CHINNAKKAL Vs. CHINNATHAMBI GOUNDAN

JUDGEMENT

(1.) The plaintiff brings this suit for specific performance of an agreement for re-sale (Ex. B) dated 4 May 1906. The property claimed in this suit was sold by the plaintiff for herself and as guardian of her minor son, by a sale-deed, Ex. 1 of the same date as Ex. B, to the present defendants. The registered sale-deed makes no reference to the agreement to re-convey but this has been provided for by a separate document, Ex. B. It would appear that the defendants have spent some moneys upon improving the property and one of the questions raised by them is that in the event of specific performance being decreed, they are entitled to the value of improvements which the first Court has fixed at Rs. 200.

(2.) The first Court gave the plaintiff a decree for specific performance. But the learned District Judge reversed that decision, holding that Ex. B is inoperative for want of registration, if viewed as part of the same transaction with Ex. 1-as in that case the transaction will in effect be converted into a mortgage by way of conditional sale - but that if it be viewed independently of Ex. 1 it would be void for want of consideration. I am unable to agree with the learned District Judge on either of these grounds.

(3.) No question of registration can really arise as regards Ex. B. The necessity for its registration has got to be determined on the terms of Ex. B itself and there is nothing in those terms to create an interest in the immovable property, so as to bring it within Section 17, Registration Act. Nor does any objection arise under Section 92, Clause (4), Evidence Act, because it is not now sought to use Ex. B to affect the provisions of Ex. 1. As pointed out in the case in Harikishandas Bhagwandas V/s. Bai Dhanu 1926 Bom. 497, where the claimant under the option of re-purchase affirms the original transaction, as a sale and merely seeks to enforce a covenant for re-conveyance, he is not asking the Court to treat the transaction as one of mortgage by way of conditional sale.