Codified but not constrained: Recasting proprietary estoppel under the Indian Transfer of Property Act,1882

Abstract

This article revisits the foundations of proprietary estoppel under the Indian Transfer of Property Act, 1882 (TPA), by examining Sections 41, 43, and 53A. It argues that the prevailing interpretation of these codified forms remains unduly tethered to contract law. The article advances two core claims. First, it distinguishes between contractual invalidity – where an agreement is void under the Indian Contract Act, 1872 (ICA); and proprietary invalidity – where the interest itself is incapable of transfer under the TPA. Preserving this distinction, it is argued, is essential to maintaining the doctrinal coherence and function of proprietary estoppel in Indian property law. Second, the article reconceptualises proprietary estoppel under the TPA as generating substantive secondary rights, independent of contractual enforceability. Taken together, these claims position proprietary estoppel not as a contractual adjunct but as a distinct mechanism for the creation of proprietary interests within Indian law.