K.B. Asthana, J.
1. This is a defendant's appeal from the appellate judgment and decree of the learned Additional Civil Judge, Mainpuri, by which the plaintiff's suit for specific performance of a contract of sale of a parcel of land comprising of four plots 1.65 acres in area, in chak No. 601 stands decreed.
2. The plaintiff Man Singh on 4-5-1963 entered into an agreement with the defendant Pahunchi Lal to sell a parcel of land comprising of four plots, 1.65 acres in area, on payment of a consideration of Rs. 3200/-. Pahunchi Lal paid Rs. 2150/- as earnest money. The balance of Rs. 1050/- was payable at the time of registration. It was stipulated that the sale-deed would be executed and registered within one year from the close of consolidation operations in the village. It was further stipulated that out of the plots to be sold consisting of Bhumidhari and Sirdari, Pahunchi Lal would convert the Sirdari plots into Bhumidhari plots by depositing ten times of their rent. It was also stipulated that if during the consolidation proceedings new plots were substituted in place of the plots agreed to be sold then the substituted plots shall be sold. The above terms were reduced into writing and the document evidencing the agreement for sale on the terms above was duly executed by Pahunchi Lal and got registered. The original deed is Ext. I on record.
3. The Consolidation operations in the village came to an end on 24-4-1965 on the issue of a notification under Section 52 of the U. P. Consolidation of Holdings Act. In the Consolidation operations chak No. 601 was allotted to Pahunchi Lal in which four plots agreed to be sold were substituted by two plots; Bhumidhari plot No. 639, 1.43 acres in area and Sirdari plot No. 740, .22 acres in area. On 3-8-1965 Man Singh gave a notice to Pahunchi Lal for executing the sale-deed and getting it registered on payment of Rs. 1050/-, the balance of the consideration. Pahunchi Lal did not execute the sale deed as demanded. Man Singh then filed the suit giving rise to this appeal on 30-8-1965 for specific performance of the sale of the above said Bhumidhari and Sirdari plots 1.65 acres in area on payment of Rs. 1050/-. In the alternative adecree was claimed for the return of the amount paid as earnest money and for damages for breach of contract.
4. Pahunchi Lal contested the suit, inter alia, on the pleas that agreement dated 4-5-1963 signed by him was void and unenforceable for the reasons: (a) his signatures were obtained thereon by fraud and undue influence exercised by the plaintiff (b) Man Singh was a tenure holder having more than twelve and half acres of land on the day when the said agreement was executed, thus it was hit by Section 23 of the Contract Act, read with Section 154 of the U. P. Zamindari Abolition and Land Reforms Act. It was also pleaded that the contract of sale deed could not be specifically performed as the sirdari plots could not be transferred under the provisions of the U. P. Zamindari Abolition and Land Reforms Act.
5. The learned Munsif on the evidence on record found that the agreement to sell dated 4-5-1963 was duly executed and registered and was binding on the defendant there being no evidence on record of any fraud practised or any undue influence exercised on him by the plaintiff. He further held that as the defendant could not acquire Bhumidari rights by paying ten times rents of the Sirdariplots, no decree for specific performance of the contract of sale in regard to Sirdari plots could be passed. He further held that though the plaintiff possessed more than twelve and half acres of land on the day when the agreement to sell, Ext. If was executed, but on the date of the suit the plaintiff was not in possession of more than twelve and half acres of land and on acquisition by him of the plots agreed to be sold, his total holding would not exceed more than twelve and half acres. On these findings the learned Munsif decreed the plaintiff's suit for the sale of Bhumidari plots on payment of the proportionate amount Rs. 622.67 P. but dismissed the suit with regard to sale of Sirdari plots.
