P. Chandra Reddy, C.J.
1. The question to be answered in this case is whether Section 77 of the Indian Registration Act bars a suit on the basis of an unregistered will when the Sub-Registrar refused to admit it for registration, which order was confirmed on appeal by the District Registrar.
2. The facts leading up to the Civil Miscellaneous Appeal lie in a narrow compass and could be stated in the following words. The appellant sought to sue in forma pauperis for recovery of the properties belonging to one Padala Paddireddi, who died on 6-8-1953, possessed of the same and leaving behind him his wife and two daughters and his younger brother, the plaintiff, averring that Paddireddi executed his last will and testament two days prior to his death bequeathing most of his properties to the plaintiff. The will was presented in the Sub-Registrar's Office at Kothapeta. On an objection taken by the widow and the daughters of Paddireddi, registration was refused on 19-3-1954. This order of refusal was confirmed by the District Registrar on appeal. Thereupon he filed a petition under Order 33 Rule 2, C.P.C. for permission to file the suit in forma pauperis.
3. The petition was rejected by the Subordinate Judge, on the ground that the suit was ot maintainable in view of the provisions of Section 77 of the Indian Registration Act (hereinafter referred to as the Act). In the opinion of the trial Court, the only course open to the present appellant was to resort to Section 77 of the Act having attempted to get the will registered as per the provisions of the Registration Act and failed. It is that order that is appealed against.
4. In support of this appeal, it is urged by the counsel for the appellant that Section 77 of the Registration Act does not provide an exclusive relief, that it was only an optional one and that, at any rate, Section 77 has no application to wills which are not compulsorily registrable. As the decision of this question turns upon the interpretation to be put on Section 77 of the Registration Act, it is convenient here to extract the provisions of that Section.
'77(1). Where the Registrar refuses to Order the document to be registered, under Section 77 or Section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after [he making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree.
(2) The provisions contained in Sub-sections (2) and (3) of Section 75 shall, mutatis mutandis, apply to all documents presented for registration In accordance with any such decree, and notwithstanding anything contained in this Act, the document shall be receivable in evidence in such suit.'
It is seen that section gives a right to a person relying on any document to institute a suit. It is not in the mandatory form. It is only optional with the party concerned either to take advantage of the section' or to have recourse to other forms of suits for obtaining the reliefs he wants. The word used in the section is 'may' and not 'shall'. But if he chooses to avail himself of the course indicated in that section, action has to be taken within 30 days after the making of the order of refusal by the Registrar.
It is worthy of note that the claim under Section 77 has to be confined only to the registration of the document since in such a suit the concern of the Court is only with the genuineness of the document and it cannot deal with the validity of the document or allied questions. Therefore it is plain that Section 77 does not provide the only remedy and that ft gives one of the reliefs to which the plaintiff is entitled. There is ample authority for this position.
5. We may first refer to the rulings of the Madras High Court. The earliest of the reported cases of that Court is Nynakka Routhen v. Vavana Mahomed Naina Routhen 5 Mad HCR 123. There, the deed after execution but before registration was destroyed by fire. It was decided that the plaintiff could pray for specific performance of the agreement by compelling the defendant to execute a fresh document. The same principle is contained in Chinna Krishna Reddy v. Doraswamy Reddi, ILR 20 Mad 19. In that case, the conveyance was executed by the defendant but, before it could be registered, he stole the document and concealed it with a view to prevent registration taking place. It was held that the plaintiff was entitled to specific performance of the agreement and to have another document executed and registered.
6. Venkataswamy v. Kristayya, ILR 16 Mad 341, is relied on by the respondent as striking a different note. There, pursuant to an agreement between the plaintiff and the defendant for assignment of the mortgage, the latter executed an instrument but it was not registered. The plaintiff sued for a decree compelling the defendant to execute or register that or a similar document. It was held by Muttuswami Ayyar and Handlery JJ-, that the plaintiff was not entitled to a decree for compulsory registration because, independently of the provisions of Section 77 of the Act, no suit to compel registration of a document would lie.
The learned Judges said that nothing prevented the plaintiff, who had possession of the document, from presenting it for registration within the time allowed and obtain summons for defendant's appearance under Section 36, that he could have invoked the provisions of Sections 73 - 76 of the Registration Act and that, if the decision of the Registrar under those sections was adverse to him, he would have a remedy by a suit under Section 77. There the relief asked for by the plaintiff was to execute a fresh document and to compel its registration. In negativing the request of the plaintiff, this is what the learned Judges observed:
'The agreement to transfer the mortgage was so far carried out that [he deed of transfer was executed and no suit will lie to compel defendant to do that which he has already done. The only net 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 the plaintiff failed to obtain his rights by such proceedings.'
