Page, J.:— In this suit the plaintiff claims specific performance of an alleged agreement to lease certain premises known as No. 7, Bowbazar Street, Calcutta, and, in the alternative, damages for breach of the said agreement.
It appears from the evidence that on the 19th November 1921 an interview took place between the plaintiff and the first defendant, who was then the owner of the said premises, as the result of which the terms of the alleged agreement to lease the said premises were embodied in the following two letters:
Calcutta, 19-11-1921,
No. 7, Bowbazar Street.
Babu Haridas Mullick, of 46, Hidaram Banerji Lane.
Dear Sir,
I do hereby agree to take by our personal settlement your house and premises No. 7, Bowbazar Street on a lease for 21 years under following terms:—
(1) Four thousand rupees salami.
(2) Rent Rs. 400 per month.
(3) Both taxes, owner and occupier, should be paid by me.
(4) Thorough repair will be done every five years.
(5) The period of lease will be settled from 1st of December 1921.
(Sd.) Ramjoo Mahomed.
Calcutta, 19-11-1921,
46, Hidaram Banerji's Lane.
To Ramjoo Ma homed, Esq.,
No. 7, Bowbazar Street.
Dear Sir,
I do confirm your letter dated 19th November 1921. All terms will be settled on the agreement.
Yours faithfully,
(Sd.) Haridas Mullick.
At all material times, both before and after the execution of these two letters, the plaintiff was in possession of the said premises. Neither of the letters of the 19th November 1921 was registered pursuant to the provisions of the Registration Act (XVI of 1908). On the 2nd March 1923 the first defendant sold the said premises to the other defendants whom I will call the Nan defendants, and on the 23rd April 1923 the Nan defendants served a notice on the plaintiff to quit the premises at the end of May 1923.
The defendants, inter alia, pleaded that the said letters did not amount to a concluded agreement to lease the said premises, but, in the events that have happened, I have not heard the defendants' evidence on that issue. In the course of the trial the two letters of 19th November 1921 were tendered in evidence on behalf of the plaintiff. Counsel for the defendants thereupon contended that if the said letters did not amount to a concluded agreement for a lease the plaintiffs claim must fail; on the other hand, if the letters were tendered as documents embodying the terms of a concluded agreement to let the said premises for a term of 21 years as alleged, they contended that the said letters, not having been registered, were inadmissible under sections 2(7), 17 and 49 of the Registration Act.
“Section 2(7)—“Lease” includes a counterpart, kabuliyat and undertaking to cultivate or occupy, and an agreement to lease.”
“Section 17(1)—The following documents shall be “registered…………….
“(b) Other non-testamentary instruments 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 Rs. 100 and upwards, to or in immoveable property
“(d) Leases of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent”
“Section 49.—No document required by section 17 to be registered shall (a) affect any immoveable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power unless it has been registered.”
Counsel for the plaintiff urged that the said documents were admissible on the following grounds:—
(i) That the agreement contained therein did not amount to a present demise of the said premises, or create an immediate interest therein, but merely created a right to obtain a formal lease, and was within the exception set out in section 17(2)(v):
(ii) That the documents in question were evidence of an agreement which was capable of being specifically performed to which the doctrine laid down in Walsh v. Lonsdale applied:
(iii) That they were not adduced as evidence of any transaction affecting immoveable property, but as evidence of a personal obligation by the first defendant to execute a lease for the breach of which the plaintiff was entitled to damages.
In support of his first contention counsel for the plaintiff relied upon the decisions in Panchanan Bose v. Chandi Charan Misra and Hemanta Kumari Debi v. Midnapur Zamindari Company . In Panchanan Bose's case Jenkins C.J stated:—
“In my opinion, the solehnama here does not 44 amount to a lease within the meaning of clause (d) of section 17 of the Registration Act. On a fair reading of the document I think that no immediate “interest was created, there was no present demise, and the document was merely an agreement to create a lease on a future day the terms of which were to be defined by documents to be thereafter executed. The case, therefore, seems to me to fall within clause (h) of section 17 of the Registration Act.”
