CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1994 (N) of 1971.
From the Judgment and Order dated 26. 11. 70 of the High Court of Allahabad in Second Appeal NO. 4540 of 1964.
O. P. Verma for the appellant.
J. M. Khanna and R. A. Gupta for the Respondents.
S. N. Kackar appeared as amicus curiae.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. 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 Bhumidhari rights. This he could do under sec. 134 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 as it then stood. The deposit was made on October 28, 1961. On the same day, Matbar Mal sold the land to the present appellant. On October 30, 1961, a certificate to the effect that he had acquired Bhumidhari rights was issued to Matbar Mal under sec. 137 of the U. P. Zamindari Abolition and Land Reforms Act, 1950. Thereafter the sons of Matbar Mal filed the suit out of which the present appeal arises for cancellation of the deed of sale executed by Matbar Mal on October 28, 1961 in favour of the defendants. the suit was dismissed by the court of the Additional Munsif and the appeal by the plaintiffs was also dismissed by court of the Temporaries Civil & Sessions Judge, Deoria. On second appeal by the plaintiffs, however, a single judge of the High Court of Allahabad allowed the appeal following a Division Bench judgment of the same court in Dhani Ram v. Jokhu (Second Appeal No. 4276 of 1964) arid decreed the suit. The defendant has preferred this appeal by special leave under Art. 136 of the Constitution.
’ The ground on which the second appeal was allowed by the High Court was that the Sirdar who deposited the requisite amount acquired Bhumidhari rights not from the date of deposit but from the date of the grant of the Bhumidhari certificate, and, therefore, Matbar Mal who executed the sale deed on October 28, 1961 had no right to execute the same on that day as he acquired Bhumidhari rights with effect from October 30, 1961 only, which was the date of the issuance of the Bhumidhari certificate.
Before the U. P. Zamindari Abolition and Land Reforms Act, A 1950 was amended in 1962, sec. 134 in so far as it is relevant stood as follows:
"134 (1) if a sirdar belonging to the class
mentioned in cl.(a) of s. 131 pays or offers to pay to
the credit of the State Government an amount equal to
ten times the land revenue payable or deemed to be
payable on the date of application for the land of
which he is the sirdar, he shall, upon an application
duly made in that behalf to an Assistant Collector, be
entitled, with effect from the date on which the amount
has been deposited, to a declaration that he has
acquired the rights mentioned in sec. 137 in respect of
such land.. "
Section 137 in so far as it is relevant then stood as follows:
"137 (1) If the application has been duly made
and the Assistant Collector is satisfied that the
applicant is entitled to the declaration mentioned in
sec. 134 he shall grant a certificate to that effect.
(2)Upon the grant of the certificate under sub-
sec. (1) the sirdar shall from the date thereof-
(a)become and the be deemed to be a bhumidhar
of the holing or the share in respect of which the
certificate has been granted, and (b)..... "
There was some conflict of opinion in the Allahabad High Court ON the question whether the tenant depositing the amount equivalent to ten times the land revenue and obtaining a Bhumidhari certificate, obtained Bhumidhari rights from the date of deposit, the date of declaration or the date of certificate The conflict was resolved by the legislature which enacted Act 21 of 1962 which amended sec. 137 of the U. P. Zamindari Abolition Act among other provisions of various other enactments. In sec. 137 sub-sec. 2 of the U. P. Zamindari Abolition Act, for the words "from the date thereof" were substituted the words and figures "from the date on which the amount referred to in sec. 134 has been deposited". Unfortunately the amending Act, which in the case of certain amendments provided that the substituted words shall be deemed always to have been s:) substituted, did not so provide in the case of the amendment of sec. 137 (2) of the U. P. Zamindari Abolition Act. The result was that in cases where the amount had been deposited and a certificate obtained On different dates before the coming into force of the 1962 amending Act, the position still was that the tenure holder acquired bhumidari rights with effect only from the date of issuance of the bhumidhari certificate. It was so held in Dhani Ram v. Jokhu (supra) by a Division Bench of the Allahabad High Court. It was following this decision in Dhani Ram’s case that the learned single Judge of the High Court in the present case allowed the second appeal. The decision in Dhani Ram v. Jokhu was approved by another Division Bench of the same court consisting of S. D. Khare and R. B. Misra, JJ in Ram Swarup vs. Deputy Director, Consolidation and Ors.