P.V. Dixit, J.
1. This second appeal by Gulabsingh, one of the defendants in the suit, is from a decision of the Additional District Judge of Mandleshwar whereby he upheld the judgment and decree of the Court of Munsiff, Sanawad, giving to the Plaintiff Sagarsingh a decree directing the defendants Bherusingh and Prithvisingh to execute and register a sale deed of a house in favour of the plaintiff and further directing these two defendants and the defendant Gulabsingh to deliver possession of the house to the plaintiff. Sagarsingh and Prithvisingh arc now dead and the respondents Tarabai and Krishnakunwarbai are their legal representatives.
2. The plaintiff's case was that on or about 4-11-1946 the defendant Bherusingh and Prithvisingh entered into an agreement with him for the sale of a house belonging to them for Rs. 300/-; that in pursuance of this agreement, he paid to the defendants Rs. 225/- on 6-11-1946 for discharging a mortgage on the house; and that on the evening of 6-11-1946 he paid the remaining amount of Rs. 75/- and obtained possession of the house from the defendants.
The plaintiff further stated that the defendant Prithvisingh executed a sale deed on his behalf and on behalf of Bherusingh as his Mukhtyar and delivered it to the plaintiff; that subsequently when the plaintiff asked the defendants to register the sale-deed, they avoided it and ultimately on 16-11-1946 they sold the house to Gulabsingh, executed and registered a sale-deed of the house in favour of Gulabsingh and dispossessing the plaintiff from the house delivered the possession of the same to Gulabsingh; that thereupon the plaintiff applied to the Sub-Registrar, Sanawad, for the registration of the sale-deed in his favour; that the defendants did not appear before the Sub-Registrar and, therefore, the Sub-Registrar refused to register the sale-deed which the defendants had executed in favour of the plaintiff. On these allegations, the plaintiff claimed a decree against the defendants for the execution and registration of a fresh sale-deed in his favour and for possession of the house. Ho also claimed in the alternative damages amounting to Rs. 300/-.
3. The defendants Bherusingh and Prithvisingh admitted having received Rs. 225/- from the plaintiff and having executed in his favour the sale-deed (Ex. P/1). They, however, pleaded that as the plaintiff failed to pay the remaining amount of consideration, namely Rs. 75/- Within four days as agreed, they sold the house to Gulabsingh and executed and registered a sale-deed in Gulabsingh's favour. In his written statement, Gulabsingh denied all knowledge about the plaintiff's agreement with Bherusingh and Prithvisingh. He also denied that he had received any notice from the plaintiff and stated that he had purchased the house from Bherusingh and Prithvisingh for Rs. 400/-.
Both the Courts below found that the plaintiff paid the full amount of consideration to the defendants Bherusingh and Prithvisingh: that these defendants executed a sale-deed in favour of the plaintiff, but did not get it registered and instead sold the house to Gulabsingh and executed and registered a sale-deed in favour of Gulabsingh, Relying on Jhaman Mahton v. Amrit Mahton, AIR 1946 Pat 62 (A), the lower Courts rejected the contention advanced on behalf of the defendants that in view of the provisions of Section 77 of the Registration Act, the plaintiff's suit for specific performance was not maintainable.
3a. Mr. Chaphekar, learned counsel for the appellant did not, and indeed could not, dispute before me the findings of fact arrived at by the Courts below. He confined his arguments to the question of the maintainability of the plaintiff's suit for specific performance. It was contended that the defendants having executed a sale-deed in favour of the plaintiff, there remained nothing which the defendants could be compelled to perform; that, therefore, a suit for specific performance was not maintainable; that if the defendants had failed to appear before the Sub-Registrar, the plaintiff might have proved execution of the document before the Sub-Registrar and if the Sub-Registrar had refused to register the document, the plaintiff should have appealed to the Registrar; and that if the decision of the Registrar had been adverse to the plaintiff, he could have filed a suit under Section 77 of the Registration Act. Learned counsel placed reliance on Venkatasami v. Kristayya, ILR 16 Mad 341 (B) and Satyanarayana v. Venkatrao, AIR 1926 Mad 530: ILR 40 Mad 302 (C), to support his contention.