In Hemanta Kumari's case Lord Buckmaster observed:—
“The Indian Registration Act of 1908 provides that ‘lease’ includes an agreement to lease, and by section 17 enacts that leases must be registered, the penalty for non-registration being imposed by section 49, which provides that if not registered, no document shall affect immoveable property which it comprises or be received as evidence of any transaction affecting such property. If the document in question can be regarded as a lease within the meaning of this definition it could not be received in evidence. Their Lordships are of opinion that it cannot be so regarded. An agreement to lease, which a lease is by the statute declared to include, must, in their Lordships' opinion, be a document which affects an actual demise and operates as a lease. * * * Until the happening of that event it was impossible to determine whether there would be any lease or not. Such an agreement does not, in their Lordships' opinion, satisfy the meaning of the phrase agreement to lease, which, in the context where it occurs, and in the statute in which it is found, must, in their opinion, relate to some document that creates a present and immediate interest in the land.”
It becomes necessary for the Court, therefore, to determine the meaning of the term “present demise.” It is well-settled that whether an agreement amounts to a present demise or not depends upon the intention of the parties which is to be gathered from the language in which the agreement is couched. “The single question is, what was the intention of the parties using those expressions? Was it, that this agreement should confer the legal interest; or was it not in their contemplation that there should be another instrument to give that legal interest?” (per Lord Kenyon C.J in Doe v. Ashburner ). And “if the words of the instrument be ambiguous we may call in aid the acts done under it as a clue to the intention of the parties” (per Tindal C.J in Doe dem Pearson v. Ries .
Now, the term “presentdemise” or “actual demise” has a definite legal meaning, and in order to ascertain the true construction which is to be placed upon the term it is necessary to refer to some of the cases in which the meaning to be attributed to the words “present demise” has been explained. The earliest case to which I need refer is Maldon's Case in which the words “you shall have a lease of my lands in D for twenty-one years, paying therefor 10 shillings per annum; make a lease in writing, and I will seal it” were held to be a good lease by parol; and that the making of it in writing was but for further assurance.
In Baxler v. Browne the agreement was:
“On the 28th of November 1760, the said A bra hall and Percival Lloyd entered into an agreement with the defendant Browne, whereby they agreed (inter alia), with all convenient speed to grant a lease to the said Browne of, and they did thereby set and let to him, All that, etc. To hold for 21 years from Candlemas then next at the rent of £290 per annum, payable half yearly to the lessors.”
It was held that this was a good lease in presenti, with an agreement to execute a more formal and perfect lease in future. In Barry v. Nugent the form of agreement was:
“Be it remembered that J. Barry hath let and by these presents doth demise, etc., unto R.F etc. for 21 years to commence the 5th May or 1st November, whichever first happens after the said. F.B recovers the said land from M.C The said R.F covenanting and agreeing on the foregoing conditions to pay J.B £ 110 yearly and every year during the said term, etc. leases with power of distress, and clauses for re-entering, and all other clauses usual between landlord and tenant, to be drawn and signed at the request of either party as soon as J.B recovers the said lands from M.O, etc.”
The Court held that the document operated as a present demise, as did the Court of King's Bench in Poole v. Bentley in which the agreement in suit was contained in a Memorandum of an agreement this 12th of June 1806 between J. Poole and P. Bentley. The said J. Poole hereby agrees to let unto the said P. Bentley, and the said P. Bentley agrees to take of the said J. Poole, all that piece of land (describing it) for the term of 61 years from Lady day next, at the yearly rent of £ 120 free and clear of all taxes, etc., the said rent to be paid quarterly, the first quarter's rent within 15 days after Michaelmas 1807. And that for and in consideration of a lease to be granted by the said J. Poole for the said term of years, the said P. Bently agrees, within the space of four years from the date hereof, to expend and lay out in 5 or more houses of a third rate or class of building £ 2,000: and the said J. Poole agrees to grant a lease or leases of the said land and premises as soon as the said 5 houses are covered in: and the said P. Bentley agrees to take such lease or leases, and to execute a counterpart or counterparts thereof. This agreement to be considered, binding till one fully prepared can be produced.”
