis of estoppel by deed, like estoppel in pais was that the man‘s own act or
acceptance stopped or closed his mouth to allege or plead the truth. Thus, estoppel by
deed established itself on a basis totally different from that of estoppel by record.1009
In sixteenth century, in connection with estoppel by deed, the rule that an

interest in property, when accrues ―feeds the estoppel‖ had developed. As per this
rule, an estoppel could run with the land and bind it in the hands of successor in
title.1010 In other words, rule of ―feeding estoppel by grant‖ is that when a person
transfers a property to which he has no transferable title, on the day of transfer, but he
makes the representation that he has transferable interest therein and acting on that
representation, the transferee takes transfer for consideration and in the meanwhile if
the transferor acquires the transferable rights he (transferor and his privies) would be
estopped by English common law doctrine of ―estoppel by deed‖, from denying that
he has no transferable rights.1011
In India, the doctrine of ―feeding estoppel by grant‖ established in 19th

Century and was given statutory form while enacting Transfer of Property Act,
1882.1012 The doctrine of estoppel by deed, coupled with the doctrine of feeding the
estoppel, where a deed is a transfer for consideration, is embodied in Section 43 of the
1006
Ibid
1007
Id.,at 155
1008
Id.,at 157, Goddard‟s Case, (1584) 2 Co. Rep 40
1009
Id.,at 158
1010
Ibid., In Rawlyn‟s Case, reported by Coke in (1588) 4 Co. Rep 52a, it was held that if a person
makes a deed of lease of premises to which he has no title and afterwards acquires the title
during the term, he will not be admitted to deny that his lessee had a good title to the same.
1011
Ibid.
1012
Transfer of Property Act, 1882 Section 43 discussed in details later in this chapter.
187
Transfer of Property Act, 1882.1013 Apart from property law, the doctrine of estopped
by deed in embodied several enactments in India which are discussed in this
chapter1014
4.2 Nature and Basis of the Rule of Estoppel by Deed
The principle of estoppel by deed is also founded upon the public policy,
whereby, any party to the contract is hindered from defrauding the other or to resile
from assertions made by one and accepted by the other. The principle is, that, if a
distinct statement of facts is made in recital of an instrument, and a contract is made
with respect to that recital, the statement of fact contained in the recital would bind
the parties to that instrument and if an action is brought upon it, it would not be
1015
competent for the contracting parties to deny the recital. There are few rules of law
that are better established or are of greater antiquity than the one which has firmly
settled the question, that a man may irrevocably bind himself, by putting a seal to a
grant or a covenant or that he will not be allowed to disprove or contradict any
declaration or averment contained in an instrument.1016In Martin Cashin v. Peter
Cashin,1017 Judicial Committee stated the basis of the rule of estoppel by deed in the
following words.
In a case, where the person executing the deed is neither blind nor
illiterate, where no fraudulent misrepresentation is made to him, where
he has ample opportunity of reading the deed and such knowledge of
its purport that the plea of non est factum is not open to him, it is quite
immaterial whether he reads the deed or not. He is bound by the deed
because it operates as a conclusive bar against him, not because he has
read it or understands it, but because he has chosen to execute it. This
is equally true(apart from fraud) in equity as at law, except in those
1013
Seth Parmanand v. Champa Lal, AIR 1956 All 225 : (1956) All LJ 1 at Para. 10, Page. 3
1014
Negotiable Instruments Act, 1882, Indian Evidence Act,1872
1015
A.K Ganguly, ―Principles of Estoppel and Ultra Virus in Their Application to the Discharge of
Public Duties by Public Authorities‖ 41, Journal of Indian Law Institute, 335 (1999)
1016
Henry M. Herman, The Law of Estoppel, 232,(Albony W.C Little and Company, Washington
D.C, 1876) Available at :https://archive.org/details/lawofestoppel00herm. ( last accessed on 22nd
January 2016)
1017
AIR 1938 P.C 103
188
special cases wherein there is an equitable ground for setting aside or
rectifying the deed.1018
In the above stated case, the facts were, that a person made gift of certain
bonds in favour of his wife and also made certain bequeaths in favour of his sons by
way of will. After his death, Government claimed death duty upon the bonds. The
sons, including respondents, entered into a release deed with their mother, wherein
they gave up their claim on bonds upon the conditions that their mother will be liable
to pay the death duty upon the bonds and to satisfy legacies from the remaining
property. The mother fulfilled her obligations under the deed. After some years, the
respondent sought to challenge the deed upon the ground that the release deed was
family arrangement and hence contract of ubberrima fides(of utmost good faith)
wherein the appellant was under a duty to disclose all material facts which they have
failed. Rejecting the contention, the Judicial Committee of Privy Council observed
that there was not any fraud, misrepresentation or undue influence at the time of
execution of deed and therefore the deed could not be avoided by the respondents. 1019
The plea of estoppel by deed may be waived. In order to plead estoppel by deed
it is necessary that the party to an agreement, who seeks to rely on the plea of
estoppel, must not join issues of fact rather rely on the plea of estoppel. In His
Holiness Digya Darshan Rajendra Ram Doss v. Devendra Doss,1020 the question
related to the succession of office of Mohunt of a Tirupati Mutt. The immemorial
custom required that Mohunt should be North-Indian Brahmin. There was an
agreement between predecessors of parties by the terms of which appellant had been
acknowledged as North-Indian Brahmin. There was another agreement to the same
effect between the parties. Mukherjia. J, delivering Judgement for three Judge Bench
of Supreme Court, agreed with the Appellant‘s contention that recital raised clear plea
of estoppel in appellant‘s favour, but he could not take the benefit of plea of estoppel
as instead of relying on the plea he had joined issues with respondents at trial court as
well as at High Court.1021 The Court observed:
If the estoppel appears on the record and the party who is entitled to
take the advantage of it, instead of relying on it, goes to the issue on the
1018
Id.,at Page. 109
1019
Id.,at Para. 13, Page. 110
1020
AIR 1973 SC 268: (1973) 1 SCC 14
1021
189
fact, he puts the matter at large and the jury may disregard the
estoppel.1022
Execution of deed estops executants of the deed, as well as their heirs, to

challenge the averments of the deed. In Ram Swaroop v. Mahindru,1023 a partition of
property took place by compromise between the brothers. The partition was evidenced
by execution of deed which was signed by all the brothers including the father of the
respondent. The respondent sought to challenge the partition several years after he
attained majority. The Division Bench of the Supreme Court, speaking through
Justice Laxmanan, while reversing the order of two lower courts, held, that as the
―partition took place with the consent of the parties including the father of the
respondents as such the respondents are estopped from filing the suit‖ 1024 The court
further observed:
The consent for compromise was given by the father of the plaintiff,
who was one of the signatories to the compromise deed, and once the
consent having been given cannot be challenged by his successors or
withdrawn unless the same has been obtained by fraud and/or is
contrary to law.1025
The executant of deed cannot raise the contention that the deed was a mere
formality and it has no statutory basis and hence not binding on him. In Union of
India v. Maharastra State Electricity Board ,1026 the respondent was consignee, who,
suspecting, that the goods send by the consignor through railway of appellant were
damaged, demanded open delivery of the consignment to which the representatives of
railways agreed. A certificate of ―short supply‖ was jointly prepared by railways and
the respondent and duly signed by representatives of railways. 1027 The High Court,
after taking note of these facts, held:
Preparation of shortage certificate was a joint venture and the

appellants cannot be heard to say that it was an empty formality and
what was done, was not provided anywhere under the Indian Railways
Act or rules framed thereunder, and therefore, not binding on it. The
1022
Ibid.
1023
(2003) 12 SCC 436
1024
Id.,at Para. 23, Page 446
1025
1026
(2010) 7 Mh.L.J 609
1027
190
railways cannot be allowed to question the certificate or resile
therefrom, by virtue of the principle of estoppel by deed.1028
4.3 Estoppel by “Recitals in a Deed” and “Operative Part of the Deed”
Deeds are conventionally divided into various sections or parts, all of which
may give rise to an estoppel by deed. Recitals follow the introduction to the deed and
usually begin with the word ‗WHEREAS‘. They are generally used to explain or
narrate the factual background and purposes of the deed. 1029 The expression ―recitals‖
means statements in a deed, agreement or other formal instrument, introduced to
explain or lead up to the operative part of the instrument. Recitals are further divided
into narrative recitals which set forth the facts on which the instrument is based and
introductory recitals which explain the motive for the operative part. 1030
Normally, a recital is evidence as against the parties to the instrument and

those claiming under them and in an action upon the instrument; operate as an
estoppel, though that would not be so in a collateral matter.1031 When recital is
intended to be a statement which all the parties to the deed have mutually agreed to
admit as true, it is an estoppel upon all, but when it is intended to be a statement of
one party only, the estoppel is confined to that party, and the intention is to be
gathered from construing the instrument.1032 In Thayyullathil Kunhikannan v.
Thayyullathil Kalliani,1033 Vishvanatha Iyyer Justice, speaking Division Bench of
Calcutta High Court, observed:
The recitals in a document or arrangement are evidence as against the

