Harries, J.This is a Letters Patent appeal from a decision of Agarwala J. dismissing a second appeal. The suit out of which the proceedings arose was brought by the plaintiff claiming specific performance of a certain agreement entered into between him and the father of defendants 1 and 2. The learned Munsif who heard the suit decreed the plaintiffs claim; but on appeal the learned Additional Deputy Commissioner, Subordinate Judge of Dhanbad, reversed the decision of the Court below and dismissed the claim. He held that the agreement sought to be specifically enforced could not be tendered in evidence and therefore the plaintiff could not prove his claim. The plaintiff appealed to this Court; but Agarwala J. held that the decision of the lower Appellate Court was right and dismissed the appeal. It is against that decision that the present Letters Patent appeal has been preferred. The agreement in question was entered into between the plaintiff and the father of defendants 1 and 2 in the year 1926 and is in these terms:

I, Nilkantha Ghati of Metala Pargana Nagar Keari, execute this deed of security (thika abadha) to this effect: For giving you kabala of my homestead land which appertains to my share in my maurashi mukarrari mauza which is plot No. 813, described in Schedule 3, the total amount is settled at Rs. 800 in the presence of five gentlemen and out of that agreed sum I receive Rs. 200 and give the property as security to you. As long as you do not pay the remaining Rs. 100 which is fixed for sale deed (kabala) so long you will not be able to erect any house on the land but you will remain in possession in bringing it under cultivation, to that I or my heirs will not take objection. On the day you pay the remaining Rs. 100 for sale deed (kabala) I shall be bound to execute registered sale deed (kabala) after fixing the proportionate rent of the said land. To this elect after receiving Rs. 200 I execute this deed of security after giving the said land as security.

2. The plaintiff paid the sum of Rs. 200 and obtained possession of the land. However, he has not paid the remaining sum of Rs. 100, though he is ready and willing to-do so. Defendants 1 and 2 later settled the land with other defendants who ejected the plaintiff therefrom, and accordingly the latter brought this suit seeking specifically to enforce the contract and to compel defendants 1 and 2 to execute a sale deed in his favour on receipt of the balance of the purchase money, namely Rs. 100. As I have stated, the learned single Judge of this Court held that the agreement sought to be specifically enforced could not be put in evidence by reason of the fact that it had not been registered, and therefore the plaintiff could not prove his case.

3. The only question in the appeal therefore is whether this document is one requiring registration, because if it does not require registration then it could be adduced in evidence to establish the plaintiffs case. Section 17(1), Registration Act, sets out the documents which require registration, and Sub-clause (c) requires all non-testamentary 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 in immovable property to be registered. Sub-section 2, Clause (v) of this Section however provides that "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" need not be registered.

4. The result of non-registration of a document requiring registration is provided for in Section 49 of the Act, which says that no document required by Section 17 of the Act or by any provision of the Transfer of Property Act, 1882, to be registered shall be received as evidence of any transaction affecting such property. There is however a proviso to this Section, which is in these terms:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chap. II, Specific Relief Act, 1877, or as evidence of part performance of the contract for the purposes of Section 53-A, T.P. Act, 1882, or as evidence of any collateral transaction and not required to be effected by registered instrument.

5. There can be no question that if this latter proviso applied to this case, the agreement, though unregistered, could be adduced in evidence. It has however been contended on behalf of the respondents that this proviso cannot affect the case by reason of the fact that it only came into force in the year 1930. The proviso was added to Section 49, Registration Act, by Section 10, Transfer of Property (Amendment) Supplementary Act, 1929; and Section 15 of that Act, expressly provides that nothing in the Act shall be deemed to affect (b) the validity, invalidity, effect or consequences of anything already done or suffered before the Act came into force; and Section 1(2) provides that the Act should come into force on the first day of April 1930. The respondents argue that one of the effects or consequences of non-registration of the agreement in question was that it could not be adduced in evidence, and as such was undoubtedly the case until this amending Act was passed.

6. If the amending Act applied to transactions which took place before the passing of the Act, then the consequences of non-registration would no longer apply. However, as the Act is not to affect the validity, invalidity, effect or consequences of anything already done, it is argued that any document executed before the Act, which could not be adduced in evidence by reason of non-registration, is not affected by the amending Act. On behalf of the appellant however, it is contended that the High Court at Allahabad has taken a different view.

