1. In this case, the plaintiff sues for specific performance of an agreement to execute and register a lease and tenders the agreement in which the terms are embodied.
2. The defendant objects to the agreement on the ground that it has not been registered in accordance with the provisions of the Registration Act. The agreement is dated the 16th September 1906 and provides for the grant of a lease to the plaintiff for a period of five years commencing from the next day, i.e., 1st Assin 1313, B.S. On the day that the agreement was executed, it was not to operate nor could it have operated, as a present demise to the plaintiff; and the agreement also provides that the plaintiff should get 'proper qabuliyat registered at his own costs soon.'
3. The defendant says that the agreement is, within the meaning of the Registration Act, not admissible in evidence as it is not registered. The sections of the Registration Act he relies on are first, Section 3 which says that 'lease' includes 'an agreement' to lease.' Secondly, Section 17, Sub-section (d), which says that leases of immovable property from year to year or for any term exceeding one year or reserving a yearly rent must be registered,' and thirdly, Section 49 which provides 'no document required by Section 17 to be registered shall be received as evidence of any transaction affecting immovable property unless it has been previously registered.' It has been pointed out that an agreement to lease of this nature is really an agreement for sale of the premises pro tanto. Section 54 of the Transfer of Property Act provides:
'A contract for the sale of immovable property is a contract that a sale of such property' shall take place on terms settled 'between the parties.'
It does not, of itself, create any interest in or charge on such property.
4. I think, therefore, that unless the agreement in the present case operated as a present demise it does not, of itself, create any interest in or charge on the property agreed to be dismissed.
5. That being so, I think, this agreement can be given in evidence for the purpose of enforcing specific performance of it without its having been registered under the provisions of the Registration Act.
6. It is not necessary in this case to consider the conflicting decisions, or decisions said to be conflicting, in Purmananddas Jivandas v. Dharsey Virji 10 B. 101 and Konduri Srinivasa Charyulo v. Gottumukkala Venkataraju 17 M.L.J. 218, as to whether an agreement for sale, when not registered, can be given in evidence for a collateral purpose, viz., for the purpose of maintaining an action on the contract and not for the purpose of claiming any interest on the property under or by virtue of the contract.
7. As at present advised, however, I should prefer to follow the decision in Konduri Srinivasa Charyulo v. Gottumukkala Venkataraju 17 M.L.J. 218, rather than the decision on Purmanaddas Jivandas v. Dharsey Virji 10 B. 101.
8. Latter admitted and marked Ex., A.