- (1.) K. C. Agarwal, J. This is a defendant's second appeal arising out of a judgment and decree of the First Additional Distric Judge, Varanasi dated 22-2-1973 dismissing the appeal of the defendant-appellant. For deciding the controversy involved in the present appeal, the follow ing pedigree may be noted; Smt. Asgari (wife No. I) Abdul Mannan Smt. Wahidunnisa (wife No. II) Abdul Naeem Abdul Alim Abdul Halim (Plff.) Abdul Nasim Abdul Fahim Abduf Jalil (Defendt 3) (Defendt. 2) (of unsound mind ). The house in suit No. C-18/19, situated in Mohalla Matakund, Varanasi was purchased in the name of Smt. Wahidunnisa, the second wife of Abdul Mannan Upon her death in 1934, Abdul Mannan, her husband, filed suit No. 26 of 1953 for declaration against his three sons from his second wife that the sale-deed in favour of Smt. Wahidunnisa was a Benami. He alleged himself to be its real owner. The suit was contested by Abdul Nasim, Abdul Fahim and Abdul Jalil, who were his three sons from his second wife Smt. Wahidunnisa. They pleaded that the house belonged to their mother. On 11-4-1956, the suit was dismissed, holding that Smt. Wahidunnisa was the real owner and the share of her husband Abdul Mannan and her three sons was equal, being 1/4th each. Abdul Mannan filed an appeal which was numbered as 282 of 1966. During the pendency of this appeal, Abdul Mannan sold the disputed house to his son Abdul Halim from his first wife. Abdul Halim is the plaintiff of the present suit. A sale-deed was executed by Abdul Mannan holding out that he was the sole and exclusive owner of the aforesaid house. Abdul Mannan also died on 6-11-1957, First Appeal No. 282 of 1916 was finally dismissed. Subsequently on 24-8-1959, Abdul Nasim and Abdul Fahim executed a sale-deed on their behalf and as guardian of Abdul Jalil (the latter being of unsound mind) in favour of Anwar Ali, defendant No. 1. Abdul Jalil died some time before 1967. As already stated above, the First Appeal No. 282 of 1956 was dismissed. Upon the death of their brother Abdul Jalil, Abdul Nasim and Abdul Fahim claimed his share to the extent of l/8th each, i. e. two Annas each. Abdul Jalil had himself 1/4th share in the disputed house having inherited the same from his mother Smt. Whidunnisa on 26-12-1967. Abdul Fahim sold his two annas share in favour of the plaintiff Abdul Halim. Thus, according to Abdul Halim, the plaintiff, his share became six annas (four Annas obtained through the sale-deed dated 1-6-1767 executed by his father Abdul Mannan plus two annas obtained through the sale-deed dated 26-1 2-1967, executed by Abdul Fahim ). Claiming six annas share in the disputed house, the plaintiff Abdul Halim brought the suit giving rise to the persent appeal, for partition of his share. In this suit, he imp leaded Anwar Ali defendant No. 1 and Abdul Fahim, defendant No. 2. Both these defendants filed their written statements disputing the claim of Abdul Halim. The trial Court decreed the suit finding that the plaintiff's share in the house in suit was six-annas. Against the decree of the trial Court, the defendant No. 1 went up in appeal. In the appeal, the lower appellate Court framed the following three points : 1. That the registered sale-deed dated 1-6-1957 (Ex. 8) executed by Abdul Mannan in favour of his son Abdul Halim plaintiff was not genuine and not for consideration.
(2.) THAT the registered sale-deed dated 26-12-1567 executed by Abdul Fahim, defendant No, 2 in favour of the plaintiff Abdul Halim is also fictitious and without consideration. That the provisions of Section 43 of the Transfer of Property Act are attracted in this case and the defendant No 1 Anwar Ali is entitled to its benefit. All three points were decided against the defendant No. 1 and the appeal was dismissed. Consequent upon the dismissal of the appeal, the defendant No. 1 filed the present second appeal. Out of the three points mentioned in the judgment of the lower appellate Court, the learned counsel for the defendant-appellant pressed points Nos. I and 3 before me. He did not advance any argument on point No. 2, and, in my opinion, rightly. Otherwise also, I do not find any merit on point No. 2. This was also not pressed before the lower appellate Court. Coming to point No. 1, the controversy was whether the sale-deed executed on 1-6-1957 by Abdul Mannan in favour of Abdul Halim, the plaintiff, was not genuine and for consideration, the two Courts below concurrently held that the defendant could not give any evidence to prove that the sale deed was not genuine. The plaintiff produced documentary and oral evidence to prove that the aforesaid sale- deed was genuine. Amongst these, the plaintiff filed Ext. A-2 which was an affidavit sworn by Abdul Halim in support of the substitution application filed in First Appeal No. 282 of 1956. It is not necessary for me to refer to the evidence led by the parties on this controversy. The two Courts below considered the evidence and found as a fact that the sale deed in favour of the plaintiff was genuine. Counsel attempted to challenge the finding on the ground that the inference drawn from the evidence by the lower appellate Court was erroneous. The sub-mission made has no merit. The admissibility of evidence is no doubt of a point of law but once it is shown that the evidence, on which the Courts of fact have acted was admissible and relevant, it is not open to a party feeling aggrieved by the finding to contend before the High Court in second appeal that the said evidence is not sufficient to justify the finding of fact in question. It has always