1. The plaintiff sues to have it declared that three documents, constituting his patni right in certain properties are in force, to be put in possession of the properties, and that the defendants may be ordered to execute a patni pottah in respect of the taluks recorded in the Collector's towjee and a mourasi and mokurari pottah in respect of the tikka and other mehals, and to accept a kabuliat for the same from the plaintiff.
2. The first of these documents was dated 28th Pous 1283, and was executed by the defendants 1 and 2; the second was executed on 21st Bysack 1286 by the defendants 3 and 4, assenting to the terms of the first agreement; and the third on the 26th Srabun 1286 executed by the four defendants modifying the terms of the first.
3. The questions raised in this appeal are, first whether the third document is inadmissible in evidence for want of registration; and, secondly, whether, if it is inadmissible specific performance of the other two contracts can be decreed.
4. In the first of the three documents the defendants 1 and 2 covenanted that they would grant to the plaintiff a mourasi mokurari istemrari patni pottah of the lands mentioned; they admitted receipt, of Rs. 4,000 out of Rs. 38,000, the bonus of the patni; they stated that the permanent rental of the patni, after deducting collection expenses, would be Rs. 33,126-11; that on payment of a further portion, Rs. 5,000, of the bonus, the plaintiff should be put in possession; that the patni rent should be payable in monthly instalments; that the first defendant would cause her second and youngest sons, the third and fourth defendants, to execute the patni and have it registered; that of certain arrears which had accrued, the plaintiff was to pay ten annas to the defendants, paying it in specified instalments, and was to keep six annas; that the plaintiff should pay the defendants road-cess, etc. This document was registered on the 13th May 1879.
5. The second document was executed by the two younger brothers, and ratified the first, but provided that in addition to the bonus specified in the first agreement a nuzzur of Rs. 4,000 should be presented to them, and that on payment of these two sums before 22nd Jeyt a pottah should be executed and registered. This document was also registered, 13th December 1879, the two brothers admitting execution, but refusing to sign the endorsement on the ground that it had been subsequently superseded by the acts of the plaintiff.
6. The third instrument was as follows: 'To Kader Nath Mitter worthy of blessing May our highest wishes for your welfare attend you.
7. 'With reference to the future settlement in respect of our zamindari, ticca lakhiraj, and daphaet, etc., estate situate in the southern quarter which we have determined to make agreeably to the purport of the agreement of the 28th Pous 1285, one or two terms therein being wanting to complete it, it is this day settled that you should have to pay the sum Rs. 6,000 as salami to my three sons, and that out of the same Rs. 3,000 should have to be paid to my three sons on the date of delivery of possession as provided in the said agreement, i.e., you should pay the said Rs. 3,000 on or before Tuesday the 28th or Wednesday the 29th Srabun, and the balance of Rs. 3,000 on the date of the pottah, and by paying the residue of the bonus within a period of 45 days next after possession in the mofussil you should take a pottah and give a kabuliat. Further, you should pay a sum of Rs. 9,000 on account of the patni bonus on the 31st day of Srabun next; in case you fail to do so, you are to pay interest at the rate of Rs. 1-8 per cent. per mensem from the said month of Srabun. You must pay the monthly rent on the due date, failing to do which, you should pay interest at the Rule of 8 annas per cent. per mensem from the due date. In addition to the amount of bonus provided for in the agreement, you should pay a sum of Rs. 2,000 in the shape of bonus, but you are to pay the said sum subsequent to the auction kist in the month of Pous next. All other conditions shall be duly provided in the pottah and kabuliat.'
8. This document was executed by all the defendants, but was not registered, and the question is, whether its non-registration renders it inadmissible in evidence.
9. This depends on the meaning to be given to Section 17 of the Registration Act III of 1877.
10. Its first provision is that a salami of Rs. 6,000 should be paid to the three sons, half on the day of delivery of possession as fixed by the first agreement, which it stated to be 28th or 29th Srabun, and the balance within 45 days after possession, upon which a pottah and kabuliat should be exchanged; it provided that Rs. 9,000 on account of the patni bonus should be paid on 31st Srabun then next, failing which it should bear interest; that on failure to pay the monthly instalments plaintiff should pay interest at Rs. 1-8 per mensem; that he should pay an additional Rs. 2,000 in shape of bonus, but subsequent to the auction kist in Pous then next.
11. This document did not in our opinion amount to a 'lease or agreement to lease'; it was merely a provision for certain payments to the landlords by way of consideration in addition to those already agreed on; and that in the case of arrears certain interest should be payable. Such an agreement might, we consider, be properly regarded as falling within Clause (h) of Section 17, and so be exempted from registration under Clause (b).
12. The appeal must, therefore, be decreed, the judgment of the Original Court set aside, so far as it concerns the respondents, defendants 3 and 4, and the case remanded for trial on the merits. Costs of this appeal to be paid by the defendants 3 and 4.
13. This judgment renders it unnecessary for us to deal with the objections raised by the respondents. The matters referred to in those objections can be disposed of, if necessary, at the hearing by the Original Court.