Election, Ostensible Owner, Feeding the Grant & Fraudulent Transfer — Transfer of Property Notes

Doctrine of Election

In Cooper v Cooper (1874) the House of Lords put the whole idea in one line: a person cannot “approbate and reprobate” — take the good part of a deed and reject the bad. If a will gives you £1,000 but also gives your cottage to your cousin, you must choose: keep the cottage and refuse the money, or take the money and let the cottage go. That choice is election.

What is the Doctrine of Election?

Election means choosing between two inconsistent rights offered by the same document. The principle (s.35 of the TPA) rests on a simple idea of fairness: someone who takes a benefit under an instrument must give full effect to that instrument — he cannot accept the part that favours him and disclaim the part that goes against him.

The classic situation has three players:

A transferor who, in one deed, professes to transfer property that is not his (it belongs to a third person), and
in the same deed gives some benefit of his own property to that third person (the owner), and
the owner must now elect — either confirm the transfer (give up his property and take the benefit) or reject the benefit (keep his property).

Essentials of election:

The transferor must profess to transfer property he has no right to transfer.
As part of the same transaction, he must confer a benefit on the owner of that property.
The two must be parts of one instrument — a benefit under one deed and a loss under another does not raise election.
The owner must take the benefit directly (a person taking in another capacity may not have to elect).

When must a person elect? When taking the benefit is inconsistent with asserting his own title. If he elects against the instrument (keeps his own property and refuses to confirm), he must relinquish the benefit, and the benefit goes back to the transferor, who must compensate the disappointed transferee out of it (the “compensation”, not “forfeiture”, rule of the Indian section). Election may be express or implied from conduct (e.g. enjoying the benefit for two years, or knowingly accepting rents).

Who — the owner of the property that the deed gives away, who is also offered a benefit under it.
When — whenever a single instrument confers a benefit and takes away the owner’s own property.
How — the owner chooses; if he keeps his property, he surrenders the benefit, and the disappointed transferee is compensated out of it.

Section 35 (part), TPA: “Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred…”

In Simple Terms: If one document both gives you something and gives your own property to someone else, you cannot keep both. Take the gift and let your property go, or keep your property and give up the gift — you must choose one.

🧩 WORKED EXAMPLE — the farm and the legacy

Facts. By one deed, A gives B’s farm to C, and in the same deed gives B a sum of Rs. 1,000. B is the owner of the farm.

Rule. Section 35 — B, taking a benefit under the deed, must elect either to confirm the transfer of his farm to C or to keep the farm and give up the Rs. 1,000.

Apply. B cannot both keep his farm and pocket the Rs. 1,000. If he keeps the farm, he relinquishes the Rs. 1,000, out of which C (the disappointed transferee) is compensated.

Conclusion. B must elect. Keep the farm → surrender Rs. 1,000; or take Rs. 1,000 → let the farm pass to C.

flowchart TD
    A["One deed: gives away Owner's property + confers a benefit on Owner"]
    A --> B{"Owner elects"}
    B -->|"Confirm transfer"| C["Keeps the benefit, loses own property"]
    B -->|"Dissent"| D["Keeps own property, surrenders benefit;<br/>disappointed transferee compensated"]
    classDef box fill:#e8f0fe,stroke:#333,color:#111;
    class A,C,D box;

Case Laws

Cooper v Cooper (1874) — a beneficiary cannot approbate and reprobate; taking under a deed means accepting its whole effect.
Codrington v Codrington (1875) — election rests on the intention that a person shall not both take under and defeat the same instrument.
Valliammai v Nagappa (1967) — the Indian rule is one of compensation to the disappointed transferee, not forfeiture of the benefit.

Transfer by Ostensible Owner

In Ramcoomar Koondoo v McQueen (1872) the Privy Council laid down a rule that still protects honest buyers: if you let your property stand in another’s name and that person sells it to someone who pays and takes care to check, you cannot later turn round and reclaim it. You created the appearance; you bear the loss.