parties to the document. If a statement is deliberately made and parties
have acted upon the document, the recitals on the faith of which other
party has acted, induced on the strength of the facts, and the position
1028
Ibid.
1029
Sean Wiken and Theresa Villers,Waiver Variation and Estoppel, 217(John Wiley & Sons
Ltd,West Sussex England,1998)
1030
Ram Charan Das v. Girijanandini Devi, AIR 1966 SC 323 at Para. 9, Page. 327
1031
Ibid.
1032
Greer v. Kettle, [1988] HL 156 at 170
1033
AIR 1990 Ker 226
191
adumbrated in the document operates as an estoppel in favour of the
parties. 1034
The operative part of the deed follows the recitals and is usually introduced
with the words ‗NOW THIS DEED WITNESSETH AS FOLLOWS‘. This section of
the deed contains the provisions accompanying the purpose of the instrument, such as
the promises which go to make-up the relevant contract or transaction. 1035 In Taylors
Fashions Ltd v. Liverpool Victoria Trusts Ltd,1036 Mr. Justice Oliver held:
Normally, estoppel by deed arises from recitals, but that is not essential
feature of this rule. Estoppel may arise by a clear and distinct averment
in operative part.1037
4.4 Estoppel by Deed under Indian Evidence Act,1872
Section 117 of the Indian Evidence Act, 1872,1038 deals with a particular kind
of estoppel by deed.1039This section deals with three instances of estoppel by
agreement, namely (i) against the acceptor of a bill of exchange, (ii) against a bailee,
and (iii) against a licensee. In all the three cases, there is an express or implied
agreement which forms the basis of the relationship created by the parties. 1040
The provision of law, contained in Section 117 of Indian Evidence Act, 1872,
estops the acceptor of bill of exchange, bailee, and licensee to deny the title of persons
from whom they have derived their rights over bill of exchange, or other property.
The latter half of this section relates to estoppel of bailee or licensee. In particular,
estoppel against bailee has great utility. 1041 A bailee will be estopped to plead his own
title against the bailor, and if he claims upon the title of a third person, he will be
1034
1035
Ltd,West Sussex England,1998)
1036
(1981) WLR 576
1037
Id.at 600
1038
―117. Estoppel of acceptor of bill of exchange, bailee or licensee. --- No acceptor of a bill of
exchange shall be permitted to deny that the drawer had authority to draw such bill or to endorse
it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had at the time
when the bailment or license commenced, authority to make such bailment or grant such
license.‖1038
1039
Per Seshagiri Aiyar, J, In Venkata Chetty v. Aiyanna Goundan, AIR 1917 Mad 789: (1917) 5
LW 307 at 316
1040
Law Commission of India, 69th Report on Indian Evidence Act,1872 (May 1977) at Para. 59.1
1041
Law Commission of India, 69th Report on Indian Evidence Act,1872 (May 1977) at Para. 59.6
192
bound to categorically assert and prove such title. In Rogers, Sons & Co. v. Lambert
& Co. 1042 the Court of Appeal held that the bailee of goods cannot avail himself of the
title of third person to the goods as a defence to an action of detenue by the bailor
except by further showing that he is defending the action on behalf and by the
authority of such third person.1043 In this case, the plaintiff purchased certain goods
from defendants and paid the price. Under an ordinary warehousing agreement, the
goods were kept with defendants. The plaintiffs sold the goods to third party before
they made delivering orders to defendants for supply of goods to them. The
defendants refused to deliver possession, not mentioning the title of third party but on
their own right. Lord Esher observed, that a bailee can set up the title of another only
if he defends upon the right and title and by the authority of that person. He must
allege that title and prove it. 1044 Their Lordship further held:
Indeed, the defendants have said in deliberate terms that they are not
defending the action for anyone else, but are defending for themselves
only. As between plaintiff and defendants, the defendants have no
title.1045
In Calcutta Credit Corporation v. Prince Peter of Greece, 1046 plaintiff

delivered a car for repairs in the garage of defendant no. 2 for repairs. The car was
destroyed by fire while in was in garage. In a suit for damages, defendant no. 2, inter
alia, contended that the plaintiff was not the real owner of the car. The court observed
the fact that in written statement, defendants have admitted the fact that the car was
delivered by the plaintiff. A letter acknowledging the receipt of the car was issued by
defendant no. 2 to the plaintiff immediately after they received the car for repairs.
Upon these facts, the court held that relationship bailor and bailee between the
plaintiff and defendant was established and suit cannot be thrown out on the ground
1047
that plaintiff had no title. The court further held that the matter is concluded by
1042
(1891) 1 QBD 318
1043
Id.,at 325
1044
Ibid.
1045
Id.,at 326
1046
AIR 1964 Cal 374
1047
193
article 117 of the Indian Evidence Act, 1872 and the finding of the learned trial court
cannot be assailed.1048
The doctrine of estoppel against bailee and licensee has been resorted to
preclude his plea of adverse possession against the person putting them in possession.
In Balram Chunnilal v. Durgalal Shivnarain,1049 the pujari (priest) of the temple was
given possession of the temple, from generation to generation, for the purpose of
worship etc. by the as panchas of the village. In a suit for eviction by panchas on
ground of mismanagement, they sought to raise the plea of adverse possession against
the panchas. The Court after examining the relationship between the parties
concluded that the pujaries were merely licensee appointed by the panchas who were
trustees on behalf of Idol of the temple, therefore, Section 117 of the Indian Evidence
Act, 1872 will apply and the pujaris will be estopped to deny title of Panchas. Justice
Krishnan Speaking for Division Bench of Madya Pradesh High Court, held, that heirs
of pujaries cannot claim adverse possession. 1050 He further observed:
Anyone getting possession of the property whether movable or

immovable in a fiduciary capacity, whether as a servant or trustee is
estopped in that capacity from asserting his own title. This is a basic
principle of estoppel and is ultimately derived from the fundamental
principle of justice that no law court should put premium on dishonesty
or breach of trust.1051
The rule that acceptor of bill or exchange, bailee or licensee will be estopped
from denying the authority or the person, from whom they have obtained their rights,
is subject to some exceptions. The acceptor of a bill or exchange may deny that the
bill was really drawn by the person by whom it purports to have been drawn.1052 If a
bailee delivers the goods bailed to a person other than the bailor, he may prove that
such person had the right to them as against the bailor. 1053 Thus, the researcher
submits that the law is well settled that licensees and bailees, like a tenant, cannot
1048
Ibid.
1049
AIR 1968 MP 81
1050
1051
1052
Explanation 1 of Section 117, The Indian Evidence Act, 1872
1053
Explanation 2 of Section 117, The Indian Evidence Act, 1872
194
deny the title of the person from whom they have obtained rights over the property.
The law of estoppel thus promotes justice and honesty in property law.
4.5 Estoppel by Mortgage Deed
The execution of mortgage deed creates, between mortgagor and mortgagee, a

relation similar to landlord and tenant, and, therefore, mortgagor is estopped from
denying the title of mortgagee. A mortgagor must from the very nature of mortgage,
contract to preserve the property pledged as original security. The court never allows
mortgagor to set up a title of a third person against mortgagee. 1054 Mortgagee is
estopped to plead that he had no title at the time of execution of mortgage and that the
property belonged to his wife, if he has expressly mortgaged the property upon the
representation that the property belonged to him. 1055
Mortgagor is not estopped to challenge the title of persons who claim to have
derived title from original mortgagee. In Basdeo Prasad v. Dwarika Pandey,1056 a suit
for redemption of mortgage was filed by persons claiming successors of original
mortgagors. The title of plaintiffs was challenged by defendant mortgagees. The
question before the court was, therefore, if the mortgagees will be estopped to
question the title of successors of mortgagee. Dawsaon Miller, C.J of Patna High
Court held, that in a suit for redemption, where plaintiffs are not original mortgagors,
but persons claiming to be entitled to share under the partition of a properties of
original mortgagors, the defendants are entitled to challenge the plaintiff‘s title as this
case is different from the cases where mortgagee sets up a paramount title as against
his original mortgagor.1057
The principle of estoppel bars mortgagee to claim adverse possession against

mortgagor. In Jai Nandan Tewari v. Umrao Keori,1058 Ashworth, J. of Allahabad
High Court observed that ―It is well established that a mortgagee cannot deny the title
of his mortgagor and set up adverse possession unless he actually leaves the holding
1054
Debendra Nath Deb v. Mirza Abdul Samad, 1 Ind Cas 264. Available at
www.Indiankanoon.com/doc/494542 (last accessed on 17 October, 2016)
1055
Chokkalingam Chettiar v. Athappa Chettiar, (1927) 53 MLJ 364. Available at
www.Indiankanoo/doc/1316363 (last accessed on 17th October, 2016)
1056
(1923) ILR 2 Pat. 805
1057
Id., at 807
1058
AIR 1929 All 305
195
and re-enters under a different status‖1059 A coparcener is not estopped to question a
mortgage entered into by mortgagee on the ground that the mortgagee was not for
family necessity provided that he was not party to such mortgage.1060
4.6 Estoppel by After Acquired Title or Feeding Grant by Estoppel
Estoppel by deed may arise against granter or landlord who had no title at the
time when the grant was made. If the granter acquires title after the defective grant,
the estoppel is said to be fed and estate by estoppel is converted into an estate in
interest. The grantee, thereby, acquires genuine title as soon as granter obtains it.
There is no need for the granter to execute a fresh conveyance. Once the estoppel is
fed the grantee‘s title is as effective as if it had been granted in the orthodox
manner.1061 In case, where there is an express recital of title, the granter will be
estopped from denying that he had the particular legal title averred. Consequently, the
grantee‘s title will be fed on the acquisition of sufficient title by the granter, whether
or not the grantor had some lessor legal estate at the time of the grant. Where there is
no express recital, the granter will be estopped only from denying that he had some
1062
form of legal title. Under the Common Law, a man who sells property which does
not belong to him, and afterwards acquires title as enables him either wholly or
partially to perform the contract, he is bound to do so, and the subsequently acquired
estate feeds the estoppel which arises out of the vendor‘s covenant for title, express or
implied.1063
The English doctrine of ―feeding grant by estoppel‖ has been explained Privy
Council in Rajapakse v. Fernando.1064 In this case, one Thomas Carry acquired
certain lands in grant from the Crown. He became legally entitled to the land on
February 22, 1912. Prior to this, he had conveyed the same land to the predecessors of
respondent by the deed executed on December 11, 1909. Their Lordship held that the
benefit of subsequent acquisition of title by Thomas Carry will go to respondent‘s
1059
1060
M.Monir,Law of Evidence,2214(Universal, Delhi 15th Edition, 2012)
1061
Ltd,West Sussex,1998)
1062
Id.,at 239
1063
Johari v. Dropadi, (1997) MP.L.J 217 at Para. 10, Page. 223
1064
(1920) AC 892
196
predecessor.1065 While considering the application of English doctrine of feeding
grant by estoppel, Judicial Committee of the Privy Council observed:
English doctrine implies that where a grantor has purported to grant an

