JUDGMENT J.L. Kapur J. 1. This is an appeal by special leave against the judgment and decree of the High Court at Nagpur passed in Second Appeal No. 720 of 1945 confirming the decree of the District Judge. In the suit out of which this appeal has arisen the appellant was defendant No. 1 and the respondents were the plaintiff and defendants Nos. 2 and 3 and the dispute relates to pre-emption on the ground of co-occupancy which falls under Chapter XIV of the Berar Land Revenue Code, 1928, hereinafter called the Code. 2. On April 10, 1943, D.B. Ghaisas and his mother Ramabai entered into two contracts of sale with the appellant, one in regard to Survey Nos. 5, 14 and 16 for a sum of Rs. 10,000 out of which Rs.2,000 was paid as earnest money and the other in regard to Survey No. 15/1 for Rs.8,500 out of which Rs.500 was paid as earnest money On April 16, 1943 the vendors executed a registered sale deed in regard to Survey Nos. 5, 14 and 16 and the balance of the price was paid before the Registrar. On April 22, 1943 the vendors executed a lease of Survey No, 15/1 for 14 years in favour of Kisanlal and Sitaram who were defendants Nos. 2 and 3 in the suit and are respondents Nos. 2 and 3 in this appeal. On April 24, 1943 the vendors executed a fresh agreement of sale in respect of the same field which according to the agreement was to be diverted to non-agricultural purposes and thereafter a sale deed was to be executed when it was so diverted. The appellant was to pay the costs of the diversion as well as the premium. In pursuance of this agreement the vendors applied to the Deputy Commissioner, Akola, on August 12, 1943 for diversion under section 58 of the Code and sanction was accorded on January 22, 1944 subject to payment of premium of Rs.9,222, and other conditions. The appellant was to pay the costs of the diversion as well as the premium. In pursuance of this agreement the vendors applied to the Deputy Commissioner, Akola, on August 12, 1943 for diversion under section 58 of the Code and sanction was accorded on January 22, 1944 subject to payment of premium of Rs.9,222, and other conditions. The appellant's case is that as agreed the vendors were paid this money for deposit and it was deposited in the Treasury under Challan No. 68 but there is no finding in favour of the appellant although the trial Court and the District Judge seem to have proceeded on the promises that this amount was deposited but in the circumstances of this case it is not necessary to go into this matter. On February 1, 1944 the sale-deed was executed by the vendors in favour of the appellant and the consideration in the sale-deed was Rs. 17, 722. 3. On September 11, 1943 i.e. before the sale-deed was executed the respondent, Shridhar, brought a suit for pre-emption against the appellant on the allegation that he had a co occupancy in the survey number in dispute--bring the owner of Survey No. 15/2. In the plaint it was alleged that the transaction of contract under the documents of April 10, 1943 and April 24, 1943 constituted a sale and therefore it was subject to respondent Shridhar's prior right of pre emption. In was also alleged that the price was not fixed in good faith These allegations were denied. Both the trial Court and the District Judge held that respondent Shridhar was entitled to pre-empt and determined the fair consideration to be Rs. 3,306. The suit was, therefore, decreed by the trial Court and on appeal by the District Judge. The appellant took an appeal to the High Court which also confirmed the decree of the subordinate courts. 4. The High Court has held that the transaction was a sale which was subject to pre-emption and that the failure to execute and register a sale deed was a subterfuge to defeat the right of pre-emption. It also held that the proceedings taken for conversion of agricultural land into non agricultural land were pen-dente lite and as the right of pre-emption had already accrued, it could not be defeated by subsequent acts of the vendor and the vendee. It also held that the proceedings taken for conversion of agricultural land into non agricultural land were pen-dente lite and as the right of pre-emption had already accrued, it could not be defeated by subsequent acts of the vendor and the vendee. The High Court further held that as the order of the Sub-Divisional Officer allowing conversion was a conditional one the land could not be said to have been irrevocably diverted to non-agricultural purposes. The decree of the subordinate Courts was confirmed and against that judgment the appellant has come to this Court in appeal by special leave. 5. The first question for decision is whether a right of pre-emption had accrued to respondent Shridhar under the provisions of the Code Previous to the cession of Berar by the Nizam of Hyderabad to the British Government in 1853, the Mohamedan rule of pre-emption was, according to one view, in force in tie Province of Berar and it continued to be so till the: Berar Land Revenue Code of 1896 came into operation as from January 1, 1897. On the other hand, according to the view of two writers on the Berar Land Revenue Code of 1896, the Mohamedan Law origin of the right of pre-emption does not seem to be well founded. In the annotation of the Berar Land Revenue Code of 1896 Mr. E. S. Reynolds wrote In 1896 that although the right of pre-emption in regard to agricultural land on occupancy tenures had been recognised In Berar, the right was not based on Mohamedan Law nor did it appear to be ancient