P L D 1956 (W, P (PLP)

YAQUB ALI, J.‑This is an appeal by Ibrahim plaintiff against the concurrent decrees of the two Courts below dismissing his suit for a declaration that alienation of land measuring 200 kanals and one residential ihata, situated in Chak No. 73‑A/5‑L, District Montgomery, by Mst. Rajji by two separate gift deeds in favour of her son Rahmat Ullah and daughters, Mst. Rahim Bibi and Mst. Bir Bibi, being opposed to the rule of customary law did not affect his reversionary rights in the suit land and ihata. The facts giving rise to this appeal are these: Mst. Rajji defendant is the widow of Karam Din. She succeeded to the occupancy rights in the suit land and ihata on the death of her son Yusuf Ali. On the 30th of March 1943, she having complied with the terms and conditions of the tenancy pres cribed under the Colonization of Government Lands (Punjab) Act, deposited a sum of Rs. 1,009 for the purchase of proprie tary rights. The amount was deposited under the permission of the Collector, vide copy of the deposit receipt (Exh. D. 3). According to an endorsement made thereon and the oral statement of S. Mustafa Hussain (P. W. 7) a Clerk in the Office of the Colony Assistant, Montgomery, as soon as the deposit was made, Mst. Rajji was exempted from payment of malkana dues which heretofore she was required to pay to the Government as an occupancy tenant. A formal sale deed was executed in her favour by an officer nominated by the Governor in this behalf on the 26th of September 1944. In the meantime, Act No. VI of 1944, whereby section 30‑A was added to the Colonization of Government Lands (Punjab) Act, came into force on the 12th of June 1944 which, inter alia, provided that notwithstanding any custom and the provisions of any law to the contrary, when after the commencement of the said amending Act, proprietary rights in any land are acquired by a female tenant, her rights of alienation of any such land shall be the same, if she succeeded to the tenancy directly or indirectly from a male tenant, as if the proprietary rights had been acquired by the last male tenant and she had succeeded to such rights as his heir. On the 20th of April 1950, Mst. Rajji conveyed the suit land and the ihata to the defendants Nos. 2 to 4 by way of gift, and aggrieved by this alienation, the plaintiff: who is a second‑degree collateral of Yusuf Ali, the last male holder, instituted the suit for a declaration in the terms mentioned above. The question which fell for decision in the suit was whether Mst. Raiji acquired the proprietary rights in the suit land on the 30th of March 1943 when she deposited the pro prietary dues on the 26th of September 1944 when the formal sale deed was executed in her favour. In the former case the gift in question was not open to a challenge by the plaintiff but in the latter case, Mst. Rajji had no right to alienate the suit property and the plaintiffs suit was liable to be decreed. Relying upon a long string of authorities of this Court, the two Courts below held that Mst. Rajji acquired the proprietary rights on the date when she deposited the pro prietary dues, that is, before the coming into force of the amending Act, and as a result thereof dismissed the plaintiff's suit. Mr. Mehar Haq, learned counsel for the plaintiff‑appellant, however, maintained that the earlier decisions of this Court did not lay down the law correctly, because the provisions of subsection (3) of section 175 of the Government of India Act, 1935, and the corresponding provisions in the earlier Constitution Act were not taken into consideration. Accord ing to his interpretation of that subsection, a grant, sale, disposition or mortgage of any property vested in His Majesty could be made in writing only by such persons and in such manner as the Governor‑General or the Governor, as the case may be, may direct or authorise. A fortiori unless a sale deed was executed, no transfer of proprietary rights in favour of the tenant could take effect. In support of this contention the learned counsel cited a number of authorities. In Municipal Corporation of the City of Bombay v. The Secretary of State for India in Council (I L R 58 Bom. 660) one of the questions which arose for decision was whether the terms of section 30 (2) of the Government of India Act, 1919, which were replac ed by section 175 (3) of the Government of India Act, 1935, were mandatory and not merely directory and whether every contract of the nature referred to in that subsection, on behalf of the Government must be entered into on behalf of the Secretary of State in Council and should be executed by an officer specially empowered to do so in order to take its legal effect. The validity of the contract set up by the opposite party was challenged by Mr. Coltman, who appeared for the Secretary of State, on the ground that the aforementioned provisions of the Government of the India Act were mandatory and not merely directory, and in so far as the contract was not entered into by an officer authorised by the Governor‑General in Council by a resolution, it was not binding on the Secretary of State. Mr. Justice Mirza, who heard that case on the original side, agreed with the contention of Mr. Coltman and held that the contract was not binding on the Secretary of State. In Krishnaji Nilkant v. Secretary of State (A I R 1937 Bom. 449), the material facts, on which the decision in this case proceeded, were