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PETITIONER: RAM PYARE

       Vs.

RESPONDENT: RAM NARAIN & OTHERS

DATE OF JUDGMENT15/02/1985

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1985 AIR  694            1985 SCR  (2) 918  1985 SCC  (2) 162        1985 SCALE  (1)262

ACT:      U. P.  Zamindari Abolition & Land Reforms Act 1950, ss. 134 and  137 Vendor  deposited money  to  acquire  Bhumidari right-Land sold  on representation  that he  had such rights but before  obtaining certificate  of Bhumidari rights-Sale- Whether valid-Vendee,  whether entitled  to  invoke  s.  43. T.P.. Act.       Transfer  of   Property Act,  s. 43-Vendor  depositing money for  acquiring Bhumidari  rights over  land-Sale  Deed executed making  erroneous representation  that  vendor  had Bhumidari  rights-Certificate  of  Bhumidari  rights  issued subsequently-Whether s. 43 applicable.

HEADNOTE:       Section  134(1) of  the U.P.  Zamindari Abolition  and Land Reforms  Act 1950  provides that  if a  Sirdar  (tenure holder) deposits  with the  State Government an amount equal to ten  times the  land  revenue  payable  on  the  date  of application for  the land  of which he is a Sirdar, he shall 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. Sec. 137  as it stood before amendment in 1962 provided that the Sirdar  shall become  a bhumidhar from the date of grant of a  certificate by  the Assistant Collector under sub-sec. (1).       The  vendor Who  had Sirdari  rights over the disputed land deposited  the required  amount on  28th Oct. 1961 u/s. 134 of the Act in order to acquire Bhumidari rights over the land. He  sold the  land to  the appellant  on the  same day while he  was granted  certificate of  Bhumidari rights u/s. 137  of   the  Act   on  30th  Oct.  1961.  Thereafter,  the respondents, sons  of the  vendor, filed  a suit  before the Additional Munsiff for cancellation of Sale Deed executed by the vendor on 28th October, 1961. The suit was dismissed and the order was confirmed in first appeal. Rut, the High Court in second  appeal filed by the respondents decreed the suit, holding that  the vendor  had no  right to  execute the sale deed on  28th   October 1961,  since he  acquired Bhumidbari rights w.e.f.  30th October 1961 i.e. from the date of grant of Bhumidari Certificate and Dot from the date of deposit of

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the amount. 919       Allowing the appeal to this Court, ^       HELD:  (l) Section 43 of the ’transfer of Property Act embodies 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. lt  mattes not  whether the transferor acted fraudulently or  innocently in  making  the  representation. What is material is hat he did make a representation and the transferee has  acted on  it. Where the transferee knew as a fact that  the transferor did not possess the title which he represents he has, then he cannot b 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 where 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 transfer or might have been. [923 G-H; 924 C- D] C       (2)  In the  instant case, the amount of deposit under sec. 134  of the Act was made on October 28, 1961 and it was on the same day that the sale deed was executed. It is clear that the  vendor erroneously  represented to the vendee that he was  authorized to transfer the property and professed to transfer such property for consideration. the very execution of the  sale deed  on the  same day  as the  deposit of  the requisite  amount  under  sec.  134  is  significant  enough establish that  the sale deed was the result of an erroneous representation by  the Vendor.  It is  also clear  that  the respondents who  are the sons of the vendor, cannot possibly claim to  be transferees  in good faith which indeed they do not claim  to be. Section 43 of the Transfer of Property Act clearly applies  to the  situation However,  the conflict of opinion which  rose in  the  Allahabad  High  Court  on  the question whether a tenant obtained Bhumidari rights from the date of  deposits, the  date of  declaration or  the date of certificate was  resolved by  the legislature  which amended sec. 137(2)in  1962 and substituted the words "from the data on  which  the  amount  referred  to  in  s.  134  has  been deposited"  for   the  words,   ’"from  the  date  thereof." Unfortunately the amending Act, which in the case of certain amendments provided  that the  substituted  words  shall  be deemed always  to have  been  so  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 bhumidari   certificate. [922 E-H; 921 F-H; 922A]       Ram  Sawarup v. Deputy Collector, Consolidation & Ors. I.L.R. 1971 (1) All. 698, approxed.       Jumma  Masjid v.  Kodimaniandra Deviah,  AIR  1962  SC 847=[1962 Supp.  2 S.C.R.  554, Official Assignee, Madras v. Sanpath Naidu  65 MAD  LJ 588 and Dhani Ram v. Jokhu  Second Appeal No.  4276 of  1964 [decided  by Allahabad  High Court referred to. 920

JUDGMENT:

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    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. 921       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

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    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 922 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

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        1. ILR 1971 (1) ALL.698.          2. AIR 1962 SC 847 =[1962] SUPP 2 S.C.R. 554. 923 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. 924      "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

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    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. 925