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Valambalachi Vs. Duraiswami Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1928Mad344; 108Ind.Cas.782
AppellantValambalachi
RespondentDuraiswami Pillai and anr.
Cases ReferredSatyanarayana v. Venkata Rao A.I.R.
Excerpt:
- .....fraud of the other party the time fixed for registration had expired and the failure to get the document registered was due to no fault or default of the plaintiff himself. in such a case no doubt there may be a proper remedy available to the plaintiff by way of decree for specific performance against the other party by whose fraud he has failed to secure those rights he had contracted for. but there is no such allegation in this case and this is not even a case like one of those cases where it has been said that if the unregistered document had been destroyed by fire or taken away by fraud or force by the other party from the possession of the plaintiff and so on, the purchaser can sue for another deed. if in a sale or sale-deed there should be a covenant for further and better.....
Judgment:

Srinivasa Aiyangar, J.

1. This is a curious case. The plaintiff was the purchaser of a certain piece of property under a document which was duly signed by the defendant vendor and delivered to the plaintiff purchaser. It was omitted to be registered. The case of the plaintiff-appellant is that she was making demands upon the defendant for the registration of the document but that he was putting off. The present suit was instituted on the ground that the plaintiff was entitled, neglecting altogether the sale-deed that had already been executed, to a decree for specific performance against the defendant to carry out the original contract of sale. Of course for the purpose of performing a contract to sell the property the vendor has to perform his contract by duly executing a registered deed of sale. Until such a document is executed no transfer of property is effected and no performance of the contract by the vendor.

2. With regard to this there has been, curiously enough, two series of decisions both in this Court and elsewhere, one beginning from the case of Nagappa v. Devil [1891] 14 Mad. 55 and another beginning from the case of Venkataswami v. Krishtayya [1893] 16 Mad. 341. In the former series of cases it was held that until and unless a document is registered it cannot be said that the purchaser has had the contract in his favour properly performed and that, therefore, if for any reason whatsoever the document is not registered he is entitled to claim and have specific performance of the contract by direction against the defendant to execute and register such a conveyance. No doubt there is a certain amount of reasonableness in that view and it is apparently that reasonableness which has been the prompting cause of so many decisions to such effect both in the Allahabad and Calcutta. High Courts also. There is, however, a recent decision of this Court, the judgment in Satyanarayana v. Venkata Rao A.I.R. 1926 Mad. 530 . In that case the Chief Justice has referred to all the previous cases on the subject and come to the conclusion that the doctrine that even though a vendor of property may execute a conveyance if the conveyance should fail to be registered the purchaser of. property has still a claim for specific performance is a vicious doctrine. The learned Chief Justice has examined all the previous cases on the subject and as I read the judgment he based the con-delusion on the well-established principle that the gist of the Code is its completeness. No doubt, as justly observed by the learned vakil Mr. Rajagopala Aiyangar for the appellant, that case was -one in which the plaintiff, having failed to obtain the registration of the document and being bound under the provisions of the Registration Act within the period of one month allowed by law to appeal to the Registrar and take the necessary -steps for securing the registration of the documents failed to do so. But what the learned Chief Justice has refused to recognize is a right in every purchaser of property to get specific performance of the contract whenever for any reason the instrument of conveyance is omitted to be registered. I feel bound by the decision in that case. The principle of the 'decision in that case is clearly applicable to the present case before me because, even though there were no proceedings taken at all under the Registration Act by the present plaintiff-appellant, still I regard the judgment in that case as a denial of the right of the plaintiff in similar circumstances to get specific performance without proving more.

3. It seems to me, however, that the matter can be regarded in a somewhat different light and it is possible in that view almost to reconcile the two series of decisions. Every vendor of property is undoubtedly bound to do all that is necessary to perfect the title of the purchaser, that it to say, to execute and register a proper conveyance if so required. A purchaser of property is not bound to accept an unregistered document in performance of a contract to sell and convey property. The purchaser is entitled to insist upon his right to get a proper registered instrument. If so the vendor of property would be bound to go and get the documents registered and then deliver it to the purchaser. But if a document only executed by the vendor is tendered by the vendor to the purchaser and the delivery of the document is accepted by the purchaser, we must take it that the purchaser who accepts the document undertakes to see to the registration himself, he feeling assured that he has got provisions of the Registration Act, under which he can compel the other party to the contract to come and register the document. I am, therefore, inclined to regard that in all cases where the purchaser of property accepts an unregistered document he may be regarded as relieving the other party, the vendor from his obligation to tender a registered document in performance of the contract. It seems to me impossible to accede to the contention that a person who agrees to sell and convey property is bound not only to execute a proper conveyance once but go on executing as many conveyances as may be required by the vendor in respect of that property. Such an obligation cannot possibly be recognized. I do not wish it to be understood to say that there may not be proper cases apart altogether from the provisions of the Registration Act in which a purchaser of property who had accepted a document unregistered will not be entitled to come to Court and ask for specific performance of the contract on the ground that it has not been properly performed. But such a case must be made out on the particular facts.

4. If a purchaser of property who accepted an unregistered deed is given by the Registration Act certain facilities and rights for the purpose of getting the document duly registered and he does not adopt those steps he loses the rights not because of anything done by the, other party or omitted to be done by the other party but only because of the failure to take such steps to secure his rights as given to him under the law. There is no explanation whatever which I can find for the plaintiff not having pursued the ordinary course of all purchasers in the country of depositing the documents in the Registrar's office and praying for compulsory registration. There may practically be serious inconveniences in a party being required to execute conveyances one after another in respect of the same property. There may also be no doubt cases where by the fraud of the other party the time fixed for registration had expired and the failure to get the document registered was due to no fault or default of the plaintiff himself. In such a case no doubt there may be a proper remedy available to the plaintiff by way of decree for specific performance against the other party by whose fraud he has failed to secure those rights he had contracted for. But there is no such allegation in this case and this is not even a case like one of those cases where it has been said that if the unregistered document had been destroyed by fire or taken away by fraud or force by the other party from the possession of the plaintiff and so on, the purchaser can sue for another deed. If in a sale or sale-deed there should be a covenant for further and better assurance the right to get a fresh document may conceivably be covered by such a covenant. I refuse, therefore, to recognize that there is any obligation on the part of the vendor of property who had delivered to the purchaser an unregistered document of sale to execute any further deeds of sale if, in the face of the fact that the purchaser could have enforced his right to secure registration by proper proceedings, he fails to do so. I agree entirely in the principle enunciated by the learned Chief Justice in the recent case above cited.

5. This second appeal is therefore dismissed with costs.


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