Norman Macleod, Kt. C.J.
1. These three suits arise from a lease executed by one Dhanlxmi to Narottamdas, on August 27, 1919, whereby Dhanlaxmi let out to Narottamdas a certain area of land for a period of three years at a certain rent, On September 30, 1919, the plaintiff alleged that the tenant surrendered the lease to her on payment of Rs. 15,000, being allowed to remain in possession for four months longer in order to remove his timber, But he did not surrender possession, and therefore, was liable for damages.
2. The question arose whether the two documents passed between the parties on September 30, 1919, required registration. The document passed by the tenant Narottamdas was as follows;-
I have taken on rent from you your land for Lati lying close to Kabir Wadi out of your land bearing Survey Number 320 situate within the aim limits of mouje Sher Kotda. The time fixed in respect thereof is three years, which has not yet expired, but you have to build a market on the land on which there in my Lati, for that reason an understanding is arrived at between you and me and the laud on which there is a Labi which is in my possession will be considered as being in your possession from this day. Now I shall have no right to the remaining period in respeob of the rent note. And at present there are lying my pieoes of timber wood and I am to remove the same within four months from this day, that is to say, by the 15th of Fob Sud of Samvat l976 (i.e., January 5, 1920) and deliver the laud into your possession and I am not to raise any objection with regard to the same. But the rent note which has been newly passed, is to be considered null and void and there is no dispute or objection as regards the fixed period, because you have satisfied my mind by payment of Rs. 15,000 to me in respect of my incomplete period. Therefore the land in my possession shall be considered as being in your possession from this day, only I shall remove the wooden pieces by the abovementioned time and deliver possession.
3. The document passed by Dhanlaxmi was somewhat shorter:-
I have let out on rent to you laud for Lati oar or my land situate within the aim limits of mouje Sher Kotda and bearing (Survey No. 320). The time fixed in respect thereof is three years, which has not yet expired. But I have to build market on the said Lati land. Therefore you have of your own accord entered into an agreement with me and have given up your right in respect of the period of the rent note from this day and you should remove your pieces of timber wood within four months from this day, that is by the 15th of Pos Sud of Samvat 1976 (January 5, 1920) and deliver the land into my possession and I should let out to you on rent for a period of three years 400 yards of land out of my other land situate near Panoh Kuwa Revdi Bazar, which has been given to Bogha Patel and others.
4. The trial Judge considered that these documents evidenced an agreement to surrender on terms, on which the parties were at issue, and they did not constitute a deed of surrender, and therefore, they did net require registration, The hearing of the suit then continued, and the remaining issues were decided on April 10,1924.
5. But, meanwhile, Narottamdas had filed a suit against Dhanlaxmi, being Suit No. 1187 of 1922, to recover Rs. 15,000 as damages for one year for breach of the agreement of September 30, 1919, on the allegation that he was to be paid Rs, 15,000 every year for three years of the original lease.
6. Dhanlaxmi filed Suit No. 1173 of 1922 to recover possession of the plaint land with mesne profits from the date of the expiry of the lease, and future mesne profits, That suit, of course, was entirely inconsistent with the first suit filed by her to recover damages on the ground that the lease came to an end on September 30, 1919.
7. The subordinate Judge dealt with all the three suits in one judgment, He found that the plaintiff, who had already obtained possession, should recover Rs. 6, 519-10-4 as damages due up to the date of suit, and also certain mesne profits on a certain area from the date of the suit till the date of the expiry of the lease, and on a certain area from August 26, 1922, to the date of delivery of possession which was February 8,1928. The other two suits were dismissed.
8. It will be seen, then, that Dhanlaxmi succeeded in the suit on all the issues. The Judge also went into the question whether Dhanlaxmi was to pay defendant Rs. 15,000 a year for three years, and whether she had paid Rs. 15,000 to the defendant Narottamdas on September 30, 1919. He found that it was proved that the plaintiff had paid Rs. 15,000 to the defendant and that the defendant had not proved that he was to be paid Rs. 15,000 a year for three years before the lease was cancelled.
