Judgement Appeal (No. 49 of 1924) from a decree of the High Court (March 28, 1923) varying a decree of the Subordinate Judge of Lyallpur (October 20, 1919). The deceased respondent instituted a suit against the appellant for specific performance of an agreement dated March 2, 1919, for the sale of certain immovable property, and for damages. Among other defences, not material to this appeal, it was pleaded that the agreement was ineffective for want of registration. The facts, including the terms of the agreement, appear from the judgment of the Judicial Committee. Both Courts in India held that the agreement was an instrument contemplating a further document, and was therefore exempt from registration, by s. 17, sub-s. 2 (v.), of the Indian Registration Act, 1908. The Subordinate Judge, while rejecting a plea of undue influence, considered that having regard to the relation of the parties specific performance should not be granted ; he made a decree for Rs.2000 damages. On appeal to the High Court (Broadway and Harrison JJ.) a decree for specific performance was made. 1926. May 20. E. B. Raikes for the appellant. The agreement was an instrument which s. 17, sub-s. 1 (&), of the Indian Registration Act, 1908, required should be registered. The document on its true construction created an immediate interest in the property. The High Court relied on Mangamma v. Ramamma (( 1912) I. L. R. 37 M. 480.), but that decision was not consistent with the judgment of the Board in Hemanta Kumari Debi v. Midnapur Zamindari Co. (( 1919) L. R. 46 I. A. 240. [Note. - In the headnote of the report, holding (2.) should commence “that the agreement created an interest the was therefore within s. 17, sub-s. 1(b), but that ….” - continuing as printed. - A. M. T.]) Apart from the construction of the document its effect under s. 55, sub-s. 6 (b), of the Transfer of Property Act was to give the buyer a charge on the property. That rendered it an instrument creating an interest within s. 17, sub-s. 1 (b), and excluded it from the exemption in sub-s. 2 (h). [Reference was made also to Futteh Chand Sahoo v. Leelumber Singh Doss (( 1871) 14 Moo. That rendered it an instrument creating an interest within s. 17, sub-s. 1 (b), and excluded it from the exemption in sub-s. 2 (h). [Reference was made also to Futteh Chand Sahoo v. Leelumber Singh Doss (( 1871) 14 Moo. I. A. 129.) ; Burjorji Cursetji Panthaki v. Muncherji Kuverji (( 1880) I. L. R. 5 B. 143.); and Ramasami v. Ramasami (( 1882) I. L. R. 5 M. 115.); and the Transfer of Property Act, 1882, s. 54.] The respondent did not appear. June 24. The judgment of their Lordships was delivered by VISCOUNT DUNEDIN. On March 2, 1919, Dayal Singh, the defendant-appellant, executed an agreement with Indar Singh, now deceased, but represented by the plaintiff-respondent. This agreement had for its object the undertaking of a sale of certain property, and its terms, so far as material, are as follows "I, Dayal Singh, son of Jiwan Singh, caste Jat Garewal, resident and Lambardar of Chak No. 1/57, Upper Ghenab, Tahsil Jaranwala, District Lyallpur, do here declare as follows (here follows a description of the subject) .... I have agreed to sell the above mentioned property for Rs. 10,000 and the sum of interest, to be paid to the Government, to Indar Singh, son of Hira Singh, Havildar, caste Jat Dhami, occupation cultivation, abadkar and resident of Chak No. 188, Rakh Branch, Tahsil Lyallpur, who has agreed to purchase this land merely for the sake of Lambardarship. Out of the sale money I have at present received Rs.1000 by way of earnest money. Rs.9000 is agreed to be received before the sub-registrar, Lyallpur, at the time of the completion of the sale and registration. The expenses, incurred in connection with the execution and completion of the sale-deed, shall be borne by the vendee and myself in equal halves. I shall complete the sale in favour of the vendee within forty days, i.e., before the 1st Baisakh Sambat, 1976, after making a settlement of the sum of interest (which shall be deposited by the vendee) with the Government. The vendee has been put in possession of the land sold. If I do not complete the sale, I shall pay Rs. 2000 by way of damages to the vendee without any demur, and, besides, he shall be at liberty to have the sale completed by seeking legal remedy. The vendee has been put in possession of the land sold. If I do not complete the sale, I shall pay Rs. 2000 by way of damages to the vendee without any demur, and, besides, he shall be at liberty to have the sale completed by seeking legal remedy. As regards the filing of the interest, an application shall be made to the Deputy Commissioner of Lyallpur, and, on permission being granted, the vendee shall be made to deposit the said interest. If permission is not accorded the bargain of sale shall remain unaffected. The only agreement would then be that the sale would be completed after the interest was deposited. The land has, at any rate, been sold and the vendee has become entitled to it. I am simply entitled to receive Rs. 9000. I have therefore executed this agreement in favour of Indar Singh, vendee, so that it may serve as an authority. I have secured an agreement to the same effect from Indar Singh, vendee." This