- (1.) JUDGEMENT This suit which has given rise to this Second Appeal was for possession of certain plots of agricultural land. Admittedly Mahadeo, who was an occupancy tenant of the plots in suit, mortgaged them usufructuarily to defendants Nos. 1 to 3 for a sum of Rs. 85/- about 15 years prior to the institution of the suit and the mortgagees had constituted in possession since then. It was alleged by the plaintiffs that on 14th October, 1958 Mahadeo acquired the rights of a Bhumidhar by depositing an amount equal to ten times the revenue payable for the land and then sold it to the plaintiffs. The plaintiffs thus claimed to be entitled to recover possession of the land on payment of Rs. 85/- or such other sum as may be found due under the mortgage. The learned Munsif granted to the plaintiffs a decree for possession subject to their depositing a sum of Rs. 85/- within one month from the date of the decree. On appeal by the mortgagee-defendants the learned District Judge modified the decree of the trial Court and substituted for the decree of possession a decree in the following terms. The plaintiffs were granted a declaration that they are Bhumidhars of the land in suit and that the mortgagee-defendants are in possession thereof as mortgagees for a sum of Rs. 85/- advanced to Mahadeo the predecessor-in-interest of the plaintiffs. The decree further provided that it the plaintiffs deposit a sum of Rs. 85/- in Court for payment to the mortgagee-defendants within three months from the date of the appellate decree they would be entitled to institute a suit for possession under S. 202 of the U.P. Zamindari Abolition and Land Reforms Act against the mortgagee-defendants. Two of the mortgagee-defendants have preferred this appeal impleading the third as a respondent. The only contention raised before me by the learned counsel for the appellants was that the sale deed dated 14th October, 1958 on which the plaintiffs based their claim conferred upon them no right to the land in suit inasmuch as the certificate necessary for the acquisition of the rights of a Bhumidhar was issued in favour of Mahadeo on 26th October, 1958. It was urged that the present suit which was filed on 20th September, 1959 was consequently incompetent and it was not rendered competent retrospectively by the second deed of sale regarding the disputed land which the plaintiffs are proved to have obtained from Mahadeo on 3rd May, 1960 i.e., during the pendency of the suit, in order to cure the defect in their title.
(2.) IT cannot be disputed and has, indeed, not been disputed before me that on 14th October, 1958 when Mahadeo executed the first sale deed in regard to the land in suit in favour of the plaintiffs he had no transferable interest in it. He had certainly made the requisite deposit under S. 134 of the U.P. Zamindari Abolition and Land Reforms Act but no certificate under S. 137 of the Act had been granted to him till then. Under Sub-S. (2) of S. 137 of the Act as it then stood a Sirdar acquired the rights of a Bhumidhar only upon the grant of the certificate under Sub-S. (1) and from the date thereof. On fulfilling the conditions required by S. 134 of the Act a Sirdar certainly became entitled to a declaration that he had acquired the rights mentioned in S. 137 of the Act but it was not until the certificate had actually been granted that the right inhered in him and the inherence took effect not from when he became entitled to the declaration but from the date of the certificate. Obviously, therefore, Mahadeo was not competent to transfer the land on 14th October, 1958, when he executed the first sale deed. It was, however, contended on behalf of the-plaintiffs that the grant of the certificate under S. 137 of the Act on 26th October, 1958 perfected the title of the plaintiffs and the subsequent acquisition of the rights of a Bhumidhar by Mahadeo upon the grant of the certificate operated on the interest which he purported to pass under the sale deed dated 14th October, 1958, by virtue of S. 43 of the Transfer of Property Act. In reply to this contention it was urged that S. 43 of the Transfer of Property Act could not be invoked by the plaintiffs for the following reasons, Firstly, Mahadeo appears to have genuinely believed that after making the requisite deposit under S. 134 of the U.P. Zamindari Abolition and Land Reforms Act he had become a Bhumidhar and had acquired the right of transfer with regard to the land in suit. Secondly, the real state of things pertaining to this matter was known to the plaintiffs and was at least ascertainable by them. Thirdly, transfer of the rights of a Sirdar not being permitted by law, S. 43 of the Transfer of Property Act could not cure the illegality of the transfer.
(3.) THE principle embodied in S. 43 of the Transfer of Property Act has been variously described as the Common Law doctrine of feeding the grant by estoppel or as the doctrine of Equity that equity treats that as done which ought to be done or as a combination of both, but, a statutory shape having; been given to the principle, it is the Section itself which must ultimately determine its scope and the conditions of its application. In order that S. 43 may apply there must obviously have been a fraudulent or erroneous representation by a person that he was authorised to transfer immoveable properly and he must have professed to transfer such property, but there is nothing in the Section requiring that the transferor should have been aware of the erroneousness of the representation made by him. The transferor might have honestly believed in the truth of the representation that he was authorised to transfer the property, which he professed to transfer, but that would not render the Section inapplicable. It will be noted that even before the introduction of the word fraudulently into the Section in 1929, erroneous representation was construed as including, all representations whether tainted or untainted with fraud. The amendment has now made it clear that the section will be applicable even if the transferor is un aware of the erroneous nature of the representation made by him. The matter is concluded by the following observations of the Supreme Court in the case of Tumma Masjid Mercara v. Kodimaniandra Deviah, AIR 1962 SC 847 :- "It is immaterial whether the transferor 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 where a person erroneously represents, and now, as amended 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 not whether the transferor acted fraudulently or innocently is making the representation, and that what is material is that he did make a representation and the transferee has acted on it." ;