been recognised that sufficiency or adequacy of evidence in support of a finding of fact is a matter of decision of the Court of finding of fact and cannot be agitated in second appeal. The third point argued was about Section 43 of the Transfer of Pro perty Act. It has been noted above that on 24-8-1959, a sale deed was executed by Abdul Nasim and Abdul Fahim for self and as guardian of Abdul Jalil. Abdul Jalil was of unsound mind. The claim of the plaintiff was that as Abdul Jalil was of unsound mind, Abdul Nasim and Abdul Fahim did not have any right under the law to execute sale deed on behalf of their brother Abdul Jalil. On the aforesaid basis, the plaintiff had claimed that upon the death of Abdul Jalil, his right in the property was inherited by his two brothers Abdul Nasim and Abdul Fahim in equal share. Hence the plaintiff's assertion was that the sale deed of two annas share executed by Abdul Fahim on 26-12-1967 was valid. Claiming benefit of Section 43 of the Transfer of Property Act, the defendant No. 1 asserted that since Abdul Fahim fraudulently represented that he was authorised to transfer the share of Abdul Jalil and obtained considera tion, such transferee would operate on the interest which Abdul Fahim acquired in the property. The two Courts below did not accept that the defendant No. 1 was entitled to the benefit of Section 43 of the Transfer of Property Act. It is admitted to the parties that Abdul Nasim and Abdul Fahim could not be the guardians of Abdul Jalil. Under the Mohammadan law, the following persons were entitled in the order mentioned to be the guardians of the property of a minor : 1. The father. 2. The executor appointed by the father's will. 3. The father's father. The executor appointed by the will of the father's father. The four guardians mentioned above are known as legal guardians. No other relation is entitled to the guardianship of the property of a minor as of right, not even the mother, brother or uncle. Hence, Abdul Nasim and Abdul Fahim, being brothers, could not act as a guardian. It is the admitted case of the parties that they had not been appointed by the Court to act as guardians. Consequently the sale deed executed by them on 24-8-1959 on behalf of their brother Abdul Jalil was invalid. They could not convey any title to Anwar Ali, the defendant No 1 in respect of the share of Abdul Jalil. It may be noted here that the law applicable to a minor applies to case of unsound person as well. In Imamandi v. Mutsaddi (191845 I. A. 73) the Privy Council held that the mortgage or any other transfer by the mother is wholly void. The same principle applies to a brother. Having found that the sale deed executed on 24-8-1959 was void to the extent of the share of Abdul Jalil, the only question that arise for decision is about the benefit of Section 43 of the Transfer of Property Act. Section 43 of the Transfer of Property Act lays down what is known as "feeding estoppel" that is to say whether a grantor has purported to grant an interest in land, which he did not at that time possess, but subsequently acquires the benefit of the subsequent acquisition goes automatically to the earlier grantee or as it is usually called 'feeding the estoppel. ' Section 43, however, does not apply to the present case. By this doctrine, the estoppel is the right from the recitals of title contained in the conveyance and it is these recitals which the grantor has to make good, so that if he subsequently acquires the ownership of the property by some other capacity, the subsequent acquiring interest does not feed the estoppel. So as to make the original conveyance effective against a third party. Fernando v. Gunatailaka ( (1921)2 A. C. 357 ). In Zumma Masjid Mercara v. Kodimainador Deviah (A. I. R. 1962 S. C. 847 ). The Supreme Court also said that Section 43 of the Transfer of Property Act deals with the transfer which fails for want of title in the transferor and not want of capacity in him at the time of transfer. For what I have said above, it appears that Section 43 of the Transfer of Property Act could not be applied to the present case. Abdul Fahim did not claim himself to be the owner of the share of Abdul Jalil which sub sequently was inherited by him. The sale deed had been executed by him on 24-8-1959 along with his brother Abdul Nasim on their own behalf and as guardians of Abdul Jalil. It was, therefore given out by Abdul Fahim himself that he did not have any right of ownership over the share of Abdul Jalil. He was conveying the right of Abdul Jalil along with his brother making a mention to that effect. There was no fraudulent or erroneous representation. Anwar Ali defendant No. 1 knew the truth. As the truth was known and there was no fraudulent or erroneous representation, Section 43 of the Transfer of Property did not apply. In Banwari Lal \. Sukh Drashan Dayal (1973 A. I. R. SC. 814), the Supreme Court held that where the true facts were known to those who purchased the properly, Section 43 of the Transfer of Property Act did not apply. If there was no misrepresentation, the foundation for the appli cation of this section is gone. In the present case, the finding of the lower Court is that the defendant No. 1 knew about the correct state of affairs. There was no question of any fraudulent or erroneous representation. The sale deed itself recited that it and been executed by Abdul Nasim and Abdul Fahim on their behalf and on behalf of their brother. Hence Section 43 of the Transfer of Property Act did apply. In the result, the appeal fails and is dismissed with costs. .;