Lord Ellenborough C.J observed:—
“The rule to be collected from all the cases is that the intention of the parties, as declared by the words of the instrument, must govern the construction, and here their intention appears to have been that the tenant, who was to expend so much capital upon the premises within the first four years of the term, should have a present legal interest in the term, which was to be binding upon both parties: though when a certain progress was made in the buildings, a more formal lease or leases; in which perhaps the premises might be more particularly described for the convenience of underletting or assigning, might be executed.”
In Doe v. Groves where by an instrument dated 7th March 1798 A agreed to let to B certain premises from the 5th April 1798 it was held that the words amounted to a present demise. Lord Ellenborough C.J observed:—
“If by the terms of this agreement it had been provided that there should be no entry until a lease was executed I should have had considerable doubts. But as the case stands it does appear to me that the instrument must be considered as a present lease from the 5th April 1798. From that period it has the operation of a demise, not depending upon the contingency of the party's granting a future lease, which was a stipulation for the better security of the lessee. It falls, therefore, within the case of Poole v. Bentley ; and in Barry v. Nugent the Court thought, notwithstanding it was agreed that leases with the usual clauses were to be drawn, that such a stipulation did not affect the words of present demise. Here the lessee might never have the benefit of an executed lease; in the interim, thereof ore, this was an agreement to operate as a present demise, commencing immediately from the 5th of April; though a more formal lease was afterwards to be granted.”
In Dee v. Ries Tindal C.J, in the course of his judgment observed: “Agrees to let and agrees to take have been held words of present demise from the case of Goodtitle d. Estwick v. Way to “the present time.”
Bosanquet J. added “The question is, whether it was the intention of these parties that the lessor of the plaintiff should take an immediate interest, or wait till the execution of a future lease. However desirable it may be to find same certain criterion for ascertaining the intention of parties upon such occasions, the difference between instrument is so great it none such has yet been discovored. The stipulation to grant a future lease has been considered insufficient for that purpose, for though a circumstance is to be looked at, it is of itself inconclusive. The language adopted in the present instrument has always been held to import a present demise, and that inference is borne out by the acts of the parties.”
In Gore v. Lloyd Baron Alderson laid down the rule to be “that you must look at the whole of the “instrument to judge of the intention of the parties as declared by the words of it, for the purpose of seeing whether it is an agreement or a lease. And, looking at the whole of this instrument, it appears to me that it was not intended to give an immediate right to the party to be from that moment and before the execution of any lease a tenant from a future day, but that the true construction of the instrument is, an agreement between the parties that at a future time one of them shall become the tenant, provided certain things are intermediately done by the landlord or his agent, so as to put the premises into a certain state, which the agreement describes …. Where, indeed, by an agreement of this sort, one “person agrees to take certain premises at a certain rent from a certain time, and both parties sign the paper; looking at the whole of such an instrument together nobody can doubt that, though it contains no words of demise by the party who signs it as landlord such an instrument would amount to a lease, because you cannot give effect to the Signature unless by supposing that there is an implied agreement to demise, besides the express words by which the tenant agrees to take…. It appears to me that there is an obvious distinction between the two it cases, and that, upon the whole, this instrument is not an agreement of demise, but it is an agreement that there shall be, under certain circumstances at some future time, if certain things be done, a demise;— “it is an agreement between the parties, the terms of which, undoubtedly, were to regulate the future tenancy, if a future tenancy should exist.”
See also per Sargent C.J in Purmananddas Jiwandas v. Dharsey Virji .
