G. Ramanujam, J.
1. An interesting question of law has arisen in this case and that question of law is whether a suit for specific performance of a contract of sale is barred by the provisions of the Registration Act for the reason that the plaintiff who had obtained a sale deed has failed to agitate his rights to have the document compulsorily registered under the provisions of that Act.
2. For a fuller consideration and appreciation of the said question of law, it is necessary to set out briefly the facts of this case: The fourth defendant in O.S. No. 1779 of 1974 on the file of the District Munsif's Court of Tindivanam is the appellant herein. The said suit has been filed by the first respondent herein for specific performance of a contract of sale entered into between the plaintiff and defendants 1 to 3. The plaintiff's case was as follows:
3. The suit properties belonged to the joint family consisting of defendants 1 to 3. The first defendant, in order to discharge antecedent debts had executed a sale deed (Exhibit A-3) in favour of the plaintiff for himself and on behalf of his minor sons, defendants 2 and 3 for a sum of Rs. 2,500 on 29th August, 1974. The sale deed was written on a stamp paper and the first defendant has signed the document both for himself and on behalf of his minor sons. The first defendant after executing the sale deed refused to register the same when called upon by the plaintiff. Thereafter, the first defendant had executed an antedated sale deed Exhibit B-1 in respect of the suit properties in favour of the fourth defendant and had it registered on 30th August, 1974. The sale (Exhibit B-1) in favour of the fourth defendant is not valid and not binding on the plaintiff. The plaintiff later presented the sale deed (Exhibit A-3) in his favour for compulsory registration before the Sub-Registrar, Gingee. The Sub-Registrar issued summons to defendants 1 to 3 and as they did not appear before him as per the summons, returned the petition filed by the plaintiff on 20th September, 1974. Under these circumstances the plaintiff had no other alternative except to file the suit for specific performance of the contract of sale in his favour claiming relief both against defendants 1 to 3 as also the fourth defendant, the subsequent transferee of the suit properties.
4. The suit was resisted by the first defendant raising the following contentions: The plaintiff is not entitled to specific performance from the civil Court. The plaintiff should have preferred an appeal to the District Registrar, Gingee within thirty days from the date of the Sub-Registrar's order returning his application for compulsory registration. The plaintiff not having done so, the suit for specific performance is not maintainable. Defendants 1 to 3 have not executed any sale deed in favour of the plaintiff. The sale deed produced by the plaintiff is not true. The plaintiff administered arrack to the first defendant and when the first defendant was in an intoxicated state the plaintiff obtained the signatures on blank papers and fabricated a sale deed. Therefore, the plaintiff is not entitled to the relief of specific performance in the suit.
5. The fourth defendant, the subsequent transferee of the suit properties under Exhibit B-l, dated 11th July, 1974, contended as follows : The first defendant did not execute the sale deed, Exhibit A-3 in favour of the plaintiff on 29th August, 1974, in respect of the suit properties as alleged in the plaint. The sale is not true and valid. She being a bona fide purchaser for value without notice of the, alleged prior sale (Exhibit A-3) in favour of the plaintiff, her rights should not be affected.
6. On these rival contentions the trial Court framed the following five issues:
(1) Whether sale to plaintiff by defendants 1 to 3 is true?
(2) Whether plaintiff is entitled to relief of specific performance?
(3) Whether suit as framed is not maintainable?
(4) Whether sale to fourth defendant by defendants 1 to 3 is true and valid?
(5) To what relief, if any, is plaintiff entitled?
On issue No. 1 the trial Court held that the sale deed Exhibit A-2, executed by the first defendant in favour of the plaintiff is true and it is not vitiated for the reasons stated by the first defendant in his written statement. On issue No. 4 the trial Court held that the sale to the fourth defendant under Exhibit B-1, was not true and valid and that it came to be executed after the first defendant had executed Exhibit A-3 in favour of the plaintiff by utilising stamp papers purchased earlier and by ante-dating the document. On issues 2 and 3, the trial Court held that notwithstanding the fact that the plaintiff had not exhausted the remedies provided for under the Registration Act, he is entitled to maintain the suit for specific performance and therefore, the suit as framed is maintainable.