Who is an Ostensible Owner? (Section 41)

An ostensible owner is a person who, by the consent of the real owner, is made to appear to be the owner — his name is on the documents, he manages and deals with the property — although he is not the true owner. The commonest example is a benami transaction, where A buys property but has it registered in B’s name.

Section 41 is an exception to the general rule nemo dat quod non habet [no one can give what he does not have]. Ordinarily a person can pass no better title than he has. But where the true owner has clothed another with the appearance of ownership, an innocent buyer is protected. The conditions for protection:

The transferor is the ostensible owner of the property.
He holds it with the express or implied consent of the real owner.
The transfer is for consideration (not a gift).
The transferee has acted in good faith and has taken reasonable care to ascertain that the transferor had power to transfer (he made the enquiries a prudent buyer would).

If all four are met, the real owner cannot defeat the transfer, even though the ostensible owner had no real title.

Who — protects the bona fide buyer for value; binds the real owner who created the appearance.
When — at the time of the transfer, the buyer must have taken reasonable care and acted in good faith.
How — the buyer proves consent of the real owner plus his own good faith and due enquiry; the burden is on the buyer to establish these.

Section 41, TPA: “Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.”

In Simple Terms: If you let someone appear to own your property, and he sells it to a careful, honest buyer for money, the buyer keeps it — you cannot claim it back. The appearance you created protects the innocent purchaser.

🧩 WORKED EXAMPLE — the benami sale

Facts. A buys property with his own money but registers it in the name of B (his wife/nominee). B mortgages and redeems it several times, then sells it to C, who checks the records, finds B’s name, pays value and buys in good faith.

Rule. Section 41 — a bona fide transferee for value from an ostensible owner (held out with the real owner’s consent) is protected if he took reasonable care.

Apply. B was the ostensible owner with A’s consent; C paid value, examined the title, and acted honestly. All four conditions are met.

Conclusion. C gets a good title against A. A cannot recover the property. (If C had not enquired, or B held without A’s consent, A would win.)

flowchart TD
    A["Transfer by ostensible owner (s.41)"]
    A --> B{"All four met?"}
    B --> C["Ostensible owner + real owner's consent"]
    B --> D["For consideration"]
    B --> E["Buyer's good faith + reasonable care"]
    B -->|"Yes"| F["Buyer protected — real owner cannot recover"]
    B -->|"No"| G["Real owner wins (nemo dat)"]
    classDef box fill:#e8f0fe,stroke:#333,color:#111;
    class A,C,D,E,F,G box;

Case Laws

Ramcoomar Koondoo v McQueen (1872) — the foundation of s.41: one who allows another to hold himself out as owner cannot recover against an innocent purchaser for value.
Jayadayal Poddar v Bibi Hazra (1974) — laid down the tests for benami: source of purchase money, possession, motive, conduct and custody of title-deeds.
The burden under s.41 — the buyer must prove that he took reasonable care to ascertain that the transferor had power to transfer and that he acted in good faith.

Transfer by Co-owner

Three brothers own a house together. One wants to sell his share to an outsider. Can he — and what does the buyer get? Section 44 answers: yes, he may sell his own share, but the stranger cannot barge into the family’s living rooms.

What is Transfer by a Co-owner? (Section 44)

Where property is owned by several co-owners (joint owners or tenants in common), each co-owner has a transferable interest in his own share. Section 44 provides that when one of two or more co-owners transfers his share, the transferee acquires, to the extent of that share, the transferor’s right to joint possession, to enforce a partition, and other rights of a co-owner — subject to the conditions and liabilities affecting the share at the date of transfer. The transferee, in effect, steps into the shoes of the transferring co-owner.

The dwelling-house restriction (the exam point). The second paragraph of s.44 protects family privacy: where the property is a dwelling-house belonging to an undivided family, and the transferee is not a member of that family, he acquires the share but is not entitled to joint possession or common enjoyment of the house. His remedy is to sue for partition; until then he cannot move in among the family.

