S.S. Dhavan, J.
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 Second Appeal No. 1566 of 1959 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.
The trial court decreed the suit for ejectment on the ground that the appellants had become the bhumidhars of the land under the sale deed executed by Kali Charan and Khayali Ram was in unauthorised occupation. The learned Civil Judge held that Khayali Ram was not in unauthorised occupation but on the contrary had been put in possession by the vendor and he was entitled to the protection of Section 53A of the Transfer of Property Act. He also held that the appellants were not bona fide transferees and could not recover possession from Kali Charan who had occupied the plots in part performance of the contract. He allowed the appeal and dismissed the appellants' suit. They have come here in second appeal (S. A. 1515 of 1959) In the other suit, the plaintiff Khayali Ram asked for specific performance of his agreement. Moti Ram and Devi Ram resisted the suit and contended that they were bona fide transferees for value. The pleadings of the parties were otherwise the same as in the suit for ejectment. Both the courts below have decreed this suit, and Moti Ram and Devi Ram have come here in Second Appeal (S. A. 1566 of 1969). Both appeals are being disposed of by me by a common judgment as the same questions of law and factarise in both.
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 Abolitionand 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. Mr. Gopi Nath then argued that the agreement with Khayali Ram would be barred under Sections 5 and 6 of the Transfer of Property Act. He contended that an agreement purporting to transfer future property--that is one which is not in existence is invalid, because it transfers something which is not in existence at the time of agreement Counsel relied on Aveline Scott Ditcham v. James J. Miller AIR 1931 P.C. 203. Annada Mohan Roy v. Gour Mohan Mullick, AIR 1923 P.C. 189, Collyer v. Isaacs, (1881) 19 Ch. D. 342; and Ghulam Mohammad v. Pir Bukhsh, (1928) 108 Ind. Cas. 390(Lah).
4. 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.
5. In the cases cited by counsel the court held that there could be no assignment of an interest not in existence. This is in accord with plain common sense if I may say so with respect. But in no case has any Court laid down that there can be no agreement to assign property to be acquired in the future. In the present case the vendor agreed to obtain a bhumidhari sanad and then transfer his bhumidhari rights to Khayali Ram. Such an agreement is valid and enforceable.
6. The appeal from the decree dismissing the suit for ejectment fails.
7. In the appeal from the decree for specific performance (S. A. No. 1566 of 59) Mr. Gopi Nath argued that Khayali Ram's suit should have been dismissed in view of Clause (b) of Section 21 of the Specific Relief Act. This clause enjoins in effect that a contract which is dependent on the volition of the parties cannot specifically be enforced (I have omitted the other parts of the clause which are not material) Counsel pointed out that the agreement between Kali Charan and Khayali Ram contained an undertaking by Kali Charan to obtain a bhumidhari sanad and this could not be enforced by the court as its fulfilment depended upon his volition. A short answer to this argument is that Khayali Ram did not ask for the enforcement of this part of the agreement because Kali Charan had already obtained a Bhumidhari sanad. If person enters into a contract the performance of a part of which depends upon his volition and he performs this part and then refuses to perform the remaining part which does not depend upon his volition, he cannot resist a suit for specific performance of the remaining part on the ground that the agreement, on the date when it was made, depended partly on his volition. If he has already performed that part of the contract which depended upon his volition, he can he complied to perform the remaining part which he did not perform.
8. Lastly Mr. Gopi Nath argued that the lower appellate court erred in dismissing the appellant's appeal on merits because it could only dismiss it for default. It appears that when the appeal before the lower appellate court was called up for hearing, a counsel for the appellants appeared but informed the court that the appeal would not be argued by him but by another counsel who was at the time busy in another court. The court refused to adjourn the case and proceeded to decide the appeal on merits. If was of the opinion that the findings and the decision of the trial court were sound and the appeal was without force. Mr. Gopi Nath argued that the lower appellate court acted illegally in not dismissing an appeal for default in the absence of the counsel who was to argue the case. Learned counsel relied on the opinion of a Full Bench of this court in Babu Ram v. Bhagwan Din : AIR1966All1 In that case the following question was referred to the Full Bench for their opinion 'whether in the absence of an appellant or his counsel an appellate court should dismiss the appeal in default or decide the appeal on merits? Whether under which circumstances the appellate court has jurisdiction to dispose of the appeal on merits?
9. After a review of the authorities both of this and the other High Court, the Bench gave the following unanimous opinion;
'In the absence of the appellant and his counsel the appellate court should ordinarily dismiss the appeal for default and it is only in exceptional circumstances that it should decide the appeal on merits. The appellate court has however the jurisdiction even in the absence of the appellant and his counsel to dispose of the appeal on merits.'
10. Learned counsel relying on this opinion argued that in the absence of the appellant or his counsel the appellate court must adopt the normal course of dismissing the appeal for default and only decide on merits in exceptional circumstances. Mr. Gopi Nath pointed out that in the present case no exceptional circumstances existed or were pointed out by the lower appellate court who gave a decision on merits. He relied on a decision of a Division Bench of this Court in Civil Revn. No. 503 of 1967 (All.) Babu Ram v. Bhagwan Din, in which the court held:
'To decide the appeal on merits in the absence of exceptional circumstances amounted to material irregularity in the disposal of the appeal.'
This was the same case which had been referred to the Full Bench for opinion
11. I do not think that the present case is governed by the opinion of the Full Bench. In that case, both appellant and his counsel were absent when the case was called up. The very question referred to the Full Bench for opinion began, 'Whether in the absence of appellant or his counsel . . .. .?' and the order of the appellate court dismissing the appeal also stated, 'the appellant is absent. The counsel does not turn up to argue the appeal.' After making this observation the court held that the judgment under appeal was manifestly correct.
12. In the present case it cannot be said that the appellant, or at any rate his counsel, Was absent when the case was called up. The lower appellate court has observed.
'When the appeal was called up Sri Jagdish Prasad learned counsel for the plaintiff respondent appeared. Sri Parpannya, learned counsel for the appellant also made his appearance but said that the appeal would be argued not by him but by Sri Gupta who was busy in another court. Since more than half a dozen adjournments were allowed this request was turned down.'
The learned appellate Judge then held that there was no occasion for him to interfere with the findings of the trial court, and dismissed the appeal.
13. In my opinion, if the counsel for the appellant is present in court when the appeal is called up for hearing but states that the appeal will not be argued by him but by another counsel and asks the court to wait for that counsel and the court rejects this request and proceeds to decide the appeal on merits it cannot be said that the decision was made in the absence of the appellant or his counsel.
14. Both the appeals fail and are dismissed with costs.