7. It is urged that this proviso relates only to procedure, and there is no reason why the proviso should not be considered to be retrospective. In Sohan Lal and Others Vs. Atal Nath a Bench of the Allahabad High Court held that a document executed before the amending Act 21 of 1929, could be adduced in evidence after the passing of that Act though it had not been registered as required by the Registration Act at the time when it was executed. The learned Judges stated that the matter was one relating to procedure, and therefore the amending Act could be regarded as retrospective. It was not brought to the notice of the learned Judges however that Section 15 of the amending Act 21 of 1929 makes this provision applicable only to transactions entered into after the passing of the Act and in the absence of any reference to Section 15 of the amending Act 21 of 1929.

8. This case cannot be considered as an authority in support of the appellants contention. Rowland J. in Dharichhan Singh Vs. Mahabir Singh, held that the amendment of the Transfer of Property Act by the amending Act 21 of 1929 cannot assist a plaintiff whose suit was commenced before that Act came into force, as such proceedings were expressly saved by Section 15 of the amending Act. In my view, the reasons given by Rowland J. in that case apply equally to this case. Section 15 of the amending Act 21 of 1929 expressly says that any remedy or proceeding or anything done in the course of any proceeding pending in any Court when the Act came into force, was not to be affected by the Act. The same Section also says that the validity, invalidity, effect or consequences of anything already done or suffered before the Act came into force was not to be affected by the Act. As I have stated, one of the consequences of failure to register this document was that it could not be adduced in evidence.

9. That was a consequence which the Act expressly states should not be affected. In my view therefore the proviso to Section 49 did not have retrospective effect and therefore cannot affect this agreement which was executed four years before the amending Act 21 of 1929 came into force. That being so, it must be held that the agreement in question could only be admitted in evidence if it fell within Section 17(2)(v), Registration Act.

10. This latter provision renders registration unnecessary if the document does not create any right, title or interest of the value of Rs. 100 or upwards to or in immovable property, but merely creates a right to obtain another document which would, when executed, create such a right. It has been contended by the appellant that the agreement in question does not create any right in immovable property, but merely creates a right to obtain a sale deed, that is another document which would, when executed, create a right in immovable property. It is therefore necessary to consider the document in order to see whether it does create an interest in immovable property or merely creates a right to obtain a sale deed.

11. In my view this agreement clearly created a right in immovable property. The document is itself stated to be a deed of security, and it is provided that on payment of Rs. 200 out of the purchase price of Rs. 300 the land is to be delivered to the plaintiff as security and that the latter should hold it as security for the sum of Rs. 200 until he paid the balance of Rs. 100. There is a further provision that whilst the land is held by the plaintiff as security he cannot build on it though he can bring it under cultivation. It is true that there follows a provision that on the day the plaintiff pays the remaining sum of Rs. 100 the father of defendants 1 and 2 would execute a sale deed; but this latter provision is only one of many terms in the agreement.

12. There can be no question that possession of the property passed to the plaintiff under the agreement, and he was given a right to hold it and to cultivate it as security for the sum of Rs. 200 which he had already paid. Such an agreement undoubtedly gave the plaintiff a right in this immovable property; it gave him not only possession but security for the money which he had already paid. Agarwala J. was of opinion that the document created a right in immovable property, and with that view I agree. It has however been strongly urged by Mr. Mazumdar on behalf of the appellant that the promise to execute a sale deed on receipt of the balance of the purchase price is the only promise sued upon in this case, and that being so the document could be adduced in evidence of this isolated promise.

13. Reliance was placed upon a case of this Court, Abdul Latif Mian Vs. Debi Mahton, in which it was held that where in an unregistered document there are two distinct provisions, one creating a charge or mortgage and requiring registration and the other being an agreement for sale not requiring registration there is nothing to prevent the plaintiff in a suit for specific performance wherein the charge or mortgage is not sought to be enforced from relying on that part of the document which purports to be a mere agreement to sell. This Court purported to follow the case in Vyravan Chetti v. Subramanian Chetti AIR (1920) PC 33. It is to be observed however that this Court in construing the document then under consideration held that it was a document which gave the plaintiff merely a right to call for a sale deed and that it was not an agreement which created any interest in immovable property.