The decision may he justifiable in view of the reliefs asked for in the suit, namely, the direction to compel the defendant to execute a document which he has already done and to compel registration thereof, which is a remedy specified in Section 77 of the Registration Act.
7. It was not for specific performance of the contract; but if it is to be understood as laying down the broad proposition that Section 77 debars a party from resorting to other remedies, we will demur to it. This decision was followed in Palni Goundan v. Paramasiva Goundan, 6 Mad LJ 263.
8. The ruling on which strong reliance is placed by the respondents is Satyanarayana v. C. Venkata Rao, ILR 49 Mad 302: (AIR 1926 Mad 530). What happened there was this. One of the contracting parties to a contract for sale of land objected to the registration of the document and registration was refused by the registration authorities after an enquiry. Thereupon, a suit for specific performance was laid instead of one under Section 77 of the Registration Act within thirty days of the refusal of the Registrar,
It was ruled by Coutts-Trotter C.J. and Rciliy J. that, when on denial of execution by the vendor the Registrar, refused to register the sale deed presented by the vendee for registration the remedy of the vendee was to file a suit as provided by Section 77 of the Registration Act and not a suit for specific performance of the contract. A close scrutiny of the reasoning of the learned Judges would establish that the learned Judges were not adumbrating a proposition that Section 77 would constitute an absolute bar to the filing of a suit for specific performance After stating that the remedy of specific performance, though provided by statute in this country, was nevertheless 'simply a crystallization into statutory form of an equitable remedy', they remarked that laches was an answer to a claim for specific performance. Says the learned Chief Justice at page 314 (of ILR Mad): (at p. 533 of AIR):
'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 had 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.'
Thus, the learned Judges put it more as a question of policy, namely, that the discretionary relief would he denied to a person who is guilty of laches and who is not free from blame in that he failed to avail himself of the remedy provided by Section 77. But if it is to be regarded as laying down the proposition that Section 77 prevents a party from having recourse to other remedies, we will have to express our respectful dissent from it. It is worthy of note that the Chief Justice did not express dissent from 5 Mad HCR 123 and ILR 20 Mad 19; on the other hand he approved of the principle in those cases as an intelligible one but that would not govern the case before them.
9. Another decision of the same Court, which requires to be noticed in this connection, is : AIR1954Mad681 . In that case when an instrument was presented for registration, one of the executants alone admitted execution with the result that the Sub-Registrar declined to register it against the other executants and this was confirmed on appeal by the District Registrar. The person, in whose favour the document was executed, filed a suit for specific performance. It was held that the correct procedure to be adopted was to file a suit for enforcing registration of the document, and not to ask for spefic performance. The doctrine is stated thus by Basheer Ahmed Sayeed J., who delivered the opinion of the Court:
'When a contract was entered into in favour of a party and in pursuance thereof a deed of transfer was executed, and when that party has already set .in motion the machinery for enforcing the registration of that deed of transfer, the next step which the party should have legitimately taken was the institution of the suit for enforcing the registration as contemplated by Section 77 of the Registration Act..........In our opinion, when once this machinery has been set in motion, the logical conclusion should be that action should be taken under Section 77 of the Registration AcJ and it was incumbent upon the party to file a suit to enforce the registration before he could think of a suit for specific performance.'
Again at page 789 (of ILR Mad): (at p. 686 of AIR), the learned Judge concluded:
'We hold that the proper procedure to be adopted by the respondent in the present case is to file a suit for enforcing the registration of the document executed in her favour before she could resort to a suit for specific performance.'
10. We do not think we can accede to the principle enunciated in these passages. The mere fact that a party had already set in motion the machinery for enforcing registration of an instrument does not preclude him from having recourse to a more comprehensive suit for getting several of the reliefs to which he is entitled. There is no obstacle in the way of a party pursuing other remedies open to him.
