1. This is a first appeal from the decision of the First Class Subordinate Judge at Ahmedabadi and the principal question involved is whether specific performance of an agreement executed by the original first defendant should be granted in favour of the plaintiff. The short facts are that the plaintiff, who was a minor, was to be married to defendant No. 2. Defendant No. 1 was the great-aunt of defendants Nos. 2 and 3, who were brothers. Defendant No. 3 had been married before and a house had been transferred to his name. On the occasion of the betrothal of the minor plaintiff to defendant No. 2 the palla of Rs. 1,000 was fixed and Rs. 600 more were agreed to be paid in cash. The ' Chanlla' took place on December 2, 1929. At about that time there was a talk of transferring the house by defendant No. 1 to the name of the; plaintiff and defendant No. 2, and defendant No. 1 directed the purchase of a stamp paper in that connection. An agreement, the terms whereof I shall presently discuss, is stated to have been executed by defendant No. 1 on December 3, 1929. The original agreement bears the thumb-mark of defendant No. 1 and that signature is amplified by defendant No. 3. It is also attested by independent witnesses. On the next day (December 4, 1929) another document in respect of the payment of the palla money was drawn up and executed. The marriage took place on December 14, 1929. Defendant No. 1 contended that shortly before the marriage procession started the plaintiffs father intimated that he would not give the girl in marriage unless the document regarding the transfer of the house was executed, and that under the circumstances she put her thumb-mark on the same. In the memorandum of appeal various points have been raised. Mr. Desai, who appears on behalf of the appellant, did ask for leave and urged two more points in support of the appeal. The bulk of the argument was on those additional points.
2. He first contended that the document itself created rights in immoveable property and therefore compulsorily required registration under the Indian Registration Act. The document not being registered not only did not affect any immoveable property but was not admissible in evidence under Section 49 of the Indian Registration Act. The agreement being in writing, the terms thereof cannot be proved orally under the Indian Evidence Act. He therefore contended that the suit must fail. When he was pointed out that the addition of the proviso to Section 49 of the Indian Registration Act altered the situation, it was urged on behalf of the appellant that the amendment was not retrospective, and that as the document was executed before April 1, 1930, the rights of the parties were not controlled by the proviso. The second part of his argument was that in any event the terms of the document were indivisible, and that therefore if on account of certain provisions in the document it was not admissible in evidence, the whole of it should be excluded. As regards the first contention, after considerable controversy, it was held in Tukaram v. Atmaram : AIR1939Bom31 that Section 53-A of the Transfer of Property Act (which was enacted by the Amendment Act XX of 1929) is retrospective in effect. Our attention has been drawn to Kanjee and Mooljee Bros. v. Shanmtnugam Pillai I.L.R. (1932) Mad. 169. The learned Judges there held that Section 53-A was not retrospective. There are observations in that case to the effect that the proviso to Section 49 of the Indian Registration Act is equally not retrospective. The proviso to Section 49 of the Indian Registration Act, in my opinion, is necessarily retrospective. It is a rule of evidence and normally as it does not create or defeat substantive rights, according to the recognised canons of construction, it should be accepted as retrospective. No authority is cited in respect of the proviso to Section 49 of the Indian Registration Act barring the observations in Kmjee and Mooljee Bros. v. Shanmugam Pillai. We prefer to follow the decision of our Court in Tukarum v. Atmaram. In my opinion as the proviso has a retrospective effect, the document is admissible in evidence. This suit was filed after April, 1930, and there arises no controversy about the extent to which the proviso can be made retrospective. The first contention urged on behalf of the appellant therefore fails.
