1. The plaintiff is the owner of a fourth share in the melvaram right of Kavoor village. The first defendant having obtained a decree in Original Suit No. 24 of 1898 in the Subordinate Court of Madura East for a threa-twentieth share of the melvaram right, the plaintiff's guardian entered into an arrangement with the first defendant whereby the first defendant was to have a mortgage of the plaintiff's right to the fourth share of the rents due to him from fasli 1310 as security for the first defendant's share of the rents for faslis 1307 and 1308 unlawfully received by the plaintiffs father. The transaction was in substance a mortgage of future rents due for the plaintiff's share to the first defendant. Both the Courts below have held that the document being unregistered was inadmissible in evidence. The Munsif gave a decree to the plaintiff for the sum of Rs. 496-8-6 holding that the first defendant was a trespasser. The District Judge on appeal has dismissed the plaintiff's suit. Ha has come to the conclusion that the act of the de facto guardian, the fourth defendant, in placing the first defendant in possession of the plaintiff's fourth share was bond fide and justifiable, and although exhibit. I was inadmissible, the first defendant could not be treated as a trespasser, and the plaintiff was therefore not entitled to any damages. In support of this second appeal the learned Advocate-General argues that the first defendant's possession and his right to apportionate the plaintiff's share of the rents towards his claim for faslis 1307 and 1308 only arose under the mortgage, exhibit I, and, on the footing that that instrument was invalid, the defendant's possession could only be treated as that of a trespasser and that the plaintiff was therefore entitled to recover. We think his contention must be upheld. The learned vakil for the respondent did not attempt to support the judgment of the District Judge on the ground stated by him, but he argues that exhibit 1 was receivable in evidence because it did not require registration. We are unable to agree with this view. The document was a mortgage of the plaintiff's right to future rents. It was over one hundred rupees in value. By Section 3 of the Registration Act immoveable property is defined as including 'any other benefit' to arise out of Iand. The question is whether future rants payable in respect of land are benefits to arise out of land. It has never bean doubted that a lease by a Zamindar or a transfer by him of the zamindari interest, which is generally the right to the melvaram, is a transfer of immoveable property. If the assignment is, however, of an arrear of rent, the benefit has already arisen out of the land and is therefore outside the definition of immoveable property. It has been held that a lease of a right to market dues upon a certain land requires registration as an instrument dealing with a benefit to arise out of land [see Sikandar v. Bahadur I.L.R. (1905) All. 462], though the profits which have already accrued from a lambardar were held not to fall within the definition of immoveable property [see Damodar Das v. Girdhari Lal I.L.R. (1905) All. 56]. The decision in Venkaje Babaji Naik v. Shidramapa Balapa Desai I.L.R. (1895) Bom. 663, seems, almost exactly, to cover, the present case. There, a right to assessment due upon certain land was assigned by an unregistered instrument. It was held that the instrument required registration as the assessment had not accrued due at the date of the assignment, but was only to become due in future.' It has no doubt bean decided that a sale of indigo crop of the coming year operates merely as an agreement to convey, and that the conveyance takes effect only after the crops have come into being [see Misri Lal v. Mozhar Hussain I.L.R. (1886) Cal. 262, and Bansidhar v. Sant Lal I.L.R. (1888) All. 133]. No question arose in these cases as to registration, though it may be pointed out that growing crops are within the definition of moveable property. The principle laid down in those cases is in accordance with Gollyer v. Isaacs (1881) L.R. 19 Ch. D. 342 and Holroyd v. Marshall 10 H.L.C. 191, Sir George Jessel observes in the first of these oases 'a man cannot in equity any more than at law assign what has no existence, A man can contract to assign property which is to come into existence in future and, when it has coma into existence equity treating as done that which ought to be done fastens upon that property and the contract to assign thus becomes a complete assignment.' We do not know that the rule here laid down as to after-acquired chattles has anything to do with the assignment of future rents which a lease of the melvaram generally is. But however this may be, the question narrows itself to this 'whether within the meaning of the Registration Act future rent is a benefit to arise out of land?' If that should be so, we have only to see whether the instrument purports to create or assign any right, title or interest in such property. It would be compulsorily registrable under Section 17, if the value of the interest which the document purports to create is one hundred rupees or upwards. We are therefore bound to hold that exhibit I cannot be received in evidence and that there is no answer to the plaintiff's claim for damages.
2. In estimating the damages the District Judge has held that the defendants are entitled to a reduction as regards some damage caused by fire. The Advocate-Ganaral has made no exception to this. The plaintiff's share therefore of the loss must be deducted from the damages awardable. The plaintiff is entitled to a decree for Rs. 496-8-6 minus Rs. 124-8-6.
3. The decree of the District Judge will be reversed, and the plaintiff will have a decree for Rs. 372 against the first defendant personally with interest at 6 per cent, per annum from this data and against defendants Nos. 2 and 3 to the extent of their share in the joint family properties. Each party will bear his costs throughout.