Judgement

Appeal (No. 97 of 1928) from a decree of the High Court (January 22, 1926) reversing a decree of the Additional Subordinate Judge of Meerut (May 19, 1923).

The suit was brought by the first respondent against the administrator of Richard Skinner (represented in the appeal by the second respondent) for specific performance. The plaintiff alleged an agreement dated June 18, 1921, by George C. E. Skinner for the sale to him of properties which George had inherited from his brother Richard. The appellant was the executor of Alice Skinner, a sister of Richard and George ; she was made a defendant as claiming a half-share in Richards estate.

The terms of the document of June 18, 1921, appear fully from the judgment of the Judicial Committee.

Issue No. 9 raised the question whether the document was admissible in evidence.

The trial judge held that the document was a sale deed, and that as it was not registered under the Indian Registration Act, 1908, it was inadmissible in evidence ; accordingly he dismissed the suit.

Upon appeal the decree was reversed and an order made for specific performance of the agreement by the conveyance of Georges interest at the conclusion of the administration. The learned judges (Lindsay and Kanhiya Lal JJ.) were of opinion that the document, having regard to the whole of its terms and the circumstances in which it was executed, ought to be treated as an agreement for sale, and that consequently they had a discretion to decree specific performance although the document was not registered.

1929. June 10, 11, 13. De Gruyther K.C. and Kenworthy Brown for the appellant. The document of June 18, 1921, upon its true construction, was a sale deed transferring the vendors interest in his brothers property; it was therefore within s. 17, sub-s. 1 (b), of the Registration Act. It did not merely create a right to another document so as to be within s, 17, sub-s. 2 (v). Consequently it was inadmissible in evidence having regard to s. 49.

Dunne K.C. and E. B. Raikes for the first respondent. The document was merely an agreement to sell such share as the vendor got upon the administration being concluded; a conveyance was contemplated when that took place. It was not clear until that took place whether immovable property would be transferred. But even if the document operated as a transfer of immovable property it was admissible in evidence in the suit as an agreement and for the purpose of obtaining specific performance Bengal Banking Corporation v. Mackertich (( 1883) I. L. R. 10

C. 315.), following the view of West J. in Burjorji Cursetji Panthakur v. Muncherji Kuverji (( 1880) I.

L. R. 5 B. 143.); Mangamma v. Ramamma (( 1912) I. L. R. 37 M. 480.), following earlier Madras decisions. Certain later decisions in India have taken a different view, but, it is submitted, the construction of the Act adopted by West J. is correct, and the only construction giving consistency to all the provisions of s. 17. In Dayal Singh v. Indar Singh (( 1926) L. R. 53 I. A. 214.), though a similar question was discussed, the Board expressly refrained from deciding that that view was wrong.

Kenworthy Brown in reply. The actual decision in the Bengal Banking Corporation case (( 1883) I. L.

R. 10 C. 315.) does not support the appellant; the remarks of Garth C.J. relied on were obiter. Burjorji Cursetji’s case (( 1880) I. L. R. 5 B. 143.) is inconsistent with Purmanananddas Jiwandas v. Dharsey Virji (( 1885) I. L. R. 10 B. 101.), and with a series of more recent cases in most of the High Courts. [Reference was made to the cases mentioned in their Lordships judgment and others.] The question is also concluded by the judgments of the Board in Hemanta Kumari Debi v. Midnapur Zamindari Co. (( 1919) L. R. 46 I. A. 240.) and Dayal Singh v. Indar Singh. (( 1926) L. R. 53 I. A. 214.) If the document is, as this respondent contends, within s. 17, then by s. 49 (c) it could not "be received as evidence of any transaction affecting" the prop