An agreement to sell immovable property does not require registration if it does not create any interest or charge on the property.

R.R.Mishra, J.

1. This is a plaintiff's second appeal arising out of a suit filed by him for specific performance of the contract. The trial court has decreed the suit. On appeal the lower Appellate Court has allowed the appeal of the defendant and has dismissed the suit of the plaintiff The case of the plaintiff is that he is Bhumidhar of four plots, as described in the plaint situate in village Bhairampur Pargana Aurangabad Tahsil Misrikh district Sita- pur. In the year 1958 the plaintiff was in need of money He, therefore, secured a sum of Rs. one thousand by contacting the defendant- It was agreed between the two that the plaintiff should execute a simple mortgage with possession of the land in favour of the defendant in respect of the land. The plaintiff averred that he went to the Registration Office in connection with the said mortgage but the defendant got a sale-deed executed by him instead of the mortgage deed. Hence the defendant refused to sign the deed. Thereupon it was settled between the parties that the plaintiff shall be entitled for the retransfer of the land from the defendant within a period of 20 years on payment of lumpsum amount of Rs. one thousand to the defendant. In pursuance thereof besides the sale-deed executed on 3rd February, 1958, an agreement to sell was also executed on the same date, i.e. 3rd February, 1938. It may be mentioned that admittedly since the date of the execution of the sale deed in question the defendant had been using the land in dispute. However, it is alleged that later on the plaintiff visited the defendant several times with Rs. one thousand but the defendant did not respond to reconvey the said land Hence the suit for specific performance was filed by the plaintiff. In the present suit between the parties admittedly the plaintiff had always been ready and willing to pay the sum of Rs. one thousand and perform his part of the contract. In defence it was stated on behalf of the defendant that the plaintiff has executed the sale in his favour unconditionally and that since the defendant is an old man of 90 years he does not remember limitation to reconvey as given in the agreement.

2. I have heard Sri R. K. Sharma, learned counsel for the appellant and Sri Akhilesh Sahai, the learned counsel appearing for the respondent. From a perusal of the judgment of the lower Appellate Court it is evident that the appellate court has non suited the plaintiff on the ground that the agreement for sale in question being not registered, it could not be enforced; that the suit is barred by limitation and also that no case has been made out for the exercise of discretion in favour of the plaintiff for decreeing the suit for specific performance. First submission, made by the learned counsel for the plaintiff is that admittedly in the present case a copy of the sale-deed dated 3rd February, 1958 has not been filed by the plaintiff. Along with the assistance of learned counsel for both the parties, 1 have also scrutinised the record of the lower court. I also do not find that a copy of the sale-deed dated 3rd February, 1958 has been filed in the present case. Hence it is not clear as to whether in the said sale-deed there was any stipulation regarding reconveyance of the property. The lower Appellate Court while . coming to the conclusion that the agreement to sell dated 3rd February, 1958 required registration has, in my opinion, omitted to consider the proviso of section 58 sub-clause (c) of the Transfer of the Property Act. The same reads as follows : -

"Provided that no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect the sale"

As I have stated above the plaintiffs have not filed the sale-deed in question. Therefore, it is not established that the sale-deed embodied any condition. Hence under the law the sale-deed in question shall be taken to be an out and out sale. In my opinion, the Lower Appellate C