4. I am unable to accept the contention put forward by the learned counsel for the appellant which docs not take sufficient account of the nature and scope of a suit under Section 77 of the Registration Act and of the distinction between a suit under Section 77 of the Registration Act and a suit for specific performance of a contract of sale. The suit that is contemplated by Section 77 of the Registration Act is one for a decree directing the particular document executed between the Parties to be registered. The parties to a suit under Section 77 are only those who are parties to the document and not a third party. The scope of the suit is limited to an inquiry on two points only, namely, whether the document 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, see Ibrahim v. Mt. Sugrabai, AIR 1924 Nag 77 (D).
In a suit instituted under Section 77 of the Registration Act, the Court is not concerned with the validity or binding nature of the document apart from its genuineness. The Court will not consequently examine such defences as that the document was cancelled, or that the document was executed by the guardian of a minor in contravention of his powers, or that the document was void for want of consideration, or that the document was executed by fraud or undue influence. In a suit under Section 77, the only relief that a plaintiff can get is one of a decree directing the registration of the particular document executed between the parties. No other relief can be granted to the plaintiff and no other claim can be coupled with the prayer to enforce registration. A suit for specific performance of a contract of sale is not a suit for a direction to register a deed.
It is a suit based on the original cause of action which is independent and separate from the cause of action arising from the refusal of a party to register a document executed by one party in favour of the other. The remedy which the plaintiff claims in the suit is for the specific performance of the contract by executing a new and fresh document for recovery of actual possession. It cannot, therefore, be said that Section 77 of the Registration Act in terms or by necessary implication bars a suit for specific performance of a contract embodied in a deed for the registration of which a decree could be obtained in a suit under Section 77.
Now the remedy of specific performance is an equitable remedy. The jurisdiction to decree specific performance is discretionary and the Court is not bound to grant specific performance in every case in which the agreement has not been carried out in its entirety. The existence of an alternative effective remedy and the conduct of the party applying for specific performance are always important elements' for consideration. Thus the question whether a suit for specific performance is or is not maintainable in view of the provisions of Section 77 of the Registration Act would depend mainly on the nature of the pleadings in the suit for specific performance and the facts determined by the Court in that suit, If for example on the pleadings of the parties, the controversy in a suit for specific performance is confined only to the points that could be adjudicated in a suit under Section 77 of the Registration Act, then clearly the suit for specific performance would not be maintainable.
If, on the other hand, in a suit for specific performance, the defendant while admitting or denying the execution of an unregistered document embodying the contract between the parties, raises pleas as to the validity of the contract such as fraud, undue influence or want of consideration, then clearly the defendant cannot turn round and say that the plaintiff should have resorted to the remedy under Section 77 of the Registration Act. Again, if a vendor, after having executed a sale-deed in favour of a vendee and without getting it registered, sells the same property to another person subsequently and executes a registered sale-deed in his favour, then in a suit under Section 77 of the Registration Act, the plaintiff cannot obtain complete relief.
When there is a sale of the same property in favour of a prior and subsequent transferee, then as pointed out by the Supreme Court in Durga Prasad v. Deep Chand, AIR 1954 SC 75 (E), the proper form of decree in a suit for specific performance brought by the prior transferee, in case he succeeds, is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior transferee. In a suit under Section 77 of the Registration Act, the plaintiff could not have claimed and obtained the relief of directing the subsequent transferee to join in the conveyance so as to pass on the title which resides in him. Now, here the defendant pleaded that the plaintiff did not pay Rs. 75/- within the time agreed and thus failed to perform the contract and so the contract was not binding on him. The plaintiff sought relief as against Gulabsingh who had purchased the property by a registered sale-deed subsequent to the deed which the defendants Prithvisingh and Bherusingh had executed in favour of the plaintiff on 6-11-1946.
The Plaintiff also claimed the alternative damages and also the relief of possession of the house. All these questions were beyond the scope of a suit under Section 77 of the Registration Act. It cannot, therefore, be contended that the plaintiff's suit for specific performance in effect covered the same ground as in a suit under Section 77 of the Registration Act and that he could have obtained complete relief, in a suit under Section 77 of the Registration Act. In my view, in this case the plaintiff is not precluded from bringing a suit for specific performance even though he did not file a suit under Section 77 of the Registration Act for the registration of the document which the vendors had executed in his favour.
