An unregistered document can be admitted as evidence of an agreement to sell immovable property, and an unregistered sale deed can be looked at as an agreement of sale, provided that it is not used to prove the sale itself.

S.S.Dulat, J.

1. The short question that requires determination in this second appeal is one pertaining to the interpretation of Section 49 of the Indian Registration Act. There has been and is a conflict of judicial opinion as to the ambit and scope of this section and in view of this I have thought it proper to refer this matter for decision to a larger Bench.

2. The facts giving rise to this second appeal ate that on the 26th of February, 194G, defendants 1 and 3 Bhagirath and Jagan Nath orally sold 43 Kanals 19 Marlas of land to plaintiff Rattan Chand for a sum of Rs. 3,000/-. A document Exhibit P. 5, evidencing the sale of the property, the price settled and how it was to be paid was executed. It is recited in this document that a sum of Rs. 200/- had been paid in cash and the remaining sum Of Rs. 2,800/- would be paid at the time when the mutation of sale is sanctioned. It appears that later on the vendors found a better purchaser in the person of another Rattan Chand, to whom they sold the property on the 20th March, 1946, for a sum of Rs. 4,500/-. The plaintiff who is the previous vendee having come to know of the second sale gave notice to his vendors and the subsequent vendee on the 29th of March, 1946, informing that the property had already been sold to him and, therefore, could not be transferred a second time, but in view of the fact that the sale had already taken place on the 20th of March, 1946, the present suit was filed for specific performance of the contract of sale end in the alternative for damages and return of part of the purchase price paid under Exhibit P-5, in all for Rs. 1,200/- on the 1st of March, 1948. The defence of the subsequent vendee was that he was a bona fide transferee for value without notice of the previous sale and, therefore, was protected. The vendors raised the defence that there was no sale in favour of the plaintiff and in any case the sale had not been completed. The trial Court decreed the plaintiffs suit in the alternative, that is, for Rs. 1,200/- --Rs. 1,000/- as damages and RS. 200/- as part of the purchase price paid on the 26th of February, 1946.

3. On appeal, the learned Sessions Judge hoshisrpur came to the conclusion that Exhibit P-5 required registration and, therefore, was inadmissible in evidence. He dismissed the suit for damages but maintained the decree for return of the purchase price relying on a decision of Shri Jai Lal J. in Bahawal V/s. Amrik Singh, AIR 1932 Lah 655. The plaintiff who is dissatisfied with this decision has come up in second appeal to this Court.

4. The contention of Mr. Ganga Parshad Jain who appears for Mr. F. C. Mittal counsel for the plaintiff is that the rule laid down in Bahawals case AIR 1932 Lah 655 is not the correct rule of law. Shri Jai Lal J. based his decision on a decision of the Madras High Court in Narayanan Chetty V/s. Subbayya Servai, ILR 35 Mad 63 (FB), and dissented from the rule laid down in a Full Bench decision of the same High Court in Raja of Venkataglrl V/s. Narayana Reddi, ILR 17 Mad 456 (FB). The Madras High Court had an occasion later to consider the eniue case law on the subject in Muruga Mudaliar V/s. Subba Reddiar. AIR 1951 Mad 12 (FB) and it came to the conclusion that the rule laid down in Narayanan Chettys case, ILR 35 Mad 63 (FB), is not the correct rule of law. Therefore, the basis on which Bahawals case, AIR 1932 Lah 655 proceeded is knocked out. However, there are decisions of the Calcutta High Court which support the respondents contention; and as there is conflict of judicial opinion, as already said, and in any case I would be disagreeing with the Single Bench decision of the Lahore High Court, it is proper that this matter is settled by a larger Bench, particularly, in view of the importance of the question involved. I would, therefore, direct that the papers of this appeal be laid before my Lord the Chief Justice for constituting a Division Bench to decide this matter.

5. This second appeal