[3] Stuart, C.J:— The two principal questions raised in this appeal are (i) what is the nature of the instrument on which the plaintiffs sue to recover? and (ii) does it require registration in order to be received in evidence and enforced against the property mentioned in it?

The instrument is as follows:—I, Najib-un-nissa Bibi, &c., do hereby, declare that I, the executant, being in need of meeting my own necessity, have, on a promise to give land for sowing indigo in 1284. Fasli, borrowed Rs. 99-8-0, as a zar-i-peshgi advance, from Babu Basant Lal and Babu Ganga Prasad Singh, proprietors of the godown at Bisauli in pargana Nizamabad: that I promise and write that I shall get first class sugarcane and barley producing 24 bighas of land in mauza Bhurra Makbulpur, pargana Nizamabad, as selected by the karindas of the said godown, measured by the large chain consisting of three Ilahi yards, i.e, 20 biswas, according to Mr. Duncan's pole or latha as used at the said godown, at the end of the month of Chait 1283 Fasli: that the said agents of the godown are to irrigate the land mentioned above from pucka and kutcha wells, canal, lake, and ponds, in any way they think proper, and raise indigo: that they are to lay out their own money for the purpose of beating up the indigo leaves, at the time of beating up: that after setting off the rent of the said land at Rs. 4 per bigha, together with the patwari's charges against the zar-i-peshgi, both principal and interest, whatever surplus will be found due to me I shall recover from the proprietors of the said godown: that the proprietors of the said godown are to relinquish the land sown with indigo at the end of Bhadon, 1284 Falsi, after cutting the indigo stumps; that we shall then settle the land used for planting indigo with any tenant we like: that if we (God forbid) fail to give the whole land, or interfere with the sowing of indigo seed or irrigation thereof, or should any one else interfere or turn up the indigo (seed), the proprietors of the godown shall have the power to recover damages for loss, according to the practice of the godown, at Rs. 40 per bigha (regarding the deficiency in the quantity of land or on account of the land in respect of which over-turning or ejection may take place or irrigation be interrupted) together with the principal zar-i-peshgi amount [4] from me, the executant: that if I fail to pay, the proprietors of the godown are at liberty to recover from my person and property; that until the fulfilment of the conditions of the agreement we hypothecate our four-anna right and property in mauza Bhurra Makbulpur, agreeing not to transfer it in any way, and that should we do so, it would be void.”

I am clearly of opinion that this instrument is not a mere lease but an instrument in the nature of a usufructuary mortgage. For let us observe its terms. On the recital that Najib-un-nissa Bibi, the party making it, for herself and her minor sons and daughters, was “in need of meeting my own necessity,” it stipulates that she shall receive a zar-i-peshgi advance of Rs. 99-8-0 from the parties in whose favour the instrument is granted, and in consideration of that advance she promises to lease to the plaintiffs 24 bighas of land at a rent of Rs. 4 per bigha for a period commencing from Chait 1283 to Bhadon 1284 (i.e, for about 17 months), the land to be selected by the defendant; and it goes on to provide “that the proprietors of the godown are to relinquish the land sown with indigo-crop at the end of Bhadon 1284 Fasli, after cutting the indigo stumps, that we shall then settle the land used for planting indigo with any tenant we like,” and that should she fail in performance of her part of the contract she should pay damages at the rate of. Rs. 40 per bigha together with the zar-i-peshgi advance, and if she should fail to pay these damages and the advance, the parties with whom she contracts should be at liberty to recover from her person and property; and it then expressly provides that until the fulfilment of the conditions of the agreement, we hypothecate our four-anna right and property in mauza Bhurra Makbulpur, agreeing not to transfer it in any way, and that should we do so it would be void.” Such an instrument is, in my opinion, essentially a usufructuary mortgage, and I observe that Mr. Macpherson in his work on the Law of Mortgages in Bengal and the North-Western Provinces, 5th Ed., p. 8, so describes it. He there says: “Zar-i-peshgi leases, or leases granted on a sum of money being advanced, are on the same footing as pure usufructuary mortgages, and are dealt with as such”: and in support of this opinion he refers to numerous [5] authorities; and the learned author adds: “but this is only when there is a power of redemption reserved to the lessor either expressly or impliedly.” In the present case we have not only an express hypothecation and for a distinct term, but the power to redeem is clearly implied, not only from that term itself, but from the proviso “that the proprietors of the godown are to relinquish the land together with indigo crop at the end of Bhadon 1281 Fasli, after cutting the indigo stumps, that we shall then settle the land used for planting indigo with any tenant we like.”

