An agreement that does not create, declare, assign, limit, or extinguish any right, title, or interest in immovable property is not compulsorily registrable under Section 17(6) of the Registration Act and can be admitted in evidence as proof of a money claim under Section 49 of the Act.

I. N. MODI, J.

( 1 ) THIS is an appeal by the defendant Moolsingh against an order of the Senior civil Judge, Jodhpur, by which he reversed the judgment and decree of the trial court and remanded the suit for a decision on the merits.

( 2 ) THE plaintiffs case was that the defendant by an agreement dated Bhadwa Vadi 8 Smt. 1999 (corresponding to 1942 A. D.) made a Baras-kati mortgage of his share in village Khurda being his Jagir, for a sum of Rs. 4998/12/-, the Baras-kati being for a period of 13 years. The plaintiffs enjoyed the Baraskati for a period of five years, whereafter the possession of the Jagir was taken back by the defendant and instead, the defendant executed a new agreement Ex 1. on Bhadwa Sudi 8 smt. 2004 corresponding to the 22nd September,. 1947. By this agreement the defendant agreed to pay eight instalments of Rs. 401/each, the instalments to be paid on posh Sudi 15 every year and it was further stipulated between the parties that if the instalment was not paid on the due date, interest would be charged at the rate of 1 per cent per mensem. The plaintiffs case further was that the defendant paid the instalments for Samvat years 2004 and 2005 but the instalment for Samwat year 2005 was paid on the 10th February, 1950, instead of the due date which fell on the 14th January, 1. 949, and thus the defendant had made himself liable to interest amounting to rs. 65/- at the rate above-mentioned, and further that the defendent had also not paid instalments for Samwat years 2000 and 2007 amounting to Rs. 802/- and in addition incurred a liability for interest on those instalments amounting to Rs. 140/-; and thus the plaintiffs calculated the total sum due to them as Rs. 1007/up to the date of the suit, that is. Smt. 2008 Asoj Vadi 8 corresponding to 24th september, 1951. The plaintiff relinquished the sum of Rs. 7/- out of the aforesaid amount and filed a suit for Rs. 1000/- in the court of the Munsiff Jodhpur claiming pen-dente lite and future interest.

( 3 ) THE defendant resisted the suit. His contention was that the factum of the baraskati which was alleged to have been executed by the defendant in favour of the plaintiffs for a period of 13 years was irrelevant and, therefore, did not require any reply. So far as the subsequent agreement dated Bhadwa Sudi 8 Smt. 2004 was concerned by which the defendant was alleged to have agreed to pay eight instalments of Rs. 401/- each, the defendant totally denied to have executed it, and, consequently, pleaded that nothing was due from him to the plaintiffs. The defendant further contended that the aforesaid agreement amounted to a lease, and that it was compulsorily registrable, and being unregistered, it was inadmissible in evidence, and the plaintiff was not entitled to any decree on the basis of such an instrument.

( 4 ) THE trial court framed a number of issues, and we are concerned in this appeal with issue No. 7 only which relates to the question whether the agreement on which the suit was based was, compulsorily registrable, and having not been registered was inadmissible in evidence. The trial court took this issue as a preliminary issue, decided it against the plaintiffs and dismissed the suit without going into the merits. The finding of the trial court was that the agreement Ex. 1 was a lease and that it was a year to year lease and, therefore, it was compulsorily registrabie in accordance with Sec, 17 (6) of the Registration Act, and further that as it had not been so registered, it was inadmissible in evidence, and incapable of sustaining a decree.

( 5 ) THE plaintiffs then went in appeal, and the learned Civil Judge, who disposed of the appeal, reversed the judgment of the trial court, and held that the document ex. 1 was in reality an instalment bond and not a lease and was not compul-sorily registrabie, and consequently he held that the document was not inadmissible in law, and on that view he remanded the suit to the trial court for a decision