Now, I do not intend in this case to consider the terms which an agreement must contain in order to come within section 17(2)(v) of the Registration Act, but, in my opinion, such an agreement must at least be one under which the parties have agreed upon the terms which are to be included in the formal document by which, if and when it is executed, a transfer of an interest in the premises will be effected. Otherwise the alleged agreement will amount merely to a contract to enter into a contract as to the terms of which latter contract the parties are not already agreed. Such an agreement is not known to the law: see per Parker J. in Von Hatzfeldt Wildenburg v. Alexander and Lord Sterndale M.R in Rossdale v. Denny . It is not necessary for me, however, to embark upon a discussion of the meaning of this sub-section, because, having regard to the language used in the letters, I am clearly of opinion that the terms of the agreement therein contained amounted to a present demise of the said premises. In my judgment a lease of the premises was thereby created, although if there be words of present demise, it is immaterial whether the instrument be called a lease, an agreement, or a memorandum of agreement” (per Park J. in Doe v. Ries at page 184).
The defendants contended that the words “all terms will be settled on the agreement” indicate that the matter was still in the stage of negotiation, and that on to the 19th November 1921 the parties had not agreed as to what the terms of the lease should be. If that contention were held to be sound, and no concluded agreement for a lease had been arrived at, the plaintiff's case must fail. But, having regard to the language that was used, I am of opinion that the parties intended that the two letters should transfer to the plaintiff an immediate interest in the premises, and that if a formal lease were to be executed the further document should be settled on the terms set out in the plaintiff's letter, and would only be executed by way of further assurance.
Mr. Bagram, in support of his contention that the letters were admissible, relied upon the decision of Mr. Justice Fletcher in Satyendra Nath Bose v. Anil Chandra Ghosh , and urged that as the term was to commence on a date subsequent to that upon which the agreement was made it was not a present demise. In the course of his judgment Fletcher J. observed:—
“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 provided that the plaintiff should get a proper kabuliyat registered at his own costs soon.”
I regret that I am unable to acquiesce in the reasoning upon which that decision appears to be based. It is clear from the decisions to which I have referred that, although the term is to commence at a future date or a formal document is to be executed, it does not necessarily follow that the agreement will not operate as a present demise of the premises. With all due deference Mr. Justice Fletcher appears to have proceeded upon a mistaken view of the meaning which is to be attributed to the term “present demise”, and to have based his conclusion on unsound premises. Neither in Hemanta Kumari's case nor in Panchanan Bose's case could the agreement in suit on any reasonable interpretation of its terms be regarded as a present demise. But it is to be observed that Lord Buckmaster stated that “if the document in question can be regarded as a lease within the meaning of this definition, it could not be received in evidence.” In the Port Canning and Land Improvement Co. v. Srimati Katyani Debi , which was an appeal in a suit for enhancement of rent, Mr. Ameer Ali, in delivering the judgment of the Privy Council, observed:—
“In support of her contention that the tenure then created was non-enhancible, the defendant produced a memorandum executed by Eduljee Oowasjee, which she alleged set out the terms of the contract. To the reception in evidence of this memorandum the plaintiff company objected, contending that, as it was unregistered, it was inadmissible under sections 17 and 47 of the Indian Registration Act. The Subordinate Judge overruled the objection holding that it was neither eh lease nor an agreement for a lease, but only a memorandum relating to a previous and completed transaction by which the tenure-holders had obtained possession of the lands. The learned Judges of the High Court take the same view. Their Lordships are unable to concur with the judgment of the High Court on this point in face of the admission by Ramtrahi Chakravarti, one of the tenure-holders, that he got into possession under the memorandum, which he regards as his lease. Being unregistered, it is inadmissible in evidence, and no effect can be given to it.”
See also Purmananddas Jiwandas v. Dharsey Virji , Narayan Chetty v. Muthiah Semai , Durga Prosad Singh v. Rajendra Narain Bagchi and Nanak Chand v. Muhammad Zahuruddin .
I hold, therefore, that the agreement contained in the two letters of the 19th November 1921 amounted to a present demise of the said premises, and created an immediate interest therein. The two letters have not been registered, and, therefore, are inadmissible as evidence by reason of the provisions of section 49 of the Registration Act.