document was not registered. The appellant having refused to complete the purchase, the respondent succeeding to all rights of Indar Singh, deceased, raised this action for specific performance. The appellant pleaded that the document in question being a document which needed to be registered, and not having been registered, could not be received in evidence in terms of s. 49 of Act XVI. of 1908. He also pleaded that in respect of undue influence exercised at the time of the making of the agreement specific performance should be refused. The trial judge held that the document did not require to be registered, but held that undue influence had been proved. On appeal the High Court agreed with the trial judge that the document did not require to be registered, but disagreed as to the other matter. They therefore decreed specific performance. The sole question in this appeal, which is ex parte, is, therefore, whether the document in question required to be registered. As the question is an important one, it will be well to trace the history of the legislation which bears on the point. Act XX. of 1866, s. 17, made compulsorily registrable certain instruments. They therefore decreed specific performance. The sole question in this appeal, which is ex parte, is, therefore, whether the document in question required to be registered. As the question is an important one, it will be well to trace the history of the legislation which bears on the point. Act XX. of 1866, s. 17, made compulsorily registrable certain instruments. That section provided (inter alia) 17.—(2.) "Instruments (other than an instrument of gift) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property. (3.) " Instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest." By s. 49 the Act of 1866 declared that no instrument required by s. 17 to be regi3tered should be received in evidence in any civil proceeding in any Court unless it had been registered. The result of that enactment may be appreciated by a perusal of the case of Futteh Chund Sahoo v. Leelumber Singh Doss (14 Moo. I. A. 129.), where the Board characterized the case as a very hard one, but found that the terms of the Act were imperative. In 1877 (probably in accordance with the feeling as expressed above) in Act III. of that year, s. 17 was repeated as before, but with this addition " Nothing in clauses (b) and (c) of this section applies to .... (h) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document, which will, when executed, create, declare, assign, limit or extinguish any such right, title Or interest." This change having been made, there came to be raised questions as to various agreements, first as to whether they fell under s. 17 (b), and, accordingly, if they did so, whether they could be excused in respect of s. 17 (h). Examples of such cases may be found in Burjorji Cursetji Panthaki v. Muncherji Kuverji (I. L. R. 5 B. 143.), where it was held that the agreement was not necessarily registrable, and Ramasami v. Ramasami (I. L. R. 5 M. 115.), where the agreement was held to be compulsorily registrable, and consequently not admissible in evidence. Their Lordships do not think it necessary to review these cases, or to decide whether one of them will agree with what was said by Lord Buckmaster in Hemanta Kumari Debi v. Midnapur Zamindari Co. (L. R. 44 I. A. 240.) They will assume without deciding that taking the terms of the Act of 1877 alone (the terms of which were repeated totidem verbis, though not with the same numbering of the paragraphs, in Act XVI. of 1908, which is the Act which rules this case) the judgment of the Courts below were right in holding that the present agreement was an agreement to sell and not a sale, and was consequently exempted under s. 17, sub-s. 2 (v.)% which corresponds with s. 17 (h) of 1877. But there is another Act to be reckoned with, which unfortunately entirely escaped the notice of the Courts below, as they say nothing about it; that is the Transfer of Property Act, 1882 (Act IV. of 1882)—passed, it will be observed, after the case of Burjorji Cursetji Panthaki v. Muncherji Kuverji (I. L. R. 5 B. 143.), which was in 1880. of 1882)—passed, it will be observed, after the case of Burjorji Cursetji Panthaki v. Muncherji Kuverji (I. L. R. 5 B. 143.), which was in 1880. By s. 55, sub-s. 6 (6), the buyer is entitled " Unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him with notice of the payment, to the extent of the sellers interest in the property, for the amount of any purchase money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission." Their Lordships are of opinion that the section applied to the agreement in this case, where the buyer had paid earnest money, and so far from refusing to accept delivery, was pressing for specific performance, and that the agreement did in itself create an interest and therefore did not allow of the application of s. 17, sub-s. 2 (v.). It was therefore compulsorily registrable under s. 17 and, not having been registered, was inadmissible in evidence under s. 49. Their Lordships will, therefore, humbly advise His Majesty to allow the appeal and to dismiss the suit. The appellant will have his costs before this Board; but the costs in the Courts will remain as ordered by the High Court.