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TMI Blog1932 (4) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... and they further pleaded that "all conditions and covenants binding on the part of the defendants were duly performed and that the lands were properly levelled". 2. The learned trial Judge has found that the written agreement, dated 4th August, 1927, contained the contract between the parties. Having so found, the learned Judge, rightly in our judgment, held that the agreement was for the transfer of an interest in immoveable property. The terms of the agreement were that in payment of compensation (in point of fact a sum of ₹ 500) the defendants were given liberty to remove sand and earth from the plaintiff's plots of land to depths varying from 2 ft. to 8 ft. and were to level the plots after removal. There was also t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rees, and the purchaser was to take them immediately; therefore, applying the test last mentioned, the contract was not within the 4th section. 3. It was obviously with this authority before him that Collins, C.J., in the Full Bench case of this Court, Seeni Chettiar v. Santhanathan Chettiar (1986) I.L.R 20 M. 58 : M.L.J. 281 (F.B.) stated that it had long been settled that an agreement for the sale of growing timber, not made with a view to immediate severance from the soil and delivery as chattels, was a contract for the sale of an interest in land. Marshall v. Green L.R. (1875) 1 C.P.D. 35 was discussed and criticised by Chitty, J., in Lavery v. Pursell (1888) 39 Ch. D. 508 and the learned Judge points out that the decision turned on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevent the plaintiff from proving the terms of the agreement. The learned trial Judge has held that the equity of part perform ance established by Section 53-A of the Transfer of Property Act enables the plaintiff to enforce his rights under the agreement, notwithstanding that it has not been registered as required by law. It is unnecessary to consider the argument which has been addressed to us on the subject whether the learned Judge put a right construction on the section, because, in our judgment, the section has no application to an agreement to transfer immoveable property which, as in the present Case, was made prior to 1st April, 1930, the date on which Section 53-A is expressed as coming into force. Act XX of 1929, which introduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions must be construed accordingly. And if, as we think, Section 53-A is applicable only to transfers of immoveable property made after 1st April, 1930, it must follow that the operation of the amendment made by Act XXI to Section 49 of the Registration Act should be similarly restricted. 6. Now, if the plaintiff cannot rely on Section 53-A the equity of part performance cannot help him. Although in Mahomed Musa's cases their Lordships of the Judicial Committee laid down that the equitable doctrine of part performance was applicable in India, their Lordships in the later case of Ariff v. Jadunath Majumdar (1931) L.R. 58 I.A. 91 : I.L.R. 58 C. 1235 : 60 M.L.J. 538 (P.C.) held that the equity could not override the provisions of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he covenant. The learned Counsel for the defendants has, however, contended, upon the authority of Sambayya v. Gangayya (1890) I.L.R. 13 M. 308 that the covenant is inseparable from the agreement and must stand or fall with it. But in that case the covenant was by the lessee to purchase the premises at the end of the term; it was clearly an agreement to create an interest in land. On the other hand, it is well settled that an unregistered document is admissible as evidence of a personal covenant or of a collateral transaction which does not require registration. It is to be observed that the covenant in question is not a repairing covenant. It did not require the defendants to restore the land after excavating the sand; but they were requir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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