1. This is an appeal on behalf of the defendant in an action for declaration that an ex parte decree for rent obtained against the plaintiff by the defendant on the 4th November 1905, was vitiated by fraud and also for a declaration, that the tenancy held by the plaintiff is not nagdi, but partly bhowli and partly nagdi. The Court of first instance dismissed the suit on the ground that there was no fraud as alleged by the plaintiff and that the holding in question had been converted into a nagdi holding by the consent of parties. Upon appeal to the Subordinate Judge, the plaintiff gave up the case of fraud which was the foundation of his suit. He contended, however, that the document produced in support of the allegation of commutation of rent required to be registered and that as it was not registered there was no binding contract between the parties for conversion of the rent from bhowli into nagdi. The Subordinate Judge accepted this contention and made a declaration that there had not been such a commutation of rent as would be binding between the parties for all succeeding years.
2. The defendant has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been assailed substantially on two grounds, namely, first, that as the case of fraud has failed there is no cause of action and the suit ought to be dismissed; and secondly, that the dowl which evidences the commutation of rent does not require registration. In our opinion each of these contentions is well-founded and must prevail.
3. As regards the first question it is clear that the suit is substantially based upon an allegation of fraud. The plaintiff has found himself unable to establish the fraud alleged. He now seeks for declaration, the ultimate affect of which is to nullify the decree for rent previously made. Upon the facts as they appear on the record, he had notice of the previous suit but did not choose to defend it. An ex parte decree was made against them. The appeal against that ex parte decree proved unsuccessful. He applied to set aside the ex parte decree and was equally unsuccessful. He then instituted this suit to set aside the ex parte decree on the ground that it was vitiated by fraud. The case of fraud has failed. It is difficult to appreciate what other ground there is for the claim. This ground alone is sufficient to justify the dismissal of the suit. We are reluctant, however, to base our decision solely on this ground because the second ground also is well-founded.
4. The case for the defendant is that although the holding in question was originally partially bhowli and partially nagdi, it has subsequently been converted into a nagdi holding. In support of this case reliance has been placed on behalf of the defendant upon what is called the dowl. This dowl is a memorandum which shows the rent payable by all the tenants of the estate and it bears the signatures of the tenants. On behalf of the defendant-appellant it has been contended that the document does not require registration and in support of this argument reliance has been placed upon the cases of Gunga Persad v. Gogun Sing 3 C. 322 Syed Sufdar Reza. v. Amzad Ali 7 C. 703 and Lall Jha v. Negroo 7 C. 717. It has further been argued upon the authority of the cases of Narain Coomary v. Ram Krishna Dasa 5 C. 864; Satyesh Chunder Sircar v. Dhunpul Singh 24 C. 20 and Obai Goundan v. Ramalinga Ayyar 22 M. 217 that as the dowl merely evidences a variation in the original rent it is not under any circumstances necessary to have it registered. In our opinion the first set of cases relied upon by the appellant has no direct application to the circumstances of this litigation. They lay down the principle that a dowl requires registration if it is in substance a lease in other words if it, embodies an agreement assented to by the landlord as well as the tenant for the creation of a tenancy, it is compulsorily registerable under Section 17 of the Registration Act. In the first of these cases, Gunga Persad v. Gogun Sing 3 C. 322 it was ruled that as a dowl was merely a memorandum by a zamindar's agent of the rates of rent agreed upon and to which the tenants affixed their signature in token of such agreement; it was not a contract and did not require to be stamped or registered. Mr. Justice Jackson pointed out that the dowl in that case was merely a memorandum or record by the zamindar's agent of the rent which had been settled between the zamindars and the ryots affixed their signatures to this dowl in testimony of their admission of the correctness of the rent therein recited as having been imposed on them. In this view, the dowl was not a contract. It was no more a contract than were chittahs or measurement papers or what were called surathal papers which were constantly signed by ryots, mandals, or other persons in testimony of their concurrence.
5. In the second case Syed Sufdar Reza v. Amzad Ali 7 C. 703 it was pointed out by a Full Bench of this Court that although every lease or agreement for a lease in writing must be registered a proposal in writing to take a lease of certain lands on certain terms made by one person to another need not be registered unless the proposal in writing has been so accepted that the proposal and acceptance constitute a contract in writing. In the third case Lall Jha v. Negroo 7 C. 717 it was pointed out with reference to the decision of the Full Bench that where a dowl amounts to nothing more than a proposal by tenant to pay a certain rent for certain land, it does not amount to a lease or to an agreement for a lease and does not, therefore, require registration. The essence of the matter is whether the proposal has been so accepted that the proposal and acceptance constitute a contract in writing. If the dowl constitutes a contract in writing the contract must be registered. The question to be decided in the case of every dowl, therefore, is as to whether it embodies a special agreement between the parties: if it does, it requires registration; if it does not, registration is not needed. Now in the case before us, it cannot be said that the dowl upon which reliance was placed is a lease. There was a pre-existing tenancy, that is the common case of both parties.
6. The only effect of the dowl was to evidence that there had been a commutation of rent and that the rent which was previously payable partly in kind and partly in cash was henceforth to be paid in cash. To a document of this description the principle laid down by this Court in Satyesh Chunder Sircar v. Dhunpul Singh 24 C. 20 and by the learned Judges of the Madras High Court in Obai Goundan v. Ramalinga Ayyar 22 M. 217 applies. That principle is that a document given by the owner of land to his tenant or by the tenant to his landlord varying the terms of the tenancy with reference to the amount of rent to be paid is not an instrument relating to an interest in immovable property and does not require registration. Substantially the same view was taken by this Court in Narain Coomary v. Ramkrishna Dass 5 C. 864. In that case a lessor had left certain lands to a lessee under a verbal agreement. The lessee entered into a possession. Afterwards and during the lessee's occupation an entry showing the extent of the holding and the amount of rent payable in respect of it was made in a book of the lessor and was signed by the lessee. In a suit subsequently brought by the lessor against the lessee for arrears of rent, the lessee did not deny that he was a tenant of the lessor, but disputed the extent of the holding and the rate of the rent. It was ruled by this Court that the entry in the book of the lessor did not, although it was signed by the lessee, amount to a lease or to an agreement for a lease, but it was a mere admission only as to the rate of rent and could, therefore, be used as evidence against the lessee. On these authorities it is quite clear that the dowl in the case before us was admissible in evidence and. was operative in law although it was not registered. The view taken by the Subordinate Judge therefore, as to the effect of the dowl is erroneous.
7. The result is that this appeal must be allowed, the decree of the Subordinate Judge set aside and that of the Court of first instance restored. This order will carry costs in all the Courts.