Norman Macleod, Kt., C.J.
1. The plaintiff sued for specific performance of a contract for the sale of certain immoveable properties by the defendants on their passing a sale deed to him, and for possession.
2. The document on which the plaintiff sued is Exhibit No. 30 and is dated March 17, 1897. It is addressed to four persona, Govindgiri, Pitambargiri, Chumelgiri and Harigiri, the four chelas of Guru Daulatgiri. It runs as follows :-
On March 2, 1807, we have jointly purchased from you the property. After having got registered an arbitration award amongst ourselves about that property and after you have paid off all your personal debts due to us, every one of us will, to the extent of his own rights separately pass to every one of you a separate agreement to sell one-fourth portion of the property purchased from you, the period for the said agreement being one of twenty -one years. When every one of you pays, after '21 years, his one-fourth share of the amount according to the agreement of sale, every one of us will pass to every one of yon a separate sale deed at your expense. The same will be passed either to you or to your legal heirs or to the executors of your will.
3. Then there are detailed the shares which the purchasers under the document referred to in this Exhibit should take, and for which they were to pass sale-deeds to the various chelas as stated therein.
4. We are only concerned in this case with the father of the plaintiffs now deceased, viz., Chamelgiri to whom Naro Balkrishna Patkar was to pass a sale-deed to the extent of a four annas share. The first defendant is the son of Naro and the second defendant is his daughter in-law.
5. The main question argued in the case was whether this Exhibit is admissible in evidence for want of registration. The Judge said:-
The defendant had contended that this potchiti required to be registered. We authority was shown in support of that contention. Exhibit 300, potchiti, by it self did not create, declare etc. any right etc, to or in the immoveable property; it merely notified that after certain contingencies a satekhab bargain paper, agreeing to reconvey would be passed. The writing it not thus compulsorily registrate under Section 17 of the Registration Act.
6. If the document is to be considered as an agreement to obtain a satekhat, then it would be barred by limitation. The suit can only proceed on the basis that the document itself is an agreement to reconvey. In 1909 a suit was brought on this document together with the sale-deed dated March 2, 1907, on the ground that the two constituted a mortgage, and the property was sought to be redeemed. That suit was dismissed. From the evidence in that case it was shown how Exhibit 30 came to be executed. Although the sale-deed is dated March 2,1897, it was really executed after Exhibit 30. Thechelas would not execute the sale-deed until they obtained the agreement from their creditors. It is obvious, therefore, that these documents evidence one transaction, and therefore the principle which was laid down in Bala v. Sadashiv (1981) 23 Bom. L. R. 1066 after a consideration of the decision in Sayad Mir Qazi v. Miya Ali : AIR1914Bom231 would be applicable. Each case must stand on its own facts. If the agreement to reconvey can be treated as a separate transaction, as it was in the case last cited, then under Section 54 of the Transfer of Property Act, it vests no interest in the property and need not be registered. But if the document which has not been registered, is really a part and parcel of the transaction, which is only partly evidenced by the registered document, then it is clear that the other document also requires to be registered. In other words, when a transaction is evidenced by a document which is in effect divided into two parts, one of which is registered and the other is not, then the law looks to what is the real transaction between the parties, and demands that the whole document evidencing that transaction mutt be registered, whether it consists of one part or two.
7. The result is that, in our opinion, Exhibit '60 is not admissible in evidence for want of registration. That disposes of the case. The appeal will be allowed with costs throughout.
Coyajee, J.
8. This suit was instituted by Chamelgiri guru Daulatgiri Gosavi for specific performance of an agreement, Exhibit 30, dated March 17, 1897, to sell certain immoveable properties. Chamelgiri having died, the respondents were brought on the record as his legal representatives, and the suit was proceeded with.
9. The facts of the case, so far as they are now material, may be briefly stated. In March 1897, Chamelgiri find three other persons executed a deed of absolute sale, (Exhibit 33), conveying certain properties to Naro Balkrishna Patkar (father of defendant No 1) and two others On March 17, 1897, the purchasers signed the document Exhibit 30, by which they agreed to re-convey the same properties to the vendors in the manner and subject to the conditions therein stated. In the year 1909 the vendors brought a suit (No. 93) against the purchasers alleging that the said two documents taken together constituted a mortgage, and claiming that they were entitled to redeem it, The suit failed on the ground that Exhibit 33 was an absolute conveyance and that the two documents could not be so read as to convert the transaction into one of mortgage.
10. The plaint in this case was presented on December 2, 1922. The suit was resisted on the grounds, among others, that: (1) the agreement, Exhibit 30, was not enforceable by law; (2) it was not admissible in evidence for want of registration; and (3) the claim was barred by the law of limitation. All those contentions failed in the trial Court, and the plaintiff obtained a decree for specific performance of the agreement and for possession of the suit properties on his paying to the defendants the sum of Rs. 7,249-12-0. The case of defendant No. 2 need not be separately considered.
11. From that decree, the defendants have brought this appeal, and their main contention is that as the document, Exhibit 30, had not been registered, it could not be received as evidence of any transaction affecting the immoveable property comprised therein, and that, therefore, it could not be made the foundation of a suit for specific performance.