6. From the decree of the learned Munsif the defendant filed an appeal and the plaintiff filed a cross objection. The learned Civil Judge who heard the appeal of the defendant dismissed it and allowed the cross objection of the plaintiff, thus decreeing the suit of the plaintiff in toto. The learned Civil Judge affirmed the finding of the learned Munsif as regards the validity of the agreement to sell dated 4-5-1963 and took the view that the contract for sale of Sirdari plots on deposit of ten times rent by the defendant could in law, be specifically enforced. From the judgment and decree of the learned Civil Judge the defendant has come up in Second appeal to this Court.
7. Sri S. N. Agarwal, learned counsel for the defendant appellant, assail-ed the judgment and decree of the lower appellate Court on the following grounds? (1) that it having been established that the plaintiff on the date of the agreement to sell being possessed of more than twelve and half acres of land, the said agreement was hit by the provision of Section 23 of the Contract Act read with Section 154 of the U. P. Zamindari Abolition and Land Reforms Act, hence unenforceable (2) that the said agreement merely amounted to a contingent contract and not to concluded contract, hence could not be specifically enforced (3) that the defendant could not acquire as of right Bhumidari rights by paying ten times rents of the Sirdari plots, hence the decree for specific performance in regard to the Sirdari plots was illegal; and (4) that in any view of the matter, the lower appellate Court erred in decreeing the suit of the plaintiff for the Sirdari plots for which the suit was dismissed by the trial Court in exercise of its discretion.
8. The first ground of attack on the validity of the agreement based on Section 23 of the Contract Act read with Section 154 of the U. P. Zamindari Abolition and Land Reforms Act in my judgment has no force. The Courts below have taken the correct view on the interpretation of Section 154 of the U. P. Zamindari Abolition and Land Reforms Act in holding that the relevant point of tune for the application of the provisions of that section is the date of sale and not the date of agreement to sell, therefore, the transaction of contract to sell is not hit by Section 23 of the Contract Act.
In this connection the learned counsel relied upon a decision of this Court in the case of Sita Ram v. Kunj Lal. : AIR1963All206 and it was submitted that since Section 154 of the U. P. Zamindari Abolition and Land Reforms Act prohibits Bhumidhar from selling a land to a person who is in possession of a holding of twelve and half acres any agreement to sell entered by a Bhumidhar with such person being a contract of sale, would be hit by Section 23 of the Contract Act being against the provisions of the special law and against public policy. I do not think the learned counsel can derive any assistance from the ratio of the decision in the case of : AIR1963All206 . In that case the contract for sale and purchase of Jaggery powder which was the subject-matter of consideration was in respect of moveables falling within the definition of goods under the Sale of Goods Act and a contract to sell goods under the provisions of the said Act amounts to the sale of the goods itself and would always be hit by prohibition contained in any law hence covered by Section 23 of the Contract Act. But an agreement to sell an immoveable property like land does hot result in the transfer ofinterest in the land hence is not a sale of the land. Section 54 of the Transfer of Property Act defines a 'sale' as a transfer of ownership in exchange for a price paid or promised or part paid and part promised while a contract to sell immoveable property as mentioned In the said section is contract that a sale of such property shall take place on terms settled between the parties, it does not, by itself, create any interest in or charge on such property. It is manifest, therefore, from Section 54 of the Transfer of Property Act that while a contract to sell immoveable property or an agreement to, sell immoveable property is an independent contract but that by itself does not create any interest in such property in favour of person to whom it Is to be sold on the terms settled. Once this distinction between a sale and a contract for sale of immoveable property is appreciated the provisions of Section 154 of the U. P. Zamindari Abolition and Land Reforms Act will not be attracted to a contract to sell the Bhumidari land as such a transaction will not amount to a transfer of interest in the said land by sale there being no sale.
