JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Nabarangpur in R.F.A. No. 64 of 2013 confirming the judgment and decree passed by the learned Civil Judge (Senior Division), Nabarangpur in C.S. No. 52 of 2010. The father of the respondents as the plaintiff had filed the suit for declaration of his right, title and interest over the suit land and for mandatory injunction directing the appellant-defendants to remove the structure made by them over it. The suit having been decreed these appellants as the unsuccessful defendants had carried the first appeal under section 96 of the Code of Civil Procedure which has also been dismissed. Thus having suffered from the judgments and decrees passed by both the courts below, they have filed this second appeal under section 100 of the Code. It is pertinent to state here that during pendency of the first appeal, the original plaintiff having died, his legal representatives who are his three sons having been brought on record; they contested the appeal. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiff’s case is that the land described in schedule A, B and C of the plaint were settled on him by the State as the rehabilitation measure after their migration as refugees. Accordingly, the Record of Right was given to him and he was in possession and enjoyment of the same, paying the rent to the State. In view of the crop failure in the area for successive years, the plaintiff became financially weak and therefore in the year 1992, he mortgaged the suit land to one Harendranath Sana receiving a sum of Rs.30,000/- in two installments on different dates. Harendranath died some time thereafter and then plaintiff also admits to have received sum of Rs.10,000/- from defendant no.1 who is none other than son of Sana. The documents to that effect is said to have been prepared reducing terms and conditions into writing and the period of mortgage is said to be ten years, ending in the year 2002. The plaintiff for the purpose deposited the Record of Right and other documents with the mortgagee. The documents to that effect is said to have been prepared reducing terms and conditions into writing and the period of mortgage is said to be ten years, ending in the year 2002. The plaintiff for the purpose deposited the Record of Right and other documents with the mortgagee. It is stated that some time thereafter, the plaintiff with his family left the village and went to Utter Pradesh to earn their livelihood. After expiry of the period of mortgage, when the plaintiff requested the defendant no.1 for restoration of the suit land, it was avoided. They rather, disclosed to have purchased the suit land from two sons of the plaintiff through Registered Sale Deed. Accordingly, having mutated the suit land in their favour, have constructed the houses over there. The plaintiff then on inquiry came to know that those two sale deeds in favour of two sons have been brought into existence by falsely showing the plaintiff to be dead as on the date of execution of the sale deed. He also asserted that his son being asked told to have never executed such sale deed. Thus finally as they did not give up possession, the suit came to be filed after the failure in the attempt for resolution of the dispute in the village panchayat. 4. The defendants contested the suit by filing the written statement. It is stated by them that in the year 1992, the plaintiff had entered into an agreement for sale with them, agreeing to sale the suit land for a consideration of Rs.50,000/-. The agreement was made on 07.04.1992. The agreed consideration money is said to have been paid in three installments and pursuant to the said agreement for sale, the defendants claimed to have been in possession of the suit land and have constructed two houses over there and stayed therein. It is further stated that the plaintiff after return to the village did not execute the sale deed in spite of repeated request and thereafter he remained absent continuously and his whereabouts were not known. So, his two sons after taking some more amount towards consideration, executed two sale deeds in favour of the defendants and as such defendants claimed to have in possession of the suit property as its owner. So, his two sons after taking some more amount towards consideration, executed two sale deeds in favour of the defendants and as such defendants claimed to have in possession of the suit property as its owner. Alternatively, they also claimed to have perfected title over the suit land by adverse possession having remained in open, peaceful and continuous possession for more than the prescribed period exercising the right of ownership denying the title of the true owner and exhibiting the hostile animus. 5. The trial court on such rival pleadings, framed eleven issues. Rightly going to decide issue nos. 5 and 6 with regard to the mortgage and agreement for sale, the answer has been recorded against the case of the defendants as projected. Next going to decide the important issue as regards passing of the title over the suit land in favour of the defendants on the basis of the sale deeds executed by two sons of the plaintiff, the conclusion stands against the defendants that they have not been conferred with the title in respect of the suit land by so called execution of the two sale deeds which are of no value in the eye of law in standing to support the claim of the defendants. The alternative claim of the defendants has been rejected by answering issue no.10 that in the facts and circumstances of the case and the evidence on record, the defendants have not perfected title over the suit land by adverse possession. 6. The lower appellate court being moved by the unsuccessful defendants having gone to examine the sustainability of the findings of the trial court in answering all those issues taking into account the contentions raised before it in challenging the judgment and decree as also in support of the same, has finally refused to record any note of dissent with all those findings of the trial court. So, the decree passed in favour of the plaintiff declaring his right, title, interest and recovery of possession as also the mandatory injunction has been confirmed. The defendants now seek to impugne those in the present second appeal. 