interest in land which he did not at the time possesses, but subsequently
acquires, the benefit of his subsequent acquisition goes automatically
to the earlier grantee, or as is usually expressed, ―feeds the
estoppel‖.1066
The principle of ―feeding grant by estoppel‖ is also based on the equitable

doctrine that a man who has promised more than he can perform must make good his
contract when he acquires the power of performance. 1067In Holroyd v. Marshall,1068
the House of Lords held, that, if the future sale or mortgage were sufficiently
earmarked at the time of the contract and were such that equity might decree specific
performance of it, equity will place the property in a state of anticipatory isolation so
as to give the beneficial interest therein to the intended transferee, directly the
property comes into existence or falls into the hands of the intended transferor.1069
The English doctrine of ―feeding grant by estoppel‖ has been adopted in India. In
Tilakdhari v. Khedan Lal,1070 Lord Buckmaster, speaking for Judicial Committee of
Privy Council, deciding an appeal from Bombay High Court observed:
This principle of law, which is sometimes referred to as feeding the

grant by estoppel is well established in this country. If a man who has
no title whatever to property grants it by a conveyance which in form
would carry the legal estate, and he subsequently acquires an interest
sufficient to satisfy the grant the estate instantly passes. In such a case
there is nothing on which the second grant could operate in prejudice
to the first.1071
The principle of feeding grant by estoppel has statutory basis in India under
Section 43 of the Transfer of Property Act, 1882 which embodies the rule of estoppel
1065
Id., at 897
1066
Ibid.
1067
Abdul Kabir v. Mt. Jamila khatoon, AIR 1951 Patna 315 at Para. 6
1068
(1862) 10 H.L.C 191
1069
Id., at 196
1070
AIR 1921 P.C 112
1071
Id.,at Para. 31
197
by deed. This section enables the transferee to whom a transfer is made on fraudulent
or erroneous representation to lay hold at his option of any interest which the
transferor may subsequently acquire in the property provided by doing so he does not
adversely affect the right of any subsequent purchaser for value without notice. 1072 It
is immaterial whether the transferor acts bona fide or fraudulently in making the
representation, common law rule of estoppel by deed known as ―feeding the estoppel‖
comes into play in as much as the subsequent estate passes to the transferee, without
any further act of the transferor.1073 Section 43 of the Transfer of Property Act, 1882
reads as follows:-
Section 43. Transfer by unauthorised person who subsequently

acquires interest in the property transferred. ---Where a person
fraudulently or erroneously represents that he is authorised 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.
Nothing in this section shall impair the rights of transferees in good

faith for consideration without notice of the existence of the said
option.1074
The section, in its terms, clearly applies 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. 1075 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 up or cancelled and is been subsisting1076
There is an exception under section 43 of the Transfer of Property Act, 1882 in favour
of transferees for consideration in good faith and without notice of the rights under the
1072
Ram Bhawan Singh v. Jagdish, (1990) 4 SCC 309 at Para 10, Page. 313
1073
Johari v. Dropadi, (1997) MP.L.J 217 at Para. 10, Page. 223
1074
Transfer of Property Act, 1882, Section 43
1075
Jumma Masjid, Mercara v. Kodimaniandra, AIR 1962 SC 84 at Para 7, Page. 89
1076
Ibid.
198
prior transfer. But apart from that the section is absolute and unqualified in its
operation.1077
The rule of feeding grant by estoppel is also known as the ―rule of estoppel by
deed by transferor.”1078 In order to claim the benefit of doctrine of estoppel by
feeding the grant by estoppel under Section 43 of the Transfer of Property Act, 1882
the claimant, in his case, will have to establish following conditions:1079
(a) That the transferor, who makes or made the transfer of the
property, had no title in the property at the time of making the
transfer.
(b) That the transferor represents or did represent to the transferee that
he is the person who has got the transferable interest or title to the
property.
(c) That the transferee acts on the representations of the transferor, and
believing on the representations of the transferor, takes the transfer
for valuable consideration.1080
Section 43 of the Transfer of Property Act, 1882 clearly applies 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 the 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 up or cancelled
and is subsisting.1081
The only exception provided in this section is in favour of transferees for

consideration in good faith and without notice of the rights under the prior transfer.
But apart from that the section is absolute and unqualified in its operation. It applies
to all transfers which fulfil the conditions prescribed therein. This section is
1077
Ibid.
1078
T. Ramareddy v. The Tehsildar Bangarpet Taluk, ILR (2000) KAR 1637, at Para. 8
1079
Ibid.
1080
Ibid.
1081
Jumma Masjid v. Kodimaniandra, 1962 SC 84 at Para. 7, Page. 86
199
applicable whether the defect in title of transferor arises by reason of his having no
title in the property or by reason of his having an interest therein being an expectant
heir.1082
Before the Amendment Act 20 of 1929, the original words in Section 43 of

the Transfer of Property Act, 1882 were ―where a person erroneously represents‖ and
now as amended by the said act they are ―where a person fraudulently or erroneously
represents‖. The change brought by the Amendment emphasises that for the purpose
of the section it matters not whether the transferor acted fraudulently or innocently in
making the representation, and that what is material is that he did make a
representation and the transferee has acted on it.1083
There is distinction between the rule of estoppel contained in Section 43 of the

Transfer of Property Act, 1882 and the one contained in Section 115 of the Indian
Evidence Act, 1872. In the former, estoppel which exists by reason of representation
has the effect of transferring the property to the purchaser the moment the transferor
obtains the same during the subsistence of the contract. In the latter case, there is no
question of any transfer of Property or of feeding the original grant.1084 The persons
who make the representation and his successors are merely precluded from denying
that they did not have the interest, which by reason of their representation they made
the transferee to believe and to act upon such belief to their detriment. Section 43 of
the Transfer of property Act, 1882 has the effect of vesting title in the property, while
Section 115 of Evidence Act, 1872 has no such effect. 1085
Section 43 of the Transfer of Property Act, 1882 differs from English doctrine
of feeding estoppel by grant in some respects. Under Section 43 of the Act, the
transfer of subsequently acquired property takes place automatically as in the English
law. But, it takes place not at the moment when the interest is acquired but at the
moment transferee exercises its option that the interest shall stand transferred to him.
1086
Secondly, Indian law, as embodied in Section 43 of the Transfer of Property Act,
1882, unlike English law, does not apply the doctrine of feeding the estoppel so as to
1082
Ibid.
1083
Ram Pyare v. Ram Narayan, (1985) 2 SCC 162 at Para. 4, Page. 167
1084
Arnlayi v. Jagdeesiah, AIR 1964 Madras 122
1085
Id., at Para. 18, Page. 227
1086
Seth Parma Nand v. Champa Lal, AIR 1956 All 225 : (1956) All LJ 1 at Para. 15, Page. 4
200
impair the rights of subsequent transferees in good faith, for consideration, without
1087
notice of the existence of the option in the prior transferee.
The Doctrine of feeding estoppel had been applied by courts in India even
before enactment of Transfer of Property Act, 1882. In Krishna Chandra Ghose v.
Rasik Lal Khan,1088 Chowdhary and Newbound , JJ. of Calcutta High Court, applied
the equitable principle of feeding estoppel by grant with respect to a Patta (lease
deed) created at a time when Section 115 of the Evidence Act, 1872 or Section 43 of
the Transfer of Property Act,1882, were not enacted and applied the general rules of
equity as applicable in England. In this case, four ticca(temporary) tenants of certain
land having no right to grant a permanent sub-lease granted by a patta a permanent
sub-lease to the defendants‘s predecessor-in-interest in land held by them, and
subsequently, two of them gave up their tenancy and the other two obtained a
permanent interest by a settlement in the whole land. The plaintiff purchased the land
from the latter two tenants and sued for declaration of his title and recovery of
possession. The Court held that inasmuch as the plaintiff denied his title from two of
the granters, he was estopped from denying the validity of the permanent sub lease on
ground that at the time of the grant the grantors had no title to grant such sub lease.
1089
The Court further observed:
There is however, ample authority to be found in Indian cases