these: In the beginning of February 1930, there was a general strike of railway employees which was joined by the plaintiff. Soon thereafter there were negotiations between the All India Railway men's Federation on behalf of the employees and the Member of Commerce and Industry on behalf of the Government. A settlement was arrived at between the parties of which the terms were embodied in a communique which, inter alia, provided that the Railway Administration will not refuse to take back into service any employee merely because he went on strike. The plaintiff presented himself for duty prior to the expiry of the date prescribed in the said communique and his name was entered in the waiting list on the plea that his post had been perma nently filled during his absence. Aggrieved by this, the plaintiff filed a suit against the Secretary of State to recover a certain amount of damages for the breach of contract to re‑employ him. The suit was dismissed on the ground that there was do contract enforceable against the Secretary of State upon which the plaintiff could sue by reason of the provisions of section 30 of the Government of India Act, 1919. On appeal, the learned judges at first came to the conclusion that the communique referred to above represented the terms of an offer on behalf of the railway to employ the persons on strike and' the presentation of the plaintiff for duty con stituted the acceptance of that offer; therefore; prima facie, all the ingredients of a completed contract were present in the case. The provisions of subsection (2) of section 30 of the Government of India Act, 1919, were however held to be a bar to the plaintiff's suit because in the opinion of their Lord ships, a contract, which fell within .the ambit of section 30 (2) to be valid and binding, must be by a deed executed on behalf of the Secretary of State and in his name by the proper authority. The plaintiff's suit was also found liable to be dismissed under section 96‑B of the Government of India Act, 1919, because as a member of the civil service the plaintiff held his office during the pleasure of His Majesty. In Sankara Mining Syndicate v. Secretary of State (A I R 1938 Mad. 749), the plaintiff founded its claim in the suit on an order passed by the Board of Revenue granting a mining lease to it. It was contended that the order passed by the Board amounted to an acceptance of the offer made by the plaintiff to take the lease on the usual terms resulting in a binding contract which entitled the plaintiff to a decree for specific performance. The contention was repelled by the learned judges on appeal on the ground that under section 30 (2)'of the Government of India Act, 1919; a contract was required to be executed by the person and in the manner directed by the Governor General in Council and until it was so executed, it could not be enforced by or against the Secretary of State in Council. The Governor‑General in Council had prescribed rules governing the execution of the contract with the local Government which required a formal lease to be executed by the Collector: Therefore, until a formal lease had been signed by the Collector, there could be no enforceable contract against the Secretary of State in Council. It therefore followed that the Board of Revenue was not competent to grant a mining lease to the plaintiff which the Collector alone could do; of course the Board of Revenue was delegated the powers to grant mining leases, but it could not have the effect of derogating from the provisions of section 30 (2) and the rules made thereunder by the Governor‑General in Council. The Board could, therefore, only pass orders for the grant of mining leases but the actual grant was to be made by the Collector and not by the Board. We may notice at this stage that the provisions of subsection (3) of section 175 of the Government of India Act, 1935, are substantially different from those of section 30 (2) of the Government of India Act, 1919. Whereas section 30 (2) expressly provides that a contract if so executed may be enforced by or against the Secretary of State, there is no corresponding provision in subsection (3) of section 175 of the latter Act. All the three authorities referred to above are, therefore, distinguishable on this ground alone. In Devi Parsad Sri Krishna Parsad Ltd. v. Secretary of State (A I R 1941 All. 377), the plaintiffs deposited a sum of Rs. 25,000 with the Conservator of Forests, who was acting in the transaction on behalf of the Secretary of State, as security money for the performance of a contract of lease and sale of forest produce. The amount was forfeited by the Conservator of Forests and the plaintiff sued for its refund on the ground that the con tract for the performance of which the said sum was deposited remained incomplete. It was, inter alia, pleaded that the agreement of the 12th of May 1931 was an oral agreement or at best evidenced by a series of letters and documents whereas section 30 (2) of the Government of India Act, 1919, required that the agreement should have been evidenced by a formal deed. The learned judges, who decided that case on appeal, held that at the time when the agreement was reached on the 12th of May 1931, the parties contemplated execution of a formal deed of lease and sale of the forest produce, but the mere fact that the parties contemplated execution of such a deed did not per se make the