Michael Westropp, C.J.
1. Agreement paper, Tuesday the 12th of the month of Waisakh Shoodh, the Shak 1796, the year being called Bhav (28th April 1874), on that day to Valaji Esaji and brother, Boharas, residing at Bohara Lane in Camp, Sadar Lane, Bazaar, Poona. From Mrs. J. Thomas, Madam, residing in Lascar Pet, Staff Poona. I give this agreement paper in writing as follows: There is my tiled bungalow, No. 2436, situated at East Street Lane. The agreement for the sale thereof to you by me for Rs. 4,300, four thousand three hundred, was to be made this day, but my creditor Balkrishna Sayapa has gone to Bombay. On his return after about (20) twenty days I will make and deliver a deed of sale in accordance with what is written above. Should I not make and deliver the deed of sale within that time, or on the return of the said person. I will make good whatever loss you may sustain. And Rs. (100) one hundred, which you have now paid as earnest, will be (considered) as forfeited if you do not buy (it). You shall have no claim thereto, and the said rupees one hundred which you have paid I have received in ready cash in full; therefore it is not necessary to give a receipt for the same. I have duly given this agreement paper in writing in my sound mind and of my free will and accord. The 28th of the month of April in the Christian year 1874.'
2. The Assistant Judge was of opinion, and in that opinion we concur, that this case is governed by the decision of the Judicial Committee of the Privy Council in Futteh Chund Sahu v. Leelumber Singh Doss 14 Moo Ind. App. 129; s.c. 9 Beng. L.R. 433. The only material difference between the two cases is, that in the Privy Council case the whole of the consideration for the sale had been paid, while in the present case there has been a payment of part of the consideration only. It does not appear to us that this difference affects the question of registration. The law applicable to the question is contained in Clauses (2) and (3) of Section 17 of Act VIII of 1871, which renders registration of the following instruments compulsory, viz.:
3. 'Instruments (not being wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property' (Clause 2).
4. 'Instruments (not being wills) whi/ch 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' (Clause 3).
5. In the present case the instrument (Exhibit No. 21) distinctly acknowledges the receipt of Rs. 100 as part of the consideration for the sale of a house to the plaintiff for the sum of Rs. 4,300. And we do not see how it is possible for the plaintiff to deny that the same instrument operates to create an interest in the house of the value of one hundred rupees and upwards. His claim is very unscientifically stated in his plaint, but we must take it to be of the nature of a bill by a purchaser for specific performance, and the very foundation of such a claim is that the contract between the parties did presently operate as a sale of the property. If it did so operate, the contract required registration. If it did not so operate, the plaintiff has no case.
6. The learned Advocate-General, in his argument for the special appellant (the plaintiff), has relied on a decision of Sir Charles Sargent in Suit No. 229 of 1874, decided 9th March 1875.* The report of the judgment in that case, which has been submitted to us, is very meagre, and we are inclined to think that it does not correctly represent all that the learned Judge said. But it is sufficient for us to say that in that case the instrument in question had been executed, not by the intending vendor, but by the intending purchaser, and, of course, therefore, could not operate to create any right, title, or interest to, or in, the property to be sold. The case of Hargovandas Girdharlal v. Balkrishna Kanoba (which was a suit against a purchaser), referred to at page 67, Vol. VII, Bombay H.C. Reports (O.C.J.), would (so far as we can gather from what is there said of it) appear to have been a case of similar nature.
7. The case of Kedarnath Dutt v. Shamlal Khettry 11 Beng. L.R. 405 also relied on by the learned Advocate-General, has no real bearing on the present case. That was the case of an equitable mortgage by deposit of title-deeds; and it was held that a subsequent memorandum, which was not the contract for the mortgage nor the agreement to give a mortgage,' did not require registration.
8. The judgment of this Court (Wextropp, C.J., and Kemball, J.) in special Appeal No. 420 of 1874, decided 13th October 1875, supports the view which we take of the present question. The reasons for that judgment are thus stated: 'This Court is of opinion that the yadi (receipt, Exhibit No. 9) of the 18th April 1872 being unregistered was by Section 17, Clauses 2 and 3, and Section 49 of Act VIII of 1871 inadmissible in evidence. If authority for this proposition were needed, we have it in Futteh Chund Sahu v. Leelumber Singh Doss (14 Moore Ind. Ap. 129), decided on the similar sections of Act XX of 1866. That exhibit (No. 9) was produced, not for the mere purpose of showing a payment, but of defending the title of Bhagai to possession of the land. The effect of the payment and acceptance of part of the consideration for the sale of the land to her, would be to give her an equitable estate in the land, and to leave to the plaintiff only a lien for that portion of the purchase-money which still remained due to him. The sum of Rs. 483 (the details of which are given) is stated in the yadi (Exhibit No. 9) to have been paid to the plaintiff on account of the sale by him to her of the land. It is unnecessary for us to say whether, if this were merely a suit by the plaintiff for the whole amount of the purchase-money, the defendant Bhagai might, in proof of a part-payment, give the receipt in evidence, and we do not now give any opinion on that point. It is enough to say that in a suit to recover possession of land, such as this is, the defendant cannot defend her title or possession by such a document, unless it be registered.' (See Mahadaji v. Vyankaji, infra, p. 197).
9. For these reasons we are of opinion that it has been rightly decided by the Assistant Judge that Exhibit No. 21 required registration; and, as the Assistant Judge states, as a fact, that, if this document be taken off the record, there remains no foundation for the plaintiffs' suit; and, as this fact has not been disputed before us, we confirm the Assistant Judge's decree with costs on the special appellant.