The admissibility of an unregistered document affecting immovable property in a suit for specific performance, the distinction between an agreement to sell and a sale deed, and the legal remedies available to enforce a contract to sell.

Abdur Rahman, J.

1. A suit for specific performance of a contract to sell certain immovable properties exceeding Rs. 100 in value was instituted by the plaintiff. It was dismissed by the District Munsif of Nandalur on the ground that the document (Ex. A) on the basis of which it was brought was not an agreement to sell on which a suit for specific performance could be founded but a sale deed that was inadmissible in evidence for want of registration. On appeal, the learned District Judge of Cuddapah did not accept this view. Having regard to the specific recitals in the document, he found it to be an agreement to sell and in the absence of any express words of conveyance he declined to hold it to be a sale deed. The plaintiffs suit was accordingly decreed. The defendant has preferred this second appeal. Since a great deal would depend upon the terms of the letter Ex. A, it may be reproduced in extenso:

To Dated 25th April 1938

Raja Sree Gubboru Subbayya Garu, son of Seshayya Garu. Afterwards: For payment of circar cists and for family necessity, I have borrowed of you Rs. 300 (three hundred only).

A-1. (For this money by the 25th May, I agree to sell the schedule mentioned properties to you and execute the sale deed on a proper stamp and get it registered.)

A-2. (If I fail to do so, you should treat this letter itself as a sale deed, get into possession of the properties and enjoy them with rights of gift and sale etc.) This is the letter executed with my consent.

2. There can be no manner of doubt that the second sentence in Ex.A (and marked A-1 by me) contains an express agreement to sell the property in consideration of a sum of Rs. 300 which was acknowledged to have been borrowed by Chenchiah from the plaintiff. It is conceded by Mr. Raghava Rao, learned counsel for the appellant, that no exception could have been taken to the decision of the learned District Judge if the document had ended here. He contends, however, that in view of the following sentence (and marked A-2 by me) where the parties had agreed to treat this letter itself as a sale deed In the event of Chenchiahs failure to execute one within the time mentioned by him in this letter, Ex.A must be regarded to be a sale deed under which title to the property must have been intended to bo conveyed in favour of the respondent from the date on which it was executed, or at all events, as one purporting to create a future or contingent right ov interest in immovable property of more than Rs. 100 in value and that in either case, it would not be admissible in evidence.

4. I shall deal with this contention later. But it seems to me that the objection taken to the admissibility of the document which is being pressed before me and which was perhaps discussed before the trial Court during the final arguments of the case is different from what was raised in the pleadings filed on behalf of the defendant. In reply to a suit for specific performance, it was urged on behalf of the defendant in the trial Court that the plaintiff could not maintain the suit upon an unregistered document. Whatever might have been the law before 1929 the proviso added to Section 49, Registration Act by the Amending Act 21 of 1929, expressly provides that an unregistered document affecting immovable property may be, even if not registered, received in a suit for specific performance as evidence of a contract. The fact therefore that Ex. A is not registered cannot prevent its portion (A-1) from being admitted in evidence in the present suit which is one for specific performance. The portion A-1 is absolutely clear and provides ample evidence of an agreement by Chenchiah to sell the properties mentioned in the letter. The objection therefore that the plaintiff cannot maintain the suit upon an unregistered instrument must fail unless the portion A-1 can be found to have become inadmissible in evidence because it happens to be embodied in a document which would not be admissible unless it was registe