JUDGMENT Satish Chandra, J.
1. This appeal arises out of a suit for ejectment under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act.
2. Lal Sahai Singh plaintiff-respondent No. 1 came to Court on the allegation that the defendant-appellants had transferred the plots in dispute to him under a registered deed of sale dated 9-7-1952. Subsequently they dispossessed the plaintiff hence the suit.
3. The appellants contested the suit, inter alia, on the ground that the deed of sale was fictitious and void. The trial Court held that the sale deed was valid. The plaintiff was a Bhumidhar. The suit was decreed. The decree was affirmed in appeal. The defendants preferred a second appeal. The Board of Revenue held that on 9-7-1952 when the sale deed was executed the transferors were Sirdars and the Sirdari rights were not transferable. Section 43 of the Transfer of Property Act was applicable to transferable property only. On this view the appeal was allowed and the suit was dismissed.
4. The plaintiff filed a writ petition in this Court. The learned Single Judge held that the transferors had in the sale deed made a representation that they were Bhumidhars entitled to transfer. The plaintiff entered into the transaction on the faith that the representation was correct. Section 43 of the Transfer of Property Act was applicable, and the suit was liable to be decreed. In this view of the matter the writ petition was allowed and the order of the Board of Revenue was quashed. It is admitted that the transferor obtained Bhumidhari rights under a Sanad dated 26-9-1959.
5. In the present appeal it was argued that since Sirdari rights were not transferable and since by Section 166 of the Zamindari Abolition Act such a transfer was declared void no interest whatsoever could accrue to the transferees by the sale deed in question. The submission is based upon a fallacy. It has been found by the learned Additional Commissioner that the transferors described themselves as Bhumidhars. The Additional Commissioner was justified in inferring from that assertion that the transferors bad made a representation that they were Bhumidhars and had as such a transferable interest. This finding showed that the sale deed was not in fact of Sirdari rights. There is no allegation or proof that the transferees knew as a fact that the transferors were Sirdars only. The Additional Commissioner as well as the learned Single Judge have proceeded on the basis that the transferees were misled by the representation of the transferor that he was a Bhumidhar and on that basis completed the transaction of sale. It is further clear that the sale was not in fact of Sirdari rights. Section 166 of the Zamindari Abolition and Land Reforms Act prohibits the sale of Sirdari rights. Bhumidhari rights are transferable. In a case where land is sold on the professed representation that the seller has Bhumidhari rights, such a sale cannot be held to be of Sirdari rights.
In Ram Swarup v. Deputy Director of Consolidation, U. P. Lucknow, 1971 All LJ 99 it was held that 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 Section 43 of the Transfer of Property Act will not apply. This decision is clearly distinguishable from the present one because here the sale was not of Sirdari rights and there is nothing to show that the transferee knew that the transferors were only Sirdars.
6. The case more in point is of Smt. Annapurna v. Munshi, 1967 All LJ 315 = (AIR 1967 All 531) where the learned Single Judge relied upon a Supreme Court decision reported in Jama Masjid Marcara v. K. Deviah, reported in AIR 1962 SC 847. In Jama Masjid's case the area of operation of Section 6 as well as of Section 43 of the Transfer of Property Act was considered. Section 16 mentions that property of any kind may be transferred except as otherwise provided by this Act or by any other law for the time being in force. Section 6(a) deals with certain kinds of interests in property mentioned therein and prohibts a transfer simpliciter of those interests. 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. To hold that transfer 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. For the purpose of section it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it.
7. Similarly Section 166 of the Z. A. Act does not impinge upon the ambit of Section 43 of the Transfer of Property Act. Sections 166 governs transfer of Sirdari rights simpliciter. It does not relate to the professed sale of Bhumidhari rights. The view of the Board of Revenue that Section 43 applies to transferable property is not a complete statement of the law. Section 43 of course applies to transferable property but the fact that the interest possessed by the transferor at the time of sale was not transferable will not conclude the matter. If the transferor professed to sell a transferable interest Section 43 would apply, even though in fact the transferor may not have had a transferable interest. The sale would fasten on the transferable interest if it is acquired later on.
8. In the result the appeal fails and is accordingly dismissed with costs.