Section 44, TPA (part): “Where one of two or more co-owners of immovable property … transfers his share …, the transferee acquires … the transferor’s right to joint possession … and to enforce a partition … but … where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.”

In Simple Terms: A co-owner may sell his own share, and the buyer inherits his rights (including the right to seek partition) — but if it is a family dwelling-house and the buyer is an outsider, he cannot live in it; he must first get it partitioned.

🧩 WORKED EXAMPLE — the outsider buyer

Facts. A, B and C are brothers jointly owning a family house. A sells his one-third share to X, a stranger. X wants to move in.

Rule. Section 44 — a transferee of a co-owner’s share steps into his shoes, but a stranger buying a share of an undivided family’s dwelling-house gets no right to joint possession; his remedy is partition.

Apply. X acquires A’s one-third share and the right to sue for partition, but as a non-family stranger he cannot claim joint occupation of the house.

Conclusion. X owns a one-third share but cannot move in; he must sue for partition to enjoy his share separately.

flowchart TD
    A["Co-owner transfers his share (s.44)"]
    A --> B["Transferee steps into transferor's shoes<br/>(share + right to partition)"]
    A --> C{"Dwelling-house of undivided family AND buyer is a stranger?"}
    C -->|"Yes"| D["No joint possession — must sue for partition"]
    C -->|"No"| E["Full co-owner rights, incl. joint possession"]
    classDef box fill:#e8f0fe,stroke:#333,color:#111;
    class A,B,D,E box;

Case Laws

Khunni Lal v Gobind Krishna Narain (1911) — a co-owner’s share is transferable and the transferee acquires the transferor’s rights subject to equities.
Dorab Cawasji Warden v Coomi Sorab Warden (1990) — the dwelling-house protection in s.44 keeps a stranger out of joint possession of a family home until partition.

Apportionment

Rent falls due on the last day of the month. But the landlord sold the building on the 15th. Who gets the rent for the first half — the old owner or the new? Apportionment is the law’s fair split.

What is Apportionment? (Sections 36–37)

“Apportionment” means dividing a benefit (like rent or income) between people according to their entitlement. The Act deals with two kinds:

Apportionment by time (Section 36). In the absence of a contract to the contrary, all rents, annuities, pensions and periodical payments are, on the transfer of the property, deemed to accrue from day to day and are apportionable accordingly between the transferor and transferee. So on a mid-period transfer, the seller gets the rent up to the transfer date and the buyer the rest.
Apportionment by estate (Section 37). Where property subject to a periodical payment (e.g. rent) is divided among several transferees, the payment is apportioned among them according to the value or share each takes. The person liable to pay (the tenant) must, once given notice of the division, pay each transferee his fair share; but the tenant is not bound to recognise the split until he has such notice.

Section 36, TPA: “In the absence of a contract or local usage to the contrary, all rents, annuities, pensions … and all other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to receive such payments, be deemed … to accrue due from day to day, and to be apportionable accordingly…”

In Simple Terms: Rent and similar income are treated as building up day-by-day, so when property changes hands mid-period the seller and buyer split it by time (s.36); and when one property is divided among several buyers, the tenant’s rent is split among them by share once he is told (s.37).

🧩 WORKED EXAMPLE — rent split on a mid-month sale

Facts. S owns a shop let to T at Rs. 3,000 a month, payable on the last day. S sells the shop to P on the 10th of the month.

Rule. Section 36 — rent accrues from day to day and is apportioned between transferor and transferee on transfer.

Apply. Rent for days 1–10 belongs to S; rent for the remaining days belongs to P; T pays each his day-to-day share.

Conclusion. The month’s rent is apportioned by time — roughly one-third to S, two-thirds to P.

flowchart TD
    A["Apportionment"]
    A --> B["By time (s.36): income accrues day-to-day;<br/>split seller/buyer on transfer"]
    A --> C["By estate (s.37): property split among buyers;<br/>rent split by share once tenant is notified"]
    classDef box fill:#e8f0fe,stroke:#333,color:#111;
    class A,B,C box;

Case Laws

The apportionment rule (s.36) — in the absence of a contract to the contrary, rents, annuities and periodical payments are deemed to accrue from day to day and are apportioned between transferor and transferee on a transfer.