Being then an instrument of this nature the next question is, whether it requires registration in order to be put in force against the property hypothecated by it? I am clearly of opinion that it does not require registration. The registration law to be considered in such a case is that provided by Act VIII of 1871, and the document in the present case clearly falls within the instrument mentioned in sub-section 1 of S. 18 of that Act as an instrument of value less than Rs. 100 in respect of immoveable property. It was suggested at the hearing that the question of the registration of such an instrument as this came within the principle of several rulings of this Court by which it appears to have been held that, in estimating the value to be considered in such cases, the interest agreed to be paid should be taken into account, and a judgment of my own, sitting with Turner, J., was referred to as showing this—Darshan Singh v. Hanwanta (1). In that case the bond which was unregistered was for a sum of Rs. 99 together with interest at 2 per cent, per mensem, and for that debt the defendants hypothecated certain property. In our judgment, which was delivered by Turner, J., and concurred in by me, it is stated that the bond “secured the re-payment of Rs. 99 plus Rs. 6 the interest for three months. This was the least sum that could have been recovered under the instrument. The instrument not having been registered, we cannot act upon it.” I have again looked at the bond in that case, and I observe it stipulates for the re-payment of the Rs. 99 with interest thereon at the rate of two per cent. “payment to be made in Sambat 1928.” It would appear to have been considered by us that this absolutely and beyond the control [6] of the parties postponed payment till that date, and if so undoubtedly the amount was over Rs. 100 and the bond required registration, and our judgment does not fall within the rulings of this Court to which I have referred. It may possibly be that we were mistaken in reading the bond as we did, and that the condition as to payment in Jaith, Sambat 1928, was introduced merely for the convenience of the lender of the money who might then demand it, but possibly there was nothing to prevent the borrower paying up the Rs. 99, if he had the money, almost immediately or very soon after the execution of the bond, so as to make the debt less than Rs. 100, and that would have been the true value for the purposes of registration. But I suppose all that was considered at the time of our judgment, and that we were well advised as to the facts when we stated that Rs. 99 plus Rs. 6 for interest “was the least sum that could have been recovered under the instrument.” But if it were otherwise and the bond simply acknowledged a debt of Rs. 99 which could have been re-paid with interest, no matter how soon, then I am inclined to think our judgment was wrong and that the only certain criterion of value for registration is the principal sum. In the present case our attention was directed to rulings of certain of the other High Courts laying down this principle, and particularly one by the High Court of Bombay , where it was decided that for the purpose of registration the principal sum alone was to be looked at. It appears unnecessary to consider such conflicting rulings in the present case, although I may remark that I have received a very strong impression that the Bombay Courts are right and our course of decision to the contrary has been mistaken, and so soon as the question is again raised here I hope it may be referred to the Full Bench for serious and deliberate consideration. In the present case, however, we need not occupy ourselves with any such discussion, as the value relating to the immoveable property is simply Rs. 99-8-0 without any stipulation as to interest or any other payment by which the principal sum may be augmented; the damages stipulated for depending on a contingency which may or may not happen and respecting which nothing can be anticipated at the time of registration. The decree of the lower appellate Court must therefore be modified so as to [7] allow the plaintiff to recover the Rs. 99-8-0 from the hypothecated property, the decree of the lower appellate Court in other respects remaining good.