and immemorial custom.. It seems to have been evolved from a ruling of the Resident acting as the High Court based on rule 10 of the Sub-tenancy Rules. According to Hirurkar (Land Revenue Code pr.126-127) also the right of pre-emption was not based on the Mohamedan law and did not originally exist In Berar. It seems to have been brought from the land laws of the Punjab or the North-West Provinces. In the Berar Settlement Rules and Berar Sub-tenancy Rules of 1866 the right of pre-emption attached to relinquishment of shares in the case of ryots of joint holdings and applied to co-sharers and this is different from the rule of Mohameden law. 6. It seems to have been brought from the land laws of the Punjab or the North-West Provinces. In the Berar Settlement Rules and Berar Sub-tenancy Rules of 1866 the right of pre-emption attached to relinquishment of shares in the case of ryots of joint holdings and applied to co-sharers and this is different from the rule of Mohameden law. 6. By section 205 of the Berar Land Revenue Code of 1896 the tight of pre-emption arose when a co-occupant in any survey number transferred by sale foreclosure of mortgage or relinquishment in favour of a specified person for valuable consideration and it vested in every other co -occupant of the survey number. It will thus be seen that the light of pre-emption, which under Mohamedan law attaches to sales only, was also applicable to foreclosure of mortgages and relinquishment for valuable consideration. In the year 1907 the Transfer of Property Act (Act XIV of 1882) was extended to the Province of Berar. In 1928 the Code was re-enacted and it further extended the provisions in regard to preemption in Chapter XIV. Under section 174 pre-emptive rights arise in respect of transfers of unalienated land held for agricultural purposes and before an occupant could transfer the whole or any portion of his interest he had to give notice of his intention to all other occupants. Under sections 176 to 178, the right of pre-emption arises in the case of transfers by way of sale, usufructuary mort gages, by lease for a period exceeding fifteen years or in the case of final decree for foreclosure in a case of mortgage by conditional sale. Under section 183 every occupant in survey number shall have the right to pre empt the interest transferred by civil suit. Under section 184 the right also arises in the case of an exchange. Thus it will be seen that the right of pre-emption has been by statute extended far beyond what was contemplated under Mohamedan law and also beyond what was recognised in the Berar Settlement Rules, Berar Sub-tenancy Rules and in the Code of 1896. 7. The High Court held that the word 'sale' in section 176 of the Code had a wider connotation than what it had under section 54 of the Transfer of Property Act. 7. The High Court held that the word 'sale' in section 176 of the Code had a wider connotation than what it had under section 54 of the Transfer of Property Act. That was based on the judgment of Vivian Bose J. (as he then was) in Jainarayan Ramgopal Marwadi vs. Balwant Maroti Shingore and another 1938 NLJ 379 which had been approved in later judgments of that Court. It was also of the opinion that the transaction In dispute gave rise to the exercise of the right of preemption under the rule laid down In Begum and others vs. Mohammad Yakub and another ILR 16 All. 344, and as in the instant case there was in reality a sale although a registered sale deed had not been executed the right of pre-emption could not be defeated by the device that the vendors and the appellant adopted. 8. According to section 2 of the Transfer of Property Act which at the relevant time was In operation in Berar, section 34 is not one of the sections within Chapter 2 of that Act and therefore it overrides Mohamedan law and the provisions of that section, being exhaustive as to modes of transfer, governs all tales in that Province and no title passes on a sale except as provided in that section. Sale is there defined as transfer of ownership for a price paid or promised or part-paid or part promised and in the case of sale of tangible immovable property of Rs.100 or more sale can only be made by a registered instrument. That is clear from the language of the section itself where it is stated: - Section 54-Sale how made- "Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible things, can be made only by a registered instrument. It was held by the Privy Council in Immudi-pattam Thirugnana S.O. Kondema Naik and mother vs. Periya Dorasami and another 28 IA 46, which was a case of a zamindari estate that It would not be transferred except by a registered instrument. It was held by the Privy Council in Immudi-pattam Thirugnana S.O. Kondema Naik and mother vs. Periya Dorasami and another 28 IA 46, which was a case of a zamindari estate that It would not be transferred except by a registered instrument. But it was submitted that sale when used in connection with the general law of pre-emption is not to be construed in the narrow sense in which it is used in the Transfer of Property Act and that, that bad been accepted by the Judicial Committee in Sitaram Bhaurao Deshmukh vs. Haul Sirajul Khan 48 I A 475, where the observations of Sir John Edge C. J., in Begum and others vs. Mohammad Yakub and another ILR 16 All. 344. had been approved, 9. In Sitaram Deshmukh's Case 48 IA 475 one of the two Mohamedan co-sharers in Bombay by an agreement dated October 14, 1908, agreed to sell his share to a