1. The relief asked for in the plaint is a direction that
"the deed of transfer Exhibit A or any other document that may be caused by the court to be written by defendant in the manner the court thinks proper"be registered by him and handed over to plaintiff. There is also a prayer for delivery of possession of the lands the mortgage of which is the subject of the transfer-deed Exhibit A. The lower courts have refused this latter relief but have given plaintiff a decree directing defendant to execute a fresh transfer-deed to plaintiff on the terms of Exhibit A at his own expense and present it for registration and on his part do all that is necessary to get it duly registered.
2. The question is whether plaintiff is entitled to that relief or any other relief in this suit.
3. The first prayer of the plaint, viz., for compulsory registration of the document A clearly cannot be complied with. We agree with the decision of the Calcutta High Court in Edun v. Mahomed Siddik, I. L. R, 9 C, 150 approved of in Kunhimmu v. Viyyathamma, I. L. R, 7 M, 535, that independently of the provision of Section 77 of the Registration Act no suit to compel registration of a document will lie, and dissent from that of the Allahabad High Court in Ram Ghulam v. Chotey Lal, I. L. R, 2 A, 46 which is practically overruled by the case in Bhagwan Singh v. Khuda Bakhsh, I. L. R, 3 A, 397. One fatal objection to such a suit is that the document sought to be registered cannot, except under the special provisions of section 77, be received in evidence and therefore the court cannot ascertain that there is a document requiring registration. Another objection is that by Section 23 of the Registration Act, subject to the provisions of Sections 24, 25 and 26, no document other than a will shall be accepted' for registration unless presented for that purpose within four months from the date of execution. Unless; therefore, the decree compelling registration were passed within four months from the date of execution of the document, or at least within the additional four months to which the registrar may extend the time, the decree of the court would be a nullity, for the registering officer could not be compelled to do that which the law forbids him to do.. Moreover, we think that such a suit will not lie upon the general principle that, when a statute creates a right or an obligation and provides a method of enforcing it, that method and not the remedy at common law must be followed.
4. The District Judge is in error in supposing that in the present case no action under the Registration Act could have been taken by plaintiff. He seems to have omitted to notice that documents can be presented for registration not only by the executants but also by any person claiming under the document. Plaintiff therefore, who had possession of the document within the time allowed for registration, could have presented it for registration and obtained a summons for defendant's appearance under Section 86. 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 Sections 73 to 76. If defendant 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 his evidence of execution and refused to register, an appeal would have lain to the registrar under Section 72. If the decision of the registrar under Section 72 or 76 had been adverse to plaintiff he would have had 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.
5. There remains the question whether plaintiff can have a decree such as the lower courts have given him for execution and registration of another document. In our opinion he is entitled to no such relief. The fallacy of the lower courts consists in treating the document Exhibit A as evidencing merely an agreement to transfer the mortgage whereas it purports to be an operative transfer of the mortgage. If it had been merely an agreement to transfer contemplating a future formal deed of transfer it would not have required registration, Section 17 (h). The agreement to transfer the mortgage was so far carried out that the deed of transfer was executed and no suit will lie to compel defendant to do that which he has already done. The only act wanting on his part to complete the contract was to register the deed of transfer and this act, as we have shown, he could only be compelled to do by the proper proceeding under the Registration Act followed by suit under Section 77, if plaintiff failed to obtain his rights by such proceedings.
6. We must reverse the decrees of the courts below and dismiss the suit, but without costs throughout, as it has been found that defendant was not justified in his refusal to register the document.
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