ORDER
K.M. Natarajan, J.
1. These two revisions arise out of the common judgment passed by the learned Land Tribunal (Subordinate) Judge, Ramanathapuram at Madurai. The two revision petitioners, namely, Muthuswamy Thevar and Muthirulappan belong to K.Chettikulam village. The holdings of these two revision petitioners were determined by the Authorised Officer (Land Reforms) as 97.07 ordinary acres (Corresponding to 27.85 standard acres) in the case of Muthuswamy Thevar whereas 98.16 ordinary acres (Corresponding to 27.85 standard acres in the case of Muthirulappan. It may be mentioned here that the said Muthusami Thevar died and his legal representatives are added in the revision petition. The surplus land declared in the case of these two petitioners is 11.75 standard acres and 12.85 standard acres respectively as per draft statement prepared under Section 10(1) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, (Act 58 of 1961). Both of them filed objections in time and they contended that by virtue of registered sale agreements prior to the commencement of the Act, they have transferred certain lands, that they should be excluded from the purview of the Act for the purpose of fixing the ceiling and that if those lands are excluded, their case would not be attracted under the provisions of the Land Ceiling Act. The Authorised officer relying on the judgment of this high Court reported in C.R.P. No. 2848 of 1976 dated 14-12-1978, held that an agreement of sale will not have the effect of advancing the date of sale executed subsequently. Further, merely because the vendees had an agreement of sale in their favour or had been put in possession of the property, the position will not become different as far as the transfer of land under the deed is concerned. Hence the objections were negatived. As against that, they preferred an appeal before the Land Tribunal, namely, Sub Court, Ramanathapuram at Madurai, and there also they were unsuccessful. Hence these two revisions.
2. Learned Counsel appearing for the revision-petitioners. Mr.M.Velusami relying on Ewaz Ali v. Fridous Jehan contended that Section 53A of the Transfer of Property Act does not lay down that the contract must contain a direct covenant regarding transference of possession and it only requires that possession should have been taken in part-performance of the contract for transfer, and some act should have been done by the transferee in furtherance of it. The learned Counsel also relied on the decision reported in Ratanlal y. Krishan lal for the same proposition. The question now arises for consideration is, even if there is an agreement of sale and in pursuance of that possession has been given to the vendee, whether by virtue of the part performance under Section 53-A of the Transfer of Property Act the purchaser can acquire title to the properties so as to exclude the said properties from the holding of the land-holder. The learned Counsel for the revision petitioner relied on the decision in Authorised Officer (L.R.) Ramasamy Gounder (1983)1 M.LJ.261 where V. Balasubrahmanyan, J. held as follows:
The total effect of Section 53A is to effectuate a transfer as fully and as completely as if a conveyance had been effected although all that the parties have is a mere agreement in writing for the transfer of property followed by delivery of possession and a willingness on the part of the parties to complete the transaction. In the present case, the evidence on record shows that the agreement was in writing on stamp paper, that it contained the details of the terms of conveyance including consideration the advance received, the price of the lands to be conveyed and the time for completion of the transaction. The record also contains the materials to show that closely following on the heels of the agreement in writing, possession was handed over by the landlord to the purchasers. What is more, subsequently, as contemplated in the agreement of sale, regular conveyances were executed in which specific mention was made of the precedent agreement of sale dated 4th February, 1970, and the sale transaction was completed by payment of the balance of the purchase price.The present is a case to which the provisions of Section 53A of the Transfer of Property Act fit to perfection. The result is that is point of law the lands must be held to have been transferred on 4th February, 1970, or, at the latest, when possession had been handed over pursuant to the agreement.
That was a case where the agreement of sale was entered into on 4.2.1970 prior to the commencement of the Act on 15.2.1970.and the notified date was 2.10.1970. In between the two dates, the conveyance took place in the month of May, 1970. The learned Counsel relying on the above decision submitted that in the instant case there is ample evidence to hold that there was an agreement of sale by the land-holder and possession has been handed over on that date and as such, the sale deed, though executed subsequent to the commencement of the Act, the property is deemed to have been transferred on the date of the agreement in view of Section 53A of the Transfer of Property Act.