Hindu. The agreement was expressly subject to a right in the co-sharer to pre-empt. The vendor informed his co-sharer that he had sold his share and the latter thereupon, after the customary formalities on October 15, 1908 claimed to recover the share from the purchaser. The sale deed was executed on November 9, 1908 and then a suit was filed by the pre-emptor. It was held that the co-sharer had the right to pre-empt in accordance with the intention expressed by the parties to the sale and that intention was to be looked at to determine what system of law was to apply and what was to be taken to be the date of the sale with reference to which the formalities were performed. The question there really was as to what was to be taken as a sale sufficient to justify the pre-emptor in proceeding at once to the ceremonies audit was in that connection that the following observations of Sir John Edge in Begum and others vs. Mohammad Yakub and mother ILR 16 All. The question there really was as to what was to be taken as a sale sufficient to justify the pre-emptor in proceeding at once to the ceremonies audit was in that connection that the following observations of Sir John Edge in Begum and others vs. Mohammad Yakub and mother ILR 16 All. 344 were quoted:- The Chief Justice Sir John Edge, there observes, in connection with the question whether the Transfer of Property Act, which required registration, had altered the principle of Mohamedan law, which determined what was a sale for the purposes of the date in reference to which the ceremonies should be performed; I cannot think that it was the intention of the Legislature in passing Act No. IV of 1882 (the Transfer of Property Act)' to alter directly or indirectly the Mohamedan Law of pre-emption as it existed and was understood for centuries prior to the passing of Act IV of 1882. That at all events is in harmony with the conclusion come to by the High Court at Bombay. The conclusion is, that you are to look at the intention of the parties in determining what system of law was to be taken as applying and what was to be taken to be the date of the sale with reference to which the ceremonies were performed. But it was argued for the respondents that the Privy Council had not only approved the observations of Sir John Edge C. J. in Begum and others vs. Mohammad Yakub and another ILR 16 All. 344, but has also approved the view of the Calcutta High Court in Jadu Lal Sahu vs. Janki Koor ILR 35 Cal. 575. That was a case from Bihar where the right of pre-emption under Mohamedan law was judicially recognised in regard to Hindus also. The question whether the sale which was to be preempted was the one under section 54 of the Transfer of Property Act or the one under the principles of Mohamedan law does not seem to have been the point raised in that case. It may be pointed out that both in the case which went to the Privy Council Sitaram Bhaurao Deshmukh vs. Jiaul Sirajul Khan 48 IA 475, and the Calcutta Case Jadulal Sahu vs. Janki Koor IL R 35 Cal. 575, sale deeds were executed and registered before the suits to enforce pre emption were filed. It may be pointed out that both in the case which went to the Privy Council Sitaram Bhaurao Deshmukh vs. Jiaul Sirajul Khan 48 IA 475, and the Calcutta Case Jadulal Sahu vs. Janki Koor IL R 35 Cal. 575, sale deeds were executed and registered before the suits to enforce pre emption were filed. In the latter case the Kabala was on July 23, 1904 and the ceremonies were performed after that date. 10. In the Allahabad case Begum and others vs. Mohammad Yakub and another ILR 16 All. 344, there was a verbal sale of a house which was followed by possession but there was no registered document. No doubt there the learned Chief Justice in the majority judgment did say that to import into the Mohammedan Law of Pre-emption the definition of the word "sale" with restrictions contained in section 54 of the Transfer of Property Act would materially alter Mohammedan Law of pre-emption and afford fraudulent persons to avoid the law of pre-emption; with- this view Bannerji J. did not agree. But in our opinion the transfer of property where the Transfer of Property Act applies has, as was held by the Privy Council also, to be under the provisions of the Transfer of Property Act only and Mohammedan law of transfer of property cannot override the statute law. Mahmood J. in Janki vs. Girijadana and another ILR 7, All. 482 though in a minority (four Judges took a different view) was of the opinion that a valid and perfected sale was a condition precedent to the exercise of the right of pre-emption and until such sale has been effected the right of pre-emption could not arise. 11. Section 17 read with section 49 of the Registration Act shows that a transfer of immovable property where it is worth Rs.100 or more requires registration and unless so registered, the document does not affect the property and cannot be received in evidence. The following observations of Mahmood J. from Janki vs. Girijadatta and another I.L.R 7, All. 482 are very apposite: If a valid and perfected sale were not a condition precedent to the exercise of the pre-emptive right, consequences would fold low which the law of pre-emption does not contemplate or provide for. The following observations of Mahmood J. from Janki vs. Girijadatta and another I.L.R 7, All. 482 are very apposite: If a valid and perfected sale were not a condition precedent to the exercise of the pre-emptive right, consequences would fold low which the law of