Macleod, C.J.
1. The question in this appeal is what is the proper construction to be placed on Exhibit 17, which the plaintiff contended is an agreement to sell and, therefore, is admissible in evidence without registration, in order to support his claim for specific performance of the agreement contained therein.
2. The defendant contended that the document was compulsorily registrable under the Indian Registration Act 1908, and, therefore, was inadmissible in evidence, The trial Court held that the document did not require registration, and decreed the plaintiff's suit. The appellate Judge came to a contrary conclusion and dismissed the suit with costs in both Courts. The document is as follows:
My undivided one third share in the property-(shop premises) has been sold to you for Rs. 2,500 in cash, the said amount having been received in sums by me from you from time to time, Only a registered sale-deed has remained to be executed and registered in your favour which I shall execute and get registered within fifteen days from this clay at my own cost. In case the deed is not so executed and registered, you should get the sale-deed executed and registered through Court.
3. Under Section 17(1)(b):
other non-testamentary instruments which purport or operate to creats, declare, assign, limit or extinguish, whether in present or in future, any-right, title or interest, whether vested or contingent of the value of one hundred ' rupees'and upwards, to or in immovable property
must be registered. Under Section 49:
No document required by Section 17, to be registered shall-
(a) affect any immovable property comprised! therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered
in accordance with the provisions of this Act.
It has been contended by the appellant's pleader that, even if that document can be read as declaring or creating an interest in immovable property of the value of one hundred rupees and upwards, and was, therefore, inadmissible as being unregistered, it can be used for the purpose of obtaining specific performance of the agreement continued therein,
4. Reference is made to the decision in Burjorji Cursetji Panthaki v. Muncherji Kuverji [1880] 5 Bom. 143. Mr. Mulla in his work on the Indian Registration Act at p. 71 says:
[This case is] the leading authority on the second branch of the decision, namely, that a document which itself creates an interest in immovable property and requires registration may, though unregistered, be used for the purpose of obtaining a specific performance of the agreement contained therein; and it has been followed in a large number of cases relating to sales, mortgage?, and other transactions, though not those relating to gifts and leases, as Sub-section (2) does not apply to Clause (a) [gifts] and Clause (d) [leases.]
5. Now the decision in Burjorji v. Muncherji [1880] 5 Bom. 143 is a decision of a single Judge, whose reputation for learning must be respected; but I am not aware that that decision has been followed in this Court. At p. 151 the learned Judge says:
In the present instance, then, the document in question cannot, as being unregistered, create or assign the intended interest. On its face it 'declares' an interest, and what it declares is a matter of mere intention of the parties independent of any law. But at the same time a 'declaration' so taken has no legal effect. What is intended, is a declaration apt in itself to bind the parties and to constitute a particular right. As the instrument cannot affect the property to which it relates, the document, though certainly made, is purely abortive in a legal point of view.
6. Stopping there, with due respect, the argument appears to be fallaciaus for the document did create or assign the intended interest, but Owing to the registration law, the document itself was inadmissible. Therefore it was abortive, not because it did not create or assign the intended interest in immovable property, but because the Court could not take any judicial notice of the document.
7. At the bottom of the page the learned Judge continues:
Now, what the plaintiff in the present suit seeks is specific performance by the execution of the conveyance which will convert his contractual right into a right of ownership. I think that for such a purpose the document A is admissible to show the contract entered into for another conveyance though not as a conveyance itself. It is, in terms, a conveyance, i.e., an instrument translative of ownership, and on the argument that this was not its character, I thought it not admissible, I could net consider it as in its purport nothing more than an agreement to convey; it purports itself to convey. But that principal purpose falling, the secondary one becomes the principal, and the document might, I think, be used to ascertain what the formal and final conveyance ought to be. It is because it is made inoperative for its primary purpose, that it becomes admissible for the secondary purpose - admissible, not to prove a transaction itself changing ownership, but one giving a right to such a transaction by way of conveyance. In this way only, so far as I can see, can effect be given to Section 17, Clause (h); for an equitable interest being at once created by the contract, the contract Sails through its own completeness, unless the additional contract for a separate conveyance is allowed an independent effect. In one sense a contract to convey does convey, i.e., transfer the intended interest; but this consequence was not, it is certain, intended to make the provision in Section 17, Clause (h), purely illusory.
8. With all clue respect, I do not think that line of argument is sound. Section 17, Clause (h), of Act III of 1877 is reproduced in Section 17, Clause (2)(v) in the Act of 1908. If a document is a document coming within the description of the documents referred to in Section 17(1)(b) then it requires registration. Unless it is registered it is inadmissible in evidence. If such a document were allowed to be, put in evidence to prove the agreement said to be contained therein, then the object and purpose of the Indian Registration Act would be completely defeated.
9. It has been suggested for the respondent that the words in the document 'property has been sold' are words of transfer, but it is not necessary to construe them in that light. This document is an informal document, and it can be said that the words used are purely indicative of an agreement to convey. They need not be read as words actually creating an interest in the property agreed to be sold, considering the whole context.
10. I think, therefore, that the document is admissible in evidence, although unregistered. The appeal should be allowed and the decree of the trial Court restored with costs throughout.
Coyajee, J.
11. I agree in holding that the view favoured by the learned trial Judge in this case is correct. He says:
The kararnama in suit, Exhibit 17, with the words reciting the receipt of full consideration already, cannot, by its very terms, be said to create an interest in immovable property, because there are no words used to show that it should by itself operate as an instrument of conveyance or should create any equitable charge on the property. It is to be noted that it mentions merely that the property has been sold already but it does not recite that the property was sold and transferred by the terms of the instrument 'itself' within the meaning of Clause (h) of Section 17, registration Act III of 1877.
12. It appears to me that the document in question does not purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. It does not effect a definite change of legal relation to the property referred to therein. It recites past facts, namely, an agreement to sail the property, and payments of money made from time to time; it also creates a right in the plaintiff to obtain from the defendant a duly executed conveyance in the future. It, therefore, falls within Section 17, Sub-section (2), Clause (v) as being a document which does not of itself create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creates a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest.
13. For these reasons I agree in holding that this appeal should be allowed and the decree of the trial Court restored.