(1) In the latter case the learned judges expressed the further opinion that in a situation like the one before them, there was no reason why recourse should not he had to sec. 43 of the Transfer of Property Act to feed the title as it were, if the necessary conditions were fulfilled. We agree with the reasoning of the learned judges in Ram Swarup v. Deputy Director, Consolidation ’- (supra). In that case, the matter was remanded to the Deputy Director of Consolidation to consider the question of the applicability of sec. 43 of the Transfer of Property Act and proceed to dispose of the matter in accordance with law. In the present case, the facts speak for themselves and we do not think that it is necessary to remand the case to the lower courts for a decision on the question of the applicability of sec. 43 of the Transfer of Property Act. The amount of deposit under sec. 134 of the U. P. Zamindari Abolition Act was made on October 28, 1961 and it was on the same-day that the sale deed was executed by Matbar Mal. It is clear that Matbar Mal erroneously represented to the vendee that he was authorised to transfer the property and professed to transfer such property for consideration. The very execution of the sale dead on the same day as the deposit of the requisite. amount under sec 134 is significant enough to establish that the sale deed was the result of an erroneous representation by Matbar Mal. It is also clear that the present plaintiffs who are the sons of the vender, Matbar Mal cannot possibly claim the transferees in good faith which indeed they do not claim to be. Section 43 clearly applies to the situation. The learned counsel for the respondents however attempted to disclaim the applicability of sec. 43 of the Transfer of Property Act by referring to Jumma Masjid v.Kodimaniandra Deviah (2) . He
1. ILR 1971 (1) ALL.698.
2. AIR 1962 SC 847 =[1962] SUPP 2 S.C.R. 554. invited our attention to the following observations of the learned judges:
"Now the compelling reason urged by the
appellant for reading a further exception in sec. 43 is
that if it is construed as applicable to transfers by
persons who have only spes succession is at the date of
transfer, it would have the effect of nullifying sec. 6
(a). But sec. 6 (a) and S. 43 relate to two different
subjects and there is no necessary conflict between
them. Sec 6 (a) deals within certain kinds of interests
in property mentioned therein, and prohibits a transfer
simpliciter of those interests. Sec. 43 deals with
representations as to title made by a transferrer who
had no title at the time of transfer, and provides that
the transfer shall faston is self on the title which
the transferer subsequently acquires. Section 6 (a)
enacts a rule of substantive law, while s. 4.3 enacts a
rule of estoppel which is one of evidence. the two
provisions operate on different fields, and under
different conditions, and we see no ground for reading
a conflict between them or for cutting down the ambit
of the one by reference to the other. In our opinion,
both of them can be given full effect on their own
terms, in their respective spheres. To hold that
transfers by persons who have only a spes successions
at the date of transfer are not within the protection
afforded by s. 43 would destroy its utility to a large
extent."
We are unable to see in what manner these observations can possibly assist the respondents. In the same decision, it has been observed later, referring to the decision of the Madras High Court in Official Assignee, Madras v. Sanpath Naidu(1). F
"This reasoning is open to the criticism that
it ignores the principle underlying s. 43. That section
embodies, as already stated, a rule of estoppel and
enacts that a person who makes a representation shall
not be heard to allege the contrary as against a person
who acts on that representation. It is immaterial
whether the transferer acts bona fide or fraudulently
in making the representation. It is only material to
find out whether in fact the transferee has been
misled. It is to be noted that when the decision under
consideration was given, the relevant words of s. 43
were,
(1) 65 Mad, LJ, 588.
"where a person erroneously represents", and now, as
amen ded by Act 20 of 1929, they are "where a person
fraudulently or erroneously represents", and that
emphasises that for the purpose of the section it
matters no whether the transferer acted fraudulently or
innocently in making the representations and that what
is material is that he did make a representation and
the transferer has acted on it. where the transferee
knew as a fact that the transferer did not possess the
title which he represents he has, then he cannot be
said to have acted on it when taking a transfer.
Section 43 would then have no application and the
transfer will fail under s. 6 (a). But whore the
transferee does act on the representation, there is no
reason why he should not have the benefit of the
equitable doctrine embodied in s. 43, however,
fraudulent the act of the transferer might have been "
In the circumstances of the present case, we have no doubt that the provisions of sec. 43 of the Transfer of Property Act are clearly attracted and that is sufficient to non-suit the plaintiffs. The appeal is, therefore, allowed with costs. The judgment of the High Court is set aside and that of the lower appellate court restored. Shri S. N. Kacker, Senior Advocate, was kind enough to assist us as amicus curiae. We are gratefull to him for his assistance. M.L.A. Appeal allowed.