JUDGMENT : ( 1. ) THIS second appeal is at the instance of the plaintiff whose suit for possession of certain agricultural lands has been dismissed by both the Courts below. ( 2. ) THE case of the plaintiff was that the suit lands had been orally sold to him by the defendant in the year 1956 for a consideration of Rs. 350 and possession was also delivered in that year. However, a formal deed of sale was executed on 24th November, 1960 and was registered. According to the allegations made in the plaint, despite oral sale and delivery of possession in the year 1956, the defendant dispossessed the plaintiff in the year 1963. The defendant denied the oral sale and delivery of possession in the year 1956 and also of dispossession in 1963. According to the defendant, the plaintiff was never in possession. It was, however, admitted that on 24-11-60, a sale deed (Ex. P-1)was executed and registered for sale of the agricultural lands for a consideration of Rs. 350. However, soon after the execution and registration of the deed of sale, the parties discovered that the aforesaid transaction was void, being in contravention of the provisions of section 165 sub-section (4) clause (b) of the m. P. Land Revenue Code, 1959 and as such the amount of consideration was returned to the plaintiff and both the parties treated the sale as cancelled. Thus, according to the defendant, there being no valid sale in favour of the plaintiff, he did not acquire any title. ( 3. ) AS mentioned in para 6 of the judgment of the lower appellate Court, it was conceded by both the parties that since the suit was instituted in the year 1966 and there was no question of adverse possession or the suit being barred by limitation, the questions, whether the plaintiff was in possession from 1956 to 1963 and whether he was dispossessed by the defendant in the year 1963, were immaterial. Admittedly, the plaintiff was out of possession on the date of the suit and the claim for possession in the present suit, being based on title claimed to have been derived from the defendant in transfer, he could succeed only on establishing valid title to the suit land by virtue of the transfer in his favour. Under these circumstances, before the lower appellate Court, only the following points arose for determination. Under these circumstances, before the lower appellate Court, only the following points arose for determination. (1) Whether the plaintiff purchased the lands orally in 1956 for a consideration of Rs. 350 ? (2) Whether the aforesaid sale could confer any title in favour of the plaintiff ? (3) Whether the sale deed dated 24-11-60, the execution and registration of which is not in dispute, was hit by the provisions of section 165 (4) (b) of of the M. P. Land Revenue Code ? ( 4. ) BEFORE this Court also, the aforesaid points were pressed. So far as the finding about the purchase of the suit land orally in the year 1956 is concerned, it is apparent that both the Courts below have concurrently found it in favour of the plaintiff. This finding is based on sufficient evidence. There is a recital in the sale deed dated 24-11-60 also to the effect that the land in question had been already sold about 4 years back for Rs. 350 to the plaintiff. In the absence of any explanation from the defendant, the Courts below were right in concluding that such oral transaction did take place. ( 5. ) SINCE the value of the property was more than Rs 100, it was not disputed that the sale could be effected only by a registered document. As such by the aforesaid oral sale in the year 1956, the plaintiff did not acquire any right of ownership of the suit land. ( 6. ) IN respect of the third contention, the argument was that the execution of the document dated 24-11-60 was in pursuance of the earlier transaction of the year 1956 and as such the same was not hit by the provisions of section 165 (4) (b) of the Code, which came into force on 2-10-1959. According to the appellant, the deed of sale though executed on 24-11-60, will relate back to 1956, in which year there was no such prohibition in the Code of 1954 then in force. Shri R. P. Verma, learned counsel for the appellant, contended that the transaction of oral sale could at least be treated as an agreement to sell. According to the appellant, the deed of sale though executed on 24-11-60, will relate back to 1956, in which year there was no such prohibition in the Code of 1954 then in force. Shri R. P. Verma, learned counsel for the appellant, contended that the transaction of oral sale could at least be treated as an agreement to sell. It was contended that the provisions contained in section 165 (4) (b) of the Code were not retrospective and therefore, the sale deed dated 24-11-60, being in pursuance of the earlier agreement of the year 1956, was not affected by the prohibition which was imposed later on. However, it was not in dispute that the transfer evidence by the sale deed (Ex. P-1) did result in a holding the area of which was below 10 acres of unirrigated land. Thus, the controversy was confined only to the question whether the transfer evidenced by the sale deed (Ex. P-1), being in pursuance of the agreement to sell, which took place prior to the enactment of section 165 (4) (b), could be hit by the said provision even if the actual sale deed was executed and registered after coming into force of the same. ( 7. ) IT will be proper to reproduce the relevant provisions of section 165 of the Code :- 165 (4 ). Notwithstanding anything contained in