respecting leases for the following proposition, that when a granter by
a recital is shown to have stated that he is seized of a specific estate,
and the Court finds that the parties proceeded upon the assumption that
such an estate was to pass, an estate by estoppel is created between the
parties and those claiming under them in respect of any after acquired
title being said to feed the estoppel.1090
In Jan Mohammed v. Karm Chand, 1091 Privy Council considered the rights of
vendee in a situation when sale is made by part owner on representation as sole
owner, but, who, in fact subsequently acquires title as sole owner. In this case, the
1087
Ibid.
1088
AIR 1917 Calcutta 433
1089
Id.,at 433
1090
Id.,at 444
1091
AIR 1947 P.C 99
201
widow of a deceased Mohammedan was entitled to a share in the property of the
deceased but she sold the entire property on the representation that she was the sole
owner thereof; subsequently she inherited the share of her daughter in the property.
The Judicial Committee of the Privy Council, speaking through Lord Thankerton,
held that under the sale besides the share of widow the vendee could also claim the
share inherited by the widow from her daughter. 1092
The scope of Section 43 of the Transfer of Property Act, 1882 has been
considered by the Apex Court in a series of cases. In Jumma Masjid Mercara v.
Kodimaniandra,1093 Supreme Court held, that where the transferee knows the fact that
the transferor does not possess the title which he represents he has, then he cannot be
said to have acted on it while taking a transfer, and therefore, in such a situation
section 43 of the Transfer of Property, 1882 would have no application. 1094 In this
case, the respondent, who was heir apparent, sold to the appellant Masjid his would be
share in the suit property. When he became entitled to the property, the appellant
took the plea that he was protected under Section 6 (a) of the Transfer of Property
Act, 1882 which says that mere right to succeed in a property cannot be transferred.
Thus, the sole question for determination before Apex Court was, whether a transfer
of property for consideration made by a person who represents that he has present and
transferable interest therein, while, in fact, he has only a spec succession(mere right to
succeed), is within the protection of Section 43 of the Transfer of Property Act, 1882.
Justice Venkatarama, speaking for the Bench of four Judges of the Supreme Court
held:1095
But section 6(a) and section 43 relate to two different subjects and
there is no necessary conflict between them. Section 6(a) deals with
certain kinds of interests in property mentioned therein, and prohibits a
transfer simpliciter of those interests. Section 43 deals with
representations as to title made by a transferor who had no title at the
1092
1093
AIR 1962 SC 84
1094
Id.,at Para. 15
1095
Id.,at Para. 9
202
time of transfer and provides that the transfer shall fasten itself to the
title which the transferor shall subsequently acquire.1096
In Ram Pyare v. Ram Narain,1097 Supreme Court reiterated that the knowledge
of transferee, and not the transferor, will determine the applicability or otherwise of
the doctrine of feeding grant by estoppel as laid down in Section 43 of the Transfer of
Property Act, 1882.1098 In this case, one Matbar Mal, who had Sirdari rights over the
disputed land, deposited an amount equal to ten times the land revenue payable on the
land in order to acquire bhumidari rights. He could, thus, acquire the rights under
Section 134 of the U.P Zamindari Abolition and Land Reform Act, 1950 as it then
stood. He sold the land on the same day the amount was deposited. The Court after
examining the relevant law reached the conclusion that Sirdar acquired Bhumidari
rights on the date of issue of certificate and not on the date of deposit of amount. The
Apex Court held that plaintiffs, who were sons of vendor Matbar Mal, will be
estopped to claim that the transfer was void as the vendor had not acquired title on the
date of transfer, and the provisions of Section 43 are clearly attracted in this case. 1099
The Apex Court has maintained the position that the doctrine of feeding grant by
estoppel does not apply if the transferee is not misled and knew the factum of lack of
title of transferor at the time of transfer. In Kartar Singh (Dead by Legal
Representatives) v. Smt. Harbans Kaur,1100 the respondent executed a deed of sale of
land in favour of appellant, on behalf of herself and her minor son. The fact, that part
of the land was owned by the minor son and she was executing sale deed on his
behalf, was mentioned in marginal note of the sale deed itself. The son, on attaining
majority, filed a suit for declaring the sale of his share by his mother as void, as she
was not competent to make such transfer. He got the decree but died before he could
execute it and the respondent; mother succeeded the Land as per provisions of Hindu
Succession Act, 1955. The appellant then claimed his right over the Land under
Section 43 of the Transfer of property Act, 1882. The Division Bench of the Apex
Court, in this case, concluded that the rule of estoppel by deed by the transferor or the
rule of feeding estoppel by grant as embodied in Section 43 of the Transfer of
1096
Ibid.
1097
AIR 1985 SC 694 : (1985) 2 SCC 162
1098
1099
Ibid.
1100
(1994) 4 SCC 730
203
Property Act, 1882 would apply only when the transferee has been misled. Here, the
note in the sale deed had put the appellant on notice of the limited right of mother as
guardian, as a reasonable and prudent man the appellant was expected to inquire
whether on her own the mother as guardian of minor son is competent to alienate the
estate of the minor. If such acts were not done the first limb of Section 43 is not
satisfied.1101
The point of law, regarding fraudulent misrepresentation on the part of

transferor, laid down in Jumma Masjid v. Kodimaniandra,1102 has been quoted with
approval by Madhya Pradesh High Court in Johri v. Mahila Dropadi, 1103 wherein the
question before the Court was, whether the transfer of property made by the
respondent on behalf of her lunatic husband was a protected under Section 43 of the
Transfer of Property Act, 1882 after the death of husband and her consequent
entitlement to part of the property despite the fact that she had no authority to make
transfer as she was not next friend of the lunatic appointed by the court. Justice S.K
Dubey, while hearing the appeal, observed, that the purchaser was well aware at the
time of the purchase that the property belonged to the husband of respondent who was
a lunatic and this fact was mentioned in the sale deed itself. The court held that the
principle of feeding estoppel by grant is not applicable to facts of present case as the
transferee was aware of the fact that transferor was not entitled to transfer the
property. 1104 The Court further observed:
For applying this principle it is necessary that there must be fraudulent

or erroneous representation by the transferor in relation to his title and
the transferee must have acted on it, and subsequently a title is acquired
by such transferor, in that case the transferor cannot be heard to allege
anything contrary against the person who acts on that representation.
But before this principle is applied it has to be found at whether, in
fact, the transferee has been misled and whether there was any
1101
1102
AIR 1962 SC 84
1103
AIR 1991 MP 340
1104
Id at Para. 12, Page. 344
204
erroneous or fraudulent misrepresentation and the transferee has acted
on it.1105
Another significant question, related to application for the doctrine of feeding

estoppel by grant is whether the principle applies to transfer of property without
consideration or it is limited merely to transfer for consideration. There are conflicting
decisions of High Courts upon this point of law. In Ganga Baksh Singh v. Madho
Singh,1106 Constitutional Bench of the Allahabad High Court, speaking through Chief
Justice Malik, held that Section 43 of the Transfer of Property Act, 1882 is applicable
only in case of transfer for consideration and not in case of gift. In this case, a widow,
not having the right to alienation of property wherein she had limited interest,
executed deed of gift of the property with the consent of reversioner who also was
party to the execution of the gift deed. The question before the court was, whether
reversioner could dispute the validity of gift after he became entitled to the estate after
the death of widow. The court, while answering the question in favour of reversioner,
observed:1107
The section, (Section 43 of Transfer of Property Act, 1882), however,

partly re-produces the doctrine of what is commonly known in England
as a grant feeding the estoppel shorn of some of its technicalities, but it
applies only to a case where a transfer is for consideration. A gift of
property in which a transferor has no interest will not be protected
under this section if the transferor acquires a title to the property after
the gift.1108
The contrary opinion was expressed by Supreme Court of India in Renu Devi
v. Mahendra Singh,1109 where the court applied the ―general principle‖ of feeding
estoppel by grant, to uphold the validity of a gift deed, despite acknowledging that
―Section 43 of the Transfer of Property Act, 1882 does not in terms apply to the facts
of present case.‖1110 In this case, a gift was made by donor, after the passing of
preliminary decree in his favour by the court in a partition suit. The title in property
did not vest in him at the time of transfer. The decree was challenged by certain
1105
1106
AIR 1955 All 288
1107
Id.,at Para. 16
1108
Id.,at Para. 16
1109
(2003) 10 SCC 200
1110
205
members of family who were not party to earlier suit. The donor‘s title to gifted
property was affirmed by final decree. The court held that the transfer was supported
by the doctrine of feeding estoppel by grant. 1111 Justice Lahoti, while delivering
judgement for Division Bench, observed:
The doctrine of feeding the grant by estoppel, which is in essence a

principle of equity, stands statutorily recognised in India by section 43
of the Transfer of Property Act. Section 43 of the Act does not in terms
apply to the facts of the present case, in as much as the deed dated 22-
3-1971 is not a transfer for consideration; we are referring to the
Section 43 as illustrative of the doctrine and its statutory recognition in
India.1112
The doctrine of feeding grant by estoppel, cannot, however, confer validity

upon an invalid deed or transfer of property. In Ram Bhawan Singh v. Jagdish,1113
Supreme Court held that the principle of feeding the estoppel is not applicable where
transfer itself is invalid. In this case, the deed conferring the tenancy rights to the
appellant was inoperative and invalid, because of subsistence of another lease
granting tenancy rights to another person, and not because of any fraudulent or
erroneous representation. The Court, upon facts, held that appellant acquired no
tenancy under Section 43 of the Transfer of Property Act, 1882.1114
In Jharu Ram Roy v. Kamjit Roy,1115 Supreme Court reiterated that the principle
of feeding estoppel by grant has no application where transferee had colluded with
transferor, and knew that transferor had no title at the time of transfer. In this case,
sale deed was executed by one son of the owner in favour of appellant during life time
of owner. In deeds of sale, transferor made stipulation regarding death of his father
(owner of property). After death of owner, another son filed suit for title, possession
and setting aside sale deeds. There was finding of first appellant Court, that the
appellant was party to the fraud, being aware of the fact that owner of the property
was alive at the time of execution of sale deed. Three Judge Bench of the Supreme
1111
Ibid.
1112
Ibid.
1113
(1990) 4 SCC 309
1114
1115
(2009) 4 SCC 60
206
Court, dismissing the appeal of transferee, held that being aware of the fact that actual
owner was alive the appellant was party to the fraud and not victim thereof. Since
fraud vitiates all solemn acts, Section 43 of the Transfer of Property Act, 1882 will
not apply. 1116
The doctrine of feeding estoppel by grant is not applicable if transfer of

property has been made in violation of express statutory provision. In N. Srinivasa
Rao v. Special Court, 1117 one Uppari Ramaiah, who was tenant of Kaneez Begum,
Purchased certain agricultural land from her. Before the date of execution of sale deed
in his favour, he transferred a part of land to Riasat Ali, in violation of Section 47 of
the Andhara Pradesh (Telangana Area) Tenancy and agricultural Lands Act, 1950.
Many years after the transaction, in a suit between the heirs of Uppari Ramaiah and
heirs of transferees of Riasat Ali, it was contended that by virtue of the principle
contained in Section 43 of the Transfer of Property Act, 1882, the heirs of Uppari
Ramaiah could not challenge transfer of land by him to Riasat Ali as Uppari Ramaiah
subsequently acquired the title. Upon this factual matrix the Apex Court held:1118
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 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 Rammaiah would not be available. 1119
Section 43 of the Transfer of Property Act, 1882 provides protection to

bonafide transferees for Consideration. In Brahmvart Sanatan Dharm Mandal v.
Prem Kumar,1120 three daughters succeeded to limited interest in property of their
Mother. Each daughter made alienations in favour of several persons during their
lifetime which were not objected to by others. Appellants had purchased property
from last surviving daughter who was in possession of entire estate left by her two
sisters. The reversionors did not object to transfer long after the death of last surviving
1116
1117
(2006) 4 SCC 214
1118
1119
Ibid.
1120
(1985) 3 SCC 350
207
daughter. In this circumstances, the Division Bench of the Apex Court Speaking
through Justice R.B Mishra, held that appellant ―transferees would be entitled to
protection of Section 43 of the Transfer of Property Act which substantially amounts
to satisfying the principle of feeding the grant by estoppel‖ 1121
Recently, in Agricultural Produce and Marketing Committee v. Bannamma