The plaintiff further contended that, inasmuch as the agreement was contained in more documents than one, none of the documents need have been registered. In my opinion there is no substance in this contention. In The Port Canning Land, Investment, Reclamation and Dock Co. v. Smith Sir Montague E. Smith, in delivering the judgment of the Privy Council, observed:—
“A question was raised whether the letters did not form an agreement which should have been registered under the Indian Registration Act; but their Lordships think that the High Court was perfectly right in holding that the letters did not require registration. They do not amount to a lease or an agreement for a lease, but are evidence of a contract of a special character, not coming within any of the definitions found in the Registration Act.”
I gather from that judgment that if the documents in question had come within the provisions of the Registration Act their Lordships would have held that it was incumbent upon the party producing them to prove that they had been duly registered: see also Boyd v. Kreig and Morgan v. Fernandes .
It is conceded by learned counsel on behalf of the plaintiff that if these documents are inadmissible in evidence it is not open to him to adduce oral evidence of the terms of the said agreement by reason of section 91 of the Evidence Act. Counsel further contended that the documents in suit were not tendered as evidence of any transaction affecting the premises. But, in my opinion, it is so clear that an agreement which creates an immediate interest in immoveable property “affects” such property within section 49 of the Registration Act, that 1 do not think it necessary to discuss the plaintiff's contention to the contrary. It is, I think, enough that I should mention that such a contention was raised: see Narayanan Chetty v. Muthiah Servai . Indeed, it can only be on the assumption that the premises in suit were affected by the agreement that the plaintiffs impleaded the Nan defendants who are assignees of the reversion from the 1st defendant. Counsel for the plaintiff then contended that the equitable doctrine propounded by Jessel M.R in Walsh v. Lonsdale formed part of the law in India, and that even if the documents in question were inadmissible as evidence of a present demise under section 49, these documents were admissible as evidence of the terms of an agreement which was capable of being specifically performed to the same effect, under which agreement the plaintiff was in possession of the premises: see Bibi Jawahir Kumari v. Chatterput Singh , Burjorji Cursetji Panthaki v. Muncherji Kuverji , Nemai Charan Dhabal v. Kokil Bag , Kedarnath Joypooria v. Poorasundari Dasi , Shyamkishore Deu v. Umeshchandra Bhuttacharjee . Now, it is unnecessary in this case to discuss to what extent the doctrine of Walsh v. Lonsdale can be held to apply to a transaction relating to land in India. I am inclined to agree with Wallis C.J that the words “agreement to lease” which were included in the definition of a lease at least so far back as the Registration Act of 1866, long before the enactment of the Transfer of Property Act, were intended to guard against the possibility that the Courts in India might otherwise extend the same degree of Recognition to agreements to lease that is extended to them pursuant to equitable principles in England: per Wallis C.J in Swaminatha Mudaliar v. Ramaswami Mudaliar ). But in this case the matter does not arise for consideration. I am clearly of opinion, however, that an unregistered document inadmissible under section 49 cannot be admitted as evidence to prove the terms of an agreement to the same effect in circumstances to which the doctrine of Walsh v. Lonsdale may be applicable. I agree with the argument of Dr. Rash Behary Ghose in the case of Nemai Charan Dhabal v. Kokil Bag that the case is really one in which the plaintiff is endeavouring to evade the operation of the registration, law and by falling back upon a pretended anterior oral agreement to use and give effect to two documents, which, if they exist, cannot be received in evidence, and which, if they could be received in evidence, could not legally, being unregistered, take effect as against registered documents relating to the same property.” In the case of Sanjib Chandra Sanyal v. Santosh Kumar Lahiri , Mr. Justice Rankin observed that “the decisions of the Judicial Committee in the case of Rani Hamenta Kumari Debi v. Midnapur Zamindari Co. and Port Canning and Land Improvement Co. Ld. v. S.M Katyani Debi make it impossible for me to hold that the agreement in this case can be put in evidence, or that its terms can be specifically enforced. If I admit the document at all it seems to me that I would be receiving it as evidence of a transaction affecting the property if upon its true construction, it is meant to take effect as a present demise, I cannot treat it as something