S.D Khare, J.:— This is a petition under Article 226 of the Constitution of India with the prayer that a writ of certiorari be issued calling, upon the Deputy Director of Consolidation, U.P, camp at Aligarh (opposite party No. 1) to produce the record of revision case No. 111 of 1963-1964 under Sec. 48 of the U.P Consolidation of Holdings Act, village Edalpur, pargana and tahsil Khair, district Aligarh, Sher Singh v. Ram Swarup decided on 27th May, 1964, so that the order passed in that revision case may be quashed.

2. The facts leading to the writ petition, briefly stated, are that certain plots of khata No. 313, situate in village Nagaria Darkana, mazra Edalpur, district Aligarh, were sirdari plots of Sher Singh and others in which Sher Singh had a half share. On 13th August, 1958, the aforesaid Sher Singh deposited ten times of the rent to become bhumidhar of the plots in suit and on the same date he executed a sale-deed in favour of the petitioner and delivered possession over the plots to him. When the mutation proceedings were started Sher Singh and Daryao raised an objection, but subsequently the matter was compromised, and on 23rd August, 1959, the plots were mutated in the name of the petitioner. In spite of the fact that a compromise had been arrived at during the mutation proceedings, Sher Singh instituted a civil suit for a declaration that the sale-deed was invalid on account of fraud, undue influence and lack of consideration. That suit, however, failed, and an appeal against that decision was pending when the village, where the plots is question lay, came under consolidation operations. As a result of the notification under Sec. 4 of the U.P Consolidation of Holdings Act the proceedings before the appellate court were stayed. During the course of the consolidation proceedings Sher Singh filed an objection on those very grounds on which his suit filed earlier was based. The Consolidation Officer allowed the objection of Sher Singh on the ground that on the date the transfer was made in favour of the petitioner Sher Singh had not become the bhumidhar of the plots in dispute and was, therefore, not entitled to transfer them in favour of the petitioner. The Assistant Settlement Officer, Consolidation, who heard the appeal against that decision, allowed that appeal. Against the decision of the Assistant Settlement Officer, Consolidation, a revision application under Sec. 48 of the U.P Consolidation of Holdings Act was filed by Sher Singh, and the Deputy Director allowed the revision and restored the order of the Consolidation Officer.

3. The only ground on which the Deputy Director of Consolidation allowed the revision was that the sale-deed having been executed on the date when the deposit was made was invalid because Sher Singh, the vendor, had not become the bhumidhar of that land immediately on making the deposit but the became its bhumidhar on a subsequent date when the order in his favour was passed under Sec. 137 of the U.P Zamindari Abolition and Land Reforms Act, 1951. The contention of the petitioner is that the Deputy Director of Consolidation has committed an error of law apparent on the face of the record in interpreting Sections 134 and 137 of the U.P Zamindari Abolition and Land Reforms Act and that according to the correct interpretation of those provisions of law he should have held that Sher Singh had become bhumidhar of the land in question immediately on depositing ten times of the rent.

4. During the course of his arguments and in support of his contention that opposite parties Nos. 1 and 2 had committed an error apparent on the face of the record the learned counsel for the petitioner has further contended that in any view of the matter the benefit of Sec. 43 of the Transfer of Property Act should have been given to the purchaser and the sale made in his favour should not have been disturbed.

5. In the counter affidavit which was filed by Sher Singh the fact of the execution of the sale-deed in favour of the petitioner was not denied. It was also not disputed that Sher Singh had subsequently become the bhumidhar of the land in question. His main contention was that the sale-deed in question was got executed by the petitioner by practising fraud and undue influence upon him and without payment of proper consideration. Sher Singh further contended that he was in actual possession over the plots in question. In other words, the contention raised by him amounts to the plea that even if the assumed that Sher Singh had become the bhumidhar of the land on the date of the deposit the sale-deed was vitiated by fraud and also for want of consideration.

6. As observed by us earlier, the judgment of the Deputy Director of Consolidation disposing of the revision application clearly shows that the claim of the petitioner has been negatived on one ground only, to wit, that on the date the sale-deed in favour of the petitioner was executed, Sher Singh had not become the bhumidhar of the land in question. It is not disputed that the order under Sec. 137 of the U.P Zamindari Abolition and Land Reforms Act, 1951, declaring Sher Singh to be the bhumidhar of the land in suit was passed on 4th November, 1958.

