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PETITIONER: KALAVAKURTI VENKATA SUBBAIAH

       Vs.

RESPONDENT: BALA GURAPPAGARI GURUVI REDDY

DATE OF JUDGMENT:       05/08/1999

BENCH: A.P.Misra, S.R.Baby

JUDGMENT:

RAJENDRA BABU, J.  :

     The  respondent filed a suit for specific  performance seeking  a direction to register the sale deed dated July 2, 1979  [Exhibit A-6] and for injunction or possession of  the immovable  property  referred to therein.  His case is  that the  appellant had duly executed the sale deed in his favour in  respect of the suit premises for a sale consideration of Rs.3,200/-  but  the  appellant  did not  get  the  document registered  thereafter.  The case set up by the appellant is that  he signed sale deed dated July 2, 1979 as a result  of fraud  and  misrepresentation  by   the  respondent   taking advantage of the fact that he was an illiterate person.  The trial  court  dismissed  the suit of the respondent  on  the ground  that the respondent had to avail of the remedy under Section  77  of  the  Registration  Act,  1908  [hereinafter referred  to as the Act] and not bring a suit for specific performance.   The matter was carried in appeal.  The  First Appellate  Court allowed the appeal and decreed the suit  on the basis that the relief insofar as the decree for specific performance  of  the  later half of the  document  could  be granted  and that Section 77 of the Act will not come in the way.  A second appeal was preferred against the judgment and decree  of the First Appellate Court and the High Court held that the view taken by the First Appellate Court was correct and dismissed the second appeal.  Thereafter review petition was  also  preferred on the ground that the High  Court  had proceeded on the view that the judgments of the courts below were  concurrent and the matter involves only pure  findings of fact.  The said review petition was dismissed by the High Court.   Thereafter  the  matter is brought up  before  this Court  under Article 136 of the Constitution and this Court, having granted leave, is now registered it as an appeal.  On the  facts  admitted the execution of the deed could not  be doubted.   However, the Trial Court had taken the view  that it  could not place reliance on the evidence of PWs 2 and 3. The  First Appellate Court critically examined the same  and held that the direct testimony of PWs 2 and 3 were free from blame  and  they admittedly witnessed execution of the  deed and the payment of purchase money recited in the deed by the plaintiff  to the defendant at the time of the execution  of the  document was clearly proved by the reliable and  direct testimony  of  PWs  2  and 3.  The  oral  assertion  of  the defendant  to  sell  the  suit land  to  the  plaintiff  for

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valuable  consideration  of  Rs.16,000/-   was  to  vary  or contradict  the  term of the instrument and, therefore,  was not  permissible in view of Section 92 of the Evidence  Act. The First Appellate Court did not, therefore, agree with the conclusion  of  the Trial Court and came to  the  conclusion that  the  value of the land was received under Exhibit  A-6 and the plaintiff was not disentitled to the registration of the said document.

     In  this  appeal  the question raised is  whether  the reliefs  sought  for  by  the   respondent  to  enforce  the registration   of  the  document   particularly   when   the appellants  contention  was that document [Ex.  A-6]  is  a deed  of sale and, being unregistered, a decree for specific performance based on the same could not be granted.  On this question, there is sharp cleavage of opinion between various High  Courts.   Instead of setting a catalogue of cases,  we will  summarise  the views expressed therein.  A  survey  of these  decisions would show that a plaintiff has a  complete remedy  under  the Act, and not having chosen to follow  it, has  only  himself to blame himself;  that document  has  no efficacy in law as the same is not registered;  that a party to an agreement has no right to seek specific performance of the  agreement  once  the  document  has  been  executed  in pursuance  of  the  agreement,  but   the  document  is  not registered  and  that  the  party to  an  agreement  is  not entitled  to compel the other party who has duly executed  a document  in  pursuance of the agreement to go on  executing fresh  documents,  by  resorting  to  a  suit  for  specific performance so long as no document has been registered.

     Another  line  of  authority is the  decision  of  the Division  Bench of the Madras High Court in Manicka  Gounder v.   Elumalai  Gounder,  1956-2-M.L.J.    536,  observed  as follows :

     It  is  true  that  the   purchaser  can  resort   to proceedings  under  the  Registration Act  and  the  special statutory   remedy  under  s.77  of   that  Act  to   obtain registration  of executed document.  But, if for any  reason it becomes impossible to obtain registration after resort to such  proceedings  or because of other  circumstances  which prevent  any  resort to such proceedings under the Act  then undoubtedly  the  vendee  is entitled to bring  a  suit  for specific performance of the agreement to sell in his favour. This  does not, however, mean that every such suit should be decreed.

     It  is  also  viewed  that   a  court  cannot   direct registration  of  a  document  after expiry  of  the  period mentioned  in the Act as such direction will be contrary  to law.  The respondent referred to the decision of Madras High Court  in  Ramachandra Naidu & Anr.  v.  Ramaiah Naidu,  AIR 1969 Mad.  418.  In that case, a conclusion was drawn to the effect  that  in  enforcement  of the promise  made  by  the defendant  to  sign and execute all deeds and  writings  for better  securing  the estate, the plaintiff is  entitled  to have  a proper deed of conveyance executed by the  defendant at  the plaintiffs costs and registered and that there  are two  parts in such a document, one is merely an agreement to sell  and,  therefore, there is no objection to a  suit  for specific performance being based on it and second, that even if it should be deemed to be a sale deed which it is not, it would  be  admissible in evidence and that the earlier  part could  be  separated  from  the later  part,  in  which  the