3. The document contains the following provisions : Defendant No. 1 agreed that after the marriage of the plaintiff and defendant No. 2 they should live in the same house in which defendant No. 1 used to live along with her, and she hoped that they would look after her (defendant No. 1) in her old age. She agreed that if the plaintiff got a son and when that son became twenty years of age, the said son would become the exclusive owner of the said house, and in case the plaintiff did not give birth to a son, then the plaintiff when she attained the age of forty-five would be the exclusive owner of the house. She then expressly stipulated that another pucca document was to be given in writing in accordance with that document, and the same was to be registered. The document then proceeds as follows :-' And if I do not execute the second document and get it registered, then I have got the right to live in the house while I am alive, in accordance with this document which I have given in writing; but I shall have no right of ownership left and the right of ownership is yours.' It appears that some months after the marriage when defendant No. 1 was called upon to give a proper document and get it registered as provided in this writing, she did not do so. The suit was thereupon filed. The contention urged on behalf of the appellant is that the last quoted words themselves create ownership in the plaintiff, on a default being committed. It is therefore urged that no independent document under those circumstances is contemplated, and that there can be no right to specific performance, i.e. to obtain another document which would create a present ownership. In furtherance of the same argument it is urged that as the second part of the document comes into operation on the failure of the condition precedent, the enforcement of the right is interdependent, and as the first part has failed and the second part contains no agreement to give a document in writing, there can be no specific performance.' In my opinion, this is not a correct reading of the writing at all. In the first part defendant No. 1 agreed to pass a conveyance on certain contingencies happening either in favour of the plaintiffs son or the plaintiff. She further covenanted that if she failed to give a pucca writing, when demanded, the only right left in her was to reside in the house and that she continued to have no right of ownership. The right to claim ownership thereupon became-vested in the plaintiff. In my opinion that only means that on failure of defendant No. 1 to give a pucca writing when demanded there arose in the plaintiff an immediate right to demand a conveyance in her own favour of the property as an absolute owner. The first portion of the document provides for a right to claim a conveyance in favour of the plaintiff's son when he attained the age of twenty years or in favour of the plaintiff when she attained forty-five years. A proper document which was to be registered containing all these terms was agreed to be given. But if defendant No. 1 attempted to resile from that position, the document itself provides that defendant No. 1 agreed to give an immediate conveyance in favour of the plaintiff. I do not think the two covenants are indivisible. The rights of the parties, under certain circumstances, are denned in the first part. If that did not happen, the rights of the parties are to be as stated in the latter part of the document. The argument therefore that because the clause is indivisible it is not admissible in evidence also fails.
4. The only other contention urged was that the writing was obtained from defendant No. 1 under pressure. The argument was two-fold. It was urged that the evidence established a case of undue influence. The learned advocate for the appellant drew our attention to the relevant evidence on the point, and we are satisfied that there is no reason to differ from the conclusion of the learned trial Judge on that point. The independent witness Budhalal in whose presence the palla money was.paid was examined. The case of defendant No. 1 was that the document was executed at the same sitting in his house when the money was paid in the presence of Budhalal. Budhalal does not support this case. The other witnesses, namely, defendant No. 3 and a relation of defendants Nos. 1 and 3, who attested the document, were examined, and their evidence is not accepted by the trial Court. We see no reason to differ from that conclusion. The contention that the document was obtained through undue influence fails.
5. The alternative contention was that under Section 28, Clause (b), of the Specific Relief Act specific performance in any event should not be granted under the circumstances of the case. This argument, in my opinion, is not justified ; nor is it helpful. In a case of this kind if specific performance is not ordered, the plaintiff will be entitled to claim damages which under the circumstances would be the value of the house. There is no other impediment to executing a conveyance transferring the immediate ownership of the house to the plaintiff, and therefore in my opinion the contention is not helpful. Besides I am unable to find adequate grounds for upholding the contention that there was any undue pressure or misunderstanding. Defendant No. 1's own evidence is that at about the time of the betrothal there was a talk of transferring the house in favour of the plaintiff, and that she herself directed the purchase of the stamp paper. She further admitted that she was asked to sign the document shortly after the betrothal but she had refused. Ultimately she signed it It was signed in the presence of defendant No. 3, on her own evidence. Accepting therefore the bulk of the statement of defendant No. 1, she had ample opportunity to consider her own position and to consult defendant No. 3. Having taken into consideration all the facts she agreed to execute and did execute the document. I see no reason therefore why specific performance should not be granted.
6. Defendant No. 3 was one of the consenting parties to the document. In his evidence he admitted that when defendant No. 1 was asked to execute the document he (defendant No. 3) said 'no' ; but defendant No. 1 said that out of respectability it should be done. The learned trial Judge on a consideration of the whole evidence has come to the conclusion that defendants Nos. 2 and 3, who were the next reversioners, consented to the agreement, and I see no reason on the evidence to differ from that conclusion. The evidence satisfactorily establishes that defendant No. 3, who is in fact now the reversioner (as the original defendant No. 1 is dead), had agreed to the terms of the agreement of December 3, 1929, and specific performance should also be decreed against him. The conveyance to be drawn up and which defendant No. 3 will be asked to execute will be a conveyance transferring the immediate ownership of the house in favour of the plaintiff. The original defendant No. 2 is dead and the plaintiff is the sole party entitled to the conveyance in her own name.
7. The result is that the appeal fails and is dismissed with costs.