else or as evidence of a transaction different from this in nature and so avoid the statute. My opinion is that against the prohibition of the statute no estoppel avails, and that there is nothing in Walsh v. Lonsdale or the cases under the Statute of Frauds to cover the plaintiff in this case.” I am of the same opinion: see also Uifatunnissa, alias Elahijan Bibi v. Hosain Khan and Narayanan Chetty v. Muthiahservai Counsel further contended that at any rate the letters were admissible as evidence of an agreement to grant a lease for the breach of which the plaintiff seeks to recover damages. He urged that in such circumstances the document would not be adduced as evidence of a transaction affecting the premises, but as evidence of an agreement under which the defendant contracted a personal obligation to grant a lease. In support of this contention counsel referred to the case of Rajah of Venkatagiri v. Narayana Reddi . This was a decision of the Full Bench, and was cited with approval by Fletcher J. in Satyendra's Case and by Mookerjee J. in Hemanta Kumari Debi's Case . This case, no doubt, supports the view which counsel for the plaintiff urged upon me. The suit was brought to recover damages for breach of an agreement to lease certain premises to the plaintiff, and in support of his claim for damages certain documents were tendered for the purpose of proving a personal obligation to grant a lease which the defendant had undertaken. Among the documents which were tendered were documents which affected the property within the meaning of section 49, and were therefore inadmissible as evidence of a transaction affecting the premises. The Full Bench held that such documents were admissible in evidence in order to give effect to the agreement into which the defendant had entered with the plaintiff: The other unregistered documents that have been put in showing the terms of the lease have not been put in to enforce the lease, in which case they would not have been admissible as evidence as they would have been evidence of a transaction affecting immoveable property, but they must be deemed to have been put in simply as evidence of the character of the breach of agreement by the defendant, and as a basis for calculating the measure of damages, neither of which things can, in the least, affect the land lying in the village of Valamaid.” In my opinion, with all respect to the learned Judges who were parties to that decision, the reasoning upon which it is based cannot be reconciled with the ratio decidendi of the later Full Bench decision of the Madras High Court in Narayanan Chetty's case . I apprehend that the meaning which the Full Court attributed to the provisions of section 49 in Rajah of Venkatagiri v. Narayana Reddi is in conflict with the construction which consistently has been placed upon section 49 by the High Courts of India for over 50 years. Upon the principle of stare decisis I should not be disposed to re-agitate the meaning which, is to be attributed to the language used in section 49, even if I were at liberty to do so, and regarded the prevailing opinion as being inaccurate: see Achoo Bayamah v. Dhany Ram , Stri Seshathri Ayyengar v. Sankara Ayen , Guduri Jagannadham v. Rapaka Ramanna , Woodoy Chand Jana v. Nitye Mundul and Poresh Mundul . Mussamut Ameerun v. Mussamut Wuseehun , Raju Balu v. Krishna Rav Ramchandra , Martin v. Sheo Ram Lal , Mattongeney Dossee v. Ramnarain Sadkhan , Krishto Lal Ghose v. Bonomalee Roy , Venkatrayudu v. Papi Reddi , Hurjivan Virji v. Jamsetji Nawroji (11), Purmananddas Jiwandas v. Dharsey Virji (12), Ulfatunnissa alias Elahijan Bibi v. Rosain Khun (13), Narayanan Chetty v. Muthiah Servai (14) and C. Streeramulu Naidu v. Ramaswami Mudaliar (15). The Full Bench decision of the Madras High Court in A. Svaminatha Mudaliar v. S.V Ramaswami Mudaliar (16) is not an authority in the plaintiff's favour, for the decision in that case turned upon whether the document tendered in evidence was to be regarded as a present demise or not, and Wallis C.J stated that “if the Court determined that question in the affirmative, we are still bound by the decision in Narayanan Chetty's Case . The case of Konduri Srinivasa Charyulu v. Gottumukkala Venkataraju , in my opinion, was wrongly decided, and must be taken to have been overruled by the Full Bench in Narayanan Chetty's case . It is not inapposite in this connection to refer 10 the manner in which a change was made in the language of section 49 of the Registration Act of 1866 by the amending Act of 1871. Section 49 of the Act of 1866 ran as follows:—
“No instrument required by section 17 to be registered shall be received in evidence in any civil proceeding in any Court or shall be acted upon by any public servant as defined in the Indian Penal Code, or shall affect any property comprised therein unless it has been registered in accordance with the provisions of this Act.”
