Holding

The appeals are dismissed as time‑barred and the respondents' title is upheld; the estoppel by deed doctrine does not apply because the transfer was invalid.

Summary

The dispute concerned two plots of land in which the respondents, descendants of Ram Dayal, claimed tenancy rights based on a deed dated 30 July 1945 and entries in the Khatauni. The appellants contended that an earlier deed of 23 November 1943, and a subsequent deed of 2 August 1945, gave them a valid lease under Section 43 of the Transfer of Property Act (estoppel by deed). The High Court had upheld the respondents' title and quashed the orders of lower consolidation authorities; the appellants later filed fresh proceedings and appealed, seeking condonation of delay under Section 14 of the Limitation Act, 1963. The Supreme Court examined whether the appeals were barred by limitation and whether the estoppel doctrine applied to an invalid transfer. It held that the appeals were filed well beyond the three‑year limitation period and that no estoppel arose because the 1943 deed was inoperative due to a subsisting lease, rendering the transfer invalid. Consequently, the Court dismissed both appeals, affirming the respondents' tenancy rights.

Issues considered

The applicability of Section 14 of the Limitation Act, 1963 to condone the delay in filing the appeals.
Whether Section 43 of the Transfer of Property Act, 1882 (estoppel by deed) can be invoked when the underlying deed is invalid.
The validity of the 1943 and 1945 deeds and the resulting tenancy rights of the parties.

Legislation cited

Subjects

limitationestoppel by deedtransfer of propertytenancy rightsconsolidation of holdingsland disputemortgageinvalid deedtime-barred appeal

Judgment

RAM BHAWAN SINGH AND ORS.
A
v.
JAGDISH AND ORS.
/
AUGUST 22, 1990

[N.M. KASLIWAL AND M. FATHIMA BEEVI, JJ.] B

Transfer of Property Act, Section 43 Estoppel by deed doctrine.
inapplicable if the transfer is invalid.

U. P. Consolidation of Holdings Act 1954, Section 9-Claiming
tenancy rights-Question of applicability of Section 14 of the Limitation
Act, 1963. c
The land in plots Nos. 6385 and 6386 had Ileen in possession of
Ram Dayal as mortgagee under Baijnath who was the original tenant .
..,... Respondents No. 1-3 are the descendants of Ram Dayal. They made an
application under section 9 of U.P. Consolidation of Holdings Act, 1954 D
before the Consolidation Officer claiming tenancy rights on the basis of
the deed dated July 30, 1945, stating that their names had been
recorded in Khatauni of 1359 Fasli. They are in cultivatory possession
and have become adhivasis and subsequently sirdars. They further con-
tended that the appellants have no right of possession over the land and
their names have been wrongly entered in the Khatauni No. 1353 Fasli. E
_, The respondents prayed for entering their names as sirdars.

This application was allowed by the Consolidation Officer vide
order dated Joly 23, 1967. The Settlement Officer (Consolidation)
reversed the order and the Deputy Director of Consolidation dismissed
-A-,- the revision filed by the respondents. F

Subsequently the respondents filed a writ petition in the High
{ Court. The High Court allowed the same and quashed the orders of the
' appellate and the revisional authorities, and maintained the order of the
Consolidation Officer in its judgment dated 3rd October, 1972.
G
The appellants filed a special leave on 30th November, 1972
against the judgment of the High Court dated 3rd October, 1972 under
letters patent. It was not maintainable in view of the U.P. Courts (Abo-
lition of Letters Patent Appeal Amendment) Ordinonce, 1972 which
"" came into force on 30th June, 1972. Thus Writ Petition finally cul-
minated in favour of the respondents by High Court order dated 3rd H
October, 1972.
957
958 SUPREME COURT REPORTS [1990] 3 S.C.R.

The appellants instead of challenging the order of the High Court
A
by way of filing any Special Leave Petition before this Court, initiated
fresh proceedings by moving an application on 6th July, 1973 before the
Settlement Officer (Consolidation) which was rejected on 30th October,
1974. A revision was tiled against the said order before the Deputy
Director of Consolidation which was also rejected on 21st July, 1975.
B Thereafter the appellants moved the High Court again, and the Writ Peti-
tion filed by them was dismissed by its order dated 18th September, 1975.

Since the subject matter had been finally decided by the High
Court judgment of 3rd October, 1972 so to start proceedings afresh was
not in good faith as none of the authorities of the Settlement or Consoli-
dation could have any right or jurisdiction to set aside the order of the
c High Court. The second judgment of the High Court dated 18th
September, 1975 was challenged in C.A. No. 1003 of 1976 in this Court.

