JUDGMENT

Sulaiman, J. - The principal question of law which arises in this appeal is as to the legal effect of including non-transferable occupancy lands along with other properties, which are transferable, in a registered mortgage deed.

2. There can be no doubt that there is a clear distinction between a contract which still remains to be performed and specific performance of which may be sought, and a conveyance by which title to property has actually passed. Cases of mere contract are governed by the provisions of the Contract Act. Cases of transfer of immovable property are governed by the Transfer of Property Act. A mere contract to mortgage or sale would not amount to an actual transfer of any interest in the immovable property (S. 54, T.P. Act), but a deed of sale or mortgage, if duly registered, would operate as a conveyance of such interest. Once a document transferring immovable property has been registered the transaction passes out of the domain of a mere contract into one of a conveyance. Such a completed transaction would be governed by the provisions of the Transfer of Property Act, and only so much of the Contract Act as are applicable thereto.

3. It is significant that the whole of the Contract Act has not been made applicable to transfer of immovable properties. Section 4, T.P. Act, merely makes certain provisions of the Transfer of Property Act, relating to contracts as part of the Contract Act and not vice versa.

4. It is Section 6(h), T.P. Act, which lays down that no transfer can be made for an unlawful object or consideration within the meaning of Section 23, Contract Act. Sub-clause (i), further provides that nothing in that section would authorise a tenant having an untransferable right of occupancy to assign his right as such tenant.

5. Thus an attempted transfer of an untransferable right of an occupancy tenant is merely declared to be unauthorised and therefore void and ineffectual. Similarly, a transfer for an unlawful object or consideration is declared to be void and ineffective. So far as these sections go they do not lay down the law that if such a non-transferable interest is included among other transferable properties the whole transaction is illegal. It is noteworthy that in order to bring in the operation of Section 6(h), the object or consideration for the transfer should be unlawful. The section would be inapplicable where the object of the consideration for the transfer is itself not unlawful but the transfer may be ineffective on some other ground.

6. Coming to the Agra Tenancy Act, it is also quite clear that the transfer of occupancy lands has been merely declared to be void on the ground of the incompetency of the tenant to make the transfer and has not been actually forbidden or prohibited by law or declared to be otherwise illegal. Section. 20, Agra Tenancy Act (Act 2 of 1901) provided that the interest of an occupancy tenant is not transferable, that is to say, the interest cannot pass from the tenant except in the cases mentioned therein. Similarly Section 21 of that Act made it clear that where the interest of a tenant is not transferable he shall not be competent to transfer his holding. These provisions merely make an attempted transfer absolutely void and incapable of being enforced by a Court of law. The language of these two sections does not justify the inference that such a transfer has been expressly forbidden and prohibited by law. Nor can we widen the scope of the cases which fall under the category of being opposed to public policy.

7. Coming back to the question how much of the provisions of the Contract Act, are to be deemed to have been incorporated in the Transfer of Property Act, I must point out what has in some cases been overlooked that Section 24, Contract Act, has not been made applicable to transfers of immovable property. There is therefore no justification for stating broadly that even if the transfers of several items of properties can be split up and separate