7. The petition was first listed for hearing before a learned single Judge of this Court who observed that while interpreting Secs. 134 and 137 of the Zamindari Abolition and land Reforms Act, 1951, as they stood on 13th August, 1958, divergent views have been expressed by learned single Judges of this Court in some of the cases coming up for decision before them. In the case of Tikam Singh v. Chhatra Pal Singh 1966 R.D 133. Dwivedi, J. had taken the view that upon a propel interpretation of Secs. 134 and 137 of the Zamindari Abolition and land Reforms Act the applicant became the bhumidhar only with effect from the date of the grant of certificate under Sec. 137 and not from the date of deposit, while in subsequent decisions in the cases of Niau v. Kunwar Sen 1966 R.D 35., decided by Tripathi, J. and Abdul Latif v. Abdul Hakim Khan 1967 R.D 72. and Bankey Singh v. Dharmdeo Singh 1967 R.D 114., decided by S.N Singh, J. the view taken was that the depositor became the bhumidhar from the date of the deposit.

8. After the decision of the case of Tikam Singh v. Chhatrapal Singh Sec. 137 of the Zamindari Abolition and Land Reforms Act, 1951, has been amended so as to make it clear that upon the grant of a certificate under Sec. 137 the depositor becomes a bhumidhar with effect from the date of the deposit. The learned single Judge, therefore, in view of the apparent conflict between the lines of reasoning adopted in the two sets of cases mentioned above directed that the record of the writ petition be laid before the Hon'ble the Chief Justice so that the matter may be decided by a larger Bench. That is how this writ petition has come up before us for disposal.

9. We have heard the teamed counsel for the parties and examined the record. We are of the opinion that this petition should be allowed.

10. In view of the conflict in the decisions of the learned single Judges of this Court on the question of interpretation of Secs. 134 and 137 of the U.P Zammdari Abolition and Land Reforms Act, reference was made by a learned single Judge of this Court in second Appeal No. 4276 of 1964 for deciding the following matters of controversy:

(1) Whether on a correct interpretation of Secs. 134 and 137 of U.P Act No. 1 of 1951 as it stood prior to its amendment by the U.P Land Laws Amendment Act No. 21 of 1962 the benefit of a certificate granted under Sec. 137(1) of the Act reference to the benefit of a tenure-holder from the date of its grant or from the date of his depositing the amount of ten times the land revenue as provided under Sec. 134?

(2) Whether the amendment of Sec. 137 of U.P Act No. 1 of 1951 by Sec. 6 of the U.P Land Laws Amendment Act No. 21 of 1962 is retrospective in its operation?

11. It was held by a Division Bench of this Court, (of which one of us was a member) that on a correct interpretation of Secs. 134 and 137 of the U.P Act No. 1 of 1951, as it stood prior to the amendment of 1962, the benefit of a certificate granted under Sec. 137(1) enures to the benefit of a tenure-holder from the date of grant and not from the date of deposit of the amount of ten times land revenue and that the 1962 amendment was not retrospective in operation.

12. In view of the above decision in the unreported case of Dhani Ram v. Jokhu Second Appeal No. 4276 of 1964, decided on 7th November, 1969., we need not consider the divergent views expressed by the learned single Judge of this Court. We respectfully agree with the view expressed in the case of Dhani Ram v. Jokhu.

13. The contention of the petitioner that the interpretation placed by the Deputy Director of consolidation on Secs. 134 and 137 of the U.P Zamindaii Abolition and Land Reforms Act, as they stood on 13th August, 1958 was wrong is, therefore of no avail.

14. The learned counsel for the petitioner has, therefore, placed his reliance on Sec. 43 of the Transfer of Property Act, and contended that inasmuch as the bhumidhari sanad was granted to Sher Singh on 4th November, 1958, during the continuance of the sale-deed, he must be held to be estopped from raising the contention that he was not the owner of the land on the date of the transfer, that is, on 13th August, 1958. The question to be considered, therefore, is whether the provisions of Sec. 43 of the Transfer of Property Act would apply to the facts of the present case.

15. A perusal of the judgment of the Assistant Settlement Officer, Consolidation, given on 11th December, 1963, and that of the Deputy Director of Consolidation revision passed on 27th May, 1964, will clearly indicate that no question of fact was considered by those authorities with regard to the plea under Sec. 43 of the Transfer of Property Act. There is no mention of that plea in the judgment of the Assistant Settlement Officer, Consolidation. The Deputy Director of Consolidation has considered the plea of Sec. 43 of the Transfer of Property Act as he was bound to do, because he was allowing the revision application, but while doing so he did not record any finding of fact with regard to that plea. We have also noted that although the Assistant Settlement Officer, Consolidation, has negatived the plea of Sher Singh with regard to the practice of fraud alleged by him in respect of the execution of the sale-deed and the want of consideration, the Deputy Director of Consolidation did not care to record any finding on those points also. It is difficult to understand how the revision application could be disposed of without recording any finding on those vital points. We are not prepared to accept the contention that Sec. 43 of the Transfer of Property Act can in no circumstances be applicable to the facts of the case on the ground that in case effect is given to Sec. 43 of the Transfer of Property Act the provision of law as contained in Sec. 158 of the U.P Zamindari Abolition and Land Reforms Act which prohibits the transfer of sirdari rights would become nugatory.

