NANDOO Vs. BUDHOO

JUDGEMENT

(1.) THIS is defendants' second appeal arising out of a suit filed by the plaintiff respondent No. 1 for specific performance of an agree ment of sale dated 17th July, 1959 executed by the respondent No. 2 in favour of appellant No. 1. A declaration was further sought for declaring the sale-deed executed in favour of the appellants on 17th February, 1960 as null and void. The trial Court dismissed the suit holding that the appellants were bonafide purchaser for value without notice. The plaintiff respondent No. 1 filed an appeal. The appeal was allowed by the lower appellate Court by its Judgment dated llth August, 1966 holding that the appellants were not the honafide purchasers without notice. It was found that the appellants had notice of the agreement of sale and despite this knowledge, they got the sale-deed executed. The judgment dated llth August, 1966 has been impugned in the present appeal. The only point urged by the learned counsel for the appellants is that the agreement of sale was in respect of sirdari land as such it was void in law and the suit for specific performance of the agreement of sale could not have been decreed by the lower appellate Court. On 17th July, 1959 Shiv Nandan, respondent No. 2 executed an agreement in favour of Budhoo, plaintiff- respondent No. 1 agreeing to sell his rights in the land after obtaining Bhumidhari certificate and the vendor took a sum of Rs. 330/- from the plaintiff-respondent No. 1 as earnest money. From the facts, therefore, it is admitted on record that on the date when the agreement for sale was executed, the plaintiff respondent No. 1 had only Sirdari rights. Bhumidhari Sanad was obtained thereafter and the question, therefore, which arises for consideration is whether a person who is a sirdari can enter into an agreement for sale in respect of the land on the condition that the sale would be affected after obtaining the Bhumidhari Sanad. Learned counsel for the appellant has relied on Section 6 of the Transfer of the Property Act and Section 153 of the U. P. Zamindari Abolition and Land Reforms Act 1951 in support of his contention. He has urged that the Bhumidhari rights had not been obtained when the agreement of sale was executed, as such, the rights of the respondent No. 2 were not such which could have been transferred by him in view of Section 6 of the Transfer of Property Act. So far as Section 153 of the U. P. Zamindari Abolition and Land Reforms Act is concerned, it only provides that the interest of a sirdar and asami is not transferable. Section 54 of the Transfer of Property Act provide, that an agreement of sale does not by itself create any interest in the property. It is only an agreement to transfer in future. As such, so far as the provisions of Section 153 of U. P. Zamindari Abolition and Land Reforms Act are concerned, they are not applicable to the case at all. The lower appellate Court has directed the execution of sale-deed after the Bhumidhari sanad had been obtained by the respondent No. 2. In the circumstances, Section 153 does not apply at all. So far as Section 6 of the Transfer of Property Act is concerned, it specifically lays down that the property of any kind can be transferred except as otherwise provided by this Act or by any other law for the time being enforced. It does not prohibit a party from entering into an agreement of sale in respect of a property. THIS section applies only to a transfer and not to an agreement of sale. It is always open to a party to agree that in future in case any property is acquired by a person, he will transfer the same to the person in whose favour the agreement has been executed. Learned counsel for the appellants has further cited Ghulam Mohd. v. Pir Baksh 1960 I. C, 1928 Ditcham v. James J. Miller, A. I. R, 1931 P. C. 203 Ananda Mohan v. Gaur Mohan Mullick and others, A. I. R. 1923 P. C. 189. All these cases are clearly distinguishable. They are all cases under Section 6 of the Transfer of Property Act and are cases where transfer had been effected. The principle laid down in these cases do not apply at all to the present case. In view of the above, I am clearly of the opinion that a person having sirdari rights in the land can enter into an agreement of sale in favour of another person agreeing to transfer the property after obtaining Bhumidhari Sanad. The agreement, therefore, was valid in law. In the result, there is no force in this appeal. It is accordingly dismissed. Parties are directed to bear their own costs. .