JAGAT NARAIN AND ANOTHER Vs. LALJEE AND OTHERS

JUDGEMENT

(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.

(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.

(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.