Satish Chandra, J.
1. This is a petition under Article 226 of the Constitution. It raises a short but neat question of law.
2. The plots in dispute constituted sirdari holding of Sahdeo and his brother. Sahdeo deposited ten times of the rent on 6-11-1962 and made an application for the grant of a bhumidhari sanad. The same day Sahdeo executed a deed of sale of a share in the holding in dispute in favour of respondents 4 to 6. The sale deed was registered the next day that is, on 7-11-1962. Sahdeo died in the night intervening the 23rd and 24th November, 1962. In due course the bhumidari Sanad was issued in the name of Ram Deo, the son of Sahdeo, on 29th March, 1965. On commencement of proceedings under the U. P. Consolidation of Holdings Act, respondents 4 to 6 filed an objection that they are also entitled to the plots in dispute on the basis of the sale deed executed by the erstwhile tenant Sahdeo, in their favour Ram Deo. the son of Sahdeo as well as Ramayan, the son of Sahdeo's brother, contested the claim of respondents 4 to 6.
3. The Consolidation Officer repelled the claim. He held that the sanad was issued in the name of Ram Deo and, as such, Sahdeo never became the bhumidhar, and he continued to be a sirdar till his death. As a sirdar he could not transfer his interest in the holding. On appeal the Settlement Officer confirmed this finding. The respondents filed a revision. The Deputv Director of Consolidation took a different view. He held that on the grant of the certificate, Sahdeo would be deemed to have become a bhumidhar with effect from the date of deposit, i. e. 6-11-1962 and hence could validly transfer his interest. The death of Sahdeo in the meantime made no difference to the acquisition of bhumidhari rights in his favour. This view of the Deputy Director is challenged in the present petition.
4. The relevant provisions are Sections 134 and 137 of the U P. Zamindari Abolition and Land Reforms Act. Section 134 requires a sirdar to deposit ten times the revenue and make an application. It entitles the sirdar, with effect from the date on which the amount has been deposited, to a declaration that he has acquired the rights mentioned in Section 137. Section 137(1) says that if the application has been duly made and the Assistant Collector is satisfied that the applicant is entitled to the declaration mentioned in Section 134, he shall grant a certificate to that effect. Sub-section (2) of Section 137 reads:--
'(2). Upon the grant of the certificate, under Sub-section (1), the sirdar shall, from the date thereof:
(a) become and be deemed to be a bhumidhar of the holding or the share in respect of which the certificate has been granted:
(b) be liable for payment of such reduced amount on account of land revenue for holding or his share therein, as the case may be, as shall be one half of the land revenue payable or deemed to be payable by him therefor on the date of application.' The proviso and the Explanation are not material, Sub-section (2-A) of Section 137 says: 'Where a certificate is granted on a date other than first day of the agricultural year, the land revenue payable by him under Clause (b) of Sub-section (2) for the remainder of the agricultural year in which it is granted shall be determined in such manner as may he prescribed '
The opening clause of Sub-section (2) as enacted originally said: 'Upon the grant of the certificate under Sub-section (1), the sirdar shall (from the beginning of the agricultural year next after) the date thereof The U. P. Amending Act 16 of 1953 deleted the bracketted words. So, previously the effect of the grant of the certificate commenced from the beginning of the agricultural year next after the date of the certificate. Since the amendment, the legal incidents of the certificate operate from the date of its grant.
5. These provisions lay down the procedure for the grant of the certificate relating to the acquisition of bhumidhari rights. They also mention the legal incidents which arise when the grant has been made Under Section 137 (2) a sirdar becomes and is deemed to be a bhumidhar from the date of the certificate. Under Section 134 he is entitled only to a certificate. After the certificate has been granted, it may be that the person would be deemed to have acquired the rights of the bhumidhar from the date on which he deposited the amount in other words the certificate operates retrospectively from the date of the deposit, but this retrospective operation commences after the event of the grant of the certificate has happened. Till then the transaction for the acquisition of the bhumidhari rights remains incomplete. The formality of the grant is a legal phenomenon distinct and apart from the legal effect of the certificate after it has been granted.
