- (1.) THE defendants have been unsuccessful in both the courts below and have preferred this second appeal which is directed against the judgment and decree of the learned District Judge of Pali, dated November 13, 1959.
(2.) THE main facts of the case are not in dispute. One Heerachand owed a sum of Rs. 3711/- to the defendants and he sold the suit house to them for Rs. 7000/-on June 24, 1950 to pay off the debt. In their turn, the defendants executed document Ex. 1, which has been styled as a receipt, in favour of the vendor Heerachand. That document was admittedly drawn up after the execution of the sale deed. Allowing for the difference of Rs. 100/- referred to in the document, it recites that : (1) a sum of Rs. 3289/- was payable by the vendees on account of the price, (ii) that amount of Rs. 3289/- would remain with the vendees as 'amanat', (iii) if the vendor wanted to retain the house, he would pay Rs. 3711/-, along with interest, to the vendees, (iv) if the payment of Rs. 3711/- and interest was not made by the vendor within seven years, it would be taken that the property had been sold and thereafter there would be no right of repurchase and the vendor would be the owner of the balance. Vendor Heerachand did not secure the re-transfer of the house. On the other hand, he assigned his right to recover Rs. 3289/- to the present plaintiffs on February 19, 1957, for the recovery of Rs. 3289/-and Rs. 66/- on account of interest. The defendants admitted the execution of the sale deed, as well as the so called receipt Ex. 1, but they disputed the claim of the plaintiffs on the grounds that the suit was barred by limitation and document Ex. 1 was inadmissible in evidence as it had not been registered. Both these points were covered by the two issues which were framed in the trial court, and the suit was decreed on March 26, 1958, by the learned Civil Judge of Sirohi for Rs. 3289/ -. The defendants preferred their first appeal to the District Judge of Pali and as it has been dismissed they have presented this second appeal. It has been argued on behalf of the defendants-appellants that the deed of assignment dated February 19, 1957, to which reference has been made above, created an interest in immovable property in favour of the present plaintiffs because of the provisions of sec. 55 (4) (b) of the Transfer of Property Act, inasmuch as vendor Heerachand was entitled to a charge upon the suit property in the hands of the vendees to whom its ownership had passed, as they had not paid the whole of the purchase-money. On this assumption, it has been submitted that the deed of assignment required registration and that in the absence of such registration it could not have the effect of creating any title in favour of the plaintiffs. It is conceded, however, that no such plea was taken by the defendants in their written statement, no issue was joined in respect of it and the point was not even raised in the trial court or the court of first appeal. There is therefore no justification for raising the point now. Even otherwise, the contention has no force because a perusal of the deed of assignment shows that Heerachand merely alienated his right to recover the balance of Rs. 3289/-from the vendees, the present defendants and he made it quite clear that that amount was held in deposit by the defendants by way of 'amanat'. A perusal of the entire document shows that it does not at all refer to the seller's charge upon the property on account of the non-payment of a part of the purchase money, or the transfer of that charge. It merely entitles the assignees to recover Rs. 3289/- which were said to be in deposit as 'amanat', and it is therefore futile to argued that the document is inadmissible in evidence for want of registration. It has next been argued that the so-called receipt Ex. 1 purported to create a right to repurchase the suit house, within a period of seven years, in favour of vendor Heerachand, and as the value of that right or interest was more than Rs. 100/- the document would be inadmissible in evidence for want of registration. Further, it has been argued that the document had the effect of limiting the right of the vendees, in the property, for a period of seven years as it provided that the sale would become final only if the vendor did not exercise his right of repurchase within that period and that for this reason also the document required registration. A perusal of the written statement shows, however, that these pleas were not taken by the defendants. They merely pleaded that as document Ex. 1 related to the right in the house of the value of Rs. 7000/-, it was necessary that it should have been registered. As the new contentions relate to questions of fact, they cannot be allowed to be raised in second appeal. But even if issue No. (2), which relates to the question whether document Ex. 1 was inadmissible in evidence for want of registration, is deemed to cover the points which have now been raised on behalf of the appellants, it would be relevant to point out that the issue was given up in the trial court when it was taken up for consideration as a preliminary issue. There is therefore no real justification for allowing these arguments to be raised now. I have, however, considered the arguments on the merits also. The questions whether document Ex. 1 purported to create a right of re-purchase and limited the right of ownership of the vendees for a period of seven years, have to be decided according to the intention of the parties. It has to be remembered that the document was a contemporaneous agreement as it was executed soon after the execution of the sale deed on June 24, 1950. It was not an isolated transaction. The proper course to ascertain the intention of the parties is to give due weight to the fact that a sale deed had been executed in favour of the landlord just on the eve of making agreement Ex. 1, and it is admitted that it was an absolute and unconditional sale deed transferring the suit property to the defendants without any reservation for repurchase. Therefore the two documents taken together evidence a single transaction of an unconditional sale of the property, subject, to the agreement contained in document Ex. 1 that the vendor would have a right of repurchase within a period of seven years, and the argument that the agreement was a separate or an independent transaction has no force. And when document Ex. 1 merely creates a right to obtain another document in case the vendor decided to exercise his option of paying the sum of Rs. 3711/- and repurchasing the property within seven years, it cannot be said to create or limit any right, title or interest in the property in question. The narration in decumbent Ex. 1 that if Rs. 3711/- and interest was not paid by the vendor within seven years it would be taken that the property had been sold, conveys nothing more than an agreement that there would be no right of repurchase after that period. As I have stated, an unconditional sale deed had already been executed in favour of the vendees, which gave them full and complete ownership of the suit property, and as the subsequent document Ex. 1 did not improve or perfect that title of the vendees, the mention of the period of seven years in that document cannot lead to the inference that it had the effect of limiting the right or interest of the vendees during that period so as to require registration under sec. 17 (l) (b) of the Act. I have no doubt that as the document did not itself create, declare, assign, limit or extinguish any right, title or interest in the suit property, but merely created a right to obtain another document which would, when executed create, assign, limit or extinguish any such right, title or interest, it clearly falls within the purview of sec. 17 (2) (v) of the Registration Act so as to exclude it from the purview of sec. 17 (l) (b ). The two courts below were quite right when they held that document Ex. 1 was admissible in evidence even though it had not been registered. It has also been argued that the suit was barred by limitation because if the clause mentioned in document Ex. 1 that if the vendor did not pay Rs. 3711/- and interest within seven years it would be taken that the property had been sold and thereafter there would be no right of repurchase, is held to be redundant was necessary for the vendor, or his assignee to raise the suit for the recovery of money within three years from June 24, 1950, when the document was executed. This argument is also of no substance because, as has been mentioned above, Ex. 1 was undoubtedly an agreement which provided for repurchase of the property within a period of seven years, and if Heera Chand thought it proper to wait for the whole of that period, or if he could not make up his mind one way or the other during the period of seven years whether he should repurchase the property or content himself by obtaining a refund of the balance of Rs. 3289/-, it cannot be said that he or his assignee must have brought the suit within three years from June 24, 1950. There is thus no force in this appeal and it is dismissed with costs. Leave to appeal is prayed for, but is refused. . ;