Rampini and Wilkins, JJ.
1. This is a suit for specific performance of an agreement to sell 28 bighas of land for Rs. 1,200.
2. The District Judge, reversing the decision of the Subordinate Judge, has found in favour of the plaintiff'.
3. The defendants second party appealed.
4. The facts as found by the District Judge are (1) that the defendant first party agreed to sell the land to the plaintiff for Rs. 1,200 on the 27th December 1895, and received Rs. 25 and executed a document exhibit (a); (2) the defendant first party then agreed to sell the same land to the defendants second party for Rs. 1,260, took Rs. 20 from them and executed a bainanamah on the 3rd January 1896; (3) the plaintiff before the registration of this bainanamah gave the defendants second party notice of his contract with the defendant first party; (4) notwithstanding this the defendant first party executed and registered a conveyance in favour of the defendants second party on the 9th January 1896.
5. On these findings of fact the Judge comes to the following legal conclusions: (1) that the document exhibit (a) is admissible in evidence as a receipt; (2) that the binanamah does not take effect against exhibit (a), as it is not a document relating to immoveable property; (3) that it conveys no title to the defendants second party; and (4) that the deed of the 9th January 1899 is of no avail as executed after notice of the plaintiff's contract with the defendant first party.
6. We have no doubt that the Judge is right in the first of these findings*. The document exhibit (a) is clearly admissible in evidence, and supported as it is by the oral evidence it substantiates the defendant first party's agreement to sell the land to the plaintiff. It is not inadmissible for want of registration, as it appears to us to come under Section 17, Clause (h), Act III of 1877.
7. The Judge is in our opinion in error in holding that the bainanamah of the 3rd January 1896 does not come within the purview of Section 48 of the Registration Act. We think it cannot properly be said not to be a document relating to immoveable property. But notwithstanding the fact of its registration it will not defeat the plaintiff's right to obtain specific performance of his agreement: (1) because the plaintiff's contract is not merely an oral agreement; it is embodied in a document exhibit (a), which is an agreement to sell, but which does not require registration as coming within, not Section 17(c), but Section 17(h) of the Registration Act; and (2) in consequence of the provisions of Section 27 of the Specific Relief Act, Clause (b). The title of the defendants second party arose subsequently to the plaintiff's contract, and the defendant second party clearly paid the consideration and took the conveyance of the 9th January 1896 after due notice of the plaintiff's contract had been given them. The bainanamah was also probably executed after the defendant second party had had notice of the plaintiff's contract. It is difficult to believe that this was not the case, for the defendants first and second parties were living together, and were evidently acting in collusion all along. But it has been contended that the Judge has not expressly found that the defendants second party had notice of the plaintiff's prior contract before the execution of the bainanamah. They certainly had such notice before its registration. But this is immaterial; for, as pointed out by the learned District Judge, under Section 54 of the Transfer of Property Act, the bainanamah gave them no legal right to the land, but only an equitable right, and an equitable right cannot under the provisions of Section 27 of the Specific Relief Act prevail against the plaintiff's prior contract.
8. We may add that, in our opinion, the provisions of Section 50 of the Registration Act do not defeat the plaintiff's right to relief, as the defendants' bainanamah of the 3rd January 1896 appears to us to be a document of the same nature as the plaintiff's exhibit (a), viz., a document merely giving a right to obtain another document creating, declaring, assigning, &c;, aright, title and interest in immoveable property. That being so, it is not a document of the kind mentioned in Clauses (a), (b), (c) or (d) of Section 17, or (a) or (6) of Section 18, but one of the nature referred to in Section 17, Clause (h). That this is so is clear from the fact that the defendants first and second parties thought it necessary to execute and exchange the deed of sale of the 9th January 1896, which is the only deed which conveys a legal title in the land to the defendants second party.
9. For these reasons we affirm the judgment of the District Judge, and dismiss this appeal with costs.