sub-section (1), no Bhumiswami shall have the right to transfer any land- (a) ** ** ** ** (b) If such transfer shall result in a holding the area of which is below 10 acres of unirrigated land. *** *** *** *** 165 (10 ). Notwithstanding anything contained in the Indian Registration act, 1908 (XVI of 1908) no officer empowered to register documents thereunder shall admit to registration any document which purports to contravene the provisions of this section. (11) Nothing in this section shall- (a) invalidate any transfer which was validly made; or (b) validate any transfer which was invalidly made before the coming into force of this Code. ***** *** *** (Italics is mine) ( 8. ) FROM the perusal of the language of the aforesaid provisions, it is clear that the prohibition contained therein is attracted if the transfer takes place subsequent to the promulgation of the aforesaid statutory provisions. ***** *** *** (Italics is mine) ( 8. ) FROM the perusal of the language of the aforesaid provisions, it is clear that the prohibition contained therein is attracted if the transfer takes place subsequent to the promulgation of the aforesaid statutory provisions. In my opinion, it is of no consequence whether the sale takes place in pursuance of a contract made before or after the enforcement of the Act. What is sought to be prohibited is the transfer. Manifestly enough, the restriction will not apply to transfers, which have already taken place prior to the enforcement of the aforesaid provisions. But in respect of the transfers, which have not taken place and the parties had simply entered into an agreement to effect the same in future, the position is different. The transfer, if affected after coming into force of the restrictive provisions will be definitely in contravention of the same. In order to attract the applicability of the restriction, what is important is the fact of transfer and not how the transfer has been brought about-whether by virtue of a contract made before or after the date of the enforcement of the Act prohibiting such transfers. In other words, it is not a case of retrospective operation of the enactment, because the provisions undoubtedly do not apply to transfer which had already taken place before the enforcement of the Act, but they do affect the existing rights of sales and purchase, whether those rights arise under a contract made before or after the coming into force of the provision of section 165 (4) (b ). It is not the date of the contract, which will determine the applicability of the provisions of clause (b) of sub-section (4) of section 165 of the Code, but the date of the sale taking place. If the date of sale is subsequent to the enforcement of the restrictive provisions of law, the transfer will be unlawful, being in contravention of the law. ( 9. If the date of sale is subsequent to the enforcement of the restrictive provisions of law, the transfer will be unlawful, being in contravention of the law. ( 9. ) WITHOUT expressing any opinion on the point that the ineffective oral sale can be treated as an agreement to sell, it would suffice to observe that even if the contention of the appellant, that the earlier oral transaction of the year 1956 should be treated as an agreement to sell, is accepted, the position does not improve, because the transfer was undoubtedly after the coming into force of the restrictive provision contained in section 165. Mere agreement to sell immoveable property does not create any interest in the immoveable property. It is simply annexed to the ownership of the land. This position is specifically clear from the provisions of section 54 of the Transfer of Property Act. ( 10. ) WHERE the performance of a contract to transfer immoveable property had been rendered unlawful by reason of some subsequent event, for instance, a legislation prohibiting such transfers, the contract would stand discharged. Due to the subsequent legislation, when the performance of the contract becomes unlawful, the parties are absolved from further performance of it. To such cases, the doctrine of frustration as contained in section 56 of the Contract act applies. As already observed earlier, the contract for sale of land does not by itself create any interest in the property, which is the subject-matter of the contract. It is also settled that the obligation of the parties to a contract for sale of land are the same in various respects as in other ordinary contract and consequently the doctrine of frustration is applicable to a contract for sale of land also. Reliance is placed on a case reported in Satyabrata Ghose v. Mugneeram Bangur and Co. and another, AIR 1954 SC 44 . In the present case, the contract for sale, even if any, became frustrated by the subsequent enactment prohibiting such sales and therefore, it could not be relied to contend that the transfer, though in clear contravention of law, was still valid because it was in pursuance of an agreement which was entered prior to the enforcement of the statutory prohibition. ( 11. ( 11. ) THE position regarding the applicability of the doctrine of frustration can be illustrated like thus : "where covenants to do a thing which was lawful at the time of agreement and subsequently a legislation comes in and hinders from doing it, the convenant is repealed. The convenant is also repealed when one agrees not to do an act or thing which was lawful to do an Act of Parliament subsequently comes in and compels him to do it. However, if one agrees not to do a