14. That being so, any observations of the Court as to whether terms in a document can be severed were purely obiter. It is to be noted however that Wort J. who delivered the leading judgment observed at p. 628 that the decision of their Lordships of the Privy Council in Vyravan Chetti v. Subramanian Chetti AIR (1920) PC 33 was an authority for the contention that where a document created a specific charge as well as a right to demand a sale deed such a document required registration u/s 49, Registration Act. In my view the case in Abdul Latif Mian Vs. Debi Mahton, to which I have referred is not an authority in favour of the appellants contention in this case, because the point which is now before the Court was not before the Court in the earlier case.

15. The appellant has strongly relied upon the case in Vyravan Chetti v. Subramanian Chetti AIR (1920) PC 33 which is a decision of their Lordships of the Privy Council; but in my view that case is clearly distinguishable from the present one. In the Madras case the facts were as follows: The appellants were the first mortgagees of certain immovable property, and the respondents held a second mortgage of the same property. They agreed that both parties should, as regards rights, stand in the same position without claiming prior or subsequent rights and divide and appropriate in equal halves as per terms mentioned whatever amount might be realized on the date of realization. The appellants realized part of the estate and the respondents sued them in order to obtain their share of the proceeds to which they claimed to be entitled by virtue of the agreement. The agreement was unregistered and an objection was raised by the appellants that the agreement required registration and not being registered could not be used in evidence.

16. Their Lordships held that on the construction of the agreement that if the whole effect of the agreement was to provide merely that the realized money was to be divided in equal shares there was nothing to require it to be registered, and if, on the other hand, there were two distinct provisions, the one relating to rights of property and the other with regard to the division of the money realized, then as the proceedings in the suit related merely to the question of the realized money, the agreement need not be registered for the purpose of being given in evidence in this suit, though it might require registration in a suit relating to the regulation of the rights against the estate itself.

17. It has been contended that in the present case the agreement to execute a sale deed is a distinct and separate agreement and that the agreement of 1926 can be put in to prove this portion though it might not be admissible in evidence as proving a right or interest in immovable property by reason of want of registration. It is to be observed that in Vyravan Chetti v. Subramanian Chetti AIR (1920) PC 33 there were two distinct and separate agreements one relating to rights in immovable property and the other relating to rights in the proceeds realized. The only question which arose in the case was whether or not the respondents were entitled to a half share of the proceeds collected by the appellants. It was possible to separate and sever the two terms and to regard them as independent of each other.

18. In the present case, it is quite impossible to sever the terms. In my view the provision that the defendant would execute a sale deed on payment of the balance of Rs. 100 is an integral park of the whole agreement and it cannot be severed and treated as something distinct and, apart from the other terms which undoubtedly create an interest in immovable property. In my view, the present case cannot be distinguished from the later decision of the Privy Council in Dayal Singh v. Indar Singh AIR (1926) PC 94 . In this latter case there was an agreement for the sale of immovable property which acknowledged the receipt of Rs. 1000 part of the purchase price paid by the buyer as earnest money. The seller refused to complete and the buyer sued for specific performance. The agreement was not registered. Their Lordships held that u/s 55, Sub-section 6(b), T.P. Act 1882, the buyer was entitled to a charge upon the property in respect of the earnest money, and that consequently the agreement created an interest in it, with the result that it was required to be registered u/s 17(1)(b), Registration Act 1908, and was not exempt by Section 17, Sub-section (2)(v). Therefore the suit could not be maintained having regard to Section 49, Registration Act.

