JUDGMENT
1. The plaintiff is the owner of a fourth share in the melwaram right of Kavoor village. The 1st defendant having obtained a decree in O.S. No. 24 of 1898 in the Subordinate Court of Madura, East, for a three-twentieth share of the melwaram right, the plaintiff’s guardian entered into an arrangement with the 1st defendant whereby the 1st dependent was to have a mortgage of the plaintiffs right to the fourth share of the rents due to him from Fasli 1310 as security for the 1st defendant’s share of the rents for Faslis 1307 and 1308 unlawfully received by the plaintiff’s father. The transaction was in substance a mortgage of future rents due for the plaintiff’s share to the 1st defendant. Both the Courts below have held that the document being unregistered was inadmissible in evidence. The Munsif gave a decree to the plaintiff for the sum of Rs. 496-8-6, holding that the 1st defendant was a trespasser. The District Judge, on appeal, has dismissed the plaintiff’s suit. He has come to the conclusion 1 hat the act of the de facto guardian, the 4th defendant, in placing the 1st defendant in possession of the plaintiff’s fourth share was bona fide and justifiable, and although Exhibit I was inadmissible, the 1st defendant could not be treated as trespasser and the plaintiff was, therefore, not entitled to any damages. I support of this second appeal the learned Advocate-General argots that the 1st defendant’s possession and his right to appropriate the plaintiff’s there of the rents towards his claim for Faslis 1307 and 1308 only arose under the mortgage Exhibit I, and on the footing that that instrument was invalid the defendants’ possession could only be treated as that of a trespasser and that the plaintiff was, therefore, entitled to recover. We think this contention must be upheld. The learned vakil for the respondent did not attempt to support the judgment of the District Judge on the ground stated by him, but he argues that Exhibit I was receivable in evidence because it did not require registration. We are unable to agree with this view. The document was a mortgage of the plaintiff’s right to future rents. It was over one hundred rupees in value. By Section 3 of the Registration Act immoveable property is defined as including “any other benefit” to arise out of land. The question is whether future rents payable in respect of land are benefits to arise out of land, It has never been doubted that a lease by a Zemindar or a transfer by him of the Zemindari interests, which is generally the, right to the melwaram, is a transfer of immoveable property. If the assignment is, however, of an arrear of rent, the benefit has already arisen out of the land and is therefore outside the definition of “immoveable property.” It has been held that a lease of a right to market dues upon a certain land requires registration as an instrument dealing with a benefit to arise out of land–see Sikandar v. Bahadur (1905) I.L.R. 27 A 462–though the profits which have already accrued from a lambardar were held not to fall within the definition of immoveable property–see Damodhar Das v. Gidari Lal (1905) I.L.R. 27 A. 564. The decision in Venkaji Babaji Naik v. Shidramapa Balape Desai (1895) I.L.R. 19 B. 663 seems almost exactly to cover the present case. There a right to assessment due upon certain land was assigned by an unregistered instrument. It was held that the instrument required registration as the assesment had not accrued due at the date of the assignment, but was only to become due in the future. It has no doubt been decided that a sale of indigo crop of the coming year operates merely as an agreement to convey that the conveyance takes effect only after the crops have come into being–see Misri Lal v. Moshar Hassain (1896) I.L.R. 13 C. 262 and Bansidar v. Sant Lal (1887) I.L.R. 10 A. 133. No question arose in these cases as to registration, though it may be pointed out that growing crops are within the definition of moveable property. The principle laid down in those cases is in accordance with Collyer v. Isaacs (1881) 4 R. 19 Ch. D. 362 and Holroyd v. Marshall. (1862) 10 H.L.C. 191 Sir George Jessel observes in the first of these cases: ” A man cannot in equity, any more than at law, assign what has no existence. A man can contract to assign property which is to come into existence in future, and, when it has come into existence, equity treating as done that which ought to be done fastens upon that property, the contract to assign thus becomes a complete assignment.” We do not know if the rule here laid down as to after-acquired chattels has anything to do with the assignment of future rents which a 1 ease of the melwaram generally is. But, however this may be, the question narrows itself to this: ” Whether, within the meaning of the Registration Act, future rent is a benefit to arise out of land ? If that should be so, we have only to see whether the instrument purports to create or assign any right, title or interest in such property. It would be compulsorily registrable under Section 17 if the value of the interest which the document purports to create is one hundred rupees or upwards. We are, therefore, bound to hold that Exhibit I cannot be received in evidence and that there is no answer to the plaintiff’s claim for damages.
2. In estimating the damages the District Judge has held that the defendants are entitled to reduction as regards some damage caused by fire. The Advocate-General has made no exception to this. The plaintiff’s share, therefore, of the loss must be deducted from the damages a wardable. The plaintiff is entitled to a decree for Rs. 496-8-5 minus Rs. 124-8-6.
3. The decree of the District Judge will be reversed and the plaintiff will have a decree for Rs. 372 against the 1st defendant personally with interest at 6 per cent per annum from this date and against defendants Nos. 2 and 3 to the extent of their share in the joint family properties. Each party will bear his own costs throughout.