Priority of Rights; Rent to a Holder under Defective Title

Two people claim rights over the same land from the same owner. Both cannot win fully. Which prevails? The oldest common-sense rule in property: first in time, first in right.

Priority of Rights (Section 48)

Section 48 codifies the maxim qui prior est tempore potior est jure [he who is earlier in time is stronger in law]. Where a person creates by transfer at different times rights in or over the same immovable property, and those rights cannot all exist together, each later-created right is subject to the rights previously created. So an earlier mortgagee ranks above a later one; an earlier transferee’s interest prevails over a later inconsistent one — unless a special rule (like s.41 ostensible owner, or registration priorities) displaces it.

Rent Paid in Good Faith to a Holder under Defective Title (Section 50)

Section 50 protects an honest tenant. A person who, in good faith, pays rent or profits to a person in possession of property under a title later found defective is not liable to pay again to the person entitled — provided he had no notice of the true owner’s right. It saves the tenant from paying twice.

Section 48, TPA: “Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.”

In Simple Terms: Earlier rights beat later ones over the same property (first in time, first in right). And a tenant who honestly pays rent to whoever is in apparent possession is protected — he need not pay again to the real owner.

🧩 WORKED EXAMPLE — two mortgages

Facts. O mortgages his land to M1 in January, and mortgages the same land to M2 in June. The land’s value covers only one loan fully.

Rule. Section 48 — earlier-created rights rank first.

Apply. M1’s mortgage was created first. On sale, M1 is paid in full before M2 gets anything.

Conclusion. M1 has priority over M2 (first in time, first in right).

flowchart LR
    A["Right created first"] --> B["Ranks higher (s.48)"]
    C["Right created later"] --> D["Subject to earlier right"]
    classDef box fill:#e8f0fe,stroke:#333,color:#111;
    class A,B,C,D box;

Case Laws

The priority rule (s.48) — priority of competing interests over the same property goes by the order of their creation, absent a displacing rule such as s.41.

Improvements by a Bona Fide Holder

You buy a plot, build your dream house on it — and then a court says the seller never owned it, and the true owner evicts you. Do you lose the house too? Section 51 softens the blow, but only if you built in good faith. A knowing trespasser gets nothing.

The Rule on Improvements (Section 51)

Section 51 protects a transferee of immovable property who, believing in good faith that he is absolutely entitled to it, makes improvements on it, and is afterwards evicted by a person having a better title. Such a transferee is entitled to have the value of the improvement estimated and paid to him, or to have the property sold — at the option of the person evicting:

either the true owner pays the evicted holder the value of the improvement (the enhanced value of the land), and keeps the property; or
the true owner requires the holder to buy the true owner’s interest at its value without the improvement.

The good-faith requirement is decisive. The section protects only a person who honestly believed he owned the land. A trespasser, or anyone who knew he had no title, is not protected — he cannot claim compensation for improvements made with knowledge that the land was not his.

Section 51, TPA: “When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee…”

In Simple Terms: If you improved land you honestly believed was yours and are then evicted by the true owner, the true owner must either pay you for the improvement or sell you the land. But if you knew you had no right (a trespasser), you get nothing for what you built.

🧩 WORKED EXAMPLE — the honest builder versus the trespasser

Facts (1). A buys an open plot from B, believes he has absolute title, and builds a house. C, with a better title, evicts A.

Facts (2). X, a trespasser, builds on Y’s land despite Y’s protests; Y then evicts X.

Rule. Section 51 protects only a transferee who improved in good faith believing he was absolutely entitled.

Apply. A built in good faith on a purchase — he is protected; C must pay A the value of the house or sell A the land. X knew the land was Y’s and built against protests — no good faith.

Conclusion. A gets compensation (or the option) under s.51; X gets nothing.

