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"With reference to the latter submission I am of of opinion that it does not strictly arise for consideration. The document with which I am concerned is not an unregistered document affecting immoveable property but an unregistered document acknowledging the payment or receipt of consideration on account of the creation of a right, title or interest to or in immoveable property. If the question arose with reference to "an unregistered document affecting immoveable property" I should find myself in some difficulty to decide it; for although it seems to me that the submission of the learned counsel for the respondents might in such a case have to be held correct on a reading of the judgment of the Full Bench in Rajah of Venkatagiri v. Narayana Reddi, 17 Mad. 456 : (4 M. L. J. 198 F. B.) as it stands, there would then be the difficulty created by the explanation given of that judgment by the later Full Bench ruling in Narayanan Chetti v. Muthiah Servai, 35 Mad. 63 : (8 I. C. 520 F. B.) wherein it is said that the earlier Full Bench must be understood to have only ruled that a Kabuliat signed by the lessee but inadmissible to prove the lease for want of registration was admissible to prove the Karar or the agreement to lease which preceded it, and wherein it is further pointed out that there is no distinction on principle between a suit for specific performance and a suit for damages. The difficulty would stand further accentuated by the circumstance that a later decision of a Division Bench consisting of Sir John Wallis C. J. and Oldfiled J. reported in Streeramalu Naidu v. Ramaswami, Mudaliar, 33 M. L. J. 596 : (A. I. R. (5) 1918 Mad. 393) has accepted the law as laid down by Narayana Chetti v. Muthiah Servai, 35 Mad. 63 : (8 I. C. 520 F. B.) giving the earlier Full Bench ruling only a restricted operation; and sitting as single Judge if the question arose for determination, I should deem it proper to hold myself bound in this state of authority to follow the ruling in Streeramalu Naidu v. Ramaswami Mudaliar, 33 M. L. J. 596 : (A. I. R. (5) 1918 Mad 393) which has stood the field for the last about three decades and more. As against that difficulty, it has no doubt been pressed upon me by the learned counsel for the respondents that the view expressed by the Privy Council in M. E. Moolla Sons Ltd. v. Burjorjee, 10 Rang. 242 at p. 255 : (A. I. R (19) 1932 P. C. 118) serves to rehabilitate in its wider operation, Rajah of Venkatagiri v. Narayan Reddi, 17 Mad. 456 : (4 M. L. J. 198 F. B.) which although not cited in the argument before the Privy Council or referred to in its judgment proceeds on the same line of reasoning as is employed in Ultafatunnissa v. Hussain Khan, 9 Cal. 520 : (12 C. L. R. 209 F. B.) one of the several cases cited before the Privy Council. It has also been pressed upon me that even an obiter dictum of the Privy Council is bound to be followed by Courts in India, and that in fact in the case in M. E. Moolla Sons Ltd. v. Burjorjee. IC Rang. 242 : (A. I. R. (19) 1932 P. C. 118) the expression of view by their Lordships became necessary as part of their reasoning founded upon the consideration prima facie entering into the decision of the question whether the point of the inadmissibility of the document therein in question for want of registration was to be allowed to be raised before their Lordships for the first time. As I have said, it is not necessary for me in this case to arrive at a definite decision upon the submission made to me by the learned counsel for the respondents, because the document with which this case is concerned is not an unregistered document affecting immoveable property but an unregistered document acknowledging receipt or payment of consideration on account of the creation of right, title or interest to or an immoveable property."

