ivil Appeal No 1994 N of 1971
From the Judgment and Order dated 26
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
section 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 vs Jokhu Second Appeal No 4276 of 1964 arid decreed the suit
The defendant has preferred this appeal by special leave under article 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 cla of section 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
2Upon the grant of the certificate under sub sec
1 the sirdar shall from the date thereof abecome 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 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 vs 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 vs Jokhu was approved by another Division Bench of the same court consisting of section D Khare and R B Misra JJ in Ram Swarup vs Deputy Director Consolidation and Ors1 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 vs 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 vs
Kodimaniandra Deviah 2 
He 1 ALL698
 1962 SUPP 2 SCR 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 section 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
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 section 43 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 section 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 vs Sanpath Naidu1
F This reasoning is open to the criticism that it ignores the principle underlying section 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 section 43 were 1 924 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 section 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 section 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 section N Kacker Senior Advocate was kind enough to assist us as amicus curiae
We are gratefull to him for his assistance
MLA Appeal allowed


Summary:
Section 1341 of the UP 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
The vendor Who had Sirdari rights over the disputed land deposited the required amount on 28th Oct 1961 section 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 section 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 wef
30th October 1961 ie from the date of grant of Bhumidari Certificate and Dot from the date of deposit of 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 6a
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 section 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
1372in 1962 and substituted the words from the data on which the amount referred to in section 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
1372 of the UP 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 vs Deputy Collector Consolidation  Ors
ILR 1971 1 All 698 approxed
Jumma Masjid vs Kodimaniandra Deviah  Supp 2 SCR 554 Official Assignee Madras vs Sanpath Naidu and Dhani Ram vs Jokhu Second Appeal No 4276 of 1964 decided by Allahabad High Court referred to 920