JHAMAN MAHTON Vs. AMRIT MAHTON

JUDGEMENT

(1.) This second appeal has been referred to a Division Bench by a learned. Single Judge of this Court in view of the apparent conflict between Uma Jah V/s. Chetu Mandar A.I.R. 1926 Pat. 89 and Satyanarayana V/s. Chinna Venkatarao A.I.R. 1926 Mad. 530. The point of law upon which there is a conflict will appear from the discussion which follows. It appears that on 4 August 1939 one Budhan Mahto (respondent 3) executed a sale-deed in favour of the plaintiffs in respect of 2.11 acres of land which he purported to sell by the document for a sum of Rs. 700. As Budhan Mahto failed to register the deed, the plaintiffs applied for compulsory registration, but Budhan did not appear before the Registrar and the document was not registered. There is nothing before us to show that the Registrar refused to register the document so as to enable the plaintiffs to have recourse to a suit as provided by Section 77, Registration Act, but the appeal has been argued on the assumption that the plaintiffs could have brought a suit under Section 77 and I shall proceed on that basis. In fact the plaintiffs did not bring a suit under Section 77 but they brought the present suit on 27 February 1940 after Budhan had executed and registered another deed of sale in favour of the appellant in respect of 1.66 acres for a sum of Rs. 500 out of the land which was the subject of the previous sale-deed in favour of the plaintiffs. In this suit the plaintiffs prayed for (1) a decree directing Budhan Mahto specifically to perform his part of the contract including registration of the sale-deed and to do all necessary acts to put the plaintiffs in full possession of the property which was the subject of the sale-deed of 4 August 1939; (2) an order directing the sale-deed to be registered; and (3) a decree for possession of the lands in question.

(2.) The suit has been decreed by both the Courts below and the lower appellate Court while decreeing the suit has directed that if Budhan Mahton should fail to execute the document of sale within the time allowed, the Munsif must do so on his behalf. This appeal has now been preferred by defendant 3 in whose favour the sale-deed was executed by Budhan on 14 September 1939. In arguing this appeal Mr. Lal Narain Sinha has chiefly relied upon Satyanarayana V/s. Chinna Venkatarao A.I.R. 1926 Mad. 530 in which it has been held that if on denial of execution by the vendor, the Registrar refuses to register a sale-deed presented by the purchaser for registration, the sole remedy of the purchaser is to file a suit as provided by Section 77, Registration Act, for registration of the deed within 30 days of the refusal and a suit for specific performance of the contract, such as the execution of a new sale-deed and delivery of lands does not lie. Coutts-Trotter C.J. who delivered the judgment in that case has based it upon Section 77, Registration Act, which provides: Where the Registrar refuses to order the document to be registered, under Section 72 or Section 76, any person claiming under such document, or his representative, assign or agent, may within thirty days after the making of the order of refusal, institute in the civil Court,...a suit for a decree directing the document to be registered...if it be duly presented for registration within thirty days after the passing of such decree.

(3.) One of the questions which appears to have been argued in the above mentioned case was that Section 77 was not the only remedy open to the aggrieved party when a Registrar refused to register the document, but there was also an alternative remedy open to him in the shape of a suit for specific performance of the contract of sale. Coutts-Trotter C.J. however, negatived this argument and relied upon the judgment of a Bench of the Madras High Court in Venkataswami V/s. Kristayya (89) 16 Mad. 341 where the learned Judges say this: If defendant had appeared and admitted execution, the document would have been registered. If he had appeared and denied execution, registration would have been refused and plaintiff would have been entitled to an enquiry before the Registrar under Secs.73 to 76. If defendants did not appear, plaintiff might have proved execution of the document, and on such proof would have been entitled to registration. If the registering officer was not satisfied with the evidence of execution and refused to register, an appeal would have lain to the Registrar under Section 72. If the decision under Section 72 or Section 76 had been adverse to plaintiff, he would have a remedy by suit under Section 77 of the Act. 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. He then proceeded to add, the remedy of specific performance though a statutory remedy was simply a crystallisation into statutory form of an equitable remedy to which laches was as it is to all equitable claims, an answer. How it can be said that a man who is given an express statutory remedy by an Act of Legislature under Section 77 of the Registration Act, and has failed to take advantage of it, has not been guilty of laches and is entirely free from blame, passes my comprehension. It appears to me that a man who has failed to adopt the remedy expressly provided by the statute cannot come to this Court and ask for an exercise in his favour of a discretionary and equitable remedy.