19. It is true that no such charge upon property in respect of earnest money is now created by reason of an amendment, of the law after the decision of that case; but the case is still clearly an authority for the proposition that if an agreement creates a charge by implication of law, then it is an agreement affecting immovable property and cannot be regarded as an agreement merely creating a right to demand a sale deed. It appears to me that the present case is a stronger one than the case which was before their Lordships of the Privy Council. In the latter case the charge was created by implication of law, whereas in the present case the charge is expressly created by the terms of the agreement. As I have already stated, Wort J., in James Skinner v. R.H. Skinner AIR (1929) PC 269 , expressly held that 53 IA 2145 was still an authority for the contention that a specific charge created by an agreement would render it liable to registration though the agreement also contained a provision relating to the execution of a further document such as a sale deed. These two decisions of their Lordships of the Privy Council appear at first sight to be conflicting, but they are clearly distinguishable. Where a charge is created by a term which is an integral part of the transaction, then the document must be registered and cannot be tendered in evidence even to prove an agreement to execute a further document such as a sale deed. Where, however, the promises are distinct and separable, then a document, though it creates a charge, can be put in evidence to establish a promise to execute a further document such as a sale deed. Such is the view expressed by Sir George Lowndes who delivered the judgment of the Board, in James Skinner v. R.H. Skinner AIR (1929) PC 269 . He observed:

In the present case the document under consideration, in addition to creating an interest in the immovable property concerned, provides as one of the terms, and therefore as an integral part of the transfer, that the vendor should, if the vendee so requires, execute a registered sale deed, and it is contended for respondent 1 that, notwithstanding the non-registration, he can sue upon this agreement putting the document in evidence as proof of it. Their Lordships are clearly of opinion that this is within the prohibition of the Section.

20. In my view the present case cannot be distinguished from the cases in Dayal Singh v. Indar Singh AIR (1926) PC 94 and James Skinner v. R.H. Skinner AIR (1929) PC 269 to which I have referred. That being so, the agreement as it was unregistered, could not be tendered in evidence even to establish the promise by the defendants to execute a sale deed on payment of a future sum of Rs. 100. Agarwala J., was therefore right in holding that this document was not admissible in evidence and that the plaintiff had therefore not established his case. Lastly, it was argued that even if this document is not admissible in evidence to establish the defendants promise, yet it is admissible in evidence to establish that the plaintiff has paid a sum of Rs. 200 upon a consideration which has failed. We were therefore asked to treat this case as a suit for the return of Rs. 200.

21. In my view, a suit if it lay at all, would be a suit not for the return of Rs. 200 but for damages for breach of contract, and the plaintiff would not be able to prove his contract without putting in the document, and in my view the document could not be adduced in evidence for want of registration for the reasons which I have already given. The plaintiff was given possession of the property and remained in possession for nearly ten years, and such possession is expressly stated in the document to be by way of security for the sum of Rs. 200 which he had paid. It in no way follows that upon dispossession the plaintiff has lost Rs. 200. He may have derived considerable profit from the property during his possession, and, on the other hand, the possession might not have been worth reasonable interest on the money. His claim would have to be a claim for damages or compensation and not for the return of money upon a consideration which had failed. Consideration had not wholly failed, because he had been in possession for a long period of time.

22. In any event, the Court could not at this late stage convert the suit into one for compensation or damages. It is true that the plaintiff, after asking for specific performance and possession, asked for such other and further relief, but in no Court did he ask for damages in the alternative, and it appears to me that to ask for such in a Letters Patent appeal is asking for alternative relief at too late a stage. Further, there is authority of their Lordships of the Privy Council, which makes it clear that a Court should not grant an amendment in a suit for specific performance unless such is asked at an early stage. In Ardeshir Mama v. Flora Sasoon AIR (1928) PC 208 a plaintiff claimed, pursuant to Section 19, Specific Relief Act, specific performance of a contract, and compensation in addition or in substitution, and subsequently gave notice abandoning his claim for specific performance. It was held that he could not recover damages for breach of contract without amending the plaint, since relief u/s 19, Specific Relief Act could be decreed only where the plaintiff was ready and willing to perform the contract and that it was therefore still subsisting.

23. It was further held that the Court even at the trial, had power to allow the necessary amendment, but that power should be exercised most carefully and jealously, and with due regard to the position of both the plaintiff and the defendant. An amendment should not be allowed when the suit has been pending as one for specific performance for a long period, during which the defendant had been prevented by Section 27(b), from dealing with the property. As I have stated an amendment is asked at this very last stage, and in my view this Court cannot grant it having regard to the views expressed by their Lordships of the Privy Council in the case to which I have referred. That being so, the Court cannot give the appellant any relief by way of compensation. For the reasons which I have given, I am satisfied that the decision of Agarwala J. was right and I would therefore dismiss this appeal with costs.

Fazl Ali, J.

24. I agree.