Lallubhai Shah, Kt., Acting C.J.
1. The facts which have given rise to this Second Appeal are these. One Girjashankar made a will in respect of his properties on September 3, 1907, and he appointed the present plaintiffs as executors under that will. He died in October 1907. Thereafter in 1908 a suit was filed by his widow against the present plaintiffs and the present defendant No. 1, who is the sister of Girjashankar. In that suit there was a compromise. In accordance with that compromise, a decree was passed in favour of the then plaintiff, i. e., the widow of Girjashankar, so far as it related to the suit. The rest of the agreement being outside the scope of the suit was not incorporated in the decree. The present defendant No. 1 sold the properties in suit to defendant No. 2 in April 1917.
2. Thereupon the plaintiffs filed the present suit in December 1917 with a view to enforce the agreement relating to their right of pre-emption in respect of the two houses in suit.
3. The defendants raised various defences, one of which was that the agreement under which the plaintiffs claimed the right of pre-emption required to be registered, and that as it was not registered, it was inadmissible in evidence.
4. The trial Court overruled this plea, and on other points, which need not be detailed; the learned Subordinate Judge decided in favour of the plaintiffs. It accordingly passed a decree in their favour, holding in effect that on the plaintiffs paying Rs. 650 in Court for payment to defendant No. 2, the properties were to be conveyed to the plaintiffs
5. The defendants appealed, and in appeal the learned Assistant Judge came to the conclusion that the agreement required to be registered, and accordingly dismissed the plaintiffs' suit. The learned Judge also remarked that even if he had confirmed the decree of the trial Court, he would have found it necessary to remand the case for findings on the issues relating to the validity of the bequest in the will relating to dharmada.
6. The plaintiffs have appealed to this Court and the point as to registration has been argued before us. It is urged on behalf of the plaintiffs that the agreement does not require registration, and that the decree of the trial Court is right. The agreement as to pre-emption is in these terms: 'If the plaintiff and defendant No. 1 wish to sell the houses situate at Singlav, they should firt sell them to trustees Nos. 2 to 6 at the market value: that is to say, first right in respect of 'safil' is to be reserved for them and accordingly they have been given by this document a right in respect of 'safil''. The plaintiff and defendant No. 1 referred to in the agreement are the widow and the sister of Girjashankar, The lower appellate Court has relied upon the decision in KaskiKunbi v. Sumer Kunbi I.L.R. (1910) All. 206 in support of its view and the same decision has been relied upon before us on behalf of the respondents. On behalf of the appellants reliance in placed in support of the argument that the agreement does not require registration upon the remarks in Ramasami Fattar v. Chinnan Amri I. L. R. (1901) Mad. 449
7. Apart from the authorities, we think that this agreement is an agreement between the parties which could be enforced by the present plaintiffs, and that it does not create any right in immoveable property It cannot stand on any footing higher than an agreement to sell immoveable property. In terms and in effect it is merely an agreement to sell to certain persons in case the widow or the sister wished to sell the houses which they got under the compromise. It would in any case, when the occasion for pre-emption would arise, be enforced as an agreement, and the plaintiffs in the present suit seek to enforce that agreement against the owner (defendant No. 1) and the purchaser from her (defendant No 2).
8. In the case of Ramasami Pattar v. Chinnan Asari I. L. R. (1901) Mad. 449 to which we have referred, Bhasbyam Ayyangar J. observes as follows:
In cases in which the right of pre-emption springs from a contract it rests only up in a covenant which does not run with the land. Being only a species of contract for the sale of immoveable property the contract of pre-emption stands on no higher footing than a contract for the sale of immoveable property and does not of itself create any interest in or charge on the immoveable property which is subject to the right of pre-emption-vide Section 54 of the Transfer of Property Act, Until the contract is carried out by specific performance either by act of parties or decree of Court, the pre-emptor acquires no title to or interest in such property which alone can extinguish the mortgagor's right of redemption though he may have a right to call for a conveyance of the property.
9. This view is no doubt in conflict with the decision in Kaehi Kunbi v. Sumer Kunbi I. L. R. (1910) All. 206. We have considered the ratio decidendi in this case, and with great respect we are unable to concur in the view taken in that case that an agreement, such as we have here, requires, registration. We are not concerned in the present case with the question as to whether the compromise, so far as it related to the title of the various parties to the immoveable property and so far as it has not been incorporated in the decree, required registration or not. We are only concerned with the question as to whether this particular agreement relating to the right of pre-emption requires registration. On that point, as we have already indicated, the agreement could be proved without registration; and there can be no doubt in that view of the matter that the present plaintiff's are entitled to the decree which was passed in their favour by the trial Court.
10. We should like to make it clear that we agree with the lower appellate Court that 'the properties pre-empted should be only those that are sold by Exhibit 17, and that the present plaintiffs should take them only in their capacity of trustees or executors of Girjashankar's will so that they will be bound to fulfil the directions in the will.' It is hardly necessary to add this because in any case, the present plaintiffs are bound to fulfil their obligations with respect to that property as executors under the will when they get the property in suit.
11. There is one other point as to which we may add a word. The lower appellate Court has expressed the opinion that a remand would have been necessary in order to determine in this suit whether certain bequests were not void on account of uncertainty and vagueness. That is a point which does not arise in the present suit. It is entirely outside the scope of the suit, and the question as to whether any property which the executors may hold should be used as directed in the will, or that there is any intestacy in respect of any part of that property, is a question which cannot possibly be considered in this suit.
12. In the result, therefore, we allow the appeal, reverse the decree of the lower appellate Court and restore that of the trial Court with costs here and in the lower appellate Court on the defendants.