KUBAD MIA Vs. GUHI MIA

JUDGEMENT

(1.) This is a Letters Patent appeal from a decision of Agarwala J. dismissing a second appeal. The suit out of which the proceedings arose was brought by the plaintiff claiming specific performance of a certain agreement entered into between him and the father of defendants 1 and 2. The learned Munsif who heard the suit decreed the plaintiff's claim; but on appeal the learned Additional Deputy Commissioner, Subordinate Judge of Dhanbad, reversed the decision of the Court below and dismissed the claim. He held that the agreement sought to be specifically enforced could not be tendered in evidence and therefore the plaintiff could not prove his claim. The plaintiff appealed to this Court; but Agarwala J. held that the decision of the lower Appellate Court was right and dismissed the appeal. It is against that decision that the present Letters Patent appeal has been preferred. The agreement in question was entered into between the plaintiff and the father of defendants 1 and 2 in the year 1926 and is in these terms: I, Nilkantha Ghati of Metala Pargana Nagar Keari, execute this deed of security (thika abadha) to this effect: For giving you kabala of my homestead land which appertains to my share in my maurashi mukarrari mauza which is plot No. 813, described in Schedule 3, the total amount is settled at Rs. 800 in the presence of five gentlemen and out of that agreed sum I receive Rs. 200 and give the property as security to you. As long as you do not pay the remaining Rs. 100 which is fixed for sale deed (kabala) so long you will not be able to erect any house on the land but you will remain in possession in bringing it under cultivation, to that I or my heirs will not take objection. On the day you pay the remaining Rs. 100 for sale deed (kabala) I shall be bound to execute registered sale deed (kabala) after fixing the proportionate rent of the said land. To this elect after receiving Rs. 200 I execute this deed of security after giving the said land as security.

(2.) The plaintiff paid the sum of Rs. 200 and obtained possession of the land. However, he has not paid the remaining sum of Rs. 100, though he is ready and willing to-do so. Defendants 1 and 2 later settled the land with other defendants who ejected the plaintiff therefrom, and accordingly the latter brought this suit seeking specifically to enforce the contract and to compel defendants 1 and 2 to execute a sale deed in his favour on receipt of the balance of the purchase money, namely Rs. 100. As I have stated, the learned single Judge of this Court held that the agreement sought to be specifically enforced could not be put in evidence by reason of the fact that it had not been registered, and therefore the plaintiff could not prove his case.

(3.) The only question in the appeal therefore is whether this document is one requiring registration, because if it does not require registration then it could be adduced in evidence to establish the plaintiff's case. Section 17(1), Registration Act, sets out the documents which require registration, and Sub-clause (c) requires all non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest in immovable property to be registered. Sub-section 2, Clause (v) of this Section however provides that "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 immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest" need not be registered.