HARI NATH BANDOPADHYA Vs. PROMATHA NATH DEY CHOWDHURY

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of a contract. The contract was for the grant of a patni lease, and the only question in the appeal is whether a certain document described as a "bainapatra, that is, a document evidencing the payment of earnest money, not being registered, is admissible in evidence. The contention of the defendant respondents is that the document in an "agreement to lease" within the meaning of Section 3 of the Registration Act, and that under Section 17 of the said Act registration was compulsory.

(2.) The contention of the plaintiff appellant on the other hand is that the bainapatra is primarily an acknowledgment of receipt of money and thereafter a mere agreement creating in the plaintiff a right to obtain a document of title within the meaning of Clause (v) of Section 17 (2) of the said Act. The essential portions of the document read as follows: This bainapatra for granting patni of (my) share in (a) Zemindary is executed in the year 1318 and is as follows:--....The said mahal was settled with you in patni at an annual rent of Rs. 90-4-0. At present I have purchased the said mahal in execution of a rent decree and have taken khas possession by planting a bamboo. Now it being settled...that Rs. 901 is the premium due by you to me for the grant of a patni lease of the said mahal...and it being thus settled that in all Rs. 1,386-1- 3 is due to me by you, having taken from you Rs. 785 on my promise to grant you a patni lease again (with effect) from this date at the annual rent of Rs. 42-8-0...I do execute this bainopatha, Registered patta and kaabuliyat will be exchanged before the 30th Aghran of the current year.

(3.) In the case reported as Hemanta Kumari Debi v. Midnapore Zemindari Company Limited 53 Ind. Cas. 534 : 24 C.W.N. 177 : 37 M.L.J. 525 : 17 A.L.J. 1117 : (1920) M.W.N. 66 : 27 M.L.T. 42 : 11 L.W. 301 : 46 I.A. 240 : 31 C.L.J. 238 : 22 Bom. L.R. 488 : 47 C. 485 (P.C.) their Lordships of the Judicial Committee, quoting with approval the language used by Sir Lawrence Jenkins, C.J., in Panchanan Bose v. Chandi Charan Misra 6 Ind. Cas. 443 : 37 C. 808 : 14 C.W. N. 874, held that before an agreement can be held to be an agreement to lease within the meaning of Section 3 of the Registration Act, it must be one which operates as a lease, creates an immediate and present interest and effects an actual demise.