1. The case relied on by the District Judge Venkatasami v. Kristayya I.L.R. 16 Mad. 341 is not in point. In that case the plaintiff was in possession of the document, and it was solely by reason of his own negligence that he was unable to register the document; and it was for this reason that the High Court in that case decided that no suit would lie to compel the defendant to execute a fresh document.
2. The present case stands on a totally different footing. In it the first defendant fraudulently made away with the document after its execution and before registration. It was therefore impossible for the plaintiff to register it In such a case the plaintiff is clearly entitled to have a fresh document executed and registered just as he would be so entitled if, after execution, the document had been accidentally lost or destroyed.
3. The decision in Nynakka Routhen v. Vavana Mahomed Naina Routhen 5 M.H.C.R. 123 is exactly in point. There a document, after execution, but before registration, was accidentally destroyed by fire, and the High Court held that the plaintiff was entitled to have a fresh document executed in the terms of that destroyed.
4. The High Court then observed. 'The execution of a fresh instrument of sale is an act required to perfect the title sold to the plaintiff in the, way the contract between him and the first defendant intended it should be perfected; and the cause of action, on which the prayer for the enforcement of that act rests, is not attributable in any way to breach of contract or neglect on the part of the plaintiff, nor does it involve the doing of anything prejudicial to the first defendant. On every just principle therefore the first defendant is under an obligation to renew the sale-deed and so place the plaintiff in the position to register the sale.'
5. The District Judge has found that the plaintiff has paid consideration for the document and done everything on his part to complete the sale, but that the first defendant has fraudulently made away with the document before registration. On these findings and having regard to the true principles applicable in such cases as set forth above, we must set aside the decrees of the lower Courts dismissing the suit, and give judgment for plaintiff with costs throughout.
6. The defendant must execute and register a document in the terms of Exhibit A within six weeks from this date.