JUDGMENT Wali Ullah, J.
1. This is an appeal by the plaintiffs against the decree of the lower appellate Court dismissing the claim with costs. It arisen under the following circumstances. The plaintiffs took a mortgage of some property from the defendants on 9th August 1926. In due course they instituted a suit No. 437 of 1932, and obtained a decree on the foot of that mortgage on 6th December 1932. They executed the decree and realised part of their decretal amount. Subsequently they took proceedings for a declaration that the decree was executable against other property of the defendants under Order 34, Rule 6, Civil P.C. Thereafter they sought the execution of the decree against the property in suit. The decree was transferred to the Collector and it appears that the Collector acting under Section 5, U.P. Regulation of Sales Act, (Act 26 of 1934) granted them, what is described as a sale certificate substantially in the form in which sale certificates are issued under the provisions of Order 21, Rule 94, Civil P.C. It appears further that formal possession was obtained by the plaintiffs-appellants over this property on 7th February 1936 but they failed to get actual possession; hence they instituted the present suit for actual possession of the property in dispute. The suit was contested and various pleas were set up in defence. The Court of first instance decreed the claim with costs on 8th September 1941. Against that decree the defendants filed an appeal to the lower appellate Court. The learned civil Judge in appeal came to the conclusion that the so-called document of title obtained by the plaintiffs-appellants did not convey title to them in respect of the property in suit. He accordingly allowed the appeal, set aside the decree of the Court of first instance and dismissed the suit with costs. The plaintiffs have come up in second appear to this Court. A learned Judge of this Court has referred this case for decision to a bench of two learned Judges.
2. We have heard learned Counsel for the appellants at length. The only point which has to be decided in this appeal is whether the document described as sale certificate (Ex. 4) dated 23rd January 1936 conveyed a good title to the plaintiffs-appellants. Section 5, Regulation of Sales Act, under which the transfer in favour of the plaintiffs-appellants purports to have been effected requires 'that the Collector shall transfer...in full satisfaction of the decree.' The sale certificate, Ex. 4, does not in terms purport to convey any property to the plaintiffs-appellants. What it purports to do is it certifies that the plaintiffs appellants are declared to be the purchasers of a certain fraction of the share in Khewat No. 5 by means of the transfer of property. In effect it merely certifies a transfer of property which has already taken place. This form of sale certificate is appropriate only to a sale which has taken place in execution of a decree under the provisions of the Civil Procedure Code where, by Section 65, it is declared that the immovable property sold in execution of a decree where such sale has become absolute shall be deemed to have vested in the purchaser from the time when the property was sold. It is also provided by order 21, Rule 94 that when sale in execution of a decree has been confirmed and has become absolute the Court shall grant a certificate in the form mentioned above specifying the property sold and the name of the person who at the time of the sale is declared to be the purchaser. This form of sale certificate is, as indicated above, not at all appropriate to a transfer made by the Collector under Section 5, U.P. Regulation of Sales Act. Further more it is clear that the transfer of property worth more than Rs. 100 in value, as was the case here, required a written instrument and under the provisions of the Registration Act, such a document required registration. Section 49, Registration Act, makes it clear that such a document of transfer will not convey title to the transferee. Learned Counsel for the appellants has tried to base his arguments on the equitable doctrine of part performance as embodied in Section 53A, T.P. Act, but it is perfectly clear that the plaintiffs-appellants who have instituted the present suit for possession and who take their stand upon the title which they purport to have acquired by means of the so-called transfer made by the Collector -as embodied in the sale certificate, Ex. 4- cannot take advantage of the rule laid down in Section 53A, T.P. Act. The provisions of Section 53A are meant only to be used as a shield by a person in possession who in pursuance of an inchoate deed of transfer has failed to secure a good title. The benefit of the doctrine of part performance is not available to the plaintiff who seeks to acquire a valid title to the property dealt with under a transaction which remains inchoate. The proviso to Section 49, Registration Act, added by the amending Act of 1926 does not also help the plaintiffs-appellants.
3. In view of the above, it is quite clear that the appeal has no force and I am satisfied that the suit was entirely misconceived. In the result the appeal is dismissed with costs throughout.
Braund, J.
4. I agree and should only wish to add that, to my mind, the provisions of Section 5, U.P. Regulation of Sales Act, 1934, which require that the Collector "shall transfer" the land, mean that it shall be transferred to the purchaser by the specific act of the Collector, and not by operation of law or By means of some vesting process under the provisions of Section 65, Civil P.C. I do not think that a positive obligation on the Collector to "transfer" is satisfied by a mere vesting operation of law under Section 65, Civil P.C. or by the making either of an order confirming a sale under Order 21, Rule 92, of the schedule to the Civil Procedure Code. Neither of these things amounts to a "transfer" made "by" the Collector. At best they are steps in a vesting process under the machinery of the rules relating to execution.
5. When, therefore, the United Provinces Regulation of Sales Act speaks of a "transfer," in my opinion it means a positive transfer in the sense provided by the Transfer of Property Act, 1882, That is enough, I think, for the decision of this appeal. But I should desire to point out that certain rules under Section 11(1), U.P. Regulation of Sales Act, have been made by the Provincial Government, under Rule 8-A of which a particular form of transfer has been provided. In so far as Rule 8-A does not differ from Section 54, T.P. Act, 1882, it would appear to me to add nothing to Section 5, U.P. Regulation of Sales Act. But in so far as under Rule 8-A there is no exception from registration for transfers on sale of property of which the value is less than Rs. 100, I think, a question may possibly arise whether to that extent it does not cease to be a" "rule" and comes into conflict with Section 5 itself. That, however, does, not actually arise in the present case. I agree in thinking that this appeal should be dismissed and that the respondent is entitled to his costs throughout.