11. We may now refer to Manicka v. Elumalai, : AIR1957Mad78 in which judgment was rendered by Chief Justice Rajamannar on behalf of the Bench. The learned Chief Justice, after noticing the two sets of decisions viz,, 5 Mad HCR 123 and ILR 20 Mad 19 on the one hand and ILR 16 Mad 341, 6 Mad LJ 263, ILR 49 Mad 302: (AIR 1926 Mad 530) and : AIR1954Mad681 on the other observed:
'On a consideration of all the authorities, it appears to us that there is no need to subscribe to either of two extreme propositions. One is that a party to an agreement has no right whatever in any circumstances to seek specific performance of the agreement once a document has been executed in pursuance of the agreement but the document is not registered. The other is that a party to an agreement is 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 or suits for specific performance so long as no document has been registered. The decisions in 5 Mad HCR 123 and ILR 20 Mad 19 clearly demonstrate the untenability of the first proposition. The acceptance of the second proposition would mean that a party can take advantage of his own negligence or laches. In our opinion, the correct view to take, which also seems to us to be just and equitable, is this. Taking the case of an agreement to sell, it cannot be said that the contract has been fully performed till there is a properly executed document which is also registered. It Cannot be said that the moment, a document is executed the contract ceases to be in force. The purchaser is always entitled to insist upon his right to have a proper registered instrument. Every vendor is bound to do all that is necessary to perfect the title of the purchaser, which includes the execution and registration of a proper conveyance. It is true that the purchaser can resort to proceedings under the Registration Act, and the special statutory, remedy under Section 77 of that Act to obtain registration of the 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.'
In our opinion, the law stated in 5 Mad HCB 123 and ILR 20 Mad 19 is correct. In a case of that description no question of a party taking advantage of his own negligence or laches arises, since in one case the document was destroyed by fire and in the other it was stolen by the executant of the document before it could be presented for registration. They could not, therefore, be regarded as embodying any extreme proposition. As already pointed out Courts-Trotter C.J. approved of the doctrine of those cases in ILR 49 Mad 302: (AIR 1926 Mad 530). However the ultimate conclusion of the learned Judges contained in the passage extracted above accords more with the view that Section 77 of the Registration Act does not provide an exclusive remedy. In that case, after registration was refused by the registration authorities the plaintiff unsucessfully invoked Section 77 of the Registration Act.
12. We may now refer to some of the rulings of other High Courts which do not accord with ILR 16 Mad 341 and : AIR1954Mad681 . In Amer Chand v. Nathu, 7 All LJ 887, the mother and guardian of some of the minor defendants entered into an agreement for sale of certain property to the plaintiff in discharge of a debt due to their father and executed a sale deed. Later on, she refused to register it.
The plaintiff, without taking any action for compulsory registration, brought a suit for specific performance of the contract. It was held by Stanley C.J. and Banerji J. that the Court hail jurisdiction to direct specific performance of the contract and to require the defendants to do everything in fulfilment of all the obligations under the contract and that the plaintiff was entitled to have a fresh sale deed executed by the necessary parties. In support of this conclusion, the learned Judges relied on ILR 20 Mad 16. The learned Judges were not prepared' to assent to the view of the Madras High Court in ILR 49 Mad 302; (AIR 192fi Mad 530).
13. In Balakishen Das v. Bechart Pandey, ILR 54 All 68; (AIR 1932 All 96) another Bench of the same Court approved of the dictum in 7 All LJ 887. There, a person agreed to sell some immoveable property and executed a sale deed but wilfully abstained from getting it registered. An application was made afterwards to the Sub-Registrar, for registration of the document but that was refused, which order was affirmed on appeal by the District Registrar. Although the suit instituted by the vendee for compulsory registration was decreed, he could not get any relief thereunder as the decree became infructuous for the reasons mentioned therein. The plaintiff had therefore to institute a suit for specific performance of the original contract.
It was decided by Sulaiman Ag. C.J. and Young J. that Section 77 of the Act did not provide the only exclusive relief to the other party .and that the latter was entitled to enforce specific performance of the contract and obtain actual possession. In this context, we may usefully extract the following observations of the learned Chief Justice occurring at page 71 (of ILR All): (at p. 97 of AIR):
'It is therefore obvious that the mere failure of a suit under Section 77 or its infructuous termination cannot operate as res judicata in a suit brought for the specific performance of the original contract and for recovery of possession of the immoveable property. The suit is based on the original cause of action which was independent and separate from the cause of action arising from the refusal of the vendor to register the sale deed. It is also quite dear that the remedy which the plaintiff claims in the present suit is for the specific performance of the contract by executing a new and fresh document and for recovery of actual possession, Such reliefs could not have been claimed in the previous suit. We are unable to hold that Section 77 provides the only exclusive relief to the plaintiff, who has paid consideration and earnest money to the defendant who has promised the transfer to him of the immoveable property. There is absolutely no reason why he should not be able to enforce the contract specifically and obtain actual possession.'
