Fazl Ali, C.J:— 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 Jha v. Chetu Mandar and K. Satyanarayana v. Chinna Venkatarao. The point of law upon which there is a conflict will appear from the discussion which follows.
It appears that on the 4th August, 1939, one Budhan Mahto (respondent no. 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 of the 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 the 27th 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 the 4th August, 1939; (2) an order directing the sale deed to be registered and (3) a decree for possession of the lands in question.
The suit has been decreed by both the courts below and the lower appellate court while decreeing the suit has directed that if Budhan Mahto 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 no. 3 in whose favour the sale deed was executed by Budhan on the 14th September, 1939.
In arguing this appeal Mr. Lal Narain Sinha has chiefly-relied upon K. Satyanarayana v. Chinna V enkatarao 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 of the 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 sold does not lie. Coutts Trotter, C.J who delivered the judgment in that case has based it upon section 77 of the Registration Act which provides—
“Where the Registrar refused 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.”
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 Venkatasami v. Kristayya where the learned Judges say this:
“If the 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 the plaintiff would have been entitled to an enquiry before the Registrar under sections 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 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 leaving 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.”
The view expressed in this decision is opposed to the view which was taken by the Allahabad High Court in Amer Chand v. Nathu; by the Calcutta High Court in Surendra Nath Nag Chowdhury v. Gopal Chunder Ghosh and Nasiruddin Midda v. Bipra Das; and by this Court in Uma Jha v. Chetu Mandar. The facts of the last mentioned case are very similar to those of the present case and it was held in that case by Bas and Ross, JJ. that indepedently of the provisions of section 77 of the Registration Act a suit to compel registration of a document would not lie but the Registration Act did not touch or affect the equitable jurisdiction possessed by the Civil Court to pass a decree for specific performance where circumstances existed entitling the plaintiff to claim such a decree. It was further held that although a document which was not registered would be inoperative as a conveyance yet it would be admissible in evidence in a suit to enforce specific performance of a contract-which must be deemed to have preceded the execution of the document. It was contended before us that the authority of this decision has been shaken by the decision of the Privy Council in James Skinner v. R.H Skinner. In that case it has been held that a document which upon its true construction is a sale deed, purporting to transfer an interest in immoveable property of the value of Rs. 100 and upwards, is precluded by section 49 of the Registration Act, 1908, from being admitted in evidence in a suit for specific performance of the agreement to transfer said to be contained therein, unless it is registered in accordance with the Act. It is clear that all that was decided in that case was that a contract for sale also required registration and it could not be used as evidence in a suit for specific performance of the contract. Soon after the decision of the Privy Council section 49 of the Registration Act was amended by legislature and a proviso was added to the following effect:—
“Provided that an unregistered document affecting immoveable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Belief Act, 1877, or as evidence of part performance of a contract for the purpose of section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.”
Therefore even if we hold that the view expressed by Das and Boss, JJ. to the effect that a document which has not been registered though inoperative as a conveyance is admissible in evidence in a suit to enforce specific performance of the contract was wrong at the time when that view was expressed, yet having regard to the subsequent amendment of section 49 the legal position is exactly the same as was stated in that case.