5. I am confirmed in this view by the decision of the Patna High Court in AIR 1946 Pat 62 (A). That case has a close resemblance to the present case. There also the vendor, after executing a sale-deed in favour of the vendee, failed to register it, did not appear before the Registrar when the vendee applied for the registration of the deed, and then sold the property by a registered sale-deed to another person. The first transferee did not file any suit under Section 77 of the Registration Act. But he brought a suit for the specific performance of the contract of sale praying for a decree directing the vendor specifically to perform his part of the contract including registration of the sale-deed and to do all necessary acts to put the vendee in full possession of the property which was the subject-matter of the unregistered sale-deed for an order directing the sale-deed to be registered, and for a decree for possession of the property in question. Fazl Ali C. J., who delivered the judgment of the Court, observed :
'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, Registration Act, merely for the registration of the document and if he chooses to adopt that course, that suit must be brought within 30 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 subject of the unregistered sale-deed. They further wanted a relief as against a third party who was brought on the record on account of a subsequent sale-deed having been executed in his favour by Budhan Mahto on 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 precluded the plaintiff from bringing a suit which will give them fuller relief than a suit under Section 77 for mere registration of the document.'
If I may say so with respect the learned Chief Justice took the right view in holding that in the circumstances existing in the Patna case, the plaintiff's suit for specific performance was not barred merely because he did not choose to bring a suit under Section 77 of the Registration Act. I see no distinction between the Patna case and the present case. To the same effect are the decisions in Nasiruddin Midda v. Sidhoo Mia, AIR 1919 Cal 477 (F), and Bal Kishen v. Bechan Pandey, AIR 1932 All 96 (G).
6. In ILR 16 Mad 341 (B) where the plaintiff and the defendant had agreed that in consideration of a sum of money and of a further sum to be paid on the completion of the transaction, the defendant should transfer a certain mortgage to the plaintiff, and an instrument of transfer was prepared and executed to give effect to that agreement but it was not registered, the Madras High Court held that the plaintiff's suit for a decree compelling the defendant to execute and register that or a similar instrument was not maintainable and that the plaintiff should have proceeded under Section 77 of the Registration Act. The reasoning of the learned Judges of the Madras High Court was that Sections 72 to 76 of the Registration Act provided a complete remedy to the plaintiff, and the Plaintiff, who was in possession of the unregistered document not having chosen to follow the remedy under the Registration Act was only to blame himself and that, therefore, his suit for a decree compelling the defendant to execute and register that or a similar instrument was not maintainable.
The decision in ILR 16 Mad 341 (B) was followed by the Madras High Court in AIR 1926 Mad 530 (C). In that case it was held that where the executant of a document at the time of the registration thereof objects to the registration which is therefore refused, the remedy of the vendee is only by a suit under Section 77 of the Registration Act and not by a suit for specific performance against the vendor. One of the contentions advanced in the. Madras case was that the plaintiff had an alternative remedy in the form of a suit for specific performance of the contract of sale. Courts Trotter C. J. rejected this argument by observing,
'The undertaking of a person who enters into a contract for the sale of real property is to do everything whereby an operative agreement in law can be effected. He has not done everything if he failed in an instrument where the obligation is cast upon him to obtain its registration and, therefore, a step in the creation of the legal relation of purchaser and vendor being wanting, you can compel the person who has not taken that step to take it. The answer appears to me to be very simple. Section 77 of the Registration Act not only tells you how you are to do that, but says that if you want to effect that purpose of having registration forcibly carried out by a decree of the Court, you did it within 30 days.'
He further observed :
'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.'
These observations of the learned Chief Justice when read in the context of the facts of the case before him make it very clear that the decision in AIR 1926 Mad 530 (C) is not an authority for the proposition that a party to an agreement has no right whatever in any circumstances to seek specific performance of an agreement once a document has been executed pursuant to the agreement but the document is not registered. On the other hand, the observations of the learned Chief Justice indicate that there may be circumstances in which a vendee would be entitled to bring a suit for specific performance of the agreement to sell in his favour even though he had not resorted to the remedy under Section 77 of the Registration Act.
These two Madras cases have been considered in Manicka Goundan v. Elumalai Goundan, AIR 1957 Mad 78 (H). In this latest Madras case, the view that a party to an agreement has no right whatever in any circumstances to seek specific performance of the agreement if a document has been executed but is not registered, has not been subscribed to. The learned Judges also did not accept the proposition 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. Rajamannar C. J. stated the view of the Court thus :
'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 antler 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 This docs not however mean that every such suit should be decreed.
