Das, J.The question for our decision in this case is whether the plaintiff is entitled to a decree for specific performance in the peculiar circumstances of the case. It is not disputed that Defendant 1 received Rs. 300 from the plaintiff and executed a kabala in respect of the disputed property in favour of the plaintiff on the 14th December 1916. The document, however was not registered, and it appears that Defendant 1 subsequently sold the disputed property to the defendants third party. The specific relief claimed in the plaint is that "the Court may direct defendants first party to get the same," namely the kabala, "registered within the time fixed by the Court, that in the event of their failure to have registration done even on the direction of this Court the Court may get the said kabala registered." The jurisdiction of the civil Court to direct a document to be registered is a qualified one and only arises if certain essential conditions are satisfied. These conditions have not been satisfied in this case, and the plaintiff was clearly not entitled to the specific relief claimed by him.

2. But this conclusion in my opinion does not decide the case. The Registration Act does not touch or affect the equitable jurisdiction possessed by the civil Courts to pass a decree for specific performance where circumstances exist entitling the plaintiff to such a decree. This was the view taken by the learned Munsif. The learned Subordinate Judge has taken a different view and has relied upon the decision in Edun v. Mahomed Siddik [1883] 9 Cal 150 in support of his view That case decided that, independently of Section 77 of the Registration Act, a suit to compel registration of a document will not lie--a decision with which we entirely agree. The question raised in this case is whether the plaintiff is entitled to a decree for specific performance of the agreement to sell the disputed property to him; and on this question the decision of Mukherji, J., in Surendra Nath Nag Chowdhury v. Gopal Chunder Ghosh [1910] 12 C.L.J. 464 entirely supports the view of the learned Munsif. As was pointed out in that case, it is not a sufficient performance of the contract for the defendant merely to execute a conveyance: for until the kabala is registered, it is inoperative in law. The execution of the kabala by the defendant not having converted the executory contract into an executed contract, the plaintiff is clearly entitled to a decree directing the defendant to carry it into execution. It was contended before us that the agreement between the parties having been reduced into writing, the only evidence of that agreement would be that furnished by the document, and that the document is inadmissible in evidence as it was not registered in accordance with law. I know of no authority which decides that an agreement for sale has to be registered under the Registration Act. The true view is that although a kabala which has not been registered is inoperative as a kabala, yet it is admissible in evidence in a suit to enforce specific performance of the contract which must be deemed to have preceded the execution of the kabala.

3. It was then contended that the plaintiff has not asked for a decree for specific performance and that this Court ought not to convert a suit for registration into a suit for specific performance. The argument, in my opinion, is a technical one, and ought not to weigh with us. All the material facts entitling the plaintiff to a decree for specific performance are pleaded. These facts were found in favour of the plaintiff by the learned Munsif and were not challenged before the Subordinate Judge. That being so, the plaintiff was clearly entitled to succeed before the learned Subordinate Judge.

4. The decree passed by the learned Munsif, is however not strictly in accordance with law. The learned Munsif directs the Sub-Registrar of Banka to register the kabala. As I have already pointed out, the civil Court has no jurisdiction to pass a decree of this nature independently of Section 77 of the Registration Act. The plaintiff is, however, entitled to a decree for specific performance by the execution and registration of a fresh document within three months from the date hereof.

5. We allow the appeal, set aside the judgment and decree passed by the Court below and vary the decree passed by the Court of first instance in the manner indicated above. If the defendant should fail to execute and register the document within the time allowed, the Court of first instance will do so on behalf of the defendant.

6. The plaintiff is entitled to his costs throughout.

Ross, J.

7. I agree.