Section 154 of the U. P. Zamindari Abolition and Land Reforms Act which restricts the transfer by a Bhumidari lays down that no Bhumidhar shall have the right to transfer, by sale or gift, any land ........................to any person .........where such person shall, as a result of the sale or gift, become entitled to land which, together with land, if any, held by himself or together with his family will, In the aggregate exceed twelve and half acres in Uttar Pradesh. The explanation, to the section lays down that for the purpose of this section a family shall include the transferee himself, his wife, or her husband as the case may be and his minor children. The restriction by the said Section 154 is on transfer by sale or gift and] not to an agreement to transfer by sale, that is to say, that when an interest in the Bhumidhari land is transferred, it is the duty of the Bhumidhar vendor to find out whether as a result of the transfer of the interest the vendee would become entitled to land which together with land held by himself or along with hig family, will in the aggregate exceed twelve and half acres and such family shall consist of his wife and minor children. It is the sale, therefore, which occasions the transfer of interests in Bhumidhari land which will fall within the mischief of the said section. An agreement to sell Bhumidari land not amounting to a sale or transfer of interest in favour of the vendee will not be covered by the provisions of that section, hence will not be an unlawful contract. The Courts below have found that though the plaintiff was possessed of morethan twelve and half acres of land on 4-5-1963 when the agreement to sell was registered, but before filing of the suit he had gifted certain area of land in favour of his two major sons and on the day when the suit was filed and the decree for specific performance was passed the total holding of the plaintiff together with the land, subject-matter of the decree for specific performance of sale, would not amount to more than twelve and half acres. I do not find any substance in the argument of the learned counsel that the so-called gift to the major sons was merely a sham transaction and ought to be ignored. There is nothing on record to show that the gift in favour of the major sons was illusory and fraudulent. Considering that the motive for gifting small area of land by the plaintiff to his major sons was with the purpose of avoiding the restriction placed by Section 154 of the U. P. Zamindari Abolition and Land Reforms Act, that would not, to my mind, make the transaction of gift, a sham and illusory transaction. The first ground of attack therefore, fails.
9. Coming to the second ground of attack as to the nature of contract evidenced by the agreement dated 4-5-1963, I am unable to agree with the submission of the learned counsel that it was merely a contingent contract and not a concluded contract. I have already discussed above what the contract for sale means under Section 54 of the Transfer of Property Act. Merely because in the said agreement, the vendor took upon himself [the responsibility of depositing ten times rent of Sirdari plots to convert them into Bhumidari will not make the contract contingent. Section 31 of the Contract Act says a 'Contingent contract' is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen. Here on the terms of the agreement dated 4-5-1963 it is not possible to find that the sale of the Sirdari plots depended upon any event in the sense that the happening of the event was beyond the control of the vendor. In fact what the vendor had undertaken in the agreement was that he would pay the ten times rent of the Sirdari plots and convert them into Bhumidari before the date of the sale. The agreement dated 4-5-1963, as I construe its recitals, was a contract for sale of Bhumidari land in area 1.65 acres and it was a concluded contract. Reference was made to a decision of Patna High Court in the case of Rudra Das Chakravarti v. Kamakhya Narayan Singh. (AIR 1925 Pat 259), to a decision of Judicial Commissioner Sindh In the case of Kripal Das Jivraj Mal v. Manager, Encumbered Estates, (AIR 1936 Sind 26) and to a decision of Bombay High Court in the case of Govind Laxman v. Harichand Mancharam (50 Ind Cas 403) : (AIR 1919 Bom 154). All these cases are distinguishable on facts. In the Patna case the subject-matter was the execution of a mining lease and the right to mine depended upon grant of a license, such grant being entirely dependent upon the decision of an independent agency, hence it was held that the contract to give the lease could not be specifically enforced. In the Sindh case the sale of the specified area of land depended upon the agreement of the other co-sharers of the vendor. The co-sharers of the vendor could frustrate the contract of sale if they disagreed, they not being parties to the agreement to sell. In the Bombay case there being a condition that if certain suits were decided in a particular way then the bargain would stand cancelled was squarely a contingent contract.
