An agreement to reconvey immovable property is not compulsorily registrable under Section 17 (1) (b) of the Registration Act, 1908, and can be received as evidence of a contract in a suit for specific performance.

G. K. MISRA, J.

( 1 ) PLAINTIFF is the appellant. He sold the disputed land to the defendant on 14-81956 for Rs. 300/- by a registered sale deed Ex. A. On the very day, the defendant executed a unregistered agreement for sale (Ex. 1) stipulating to reconvey the same property to the plaintiff on receipt of Rs. 300/- within three years from that date. During the stipulated period, the plaintiff offered the money personally to the defendant and also remitted the money by money-order, but the defendant refused to accept the money. The suit is for specific performance of the agreement Ex. 1.

( 2 ) THE defendant alleged that Ex. 1 was not genuine. His case is that at the time of the sale there was paddy crop on the suit land. As the crop had been grown by the plaintiff, there was an agreement that it would be divided half and half between them. By way of security the plaintiff procured a blank sheet of stamp paper containing defendant's signature. The defendant pleads that possibly the plaintiff had utilised that paper as the agreement (Ex. 1 ).

( 3 ) BOTH the Courts below concurrently rejected the defence version of story and held that Ex. 1 was genuine and duly executed by the defendant. They, however, dismissed the plaintiff's suit on the finding that Ex. I was compulsorily registrable and in the absence of registration, it cannot constitute the basis of the suit. The second appeal has been filed against the appellate decree dismissing the plaintiffs suit.

( 4 ) THEY only point for consideration is whether Ex. 1 is compulsorily registrable. Mr. Sovesh Chandra Roy contends that Ext. 1 is registrable under Section 17 (1) (b ). Registration Act which lays down; "other non-testamentary instruments which purports 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 immoveable property. " Mr. R. N. Mohanty, On the other hand contends that Section 17 (2) (v) applies. It lays down:

"sub-section (2) Nothing in Clauses (b) and (c) of Sub-section (i) applies to: x X X XX (v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immoveable property, bat merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest. "

The Explanation to Section 17, Sub-section (2) says:

"a document purporting or operating to effect a contract for the sale of immoveable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money. "

This Explanation was introduced by Section 2 of Act 2 of 1927. The proviso under Section 49 of the Act makes the position further clear. It enacts:

"49. No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall: (a) affect any immoveable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property act, 1882, to be registered, may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument. "

Thus the Explanation to Section 17 (2) and the proviso to Section 49 make it absolutely clear that even an unregistered document affect