9. The first question that arises in appeal is whether the Judge was right in holding that these documents, Ezhibits 14 and 38, did not require registration, It is difficult to follow the argument that they were merely agreements to surrender on certain terms that were still in dispute. The documents, as they stand, read together extinguish the rights created by the original lease of August 27, 1919, There can be no doubt with regard to the meaning of the words ' The rent note which has been newly passed is to be considered null and void.' So that from that date the rights and liabilities arising under the document of 1919 ceased. The position of parties as lessor and lessee no longer continued, while Narottamdas could only be considered as a licensee entitled to keep his timber on the premises for removal within four months. Those documents come under Section 17 (1) (6) of the Indian Registration Act and required to be registered. Under Section 49, if they are not registered, they cannot be received in evidence of any transaction affecting the property.
10. It has been contended by Mr. Koyajee for the respondent that the Court might look at those documents, although they are not registered, as evidence of an agreement to surrender the lease. Exactly the same argument was raised before Mr. Justice Coyajee and myself in Ramling v. Bhag-vant (1925) 28 Bom. L.R. 591. In that ease the case of Burjorji Cursetji Panthaki v. Muncherji Kuverji I.L.R. (1880) 5 Bom. 143 was relied upon, and after dealing with the argument in the judgment, that although a document creating an interest in immoveable property is inadmissible for want of registration, still it could be looked at, and admitted in evidence to prove the secondary purpose for which the document was exeouted, I expressed the opinion that, if such a document were allowed to be put in evidence to prove the agreement said to be contained therein, then the object and purpose of the Indian Registration Act would be completely defeated.
11. So, in this case, the parties having executed documents surrendering the lease, they required to be registered, Not having been registered, the Court cannot look at them. If parties in such a case could say 'It is true that we have evaded an obligation that lay upon us of registering the documents but still we can use the documents for some secondary purpose,' it must necessarily follow that an obligation imposed by the law to register certain documents would be practically set at naught Then it will be open to parties to say that it is not necessary to register a document, although it is compulsorily registrable, because they can use it for a secondary purpose. We think that these documents cannot be looked at at all, and the parties then are relegated to their rights and liabilities under the lease of August 1919.
12. We would dismiss the original suit No. 1106 of 1920 filed by Dhanlaxmi for damages.
13. We would dismiss the suit No. 1187 of 1922 filed by Narottam-das for Rs. 15,000 damages.
14. We would set aside the order in Suit No. 1173 of 1922 dismissing the suit, and remand the suit to the lower Court to ascertain what is due to the plaintiff for rent for the unexpired period of the original lease and for mesne profits from that date till the possession was delivered to the lessor.
15. With regard to the Rs. 15,000, which was said to have been paid by the lessor on September 30, 1919, it is true that in the plaintiff's Suit No. 1106 of 1920 the Judge held that that amount was paid in spite of the contention of Narottamdas that he had not received it, If, as a matter of fact, he did receive it, clearly he would be bound to refund on the ground that the consideration for which it was paid failed. We cannot consoder that question in any of these three suits, and we only express an opinion that, if Dhanlaxmi files a suit for recovery of that amount, as far as we can see, limitation would only run from this day when it was ascertained for the first time definitely by a decision of this Court that the transaction of September 30, 1919, could not be proved. Therefore, the consideration for which Rs. 15,000 is said to have been paid failed entirely.
16. Suit No. 1103 of 1920 (F. A. No. 240 of 1924) is dismissed with costs throughout. The cross-objections are dismissed with costs.
17. Suit No. 1173 of 1922 (F. A. No. 268 of 1924) is remanded to the lower Court to ascertain what is due to the plaintiff for rent for the unexpired period of the original lease and for mesne profits from that date till the possession was delivered to the lessor, the decree of the lower Court being set aside. Costs to be costs in the suit.
18. The cross-objections are dismissed.
19. Suit No, 1187 of 1922 is dismissed with costs throughout.