C. Streeramulu Naidu vs T. Ramaswami Mudaliar and Others

Wallis, C.J.—This is an appeal from a judgment of Mr. Justice Coutts Trotter in an action for specific performance, dismissing the plaintiff''s

suit without calling on the defendant. Mr C.V. Ananthakrishna Aiyar has argued that the evidence for the plaintiff made out a prima facie case. On

the other hand Mr. V.V. Srinivasa Aiyangar for the 2nd respondent has contended that the learned Judge was wrong in admitting as evidence

Exhibit A which he contended is an unregistered agreement for a lease and inadmissible for want of registration. He also argued that, as in it the

terms of the contract between the parties have been reduced to writing, no other evidence can be given of the contract u/s 91 of the Indian

Evidence Act. We are of opinion that these contentions must be upheld.

As regards the question whether Exhibit A amounts to an agreement for a lease, we think that the substance rather than the form of the

document must be regarded.

It is not at all uncommon in this country for agreements to sell or to lease to take the form of a receipt for a deposit on account of purchase

money or of an advance for rent. Agreements which took the form of a receipt have been held inadmissible in Narayanan Ghetty v. Muthiah Servai

ILR (1910) M 63, and Sreekishan Ghetty v. Kota Namalwarayya (1915) 29 I.C. 246, Exhibit A is in the following terms: ""Received advance

from C. Streeramulu Naidu or order Rupees one hundred only for giving 1 3/4 lease (which is explained by the evidence as a lease of 1 3/4

grounds) land of Mr. Rajagopalachariar after the expiry of the present lease to him for 25 years, rent at Rs. 3/8 month"". The demised premises

appear to be sufficiently capable of identification and the term and rent are also mentioned. On the whole, we have come to the conclusion that

though in the form of a receipt, this document Exhibit A embodies the terms of an agreement to grant a lease on the terms therein mentioned, in

addition to a receipt for a deposit of Rs. 100 an advance on account of rent.

According to the decision of the Full Bench in Narayanan Chetty v. Muthiah Servai ILR (1910) M 63, an unregistered agreement for a lease is

inadmissible in a suit for specific performance. It has been argued by Mr. C. V. Anantakrishna Aiyar that that decision is not only opposed to the

decision of an earlier Full Bench in Raja of Venkatagiri v. Narayana Reddi ILR (1894) M. 456, but also to the view which had been taken in some

other courts as in Basanta Kumari Debi v. Midnapur Zamindari Co. 19 C.W.N. 347. That decision, however, has now stood for nearly 7 years

and we think must be taken as settling the question so far as this Court is concerned and we are not prepared to re-agitate the question by a further

reference to Full Bench. If this be the case, it follows that Section 91 of the Evidence Act forbids any other evidence being given of the agreement

to lease which is sued upon. That disposes of the claim for specific performance.

Mr. C.V. Anantcakrishna Aiyar, however, has raised another objection and has argued that although under the decision of the Full Bench in

Narayanan Chetty v. Muthiah Servai ILR (1910) M 63 the plaintiff is precluded from obtaining specific performance for want of a registered

agreement, he still has his right to damages, and he has relied upon the decision of the earlier Full Bench in Rajah of Venkatagiri v. Narayana Reddi

ILR (1894) M. 456 which no doubt is expressly to that effect. After very carefully considering the question, we think that the contrary view

necessarily follows, from the view taken by the more recent Full Bench in Narayana Chetty v. Muthiah Servai ILR (1910) M. 63 and that, if the

view taken by that Full Bench is to be accepted as regards suits for specific performance, the necessary consequences should be accepted as

regards suits for damages. Section 49 of the Registration Act prohibits the document from being received "" as evidence of a transaction affecting

Immovable property."" The transaction affecting property, if it does not affect in, is the agreement to lease. Therefore the section in this view

prohibits the document from being given in evidence of the agreement to lease, and it seems to us that it prohibits it equally whether the claim be for

specific performance or for damages. It appears to be the logical result that the claim for damages must also fail, if the view taken by the more

recent Full Bench be adhered to, and as I have already said, we are not prepared to re-open that question.

In the result the appeal fails and will be dismissed with costs of the 2nd respondent.

Oldfield, J.

I should like to add that the question of admissibility of a document, such as Exhibit A, ought in my opinion, to be dealt with according as it is or

is not the record which the parties may be supposed to have prepared for future use in case it should be necessary to ascertain the terms of the

agreement between them; and that the circumstances in each case will therefore be, to some extent, material. Here we find that Ex. A is

propounded by plaintiff as having been passed to him when the agreement on which he now sues was made. It was passed directly as a receipt for

the advance which was paid under that agreement. But it does also contain a full record of the terms of the agreement and it seems to me that, in

the circumstances, it was meant for future use as a record of such terms and that case is therefore one in which the document must be taken as

embodying the agreement and must be registered. In those circumstances it seems to me that, being unregistered, it is inadmissible.

On the other points I entirely agree.