16. Sec. 43 of the Transfer of Property Act reads as follows:—

“Where a person fraudulently or erroneously represents that he is authored to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.”

17. It was held in the case of Jumma Masjid, Mercara v. Kodimaniandra Deviash A.I.R 1962 S.C 847. that where the vendor acquired title to the property sold by succession subsequent to the date of the execution of sale-deed by him, Sec. 43 of the Transfer of Property Act should be applied. It was further held that it will not have the effect of nullifying Sec 6(a) of the Transfer of Property Act. The Supreme Court observed as follows:

“But Sec. 6(a) and Sec. 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 transferor who had no title at the time of transfer, and provides that the transfer shall fasten itself on the title which the transferor subsequently acquires, Sec. 6(a) enacts a rule of substantive law, while Sec. 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 successionis is at the date of transfer are not within the protection afforded by Sec. 43 would destroy its utility to a large extent. It is also contended that as under the law there can be no estoppel against a statute, transfers which are prohibited by Sec. 6(a) could not be held to be protected by Sec. 43. There would have been considerable force in this argument if the question fell to be decided solely on the terms of Sec. 6(a). Rules of estoppel are not to be resorted to for defeating or circumventing prohibit enacted by statutes on grounds public policy. But here the matter does not rest only on Sec. 6(a). We have, in addition, Sec. 43, which enacts a special provision for the protection of transferees for consideration from persons who represent that they have a present title, which, in fact, they have not. And the point for decision is simply whether on the facts the respondents are gentled to the benefit of this sect on. If they are, as found by the courts below, then the plea of estoppel raised by him on the terms of the section is one pleaded under and not against the statute.”

18. The view taken by the Supreme Court was that Sec. 6(a) of the Transfer of Property Act must apply to cases where professedly there is a transfer of a mere spes succession, the parties knowing that the transferor had no more right than that of a mere expectant heir. It was further observed that the same result would follow if the parties knowing the full facts fraudulently clothe the transaction in the garb of an out and out sale of the property. It was, however made clear that where an erroneous representation is made by the transferor to the transferee that he is the full owner of the property transferred and is authorsed to tranfer it and the property transferred is not a mere chance of succession but immovable property itself, and the transferee acts upon such erroneous represent at on, then even if the transfer happens later, but before the contract of transfer comes to an end, to acquire an interest in that property, no matter whether by private purchase, gift, legacy by inheritance or otherwise, the previous transfer can at the option of the transferee operate on the interest which has been subsequently acquired, although it did not exist at the time of the transfer.

19. The decision in the case of Jumma Masjid, Mercara would apply on all fours to the facts of the present case if we substitute Sec. 153 of the Zamindari Abolition and Land Reforms Act in place of Sec. 6(a) of the Transfer of Property Act. In case the transfer is made of sirdari rights as such or in case it is knowingly given the garb of an out and out sale although the parties knew that on the date of the sale the transferor was merely a sirdar and not a bhumidhar Sec. 43 of the Transfer of Property Act will not apply. However, no presumption can be raised that both the vendor and the vendee knew on the date of the sale that the vendor was merely a sirdar and had not till then become the bhumidhar of the land in question. The wording, of Sec. 134 of the Zamindari Abolition and Land Reforms Act might well have led the parties to the sale to believe that the vendor had become a bhumidhar from the date of deposit.

20. The Supreme Court held in the case of Jumma Masjid, Mercara that where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. 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 Sec. 43, however fraudulent the act of the transferor might have been.

21. In view of what has been observed by the Supreme Court in the case of Jumma Masjid v. Kodimaniandra Deviah it is clear that the Deputy Director of Consolidation could not have allowed the revision application without recording a clear finding of fact that on the date of the execution of the sale-deed the transferee knew as a fact that the transferor was merely a sirdar, and not a bhumidhar of the land in question and that he had not in fact been misled by the representation made by the transfer. Unless that finding was recorded, Sec. 43 of the Transfer of Property Act would be clearly applicable to the facts of the present case. The view taken by Gangeshwar Prasad, J. in the cases of Jagat Narain v. Laljee A.I.R 1965 All. 504. and Smt. Annapurna v. Munshi 1967 A.L.J 315. is to that very effect and we respectfully agree with the same.

22. In view of what has been observed in the preceding paragraphs, the order passed by the Deputy Director of Consolidation on 27th May, 1964, cannot be allowed to stand. It is hereby quashed. The Deputy Director of Consolidation will now proceed to dispose of the revision application in the light of the observations made above and in accordance with law. We make no order as to costs.

Petition allowed.