Now, to the decisions in W.B Basappa v. Y. Yenkatappa and in Achoo Bayamah v. Dhany Ram Scotland C.J was a party, and in a dissenting judgment in the latter case his Lordship observed that it appears to me that section 49 should be read as if it had expressly said that no instrument should be received in evidence, etc., for any of the purposes specified in section 17 unless registered. Upon this construction it is that I consider it in accordance with the intention of the Legislature to hold that an instrument which has the two-fold operation of a simple contract or bond to pay a debt and a collateral mortgage security for the debt, as well as an instrument which purports to be an assignment of such contract 41 and security, is admissible in evidence for the purpose of proving the separate liability under the simple contract in respect of which registration was not required by section 17;” and in the same year Peacock C.J in the case of Luchmeeput Singh Doogur v. Mirsa Khyrat Ali said “we are of opinion that the document is admissible as a bond, simply for the purpose of enforcing against the obligor personally the payment of the money secured by it; but that without registration it is not admissible as, evidence to prove that the obligee was entitled to the security of the land. There are many cases under the Stamp Law, which enacts that documents are not to be admitted in evidence unless they are stamped, in which such documents have been admitted for collateral “purposes.” In consequence of these two judgments, [see Guduri Jagannadham v. Rapaka Ramanna ] section 49 was amended in 1871 so that the language should be that which is now found in section 49 of the Registration Act of 1908. In 1878 the meaning to be attributed to section 49 of the Act of 1871 fell for determination in the case of Mattongeney Dossee v. Ramnarain Sadkhan . In the course of the argument of Mr. W.C Bonnerjee learned counsel referred to the passage in the judgment of Peacock C.J to which I have adverted, upon which Garth C.J observed:— “But in the case you have cited the document was divisible in its nature, consisting partly of a bond, and partly of a mortgage; the loan and pledge cannot be separated in the document before us.” In the course of his judgment the learned Chief Justice stated “the Court, [that is, in Luchmeeput Singh v. Mirza Khyrat Ali ] seems to have considered that the general words ‘no document shall be received in any Civil Court’ ought not to be read in their widest sense, but only as rendering the document inadmissible in evidence for the purpose of affecting the mortgaged property. The words of the present Act are different. Section 49 says, that no document required by section 17 to be registered, shall (without being registered) be received as evidence of any transaction affecting any immoveable property comprised therein. Now, in this case the document is not divisible but disclosed one transaction only, and that the transaction which the plaintiff must necessarily prove for the purpose of making out his case … the transaction was single and indivisible, and we think it is impossible to say, having regard to the words of section 49, that the instrument was admissible in evidence for the purpose of proving that transaction.” In my opinion, the true interpretation to be placed under section 49 is set out in the judgment of Muttusami Ayyar J. in Sambayya v. Gangayyaa in which his Lordship stated that “the test, therefore, is whether the transaction evidenced by the particular instrument is single and indivisible or whether it really evidences two transactions which can be severed from each other, the one as creating an independent personal obligation, and the other as merely strengthening it by adding a right to proceed against immoveable property. But it should be remembered that it is not enough that there is an obligation to pay a sum of money, but that it is also necessary that the obligation should have independent existence, and be in no way contingent or conditional on the breach of some obligation relating to immoveable property created by the same instrument, for the contingency or the condition and the obligation would then be parts of one indivisible transaction.” Mr. Bagram, upon the assumption that the law was correctly stated by Ayyer J. urged that upon the true construction of the letters of the 19th November, the words “all terms will be settled upon the agreement” amounted to an independent personal obligation undertaken by the first defendant to execute a lease in his favour. But these words standing by themselves are altogether too vague and indefinite to bear any intelligible meaning. In order to prove the contract for the breach of which the claim for damages is preferred the