The two difficulties which were stated to be in the way of the plaintiffs are (1) that a suit for specific performance cannot lie when the special remedy provided by section 77 of the Registration Act has not been availed of and (2) that the document of the 4th August, 1939, cannot be admitted in evidence in the present suit, because it was not registered. So far as the first proposition is concerned, I have no hesitation in adopting the view which has prevailed in this Court and in the Allahabad and the Calcutta, High Courts. In my opinion in a case like the present there are two alternative remedies available to the plaintiff. It is open to him either to bring a suit under section 77 of the Registration Act merely for the registration of the document and if he chooses to adopt that course, that suit must be brought within thirty days of the date when the Registrar refuses to register the document. It is equally open to him to have recourse to the fuller and more comprehensive remedy provided by a suit for specific performance of the contract of sale. If he brings the suit under section 77, his claim has to be confined only to the registration of the document because as has been held in several cases in a suit under section 77 the court is only concerned with the genuineness of the document sought to be registered, that is, whether the document is executed by the person by whom it is alleged to be executed, and not its validity, and the question of its validity must be determined in a suit properly framed for that purpose. In the present case, however, the plaintiffs were not only concerned with obtaining the registration of the document but also wanted the possession of the land which was the subject of the unregistered sale deed. They further wanted a relief as against a third party who was brought on the scene on account of a subsequent sale deed having been executed in his favour by Budhan Mahto on the 14th September, 1939. The scope of the present suit is obviously much wider than that of a suit under section 77 and I do not find any law which precludes the plaintiffs from bringing a suit which will give them fuller relief than a suit under section 77 for mere registration of the document. It has been consistently held in this Court and several other High Courts that a suit for the specific performance of a contract is not barred merely because the aggrieved party does not choose to bring a suit under section 77 of the Registration Act within the prescribed time and I have no hesitation in adopting this view in the present case also.
The second question, that is to say, whether the unregistered sale deed in favour of the plaintiffs can be legally admitted in evidence in this suit is clearly answered by the proviso to section 49 to which I have already referred. The deed in question is a document affecting immoveable property and the proviso clearly states that such a document even though unregistered may be received as evidence of the contract in a suit for its specific performance. Mr. Lal Narain Sinha contends that a deed of sale cannot be treated as a contract for sale and therefore he says the proviso is not applicable to such a document. Mr. Lal Narain Sinha is of the opinion that his argument is supported by the decision of the Privy Council in James Skinner v. R.H Skinner because their Lordships of the Privy Council have referred with approval to K. Satyanarayana v. Chinna Venkatarao in which the view which he wants us to accept was undoubtedly expressed. There is no doubt that their Lordships have referred with approval to K. Satyanarayana v. Chinna Venkatarao and two other decisions also, namely, Sanjib Chandra Sanyal v. Santosh Kumar Lahiri and Ramling Parwatayya v. Bhagawarit Sambhuappa, but I have no doubt in my mind that they referred to these decisions merely as supporting the view that an agreement for sale of immoveable property is a transaction affecting the property within the meaning of section 49 inasmuch as if carried out, it would bring about a change in ownership; and therefore such a document required registration and was not admissible in evidence under section 49 as it then stood. They were not called upon to decide whether an unregistered deed of sale could be treated as a contract for sale and they have expressed no opinion on this question.
Once it is held that the question is unaffected by the decision of the Privy Council there can be no difficulty in holding that an incomplete deed of sale may be regarded as a contract for sale. As was pointed out in Uma Jha's case “it is not a sufficient performance of the contract of sale for the seller merely to execute a conveyance for until the kebala is registered it is inoperative in law. The execution of the kebala not having converted the executory contract into an executed contract, the plaintiff is clearly entitled to a decree directing the defendant to carry it into execution.” There can be no doubt that the obligations into which Budhan entered by executing the document of sale have not been fulfilled and a suit for specific performance does lie in the present case. Section 49 does not say that the unregistered document which is to be admitted in evidence in a suit for specific performance should necessarily be a contract for sale. On the other hand, it provides that—
“any document affecting immoveable property may be received as evidence of a contract in a suit for specific performance”.
The deed of 4th August, 1939, is certainly a document affecting immoveable property and is thus receivable in evidence in the present suit. Budhan Mahton has not completed the sale and has not given possession to the plaintiffs, though by the deed on which the plaintiffs rely he contracted to do these things. Therefore the plaintiffs can compel Budhan Mahto to fulfil the contract and I have no doubt in my mind that a suit for specific performance of contract did lie and the unregistered sale deed was admissible in evidence.
In my opinion the decree of the court below is correct and I would dismiss this appeal with costs.
Sinha, J.:— I agree.
Appeal dismissed.
H.R.K