(Deceased through her legal representatives),1122 Supreme Court considered the
applicability of Section 43 of the Transfer of Property Act, 1882 in a situation when
transferor never got title over the property during his lifetime. In this case, the
property of original plaintiff was fraudulently or erroneously sold by her son to the
appellant/ defendants representing it to be his own property. Vendor never got the title
over the property and died during lifetime of plaintiff. After the death of Plaintiff the
appellant sought to enforce their claim under Section 43 against the sons of vendors
who acquired interest in the property of their grandmother. The Division Bench,
speaking through Justice Yusuf Eqbal, held that appellants will not get the benefit of
section 43 as the vendor never got title in the property during his life time. 1123 The
Court observed:
Section 43 of Transfer of Property Act, 1882 applies when the

transferor having no interest in the property transfers the same but
subsequently acquired interest in the said property, the purchaser may
claim the benefit of such subsequent acquisition of the property by the
transferor. Had it been case where the son during his lifetime
succeeded or inherited the property but died subsequently, then to some
extent it could have been argued that the heirs of the plaintiff‘s sons
who inherited the property on the death of their father would be bound
by the principle of estoppel. But in a case where a transferor never
acquired by succession, inheritance or otherwise any interest in the
property during his lifetime then section 43 of Transfer of Property
Act, 1882 will not come into operation as against the heirs who
succeeded the Ishtree dhan property of their grandmother.1124
1121
Id., at Para. 13 Page 358
1122
(2015) 5 SCC 691
1123
1124
Ibid.
208
The question whether it is necessary for transferee to expressly exercise the
option in order to estop transferee was considered by Kerala High Court in Gomathy
Ammal v. Rukmani Amma,1125 wherein, the Court held that when the other ingredients
prescribed under Section 43 of the Transfer of Property Act, 1882 are found to exist,
upon the acquisition by the transferor of any interest in the property professed to be
transferred,s there springs into existence an ―option‖ for the transferee to have the
transfer operate on such newly acquired interest.1126 The option accrues to the
transferee from terms of the section and not by anything that he has to do. Being an
option, it is open for the transferee, not to claim the benefit. However, there is no
specific form in which the option is required to be exercised and manifestation of will
by the transferee to have the transfer so operate may be deemed to be an exercise of
the option.1127
Thus, the researcher is of the view that the doctrine of feeding grant by
estoppel, as codified in Section 43 of the Transfer of Property Act, 1882, is a
significant doctrine of property law in India. This section enables transferee to whom
transfer is made on fraudulent or erroneous representation to lay hold at his option of
any interest which the transferor may subsequently acquire in the property, provided,
by doing so he does not adversely affect the right of any subsequent purchaser without
notice. 1128 Intention of transferor at the time of making the transfer is not material for
the application of this doctrine. However, it is necessary that transferee was misled by
the representation of transferor and there is no collusion between the transferor and
transferee. The courts in India, have applied ―general principle of feeding estoppel by
grant, in cases where section 43 of the Transfer of Property Act, 1882 is not in its
terms applicable.1129 Since the object of the doctrine is to protect bonafide transferees,
the doctrine has been held inapplicable in cases where there is fraud and collusion
between transferor and transferee. The doctrine of feeding estoppel has also not been
applied where the transfer was invalid for being in violation of law or for some reason
other than the fraud or misrepresentation of Transferor. The rights of bona fide
1130
transferees for considerations are not affected by application of the doctrine. The
1125
AIR 1967 Ker 58
1126
Id.,at 59
1127
Ibid.
1128
Ram Bhawan Singh v. Jagdish, (1990) 4 SCC 309 at Para. 10, Page. 314
1129
Renu Devi v. Mahendra Singh, (2003) 10 SCC 200
1130
Brahmvart Sanatan Dharam Mandal v. Prem Kumar,(1985) 3 SCC 350
209
doctrine of feeding estoppel by grant does not apply if the transaction was in violation
of express statutory provision or otherwise invalid. The doctrine is not applicable
where transferor, in fact, never got the title of property during his lifetime. Section 43
of the Transfer of Property, 1882 is broader in its effect than Section 115 of the Indian
Evidence Act, 1882 as it has the effect of vesting title in bona fide transferee for
value.
4.7 Estoppel by Deed and Family Settlements
One of the significant areas, wherein the doctrine of estoppel by deed is

usefully employed by courts, is to uphold the integrity of family settlements. A family
arrangement is an agreement between the members of the same family, intended to be
generally and reasonably for the benefit of the family either by compromising the
doubtful or disputed rights or by preserving the family property or the peace and
security of the family by avoiding litigation or by saving its honour.1131 The
agreement may be implied from long course of dealing, but it is more usual to
embody or to effectuate the agreement in a deed to which the term ―family
arrangement‖ is applied. 1132
Generally, Courts have taken a very liberal and broad view of the validity of
the family settlement and have always tried to uphold and maintain it. The central
idea in the approach made by the court is that if by consent of parties a matter has
been settled, it should not be allowed to be re-opened by the parties to the agreement
on frivolous or untenable grounds. 1133 The doctrine of estoppel by deed is pressed into
service by courts for the purpose of upholding family arrangements even where such
family arrangements suffer from a legal lacuna or a formal defect. 1134
Privy Council in the case of Ram Gauda Annagauda v. Bhausahib, 1135 held that
a reversioner who was a party to a transaction which amounts to a family settlement,
and has taken benefit under the same, will be estopped from challenging the said
1131
Laws of England; Vol. 17, third edition at pp. 215-216 quoted with approval in Kale v Dy.
Director of Consolidation, (1976) 3 SCC 119 at Para. 9, Page. 126
1132
Id.,at 127
1133
Kale v Dy. Director of Consolidation, (1976) 3 SCC 119 at Para. 19, Page. 30
1134
Id., at Para. 9, Page. 126
1135
AIR 1927 PC 227
210
transaction. 1136 In this case, a Hindu died in 1846, leaving a widow who survived until
1912, and a daughter. On the death of the widow A was heir to the estate. In 1868 the
widow had alienated nearly the whole property by three deeds executed and registered
on the same day. By the first deed she gave a property to her brother, and by a
different deed she sold half of another property to A and by the third deed she sold
another half of that property to her Son-in-Law. The signatures of each of the deed
were attested by two other transferees. A, who survived the widow for six years, did
not seek to set aside any of the alienations. After his death, his son and grandsons
brought a suit to recover the whole property. Their Lordship of Privy Council,
speaking through Lord Sinha, reached at a conclusion that the three deeds formed part
of same transaction aimed at proper disposition of the property of the deceased Hindu.
The appellant reversioner, who took advantage of the transaction, ―may either singly
or as a body is precluded from exercising their right to avoid it either by express
ratification or by acts which treat it as svalid or binding.‖1137
Supreme Court of India has generally taken the same view, as that of Privy
Council, regarding sanctity of family settlements. In Ram Charan Das v. Girija
Nandini Devi,1138 the Apex Court applied the doctrine of estoppel by deed to hold that
family settlements are binding and a person who takes benefit under such arrangement
cannot challenge the same. The question to be decided by the court in this case was
whether compromise between parties in a previous suit was family settlement and was
binding on them. Justice Mudholkar, speaking for the Bench comprising three Judges,
observed that Courts give effect to a family settlement upon the broad and general
ground that its object is to settle existing or future disputes regarding property among
1139
members of a family. The Court further observed, that consideration for a family
settlement is the expectation that such a settlement will result in establishing or
ensuring amity and goodwill among the relations. That consideration having passed
by each of the disputants, the settlement consisting of recognition of the right asserted
by each other cannot be impeached thereafter. It was, therefore, held that the
compromise entered into by the parties to the previous suit and embodied in a decree
1136
Id.,at 229
1137
Id.,at 230
1138
AIR 1966 SC 323
1139
211
was in substance a family arrangement and, therefore, binding on all the parties to it.
1140
The Apex Court has given broad meaning to the word ―family‖ for the
purpose of giving effect to the deed containing family settlement, and, has held the
deed containing family settlement valid even if it was not entered into between
immediate relations. In Krishna Bihari Lal v. Gulab Chand,1141 Supreme Court
considered the question whether an agreement of family settlement can be entered
into with persons who are near relations, though not members of same family. The
Division Bench of the Supreme Court, speaking through Justice Hegde, held the
impugned family settlement was quite legal as the widow had entered into agreement
with presumptive reversioners, not with strangers and, therefore, it was not a case of
1142
widow enlarging her own right by entering into compromise. It was further held,
that to consider a settlement as a family arrangement it is not necessary that parties
should all belong to one family. The word family in the context of a family
arrangement is not to be understood in a narrow sense of being a group of persons
who are recognised in law as having a right of succession or having a claim to a share
in the property in dispute. If the dispute is settled between near relations then the
settlement of such disputes can be considered as a family settlement. Such family
settlement is binding on the parties. 1143
Kerala High Court in the case of Damodaran Kavirajan v. T.D Rajappan,1144