thing which was at the time of agreement itself unlawful and subsequently a legislation comes in and makes it lawful to do it, the subsequent legislation will not repeal the convenant. " This has been stated by Maxwell at page 208 in "the Interpretation of Statutes" (11th Edition ). ( 12. ) FROM the provisions of sub-section (11) of section 165 of the M. P. Land Revenue Code, it is apparent that only such transfers, which have already been made prior to the coming into force of the Code, alone have been saved. In sub-section (10) of the said section, a blanket prohibition has been made restraining the officers of the registration department from registering or admitting any document for registration, which purports to be in contravention of the provisions of that section. This is a clear indication that the transfers which have already taken place were alone saved and there was no scope for the registration of any such document of transfer after 2-10-59, which was in contravention of the provisions of section 165. ( 13. ) THERE was a similar provision in section 46 (5) of C. P. Tenancy Act prohibiting the registration of any mortgage deed against the occupancy holding. A case arose where the deed of mortgage of occupancy holding was written and executed prior to the coming into force of the Act prohibiting the mortgage of occupancy lands. The said deed was however, presented for registration within 4 months of the execution, but after the coming into force of the Act. It was contended on behalf of the mortgagee that since the document was already executed prior to the coming into force of the Act prohibiting such mortgage, it was saved from the operation of the same and was validly registered. It was contended on behalf of the mortgagee that since the document was already executed prior to the coming into force of the Act prohibiting such mortgage, it was saved from the operation of the same and was validly registered. This contention was repelled by the Court of the Judicial Commissioner in Nilkant v. Ghulya, 13 N L R 165. on the ground that the mortgagee took no interest by the reason of mere execution of the mortgage deed so long as it was not legally registered. ( 14. ) THE learned counsel appearing on behalf of the appellant placed reliance on certain observations made in para. 5 of the decision reported in panchoo v. Mooratsingh, 1972 MP L J 759=1972 J L J 459. I have gone through the said decision. It is apparent that the facts of the said case were quite different and the observations made in para. 5 of the said decision are not concerned with the question involved in the present case. In para. 5 of the aforesaid decision, the plea of the defendant that the contract for sale of Bhumiswami land was itself void ab initio, because the same was hit by the provisions of section 165 (4) (b) of the Code irrespective of the fact that it took place prior to the enforcement of section 165. This contention was repelled and it was observed that undoubtedly a transfer which is in contravention of the section is void ab initio, being hit by section 23 of the Contract Act But since the contract in question was entered into on 1-6-59 i. e. prior to the coming into force of the Code when there was no corresponding provision prohibiting such transfers in force, the agreement to sell could not be said to be invalid. There is no quarrel with the proposition that if any agreement to sell has taken place at a time when the prohibition was not in force, the said agreement was valid. In the case cited, the question of granting a decree directing execution of the sale deed during the period when the prohibition was in force did not at all arise as the claim for specific performance was dismissed on other grounds. In the case cited, the question of granting a decree directing execution of the sale deed during the period when the prohibition was in force did not at all arise as the claim for specific performance was dismissed on other grounds. Further, even if, it would not have been dismissed on other grounds, there was no difficulty in affecting the transfers inasmuch as the restrictive provisions had been already removed with effect from 23rd April 1964 by amendment of the Act. Thus, there was no such restriction on transfers even at the time of decision of the suit in the trial Court. This is clear from the observations further made in para. 12 of the said decision where it has been clearly observed that the prohibition against the transfer of Bhumiswami land as contained in section 165 (4) (b)of the Code no longer exists. Thus, in the aforesaid case, no transfer was actually affected during the period from 2-10-59 to 23-4-64. It was a suit claiming specific performance and there was no restriction to grant such performance as the law had already been amended by then. Thus, in that case, neither at the time of entering into contract, nor at the stage of granting a decree directing performance of the same, there was any restriction against the transfers. The facts and circumstances of the present case are different. Here the transfer has been affected during the period when the prohibition against such transfer was already in force. ( 15. ) NO other point was pressed. ( 16. ) FOR the reasons stated above, the claim of the plaintiff has been rightly dismissed by the Courts below. The judgment and decree impugned do not suffer with any error of law. ( 17. ) THE appeal is, therefore, dismissed with costs. Counsels fee at Rs. 50, if certified. Appeal dismissed.