MANICKA GOUNDAN Vs. ELUMALAI GOUNDAN

JUDGEMENT

(1.) THIS appeal raises an interesting question of law on which there is no direct authority. The facts necessary for discussing this Question are briefly these. Defendants 2 and 3 executed a sale deed, Ex. P. 1, on 2-8-1942, conveying the suit properties to plaintiff 1. Defendant 2 by a sale deed dated 1-7-1942 purported to convey the same properties to defendant l. It has now been found by the Courts below that this sale deed was antedated and that it was actually executed subsequent to the execution of the sale deed in favour of plaintiff 1. After the execution of the sale deed in favour of plaintiff 1, evidently in view of the sale deed executed by defendant 2 in favour of defendant 1, defendant 3 added the following at the end of the sale deed: "should any dispute arise in aspect of this it shall not concern us. " Though the plural is used, only defendant 3 made this endorsement. When the document was presented for registration defendant 3 accepted execution; but defendant 2 refused to join in the registration on the ground that there had been a material alteration in the sale deed, referring to the endorsement made by defendant 3 above mentioned. An application was made to the District registrar by plaintiff 1 for compulsory registration. But the application was rejected. Thereupon he filed a suit in the Court of the District Munsif, Ami, O. S. No. 167 of 1943, for setting aside the order of the Registrar refusing registration. The suit was dismissed. An appeal filed against the decree in the suit was also dismissed. On 21-7-1944, during the pendency of the appeal, plaintiff 1 filed a suit for a declaration of his title to the suit property and for an injunction and in the alternative, for possession of the entire property or for partition and possession of a half share. Subsequently, after certain proceedings which it is not necessary to mention, the plaint was amended and an alternative relief for specific performance was added and it was prayed that defendant 2 may be directed to execute a fresh sale deed in respect of half share. Meanwhile plaintiff 1 died and plaintiffs 2 to 5 were brought on record "as his legal representatives. The learned District Munsif held that because the plaintiffs had not performed their part of the contract and had not expressed their willingness, and readiness to pay the share of the consideration to defendant 2, the plaintiffs were not entitled to 'obtain specific performance. He therefore granted a decree declaring the plaintiffs' right to a half share in the suit properties belonging to defendant 3 and directed a partition. On appeal by the plaintiffs, the learned District Judge held that the plaintiffs were entitled to specific performance in respect of the share of defendant 2 and directed defendants 1 and 2 to execute a deed of conveyance in favour of the plaintiffs of the moity in the suit properties which belong to defendant 2 and to put the plaintiffs in possession of the same- Defendant 1 filed a second appeal against the said decision of the District Judge (S. A. No. 271 of 1949) which was disposed of by subba Rao J. Two questions of law only were raised before the learned Judge, namely, (1) that the suit for specific performance was not maintainable as a sale deed had already been executed both by defendants 2 and 3 and in view of Section 77, Registration act, and (2) that specific performance could not be granted to the plaintiffs as they had not expressed their readiness and willingness to perform their part of the contract. The learned Judge decided both the questions against defendant l and held that the suit for specific performance was maintainable as against defendant 2 and dismissed the second appeal but granted leave to file an appeal under the Letters patent.

(2.) MR. A. Sundaram Aiyar, learned counsel for defendant 1 appellant confined his arguments before us to the first question only. His contention in short was that once a sale deed had been executed by defendants 2 and 3, a suit for specific performance was not maintainable. The only remedy which plaintiff l had was that provided by the Registration Act. In support of this contention he relied on certain rulings of this Court. The first of them is the decision in Venkata-sami v. Kristayya, ILR 16 Mad 341 (A ). In that case, in pursuance of an agreement between the plaintiff and the defendant for the transfer of a mortgage the defendant duly executed a deed but it was not registered. The plaintiff brought a suit praying for a decree directing execution and registration of a fresh deed to effectuate the original agreement. It was held by Muttusami Aiyar and Handley JJ, that the suit was not maintainable. The learned Judges were of the opinion that independently of the provisions of section 77, Registration Act no suit to compel registration of a document would fie. They found that the plaintiff who had possession of the document could nave presented it for registration within the time allowed and if the defendant had appeared and admitted the execution, the document would have been registered but if he had appeared and denied execution and registration had been refused, the plaintiff would have been entitled to an enquiry, before the Registrar under sections 73 to 76. If the defendant did not appear, the plaintiff might have proved execution of the document, and on such proof would have been entitled to registration. If the registering officer refused to register the document, an appeal would have lain to the Registrar under Section 72, and if the decision of the Registrar was also adverse to the plaintiff, he would have a remedy by suit under Section 77 of the act. They observed: "plaintiff had therefore a complete remedy under the Act, and; not having chosen to follow it, has only himself to blame that the efficacy of the document has not been completed by registration. . . . The agreement to transfer the mortgage was so far carried out that the deed of transfer was executed and no suit will lie to compel defendant to do that which he has already done. The only act wanting on his part to complete the contract was to register the deed of transfer, and this act, as we have shown, he could only be compelled to do by the proper proceedings under the Registration Act, followed by suit under Section 77. It plaintiff failed to obtain his rights oy such proceedings.

(3.) THIS decision was followed in Palani Goun-dan v. Paramasiva Goundan, 6 Mad LJ 263 (B ). It was there held that where the Registrar refused under Section 34, registration Act to register a Kale deed on the ground that it had not been presented for registration within the four months allowed by law, the proper course for the party presenting the deed was to bring a suit to compel its registration on account of the refusal of the Registrar to register it, and that a suit for execution by the vendor of a fresh registered document did not lie. The decision on which the appellant's counsel most relied on is that in satyanarayana v. Chinna Venkatarao, ILR 49 Mad 302 : (A. R 1926 Mad 530) (C ). What was actually decided in that case was that on denial of execution by the vendor and refusal by the Registrar to register the sale deed presented by the purchaser for registration, the sole remedy of the purchaser was to file a suit as provided by Section 77 of the Registration Act and not a suit for specific performance of the contract by the execution of a new sale deed and delivery of possession. In that case one of the contracting parties to an agreement to sell objected to the registration of the document and the registration authorities after an enquiry refused to order registration as against, her. The plaintiffs brought a suit for specific performance without filing a suit under Section 77, Registration Act within thirty days of the refusal by the Registrar. Defendant 3 pleaded that she did not execute the sale deed. It was in these circumstances that it was held that the suit was not maintainable. The learned Chief Justice, Coutts Trotter C. J. referring to section 77, Registration Act said: