H.L Agrawal, J.:— The short question falling for decision in this case is, whether the court below could pass a decree for specific performance of the contract for sale executed by the defendant in favour of the original plaintiff in respect of 1.68 acres of his raiyati land on 28-7-1962 in view of the restrictions imposed by Section 46 of the Chota Nagpur Tenancy Act.

2. The facts of the case are as follows—

3. The original plaintiff and the defendant both belong to backward classes and are residents of two different villages situate within the pergana of Jharia, in the district of Dhanbad. The plaintiff's case is that on the 28th July, 1962 the defendant approached him (the original plaintiff having died, his heirs have been substituted in his place) and took an advance of Rs. 400/- from him for paying off his debts and executed an agreement for sale of the land described in the schedule of the plaint in favour of the plaintiff for a consideration of Rs. 599/-. The defendant received a sum of Rs. 400/- as advance on the same date and it was agreed that the final deed of sale would be executed by the defendant in favour of the plaintiff by 13-2-1963. The agreement has been marked as Ext. 3 in the suit. The further case of the plaintiff is that the defendant also put the plaintiff in possession over one of the plots, namely plot no. 3, having an area of 0-16 acre, over which the plaintiff erected boundary walls. As the defendant did not execute and register the sale deed in pursuance of the agreement aforesaid, the plaintiff instituted a title suit, after due service of notice, in the Court of the Munsiff, First Court, Dhanbad.

4. The defendant challenged the genuineness of the agreement (Ext. 3) and he has given a different story for executing a receipt of Rs. 400/-. The Court of appeal below has not accepted this defence of the defendant as correct and has held that the agreement was genuine and valid. This finding arrived at by the final Court of fact could not be challenged in this Court in a second appeal, and as such it is not necessary to give details of this aspect of the defendant's case.

5. The further defence put forward by the defendant, and which has been pressed in this Court, as stated above, was that the agreement in question was hit by the provisions of Section 46(1)(b) of the Chota Nagpur Tenancy Act, (hereinafter to be referred to as the Act), and, as such, the same could not be enforced.

6. The trial Court dismissed the plaintiff's suit, accepted the case of the defendant and held that the agreement (Ext. 3) was not a genuine and valid document and that the suit was not maintainable in view of the provisions of Section 46 of the Act. On appeal, the learned Subordinate Judge has reversed both the findings of the trial Court and has held that the agreement for sale (Ext. 3) was a genuine and valid document and there was no bar in passing a decree in favour of the plaintiff for specific performance of the said agreement on account of the provisions of Section 46(1)(b) of the Act.

7. In order to decide the point at issue, it will be useful to quote the relevant provision of Section 46 of Act:—

“46. (1) No transfer by a raiyat of his right in his holding or any portion thereof:—

(a) xxx

(b) by sale, gift or any other contract or agreement, shall be valid to any extent:”

8. The above restriction in the case of an occupancy raiyat, who is a member of the scheduled castes or backward classes, has been however, not made absolute and transfer has been made permissible with the previous sanction of the Deputy Commissioner.

9. Proviso (b) to Section 45 reads as follows—

“an occupancy raiyat who is a member of the scheduled castes or backward classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person who is a member of the scheduled castes or, as the case may be, backward classes and who is a resident within the local limits of the district within which the holding is situate.”

10. From the relevant provisions of Section 46 of the Act referred to above, it would appear that there is no absolute bar for on occupancy raiyat who is a member of the scheduled castes or backward classes from transferring his right in the holding or any portion of the same by sale, exchange, gift, etc. But what is required is that he has simply to obtain the sanction of the Deputy Commissioner prior to the transfer in question by any of the aforesaid modes of his right in the holding.

11. It is well settled that an agreement for sale does not amount to transfer of any interest in the property proposed to be sold by the vendor and no right is conferred in favour of the person taking the agreement for the same, save and except that on the failure of the promissor to execute the sale deed, the promisee can enforce the agreement through the process of the Court and get the contract specifically performed in accordance with law. In my opinion, therefore, there is no bar under the provisions of the Act quoted above for an occupancy raiyat belonging to the categories mentioned therein in validly entering into a contract for sale and such a contract would be perfectly legal and enforceable. The sanction of the Deputy Commissioner may be obtained at any time after the execution of the agreement for sale and before the execution of the actual deed of sale. I do not see any illegality in following this procedure. Any person who desires to sell any interest in his holding must find out a ready purchaser before applying for the sanction of the Deputy Commissioner for transfer of his interest so that the botheration of obtaining the sanction may not go in vain, and in order to bind the purchaser, he may enter into an agreement for sale in anticipation of the sanction to be obtained subsequently. The execution of a contract for sale in this situation would be just a link in the chain of the ultimate transaction of sale.