7. On appeal, the lower appellate Court ageed with the conclusions of the trial Court and dismissed the appeal. In this second appeal filed by the fourth defendant who is the subsequent transferee of the suit properties under Exhibit B-1, the findings of fact arrived at by the Courts below that the sale deed Exhibit A-3 in favour of the plaintiff executed by the first defendant is true and that the subsequent sale in favour of the fourth defendant under Exhibit B-1 is not true and valid cannot be successfully questioned as they are concurrent findings of fact rendered by the Courts below, which cannot be interfered with by this Court in Second Appeal. The only question that could be, and is actually, canvassed here is the question as to whether the suit for specific performance is barred by the provisions of the Registration Act, as the plaintiff having obtained a sale deed from defendants 1 to 3 could have the document compulsorily registered, and even if the compulsory registration is refused, could have filed a suit under Section 77 of the Registration Act.
8. As already stated both the Courts below have taken the view that the preponderance of judicial opinion is to the effect that in cases where a person executes a document in pursuance of a contract of sale but refuses to register the same, and at the same time purports to transfer the same property to a third-party, the comprehensive remedy by way of a suit for specific performance against all the relevant parties is available to the aggrieved party and that the provisions of the Registration Act do not touch or affect the equitable jurisdiction possessed by the civil Court to pass a decree for specific performance where circumstances exist entitling the plaintiff to such a decree. According to the Courts below the circumstances in this case entitling the plaintiff to sue for specific performance are : (1) a third party with a sale deed purported to have been executed by the first defendant for consideration has come to the scene; (2) Possession is said to have been given to such a third party as per the recitals in the sale deed, Exhibit B-1; (3) The remedy provided under the Indian Registration Act. will not be available against the said third party; (4) Recovery of possession which is essential for the plaintiff besides getting a sale deed from all the four defendants including the third party-fourth defendant cannot be granted by the Registration Department; and (5) No effective remedy is available under the Registration Act, for getting any relief as against the fourth defendant. The correctness of the said view of the Courts below has been questioned in this second appeal.
9. On the facts of this case, the conclusion arrived at by the Courts below on this aspect of the case cannot be taken exception to. It is no doubt true that, in one of the earliest decisions of this Court in Venkatasami v. Kristayya 3 M.L.J. 169 : ILR(1893)Mad. 341, the Court in a suit between the two contracting parties, held:
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.
The same view was taken in Thayarammal v. Lakshmi Ammal 39 M.L.J. 181 : 12 L.W. 161 : ILR(1920) Mad. 822, where it was held by a Bench of this Court thus:
Where a sale deed, purporting to be a conveyance of some lands, was executed and delivered to the vendee, but was not registered, and the omission was not due to act of God or fraud on the part of the executant, it is not open to the vendee to treat the unregistered document as an agreement to sell and to sue for specific performance of such agreement.
Komiresetti Satyanarayana v. Yeeranki China Verikatarao : AIR1926Mad530 , also took the same view; and the decision in Kakarla Venkatasubbayya v. Sravanam Venkatarathnamma : AIR1954Mad681 , was also to the same effect. However, a different note was struck for the first time in Maricka Goundan v. Elumalai Goundan : AIR1957Mad78 . In that case, Rajamannar, Chief Justice, speaking for the Bench, after considering the two extreme propositions : (1) that a party to an agreement has no right whatever in any circumstance to seek specific performance of the agreement once a document has been executed in pursuance of the agreement but the document is not registered; and (2) that the 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, summed up the legal position thus:
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 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 does not, however, mean that every such suit should be decreed.
The said view has been followed by another Bench of this Court in Hutchi Gowder v. Bheema Gowder : (1959)2MLJ324 , where the Court had summed up the result of the decisions as follows:.a plaintiff, who having obtained a deed of transfer which requires registration in order that it may become operative, institutes a suit for a decree directing the defendant to execute a fresh deed of transfer, without having presented for registration the deed which had been executed, cannot obtain a decree in such suit unless the plaintiff proves that the failure to have the deed registered was hot due to any wrongful act or negligence on his part.
