1. The decision of the point argued in Second Appeal is not free from difficulty. That point is whether Exhibit A in this case is inadmissible in evidence on the ground that it was not registered. The suit is for specific performance. The document purports to be an agreement for sale and it says, 'I shall execute a sale-deed on proper stamp paper.' The difficulty arises from other clauses in the instrument which, it is contended, show that Exhibit A itself was intended to pass the property. After setting out the receipt of the consideration for the sale (viz.), the discharge of part of the debt due to the intended vendee on a mortgage it says, 'I have sold to you and pat you now alone in the possession of the jeroity land.' Before the clause agreeing to execute the conveyance we have this clause, 'Therefore I have executed this agreement in your favour having agreed to your enjoying the same freely, hereditarily from son to grandson with power to alienate the same by sale or gift.' This clause is immediately followed by the covenant to execute a sale deed. Having given our best consideration to the construction of this document, we have come to the conclusion that the latter clause was put in only to indicate the terms of the conveyance to be thereafter executed. The vendor agreed to execute a conveyance having already agreed under Exhibit A that by that conveyance the vendee should enjoy the property hereditarily. The first clause 'I have sold to you,' in our opinion, really means 'I have entered into a binding agreement to sell to you.' Possession was given at once, but possession was to be held under the conveyance to be executed subsequently.
2. As already stated, what the parties purported to enter into was an agreement to sell. In our opinion this document was not intended to be the record of any conveyance in praesenti by the vendor to the vendee, but merely embodies the terms of the conveyance to be executed subsequently.
3. In this view it is unnecessary to consider the cases that have been cited. The test is whether, according to the intention of the parties as expressed in the instrument, there is a present conveyance of the property, or only an agreement to create a future right.
4. There is authority for the position that even if a present right is created, the instrument would be admissible as evidence in a suit for specific performance. See Nagappa v. Devu (1891) 14 Mad. 55 and Upendra Nath Banerjee v. Umesh Chandra Banerjee 15 C.W.N. 375.
5. We hold, therefore, that this document should not have been rejected by the lower Appellate Court. We reverse the decree of the Subordinate Judge and remand the appeal for fresh disposal according to law.
6. Costs will abide the result.