Decoy. The examiner plants the trespasser to see if you notice the missing good faith — always test that element first.

flowchart TD
    A["Holder improves land, later evicted by better title"]
    A --> B{"Did he believe in GOOD FAITH he was absolutely entitled?"}
    B -->|"Yes (bona fide buyer)"| C["s.51: true owner pays value of improvement OR sells land"]
    B -->|"No (trespasser / knew no title)"| D["No compensation"]
    classDef box fill:#e8f0fe,stroke:#333,color:#111;
    class A,C,D box;

Case Laws

The good-faith requirement (s.51) — the section protects only a transferee who honestly and reasonably believed he was absolutely entitled to the property.
The trespasser exclusion (s.51) — a mere trespasser who improves land knowing he has no title cannot claim compensation; good faith is the dividing line.

Fraudulent Transfer

Twyne’s Case (1601) is where it began: a debtor secretly “sold” all his goods to a friend while keeping possession, hoping to cheat his creditors. The court saw through it — a transfer made to defeat creditors is a fraud on them and can be undone.

What is a Fraudulent Transfer? (Section 53)

Section 53 has two limbs.

Limb one — transfer to defeat or delay creditors (s.53(1)). Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor is voidable at the option of any creditor so defeated or delayed. It is not void — the transfer is good until a creditor avoids it. Two savings protect honesty: it does not impair the rights of a transferee in good faith and for consideration, and it does not affect any law of insolvency. A suit to avoid must be brought on behalf of all the creditors.

Limb two — transfer without consideration to defraud a later transferee (s.53(2)). Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee is voidable at the option of that later transferee.

The key is intent. A transfer for good value to an honest buyer is safe even if it incidentally leaves less for creditors; what the section strikes at is the design to defeat them (often shown by the transfer being to a relative, kept secret, without real consideration, or leaving the debtor with nothing).

Section 53(1), TPA: “Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration.”

In Simple Terms: If a debtor gives away or transfers his property just to keep it out of his creditors’ reach, the cheated creditors can have that transfer set aside — but an innocent buyer who paid real value is protected.

🧩 WORKED EXAMPLE — gifting away all property, debts unpaid

Facts. A gifts all his property to his brother-in-law and says nothing about his existing debts. His creditors are left with nothing to recover from.

Rule. Section 53(1) — a transfer made with intent to defeat or delay creditors is voidable at their option; a gift of all one’s property to a relative leaving creditors unpaid points to such intent. (The universal-donee rule, s.128, separately makes such a donee liable for the donor’s debts.)

Apply. A stripped himself of all assets by a gratuitous transfer to a relative, defeating his creditors. The intent to defeat is inferred.

Conclusion. The creditors may have the gift set aside as a fraudulent transfer (suing on behalf of all creditors); alternatively they may proceed against the donee as a universal donee liable for A’s debts.

flowchart TD
    A["Transfer of immovable property (s.53)"]
    A --> B["Intent to defeat/delay CREDITORS (s.53(1))"]
    B --> B1["Voidable at option of creditors"]
    B --> B2["BUT bona fide buyer for value protected"]
    A --> C["Without consideration to defraud LATER transferee (s.53(2))"]
    C --> C1["Voidable at option of the later transferee"]
    classDef box fill:#e8f0fe,stroke:#333,color:#111;
    class A,B,B1,B2,C,C1 box;

Case Laws

Twyne’s Case (1601) — badges of fraud (secrecy, continued possession, transfer of all goods) mark a transfer designed to defeat creditors.
Musahar Sahu v Hakim Lal (1915) — a transfer for valuable consideration to one creditor is not fraudulent merely because it leaves other creditors unpaid; intent to defeat must be shown.
The burden under s.53 — the intent to defeat or delay creditors must be proved by the creditor seeking to avoid the transfer; a bona fide transfer for value is protected.

Transfer by an Unauthorised Person Who Later Acquires Interest

A man sells you a plot swearing it is his, takes your money — and only afterwards does it come out that he owned nothing at the time. Then fortune turns: he inherits that very plot. Can he keep it and laugh at you? Section 43 says no. The title he later picks up is pulled across to you automatically — the law “feeds the grant” it once could not honour.