agreement of the 12th of May incomplete. Reliance was placed on the following passage from the famous judgment of Lord Parker in Von Hatzfedt Wildenburg v. Alexander ((1912) 1 Ch. Div. 284, at page 288):‑ "It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract con template the execution of a further contract between the parties, it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is un-fulfilled or because the law does not recognise a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored." This statement of law was approved by the Judicial Committee in Hukam Chand v. Ran Bahadur Singh (I L R 3 Patna 625), Harichand Mancharam v. Govind Laxman (I L R 47 Bom. 335) and Currimbhoy of Co. Ltd. v. L. A. Creet (1 L R 60 Cal. 980). Since the facts of the case before the learned Judges of Allahabad High Court were also governed by the provisions of section 30 (2) of the Government of India Act, 1919, they held that an oral agreement was not within the purview of that subsection because it implied exe cution of a document. As regards the form of the document their Lordships observed that there was a controversy on the question whether the contract should be expressed by a formal deed or whether it was a sufficient compliance of the statute if the agreement was in writing though not expressed by a formal deed. Their Lordships noticed that a good deal of Government business was being done in the form of tenders and acceptance of tenders, in which, till a very late stage, formal deeds were not drawn up. Therefore, however much desirable it may be to have a formal deed with regard to all the agreements made by the Government, they were not prepared to hold as a matter of law, that an agreement evidenced by tenders and acceptance of tenders or an agree ment evidenced by correspondence or other documents of informal nature, though fully established by evidence, must fail and be said to offend the terms of section 30 (2) of the Government of India Act, 1919. It was a sufficient compliance with the terms of section 30 (2) if the agreement was ex pressed in writing, and this writing might' comprise of a series of letters or a series of informal documents. Mr. Mehar Haq cited a few other authorities all of which are distinguishable on the difference of language between section 30 (2) of the Government of India Act, 1919, and section 175 (3) of the latter Act of 1935, and need not be adverted to. Subsection (3) of section 175 of the Government of India Act, 1935, reads as follows. "All contracts made in the exercise of the executive authority of the Federation or of a Province shall be ex pressed to be made by the Governor‑General, or by the Governor of the Province, as the case may be, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Gover nor‑General or Governor by such persons and in such manner as he may direct or authorise." In our opinion, the plain meanings of this subsection are that the contracts contemplated in it when required to be evidenced by a deed are to be expressed and drawn up in the manner prescribed therein and that such contracts are to be entered into by those persons who are authorised in that behalf by the Governor‑General or the Governor of the Province as the case may be. It does not ipso facto follow that oral contracts which may be otherwise permissible under law are to be rendered illegal. In the old Province of the Punjab, immovable property of any value situated without the limits of Municipal Committees could be alienated orally on payment of the sale price and delivery of possession. These conditions applied equally to the sale of immovable property by the Government. So far as movable property is concerned it' could be sold throughout the sub continent without evidencing it by a witness deed. Therefore, unless subsection (3) of section 175 expressly or impliedly purports to repeal all other laws to the contrary, the authority of the Government to enter into oral contracts of sale shall not be deemed to have been taken away. In the language employed in subsection (3) repro duced above we have found no evidence of that intention. In fact, by dropping the words "and if so executed may be enforce' by or against the Secretary of State in Council for the time being" which existed in old section 30 (2) of the former Act of 1919, the Parliament expressed its intention to the contrary. In a case of this nature, the contract of sale shall be complete as soon as the sale price is deposited by the tenant, subject' of course to fulfilment of the necessary terms and conditions provided in the Colonization of Government Lands (Punjab Act and the permission of the Collector, who is authorised to grant proprietary rights under the said Act. And if it‑ is contemplated by the parties that the sale shall be also A evidenced by a formal deed, then the manner in which that deed is to be executed shall be governed by they relevant provisions of section 175 (3) of the Government of India Act, 1935 which may be executed at any time after the completion of the sale. We, therefore, find that the sale in favour of Mst. Rajji was completed as soon as she deposited the sum of Rs. 1,O0QI for the acquisition of the proprietary rights. As a result of it, the plaintiff had no locus standi to challenge the alienation of the suit property because it was the absolute property of the donor. This appeal is accordingly dismissed with costs. A. H. Appeal dismissed.