MOTI RAM Vs. KHVALI RAM

JUDGEMENT

(1.) THESE are two second appeals from two decrees of the Temporary Civil and Sessions Judge, Mathura-- one dismissing a suit for the ejectment of the defendant and the other decreeing a suit for specific performance. In the suit in S.A. No. 1515 of 1959, the applicants Moti Ram and Devi Ram were the plaintiffs and Khyali Ram the defendant, while in the suit in the roles were reversed--Khayali Ram being the plaintiff and Moti Ram and Devi Ram the defendants. The facts are these. The land in dispute consists of agricultural plots. One Kali Charan was the bhumidhar of these plots. On 12-11-1953 he entered into an agreement with Khayali Ram by which he agreed to acquire bhumidhari rights over these plots and then to transfer them to Khayali Ram for a sum of Rs. 820, Khayali Ram paid Rs. 615 in advance and a deed of agreement was executed by Kali Charan. Khayali Ram was put in possession of the plots after the execution of the agreement. On 20th January 1954 Kali Charan obtained his bhumidhari sanad, but instead of executing a sale deed in favour of Khayati Ram, he transferred the property to the appellants Moti Ram and Devi Ram, for a sum of Rs. 1000. On 28-1-1954 Khayali Ram filed his suit against Kali Charan and the appellants for specific performance of the agreement of 12-11-1953. The appellants resisted this suit, and also filed a suit in the revenue court for the ejectment of Khayali Ram from the plots. In the suit for ejectment Moti Ram and Devi Ram alleged that they were the transferees of Kali Charan who was a bhumidhar of the land and Khayali Ram was trespasser. The latter contested the suit and denied, that the appellants were bona fide transferees of the land. He gave his own version of the agreement of sale in his favour.

(2.) I shall first take up the appeal in the ejectment suit (S. A. 1515 of 1959). Mr Gopi Nath for the appellants argued that the agreement in favour of Khayali Ram was illegal as it purported to transfer sirdari rights in violation of Section 163 of the U.P. Zamindari Abolition and Land Reforms Act, and consequently Khayati Ram was a trespasser. I do not agree. It is true that sirdari rights are not transferable. But an agreement by a sirdar undertaking to acquire bhumidhari rights and then transfer them is not hit by Section 153 of the Act because it is not an agreement transferring sirdari rights but one to transfer bhumidhari rights to be acquired in the future. The agreement may have been made when the transferor's rights in the land are those of sirdar, but its object is to transfer bhumidhari rights at a later date.

(3.) THIS argument overlooks the difference between a transfer and an agreement to transfer. Transfer can only be of specific property which is in existence, but an agreement to transfer can be of future properly. This distinction is well known to the law governing the sale of goods which provides that while there can be no sale of future goods there can be an agreement to sell future goods. It is also recognised by the Transfer of Property Act, Section 43 of which provides in effect that an agreement to sell property to which the seller has no title may be enforced against him in the future if he acquires an interest in the property. This is an implied recognition of the principle that the law will recognise and enforce an obligation to transfer property not yet acquired.