6. A person who deposits the money and makes an application for the acquisition of bhumidhari rights has to go through the prescribed procedure. He remains a sirdar all through till the date the certificate is granted. The question is if he happens to die prior to the grant of the certificate and the certificate is actually granted in favour of the successor to the sirdari holdings, could such a grant enure for the benefit of the original sirdar? The U. P. Zamindari Abolition & Land Reforms Act does not contemplate the grant of certificate in favour of a dead person. Sub-section (1) of Section 137 sava that if the Assistant Collector is satisfied that the applicant is entitled to the declaration he shall grant it. The Assistant Collector's satisfaction to the entitlement has to be in praesenti and not with reference to the date of the application After the death of the applicant, a person succeeding to the sirdari holding becomes entitled to be substituted in the proceedings and to continue them. The dead man only leaves a legacy which can fructify in favour of the existing sirdar. There must be a sirdar in existence on the date the certificate is granted Hence rhe certificate cannot possibly be granted in favour of or to the benefit of a dead person. If the certificate operates retrospectively, it will so operate in favour of the grantee and none else It cannot operate so as to confer any rights on the person who made the deposit and the application initially. Since the transaction for the acquisition o: the certificate was not completed in his life time and in his favour, on the Hate of his death Sahdeo remained a sirdar Since he did not receive the certificate, he did not acquire the bhumidhari interest in the holding at all Retrospective operation of the certificate will not confer any interest in the holding on Sahdeo but on the person in whose favour the certificate was granted namely Ram Deo. his son
7. Section 43 of the Transfer of Property Act will not help the respondents That section gives expression to the rule of estoppel as well as the doctrine of equity which regards that as done which ought to be done. Equity acts in personam. It does not run with the estate. Under this equity, if Sahdeo had acquired the bhumidhari interest in the sirdari holding subsequently, that interest would go to feed the estoppel against him. and the transfer executed bv Sahdeo will operate on the subsequently acquired interest But the person who is affected by the equity as well as the rule of estoppel is the transferor personally. If he does not acquire any interest, Section 43 will not apply and the subsequent acquisition of the bhumidhari interest by another person, even though he be the successor of the original sirdar, will not enable the transferee to reap any benefit of the acquisition.
8. Before Section 43 can be applied, the transferee has to prove that the transferor fraudulently or erroneously represented that he was authorised to transfer the property. The respondents did not set up any such plea. There is no finding to that effect. Such a finding is a condition precedent to the applicability of the section. The respondents hence cannot base their claim to the holding on Section 43 of the Transfer of Property Act
9. The effect of registration of documents under the Indian Registration Act, 1908, affords guidance to this problem, by analogy. Under Section 47 of the Registration Act a document after registration operates retrospectively from the date of its execution. In spite of this express provision to that effect, it has been held that a right of pre-emption must be determined as on the date of registration and not on the date of execution, see Ram Saran Lal v. Mst. Domini Kuer : 2SCR474 in which the Supreme Court overruled the contrary view of this Court in : AIR1926All549 , Go-pal Ram v. Lachmi Misir Their Lordships held that the right of pre-emption can be exercised after the completion of the sale. Under Section 54 of the Transfer of Property Act 'sale' of property of the value of Rs. 100 and more can be made only by a registered instrument. Registration is not complete till the document has been copied out in the records of the registration office under Section 61 of the Registration Act. Their Lordships emphasised that Section 47 of the Registration Act has nothing to do with the completion of the registration and, therefore, nothing to do with the completion of a sale. A sale which is admittedly not completed until the registration of the instrument is completed, cannot be said to have been completed earlier merely because under Section 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. Similarly, the effect of the bhumidhari certificate can commence only after the formality of its grant has been completed. The fact of its completion cannot he influenced by the retrospectivity of its operation after it has been issued
10. Similarly it has been held that where an act of insolvency is committed by transfer, the time of three months will run from the date of registration and not execution of the document, see Lakhmi Chand v. Kesho Ram, AIR 1935 Lab 565 (FB). The act of insolvency which, to ground a petition, must have taken place within three months of the presentation of the petition, is 'a transfer of property'. The question before the Full Bench of the Lahore High Court was when does a transfer of property take place? The Full Bench held that the document by reason of its execution alone cannot have the effect of transferring property. The title does not pass until registration has been actually effected. It was argued that the effect of Section 47 was that the transfer of property was treated as thrown back to the date of execution Their Lordships held that this argument seems to confuse two wholly different ideas, the operation of a document, and an event They observed that the question was not what was the effect of registration but when did the event take place, which gives the transform the right to become the owner. In the instant case we are not concerned with the time from which the certificate operated but with the time at which that document produced a legal effect, and with the question as to in whose favour the legal effect was brought about.
11. Sahdeo did not become a bhumidhar and hence did not obtain a transferable interest in the holding. The sale deed executed by him on 7-11-1962 could not validly vest any title in the transferees. The respondents 4 to 6 were not entitled to be recorded simply on the basis of the sale deed executed by Sahdeo, I have perused the view expressed by the Board of Revenue in Ram Prasad v. Bhola Singh, 1961 RD 40 (Rev) and Ram Swarup v. Ram Nath 1960 RD 271, (Rev), but I am unable to agree with it.
12. Ramavan the second petitioner has challenged the finding of the Deputy Director that there was no evidence to prove Ramayan's cast that he was given a half share in the holding because his father Jagdeo had spent his own money in litigation concerning the entire holding The finding is on a question of fact No error of law has been shown in it
13. In the result the petition succeeds inpart. The order of the Deputy Director allowing the revision of respondents 4 to 8is set aside and that of the Settlement Officer restored in that respect As the respondents have not appeared, there is no orderas to costs.