7. The appeal has been admitted on the following substantial questions of law:- For the death of sole plaintiff during pendency of the first appeal whereafter the three sons came to be substituted. The defendants now seek to impugne those in the present second appeal. 7. The appeal has been admitted on the following substantial questions of law:- For the death of sole plaintiff during pendency of the first appeal whereafter the three sons came to be substituted. Let us assume the finding that the sale deeds had not conferred any title upon the defendants as their vendors who have now been substituted as plaintiff nos. 1 and 3 had no title over it and as such no authority to sell as correct. Whether, the lower appellate court was still under the legal obligation to embark upon an enquiry on going through the evidence on record that when these plaintiff nos. 1 and 3 have thus succeeded to the property of the deceased-plaintiff, the sale deeds even though invalid at its inception, sprang up to life in so asserting their validity by conferring title upon the defendants in respect of the land covered under those by operation of the provision of section 43 of the T.P. Act at least to the extent of the share of those two sons of the original plaintiff who are vendors of the defendants?. 8. Learned counsel for the appellants submits that in view of the subsequent development that the sole plaintiff has died during pendency of the first appeal and his three sons have come to be substituted in his place, even accepting for a moment that by said sale deeds the defendants had derived no title as it was not then with the vendors, the plaintiff no.1 and 3; the lower appellate court ought to have directed itself to consider as to whether the defendants can get back the grant made by the plaintiff nos. 1 and 3 at least to the extent of their shares when now those plaintiff nos. 1 and 3 have come to acquire the right, title and interest over the suit property after the death of their father. He contends that at this stage in view of death of original plaintiff, the plaintiff nos. 1 and 3 who have been substituted are estopped from challenging the same because of the provisions of the section 43 of the T.P. Act coming into play and the grant made under the two sale deeds thus do stand to be fed. He contends that at this stage in view of death of original plaintiff, the plaintiff nos. 1 and 3 who have been substituted are estopped from challenging the same because of the provisions of the section 43 of the T.P. Act coming into play and the grant made under the two sale deeds thus do stand to be fed. For that he urges that it is a fit case for remand of the appeal to the lower appellate court to frame it as a point for determination and accordingly decide the fate of the suit and dispose of the appeal. According to him even if we say that the trial court’s decree is wholly defensible yet in the changed scenario, the benefit of the same cannot enure in favour of the substituted plaintiff nos. 1 and 3 since as per the law, they are estopped to advance any claim over it having by now so derived the right, title and interest over the property saying that they had not got the same at the time of execution of the sale deed and thus the purchaser’s right in view of that stands saved. 9. Learned counsel for the respondents on the other hand contends that here is a case where the defendants would not get the benefit under the equitable provision contained under section 43 of the T.P. Act. According to him, when these two sale deeds have been executed by suppressing the material fact as regards the survival of the original plaintiff by then and falsely stating him to be dead, the documents in the facts and circumstances as borne out from evidence have to be taken as the outcome of collusion and fraud. Thus even if for the sake of argument, it is conceded that the plaintiff nos. 1 and 3 had in fact executed the documents, the same cannot be saved to any extent in so far as the right of the defendants are concerned by operation of the law as provided in section 43 of the T.P. Act. Thus even if for the sake of argument, it is conceded that the plaintiff nos. 1 and 3 had in fact executed the documents, the same cannot be saved to any extent in so far as the right of the defendants are concerned by operation of the law as provided in section 43 of the T.P. Act. So he contends that the grants under the deeds thus do not stand to be fed and the vendors are thus not estopped to lay any claim over the property which they had sold when they had no title which by now they have so derived as here the defendants were well aware of such false statement and it was not a case of their believing the same as such and getting misled. 10. In order to find out the answer to the substantial question of law by addressing the submission of the learned counsel for the parties, it is necessary to give a careful reading to the provision of section 43 of the T.P. Act which reads as under : “43. Transfer by unauthorized person who subsequently acquires interest in property transferred.-Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable 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.” 