12. Confronted with this proposition, learned counsel for the appellant referred to the expression “contract or agreement” in Clause (b) of Sub-section (1) of Section 46 of the Act and contended that the aforesaid expression even prohibits the mere execution of an agreement for sale also. According to the learned counsel, these two words occurring in the aforesaid clause are referable only to the contract or agreement for future transfer as, according to him, there can be no transfer by an agreement or contract and therefore this expression must necessarily be held to apply to mere cases of contract or agreement for sale contemplating the actual transfer in future. It is not possible to accept this contention of the learned counsel. What is prohibited or restricted under the section is the actual transfer in praesenti and the words “Contract or agreement” occurring in the above Clause (b) have been used not for the purpose as contended by the learned counsel, but to cover-cases where any other mode of transfer has been adhered to, apart from a deed of sale or gift by a raiyat of his right in his holding. There may be various other modes of transferring the interest by a raiyat of his right in his holding, besides by way of sale or gift, such as by way of exchange, or disclaimer or the like, and the above two words, therefore, in my opinion, have been used to make the restriction more exhaustive and comprehensive so as to cover any other mode of transfer.

13. In this case, admittedly, the purchaser also was a member of the backward class and a resident within the local limits of the district in which the holding is situate and, therefore, the proposed transfer was permissible and not hit by the restriction imposed by Section 46 of the act and only step for previous sanction of the Deputy Commissioner was to be taken by the vendor. It may be that where any provision of law lays down an absolute bar to a sale by a raiyat of his right in his holding, the Court will not enforce the contract for sale of the rights of such a raiyat. The restrictions imposed under Section 46 of the Act for sale by a raiyat of his right in his holding are intended for the protection of the interests of the scheduled castes and backward classes in the Chota Nagpur Division so that they might be saved from exploitation on account of their backwardness by more socially advanced communities, and to keep a check upon the same, the right of open transfer has been prohibited. As already stated above, the purchaser in this case being a member of the backward class and resident within the same district, the condition imposed for transfer by the second proviso to Section 46, referred to above was fulfilled and, therefore, the agreement for sale was not void.

14. In view of the above discussions the agreement in question is not opposed to the public policy and the Court could force the same. The only bar created for the transfer of the raiyati interest in the holding is that it must have a prior sanction of the Deputy Commissioner. In my opinion, that is simply a procedure for a valid transfer, and that procedure can validly be followed for the purpose of completing this agreement. A Bench of this Court in (1) Somra Uraon v. Mostt. Somari Urain (1964 B.L.J.R 227) has considered the scope of the restrictions of Section 46 of the Act. Their Lordships compared the language of Section 46 of the Act with the language of Section 27 of Regulation III of 1872 applicable to Santhal Parganas and came to the conclusion that whereas Section 27 of the Regulation imposes an absolute bar upon the alienation of land in Santhal Parganas, there is no absolute bar or interdictions on the alienation of holding in Chota Nagpur under the provisions of the Act.

15. In the lower appellate court as well as before me, reliance was placed on behalf of the plaintiff on a decision of the Privy Council in (2) Motilal v. Nanhelal (A.I.R 1930 Privy Council 287). This was a case where some restrictions imposed by the Central Provinces Tenancy Act were being considered. Section 59(1) of the Central Provinces Tenancy Act, 1920, has been quoted in the said decision as follows:

“If a proprietor desires to transfer the proprietary rights in any portion of his sir land without reservation of the right of occupancy specified in Section 49, he may apply to a Revenue Officer and, if such Revenue Officer is satisfied that the transfer of is not wholly or mainly an agriculturist, or that the property is self-acquired, or has been acquired within the 20 years last preceding, he shall sanction the transfer.”

16. In that case also, on the 4th September, 1914, two agreements were executed for sale of certain interest of Mauza Raisalpur, including sir and khudkast lands, but the sale deed was not executed and a suit was filed praying for a decree that the defendants should be ordered to execute a sale deed in favour of the plaintiff for the share, of the said village with cultivating rights in the sir lands, after obtaining sanction under the Central Provinces Tenancy Act. The suit was decreed by the Judicial Commissioner and the matter went to the Privy Council, where it was held that the decree for specific performance of the agreements was properly made and that the decree could properly be carried out under the terms of Order 21, Rule 32(4) of the Code of Civil Procedure. The decree in that case had provided for making of an application by or on behalf of the defendant to the Revenue Officer for obtaining sanction for the transfer. This decree was challenged which was answered by the Privy Council as indicated above.

17. In the present case also, I find that the learned Subordinate Judge has directed the defendant to execute a sale deed in favour of the plaintiff after obtaining the necessary sanction from the Deputy Commissioner. Mr. Choudhary, learned counsel for the appellant, made a vague attempt to distinguish the Privy Council case, referred to above with the present case, but, in my opinion, the principles laid down in the said authority apply to the facts of the present case.

18. All the contentions raised on behalf of the appellant have accordingly, no merit and must fail.

19. Before parting with this case, it is necessary, however, to make some clarification in the decree of the Court below. The Court below has not provided the procedure to be followed in case the defendant fails to take any step for obtaining the sanction of the Deputy Commissioner as directed. As obtaining sanction of the Deputy Commissioner is a condition precedent for execution of a deed of sale, it is made clear that on the failure of the defendant to do so, the procedure prescribed under Order 21, Rule 34 of the Code of Civil Procedure will be followed. However, in case the Deputy Commissioner refuses to grant the sanction, the document of sale cannot be executed in favour of the plaintiff, and in that event he will have to be content with the alternative relief prayed for, namely, for the refund of the earnest money of Rs. 400/- with interest at the rate of 6 per cent per annum pendentelite and future.

20. The questions raised, therefore, having no substance, the appeal is dismissed subject to the clarification made above, but there will be no order for costs.

Appeal dismissed.