Being an equitable remedy, a Court is not bound to grant specific performance in every case in which an agreement has not been carried out in its entirety. Well established equitable considerations would justify a Court refusing to grant the relief of specific performance.'
In AIR 1957 Mad 78 (II) the plaintiff had resorted to a suit under Section 77 of the Registration Act. But the observations quoted above make it plain that the Madras High Court is not now inclined to take the view that once a document is executed by a party, then if it is unregistered, the remedy of the aggrieved party is under Sections 72 to 77 of the Registration Act and that he is not entitled to specific performance of the contract embodied in the unregistered document. The Madras High Court is now veering to the view that the question whether a vendee is entitled to bring a suit for specific performance of an agreement of sale in his favour when he has not resorted to the remedy under the Registration Act depends on the facts, and circumstance of such case and on the conduct of the party. The decision in AIR 1957 Mad 78 (H) is of no help to the appellant here.
7. There is a decision of the Madras High Court in Venkatasubbayya v. Venkatarathnamma, AIR 1954 Mad 681 (I). That follows ILR 16 Mad 341 (B) and AIR 1926 Mad 530 (C) and holds that when a contract is entered into in favour of a party and in pursuance thereof a deed of transfer is executed and if that party has already set in motion the machinery for enforcing the registration of that deed, the party must legitimately take the next step of instituting a suit for enforcing the registration as contemplated by Section 77 of the Registration Act before resorting to a suit for specific performance. This view does not seem to be in accord with the decision in AIR 1957 Mad 78 (H).
In AIR 1954 Madras 681 (I), it was urged that the remedy under Section 77 of the Registration Act would be ineffective if there was a sale of the same property by the vendor to a subsequent transferee by a registered sale-deed as so long as the registered sale-deed in favour of the subsequent transferee stood, the registration of a document in favour of the prior transferee would not confer on him any title to the property. The learned Judges of the Madras High Court, while rejecting his contention, observed
'This may or may not be so. But, for the mere reason that a second document has come into existence during the pendency of the proceeding before the Registration Officers or even before, it will not take away the effect of Section 77 of the Act and the remedy provided thereunder. A party, in our opinion, cannot be heard to say that because of such a supervening circumstances as the execution of a second document, the Party which has already started the proceedings under Sections 72 to 78, Registration Act, is not compelled to resort to the remedy provided in Section 77, Registration Act.
In effect, the argument of the learned counsel amounts to this : namely, that a party who has executed a second document could easily defeat and nullify the effect of Section 77, Registration Act, and thereby absolve the party in whose favour the earlier document was executed and who is entitled to enforce the registration from seeking to resort to the remedy that is provided in Section 77. We do not think that such an argument is tenable when the scope of Section 77 is to be construed.'
I do not agree with these observations, which miss altogether the point that a party cannot be said to be under an obligation to pursue a remedy which cannot give him any useful relief and that when there is a supervening circumstance of the Property having been sold to a third person by a registered deed the vendee cannot get any relief unless the subsequent transferee joins the vendor in conveying the property to the vendee so as to pass on the title which resides in him.
8. In my judgment in the instant case, when the defendants raised the plea that the plaintiff had not performed his part of the contract by paying Rs. 75/- within the agreed time, and when the defendants though they handed over the deed executed by them to the plaintiff avoided registering it despite plaintiff's request and instead sold the property to Gulabsingh by a registered sale-deed, there can be no ground for holding that the plaintiffs' remedy was by way of a suit under Section 77 of the Registration Act and that this suit for specific performance of the contract and possession of the house and in the alternative for damages is not maintainable.
In the decree passed by the Courts below thereis no direction to the appellant Gulabsingh to joinin the sale-deed that may be executed and registered by the other defendants in favour of the plaintiff, though the appellant Gulabsingh has beendirected by the decree under appeal to deliver possession of the house to the plaintiff. Such a direction was necessary in view of the decision in AIR1954 SC 75 (E). It shall now be incorporated inthe decree. The appeal thus fails in substance and isdismissed with costs of respondent No. 1 Tarabai.