1. This appeal has bean preferred from an order of remand by which the Subordinate Judge, holding in an appeal that an amalnama, which had been filed by the defendants in the trial Court as evidence on their behalf and on the basis of which they succeeded in that Court, was not admissible, has remanded the suit to that Court for a fresh decision after taking such evidence as the parties may choose to adduce. The facts necessary to be stated are the following.
2. The plaintiff sued the defendants for a permanent injunction restraining the latter from erecting a pucca boundary wall on a small plot of land, and also a mandatory injunction calling upon them to demolish a pucca wall which they had already erected. These and other consequential and incidental reliefs were asked for on the basis of a declaration that was also sought to the effect that defendant 1 was a mere tenant-at-will with respect to the said plot of land.
3. On behalf of the defendants it was pleaded inter alia that defendant 1 is a permanent tenant on the land with his rental fixed and that he had accordingly a right to build pucca structures on the land. Other objections were also taken, but for the purposes of this appeal it is not necessary to set them out.
4. The amalnama was filed by the defendants in support of their defence. It runs in these words:
An amalnama is executed to the following effect. I settle with you in sarasari rights the patit lands lying immediately to the east of, and appertaining to the house purchased by late Ram Chandra Majumdar, situated in Bibir Chak Police Station Rampur Boalia, with a proper nazar and nirikh calculated at Rs. 80 per bigha. I shall afterwards measure the said lands and take the nazar found duo to me and shall fix the rental. Now, on taking in all, Rs. 20 as nazar from you, I execute this amalnama. Be it mentioned that you may erect, if you so desire, pucca structures (on the lands).
5. The document contains all the terms of the tenancy, places the tenant in possession and discloses an intention to create a present demise. It describes the land settled and only reserves the measurement of it for determining its area for the future and states that on ascertainment of the area on measurement the rental would be calculated. It nevertheless specifies the nirikh or rate of rent at Rs. 80 per bigha. It recites that the nazar, Rs. 20, has been received. It recites also that the executant settles the land by it in sarasari rights. It further states thus:
Be it mentioned that you may erect, if you so desire, pucca structures (on the lands).
6. It does not contemplate the execution of any further document in future to complete the transaction. In these circumstances, it is impossible to regard the amalnama as anything but a lease. The Subordinate Judge has taken the same view.
7. The settlement evidenced by this document is not from year to year, nor for any term exceeding one year, and is a settlement with no term fixed, but it reserves a yearly rent of Rs. 80 per bigha and is accordingly hit by Clause (d), Section 17, Registration Act. Not being registered the document cannot affect the property it concerns and cannot be received as evidence of any transaction affecting the same: [Cls. (a) and (c), Section 49 of the Act]. The question then is whether notwithstanding Section 49 of the Act, the document may be used for other purposes. There is no question that it 'may be so used for proving such collateral facts as the fact of defendant 1's possession or the nature of such possession, or the date on which such possession began and similar other matters. But what is the fact to prove which the defendants desire to use the document in the present case Plainly, the fact that they had authority to erect pucca, structures on the land if they so! desired. This, in our opinion, is not a collateral fact but one of the terms of the lease itself. Not being admissible as a lease, the document, cannot, in our opinion, be received in evidence to prove one of the terms of the lease. The permission granted or authority conferred by the document to erect pucca structures, in our judgment, is nothing less than a transaction, affecting the property on which the structures are to be erected within the meaning of Clause (c), Section 49 of the Act.
8. Two decisions have been strongly relied on behalf of the appellants. One of them is the decision of the Judicial Committee in the case of Vyravan Chetti v. Subramanian Chetti A.I.R. 1920 P.C. 33 in which there was an agreement between the first and the second mortgagees in respect of an identical property that both parties should, as regards rights, stand in the same position without claiming prior or subsequent rights, and divide and appropriate in equal halves, as per terms mentioned therein, whatever amount may be realized, on the date of realization. Their Lordships held on a construction of the agreement that if the whole effect of the agreement was to provide merely that the realized money was to be divided in equal shares, there was nothing to require it to be registered; and if on the other hand there were two distinct provisions, the one relating to the rights of the property and the other with regard to the division of the money realized, then as the proceedings in the suit related merely to the question of the realized money the agreement need not be registered for the purpose of being given in evidence in that suit, although it would require registration in a suit relating to the regulation of the rights against the estate itself. In relation to this decision it may be stated that it is impossible to separate the provision as to permission or authority to erect pucca structures from the other terms of the document under which defendant 1 came into possession and the purpose for which it is now sought to be used is to establish the incidents of the tenancy created by the document. The test in a case like the present one has been sufficiently indicated by the Judicial Committee in the case of Subramanian Chettiar v. Arunachalan Chettiar  25 Mad. 603 in which their Lordships in holding that a particular clause in a lease did not require registration observed as follows:
Its provisions form no part of the terms of the holding under the lease; their effect will be exhausted some years before the lease takes effect. The payment bargained for is no charge on the property; it is not rent nor recoverable as rent, but a mere personal obligation collateral to the lease.
9. In our opinion it is impossible to regard the clause with which we have to deal as a mere personal right or obligation collateral to those created by lease. The other case relied on behalf of the appellants is that of the Judicial Committee in Varada Pillai v. Jeevarathnantmal A.I.R. 1919 P.C. 44, in which recitals in certain petitions of the fact that there was a gift were used not as evidence that the gift was actually made such evidence being excluded by Section 91, Evidence Act, but for the collateral purpose of showing the nature of possession held by the alleged donee.
10. Some other decisions were cited at the Bar, but we do not refer to them as, in our opinion, they do not bear upon the case. Reference was made by the learned, advocate for the appellants to the proviso added to Section 49, Registration Act, by Section 10, T. P. (Amendment) Supplementary Act, 1929. In view of our decision that the amalnama could be used as evidence of any collateral transaction but that in the present case the purpose for which it has been sought to be used does not fall within that description, the proviso, even if it may be availed of by the appellants, will not be of any assistance to them.
11. The decision complained of is, in our judgment, right. We accordingly dismiss the appeal but without costs, the respondents not having appeared in it.