11. Clause (c) of Section 49 prohibits the reception of an unregistered document in evidence of any transaction affecting immovable property comprised in it. For a proper appreciation of the scope of this prohibition, I think the nature of the proceeding in which, it is sought to be offered as evidence is very material. A sale or a lease is certainly a transaction affecting immovable property because it does concern the right, title or interest to or in immovable property. Bat I cannot imagine an unregistered sale deed or lease deed being excluded from evidence in a criminal case when it is sought to be used as evidence that the executant was present at a particular place at a particular time or as evidence of handwriting or even as evidence of mens rea. This is because Clause (c) is only an application of the rule of substantive law contained in Clause (a) to proceedings in Court. After declaring that the unregistered document shall not have any effect on immovable property, the section goes on further to enact that such a document shall not be received to bring about such an effect. If an unregistered sale-deed cannot transfer the ownership of the property comprised in it, it shall not also be used in evidence to bring about that result. A party cannot obtain such relief on the basis of such a document and for that purpose it cannot be admitted in evidence. The document shall not be received as a document affecting land, i.e., a document which has any effect on land. As early as Ulfatunnissa Elahijan Bibi v. Hussain Khan, 9 Cal. 520 : (12 C.L.R. 209 F.B.) the words "shall be received as evidence of any transaction affecting land" were construed as meaning "shall be received as evidence of any transaction, so far as it affects land." This, I think, is a reasonable construction and the true construction. I wish only to point out that the decision in Ulfatunnissa v. Hussain Khan, 9 Cal. 520 : (12 C. L. R. 209 F.B.) was given at a time when there was no proviso to Section 49 like the proviso inserted by Act XXI [21] of 1929. The learned Judges also expressly say that the view they took of the section rendered it unnecessary to consider the question whether a document embodied only a single cransaction or may properly be said to contain two.

Though I see the force of the remarks of Panchapagesa Sastri J. about the observations of Lord Tomlin in M. E. Moolla Sons, Ltd. v. Burjorjee, 10 Rang. 242 : (A.I.R. (19) 1932 P. C. 118), that they cannot be deemed to be a final pronouncement of the Judicial Committee on the point, yet, I do not think it right to dismiss altogether those observations. They appear to me to throw some light on the subject, particularly in the manner of approach to the construction of the section. The unregistered document will be excluded from evidence only when it is sought to be used "as the foundation of a judgment affecting immovable property comprised in such document." (I think the word "judgment" there is used in the sense of adjudication or decision.) Further, if the proceedings do not in any respect affect any immovable property, that is to say, if the proceedings do not result in a decision which has any effect on immovable property, then, the section does not apply. If the only claim in the proceedings is a personal one for damages for breach of contract, then, there can be no possibility of immovable property being affected by the reception of the unregistered document which may be only used in support of the claim for damages.

49. Even apart from the observation of the Privy Council above referred to it was contended that the Full Bench case in Rajah of Venkatagiri v. Narayana Reddi, 17 Mad. 456: (4 M. L. J. 198 F.B.) had decided that an unregistered document can be received in evidence in a suit for damages for breach of contract. The precise scope of the decision in the above case was considered in the later Full Bench decision in Narayana Chetti v. Muthiah Servai, 35 Mad. 63 : (8 I. C. 520 F.B.). It was explained there that the earlier Full Bench case related only to proof of an oral agreement and not to the reception of an unregistered document containing a written agreement to lease. An examination of the facts of the Full Bench case in Rajah of Venkatagiri v. Narayana Reddi, 17 Mad. 456 : (4 M. L. J. 198 F.B.) bears out this distinction as correct. The order of reference to the Full Bench related to admissibility of five documents for ascertaining the nature and terms of the contract and for the purpose of assessing the damages for breach of the alleged contract. Before the Full Bench it was agreed that only one of these five documents raised any question of registration. That was a kabuliat executed by the respondent in favour of the appellant. That by itself was not relied on as the agreement to lease. It was only an anterior oral agreement which was sought to be established as having existed for the breach of which the suit for damages was laid. This is made clear in several passages in the opinion of the Full Bench as well as in the judgment of the Division Bench after the receipt of the opinion of the Full Bench. The Full Bench opinion points out that the plaint set out the agreement for a lease of the village which was to run from Fasli 1299 and to last for five years. The cause of action alleged was the failure on the part of the defendant to act up to the karar, that is, the agreement to lease and the improper resumption of the village which had been put into possession of the plaintiff. It may also be pointed out that the contract to give a lease was not in writing. No doubt the offer was in writing, but the communication of the acceptance of the offer to the proposed tenant was not in writing. On examination of the printed paper, I find that Exs. IV and J in that case which showed the acceptance of the offer were only communications addressed by the Diwan of the Zamindar to his own subordinate, the Tahsildar, and were not communications to the tenant. That is why the later Full Bench pointed out that the agreement to lease set up in the earlier case was only an oral agreement. When the facts are understood it is clear that the decision in Rajah of Venkatagiri v. Narayana Reddi, 17 Mad. 456 : (4 M. L. J. 198 F.B.), has really no application to the present case.