11. The above provision of section 43 embodies a rule of estoppel, and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on such representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. Where the transferee knows it to be as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Provision of section 43 would then have no application and the transfer will fail. 12. Where the transferee knows it to be as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Provision of section 43 would then have no application and the transfer will fail. 12. Where the transferor has purported to transfer the interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition goes to enure to the benefit of the earlier transferee with an exception in favour of the transferees for consideration in good faith and without notice of the rights under the prior transfer. It is automatic or as it is usually expressed, feeds the estoppel. The principle is based partly on the common law doctrine of estoppel by deed, and partly on the equitable doctrine that a man who has promised more than he can perform must make good his contract when he acquires the power of performance. Under the common law doctrine, if a man sells property which does not belong to him and after wards acquires such title as enables him either wholly or partially to perform his contract, he is bound to do so, and the subsequently acquired estate feeds the estoppel which arises out of the vendor’s covenants for title, express or implied. Thus, if a man who has no title whatever to property grants it by a conveyance which in form would carry the legal estate, and he subsequently acquires an interest sufficient to satisfy the grant, the estate instantly passes. It follows the common rule of estoppel. It departs from the equitable rule in that it does not require the transfer to be effected by a further conveyance. The illustration which contains the word ‘deliver’ is significant of the meaning of the section. 13. The provision of section 43 enables a transferee to whom a transferor has made a fraudulent or on 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. 13. The provision of section 43 enables a transferee to whom a transferor has made a fraudulent or on 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. As the equitable doctrine of estoppel requires a man to make his representation good, the words ‘fraudulently or erroneously’ represents have been said to make estoppel the foundation of the section and in the absence of such representation, the section does not apply. The representation need not be intentionally false. 14. It has been held in the case of Kartar Singh v. Harbans Kaur, (1994) 4 SCC-730 that by virtue of the representation made by the transferor, the transferee must be misled about the transferor’s authority to transfer despite enquiry as a reasonable and prudent man is expected to make. On the other hand the transferee must make all reasonable and diligent enquiries regarding the capacity of the transferor. Estoppel on the basis of the representation made by the transferee that he is authorized to transfer which representation subsequently turns out to be erroneous. But where the truth of the matter is known to both the parties, there can be no estoppel. 15. Adverting to the instant case, the defendants have pleaded that the deceased-plaintiff had entered into a written agreement with them to sell the suit land for agreed consideration and the agreement had come into being in the year 1992. There was payment of agreed consideration in three installments and pursuant to the said agreement the original plaintiff having delivered the possession of the suit land to the defendants, they have been in possession of the same. It is stated that the original plaintiff did not execute the sale deed even if asked for. Some time thereafter the whereabouts of plaintiff was not known. So, his two sons i.e. plaintiff nos. 1 and 2 executed two sale deeds in favour of the defendants. The agreement for sale, Ext.C upon thorough scrutiny on record has been found by the trial court to be a manufactured one to serve the purpose. This finding of fact appears to have been founded on due and proper appreciation of evidence as also taking into account the circumstances. The agreement for sale, Ext.C upon thorough scrutiny on record has been found by the trial court to be a manufactured one to serve the purpose. This finding of fact appears to have been founded on due and proper appreciation of evidence as also taking into account the circumstances. The same is therefore not liable to be interfered with. Admittedly another son of the original plaintiff, who is now the plaintiff no.2 is not a party to the sale deed and has not joined as one of the vendors. The property in question has been held not to be the coparcenery property but the property of original plaintiff. Accordingly, the sale deeds Exts. F and G have been held to be void. It is contended that the original plaintiff having been unheard of for a period of seven years, he had met his civil death. In the present case, it has not been said by the defendants that it was plaintiff nos. 1 and 3 who had made fraudulent or erroneous representation that they were authorized to transfer the immovable property. It is not stated that the defendants were not aware of the fact that the original plaintiff had another son and that the same was also suppressed by the plaintiff nos. 1 and 3. In fact, the defendant no.1 has admitted in his evidence to be having the knowledge of the living of the other son. What it clearly reveals thus that the transferee was also a party to such false declaration made in the sale deeds. Thus, such sale deeds being the outcome of fraud to which both the vendor and vendees are parties, it is clearly void. So in that situation, the purchasers are to suffer. Therefore, the same transfer cannot be validated by operation of the provision of section 43 of the Act after death of the original plaintiff and there cannot be the restitution of rights even to the extent of the interest of plaintiff nos. 1 and 3. All the aforesaid being viewed though the spectrum of the settled position of law, it is not found to be a case where the provisions of law as contained under section 43 of the T.P. Act would stand to operate. 1 and 3. All the aforesaid being viewed though the spectrum of the settled position of law, it is not found to be a case where the provisions of law as contained under section 43 of the T.P. Act would stand to operate. The lower appellate courts judgment and decree for non consideration of the said aspect are thus not liable to be interfered with, and accordingly the contention of the learned counsel for the appellants for remand of the matter to the lower appellate court fails as that would serve no purpose since the very ground upon which it is urged is not tenable in the eye of law. The substantial question of law accordingly receives its answer from the aforesaid discussion and reasons. Resultantly, the appeal stands dismissed. No order as to cost.