Judgement

Appeal (No. 49 of 1924) from a decree of the High Court (March 28, 1923) varying a decree of the Subordinate Judge of Lyallpur (October 20, 1919).

The deceased respondent instituted a suit against the appellant for specific performance of an agreement dated March 2, 1919, for the sale of certain immovable property, and for damages. Among other defences, not material to this appeal, it was pleaded that the agreement was ineffective for want of registration.

The facts, including the terms of the agreement, appear from the judgment of the Judicial Committee.

Both Courts in India held that the agreement was an instrument contemplating a further document, and was therefore exempt from registration, by s. 17, sub-s. 2 (v.), of the Indian Registration Act, 1908. The Subordinate Judge, while rejecting a plea of undue influence, considered that having regard to the relation of the parties specific performance should not be granted ; he made a decree for Rs.2000 damages. On appeal to the High Court (Broadway and Harrison JJ.) a decree for specific performance was made.

1926. May 20. E. B. Raikes for the appellant. The agreement was an instrument which s. 17, sub-s. 1 (&), of the Indian Registration Act, 1908, required should be registered. The document on its true construction created an immediate interest in the property. The High Court relied on Mangamma v. Ramamma (( 1912) I. L. R. 37 M. 480.), but that decision was not consistent with the judgment of the Board in Hemanta Kumari Debi v. Midnapur Zamindari Co. (( 1919) L. R. 46 I. A. 240. [Note. - In the headnote of the report, holding (2.) should commence “that the agreement created an interest the was therefore within s. 17, sub-s. 1(b), but that ….” - continuing as printed. - A.

M. T.]) Apart from the construction of the document its effect under s. 55, sub-s. 6 (b), of the Transfer of Property Act was to give the buyer a charge on the property. That rendered it an instrument creating an interest within s. 17, sub-s. 1 (b), and excluded it from the exemption in sub-s. 2 (h).

[Reference was made also to Futteh Chand Sahoo v. Leelumber Singh Doss (( 1871) 14 Moo. I. A. 129.) ; Burjorji Cursetji Panthaki v. Muncherji Kuverji (( 1880) I. L. R. 5 B. 143.); and Ramasami v. Ramasami (( 1882) I. L. R. 5 M. 115.); and the Transfer of Property Act, 1882, s. 54.] The respondent did not appear.

June 24. The judgment of their Lordships was delivered by

VISCOUNT DUNEDIN. On March 2, 1919, Dayal Singh, the defendant-appellant, executed an agreement with Indar Singh, now deceased, but represented by the plaintiff-respondent. This agreement had for its object the undertaking of a sale of certain property, and its terms, so far as material, are as follows "I, Dayal Singh, son of Jiwan Singh, caste Jat Garewal, resident and Lambardar of Chak No. 1/57, Upper Ghenab, Tahsil Jaranwala, District Lyallpur, do here declare as follows (here follows a description of the subject) .... I have agreed to sell the above mentioned property for Rs. 10,000 and the sum of interest, to be paid to the Government, to Indar Singh, son of Hira Singh, Havildar, caste Jat Dhami, occupation cultivation, abadkar and resident of Chak No. 188, Rakh Branch, Tahsil Lyallpur, who has agreed to purchase this land merely for the sake of Lambardarship. Out of the sale money I have at present received Rs.1000 by way of earnest money. Rs.9000 is agreed to be received before the sub-registrar, Lyallpur, at the time of the completion of the sale and registration. The expenses, incurred in connection with the execution and completion of the sale-deed, shall be borne by the vendee and myself in equal halves. I shall complete the sale in favour of the vendee within forty days, i.e., before the 1st Baisakh Sambat, 1976, after making a settlement of the sum of interest (which shall be deposited by the vendee) with the Government. The vendee has been put in possession of the land sold. If I do not complete the sale, I shall pay Rs. 2