M.M. Ismail, J.
1. Defendants 1 and 2 in O.S. No. 543 of 1964 on the file of the Court of the District Munsif of Salem, who failed before the Courts below, are the appellants herein. The first defendant is the husband; the second defendant is the wife. The plaintiff in the suit is the brother of the second defendant. The second defendant has a sister by name Yasodai Ammal. There was some dispute between defendants 1 and 2 and the second defendant's sister and her husband with, regard to the properties of their parents. Consequently, they entrusted the matter to 11 arbitrators for mediation, and they executed on 13th January, 1963 a muchilika Exhibit A-13, for that purpose. Subsequently, on 21st January, 1963 the plaintiff in the suit executed another muchilika, Exhibit A-9. After hearing the parties, the arbitrators passed an award, marked as Exhibit A-10 dated 23rd January, 1963. This award has been signed by the appellants and the second defendant's sister and her husband, as well as the plaintiff in the suit. At the instance of the plaintiff, the fifth defendant in the suit, one of the arbitrators, presented the award for registration before the Sub-Registrar. Before the Sub-Registrar the appellants herein did not appear while the second defendant's sister and her husband admitted execution. In view of this the Sub-Registrar declined to register the document. Then the document was presented to the District Registrar who held an enquiry into the matter so far as defendants 1 to 4 were concerned, and on 20th March, 1964 he passed an order refusing to register the award as against defendants 1 to 4 in the suit, defendants 3 and 4 being two of the arbitrators, since the appellant herein denied execution. It was thereafter that the present suit was instituted under Section 77 of the Indian Registration Act of 1908 (hereinafter referred to as (he Act) for registration of the award dated 23rd January, 1963 against defendants 1 to 4. The third and fourth defendants remained ex parte. The fifth defendant appeared in person and endorsed in the plaint submitting to a decree. As far as the appellants herein were concerned, they put forward several contentions, such as that the plaintiff herein was not a party to the muchilika, that there was no dispute as far as he was concerned, that their signature and thumb impression were obtained only on blank paper and that they signed Exhibit A-10 without reading the contents. The learned District Munsif who tried the suit as well as the learned District Judge who disposed of the appeal concurrently came to the conclusion that the appellants herein had signed and executed the award knowing its contents. On the basis of this conclusion, relying upon the decision in Ramaswami Chetti v. Srinivasa Pillai : AIR1934Mad113 , they decreed the suit and directed registration of the award. It is against this judgment and decree the present second appeal has been filed by defendants 1 and 2 in the suit.
2. Having regard to the concurrent finding of the Courts below that the appellants herein had signed the award knowing full well the contents thereof Mr. O.V. Baluswami, the learned Counsel for the appellants, did not advance any argument challenging the finding of the Courts below in this behalf. He however, sought the permission of the Court to argue a point of law, which had not been urged before the Courts below, namely, that the award in this case is not one coming within Section 17(1) of the Act and therefore does not require registration and that registration not being compulsory, Section 77 of the Act has no application to such a document. Since the award had already been filed in the Court and marked as Exhibit A-10 and the question is one of pure law, I allowed the learned Counsel to advance the argument. As far as the award itself is concerned, it certainly does not come within the scope of Section 17(1) of the Act, because no interest in immoveable property as created, declared, assigned, limited or extinguished in praesenti. All that the award provides for is that the plaintiff herein, within a period of three months from the date of the award, should pay Rs. 1,100 to the first defendant herein out of which Rs. 334 should be appropriated towards the discharge of a mortgage, that the mortgage document should be returned to the plaintiff after endorsing the discharge, that the balance of the amount Rs. 766 should be taken by the first defendant and that he should execute a sale deed in favour of the plaintiff at the expense of the plaintiff. The document also contemplated, that if the plaintiff did not pay the sum of Rs. 1,100 within the period of three months prescribed in the award, the plaintiff would have no right to the immoveable properties concerned. On the other hand, if the plaintiff paid the sum of Rs. 1,100 but the first defendant declined to execute the document as provided in the award, the plaintiff should deposit the money into the Court and take action for obtaining a sale deed from the first defendant. Consequently, the terms of Exhibit A-10 make it absolutely clear that it was not creating or extinguishing any interest in immoveable property in praesenti, but merely provided for an obligation to execute a document in the future or to institute a suit for specific performance of the agreement. Mr. N.R. Raghavachari the learned Counsel for the first respondent having regard to the terms and language of Exhibit A-10 fairly conceded before me that the award could not be brought within the scope of Section 17(1) of the Act. Consequently it is clear that registration with regard' to the award is only optional and not compulsory as contemplated by Section 17(1) of the Act.
3. The next question for consideration is whether, with reference to such a document, whose registration is not obligatory under Section 17 and which falls Under Section 18 of the Act, recourse to Section 77 is available or not. In support of his contention that with reference to such documents whose registration is only optional under Section 13 of the Act, Section 77 would not be applicable, Mr. Balaswami relied on two decisions one of this Court, being proceedings printed in 6 Madras High Court Reports, appendix at page 9, and the other of a Full Bench of the High Court of Andhra Pradesh in Padala Satyanarayanamurthi v. Padala Gangamma and Ors. (1959) 2 An. An. W.R. 170 : A.I.R. 1959 A.P. 656, in whichthe proceedings of this Court referred to above were approved and followed. The proceedings of this Court are a very short one and are printed in 6 Madras High Court Reports, appendix, page 9. It is as follows:
Upon a question put by the Acting Civil Judge of Coimbatoie, referring for the opinion of the High Court the question whether the registration of a deed of division of immoveable property of the value of more than Rs. 100 executed by members of an undivided Hindu family, is compulsory under Clause (2), Section 17 of the Indian Registration Act XX of 1866, or whether such deed comes under the term 'Instrument of Partition' in Clause 7, Section 18 of the said Act, the High Court passed the following ruling: It appears to the High Court that the registration is optional and that, the Judge is therefore right in thinking that suit will not lie to compel the registration.
