1. Two questions, which arose in the hearing of this case, are of such importance that it is desirable I should consider them before going on to dispose of the formal issues stated between the parties. The first is as to whether the document executed by the defendant Muncherji to the plaintiff Burjorji is one that requires registration under s. 17 of Act III of 1877 and what are the consequences of its non-registration. The second is, whether the document is sufficiently admitted by the defendant Muncherji to make its production in evidence unnecessary.
2. The language of s. 17, cl. (b) of Act III of 1877 is the same in its effect as that of the corresponding enactment in the previous Registration Acts, VIII of 1871 and XX of 1866. But by cl. (h) of that section it is provided that "nothing in cls. (b) and (c) of this section applies to 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 immoveable 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."
3. We have, therefore, to consider whether the document now in question, is of a kind included in cl. (b), and, if not, then what is the operation on it of cl. (h).
4. It is contended by the learned counsel for the plaintiff that the document is meant to do, and is in its nature calculated to do, no more than create a right to obtain another document, which second document will, when executed, create or declare a right to the property specified. That a contract has been made is conceded. It is admitted that an equitable interest, so called, has been constituted by the transaction embodied in the paper signed by Muncherji; but this, it is said, is not a right or interest of the kind intended. It is merely a right in personam against Muncherji. By the contract, Burjorji has acquired a secondary right of action to insist on Muncherji's making his engagement good by executing an effectual conveyance, but no more. The document stipulates for a formal conveyance, but is not itself a conveyance. The ownership remains vested in Muncherji until his specific performance of the existing obligation is sought by the plaintiff Burjorji by executing an actual and effectual conveyance whereby the ownership shall be transferred from the one to the other. The real right, as distinguished from the obligation, will then have passed, but not till then, nor then without a registration of the final instrument. The one now executed, giving a right to that, is of exactly the kind contemplated by s. 17, art. (h) of Act III of 1877.
5. The document in question, of which a copy is annexed to the plaint, engages Muncherji, at least by implication, to execute a further assurance.
"I have received from you Rs. 100, namely, rupees one hundred, as earnest (i.e.,) at the time of the execution of this bargain-paper. And as to the remaining Rs. 1,800, namely, one thousand and eight hundred, the same are duly to be paid to me within one month from this day, when you will get the deed (or) document made in your favour. And all the expenditure in respect of the deed (or) documents and transferring (the property) to your name you are duly to make on your account." And, again," On these terms this informal bargain-paper having been written, is agreed to and delivered." It was plainly a term of the act or expression of will that Burjorji, paying the remainder of the purchase-money, should obtain execution by Muncherji of a more formal conveyance. But in cases of contract if the parties intend to be bound forthwith, and say so, the fact that a more formal expression of their intention is to be drawn up afterwards does not deprive the mutual consent of its proper effect (1). It is only when the assent is suspended, being dependent, or conditional on the acceptance in a particular form, and the execution of a further document, that the obligation is not contracted (2). The principle applies generally to manifestations of volition. When the parties have agreed to commit their oral agreement to writing, a presumption was raised by the Roman law and is raised by the Prussian codes and other modern laws (3) that the right or obligation is dependent on an execution of the instrument; but this is only a presumption. Where the parties themselves had agreed upon certain formalities, it was requisite to seek in the contents of their agreement what had been their intention, for it was that which must serve as a guide (4). The presumption which reason at once recognizes of the merely tentative character of an oral declaration, meant to be superseded by a written one, hardly arises at all as between two writings. The earlier of these is capable of giving expression to the joint will in unmistakable language and of excluding contradictions of memory. Except where a particular form is prescribed by law it may in such a case be said of the later and now formal instrument; fiunt scripturo ut quod actum est per eas facilius probari possit et sine his autem valet quod actum est si habeat probationem (5).
6. If, then, there has been an expression of will in itself effective, the effect is not defeated or suspended by a provision for a more formal declaration. That the act is unilateral in the sense of being onerous to but one of the parties, makes no difference; it is in every case his own desire and will that the declarant, even in a bilateral obligation, expresses, whether as dependant or as absolute and immediately operative.
7. As it is a general characteristic of property that it may be transferred, so it is generally, true that this may be accomplished by the volition, openly manifested, of the intending transferor and transferee. The relation of ownership of immoveable property has in most legal systems been deemed to affect the public so materially that various forms have been prescribed as essential to its transfer, but the necessity of feoffment with livery of seisin is not a part of the English law that obtained a place in India, through its suitableness to local circumstances; and even a provision of the Statute of Frauds, which required that a document relating to the sale of lands should be in writing, has been repealed by the Indian Contract Act. According to the Hindu law, a change of possession or something equivalent is necessary to the completion of a transfer, and it has been contended by some distinguished jurists that such a change ought, according to a sound philosophy of the law, to be made essential in every case (1). But the English law has not adopted such a theory, and, except by way of caution against fraud, there is no convincing reason why more should be required than a mutual assent for replacing one member of the community as an owner of property by another equally qualified for the functions of a proprietor. Thus, in the absence of any special law as to the forms to be observed, one Parsi may well transfer his ownership to another by a mere open assent of both to that effect. A real ownership may pass, though the public policy of the Registration Act may make the ownership subject to defeasance if it has not been secured by registration. But the same policy may impress the intended transfer with an original defect, and deprive it of all operation, unless authenticated in the way prescribed. Such appears to be the effect of s. 49 of the Registration Act III of 1877. "No document required by s. 17 to be registered shall affect any immoveable property comprised therein................unless it has been registered in accordance with the provisions of this Act." The property or ownership in the cases contemplated cannot pass without a registration of the instrument, nor can an instrument unregistered be received as evidence of a transaction directly affecting the property comprised in it.