The Rule — Feeding the Grant by Estoppel (Section 43)

Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property, and professes to transfer it for consideration, the transfer shall — at the option of the transferee — operate on any interest which the transferor may afterwards acquire in that property, so long as the contract of transfer still subsists. The section enacts the English equitable doctrine of “feeding the grant (or the estoppel)”: the transferor, having represented that he owned the property, is estopped from denying it once he does acquire it, and that after-acquired title passes to the buyer he misled.

The conditions are:

A representation — fraudulent or erroneous — that the transferor was authorised to transfer.
A transfer for consideration (the equity does not aid a volunteer under a gift).
The transferor subsequently acquires an interest in the same property.
The contract of transfer is still subsisting — the transferee has not rescinded it.
The remedy is at the option of the transferee, who may enforce it or walk away.
Who — protects the misled buyer for value; binds the transferor who misrepresented his title.
When — the option arises the moment the transferor acquires the interest, provided the contract still subsists.
How — the buyer elects to take the after-acquired interest; but the proviso protects a later bona fide transferee for consideration without notice of the option — so a second honest buyer can defeat the first’s claim.

The s.43 v s.6(a) puzzle. Section 6(a) says a spes successionis — the bare chance of an heir to succeed — cannot be transferred, and such a transfer is void. How does that square with s.43, which validates a transfer of property the transferor did not yet own? The Supreme Court reconciled them in Jumma Masjid: where the transferee was misled by a representation of present ownership, s.43 applies and the after-acquired title feeds the grant; s.6(a) governs only where both parties knew they were dealing in a mere expectancy. Knowledge is the dividing line.

Section 43, TPA: “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 right of transferees in good faith for consideration without notice of the existence of the said option.”

In Simple Terms: If someone sells you property he claims is his but isn’t, and he later becomes its owner, you can hold him to the sale — his new title flows to you. But if in the meantime he sold it again to another honest buyer who knew nothing of your deal, that buyer wins.

🧩 WORKED EXAMPLE — the plot the seller did not yet own

Facts. A, representing that he is the sole owner, sells a plot to B for value. In truth A had no title then — the plot belonged to the joint family and A was only a prospective heir. A later inherits the plot on his father’s death.

Rule. Section 43 — an erroneous representation of ownership + a transfer for consideration means the after-acquired title feeds the grant, at B’s option (Jumma Masjid v Kodimaniandra Deviah).

Apply. B was misled by A’s representation and paid value; A has now acquired the interest; the contract subsists. B may elect to take the plot. A cannot plead s.6(a), because B did not knowingly buy a mere chance.

Conclusion. B gets the plot. (But if A had meanwhile sold it to C, a bona fide buyer for value without notice of B’s option, C would prevail under the proviso.)

flowchart TD
    A["A misrepresents authority + sells to B for value (s.43)"]
    A --> B["A later acquires the interest"]
    B --> C{"Contract still subsists?"}
    C -->|"Yes"| D["After-acquired title FEEDS the grant — B may elect to take it"]
    C -->|"No / rescinded"| E["No feeding"]
    D --> F{"Meanwhile sold to bona fide buyer C, no notice?"}
    F -->|"Yes"| G["Proviso: C prevails over B"]
    F -->|"No"| H["B gets the property"]
    classDef box fill:#e8f0fe,stroke:#333,color:#111;
    class A,B,C,D,E,F,G,H box;

Case Laws

Jumma Masjid v Kodimaniandra Deviah (1962) — the leading Supreme Court authority: s.43 applies where the transferee is misled by a representation of ownership, and it prevails over s.6(a); the two sections operate in different fields, divided by the parties’ knowledge.
Official Assignee, Madras v Sampath Naidu (1933) — a mortgage of property the mortgagor merely expected to inherit; illustrates the interplay of after-acquired interest and the spes-successionis bar.
The proviso to s.43 protects a later bona fide transferee for consideration without notice of the transferee’s option.

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