Ross, J.On 14th August 1897,. Tawad Hussain, who was defendant 1 in the present suit, borrowed Rs. 11,000 from the predecessor. of the plaintiffs and mortgaged inter alia, 10-annas interest in Mauza Makhdumpur. On 18th September 1904, the mortgagees obtained a decree on this mortgage.

2. On 24th February 1905, Jawad Hussain borrowed a furthe sum of Rs. 2,000 and mortgaged 6-annas interest in Mauza Makhdumpur. On 4bh April 1905 he is said to have executed a deed of agreement in favour of his wife Khodaijatul Kubra (defendant 2,) by which he purported to make over to her the 16-annas of Mauza Makhdumpur in consideration of an annual rent of Rs. 500. The effect of this instrument is the principal question in the present litigation. On 18th November 1905, Jawad Hussain borrowed a further sum from the same persons, and by a deed which recited the mortgage decree and the second mortgage referred to above, he mortgaged 16-annas of Mauza Makhdumpur keeping alive the lien of the prior mortgage bond and the decree aforesaid as well as the second mortgage deed referred to above. A decree was obtained on this mortgage on 20th January 1911, in a suit which was instituted on 17th September 1910. Proceedings in execution were taken from 1912. The execution was very protracted, being resisted on all possible grounds, but on 2nd June 1917, Makhdumpur was sold for Rs. 48,000 and the sale certificate was granted on 28th August 1920 to the mortgagees auction-purchasers.

3. On 18th September 1920 the purchasers applied for delivery of possession; but it was found that Makhdumpur or, at least the kutchery, was not in possession of the judgment-debtor, Jawad Hussain, but of his wife Khodaijatul Kubra. The purchasers therefore brought the present suit on 23rd October 1922 for possession of this village with mesne profits

4. The suit was defended only by Kho daijatul Kubra and her defence was that she had obtained in 1905 a permanent mokarrari lease of the village in satisfaction of her dower-debt of Rs. 10,000 and in consideration of an annual payment of Rs. 500 to defendant 1 that she had been in possession of the village since the date of the agreement and had built a house and laid out a garden there. There was an alternative defence that the transaction was in the nature of a hiba-ba-shart-ul-ewaz which conferred complete title.

5. The learned Subordinate Judge passed a decree in favour of the plaintiffs. He held that the instrument of 1905 had in fact been concocted long after that date and that the evidence of possession was unreliable and unsatisfactory. He found that defendant 1 had continued in possession of Makhdumpur.

6. The decision of this case, in my opinion, depends upon the facts; but as a great deal of discussion was directed to the legal aspect of the casa during the hearing of this appeal I shall briefly state my opinion on this matter.

7. The operative words in the deed of agreement executed on 4th April 1905 (Ex. L.) are these:

I therefore considered it proper and suggested to the said Musammat to take over 16-annas Mauza. Makhdumpur...in lieu of Rs. 10,000 out of her dower-debt on the condition of paying annually Rs. 500 on account. of revenue and cesses and for my personal expenses. Accordingly, my second wife, Mt. Bibi Khodaijatul Kubra alias Jamil Khatun liked and accepted it, But it is impossible at this time to execute any necessary deed at this place, Islampur Konand.... I therefore executed this deed of agreement with the same condition. I do declare that on reaching Sabibganj, District Gaya, within three months, I shall execute a necessary deed to the above effect, and shall put (her) in possession and occupation of the said mauza. If, God forbid, a necessary deed to the above effect may not be executed even on the expiry of the aforesaid period of three months, or I fail to execute it for any reason, the said Mt. Khodaijatul Kubra alias Jamil Khatun has and shall have right and power, according to this deed of agreement, to take possession of the said Mauza Makhdumpur in lieu of Rs. 10,000 out of the dower-debt due to her on the condition of paying annually Rs. 500 on account of revenue and road-cess and for my personal expenses to me and to my heirs and representatives in respect of Mauza Makhdumpur...and of paying sadr jama of Rs. 36-9-0 year after year and to get a necessary deed executed by me and my heirs and representatives through Court or in whatever way the may think possible and proper.

8. The difficulty in the way of the appellants setting up this deed is that it is not registered. This difficulty is not removed by the contention that the deed is hiba bashart-ul-ewaz. Although the transaction thus known to Mahome-dan law is nominally a gift with a condition for consideration, yet once the condition is fulfilled the contract becomes a sale: Ameer Alis Mahomedan law, 14th Edn. Vol. 1, at p. 163. And it is obvious that in the present case the transaction would be a sale for valuable and not nominal consideration such as a copy of the Koran. The consideration is the dower-debt of Rs. 10,000, and a reserved rent of Rs. 500. Consequently this is not a gift and requires registration: see also Abbas Ali Shikdar v. Karim Bahhsh Shikdar [1909] 4 I.C. 466. Apart from this the transaction, in my opinion, is not and was not intended to be a hiba bashart-ul-ewaz. This is only set up as an alternative and legal defence in the written statement. The real defence is that this was an agreement to grant a permanent mokarrari lease; and it has been so treated all along. Thus the tenure is described in the Record-of-Rights as mokarrari istemrari. In the petition submitted by Jawad Hussain to the Settlement Officer in 1915 the interest of Khadaijatul Kubra is described as mokarrari: Ex. 26. In a tamlikhnama executed in 1917 it is described as a perpetual mokarrari; and in the village collection papers defendant 2 is described as mokarraridar. Defendant 2 is also described throughout the evidence as mokarraridar. It is not therefore necessary to discuss further this suggestion that the instrument is hiba bashart-ul-ewaz.

9. The instrument, in my opinion, is an agreement for a lease operating as a present demise. It was contended for the appellant that it is in reality not an agreement for a lease for a present demise but a promise to execute a lease within three months or at the option of the lessee. In my opinion this is not the true effect of the instrument which plainly purports to create an interest in land. It is therefore an agreement for a lease and as such requires registration u/s 2(7) and Section 17(1)(a), Registration Act. The result of non-registration is that this instrument does not affect any immovable property comprised therein, nor can it be received as evidence of any transaction affecting such property: Section 49. It does not follow however that the document is wholly irrelevant. The doctrine of Mahomed Musa v. Aghore Kumar AIR 1914 P.C. 27 was applied to such an instrument in (Maharani) Janki Kuer Vs. Birj Bhikhan Ojha and Others, .

10. According to the decision the true position is that, while Section 49, Registration Act, precludes the use of the document for the purpose of proving a binding contract between the parties creating an interest in the property, nor can it be received as evidence of any transaction affecting the property, yet it is not necessary to rely upon such a transaction if the acts of the parties themselves are consistent only with the recognition on the one hand, and the exercise, on the other, of those rights which the document, although not finally binding as a contract purported to confer. The instrument is admissible not for the purpose of proving a concluded transaction transferring an interest which it clearly is not, but for the collateral purpose of proving the nature of the defendants possession. In that decision the authorities for this last proposition are cited. The objection to the document for want of registration is not a mere technical objection, but is an objection of substance going to the fact and the bona fides of the whole transaction; and the effect of the want of registration is that the acting of the parties have to be examined in order to see whether any such agreement for a permanent lease did in fact exist. (His Lordship here referred to the evidence concluding there from that defendant 2 had neither been in possession of Makhdumpur since 1905 nor was there any part performance of an agreement for permanent lease of that village to her which would enable her to establish a title independently of any registered lease.

12. In my opinion the decision of the learned Subordinate Judge in this case is right and the appeal must be dismissed with costs.

Wort, J.

I agree.