Abdur Rahman, J.
1. A suit for specific performance of a contract to sell certain immovable properties exceeding Rs. 100 in value was instituted by the plaintiff. It was dismissed by the District Munsif of Nandalur on the ground that the document (Ex. A) on the basis of which it was brought was not an agreement to sell on which a suit for specific performance could be founded but a sale deed that was inadmissible in evidence for want of registration. On appeal, the learned District Judge of Cuddapah did not accept this view. Having regard to the specific recitals in the document, he found it to be an agreement to sell and in the absence of any express words of conveyance he declined to hold it to be a sale deed. The plaintiff's suit was accordingly decreed. The defendant has preferred this second appeal. Since a great deal would depend upon the terms of the letter Ex. A, it may be reproduced in extenso:
To Dated 25th April 1938
Raja Sree Gubboru Subbayya Garu, son of Seshayya Garu. Afterwards: For payment of circar cists and for family necessity, I have borrowed of you Rs. 300 (three hundred only).
A-1. (For this money by the 25th May, I agree to sell the schedule mentioned properties to you and execute the sale deed on a proper stamp and get it registered.)
A-2. (If I fail to do so, you should treat this letter itself as a sale deed, get into possession of the properties and enjoy them with rights of gift and sale etc.) This is the letter executed with my consent.
2. There can be no manner of doubt that the second sentence in Ex.A (and marked A-1 by me) contains an express agreement to sell the property in consideration of a sum of Rs. 300 which was acknowledged to have been borrowed by Chenchiah from the plaintiff. It is conceded by Mr. Raghava Rao, learned counsel for the appellant, that no exception could have been taken to the decision of the learned District Judge if the document had ended here. He contends, however, that in view of the following sentence (and marked A-2 by me) where the parties had agreed to treat this letter itself as a sale deed In the event of Chenchiah's failure to execute one within the time mentioned by him in this letter, Ex.A must be regarded to be a sale deed under which title to the property must have been intended to bo conveyed in favour of the respondent from the date on which it was executed, or at all events, as one purporting to create a future or contingent right ov interest in immovable property of more than Rs. 100 in value and that in either case, it would not be admissible in evidence.
4. I shall deal with this contention later. But it seems to me that the objection taken to the admissibility of the document which is being pressed before me and which was perhaps discussed before the trial Court during the final arguments of the case is different from what was raised in the pleadings filed on behalf of the defendant. In reply to a suit for specific performance, it was urged on behalf of the defendant in the trial Court that the plaintiff could not maintain the suit upon an unregistered document. Whatever might have been the law before 1929 the proviso added to Section 49, Registration Act by the Amending Act 21 of 1929, expressly provides that an unregistered document affecting immovable property may be, even if not registered, received in a suit for specific performance as evidence of a contract. The fact therefore that Ex. A is not registered cannot prevent its portion (A-1) from being admitted in evidence in the present suit which is one for specific performance. The portion A-1 is absolutely clear and provides ample evidence of an agreement by Chenchiah to sell the properties mentioned in the letter. The objection therefore that the plaintiff cannot maintain the suit upon an unregistered instrument must fail unless the portion A-1 can be found to have become inadmissible in evidence because it happens to be embodied in a document which would not be admissible unless it was registered. This is on the assumption that the portion marked A-2 falls within Section 17 (i)(b), Registration Act. It is not possible, however, to hold that Clause (A-1) containing an agreement to sell can, in view of the proviso to Section 49, be ignored on that account. Exhibit A must be for that purpose regarded to be a composite document and Clause (A-1) is easily detachable from the rest. I must therefore hold that the portion A-1 would be admissible in evidence if the main contention advanced by learned counsel for the appellant before me is not permitted to be raised or does not prevail if so permitted.
5. Mr. Raghava Rao's contention, if carefully analysed, is that in so far as the words in the clause marked A-2 amount to a conveyance, this portion must be held to be inadmissible in evidence under Section 17 (i)(b), Registration Act. The second step in the argument is that as the terms of the contract were reduced to writing no other evidence could under Section 91, Evidence Act, be permitted. And the third and final step is that as the clause relating to the agreement to sell must be taken to have merged in the conveyance, the only remedy available to the plaintiff was to get the conveyance registered but if he did not pursue that remedy, he must be found to have lost his right to enforce the agreement to sell. I must say at once that the third and final step in the argument cannot, in my opinion, be permitted to be advanced as the plea of merger, which forms the foundation for this contention, was never raised by the defendant in her written statement. Inasmuch as the question whether the agreement to sell contained in A-1 had ceased to exist was one of intention of the parties to the contract and being one of fact or in any case one of mixed law and fact, it should have been specifically raised in the written statement. But even if it were not so, I am not impressed by the contention.