Dismissing the appeal, the Court,

D HELD: Both the appeals had been tiled after the expiry of the
period of limitation. The appellants had applied for condonation of
delay on the ground that they had been prosecuting the prior proceed-
ings in good faith and on legal advice so the period of more than three
years be excluded in computing the period of limitation under section 14
of the Limitation Act 1963. The Respondents tiled counter to the appli-
E cation and opposed the same. [96ID-E]

Special leave was granted by this Court on 2nd September, 1976
subject to the rights of the respondents to argue t~uestion of limita-
tion and applicability of section 14 of the Limitation Act at the hearing of
the appeals. [961F]
F
The appellants as to the question of limitation submitted that the
delay of 1198 days had occurred unwillingly though they had been )
prosecuting with due diligence before the appellate authorities but there
is no proper affidavit either of the appellants or the Counsel in support
of the application for condonation of delay. There is also no other
G material to indicate that the appellants had exercised due diligence in
working out their remedies and sought proper advice in the matter.
There was no right of appeal against the judgment of the High Court as
it quashed the orders of the appellant and the revisional authorities so
the proceedings instituted by the party by restoring to the lower
authorities for fresh decision are not legal or valid. Hence the appeals
H are liable to be dismissed as time barred. [961G-H; 962A-B)
RAM BHAWAN v. JAGDISH [FATHIMA BEEVI. J.] 959

Even on merits, the appellants cannot succeed. Admittedly the
A
;-original tenant was Baijnath but was dispossessed in execution decree
obtained by the landlord in 1944. Thereafter the land was mortgaged in
favour of Ram Dayal and the mortgagee obtained the decree against the
landlord. The respondents subsequently entered into an agreement set-
ting the claims under the decree and granting patta in favour of the
Respondents in deed dated 30th July, 1945. These facts have been B
accepted by the Consolidation Officer and the deed and title were found
to be in favour of the ,respondents. The tenancy in favour of Baijnath
• · - was subsisting when the deed of 23rd November, 1943 was executed.
The creation of a tenancy during the subsistence of the earlier one could
not confer any right and even before the deed of 2nd August, !'945 patta
was already granted in favour of the respondents. [962D'G I
c
Even the contention of the appellants that they have a case un.:<r
section 43 of the Transfer of Property Act, which embodies the rule of
estoppel by deed, is not applicable because the transfer under the deed
of 23rd November, 1943 became inoperative because the settlement was
invalid on account of the subsisting lease in respect of the Land and the D
landlord conld not snper impose a second lease in respect of the
tenanted property, so no interest could be created in favour of the
appellants under that document of 2nd August, 1945 and therefore,
there is no question of feeding the estoppel. [963E-G l
-/
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. E
1002 & 1003 of 1976.

From the Judgment and Order dated 3.10.1972 and 18.9.1975 of
the Allahabad High Court in Civil Misc. Writ No. 2726 of 1970 and
,--, -- Civil Misc Writ Petition No. 9943 of 1975.
F
{ Satish Chander, S.N. Singh, T.N. Singh and H.L. Srivastava for
· , the Appellants.

J.P. Goyal, M.R. Bidsar and S.K. Jain for the Respondents.

The Judgment of the Court was delivered by G

F ATHIMA BEEVI, J. These appeals by special leave are direc-
ted against the judgments of the High Court of Allahabad. The land in
plots Nos. 6385 and 6386 measuring 5 bighas and 4 biswas had been in
the possession of Ram Dayal as mortgagee under Baijnath who was
the original tenant. Respondents 1 to 3 are the descendants of Ram H
960 SUPREME COURT REPORTS [1990] 3 S.C.R.

Dayal. They made an application under section 9 of the U .P. Consoli-
A
dation of Holdings Act, 1954 before the Consolidation Officer. They-\
claimed tenancy rights on the basis of the deed dated 30.7.1945 and
they stated that their names had been recorded in the Khatauni of 1359
Fasli; they are in cultivatory possession and have become adhivasis
and subsequently sirdars. They alleged that the names of the appel-
B lants herein have been wrongly entered in the Khatauni of 1353 Fasli
and that the appellants have no right or possession over the land. The
respondents prayed for entering their names as sirdars and scoring off _. •
the names of the appellants.