held, that Gift Deed executed in favour of heir to settle family dispute may be
regarded as family settlement and act as estoppel upon heir to claim share in the
family property if he has accepted the deed and acted upon it. In this case, the mother
settled her properties, by way of Gift in favour of a son, for settling dispute between
families for the consideration that the son relinquished his right to future share in the
properties left by her. Justice P. Krishnaswamy held that such deed is indeed a deed of
family arrangement. The fact, that son gave up his right of inheritance for a
1140
1141
(1971) 1 SCC 837
1142
1143
1144
AIR 1992 Kerala 397
212
consideration; the immediate obtaining of certain properties towards his share will
estop him from claiming any share over rest of mother‘s properties. 1145
The party to a family settlement, who himself has acted in violation of the
terms of the deed, has not been allowed by Courts to estop other party to the
agreement constituting family settlement. In P.G Hariharan v. Padaril,1146 one
Gopalan, in earlier suit, entered into compromise in a suit of partition filed by him
wherein a clause restricted rights of alienation of the parties. The plaintiff, in present
suit, was assignee of the estate of Gopalan and stranger to the family. He filed a suit
for partition against other parties to the compromise in earlier suit. The defendants,
inter alia, raised the plea of estoppel and contended that Gopalan having taken benefit
under the compromise was estopped to violate the restrictive clause, defendant being
his assignee could not claim partition. The court reached upon the conclusion that the
compromise was family arrangement but also took notice of subsequent events
wherein defendants had also made alienations of their property in violation of
restrictive clause. 1147The court, rejecting the plea of estoppel, observed:
The court will not accept such a plea of estoppel put forward in defence
by a party who has himself gone against the same provisions which he
wants the court to enforce strictly against the other party. If Gopalan
and his successors in interest, have, violated the provisions in clause 10
of the Ext. A-I, defendants have also violated such provisions equally
or more frequently and as such it may be a case where the well-known
principle propounded by Lord Coke, namely, that ‗estoppel against
estoppel sets the matter at large ‗can legitimately be applied to free the
parties from the restrictions they or their predecessors in interest have
imposed as per the restrictive provisions in question on the absolute
proprietary right the parties to the family arrangements had at the
relevant time in the subject matter of the arrangement. 1148
The researcher submits, that above analysis case law makes it clear that the
deeds containing family settlements have been upheld by the courts and special
1145
1146
AIR 1994 Kerala 36
1147
1148
213
sanctity is given to such deeds by the courts. The courts have consistently maintained,
in series of cases, that a person taking advantage of deeds containing family
settlements will not be allowed to challenge the same. In this context, the courts have
given wide meaning to family, and arrangements between distant relatives have been
upheld by the courts. It is also settled that the doctrine of estoppel by deed cannot be
invoked by party to family settlement who himself has acted in violation of the terms
of the deed as in such a case the principle, that there can be no estoppel against
estoppel, will apply.
4.8 Estoppel by Deed in Negotiable Instruments
Another application of the rule of estoppel by deed is in the context of

Negotiable instruments. A Negotiable instrument is a document guaranteeing the
payment of a specific amount of money, with the payer named on the document. It
consists of a contract of payment of money without condition, which may be paid
either on demand or at a future date.1149 The Law related to Negotiable Instruments is
included in Mercantile Law. With the expansion of trade mercantile community found
these instruments as easy mode of payment of money by endorsement and delivery or
by mere delivery of these instruments. 1150 As per Section 13 of The Negotiable
Instrument Act, 1881, a ―negotiable instrument‖ means a promissory note, bill of
exchange or cheque payable either to order or to bearer.1151
Chapter XIII of the Negotiable Instruments Act, 1881, which provides for
special rules of evidence relating to negotiable instruments, contains rules of estoppel
as applicable to makers and indorsees of negotiable instruments. Section 1201152
provides that no maker of promissory note or drawer of bill of exchange shall in a suit
1153
thereon by a holder in due course, be permitted to deny the validity of the
1149
Available at : https://en.wikipedia.org/wiki/Negotiable_instrument (last accessed on 16 July,
2016)
1150
Law Commission of India, 11th Report on Negotiable Instruments Act, 1881 (September, 1958) at
Para. 1
1151
Negotiable Instruments Act, 1881, Section 13(1)
1152
―Section 120. Estoppel against denying original validity of instrument—No maker of a
promissory note, and no drawer of a bill of Exchange or cheque, and no acceptor of a bill of
exchange for the honour of the drawer shall , on proof of the protest, presume the fact of dishonor,
unless and until validity of the instrument as originally made or drawn.‖
1153
Section 9 of the Negotiable Instruments Act, 1881 defines ―Holder in due course‖ as follows:
―Holder in due course ―means a person who for consideration became the possessor of a
promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof,
214
instrument as originally made or drawn. Section 121 1154 of the Act provides that
maker of promissory note and accepter of bill of exchange will not be permitted to
deny the payee‘s capacity, at the date of note or bill, to endorse the same. Section
1221155lays down the rule of estoppel against indorser of negotiable instrument and
provides that no indorser of a negotiable instrument shall, in a suit thereon by
subsequent holder be permitted to deny the signature or capacity to contract or any
prior party to the instrument. The rule of estoppel laid down under Section 120 of the
Negotiable Instruments Act, 1881 shall apply only when holder of such instrument
holds it in due course.
The rule of estoppel by deed cannot be invoked by holder in due course if the
instrument is illegal on the face of it. In V.C.T.N Chidambaram v. Ayaswami,1156 one
of the question referred to High Court by the District Judge was whether holder of
promissory note payable to bearer could make the debtor under such promissory note
liable for the debt despite the fact that such promissory notes are made illegal by
express Statutory provision. The lender, inter alia, sought to raise plea of estoppel
against debtor under Section 120 of the Negotiable Instruments Act, 1881. Justice
Krishnan, while rejecting the plea, in his separate Judgement, that the suit is by the
payee on a note which is on the face of it is illegal and not therefore by any ‗holder in
due course‘.1157
1158
In Karuppa Goundan v. T.R Narayanaswami, Wadsworth, J of Madras
High Court held that Section 120 of the Negotiable Instruments Act, 1881 only
prevents the maker of the note from denying the validity of the instrument as
originally made or drawn. It does not bar any defence which is independent of a plea
if payable to order….‖ Section 8 of the Act defines ―Holder‖ of promissory note, bill of exchange
or cheque as ―any person entitled in his own name to the possession thereof and to receive the
amount due thereon from the parties thereto. Where the note, bill or cheque is destroyed, its
holder is the person so entitled at the time of such loss or destruction.‖
1154
―Section 121.Estoppel against denying capacity of payee of indorse.—No maker of a promissory
note and no acceptor of a bill of exchange payable to order shall, in a suit thereon by a holder in
due course, be permitted to deny the payee‘s capacity, at the rate of the note or bill, to indorse the
same.‖
1155
―Section 122.Estoppel against denying signature or capacity of prior party. ---No indorser of a
negotiable instrument shall, in a suit thereon by a subsequent holder, be permitted to deny the
signature or capacity to contract of any prior party to the instrument.‖
1156
ILR (1917) 40 Mad 585
1157
Id.,at 589
1158
(1941) 2 MLJ 808
215
that the instrument as originally made or drawn was invalid. In this case maker of
promissory note challenged a part of amount promised on the ground that it was
interest towards earlier mortgage and not in fact paid to the promisor and as such is
prohibited under Act IV of 1938. The Court held that such a plea is not barred by
Section 120 of the Negotiable Instrument Act, 1881 as it does not challenge the
validity of the instrument as originally made or drawn. 1159
In Saftarsab v. B. Alliah,1160 Karnataka High Court had occasion to consider

the scope of Section 120 of the Negotiable Instruments Act, 1881. In this case, in a
suit for recovery of money on promissory note, defendant successfully proved in trial
Court as well as first appellate Court, that there was no consideration for the
promissory note and an inchoate instrument was obtained by plaintiff as a collateral
security for two other promissory notes. Both Courts below, however, decided against
defendant on the grounds, inter alia, of the application of Section 120 of the
Negotiable Instruments Act, 1881. Justice H.G Ramesh, in Single Bench decision,
held that Section 120 was not applicable to facts of present case as plaintiff has failed
to prove execution of promissory note and defendant has successfully rebutted the
presumptions in favour of plaintiff. 1161 Stating reasons for non-application of Section
120, learned Judge observed: 1162
Section 120 of the Negotiable Instruments Act, 1881 as noted above

though pre-supposes the existence of an instrument which the Court
has looked into before applying the estoppel under the section. May be
the maker of the note is directly responsible for bringing into being of
the instrument and so, he cannot be allowed to say that the instrument
originally drawn was not valid. The resorting to estoppel by
representation is, however, artificial one. These estoppels spring from
the nature of the transaction founded upon mercantile custom and may
not be regarded as statutory estoppel. This Section, however, does not
1159
Id., at 809
1160
ILR 2005 Karnatka 2911
1161
Under Section 120 the transferor of inchoate instrument is presumed to authorise the holder in due
course to fill up the instrument. Under Section 118 certain presumptions in favour of Holder in
due Course of negotiable Instrument are raised.
1162
Sartarsab v. B. Alliah, ILR 2005 Karnataka 2911 at Para. 9, Page. 2913
216
preclude the drawer of the bill of exchange or the maker of the note
from the setting up in a suit by the holder in due course, the plea that he
never made or drew the instrument and that his name to it has been
forged or the plea that the note executed by him was not for a simple
unconditional loan but, on certain conditions previously agreed upon
and that those conditions have not been fulfilled. 1163
The Judgement of Kerala High Court in R. Ranganathan v. P. Kashiraj,1164