6. It must be remembered that the plaintiff is not trying to enforce the contract of sale contained in A-2 as distinguished from what is found in A-1. He is suing for specific performance of a contract to sell and does not therefore need to give evidence as to the terms of sale as alleged to be stated in A-2. For his purpose, so far as this case is concerned, it is needless to refer to A-2 altogether. From that point of view, it is unnecessary to find whether A-2 is admissible in evidence or otherwise. Moreover, if the title to the property has not passed in favour of the plaintiff, as contended by learned counsel for the appellant, by what is contained in A-2-it being inadmissible in evidence according to learned counsel why should it be impossible for the plaintiff to enforce specific performance of Chenohiah's contract to sell the property to him. Sale deeds do not usually come into existence unless the parties have agreed to sell and purchase properties described in them. But this Court has been consistently taking the view that an agreement to sell cannot be spelt out of a sale deed and cannot form the basis of a suit for specific performance: Venkatasami v. Kristayya (1993) 16 Mad. 341 Thayarammal v. Lakshmi Ammal A.I.R. 1920 Mad. 660 and Satyanarayana v. C. Venkatrao A.I.R. 1926 Mad. 530. I can not there fore go beyond those decisions. But an agreement to sell is not being spelt by me in this case out of what has been described (and wrongly described in my (opinion) to be an unregistered sale deed (A-2) in order to found the suit for specific performance. I can safely ignore A-2 and depend for that purpose on A-1 alone. This contains an express agreement to sell.
7. It has bean contended, however, that I cannot look at A-1 either and the only remedy left for the plaintiff was to present Ex. A (as it contained A-2) for registration. If he failed to avail himself of that remedy, so argued learned counsel for the appellant, the present suit must fail. Reliance was placed in this connexion on Satyanarayana v. C. Venkatrao A.I.R. 1926 Mad. 530 But that decision does not support the appellant, I am not adopting what was characterized by the learned Chief Justice in that case 'as a very vicious method of construction,' in referring to a lease or a sale deed with the object of inferring an agreement of sale or lease from them after they have been found to be legally inoperative. Nor do I propose to question the soundness of the decision that the only remedy left for a person who has presented a lease or sale deed for registration is to bring a suit under Section 77, Registration Act, if a Registrar has, on a denial of its execution, refused to register the same and not to sue for specific performance of a contract. But this case is no authority for the proposition that a person is debarred from bringing a suit for specific performance even when he has not accepted the sale deed executed by his vendor and has not consequently resorted to the machinery prescribed by the Registration Act for its registration.
8. My attention was next drawn to a Division Bench decision of this Court in Venkatadri Somappa v. Official Receiver, Bellary A.I.R. 1938 Mad. 801 where it was held that an unregistered document of transfer wag not of itself sufficient to support a suit for specific performance of an agreement to transfer but in that case the agreement was not, as pointed out by me in Venkata Seshayya v. District Board, East Godavari A.I.R. 1939 Mad. 391 distinct from the deed of transfer itself. It may be that in the absence of a specific agreement to sell a property it is not possible in this presidency to regard an unregistered sale deed as sufficient to support a suit for specific performance of a contract to sell. But it does not follow that an express contract to sell must necessarily be regarded to have merged in a sale deed, when that deed is not accepted by the vendee or happens to be incomplete in regard to its terms or is otherwise legally inoperative. The learned Judges were apparently contemplating a case where there was no express agreement of transfer and the deed of transfer was a complete document and executed and accepted as such by the vendee.
9. This takes me to Ex. A. There is nothing in this letter which would show that the plaintiff had agreed to accept it as a sale deed. This could be at the most regarded to be Chenchia's request but nobody knows whether it was accepted by the plaintiff. And that is where the difficulty of want of definite plea arises. The fact that the plaintiff has chosen to bring it as a suit for specific performance would go to show that he had not agreed to accept it as a sale deed. There are no express words of conveyance in that document and it is not easy to accept the contention that the plaintiff must have become satisfied for his title to the properties with what is contained in A-2. In the absence of any definite words of conveyance by Chenchiah of his title to the properties, the first two steps in the argument must also fall to the ground. For the above reasons, the appeal fails and is dismissed with costs. Leave refused.