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defendants  have  agreed  to  execute   a  formal  deed   of conveyance  and  the agreement to execute a formal  deed  of conveyance  could  be  specifically   enforced.   In  Veeran Ambalam v.  Vellaiammal, AIR 1960 Mad.  244, it was held the lesser  remedy  provided under Section 77 of the Act  cannot take  away the larger remedy provided for under the Specific Relief  Act  and that the Act does not touch or  affect  the equitable jurisdiction possessed by the civil courts to pass a decree, for specific performance where circumstances exist entitling  the  plaintiff to pass a decree, and that if  the remedy under Section 77 of the Act is not available and even if  available, is not effective and it is futile to initiate proceedings,  under the Act, the vendee may have his  remedy for  specific performance.  This view was reiterated by  the Madras High Court in Ellammal v.  Rangaswamy Koundar & Ors., 95  L.W.  546.  It may be noticed that in Mathai v.  Joseph, AIR  1970  Ker.  261, the Kerala High Court agreed with  the view expressed in Veerappa Naidu v.  Venkaiah, AIR 1961 A.P. 534,  to  hold that a person seeking relief other than  bare registration can approach the court by filing a suit and his right  to  file  a suit in civil court is  not  fettered  by Section 77 of the Act.  The view taken is that Section 77 of the  Act is only a facility available to the aggrieved party and  not  a  fetter  on the courts power  and  whether  the plaintiff  has  already  set  in motion  the  machinery  for enforcing  registration  or  not is  immaterial  and  cannot inhibit  a  suit  de hors Section 77 of the  Act.   Now  the pendulum  appears to have swung from one extreme to  another towards the view that a suit for specific performance by way of    registration    of   a   document   is    maintainable notwithstanding   the  alternative   remedy  provided  under Section  77 of the Act.  We may advert to Section 77 of  the Act.   Several  steps have to be taken before a  suit  under Section  77  of  the Act could be filed and they are  :   a) document  has  to be presented for registration  within  the time prescribed by Sections 23-26 of the Act;

     b) document has to be presented by a person authorised to do so under Section 32 of the Act;

     c)  the  Sub-Registrar  has refused  to  register  the document presented to him for registration;

     d) appeal or application against such refusal has been made  under  Sections 72 or 73 of the Act within 30 days  of the order of the Sub-Registrar;

     e)  the  Sub-Registrar has refused to  register  under Section 76 of the Act;  and

     f)  suit  is filed within 30 days of the order of  the Sub-Registrar.

     The  difference  of opinion amongst the  various  High Courts  on  this aspect of the matter is that Section 77  of the  Act  is  a complete code in itself  providing  for  the enforcement  of  a  right to get a  document  registered  by filing  a civil suit which but for the special provision  of that   Section   could  not    be   maintainable.    Several difficulties  have been considered in these decisions,  such as,  when  the  time  has  expired since  the  date  of  the execution of the document whether there could be a decree to direct  the Sub-Registrar to register the document.  On  the other  hand, it has also been noticed that an agreement  for transfer  of property implies a contract not only to execute

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the  deed  of  transfer  but   also  to  appear  before  the registering   officer  and  to   admit   execution   thereby facilitating the registration of the document wherever it is compulsory.   The provisions of the Specific Relief Act  and the  Registration Act may to a certain extent cover the same field  but so that one will not supersede the other.   Where the stage indicated in Section 77 of the Act has reached and no  other relief except a direction for registration of  the document  is really asked for, Section 77 of the Act may  be an  exclusive  remedy.   However, in other cases it  has  no application,  inasmuch as a suit for specific performance is of wider amplitude and is primarily one for enforcement of a contract  and  other consequential or further relief.  If  a party is seeking not merely the registration of a sale deed, but  also  recovery  of  possession  and  mesne  profits  or damages,  a suit under Section 77 of the Act is not adequate remedy.  The analysis of the provisions of Section 77 of the Act made by us above would indicate that it would apply only if  a matter is pertaining to registration of a document and not  for  a comprehensive suit as in the present case  where the relief prayed for is directing the defendant to register the  sale deed dated July 2, 1979 in favour of the plaintiff in  respect  of  the plaint schedule property and if  he  so fails  to get a registration in favour of the plaintiff  for permanent  injunction or in the alternative for delivery  of possession  of the plaint schedule mentioned property.   The document  has  not been presented by the respondent  to  the Sub-Registrar at all for registration although the sale deed is  stated  to  have been executed by the  appellant  as  he refuses  to  cooperate with him in that regard.   Therefore, various stages contemplated under Section 77 of the Act have not  arisen in the present case at all.  We do not think, in such  a  case when the vendor declines to appear before  the Sub-  Registrar, the situation contemplated under Section 77 of  the  Act would arise.  It is only on presentation  of  a document  the  other circumstances would arise.   The  First Appellate  Court rightly took the view that under Section 49 of  the  Act the sale deed could be received in evidence  to prove  the  agreement between the parties though it may  not itself  constitute a contract to transfer the property.  The said  Court noticed that there was an agreement to  transfer the  immovable property in the suit by the defendant to  the plaintiff  on  the terms stated in the sale deed.   Such  an agreement  to  sell the immovable property in suit could  be specifically  enforced under the provisions of the  Specific Relief Act.  Therefore, the First Appellate Court was of the opinion  that  the plaintiff was alternatively  entitled  to base  his claim of specific performance on the pleaded  oral agreement to sell and, inasmuch as there are further reliefs sought  for, it was a comprehensive suit including a  relief for specific performance of a contract contained in the sale deed  executed, but not registered and, therefore, held that such  relief for specific performance could be granted.   In the  circumstances,  we  are of the opinion that  the  First Appellate  Court  and  the  High  Court  were  justified  in upholding the claim of the plaintiff.  Thus we find no merit in the appeal and the same, therefore, stands dismissed with costs throughout.