ORDER

1. Leave granted.

2. The appellant is the defendant. Smt Harbans Kaur - respondent executed the sale deed on 19-4-1961, in favour of the appellant of alienating the lands on her behalf and on behalf of her minor son, Kulwant Singh. Kulwant Sigh, on attaining majority, filed Case No. 21 of 1975 on 14-3-1975 on the file of the Sub-Judge, IInd Class, Gurdaspur for a declaration that the sale of his share in the lands mentioned in the schedule attached thereto by his mother was void and does not bind him. The decree ultimately was granted declaring that the sale was void as against the minor. But before taking delivery of the possession, Kulwant Singh died. Harbans Kaur, the mother being Class-I heir under Section 6 of the Hindu Succession Act, 1956 read with the schedule succeeded to the estate of the deceased. The appellant, therefore, laid his claim to the benefit of Section 43 of the Transfer of Property Act, 1882 (for short the Act). The High Court in Second Appeal No. 1557 of 1979, while setting aside the decree of the trial court and declared that the sale is void, refused to grant the remedy under Section 43 of the Act. Thus these appeals by special leave.

3. The contention for the appellant is that in view of the finding that Harbans Kaur had succeeded by operation of law, the appellant is entitled to the interest acquired by Harbans Kaur by operation of Section 43 of the Act and the High Court has misapplied the ratio of decisions of this Court in Jumma Masjid, Mercara v. Kodimaniandra Deviah and the decision of the Patna High Court in Jhulan Prasad v. Ram Raj Prasad. Section 43 of the Transfer of Property Act provides thus :

"Where a person fraudulently or erroneously represents that he is authorised 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."

4. A reading clearly shows that for application of Section 43 of the Act, two conditions must be satisfied. Firstly, that there is a fraudulent or erroneous representation made by the transferor to the transferee that he is authorised to transfer certain immovable property and in the purported exercise of authority, professed to transfer such property for consideration. Subsequently, when it is discovered that the transferor acquired an interest in the transferred property, at the option of the transferee, he is entitled to get the restitution of interest in property got by the transferor, provided the transferor acquires such interest in the property during which contract of transfer must subsist.

5. In this case, admittedly, Kulwant Singh was a minor on the date when the respondent transferred the property on 19-4-1961. The marginal note of the sale deed specifically mentions to the effect :

".... that the land had been acquired by her and by her minor son by exercising the right of pre-emption and that she was executing the sale deed in respect of her own share and acting as guardian of her minor son so far as his share was concerned."

6. It is settled law that the transferee must make all reasonable and diligent enquiries regarding the capacity of the transferor and the necessity to alienate the estate of the minor. On satisfying those requirements, he is to enter into and have the sale deed from the guardian or manager of the estate of the minor. Under the Guardian and Wards Act, the estate of the minor cannot be alienated unless a specific permission in that behalf is obtained from the district court. Admittedly, no such permission was obtained. Therefore, the sale of the half share of the interest of Kulwant Singh made by his mother is void.

7. Section 43 feeds its estoppel. The rule of estoppel by deed by the transferor would apply only when the transferee has been misled. The transferee must know or put on notice that the trans