The central legal point established in the judgment is that a document creating a right of way requires registration under Section 17 of the Registration Act.

Happell, J.

1. The appellant was the first defendant in a suit in which the first respondent was the second plaintiff having been added as the legal representative of the first plaintiff after his death, for an injunction restraining the appellant from interfering with the right of way over a lane and for a direction that the appellant should demolish a dust bin which he had put up in the lane at his own cost. The right of way, it was alleged was conveyed to the first respondent under the dead Ex. C, for a consideration of Rs. 175. Ex. C is an unregistered document and it was contended by the appellant that it required registration and was accordingly inadmissible in evidence. The lower Courts, following the decisions in Bhagwan Sahai v. Narasingh Sahai I.L.R. (1909) All. 612 and in Satyanarayanamurti v. Lakshmayya (1928) 57 MLJ. 46 held that the deed Ex. C did not require registration. Substantially the only question in this-second appeal is whether Ex. C did or did not require to be registered. In Bhagwan Sahai v. Narasingh Sahai I.L.R. (1909) All. 612 and in Satyanarayanamurti v. Lakshmayya (1928) 57 MLJ. 46 in which Madhavan Nair, J., followed the decision of the Allahabad High Court a distinction was drawn between a document which created and a document which transferred an easement. A document which created an easement, it was held, was valid without registration because it was not a transfer of property within the meaning of the Transfer of Property Act, whereas the transfer of an existing easement is a transfer of property and so the transfer of an intangible thing within the meaning of clause 2 of Section 54 of the Transfer of Property Act which can be made only by a registered instrument, the transfer of an existing easement being the act of the dominant owner and inseparable from the transfer of the dominant heritage. Earned Counsel for the appellant agrees that Ex. C amounts to the creation of an easement and that it does not fall within the purview of the provisions of the Transfer of Property Act. He argues, however, that although the document does not attract the provisions of the Transfer of Property Act, it does attract the provisions of the Registration Act and as it has not been registered, it cannot be admitted in evidence. In support of this contention I have been referred to the decision in Sital Chandra Chowdhury v. Mrs. A.J. Delanney 20 C.W.N. 1158. In the second last paragraph of the judgment in that case it is stated:

It may be added that Section 2, clause 6 of the Registration Act which defines immovable property for the purposes of that Act, expressly includes rights to ways. Where, therefore, a right of way is created in writing the writing may require registration but not if the value of the right is less than one hundred rupees.

2. It is quite true, as pointed out for the respondent, that this observation is obiter. With respect, however, having regard to the provisions of Section 2, clause 6 and Section 17 of the Registration Act there can be, in my opinion, no doubt that it is correct. In Section 2, clause 6 immovable property is stated to include rights to ways , and in Section 17(1), sub-clause (b) it is enacted that "non-testamentary instrument which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property " shall be registered. Under Section 2, clause 6 for the purposes of the Indian Registration Act rights of way are immovable property. A document therefore which creates a right of way creates a right to or interest in immovable property. The consideration for Ex. C was Rs. 175 and therefore a right to or interest in immovable property was created of the value of Rs. 100 and upwards. Ex. C accordingly should have been registered and under the provisions of Section 49 of the Indian Registration Act it can