1. The first point for consideration is whether the document on which the suit is brought is one of which the registration was compulsory under Section 17 of Act III of 1877. It is an agreement or 'bargain-paper' as it is styled, to sell a House, and acknowledge the receipt of Rs. 1,000 from the purchaser as earnest-money. The vendors were to make, out a good title and to get approved, through the purchaser's solicitors, as being of good title, a deed of sale of the house, according to law, within a period of two months, and to deliver the same. In the event of a good title not being made out, the bargain-paper was to be null, and the earnest-money was to be returned. In Burjorji Cursetji Panthaki v. Muncherji Kuverji I.L.R. 5 Bom. 143 an unregistered document containing an agreement to sell, acknowledging receipt of earnest-money and providing for the execution of a deed of sale was held by West, J., to be one which, being unregistered, could not create or assign any interest in immoveable property. The only right created, by it was held to be one in personam,--a right to obtain another document which would, when executed, effect the desired purpose, if the execution were accompanied by registration. At the hearing, I followed this, the latest ruling of this Court; but as it appeared that there were conflicting decisions on the point by the several High Courts, including this Court, the question was reserved for further consideration in the judgment.
2. A recent Madras case, Ramasami v. Ramasami I.L.R. 5 Mad.; 116 was relied on by the defendants, in which the vendor of a village wrote a letter to the vendee, stating that an agreement had been made between them for the sale of certain land for Rs. 4,500; that the vendor had received Rs. 500, and was only entitled to receive the balance after executing the sale deed within a certain date and had no connection whatever with the land. The Court held that the instrument was not within the exception of Clause (h) of Section 17 of Act III of 1877, as it 'of itself' declared a right, title and interest in the purchaser which had passed to him from the vendor. In that case, though, a further instrument was contemplated between the parties, yet no uncertainty was left as to the extent of the purchaser's interest already in existence when the letter was written, There had been an absolute sale of the land, and such sale was declared in the letter itself. The case, therefore, can be distinguished from the present case,
3. In a recent Calcutta case, Sreegopal v. Ramchurn I.L.R. 8 Calc. 856 the agreement for the purchase and sale of certain immoveable property provided that the completion of the contract should be subject to the approval of the purchaser's solicitors, and that, if they should not approve of the title, the vendor should return the purchase-money, and pay all costs incurred in investigating the title. That case and the present are, therefore, similar; and Wilson, J., hold that if a document only entitled a person to a future right in immoveable property, it was not within Section 17 of Act III of 1877, and ruled that the document in question was admissible without registration, as there 'was something to be done under this agreement, namely, the payment of the purchase-money on one side, and the execution of the conveyance on the other'
4. In an earlier case, Mark Currie v. S.V. Muttu Ramen 3 Beng. L.R. 126--a case under Act XX, of I866, which contained no express provision similar to Clause (h) of Section 17 of the present Registration Act (III of 1877),--Sir Barnes Peacock observed, with reference to the contention that a Court of Equity considers that as done which a party agrees to do: 'I do not dispute that position as a general rule; but it is not because a Court of Equity would treat a document as doing a thing which a party agrees to do, that the document comes within the meaning of an enactment which refers to a document by which the thing is done, and not to an agreement to do it. The two cases are very different and stand upon wholly different grounds.' And it was ruled that a document which was merely an agreement to create an interest of the value of Rs. 100 or upwards in immoveable property, but did not purport to create it, was not a document coming within the meaning of Clause 2 of Section 17 of Act XX of 1866, although a Court of Equity would compel specific performance of it. This ruling was followed by the Bombay High Court in Jusab Haji Jafar v. Haji Gul Mahomed 12 Bom. H.C. R175. In that case, as in the present, the document was a 'bargain-paper' for the purchase of immoveable property, and acknowledged the receipt of Rs. 1,000 as earnest-money. Sir C. Sargent distinguished the case from Fattehchand v. Lilamber 14 MI.A. 129 in which the instrument acknowledged the payment of the entire purchase-money. Fattehchand's case was one for specific performance of an agreement for sale of real estate, and the only question before the Privy Council was whether the unregistered agreement could be received in evidence under Act XX of 1866. The judgment pronounced by Sir James Colville contains the following passage: 'The Registration Act No. XX of 1866, recently passed in India, is extremely stringent, Their Lordships have, in the first place, no doubt whatever that the instrument in question is one which by Clause 2 of Section 17 of that Act is required to be registered; that it is an instrument acknowledging the payment of the consideration money for what was to be ultimately an absolute sale of the property in question, and what in equity would operate as a sale of the property.' In the foot-note at p. 195 of the report of the case of Valaji Isaji v. 'Thomas I.L.R. 1 Bom. 190 it is remarked that the decision of the Privy Council in Fattehchand's case seems to overrule Currie's case, just referred to, and two earlier Calcutta cases to the same effect. In Valaji Isaji's case, the late Chief Justice of this Court was of opinion that the circumstance that, in Fattehchand's case, the whole of the purchase-money had been paid, did not affect the question of registration; and the registration of a writing, acknowledging receipt of Rs. 100, as part of the purchase-money of a bungalow, was held by Westropp, C.J., and Kemball, J., to be compulsory. This ruling, which was under Act VIII of 1871, is not referred to in the judgment of West, J., in Burjorji Cursetji v. Muneherji Kuverji I.L.R. 5 Bom. 143. There can be no doubt that the intention of the Legislature, in enacting certain exceptions to Section 17 of the Registration Act of 1877, was to mitigate the greater strictness of the requirements of Act VIII of 1871, and the earlier Registration Acts (see the remarks of Green, J., in Raju Balu v. Krishnarav I.L.R. 2 Bom. 281. The reasons for Clause (h) were explained in the Legislative Council when the changes in the former law were under consideration. I refer to the debates in Council, not for the purpose of interpreting the present Act, which must be construed on a consideration of the language actually used in it but only to ascertain what, as a matter of fact, was the object which, the Legislature had in view. In introducing the Bill, which was subsequently passed as Act III of 1877, Sir C. Hob-house explained that, under the proposed addition to Section 17, it would not be necessary to register an agreement to execute a conveyance of land. 'The agreement', he remarked, 'would give the owner of it no absolute right to the land; and if, before he got his conveyance, another person took a conveyance and registered it, acting honestly, the agreement would be displaced.' And when certain amendments were moved, Mr. Cockerell said that the direct object of this provision was 'to save a person from having to register two deeds in relation to the same subject-matter, executed for the purpose of giving effect to a single transaction regarding it.' It appears, therefore, that the framers of the present Act intended that the registration of such documents as the bargain-paper in the present case should not be compulsory. I think that effect has been given to that intention sufficiently, if not very clearly, by the language used in Clause (h) of Section 17 of Act III of 1877. A document is apparently within the exception if it does not 'itself', by its express terms, create a certain interest in immoveable property but expressly contemplates the creation of that interest by a subsequent document. The exception seems to apply to a contract of sale and purchase, of which a Court of Equity would only under certain circumstances decree a specific performance. And the decision of the Privy Council in Fattehchand's case cannot apparently now be held to govern such a case as the present. I adhere, therefore, to the decision already given at the hearing as regards the admissibility of the bargain-paper on which the present suit is brought.