illustrates how special privileges conferred by Section 120 to 122 of the Negotiable
Instrument Act,1881 assists the holder in due course of a negotiable instrument in his
claim based on the instrument. In this case, the plaintiff filed suit for recovery against
first defendant, claiming him to be the original maker of promissory note and second
defendant whom he alleged to have indorsed the promissory note in favour of
plaintiff. While first defendant denied the execution of promissory note the second
defendant in his written statement denied endorsement. Justice K. Balakrishnan, citing
Section 122 observed that that second defendant, being indorsee of the promissory
note is not permitted to deny signature of first defendant who is prior party to the
instrument.1165 The Court further held that plaintiff ―in such cases‖ is only required to
prove valid assignment and that there was no defect is title of assigner and as the
plaintiff has proved these facts by his evidence to the satisfaction of Court the decree
of lower courts dismissing his claim is liable to reversed ―by virtue of the provisions
120 to 122 of the Negotiable instruments Act, (1881).‖1166
Thus, the researcher submits that it is settled that maker of promissory note
and drawer of bill or exchange will be estopped to assert that the document as
originally drawn made or drawn by them was not valid. However, they are not
estopped to deny their liability on any other ground e.g. the holder was not a holder in
due course or that there was no consideration for promissory note and the same was
drawn as inchoate instrument as security for other loans. The estoppel only extends to
the denial of capacity of payee to indorse the instrument or capacity of contract of any
1163
Ibid.
1164
AIR 1992 Ker 141
1165
Id.,at Para. 7
1166
Id.,at Para. 8
217
prior party. The instrument is open to challenge on any other ground not stated in the
statutory provisions such as fraud or misrepresentation etc.1167
4.9 Estoppel by Deed: It’s General Exceptions
Estoppel by deed is a rule of evidence, founded upon the principle that solemn
and unambiguous statement or engagement in a deed must be considered as binding
between parties and privies and, therefore, as not admitting any contrary proof. It is
important to observe that this is a rule of common law. Under common law, the
exception arises only when the deed is fraudulent or illegal. 1168 The position, in
equity, is different in this respect. In equity, where there are proper grounds of
rectifying the deed e.g. it is based on common mistake of fact, then, to the extent of
rectification there can plainly be no estoppel based on the original form of the
instrument.1169 In equity, a party to an instrument could not set up estoppel in reliance
on a deed wherein untrue recital is induced by his own representation, whether
innocent or otherwise, to the other party. 1170
No person can contradict his own deed by stating that he had wrongful and
fraudulent intention at the time of executing the deed. In Re Tarun Kumar Ghose,1171
a father opened a bank account in the name of his minor son and deposited money in
the account. Unfortunately, the son died while he was still minor. The father, got
exemption from duty payable under Court Fees Act, 1870 in respect of letter of
administration he got from the registrar of High Court by stating that he was trustee
for his son. The collector, however, challenged the fact of his being trustee. In his
evidence father stated that the money in the account of his son, in fact, belonged to
him, and he had deposited the money in order to prevent tax. Thus, the question
before the court was the intention of the father, and whether he can be heard to allege
an intention contrary to his conduct or which involves an assertion that he intended to
act dishonestly. Remfry, J. held that no person can for his benefit be allowed to say
that he acted illegally and in violation of rules. The court will, despite his assertion
1167
Saftarsab v. B. Alliah, ILR 2005 Karnatka 2911
1168
Greer v. Kettle,[1988] HL 156 at 171
1169
Ibid.
1170
Ibid.
1171
In Re Tarun Kumar Ghose, AIR 1935 Calcutta 509
218
that he had honest intention at the time of opening the account, will not believe him
and he will be liable to pay the duty. 1172 The Court observed:
Here the defendant, in order to escape paying duty, seeks to be heard to

say that in order to escape illegally from paying income-tax he
wrongfully invested money in the name of his minor son with the
intention of recovering it by false statement. In my opinion the rule is
clear that when a man may have acted rightly or he acted wrongfully,
he cannot be heard to say for his own benefit that he acted
wrongfully. 1173
If the deed in question is void by reason of it being obtained by fraud or

forgery, no estoppel can be pleaded on the basis of such deed. In Union of India v. M.
Bhaskaran,1174 appointment in railway was procured by workmen on the basis of
bogus and forged casual labour service cards. When the fraud was detected, the
railway authorities snatched their employment after giving them a fair chance to make
representation. Central administrative tribunal decided the case in favour of employee
on the ground that his conduct does not fall within the definition of ―misconduct‖ as
provided in service rules. In appeal, the division bench of the Apex Court, speaking
through Justice S.B Majmudar held that even independently of the rules, such
fraudulently obtained appointment orders could be legitimately treated as voidable at
the option of the employer and could be recalled by the employer and in such cases
merely because the respondent employees have continued in service for a number of
years on the basis of such fraudulently obtained employment orders cannot create any
equity in their favour or any estoppel against the employer. 1175
In Madan Lal Kapur v. Subhash Lal Kapur and others,1176 Delhi High Court
held that principles of estoppel by deed apply only between parties to a document and
their privies, not with other people. In this case, there was a Construction agreement
between the plaintiff and Defendant No. 1 wherein Defendants No. 2 to 4 were not
parties. It was, therefore, held that Defendant No. 2 to 4 are not precluded by rule of
estoppel to assert that property was held benami by plaintiff as per family settlement
1172
Id.,at 511
1173
Id.,at 511
1174
(1995) Supp (4) SCC 100
1175
Id.,at Para. 6 ,Page. 103
1176
(2003) 71 DRJ 732
219
contrary to the assertions in the agreement between Plaintiff and Defendant No. 1.1177
The Court, speaking through Justice Vikramajit Sen, observed:
Estoppel by deed is defined in Black‘s Law dictionary to be a bar

which precludes one party to a deed and his privies from asserting
against the other party and his privies any right or title in derogation of
the deed or from denying the truth of any material facts asserted in it.
The precedents as well as the definition clearly indicate that the
persons who are not parties are not bound by the contents of the
documents1178
Thus, in the opinion of researcher, like other forms of estoppel fraud is an

exception to estoppel by deed. The courts do not allow a person to take advantage of
his own wrong when he fraudulently obtains deed from the other party.
4.10 Estoppel against Minors
One of requirement for a person to enter into a legally binding contract is that
he must have attained the age of majority according to law to which he is subject.
Indian Contract Act, 1872, under Section 11, also provides that only major person will
be competent to enter into a contract.1179 The question whether a minor, who falsely
misrepresents his age, and thereby makes the other party to enter into a contract, will
be estopped from alleging his minority under the law of contract has come before the
courts in a large number of cases. In Mohori Bibi v. Dharmodas Ghose,1180 Priviy
Council held that that minor‘s contract was void and not merely voidable because the
question whether contract is void or voidable presupposes the existence of contract
within meaning of Indian Contract Act, 1872 and such contract cannot arise in case of
minor.1181 In this case, plaintiff was a minor at the time he entered into contract of
mortgage and the lower courts found that mortgagee was aware of the fact of minority
at the time of execution of mortgage deed. Although the plea of estoppel against
1177
Id.,at Para. 23
1178
Id.,at Para. 24
1179
―11. Who are competent to contract? -----Every Person is competent to contract who is of the age
of majority according to the law to which he is subject, and who is of sound mind and is not
disqualified from contracting by any law to which he is subject.‖
1180
[1903] Indian Appeals 114
1181
Id., at 124.
220
plaintiff was raised against the plaintiff the court left the question open and found it
unnecessary to deal with the question of estoppel as is the present case, because, truth
was known to both parties and no party was misled.1182
In Sadiq Ali Khan v. Jai Kishori,1183 once again, the question before the
Judicial Committee of Privy Council was whether minority could be pleaded by the
persons executing the mortgage deed. Two Lower Courts differed on the question of
the fact of minority. Their Lordship of Privy Council, agreeing with the trial Court
held that the mortgagors were proved to be minors and mortgage deed executed by
them was nullity.
Their Lordship observed:
The fact of minority being established at the date of execution by the

mortgagors of the deed founded on is sufficient for the decision of the
case; such a deed executed by minors being admittedly a nullity
according to Indian Law, and incapable of founding a plea of
estoppel.1184
In Khan Gul v. Lakha singh,1185 one of the question formulated for decision by
full bench of Lahore High Court was whether a minor, who, by falsely representing
himself to be a major, has induced a person to enter into a contract, is estopped from
pleading the minority to avoid the contract. Sir Shadi Lal, in his judgement, observed
that despite the fact that the word ―person‖, as used in Section 115 of the Indian
Evidence Act, 1872 includes minor as well major, a minor cannot be estopped
because the Law of Contract as contained in Indian Contract Act, 1872 specifically
says that minor does not have capacity to contract. The general Law of estoppel
cannot defeat the provision of particular legislation i.e. Contract Act, 1872.1186In the
words of Justice Sir Shadi Lal:
1182
Id.,at 122
1183
AIR 1928 P.C 152
1184
Id.,at Para. 17
1185
AIR 1928 Lah 609
1186
Id.,at 613
221
Now, when the law of Contract lays down that a minor is not to be
liable upon a contract entered into by him, he should not be made liable
upon the same contract by virtue of the general rule of estoppel. 1187
In Gadigappa v. Balangowda, 1188 the question involved in appeal before

full bench of Bombay High Court was whether a minor, who represented himself, to
be a major at the time of execution of sale deed by him, should be estopped from
questioning the sale on the ground that he was a minor. The question was considered
by Full Bench of Bombay High Court and it was held that no person can, by the
application of the law of estoppel or by any rule of procedure, acquire or have
assigned to him a legal capacity which the substantive law denies to him, and it makes
no difference whether the misrepresentation on which the estoppel is sought to be
founded on is made fraudulently or innocently. 1189 It was further held that estoppel is
a rule of procedure and it cannot override rule of substantive law, contained in Section
11 of the Indian Contract Act, 1872 whereby a minor is not competent to contract.1190
Supreme Court of India, in S. Shanmugam Pillai v. Shanmugam Pillai1191

considered the question whether estoppel applies against reversioner who is minor
while taking benefit of family settlement. The Court held that although presumptive
reversioner is precluded from questioning the transaction when succession opens and
he becomes the actual reversioner, ―but if presumptive reversioner is minor, at the
time he has taken benefit under the transaction, the principle of estoppel will be
controlled by another rule governing the law of minors‖1192
Law Commission of India, in 69th Report, after examining case law,

