A transfer of property pursuant to an agreement to sell entered into prior to the commencement of the Madras Act 58 of 1961, but executed after the commencement of the Act, is not void under Section 22 of the Act if the testator did not intend to defeat the provisions of the Act and the executor had no beneficial interest in the properties.

ORDER :- This revision has been preferred against the order of the Land Tribunal in C. M. A. 50 of 1965 which was disposed of by its common judgment dated 27-9-1965. The petitioner herein is a purchaser of certain lands of an extent of 11.52 acres from one Gopalaratnam who is an executor appointed under the Will of his mother, Janaki Ammal dated 1-11-1959, by a sale deed dated 5-10-1961. Though the above lands had been bequeathed to one Lalithammal, under the said Will, the testator the said Janaki Ammal had, even during her lifetime,

entered into an agreement to sell the lands to the petitioner herein. But before completing the sales as per the said agreement, she died. After her death the executor appointed under her will executed the sale deed in favour of the petitioner on 5-10-1961 as per the agreement of sale entered into by the deceased testator even during her lifetime. The said sale was held to be void under Section 22 of Madras Act 58 of 1961 by the Authorised Officer as defeating the provisions of the Act. The Land Tribunal also upheld the said order of the Authorised Officer.

2. In this revision, Mr. V. K. Thiruvenkatachari, learned counsel for the petitioner, contends that though the transactions took place after the date of the commencement of Madras Act 58 of 1961, and before the notified date, the transactions cannot be held to be void as the testator had not intended to defeat the provisions of the Act in entering into the agreement of sale, as she had lands less than the ceiling limits. It is also contended that the executor who executed the sale in pursuance of the agreement of sale entered into by the testator had no beneficial interest in the properties left by the testator, that he is bound to carry out the directions of the testator and fulfil her obligations, and that in executing the sale deed the executor had not acted on behalf of Lalithammal, the legatee under the will nor on his own behalf. It is also pointed out that neither the executor nor the legatee came to own lands on the death of the testator and that the transfer made by the executor was done by him only to carry out the obligations incurred by the testator before her death.

3. Reference has been made to the decision in Veeraraghavayya v. Kamala Devi, AIR 1935 Mad 193, where Venkatasubba Rao J. held that a purchase made subsequent to the attachment but in pursuance of an agreement to sell entered into prior to the attachment prevails over the attachment. The reasoning given by the learned Judge for that view is that a purchaser under a contract of sale of land is entitled to the benefit of an obligation arising out of the contract, which is a well defined right, which though not amounting to an interest in immoveable property is annexed, in the words of Section 40 of the Transfer of Property Act and Section 91 of the Trusts Act, to the ownership of such property, and that notwithstanding Section 54 of the Transfer of Property Act, which says that a contract of sale does not create an interest in land, by virtue of Section 40 of the Transfer of Property Act, and Section 91 of the Trusts Act a contract of sale creates an obligation of a fiduciary character and is in the nature of a trust. Reference was also made to the decision of a Division Bench of this court in Veerappa Thevar v. Venkatarama Aiyar, AIR 1935 Mad 872 which also dealt with a case of attachment of properties in respect of which there was an earlier agreement to sell, and the Bench had agreed with the view of Venkatasubba Rao J. in the earlier case and expressed the view that an agreement to sell created an obligation to convey the property and the later attachment will not override the conveyance made later in performance of that obligation, and that the attachment in such cases will hold good only in respect of such right as the vendor had in the property at the time of attachment, that is, a right to recover the unpaid balance of the purchase money, if any. Reliance