3. On the other hand, the learned Additional Government Pleader, Mr.T.N.Vallinayagam, drew my attention to various decisions of this court and submitted that an agreement of sale and a part performance in pursuance of it under Section 53A of the Transfer of Property Act would not convey title to the property till the sale deed is registered, and the decision of V.Balasubramaniyan, J. considered in the light of the decision of the Supreme Court, was dissented by Natarajan J. in The Authorised Officer (Land Reforms) v. Muthukumar and Ors. 93 L.W.481. The first decision is relied on by the learned Additional Government Pleader, Mr.T.N.Vallinayagam is the unreported decision in R.Shanmugarajan v. The Authorised Officer (Land Reforms) Tirunelveli, CR.P.No3557 of 1976, dt.17-11-1978 where in Ismail, J. (as he then was) held:
Very rightly the Tribunal declined to place any reliance on the kist receipts, because so long as there was no valid and effective transfer of property by means of a registered document, the mere production of kist receipts would not prove transfer of title.
The learned judge held:
The Tribunal found that the transfer of title in immovable property could not be effected by means of unregistered documents and that therefor no transfer had taken place actually.
Ramanujam, J., in C.R.P. No. 2848 of 1976, dated 14.12.1978, V.M.S. Mylammal v. Authorised Officer (Land Reforms) Coimbatore, C.R.P. No. 2848 of 1976, dt.14-12-1978 which is referred to in the order passed by the Authorised officer, held:
Section 53A of the Transfer of Property Act enable the purchaser who has taken possession of certain properties on the basis of agreement of sale to sustain his possession as against the vendor. That section does not create a title in favour of the purchaser merely by virtue of part performance.Therefore, I am unable to accept the theory of part-performance, and the petitioner cannot say that she has been divested of her title before the commencement of the Act in respect of the lands sold in favour of Sadasivam.
Natarajan, J., (as he then was) in the Authorised Officer, (Land Reforms), Erode v. Muthukumar, 93 L.W. 481 considered a similar question and also the decision of the Supreme Court in The Authorised Officer, Thanjavur v. Naganntha Iyer : [1979]3SCR1121 .
Merely because he had an agreement of sale in his favour or had paid major portion of the consideration or had been put in possession of the property agreed to be sold, the position will not become different in so far as the transfer of land under the deed is concerned. He may have acquired some rights in law and equity to obtain specific performance and also to safeguard his possession of the land, but that will not mean that the transfer of interest amounting to a sale taken place even before the sale deed was executed in his favour. The resultant position is that the first respondent in each of the cases had continued to be the owner of the land till the sale was effected in favour of the transferees. Once this conclusion is reached then it follows that the extent of the land that was sold has to be included in the holdings of the seller.
Consequently, in the above case, the extent of the land that was the subject matter of the agreement of sale was held liable to be included in the holdings of the seller. In view of the majority view of the various learned Judges of this court, in regard to the scope of Section 53-A of the Transfer of Property Act, I am of the view that the mere fact that there was an agreement to sell the property by the land-holder to a third party and in pursuance of the same the purchaser was in possession of the property does not mean that transfer was effected on the date of the agreement itself. Delivery of possession of property can be made only to protect possession of the property by the vendee and by no stretch of imagination can it be said that there was a sale merely because possession was delivered. Title can be transferred only by means of registered document of sale and till the agreement of sale is converted to document of sale, it does not convey any title. Hence, I am in respectful agreement with the majority view of the learned Judges in the decisions quoted above and I dissent with the view of the learned judge, Bealasubramanyan, J. in 19831.M.L.J.261. Further the Supreme Court decision reported in Authorised Officer, Thanjavur v. Naganatha Iyer : [1979]3SCR1121 clearly sets out the law that so far as the transfers of land between 6-4-1960 and 2.10.1962 i.e. the period of commencement of the Act and the notified date, bonafide executed or not, are concerned, they are liable to be declared void by the Authorised Officer if he finds that the transfers defeat any of the provisions of the Act. It is relevant to consider the scope of Section 22 of the Act. The said section clearly interdicts all kinds of conveyance, such as transfers by sale, gift, exchange, surrender, settlement in any other manner and includes also a transfer by partition. The only kinds of transfers that are accepted are a gift made in contemplation of death and bequest. When even a partition has been treated as a transfer, in spite of the fact that the parties to the partition would undoubtedly have a right and interest as co-partners or co-owners of the properties that are partitioned, a person who has obtained an agreement of sale cannot be heard to say that the sale in his favour subsequent to the coming into force of the Act will not amount to a transfer within the meaning of Section 22 of the Act. For all these reasons, I am of the view that both the forums have correctly applied the proposition of law laid down in various decisions to the facts of this case and rightly rejected the objections holding that the agreement of sale, even though it is accompanied by possession and contradicts Section 53-A, would not amount to transfer on the date of the sale which was prior to the commencement of the Act. For all these reasons, I confirm the findings of both the courts below. I do not find any irregularity with the impugned order. Consequently, both the revisions fail and stand dismissed. No order as to costs.