We have not been shown any case of that Court which differed from this.
14. The Calcutta High Court also has taken the same view in Surendra Nath Nag v. Gopal Chunder, 12 Cal LJ 464 and Nasiniddin Midda v. Sidhoo Mia, 44 Ind Cas 361: (AIR 1919 Cal 477). In the first of these, a suit was brought for registration of a lease under Section 77 of the Indian Registration Act, or, in the alternative, for specific performance of the contract to grant such a lease. No relief could be granted under Section 77 of the Act as it was barred by limitation and the trial Court, granted relief for specific performance of the contract to execute the lease.
On appeal, the District Judge, accepting the contention of the defendants that as the document was already executed the contract had ceased to be executory and as such specific performance could not be claimed, dismissed the suit. This was reversed by Mookerjee and Carnduff JJ. and the suit was decreed. The Learned Judges expressed the opinion that, though the document was executed, it was inoperative in law and was, therefore, ineffective to create title in the intended lessee but it could form the foundation for an action for specific performance.
15. To the same effect is the second case. In that case, the plaintiff obtained a conveyance from defendants 1 to 4 but the vendors instead of registering the document and giving effect to the contract transferred the very property to the 5th defendant ante-dating it, The plaintiff was obliged to institute a suit for recovery of possession of land on declaration of title by purchase or on specific performance of a contract of sale. Though the suit was decreed in the trial Court, it was dismissed on appeal by the Subordinate Judge, on the ground that the plaintiff was not competent to seek registration of the conveyance as he had not followed the provisions of the Indian Registration Act to compel registration of the document. On Second Appeal this was set aside and judgment was entered for the plaintiff. The ratiocination was that the relief asked for in that suit could not have been obtained in a suit framed in accordance with Section 77 of the Act and that it could not be said that the only remedy which the plaintiff had was a suit under Section 77 because
'the consequence would be that the plaintiff if successful in such a litigation, would be driven to institute a second suit against the 5th defendant for establishment of his title and for recovery of possession.'
16. This rule found acceptance in the decisions of the Patna High Court. In Uma Jha v. Chetu Mandar, 7 Pat LT 730: AIR 1926 Pat 89. It was pointed out that though a suit to compel registration of a document would not lie de hors Section 77 of the Registration Act, that did not affect the equitable jurisdiction possessed by the court to pass a decree for specific performance if there were circumstances which entitled the plaintiff to claim such relief.
17. Another Bench of that Court in Jhaman v. Amrit, ILR 24 Pat 325: (AIR 1946 Pat 62) concurred with this view. There, a party having executed will in favour of the plaintiff failed to register it. The plaintiff applied for compulsory registration but as the executant did not appear before the Registrar, it was not registered. The plaintiff, instead of raising an action under Section 77 of the Act, brought a suit praying for a decree directing the executant of the document to perform his part of the contract and to do all necessary acts to put the plaintiff in full possession of the property, including registration of the sale deed etc. The suit was decreed by the Courts below which was confirmed on appeal by the High Court.
18. The legal position on the topic was summed up by Fazal AH C.J., who delivered the opinion of the Court, in the following words:
'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 ........... 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.'
In our Opinion, this states the law correctly if we may say so with respect.
19. A single Judge of the Madhya Pradesh High Court followed these rulings and dissected from ILR 16 Mad 341 and : AIR1954Mad681 . The learned Judge pointed out that the scope of the suit was confined only to an enquiry on the question whether the instrument was executed by the defendant and whether the requirements of law as to presentation have been complied with by the person presenting the document for registration and cited in support of this rule, Ibrahim v. Mt. Sugrabai, AIR 1924 Nag 77.
20. We are in respectful agreement with the. principle enunciated in the above rulings. In our opinion, Section 77 does not contain an exclusive remedy to a person who seeks to enforce his rights flowing from a contract of sale and it does not bar a suit for specific performance of the agreement to sell in his favour. But this being an equitable remedy, the Court is not bound to grant a decree in very case in which the agreement was not carried out in its entirety. 'Well-established equitable considerations would justify a court refusing to grant the relief of specific performance.'
