The main legal point established in the judgment is the significance of the proviso to Section 49 of the Registration Act, allowing unregistered documents affecting immovable property to be put in evidence in suits for specific performance.

Alfred Henry Lionel Leach, C.J.

1. This appeal has been placed for hearing before a Ful Bench, as it involves the consideration of certain observations contained in the judgment of this Court in Venkatadri Somappa v. Official Receiver of Bellary AIR1938Mad801 to which exception has been taken. The appellant filed a suit in the Court of the Subordinate Judge of Devakotta to recover the sum of Rs. 14,186-15-9 which he claimed to be due to him under a deed dated 15th August, 1937. This deed admittedly purported to release the plaintiffs interests in immovable properties situate in Burma, where there is a Registration Act similar to the Indian Registration Act. The deed was not registered and consequently the defendants objected to its being admitted in evidence Their objection was upheld by the Subordinate Judge, who consequently dismissed the suit. The appeal is from this decision. The appellant says that his suit was a suit for specific performance of an agreement for the payment of the consideratior for releasing his interest in the immovable properties of the firm and by virtue of the proviso to Section 49 of the Registration Act he was entitled to produce the document in evidence in support of his claim.

2. The plaintiff, the first, second, fourth and fifth defendants, and the fathei of the sixth and seventh defendants were partners in a money lending business carried on in Burma under the vilasam of S.M.A. RM. This partnership was dissolved in the year 1937. After the dissolution, the same business was carried on by the first, second and fourth defendants and the first and second defendants were left in possession of all the immovable properties which formed part of the assets of the original partnership. The deed of the 15th August, 1937, provided for the terms of dissolution so far as the plaintiff was concerned. The deed recites that he had released his interest in the assets which were described and which included land and houses belonging to the partnership. It also recites that he had by a hundi paid a sum of Rs. 18,950 as his share of the losses which the business had incurred. After making this payment, he was entitled to the sum of Rs. 12,534-13-3, which the first and second defendants were to pay to him. The deed further provides that the plaintiff shall execute ,at the expense of the first and second defendants a formal deed releasing to them his interest in the assets and have that registered.

3. On the 12th August, 1939, the first and the second defendants tendered to the plaintiff for execution and registeration a deed of release; but, they had not paid to him the sum of Rs. 12,534-13-3, which was due to him under the deed of the 15th August, 1937, nor was any mention of this sum made in the document tendered to him. The Subordinate Judge held that in these circumstances the plaintiff was justified in refusing to execute the document, and here we agree with the Subordinate Judge. At all material times between the 15th August, 1937, and the early part of 1942 when the Japanese invaded Burma, the first and second defendants were in possession of the assets of the old partnership. The plaintiff filed this suit on the 14th August, 1940, and in his plaint expressed his willingness to execute the further deed contemplated by the agreement of the 15th August, 1937, if presented to him. The first and second defendants have not tendered any deed for execution, apart from the one which he rightly refused to sign in 1939.

4. We consider that the Subordinate Judge erred in not treating the suit as One for specific performance and admitting the deed of 15th August, 1937, in evidence. Section 49 of the Registration Act states that no document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall affect immovable property comprised therein or be received as evidence of a transaction affecting the property, unless it has been registered but there is a proviso which reads