In Veeran Ambatam v. Vellaiammal : AIR1960Mad244 , P.N. Ramaswami, J., has, after an elaborate consideration of all the decisions rendered by this Court as well as other High Courts, ruled that the lesser remedy provided for under Section 77, Registration Act, cannot take away the larger remedy provided for under the Specific Relief Act, that the Registration Act, does not touch or affect the equitable jurisdiction possessed by the civil Courts to pass a decree for specific performance where circumstances exist entitling the plaintiff to such a decree, and that if the remedy under Section 77 of the Registration Act, is not available and even if available, is not effective and it is futile to initiate proceedings under the Registration Act, the vendee may have his remedy for specific performance.
10. In Second Appeal No. 705 of 1967, Kailasam, J., as he then was, had held, following the Bench decisions in Manicka Goundan v. Elumalai Goundan : (1956)2MLJ536 and Hutchi Gowder v. Bheema Gowdar I.L.R. : (1959)2MLJ324 , that even though a plaintiff who obtains a document in writing which in law should be registered does not present it for registration, he can still maintain a suit for specific performance under certain circumstances, namely, when he proves that the failure to present the document for registration was not due to any wrongful act or negligence on his part or due to other circumstances which prevented his resorting to proceedings under the Registration Act.
11. The case before me is an a fortiori case. Here, the plaintiff presented the sale deed executed by defendants 1 to 3 for registration to the Sub-Registrar. The Sub-Registrar did not register the document compulsorily. However, the plaintiff did not file an appeal before the District Registrar nor did he file a suit under Section 77 of the Registration Act. Applying the principles laid down by all the decisions rendered subsequent to the Bench decision in Manicka Goundan v. Elumalai Goundan : (1956)2MLJ536 , to the facts of this case, it has to be held that the fact that the plaintiff had an alternative remedy available to him under the Registration Act will not disable him from invoking the equitable and discretionary jurisdiction of the civil Court for the grant of a decree for specific performance compelling the defendants 1 to 3 to perform their part of the contract. Even if the defendants 1 to 3 had not transferred the property to the fourth defendant and had continued to be in possession of the properties, a suit will lie at the instance of the plaintiff for specific performance.
12. Here we have an additional and special circumstance, in this case, the defendants 1 to 3, after executing the sale deed Exhibit A-3 in favour of the plaintiff but before its registration, executed another sale deed, Exhibit B-l in favour of the fourth defendant in respect of the same properties and had it registered. The result is that even if the plaintiff takes proceedings under the Registration Act and has the document compulsorily registered, such a sale deed will not give him the necessary relief as against the fourth defendant, the subsequent alienee. Even after having the sale deed registered under the provisions of the Registration Act he has to still move the civil Court for invalidating the subsequent sale deed and for recovery of possession from the fourth defendant, the subsequent alienee. Therefore, the remedy available to the plaintiff under the Registration Act is ineffective and futile so far as the subsequent alienee is concerned. That, in such circumstances the only proper and effective remedy for the plaintiff is to go before the civil Court for the relief specific performance of the contract of sale not only as against his vendors, but also against the subsequent alienee, has been held in Jhaman Mahton v. Amrit Makton : AIR1946Pat62 . In that case, the Registrar refused to register a sale deed. The aggrieved party brought a suit for specific performance of the sale contract. One of the objections taken to that suit was that since the plaintiff had a remedy under the Registration Act for registration of this sale deed already executed in his favour, the suit for specific performance is barred under Section 77 of the Registration Act. A Division Bench of the Patna High Court held that where the Registrar refuses to register a sale deed it is open to the aggrieved party either to bring a suit for mere registration of the sale deed under Section 77 or to have recourse to the fuller and more comprehensive remedy by way of a suit for specific performance of the contract of sale, and that such a suit is not barred merely because the aggrieved party does not choose to bring a suit under Section 77 within the prescribed time. The Court further held that a suit in which a decree for possession is sought against a third person to whom the property has been subsequently transferred is outside the scope of Section 77. The same view has also been taken in Veerappa Naidu v. Venkaiah : AIR1961AP534 . In that case, the Division Bench reiterated the reasoning of the Full Bench in P. Satyanarayana Murthy v. P. Gangamma : AIR1959AP626 , and observed as follows:
When there are two alternative remedies available to a party, it is open to him to exercise his right of election.... As a suit under Section 77 has to be confined to the registration, of a document alone, the question of validity and delivery of possession of property cannot but be conclusively adjudicated upon in a suit for specific performance only. A provision which cannot afford him full and complete relief which he can claim in law cannot possibly stand in his way in having resort to an effective remedy open to him. That must be so even though a party has not taken prior proceedings under the Registration Act for sufficient grounds. The remedy for specific performance of course being an equitable remedy, the Court may, if the party is guilty of laches or gross negligence, refuse to exercise the discretion in his favour.