pre-emption does not contemplate or provide for. In this very case, supposing the so-called vendor, notwithstanding the application of the 15th August, 1882 (which cannot amount to an estoppel under the circumstances) continues or re-enters into possession of the property, it is clear that the so-called vendee would have no title under the so-called sale to enable him to recover possession the transaction being, by reason of section 54 of the Transfer of Property Act, ineffectual as transfer of ownership. The right of pre-emption being only a right of substitution the successful pre-emptor's title is necessarily the same as that of the vendees and if the vendee took nothing under the sale the pre emptor can take nothing either; and it follows that if the vendee could not oust the vendor, the pre-emptor could not do so either; because in both cases the question would necessarily arise whether the sale was valid in the sense of transferring ownership. Again, if notwithstanding the pre-emptive suit, such as this, the so-called vendor, who has executed an invalid sale which does not in law, divest him of the proprietary right, subsequently executes a valid and registered sale deed in favour of a co-sharer than the pre-emptor or in favour of a purchaser for value without notice of the so called contract for sale it is difficult to conceive how the pre-emptor who has succeeded in a suit like the present, could resist the claim of such purchaser for possession of the property. Under section 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immovable property and consequently the contract in the instant case created no interest in favour of the vendee and the proprietary title did not validly pass from the vendors to the vendee and until that was completed no right to enforce preemption arose. As we have said earlier where-ever the Transfer of Property Act is in force, Mohamedan Law or any other personal law is Inapplicable to transfers and no title passes except in accordance with that Act. As we have said earlier where-ever the Transfer of Property Act is in force, Mohamedan Law or any other personal law is Inapplicable to transfers and no title passes except in accordance with that Act. Therefore when the suit was brought there was no transfer by way of sale which could be subject to pre-emption. 12. It was next contended that the appellant was guilty of fraud in that in order to defeat the right of the preemptors a deed of sale was not executed although as a matter of fact price had been paid, possession had passed and for all intents and purposes the appellant had become the owner of the property and that conduct such as this would defeat the very law of pre-emption. The right to preempt the sale is not exercisable till a pre-emptible transfer has been effected and the right of pre-emption is not one which is looked upon with great favour by the Courts presumably for the reason that It is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by all legitimate means. In the Punjab where the right of pre-emption is also statutory the Courts have not looked with disfavour at the attempts of the vendor and the vendee to avoid the accrual of right of pre-emption by any lawful means and this view has been accepted by this Court in Bishansingh and others vs. Khajan Singh and another 1959 SCR 878 at p. (884) where Sub-barao J. observed: The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place. In the present case the transaction of sale had not been completed until February 1, 1944 when the sale-deed was executed. Anything done previous to it could not ordinarily be said to be a fraud to deprive a pre-emptor, from the exercise of his right of preemption) There are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. Anything done previous to it could not ordinarily be said to be a fraud to deprive a pre-emptor, from the exercise of his right of preemption) There are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre-emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means. 13. It was then submitted that the sale-deed had as a matter of fact, been executed on February 1, 1944; but respondent Shridhar brought the suit not on the cause of action arising on the sale dated February 1, 1944 but on the transaction of April 10, 3943 coupled with that of April 24, 1943 which being mere contracts of sale created no interest in the vendee and there was no right of pre-emption in respondent No. 1 which could be enforced under the Code. Mr. Chaterjee urged that it did not matter if the sale took place later and the suit was brought earlier but the suit as laid was one to pre-empt a Sale of April 1943 when, as a matter of fact, no sale had taken place. If respondent Shridhar had based his right of pre-emption on the basis of the sale of February 1, 1944 the appellant would have taken such defences as the law allowed him. The defence in regard to the conversion of the land from agricultural into non agricultural site which negatives the right of pre eruption would then have become a very important issue in the case and the appellant would have adduced proper proof in regard to it. The right of pre-emption is a weak right and is not looked upon with favour by Courts and therefore the Courts could not go out of their way to help the pre-emptor. 14. In our opinion the judgment of the High Court was erroneous and we would there tore allow this appeal, set aside the judgment and decree of the High Court and dismiss the suit with costs throughout. Appeal allowed