The ‘Doctrine of feeding the grant by estoppel’ is derived from the legal maxim ‘nemo dat quod non habit’ which means that no one can give something which he doesn’t himself possess to another person. Section 43 of the Transfer of Property Act says:

“where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists”

Essence of the doctrine

The basic rule that exists is that a person having no authority over a piece of property cannot give it to someone else. This rule has an exception mentioned under Section 43.  The principle of law that Section 43 rests on is called ‘feeding the grant by estoppel’. This doctrine simply means that if a person who does not possess title to a certain property but grants it anyway by conveyance, fraudulently, which causes loss to the other, will result in losing any subsequent interest in the said property to the other in case of any subsequent transfer in his favor. An estoppel arises with regards to the transferor and the law requires him to ‘feed’ that estoppel by reason of his subsequent acquisition. Therefore, it can be said that the doctrine in question has its roots partly in the doctrine of estopped and partly in the equitable doctrine which is, ‘a man who had promised more than he can give, ought to give when he acquires what he initially claimed to have’.  The doctrine of feeding the grant by estoppel makes it necessary for a man to perform as per his claim when it becomes possible. The option then is with the transferee if he wants to go ahead with the particular transfer after the performance of the transfer becomes possible.

An important case that can aid in our understanding of the concept is ‘Ram Bhawan Singh v. Jagdish’ [(1990) 4 SCC 309]. In the said case the judiciary observed the following: 

“when a person having a limited interest in the property transfers a larger interest to the transferee on a representation, and subsequently acquires the larger interest, the larger interest passes to the transferee at the latter’s option. This doctrine not only applies to sale but also applies to a mortgage, lease, charge, and exchange. Where no grant or interest in immovable property is involved, the doctrine would not apply. The doctrine also does not apply in cases where the transferor has acquired interest not in the property which is the subject matter of the transfer, but in some other property.”

Comparison with the English law

In India, the doctrine departs from its English roots in broadly two ways:

1. Under the English Law, the transfer  does not need any other action on the transferor or transferee’s part but gets automatically valid. In its form as it is in India, for it to become valid the option must be exercised by the transferee for which again three conditions need to fulfilled: a) Availability of property b) Contract should be subsisting c) the transferee should be willing to go ahead with the transfer.

2. Unlike its English counterpart, there is always a possibility for the transferee to be defeated by a purchase for value with no notice. Under the English law it’s completely opposite as the original transfer is effected the moment the transferor acquires competency to transfer it. The transfer becomes valid instantly.