13. In Venhata Seshayya v. District Board, East Gadavari : (1939)1MLJ82 , and Venkatasubbamma v. Subbiah (1943) 1 M.L.J. 469 : 55 L.W. 563 : A.I.R. 1942 Mad. 716, the Court has also taken the view that the lesser remedy provided for under Section 77 of the Registration Act cannot take away the larger remedy provided for under the Specific Relief Act and that the Registration Act does not touch or affect the equitable jurisdiction possessed by the civil Courts to pass a decree for specific performance where circumstances exist entitling the plaintiff to such a decree. P.N. Ramaswami, J., in Veeran Ambalam v. Vellaiammal : AIR1960Mad244 , favoured the maintainability of a suit for specific performance and the non-applicability of the registration procedure when there is a subsequent transferee of the property against whom also relief is asked for by the plaintiff. Krishna Iyer, J., as he then was, in Mathai v. Joseph : AIR1970Ker261 , referred to the decision of the Andhra Pradesh High Court in Veerappa Naidu v. Verikaiah : AIR1961AP534 , with approval and has held a person seeking relief other than hare registration can approach the Court by filing a suit and his right to file a suit in civil Court is not fettered by Section 77. According to the learned Judge, Section 77 of the Registration Act is only a facility available to the aggrieved party and not a fetter on the Court's power and whether the plaintiff has already set in motion the machinery for enforcing registration or not is immaterial and cannot inhibit a suit de hors Section 77.
14. It is also to be remembered that all the High Courts, other than Madras, has taken a consistent view that a suit for specific performance is maintainable even though the remedy for registration provided for under the Registration Act has not been followed. This Court, however, at early stages in Venkatasami v. Kristayya ILR(1893) Mad. 341 : 3 M.L.J. 169, Thayarammal v. Lakshmi Ammal ILR(1920) Mad. 341 : 3 M.L.J. 169 and Kakaria Venkatasubbayya v. Sravanam Venkatarathnamma (1954) 1 M.L.J. 396 : I.L.R. (1954) Mad. 775, has taken the view that the aggrieved party has to invoke the remedy available to him under the Registration Act to have the document registered and if that remedy has not been resorted to he cannot approach the civil Court for the equitable remedy of specific performance. As pointed out by Krishna Iyer, J., in Mathai v. Joseph : AIR1971Ker261 :
A powerful current of judicial thought has however Mowed the other way also. Indeed, the preponderance of authority has swung in the last two decades towards the view that a suit for specific performance by way of registration of a document is maintainable notwithstanding the by-passing of the alternative remedy prescribed in Part 12 of the Registration Act.
15. As already stated, here on the facts of this case, the remedy available to the plaintiff under the provisions of the Registration Act is ineffective and futile. His vendors, defendants 1 to 3 have subsequently sold the properties to the fourth defendant and unless he could obtain relief as against the fourth defendant also from the registration authorities, that remedy under the Registration Act is useless and ineffective. For getting a relief as against the fourth defendant, the subsequent purchaser, the only proper and effective remedy available for the plaintiff is to file a suit for specific performance as he has done in this case.
16. Thus, on a due consideration of the matter I find that the Courts below are right in holding that the suit for specific performance is not barred by section 77 of the Registration Act. The appeal, therefore, fails and is dismissed. There will, however, be no order as to costs.