This application was allowed by the Consolidation Officer by
order dated 23.7.1967. The order was reversed by the Settlement
c Officer (Consolidation). The Deputy Director of Consolidation dis-
missed the revision filed by the respondents. However, the writ peti-
tion filed by the respondents as C.M.W.P. No. 2726 of 1970 was -..,I
allowed by the High Court by its judgment dated 3.10.1972 and the
orders of the appellate and the revisional authorities were quashed
D thereby maintaining the order of consolidation Officer. Civil Appeal
No. 1002 of 1976 is directed against the judgment dated 3.10.1972 of
the High Court.

The appellants had filed a Special Appeal on 30th November,
1972 against the judgment dated 3.10.1972 of Single Judge of the High '\"
E Court in C.M.W.P. No. 2726 of 1970. However, the said Letters
Patent Appeal was not maintainable and ultimately dismissed in view
of the U.P. High Courts (Abolition of Letters Patent Appeal Amend-
ment) Ordinance, 1972 which came into force on 30th June, 1972. This
completes the narration of the fate of the writ petition No. 2726 of
-
1970 which finally culminated in favour of the respondents by order
F dated 3.10.72.

The appellants did not challenge the order of the High Court )
dated 3.10.72 by taking any further steps of filing any special leave
petition before this Court. On the contrary, on some mistaken and
totally wrong advice of some counsel the appellants again initiated
G fresh proceedings by moving an application on 6. 7. 73 before the
Settlement Officer Consolidation. That application was rejected on
30.10. 74. A revision was filed against that order before the Deputy
Director of Consolidation which was also rejected by order dated y
21.7.75. Thereafter the appellants filed C.M.W.P. No. 9943 of 1975
before the High Court on 7.8.75 against the order of the Deputy
H Director Consolidation. This writ petition came to be dismissed by
RAM BHAWAN "· JAGDISH [FATHIMA BEEVI, J.[ 961

order dated 18.9.1975. This judgment of the High Court is challenged
in Civil Appeal No. 1003 of 1976. When the High Court in the earlier A
J Writ Petition No. 2726 of 1970 on the same subject matter had finally
decided the matter in favour of the respondents by order dated
3. JO. 1972, there was no question of giving any advice by any counsel in
good faith to start proceedings afresh by moving a fresh application
before the Consolidation authorities. No counsel could have given 8
such advice in good faith to start proceedings afresh before the Con-
solidation authorities and then to claim benefit of such period under
• _ section 14 of the Limitation Act. It was elementary for any counsel of
whatever standing to have known that none of the authorities of the
Settlement or Consolidation department could have any right or

--
jurisdiction to set aside the order of the High Court dated 3.10.1972.
The Settlement Officer (Consolidation) as such was justified in dismis- c
sing the application by his order dated 30.10.1974, and thereafter the
revision by the Deputy Director (Consolidation) by order dated
,,_. 21. 7.1975. The appellants then under the same mistaken advice not in
good faith filed C.M.W.P. No. 9943 of 1975 which came to be dismis-
sed by the High Court on 18.9.1975. The second judgment of the High D
Court is now challenged in Civil Appeal No. 1003 of 1976.

Both the appeals had been filed after the expiry of the period of
limitation. The appellants had applied for condonation of delay on the
ground that the appellants had been prosecuting the prior proceedings
7 in good faith on legal advice and the period of more than three years E
taken in prosecuting the proceedings is liable to be excluded in com-
puting the period of limitation under the provision of section 14 of the
Limitation Act, 1963. The responde.nts had filed counter to the appli-
cation and opposed the same.

·"" This Court granted special leave vide order dated 2.9.1976 in F
both matters subject to the right of the respondents to argue the ques-
,( tion of limitation and the applicability of section 14 of the Limitation
'Act at the hearing of the appeals.

The first ques!ion that we have to decide is that of limitation.
The delay of 1198 days according to the appellants had occurred unwil- G
Jingly and the appellants had been prosecuting with due diligence the
earlier proceedings before the appellate and the revisional authorities
I and on the basis of the advice given by their counsel. There is no
-...., proper affidavit of either the appellants or the counsel in support of
the application for condonation of delay. There is also no other mate-
rial to indicate that the appellants had exercised due diligence in work- H
062 SUPREME COURT REPORTS [1990] 3 S.C.R.

ing out their remedies and sought proper advice in the matter. When
A
the party had no right of appeal, the proceedings instituted before the I
High Court challenging the judgment in the writ petition cannot b-e \
considered to be one in good faith. The subsequent proceedings are
also not legal or valid. When the decision of the High Court in the writ
petition was one quashing the orders of the appellate and the revi-
B sional authorities, the party could not proceed on the basis that the
matter was re£tored to the lower authorities for fresh decision. We are
therefore not satisfied that there is any merit in the ground urged by
the appellants for getting over the bar of limitation. The appeals are - ··•
liable to be dismissed as time barred.