plaintiff must needs prove that a valid agreement to lease on the terms set out in the two letters was concluded between the parties; otherwise, ex concessis his claim must fail. But to admit the letters for that purpose would be to receive them as evidence of a transaction which, in my judgment, affects immoveable property, and to do so would be to act in direct violation of the provisions of section 49. The matter, however, does not rest there, for, assuming that it were to be open to the defendant to adduce in evidence the two letters of the 19th November, I ask myself what is the breach of the agreement therein contained of which the plaintiff complains. If the plaintiff claims damages upon the ground that the defendant has to grant him a lease, the answer is that the terms of the documents amount to a lease. If his complaint is that the defendant has refused or neglected to execute a formal document of demise, the answer is that no such document has been tendered to the defendant for signature, and that a formal document would possess no more potency or validity than the two letters the terms of which must needs be embodied therein. If the plaintiff contends that the breach of the agreement upon which his claim to damages is founded is that the defendant has failed to register the two documents or a formal document to the same effect, the answer is that the defendant undertook no such obligation (see Hurjivan Virji's Case , and section 32 of the Registration Act). Further, inasmuch as the plaintiff himself was entitled and in a position to obtain registration of the lease contained in the two documents of the 19th November, and nevertheless elected not to do so, that damages has he suffered by any act or omission in that behalf on, the part of the defendant? Any damage which he suffered by reason of the non-registration of the said documents would appear to be the result of his own negligence, and any loss which thereby may have accrued to him is due to his own default.
Lastly, it is contended that, inasmuch as the defendant No. 1 admitted in his written statement that the letters in question were executed, the plaintiff is entitled to specific performance of the agreement therein contained, or to such other relief as in the circumstances may be meet and just, without tendering the documents as evidence, or proving the terms of the said agreement. In paragraph 6 of the plaint it is alleged that “on the 19th November 1921 the plaintiff wrote and addressed a letter to the first defendant whereby he agreed to take a lease of the said premises for 21 years upon payment of a salami of Rs. 4,000, and a monthly rent of Rs. 400 increasing by Rs. 25 per month per every 7 years of the said period of lease both owner's and occupier's share of the rates and taxes payable to the Corporation being: payable by the plaintiff, thorough repairs to be executed in respect of the said premises every 5 years, such lease to commence from 1st December 1921. The first defendant on the 19th November 1921 wrote and addressed a letter to the plaintiff whereby he confirmed all terms which were contained in the aforesaid letter of the plaintiff of even date to the said first defendant.” The alleged admission is contained in paragraph 2 of the written statement which runs as follows; “This defendant admits having received the letter dated 19th November 1921 written by the plaintiff as also having written a reply on the same date to the plaintiff but as to the contents and anything therein contained, this defendant will refer to the original letters when produced.” In my opinion, all that the defendant admitted in paragraph 2 of the written statement was the execution of one letter and the receipt of another on the 19th November 1921. He did not admit the contents of the letters, or that the same were stated correctly in paragraph 6 of the plaint. On the contrary, he required the plaintiff to produce the documents if he desired to prove or establish the contents thereof. The admission to be found in paragraph 2 of the written statement does not, in my opinion on title the plaintiff to claim any relief in the premise without adducing in evidence the documents in question: see Burjorji Cursetji Panthaki v. Muncherji Kuverji , Venkatrayudu v. Pappi Reddi , Sambayya v. Gangayya , Bisheshar Lal v. Mussammat Bhuri .
In these circumstances it becomes unnecessary for me to consider whether, and if so, on what conditions, the plaintiff would be entitled to adduce such letters in evidence having regard to the provisions of the, Stamp Act.
For the above reasons, in my opinion, the suit fails, and must be dismissed with costs on Scale No. 2.
Attorney for the plaintiff: P.C Ghose.
Attorneys for the defendants: B.B Bannerjee; Nan & Das.
B.M.S