expressed what it stated to be ―proper view‖ regarding application of estoppel against
minors. In the view of commission, the position regarding effect of false declaration
as to age is not of importance. In terms of the relationship between Section 115 of the
Indian Evidence Act, 1872 on the one hand, and the provision regarding incapacity of
minors under Section 11 of Indian Contract Act, 1872 on the other hand, the proper
1187
Id., at 614
1188
AIR 1931 Bom 561(FB)
1189
Id.,at 567
1190
Id.,at 569
1191
(1973) 2 SCC 312
1192
222
view seems to be that estoppel cannot override a plain statutory provision of law. In
other words, Section 11 of the Indian Contract Act, 1872, being a matter of
substantive law, it must prevail over Section 115 of Indian Evidence Act, 1872 which
is merely a matter of procedure.1193
The Law Commission further observed that rule of estoppel laid down in
Section 115 of the Evidence Act, 1872 may apply in ―other cases.‖ Such cases are
―where the cause of action is not in contract or transfer of property, and is one not
barred by a specific statutory provision. 1194 The question of application of doctrine of
estoppel as laid down in section 115 of the Indian Evidence Act, 1872 on Minors was
once again discussed by law Commission in its 185th report.1195
The Law Commission of India, in abovementioned report, recommended

insertion of following proviso after Section 115 of the Indian Evidence Act, 1872:
Provided that nothing contained in this section shall apply to minors or

other persons under disabilities for the purpose of enforcing any
liability arising out of a representation made by such persons where a
contract entered into by such persons incurring a like liability would
have been null and void.1196
The abovementioned discussion, in the opinion of researcher, makes it

clear that the weight of authorities is in favour of the view that there can be no
estoppel against the minor. The deed entered into by minor is nullity in the eyes of
law, and, therefore, incapable to bind minor. The fact, that minor knowingly
misrepresented his age is immaterial. It is also well settled that estoppel, which is a
procedural provision is incapable to defeat express statutory provision contained in
Section 11 of the Indian Contract Act,1872 which provides that minor is not capable
to enter into a legally binding contract.
4.11 Estoppel by deed and effect of Mistake
1193
Law Commission of India, 69th Report on Indian Evidence Act, 1872(May 1977) at Para. 57.15
1194
Id.,at Para. 57.16
1195
Law Commission of India,185th Report on Indian Evidence Act, 1872(March 2003) at 280
1196
Id.,at 276
223
Mutual mistake is another exception to the application of the doctrine of
estoppel by deed. In Wilson v Wilson,1197 Chancery Division, held that estoppel by
deed will not arise if the document is rectifiable due to mutual mistake of both the
parties. 1198 In this case, plaintiff joined defendant, who was his brother, in a purchase
of house with the intention of helping him to satisfying the condition of lending
society. The purchase price was paid by the defendant and it was established that the
intention of parties was that defendant should be sole owner of the house. It was also
established that the solicitor who prepared the purchase deed created beneficial
interest in favour of plaintiff brother by mistake. The plaintiff on the basis of such
beneficial interest claimed half share in the property, defendant filed application for
rectification of the deed and declaration that the provision of beneficial interest was
inserted by mutual mistake of all the parties. Justice Buckley observed while allowing
the application for rectification of the deed in accordance with true intention of the
parties observed that even if no such rectification was done, he could ―treat the deed
as not constituting such an estoppel as to preclude me from looking behind it to
discover what the intentions of the parties were, because as between the parties to his
action the deed is one which clearly ought to be rectified, so that the parties cannot
rely upon it except in the form in which it ought to be rectified either for its direct
legal effect or for its effect as an estoppel.‖ 1199
In Sukumar Chatterjee v. Kiran Chandra,1200 Calcutta High Court, held that

where a tenant who in earlier pleadings attorned the title of landlord seeks to amend
pleadings on the ground that earlier pleadings were result of mistake of fact, should be
allowed to do so. D. Basu,J. (Bannerjee,J. agreeing) stated effect of mistake upon the
plea of estoppel in following words:
No person can be estopped, either by attornment, pleading or other

conduct where the conduct constituting the estoppel was founded upon
a mistake of facts.1201
1197
[1969] WLR 1470
1198
Id.,at 1474, quoting with approval observations of Lord Maugham in Greer v. Kettle,[1938] AC
156,171
1199
Ibid.
1200
AIR 1964 Cal 439
1201
224
It has, however, been held that there can be no estoppel when the truth appears
from the same instrument unless clear intention is expressed in the deed to disregard
the rule. Where a person knows the circumstances in which the deed has been
executed, whether he has acquired such knowledge personally or through an agent,
cannot setup estoppel in his own favour, if the circumstances were such as to make
the deed invalid between the parties. 1202 It is, thus, well settled that mutual mistake by
parties, if established in court upon facts of the case, will defeat the plea of estoppel
by deed.
Thus, researcher submits that the equitable doctrine of estoppel by deed has
been applied in diverse situation in India by Legislature and Courts. The doctrine
protects the interest of transferee in good faith against fraudulent or erroneous
representation of transferor. Estoppel by deed, as a result of language set out in the
document, bars the enforcement of claim against a party who acted upon the reliance
of those written terms. 1203 The doctrine of estoppel by after Acquired title, as
contained in Section 43 of the Transfer of Property Act, 1882 is strong enough to
grant title to bonafide transferee. It is well settled that for the application of the
doctrine of feeding grant by estoppel to apply, the intention or knowledge of
transferee is material and not that of transferor. The above analysis, in the opinion of
researcher, also shows that the courts have successfully used the doctrine of estoppel
by deed to protect the sanctity of family settlements by giving full effect to the
instruments containing family settlements. The doctrine, when applied to Negotiable
Instruments, provides certainty to day to day commercial transactions and provide
security and certainty in financial transaction. There are some exceptions such as
fraud, mutual mistake which are general in nature and apply to estoppel by deed in
general.
1202
Seth Parmanand v. Champa Lal, (1956) All LJ 1at Para. 13, Page. 3
1203
Essel Propack v. Essel Kitchenware, (2016) SCC Online Bom 937 at Para. 40
225

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Chapter 4

Where there is a statement of fact in a deed made between parties, an

Bigelow, states the principle of estoppel by deed in following words:

An estoppel by matter of deed may be defined to be preclusion against

Where there is a statement of fact in a deed between parties and

4.1 Historical Background

The doctrine of Estoppel by Deed, gradually developed from estoppel by

Treatise_on_the_ Law_of_Estoppel. pdf%3Fid%3Dibs DAAAAQAAJ

In sixteenth century, in connection with estoppel by deed, the rule that an

In India, the doctrine of ―feeding estoppel by grant‖ established in 19th

4.2 Nature and Basis of the Rule of Estoppel by Deed

Execution of deed estops executants of the deed, as well as their heirs, to

Preparation of shortage certificate was a joint venture and the

4.3 Estoppel by “Recitals in a Deed” and “Operative Part of the Deed”

Normally, a recital is evidence as against the parties to the instrument and

The recitals in a document or arrangement are evidence as against the

4.4 Estoppel by Deed under Indian Evidence Act,1872

In Calcutta Credit Corporation v. Prince Peter of Greece, 1046 plaintiff

Anyone getting possession of the property whether movable or

4.5 Estoppel by Mortgage Deed

The execution of mortgage deed creates, between mortgagor and mortgagee, a

The principle of estoppel bars mortgagee to claim adverse possession against

4.6 Estoppel by After Acquired Title or Feeding Grant by Estoppel

English doctrine implies that where a grantor has purported to grant an

The principle of ―feeding grant by estoppel‖ is also based on the equitable

This principle of law, which is sometimes referred to as feeding the

Section 43. Transfer by unauthorised person who subsequently

Nothing in this section shall impair the rights of transferees in good

Section 43 of the Transfer of Property Act, 1882 clearly applies whenever a

The only exception provided in this section is in favour of transferees for

Before the Amendment Act 20 of 1929, the original words in Section 43 of

There is distinction between the rule of estoppel contained in Section 43 of the

There is however, ample authority to be found in Indian cases

The point of law, regarding fraudulent misrepresentation on the part of

For applying this principle it is necessary that there must be fraudulent

Another significant question, related to application for the doctrine of feeding

The section, (Section 43 of Transfer of Property Act, 1882), however,

The doctrine of feeding the grant by estoppel, which is in essence a

The doctrine of feeding grant by estoppel, cannot, however, confer validity

The doctrine of feeding estoppel by grant is not applicable if transfer of

Even on the question of the applicability of Section 43 of the Transfer

Section 43 of the Transfer of Property Act, 1882 provides protection to

Recently, in Agricultural Produce and Marketing Committee v. Bannamma

Section 43 of Transfer of Property Act, 1882 applies when the

4.7 Estoppel by Deed and Family Settlements

One of the significant areas, wherein the doctrine of estoppel by deed is

Kerala High Court in the case of Damodaran Kavirajan v. T.D Rajappan,1144

4.8 Estoppel by Deed in Negotiable Instruments

Another application of the rule of estoppel by deed is in the context of

In Saftarsab v. B. Alliah,1160 Karnataka High Court had occasion to consider

Section 120 of the Negotiable Instruments Act, 1881 as noted above

The Judgement of Kerala High Court in R. Ranganathan v. P. Kashiraj,1164

4.9 Estoppel by Deed: It’s General Exceptions

Here the defendant, in order to escape paying duty, seeks to be heard to

If the deed in question is void by reason of it being obtained by fraud or

Estoppel by deed is defined in Black‘s Law dictionary to be a bar

Thus, in the opinion of researcher, like other forms of estoppel fraud is an

4.10 Estoppel against Minors

Their Lordship observed:

The fact of minority being established at the date of execution by the

In Gadigappa v. Balangowda, 1188 the question involved in appeal before

Supreme Court of India, in S. Shanmugam Pillai v. Shanmugam Pillai1191

Law Commission of India, in 69th Report, after examining case law,