c We find that even on the merits, the appellants cannot succeed.
The respondents based their claim on the patta in their favour under
the deed of 30.7.1945. The Consolidation Officer accepted the
·-
genuineness of. the deed and found title with the respondents. The
appellants had claimed right under the subsequent document of
2 .8.1945 in continuation of an earlier deed of 23.11.1943. The land was
D admittedly in the possession of Baijnath, the original tenant and he
was dispossessed in execution of the decree obtained by the landlord in
1944. The tenancy in favour of Baijnath was subsisting when the deed
of 23.11.1943 was executed. The creation of a tenancy during the
subsistence of the earlier one could not confer any right. Before the
deed of 2.8.1945 patta was already granted in favour of the respon-,
E dents. The circumstances under which the same was granted also \.
weighed in finding title in favour of the respondents. The landlord had
obtained a decree against Baijnath when the land was mortgaged in
favour of Ram Dayal. The mortgagee later on obtained the decree

F
against the landlord for an amount of Rs.214 being the value of the
crops in the land. An agreement was subsequently entered into bet-
ween the landlord and the respondents settling the claim under the
decree and granting patta in favour of the respondents. These facts )
-·
have been found in favour of the respondents by the Consolidation
Officer. The High Court in quashing the orders of the appellate and
the revisional authorities was of opinion that there was apparent error
on the face of the record. The appellate authority was found to be
G wrong in its conclusion that the respondents lost their right by the
continued possession of the appellants. The High Court noticed that
even before the Consolidation Officer, the appellants did not press
their claim on the basis of the patta of 1943 and has also found that the
deed of 23.11.1943 was not a valid settlement inasmuch as the land was Y
in the possession of the sitting tenant. It was also noticed that soon after
H the deed of 2.8.1945, dispute arose regarding possession, that the
RAM BHAWAN v, JAGD!SH [FATil!MA BEEVI, J.J 963

appellants had been dispossessed on the basis of the decree obtained
A
by the respondents setting aside the order of a criminal court. Before
r the decree became final pending litigation, the U.P. Zamindari Aboli-
tion Act came into fon:e. In view of the subsequent legislation, the
respondents have proceeded under the U .P. Consolidation Act and
the proceedings culminated in the present appeals.
B
In the light of the definite findings of the competent authority
that the respondents have derived valid title as tenants under the deed
r - cof 30. 7. 1945 and the apparent mistake in the proceedings of the appel-
late and the revisional authorities as found by the High Court, it is not
now open to the appellants to contend that they are rightful tenants
entitled to possession of the land. Though the claim based on deed of
23. 11. 1943 had not been pressed before the lower authorities, it has c
been contended before us that the appellants have a case on the princi-
ple contained in section 43 of the Transfer of Property Act. The
learned counsel for the appellants maintained that even if the deed of
23.11.1943 was inoperative or was not valid for the reason that the
landlord had no possession since they obtained possession on D
30.6.1944, the appellants acquired tenancy right and that has been
confirmed by the deed of 2.8.1945. The argument, though attractive, is
not acceptable.

Section 43 of the Transfer of Property Act embodies the rule of
j estoppel by deed. The section enables the transferee to whom a trans- E
fer is made on fraudulent or erroneous representation to lay hold at his
option of any interest which the transferor may subsequently acquire
in the property provided by doing so he does not adversely affect the
right of any subsequent purchaser for value without notice. Thus when
,_ a lessor erroneously represents that he is authorised to lease a property
and creates a lease of it and afterwards acquires that property, the F
( lessee is entitled to have the property from the lessor. This principle
\ has no application if the transfer is invalid. The transfer under the
deed of 23.11.1943 became inoperative not on account of any fraudu-
lent or erroneous representation. The settlement was invalid and
inoperative on account of the subsisting lease in respect of the land and
as the landlord could not super impose a second lease in respect of the G
tenanted property, no interest could be created in favour of the appel-
lants under that document and, therefore, there is no question of
feeding the estoppel. The execution of the deed dated 30.7.1945 in
-< favour of the respondents negatives the claim of the appellants having
acquired any right after the property was taken delivery of in 1944. We
therefore reject the contention. H
964 SUPREME COURT REPORTS I1990] 3 S.C.R.
A We accordingly hold that there is no valid ground to interfere
with the decision of the High Court. We therefore dismiss the appeals. _i
In the facts and circumstances of the case, we direct the parties to bear\
their respective costs.

S.B. Appeals dismissed.

i