Ex. A was executed by the 1st defendant to the plaintiff and he was given possession of it. It is in terms a sale deed but it was not registered. The finding is that the plaintiff made default in the payment of the purchase money and the document was not therefore registered. He now sues to enforce specific performance of an agreement, which according to him is implied in the sale deed Ex. A. The question for consideration is whether it is open to the plaintiff to regard Ex. A which has become inoperative by reason of non-registration as an agreement to sell. In our opinion this remedy is not open to the plaintiff. He could have presented the document for registration under Sect. 32 of the Regisration Act and could have enforced the attendance of the 1st defendant to admit execution under Sect. 36 of the same Act—If there was a refusal to register, he could have enforced his further remedies in this behalf under the Act. If he failed to take advantage of these provisions of the law, it is not open to him to ignore the plain terms of the document and to read into it an agreement to sell which was superseded by the conveyance itself. It is true that Courts of Equity would assist a plaintiff to effectuate an incomplete title if the default is due to act of God or conduct amounting to fraud on the part of the executant. But here no default is attributable to the 1st defendant. On the other hand, it is the default of the plaintiff in not paying the consideration that led to the document remaining unregistered. This case is within the principle of Venkatasami v. Kristayya(1). There it was held that when the plaintiff did not avail himself of the remedies provided by the Registration Act, he is not entitled to ask either that the document should be registered or that a new document should be executed and registered.
This decision has not been dissented from in this Court hitherto. The obiter dictum in Venkata Seetharamayya v. Venkataramayya that such a document can be treated as an agreement to sell was pronounced without adverting to Venkatasami v. Kristayyai. In Calcutta there are direct authorities against the Madras view. But with all deference we fail to find the principle on which the contrary view can be based. The learned Judges apparently misunderstood the view taken in Chinna Krishna Reddi v. Dorasami Reddi in saying that Venkatasami v. Kristayya was dissented from. We are therefore not prepared to follow Surendra Nath Nag Chowdhury v. Gopal Chunder Gosh in preference to Venkatasami v. Kristayya. In Amer Chand v. Nathu it is not shown who had the document and whether there was a suppression of it. On the whole it seems to us that there is no ground for not acting on the principle of the decision in Venkatasami v. Kristayya. The Second Appeal should be dismissed with costs.
S. S.Appeal dismissed.
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