1. Two points have been urged in this appeal: the first is, that the kabuliat, which appears to have been executed in the month of May 1865, should not have been admitted in evidence (in a suit instituted in June 1881), as it was unregistered. The other point is, that rent has never been realized by the landlord under that kabuliat.
2. The contention on the first point is based on the language of Section 17 of Act III of 1877, which is to the effect that all documents mentioned therein shall be registered if they have been executed after the date on which Act XVI of 1864 and the other Registration Acts have come into force; and the effect which it is sought to give to that section is, that this lease of May 1865, having been executed after the date on which Act XVI of 1864 came into force, requires, under the Act of 1877, to be registered.
3. But it is beyond doubt that the document in question did not require registration when it was executed, for it was not until the Act of 1866 was passed that kabuliats or counterparts of leases were made compulsorily registrable.
4. The 17th Section of the Act of 1866 contained language almost identical with the language of the 17th Section of the present Act, so far as the point we are now considering is concerned. But we believe that it has never been held, that that section, or the similar section in any of the succeeding Acts, had the effect of rendering a document, which was not compulsorily registrable under the Act of 1864, inadmissible in evidence without registration under the succeeding Act.
5. We have been referred to the case of Amjed Ali v. Ala Buksh 9 W.R. 537 in which the document under discussion was a kabuliat executed while the Act of 1864 was in force. The suit was brought in 1867, while the Act of 1866 was in force, and we cannot think that if the contention now raised by the learned vakil for the appellants had been considered tenable, it would have been overlooked either by the learned vakils who conducted that case, or by the learned Judges who decided it.
6. Our own view is, that this section in the succeeding Acts from 1866 to the present date had not the effect of altering the character of a kabuliat executed before 1866 as admissible in evidence without registration.
7. The other point,-namely, that no rent has ever been asked for or paid under the kabuliat in this case,-is one which we think is of no force. The kabuliat is a distinct engagement to pay rent. The defendants contended in the Court below that they held on some tenure called a mokurari tenure. That was found against them, and the Subordinate Judge, sitting in appeal, has found, on the evidence of one of the defendants, that the appellant's predecessor and uncle actually paid rent by deductions from his salary. The contention that the kabuliat provided for payment in paddy, and that the deduction from salary must have been a deduction in cash, does not alter the fact that rent was paid. As to the argument that no rent was realized, that was a matter entirely in the option of the landlord for the time being.
8. The Appeal must, therefore, fail. It is accordingly dismissed with costs.