Judgment

P. B. GAJENDRAGADKAR J.: This is an appeal by the widow, and the minor son of Mangilal, defendant 1, and it has been filed with a certificate by the High Court of Judicature at Nagpur. It arises out of a suit filed by the respondent Shrimati Lilabai w/o Vrijpalji, for the specific performance of a contract to lease or in the alternative for damages and for a declaration against defendant 2, the daughter of defendant 1 that she has no right, title or interest in the property in suit. The respondents case was that defendant 1 had executed an instrument (Ex. P-1) in favour of the respondent by which he had contracted to lease to her in perpetuity in occupancy right his four khudkasht lands admeasuring 95.19 acres situated in Mouza Mohammadpur in consideration of the debt of Rs. 8,700. According to the respondent the instrument had provided that, if defendant 1 did not repay to her the said debt on June 1, 1944, the said contract of lease would be operative on and from that date. Defendant 1 did not repay the loan by the stipulated date and so he became liable to perform and give effect to the said contract of lease on June 1, 1944. The respondent repeatedly called upon defendant 1 to perform the said contract, but defendant 1 paid no heed to her demands and so she had to file the present suit for specific performance. The respondent had been and was still ready and willing to specifically perform the agreement and to accept a deed of lease for the lands in question in lieu of the said debt of Rs. 8,700. Defendant 1, however, had been guilty of gross and unreasonable delay in performing his part of the contract and that had caused the respondent the loss of the benefit of the lease and consequent damage. On these allegations the respondent claimed specific performance of the contract and an amount of Rs. 2,340 as compensation or in the alternative damages amounting to Rs. 11,080.

2. To this suit Mst. Durgabai the daughter of defendant 1 had been impleaded as defendant 2 on the ground that she was setting up her own title in respect of the lands in suit and a declaration was claimed against her that she had no right, title or interest in the said lands. Defendant 2 filed a written statement contesting the respondents claim for a declaration against her but she did not appear at the trial which proceeded ex parte against her. In the result defendant 1 was the only contesting defendant in the proceedings.

3. Several pleas were raised by defendant 1 against the respondent s claim. He denied the receipt of the consideration alleged by her and he pleaded that the document (Ex. P-1) was a bogus, sham and collusive document which had been brought into existence for the purpose of shielding his property from his creditors and it was not intended to be acted upon. It was also urged by him that the said document, if held to be genuine, was an agreement to lease under S. 2(7) of the Indian Registration Act, and since it was not registered it was inadmissible in evidence.

4. The learned trial Judge framed appropriate issues on these pleadings and found against defendant 1 on all of them.Accordingly a decree was passed ordering defendant 1 to execute a lease-deed in respect of the fields mentioned in the plaint on a proper stamp paper in occupancy right in favour of the respondent and to put her in possession of them. A decree for the payment of Rs. 2,316 by way of compensation was also passed against him. The declaration claimed by respondent against defendant 2 was likewise granted.

5. This decree was challenged by defendant 1 by his appeal before the High Court of Judicature at Nagpur. Pending the appeal defendant 1 died and his widow and his minor son came on the record as his legal representatives and prosecuted the said appeal. The High Court held that the document was supported by consideration, that it was not an agreement to lease under S. 2(7) of the Indian Registration Act and therefore it did not require registration and was ad