10. Under Section 134 of the U. P. Zamindari Abolition and Land Reforms Act if a Sirdar, belonging to the class mentioned in Clause (a) of Section 131 pays or offers to pay to the credit of State Government an amount equal to ten times of land revenue payable or deemed to be payable on the date of application for the land of which he is the Sirdar, he shall upon an application duly made in that behalf to an Assistant Collector, be entitled 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 in respect of such land. It is not disputed that the defendant belonged to the class of Sirdars mentioned in Clause (a) of Section 131 of the U. P. Zamindari Abolition and Land Reforms Act. Sections 135 and 136 of the said Act then lay down certain formalities to be observed by the applicant. Then according to Section 137 of the Act once the application is found to have duly been 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. Much was tried to be made by the learned counsel for the defendant appellant on the provisions of Section 137 relating to the satisfaction of the Assistant Collector and he submitted that it depends on the discretion of the Assistant Collector to grant or not to grant a certificate and the matter, therefore is not dependent entirely on the volition of the applicant Sirdar. It would be seen that the Assistant Collector has no option in the matter; he has to grant a certificate and that is what Section 134 of the U. P. Zamindari Abolition and Land Reforms Act directs. In the case of Moti Lal v. Nanhelal the Privy Council specifically enforced a contract where the vendor as a proprietor of a Sir land before transferring it by sale was required to obtain sanction for the transfer from the Revenue Officer and the argument that adecree for specific performance of the agreement of sale of the Sir land should not be made, because such performance would necessitate an application by or on behalf of vendors or one of them to the Revenue Officer for sanction to transfer the cultivatory rights in the Sir land was repelled. Thus the second ground of attack also fails.
11. The third ground that since the Court itself could not acquire Bhumidhari rights in the Sirdari plots as it could not make any application under the provisions of the U. P. Zamindari Abolition and Land Reforms Act is devoid of substance. The undertaking of the defendant as vendor that he shall take steps under the U. P. Zamindari Abolition and Land Reforms Act to obtain Bhumidhari rights in the Sirdari land agreed to be sold is by itself enforceable under the terms of the contract evidenced by the document Ext. I dated 4-5-1963. Section 13(b) of the Specific Relief Act can usefully be referred to in this connection which says that if the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence. I think the Court has the power and jurisdiction under Section 13(b) of the Specific Relief Act to compel the defendant to take steps and obtain Bhumidhari rights in the Sirdari land agreed to be sold. This argument also fails.
12. The last ground of attack based on the discretionary nature of the relief for specific performance does not appeal to me. The learned Munsif cannot be said to have refused to grant a decree for specific performance as regards the Sirdari plots in the exercise of his discretion though at the end he has observed that unnecessary complication may arise in that connection if the Court were to pass a decree. His refusal appears to be based upon a misconception of law. He thought that the Court will have to apply for securing Bhumidhari rights. The learned Munsif did not think it was possible in law that the defendant could be compelled by a decree of the Court to apply for securing Bhumidhari rights in the Sirdari plots agreed to be sold. I think the lower appellate Court was right in decreeing the plaintiffs suit in regard to the Sirdari plots also and in directing that the defendant shall take steps and secure Bhumidhari rights. That is how the decree of the Court below reads. The defendant shall first make the necessary application regarding Sirdari plots agreed to be sold and then to secure the Bhumidhari rights by depositing of the requisite amount of money.
13. As regards the costs, I think this was a fit case in which the partiesshould have been directed to bear their own costs inasmuch as the plaintiff had filed the suit almost six or seven months before the time stipulated in the agreement to sell for executing the sale-deed expired. The consolidation operations in the village, as said above ended on 24-4-65 and the defendant could execute the sale-deed and get it registered within one year from that date that is, up to 24-4-1966 while the suit was filed on 30-8-1965. The plaintiff, therefore, came to the Court much earlier than necessary without making further negotiation with the defendant.
14. As a result of the discussions above, this appeal is dismissed, but I direct that the parties will bear their own costs throughout.