12. The plaintiff refers to the sale-deed (Exhibit 33) in the second paragraph of his plaint, and then in the fifth paragraph he says:-
At the time of the execution of the Bale-deed mentioned in Clause 2, it was agreed between Patkar, Raikar and Pradhan, the vendees on one hand, and Chamelgiri, Pitambargiri, Govindgiri and Harigiri vendors on the other, that the vendees should reconvey the properties sold to the vendors and the terms thereof which were agreed upon were as under:... A. writing about the aforesaid conditions was passed on March 17, 1S97, by Naro Balkrishna Patkar, Mahadeo Krishna Raikar and Ramchandra Bajirao Pradhan to Chamelgiri, Govindgiri, Pibambargiri and Harigiri.
13. No oral evidence, we understand, was led in the case. Naro Balkrishna Patkar died some time before this suit was filed; his evidence was, therefore, not available. Chamelgiri died while the suit was proceeding; he was not examined, but the evidence given by him in the earlier suit No. 93 of 1909^ was received and marked as Exhibit 39 in this case. Its admissibility was not questioned before us. That evidence clearly shows that although the sale-deed bears date March 2, it was not signed by the vendors until after they had obtained the agreement (Exhibit 30) on the 17th. He said : 'I went to Alibag on the 17th for registering the document, [that is, the sale deed], We affixed our signatures to the document in the Registrar's office. Those signatures were made after the counter-agreement [now Exhibit 30] was taken. The counter-agreement was made on that very day.' Chamelgiri has given the reasons why he and the other vendors would not execute the sale deed unless and until the purchasers agreed by a separate document (Exhibit 30) to reconvey the property, that is, not to deal with the property as full owners for a period of twenty-one years. The transaction, then, was one and indivisible, it was to be found partly in one document and partly in the other. Exhibit 33 purports to be a deed of absolute sale and has been duly registered. Exhibit 30, which purports to limit the purchasers' interest in the property conveyed under the former document, has not been registered. This latter document came under Section 17 (1) (b) of Act III of 1877 and its registration was compulsory; it did not fall within the exception contained in Section 17 (h) of that Act which now corresponds to Section 17 (2) (v) of Act XVI of 1908: Achutaramaraju v. Subbaraju I. L. R. (1901) Mad. 7 . The facts of this case distinguish it from those cases in which a registered deed of absolute sale is followed, soon or late, by an unregistered agreement to reconvey the same property. The question whether an agreement to reconvey immoveable property exceeding Rs. 99 in value does or does not require to be registered must, in each case, be decided on a consideration of the contents of the document itself and of such facts as might be proved for the purpose of showing in what manner the language of the document is related to existing facts. Proximity of time, or even the identity of the dates of the two documents, is not the decisive circumstance in all cases.
14. Respondent's counsel relied on : (1) Bhagwan Sahai v. Bhagwan Din (1890) L. R. 171. A. 98 Vaman Trimbak Joshi v. Changi : AIR1926Bom97 and Sayad Mir Gasi v. Miya Ali (1914) 16 Bom. L. R. 682. It is sufficient to say that the facts of this case, as set out above, are entirely different It is true that in each of those three cases, the two documents under consideration bore the same date; and, moreover, in cases (2) and (3) the agreement had not been registered, But in all the three oases, the documents embodied, each a separate and distinct transaction. Whereas, in this case there is but one transaction and it is contained partly in a registered document and partly in an unregistered one. In Bhagwan Sahai's case the plaintiff sued to redeem certain property on the ground that a deed of absolute sale of the property and a contemporaneous agreement to reconvey it within a period of ten years, constituted a mortgage, The Courts in India found in favour of the right to redeem. The Privy Council reversed their decree and dismissed the suit on the ground that it was not a case of mortgagor and mortgagee, but one of an absolute sale with a right to repurchase within a period of ten years. The question whether an unregistered agreement to reconvey property exceeding Rs. 99 in value could be made the basis of a suit for specific performance was not raised and was therefore not considered (see the facts set out at pp 98 and 99).
15. In Bala v. Sadashiv (1921) 33 Bom. L. R. 1066 the plaintiff sued to recover possession of certain property on the basis of a sale-deed (Exhibit 22) and an agreement to reconvey (Exhibit 23). Their lordships held that the document (Exhibit 23) could not be treated as a separate document entirely apart from the sale deed, and that it required to be registered. The learned Chief Justice said (p 1067):-
The plaintiff has to prove that he is entitled to get a reconveyance from the defendant, and he could only prove that by evidence, and unless Exhibit 93 can be exhibited he must fail. Ha can only succeed if he can satisfy the Court that Exhibit 23 was an entirely separate transaction from Exhibit 22, since it will be conceded that if the defendant as owner of the property had, after the sale bad been executed, agreed to reconvey the property to the plaintiff after a certain date, that might be a document which need not be registered. That was the view taken by this Court in Sayad Mir Gazi v. Miya Ali : AIR1914Bom231 though in that case the two documents were simultaneously executed, and the Court came to the conclusion that the two must be treated as separate, so that the second document was nothing more than an ordinary agreement to sell. I should consider myself that that was a very extreme case.
16. In this case the document (Exhibit 30) was obtained by the vendors before they executed the sale deed Exhibit 33; it, purports, as indeed it was intended, to limit the purchasers' interest in the immoveable property conveyed under Exhibit 33; it, therefore, required to be registered; and being unregistered it could not be made the foundation of a suit for specific performance.
17. For these reasons I agree in the order proposed by my Lord the Chief Justice.