Oldfield, J.:— It appears that Najib-un-nissa Bibi for self and as guardian of her minor children executed a deed called a “sattah,” dated 15th March, 1876, in favour of the plaintiffs, by which she covenanted to lease to them certain lands, and she at the same time hypothecated to them by the said “sattah” a four-anna share in mauza Bhurra Makbulpur for the re-payment of a sum of Rs. 99-8-0, advanced to her as a loan, and for damages payable by her in the event of her failure to fulfil the conditions of the contract. A 5½ annas share including the hypothecated four-anna share was subsequently sold by one of the sons to Tapeshri Rai and Mahesh Rai and Ram Lal, the two latter being represented in this suit by Kunjan Singh. Tapeshri Rai bought 3½ annas and obtained a mortgage on the remaining two-annas share and the others bought a two-annas share. The plaintiffs now bring this suit against the vendors, purchasers, and mortgagee, to recover Rs. 1,059-6-0 by sale of the hypothecated four-annas share, the sum they claim being the sum they advanced and the damages to which the vendors became liable for failure to fulfil the terms of the “sattah,” and for which amount the share was hypothecated, and they base their claim on the “sattah.” The plaintiffs and executants of the “sattah” entered into a compromise; Kunjan Singh, defendant-purchaser, confessed judgment; and Tapeshri Rai, who it will be seen is interested in the whole four-annas share hypothecated in the “sattah,” as out of 5½ annas which belonged to the executants he purchased 3½ and holds a mortgage on the remaining 2 annas, disputed the claim on the ground, inter alia, that the claim to enforce the hypothecation of four annas under the “sattah” necessarily failed, inasmuch as that instrument should have been registered, as it created a lien over the property for more than Rs. 100, and being unregistered was inadmissible in evidence. The first Court decreed the claim, exempting two of the children of Najib-un-nissa. Tapeshri Rai appealed to the Judge and raised the same objection as to the registration, and the Judge held that the objection was valid, and he set aside so much of the [8] decree as enforced the hypothecation under the sattah against the property.

The plaintiffs have preferred a second appeal making Tapeshri Rai alone respondent, and they urge that the instrument does not require registration as it does not create any interest in immoveable property of the value of Rs. 100 and upwards, and further that the Judge could not modify the decree in respect of defendants who did not appeal; and there is an objection as to costs.

Looking at the instrument in question, which is called a “sattah,” I find that by its first clause the executant declares that she has taken a loan of Rs. 99-8-0 from plaintiffs on the promise that she shall lease the land for farming indigo for the season of 1284 Fasli, and she covenants to have measured, and to put plaintiffs in possession, in Chait 1283 Fasli, of 24 bighas of land to be selected by the plaintiff's agent, to be held by them on lease from Chait 1283 to Bhadon 1284 at a rent of Rs. 4 per bigha, and it is stipulated she shall receive the surplus rent after deducting the amount of the loan with interest.

The executant binds herself to pay the plaintiffs damages at a certain sum per bigha for loss sustained by failure on her part to fulfil the conditions of the agreement, and she hypothecates a four-anna share in mauza Bhurra Makbulpur as security for the re-payment of the sum advanced and the damages she may become liable for.

I am unable to put quite the same construction on this document that the Chief Justice does. The first portion of the instrument appears to me to be a simple lease or agreement to lease and not to a “zar-i-peshgi” lease, or lease granted on a sum of money being advanced of the nature of a usufructuary mortgage. It is true that such leases often are on the same footing as pure usufructuary mortgages, but it will be seen from Macpberson on Mortgages, 5th Ed., p. 9, that “this is only when there is a power of redemption reserved to the lessor either expressly or impliedly, so that it distinctly appears that the parties themselves in fact intended the transaction to be one in the nature of a mortgage.”

[9] I find no such indication here. The land was leased for a fixed period at the end of which the lease terminated: provision was made for the recovery of the whole advance out of the rent payable to the lessor by the lessee and the land was in no way mortgaged as security for the re-payment of the sum advanced. I am not called on, looking to the pleadings, to say whether this instrument should have been registered as a lease.

The last portion of the instrument, however, undoubtedly effects an hypothecation of a four-annas share of the mauza, and the only question which is raised in this appeal for our decision under the Registration Law is whether this portion of the instrument creates a mortgage to the value of Rs. 100 and registration was in consequence compulsory under S. 17 of the Act of 1871. I think not: for the only certain sum secured by the hypothecation is Rs. 99-8-0, and the instrument cannot be held in the terms of the law to purport or operate to create any right, title, or interest of greater value than chat sum.

The particular objection taken to the inadmissibility of the instrument in evidence with which we have to deal fails, and so far the first ground of appeal is valid, but the instrument cannot be used to enforce a lien to any greater extent than Rs. 99-8-0 against the property in suit.