21. Even otherwise, we do not think that Section 77 stands in the way of suit being brought on the basis of a will which was refused to be registered by the registration authorities and without resorting to Section 77 of the Act. In our judgment, Section 77 can have no application to wills. It is seen that that provision may be an obstacle in the way of a plaintiff getting relief if he depends on an instrument which requires registration. But if he can rely upon it without registration, we do not think that he can be compelled to bring a suit under Section 77 of the Act.
Section 17 of the Act enumerates the documents, which require registration and the effect of failure to observe it is stated in Section 47. Under Section 18(e) of the Act the registration of a will is purely optional. That being so, we do not think that the consequences contemplated by Section 49 would flow from not having recourse to Section 77 of the Act. How can a party be compelled to get document registered if such an obligation is not cast, by the provisions of the Registration Act? The necessity for registration arises only in regard to document set out in Section 17. No penalty can attach to the omission to get a document registered when it is excepted by Section 17. Therefore, we feel that Section 77 can have relation only to instrument falling within the ambit of Section 17.
22. It is very doubtful whether the executant of a document could be compelled to register it if it is not necessary to give effect to it. In Ahsuna Begum v. Kheerun Singh, 10 Suth WR 360, it was ruled by Jackson and Dwaraknath Mittor JJ. that a suit did not lie to compel registration of a lease executed when it was not required to be registered by law in order to give effect to it and when there was no express covenant to register. Proceedings, 9th December, 1870, 6 Mad HCR App. 9. seems to be in consonance with that rule. Upon a question nut by the Civil Judge of Coimbatore, the High Court gave the ruling that registration being optional, a suit would not lie to compel registration.
23. It is true a contrary view was taken by the Calcutta High Court in Topa Bibi v. Ashanulla Sardar, ILR 16 Gal 509. It was laid down there that under the Registration Act of 1877, a suit would lie by a purchaser to compel registration of a Kobala in a case in which the value, of the property conveyed was under Rs. 100/- and in which therefore registration of the deed was not compulsory. The learned Judges, referring to the two above-mentioned cases, remarked that they dealt with a different Act, which did not expressly give a right of suit as the present Act did.
Even assuming that a purchaser has a right to main lain a suit to compel the executant to register the deed, that does not mean that the person acquiring the right is required, to bring a suit for registration. It is one thing to say that a person has a right to do a thing and altogether a different thing to argue that he is forced to exercise it. Therefore, the last mentioned case is not an authority for the proposition that even in regard to documents, registration of which is only optional. Section 77 should be resorted to.
24. Quite apart from that, we cannot conceive the section as applying to wills. That section contemplates only compulsory registration, which implies that some one should be compelled to register the documents. In regard to a will, there is no one who could be compelled to get it registered. Thus, Section 77 applies to instruments inter vivos only and considerations that pertain to such documents are not pertinent to wills. Section 77 is thus out of the way in regard to wills. It should also be remembered that the procedure governing documents of transfer is different from that relating to wills. Under Section 23 of the Act, a document has to be presented within four months of its execution, while no time limit is prescribed for wills under Section 27.
Under Section 41 which lays down the procedure for the registration of wills, the enquiry is of a limited character. Under Sub-section 2, before registering the document, the Registering Officer has to satisfy himself that the will or authority was executed by the testator or donor as the case may be that the testator or donor is dead and that the person presenting the will or authority is, under Section 40, entitled to present the same. It is seen that the only question to be gone into by the Registering Officer is whether the will was actually executed by the testator or not. The mental capacity of the testator is beyond the scope of that enquiry. Therefore, the registration of the will does not dispense with the necessity of the propounder to prove that the will represented the intentions of the testator,
It is for the propounder of a will to prove not only that the will was executed by the testator but that it was done while he was in a sound and disposing state of mind. Therefore, registration by itself would not enable the propounder of a will to seek possession of the property. For these reasons, we feel that Section 77 of the Registration Act is inapplicable to wills. On this discussion, it follows that the plaintiff is not precluded from maintaining a suit for certain reliefs based on the unregistered will by reason of his failure to have recourse to Section 77 of the Act. Therefore, the rejection of the plaint on this ground cannot be sustained.
25. In the result, the appeal is allowed andthe matter is sent back to the trial Court to betaken on its file and disposed of according to law.Costs will abide the result of the suit.