K VEERAN AMBALAM Vs. VELLAIAMMAL

JUDGEMENT

(1.) This second appeal Which raises interesting point of law under S. 77, Registration Act is preferred against the decree and judgment of the learned subordinate Judge of Madurai in A. S. No. 39 of 1956, confirming the decree and judgment of the learned District Munsif of Madurai Taluk in O. S. No. 86 of 1955.

(2.) The facts are: The plaint properties belong to defendants 1 and 2. They usufructuarily mortgaged the said properties along with other properties to the plaintiff under a registered othi deed dated 25-5-1951. The plaintiff has been in possession of the properties from that date. The properties were leased back to defendants 1 and 2. They defaulted in the payment of rent. The plaintiff thereupon instituted S. C. S. No. 113 of 1953 on the file of the District Munsif's court, Melur, for recovery of the said rent and obtained a decree. The defendants 1 and 2 thereupon requested the plaintiff to take a sale of the properties for Rs. 3075/- in discharge of the othi amount and the decree amount, The plaintiff agreed to it and a contract of sale was entered into on 156-1954. Defendants 1 and 2 executed a sale deed on 17-6-1954. The plaintiff paid a sum of Rs. 300 in cash to defendants 1 & 2 as recited in the sale deed. The sale deed was attested by attesting witnesses. On 22-6-1954 the document was presented to the Sub-Registrar of Tamaraipatti by defendants 1 and 2 for registration. The Sub-Registrar returned the document as there were scorings and interlineations and directed that a fresh sale should be executed upon fresh stamp papers. The sale deed was presented by defendants 1 and 2 to the Joint District Registrar on 22-6-1954. Then at that stage the village Munsif of Meenakshipuram and his brother viz., the nephews of the first defendant intervened and dissuaded defendants 1 and 2 from registering the document. they decamped. The plaintiff could not get at them to register the document. In fact subsequent to the institution of the suit defendants 1 and 2 have secured old stamp papers purporting to bear the date of 4-5-1954 and have executed a sale deed in favour of the third defendant. It is made to appear as if this sale was anterior to the sale in favour of the plaintiff. These facts have been established by the plaintiff and both the Courts below have found that the third defendant is not a bona fide transferee for value without notice of the sale in favour of the plaintiff. It is in these circumstances that the suit, out of which this second appeal arises, was filed by the plaintiff for specific performance. On coming to Court the plaintiff has been confronted with the contention that his remedy lay under section 77 of the Indian Registration Act and not by means of a suit for specific performance.

(3.) Both the courts below relied upon three decisions of this court viz., Venkataswami v. Kristayya, ILR 16 Mad 341 Sanga Thevar v. Thanukodi Ammal, and Venkatasubbayya v. Venkatarathnamma, and held that this suit for specific performance will not lie and dismissed the plaintiff's suit. Hence this second appeal by the defeated plaintiff.