8. In the present instance, then, the document in question cannot, as being unregistered, create or assign the intended interest. On its face it "declares" an interest, and what it declares is a matter of mere intention of the parties independent of any law. But at the same time a "declaration" so taken has no legal effect. What is intended is a declaration apt. in itself to bind the parties and to constitute a particular right. As the instrument cannot affect the property to which it relates, the document, though certainly made, is purely abortive in a legal point of view.
9. Were the instrument itself capable of transferring the ownership, as under the Registration Act it is not, the further conveyance promised by it could do no more. In that case it could not properly be described as "merely creating a right to obtain another document." The right having passed, that second document would merely record the transaction in a particular form. But the right to the further instrument is at least created, and this alone subsists where the primary expression of will as to immediate change of ownership fails. It was intended to be accessory, but it can subsist separately. The first document is thus reduced to one "merely creating a right to obtain another document, which will, when executed," effect the desired purpose if the execution be accompanied by registration. The right is a right in personam, and subsists as between the parties, though, as directly affecting the property and creating a real right, the document is quite ineffective.
10. Now what the plaintiff in the present suit seeks, is, specific performance by the execution of the conveyance which will convert his contractual right into a right of ownership. I think that for such a purpose the document A is admissible to show the contract entered into for another conveyance, though not as a conveyance itself. It is, in terms, a conveyance, i.e., an instrument translative of ownership, and on the argument that this was not its character, I thought it not admissible. I could not consider it as in its purport nothing more than an agreement to convey; it purports itself to convey. But that principal purpose failing, the secondary one becomes the principal, and the document might, I think, be used to ascertain what the formal and final conveyance ought to be.
11. It is because it is made inoperative for its primary purpose, that it becomes admissible for the secondary purpose--admissible, not to prove a transaction itself changing ownership (6), but one giving a right to such a transaction by way of conveyance. In this way only, so far as I can see, can effect be given to s. 17, cl. (h); for an equitable interest being at once created by the contract, the contract, fails through its own completeness, unless the additional contract for a separate conveyance is allowed an independent effect. In one sense a contract to convey does convey, i.e., transfer the intended interest; but this consequence was not, it is certain, intended to make the provision in s. 17, cl. (h), purely illusory.
12. The second question is that of whether the proof of the document is superseded by its admission in the pleading. On this point the case of McGowan v. Smith(7) and the onus there referred to, seem conclusive. A Court, in general, has to try the questions on which the parties are at issue, not those on which they are agreed(8); and admissions which have been deliberately made for the purposes of the suit, whether in the pleading or by agreement, will act as an estoppel to the admission of any evidence contradicting them. This includes.........any document that is by reference incorporated in the bill or answers (9).' The point is not in issue; and as to the counter-statements of the parties, "a plea or a special replication admits every point that it does not directly put in issue. The same rule applies to an answer when it assumes the form of a demurrer or plea by submitting a point of law or by introducing new facts. Thus a submission that the defendants would not be in anyway affected by the notice set forth in the bill, precluded them from disputing the validity of this notice" (10). Such rules are to be applied with discretion in this country, where a strict system of pleading is not followed; but here, as I suppose everywhere, the language of Lord Cairns holds true, "that the first object of pleading is to inform the persons, against whom the suit is directed, what the charge is that is laid against them (1)." The principle is equally valid as applied to either party in the cause. The Court (2) is to frame the issues according to allegations made in the plaint or in the written statements tendered in the suit, which here contain a full assertion and admission of the execution of the document A by the defendant Muncherji. But the issues, as they stand, were suggested by the defendant's counsel. They waive controversy as to the actual execution of the document, assume it to have been executed, and raise questions only that depend for their pertinence on that assumption. Under such circumstances the plaintiff is not, I think, called on to prove the execution of the document or to put it in evidence. If the document being pronounced absolutely invalid for some purpose on considerations of public policy, it were sought to defeat the law through the effect usually given to an admission in pleading, such an attempt could not be allowed to succeed, but for its proposed purpose in this case it is not invalid. It may serve as a ground for claiming the conveyance it promises, though unregistered; while as unregistered it is not itself an operative conveyance. It is embodied by reference in the plaint and admitted in the answer. It remains to be seen whether the objections, raised on behalf of the defendant to the fulfillment of the contract thus ascertained, are supported by the evidence. [His Lordship then commented upon the evidence, and passed a decree for the plaintiff, with costs.]
(1)Bonnewell v. Jenkins, 8 Ch. D. 70; Crossley v. Maycock, L.R. 18 Eq. 180; Rosseter v. Miller, L.R. 3 Ap. Cas. 1124.
(2)See case already cited, and Boyd v. Hind, 25 L.J. Ex. 246; Branton v. Griffiths, 3 C.P.D. 212(214).
(3)Part I, Ti. 4, S. 117.
(4)Gondsmit. Pand. 147.
(5)Di. Li. 22, T. 4, Lex, 4: see vi, ad Inst. Emp ad Vend. 10.
(6)Act III of 1877, s. 49.
(7)26 L.J. Ch. 8.
(8)Civil Procedure Code, Act X of 1877, S. 146.
(9)Gresley's Law of Evidence, 457.
(10)Op. Cit. p. 22.
