An agreement to transfer property by an aboriginal, even without permission from the Deputy Commissioner, is not void and can be enforced in a court of law.

1. THE plaintiff has alleged that the disputed tank and its bank belonged to the defendant Gobardhan Mahato. On the 3rd September, 1965, the latter executed a deed of agreement in his favour contracting to sell the disputed property to him for Rs. 1,000/- within chaitra, 1374 B.S. and took an earnest money of Rs. 700/ -. But he declined to execute a kobala He fraudulently transferred the property to the defendants nos. 2 and 3. Those two defendants were aware of such agreement made with him. Hence the defendants nos. 2 and 3 are bound by the agreement entered into with the plaintiff. The suit is for specific performance of contract. There is an alternative prayer for recovery if Rs. 1,000/- as damages.

2. THE defendant no1 died during the pendency of the suit and his heirs were brought on the record. The defendants filed a written statement denying the story of such agreement It has been stated that the defendants no. 2 and 3 are bonafide purchasers for value without notice of the plaintiff's alleged agreement.

The learned Munsif considered the matter accepted the plaintiffs version and decreed the suit. He took care to state that in case the Deputy Commissioner, Puralia, did not accord permission to sell the property, the plaintiff would get Rs. 1,000/- as damages.

3. THE defendants preferred an appeal and lost the same on the merits. But the learned Subordinate Judge stated that the claim for recovery of damages was excessive and hence the decree was modified and damages assessed at Rs. 800/- only. The appeal was, therefore, allowed in part. Hence this appeal by the defendant.

4. TWO-FOLD submissions have been made on behalf of the appellant. It has been stated that the plaintiff was a cosharer of the disputed tank and hence, it is immaterial whether he exercised possession in the property from her. The defendants nos. 2 and 3 are bona fide purchasers for value, without notice. They had no knowledge of the agreement arrived at between Gobardhan and the plaintiff. Sc, the appeal should be allowed. It has been next contended that the alleged agreement was arrived at with the plaintiff without obtaining any permission from the Deputy commissioner, Purulia. The defendant no. 1 (Gobardhan) is an aboriginal and hence there' was an absolute bar on his power to sell the property or to enter into any deed of agreement to transfer the same. Hence, the court should find that such alleged agreement is void abinitio.

The final, court of fact has stated that the story of the plaintiff's agreement is true and. the defendants nos. 2 and 3 had knowledge of the plaintiff's agreement. That court further found that those defendants were not bonafide purchasers for value without notice. This finding of fact cannot be challenged in second appeal.

5. THEN about the question of law. Reference may be made to the provisions of sections 49b, 49f and 49g of the Bengal Tenancy Act to show that regarding Santhals and other aboriginals, there is a restriction on their power of transfer. But there is no restriction whatever regarding their power to enter into an agreement to transfer the property. So, this distinction must not be lost sight of in arriving at a decision on this important question. It will be pertinent to point out that according to the provisions of section 54 of. the Transfer of Property act, a contract for sale does not? create any interest in the same. An agreement to transfer the property is also hot compulsorily registrable document Within the meaning of the provisions of section 17 (1) or the Indian Registration act. So, even if an agreement to transfer the property is registered, still. such registration will not operate as notice to the other side because section 3 of the Transfer of Property Act can be availed of in this regard where the deed is compulsorily registrable.

6. BUT the fact remains that the defendant no. 1, Gobardhan, was a mahato. According to the provisions of the section 14c of the West Bengal land Reforms Ac