It will be immediately seen that it dealt with the Indian Registration Act XX of 1866, and did not contain any reason for the ruling given by the High Court. As far as the decision of the Full Bench of the High Court of Andhra Pradesh is concerned, the matter came in a different form. A will was presented at the Sub-Registrar's office for registration. On the objection taken by the widow and daughters of the deceased, registration was refused on 19th March, 1954 and the said order of refusal was confirmed by the District Registrar on appeal. Thereafter, the person concerned, who claimed to be a legatee under the will, filed a petition under Order 33, Rule 2, Civil Procedure Code, for permission to file the suit in forma pauperis. The judgment of the Full Bench does not show what were the reliefs that were prayed for in the said petition. Nonetheless, it is clear that it was not a suit under Section 17 of the Act but a more comprehensive one claiming relief on the basis of the will itself. The petition was rejected by the learned Subordinate Judge on the ground that the suit was not maintainable in view of the provisions of Section 77 of the Act. It is this view of the learned Subordinate Judge which was reversed by the Full Bench of the High Court of Andhra Pradesh. The point which they had to consider was whether, where a document like a will had been presented for registration and registration refused, the party had the exclusive remedy of resorting to Section 77 of the Act or he could approach the civil Court under the ordinary procedure for more comprehensive reliefs. After elaborately dealing with the decisions of the various Courts in this behalf, the High Court of Andhra Pradesh came to the conclusion that a suit under Section 77 of the Act was not the exclusive remedy available to a party as the plaintiff in that case and that he could have maintained a regular suit for more comprehensive reliefs. While dealing with that question the Full Bench referred to the ruling of this Court referred to already and also to the ruling in Ashuna Begum v. Kheerun Singh 10 Suth. W.R. 360, and approved of the same. Before I express my opinion on this decision of the Full Bench, it is necessary to refer to what was decided by the Court in Ashuna Begum v. Kheerun Singh 10 Suth. W.R. 360, referred to above, That also contained a short ruling without any discussion, and it is as follows:
Mr. Twidale, who appears for the respondent, has not attempted to support this decision which is clearly erroneous.
It was quite irregular to remit the case to the Court of first instance in order that the plaintiff might have the opportunity of making a fresh case.
Mr. Twidale, however, contends that the suit might have been entertained as a suit simply to compel registration. But there was no express covenant to register, nor at the time of executing the alleged lease was there any provision of law in force by which registration was necessary in order to give effect to such lease, from which an implied agreement to register might have been inferred.
We think the Munsif was right in dismissing the suit, and we restore his decree reversing that of the Principal Sudder Ameen with costs.
4. That case was decided on 10th November, 1868, and the case itself is shown as case No. 473 of 1868. Therefore, that case also must have been decided under the Indian Registration jAct of 1866. Though the Full Bench of the Andhra Pradesh High Court approved of these two decisions, the Full Bench, just like the ruling and the decision referred to above, did not discuss the statutory provisions or refer to any principle on the basis of which it could be held that a suit under Section 77 was not available in respect of a document whose registration was not compulsory, but only optional.
5. On the other hand, having regard to the provisions contained in the Act, and in particular the very general terms in which the sections have been couched, I am of the opinion that Section 77 will be applicable even to a document whose registration is only optional and not compulsory. Part IV of the Act deals with the time of presentation. Part V deals with the place of registration. Part VI deals with presentation of documents for registration. Section 32 of the Act which occurs in this part states that every document to be registered under the Act, whether such registration be compulsory or optional, shall be presented at the proper registration office by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order. Section 33 deals with powers of attorney recognised for the purpose of Section 32. Section 34 deals with the enquiry to be conducted before registration by a registering officer. Section 35 deals with the procedure to be followed, where the execution of the document is admitted or where the execution of the document is denied. Sub-section (1) of Section 35 deals with a case where the execution of the document is admitted and provides that once such execution is admitted the registering officer shall register the document as directed in Sections 58 to 61 inclusive. Sub-section (2) says that the registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be or for any other purpose contemplated by the Act, examine any one present in his office. Sub-section (3) deals with the consequence of denial of execution. It provides that, if the execution is denied, the registering officer shall refuse to register the document as to the persons so denying, and where such officer, is a Registrar, he shall follow the procedure prescribed in Part XII. I have already referred to the fact that Section 32 expressly refers to a document being one whose registration is compulsory or optional. Section 35 to which I have made reference is very general in terms and is not confined to a document whose registration is compulsory. Part XII referred to in Section 35, contains Sections 71 to 77 and deals with refusal to register a document. Section 71 provides that where a Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district shall make an order of refusal and record his reasons for such order in his book No. 2 and endorse the words 'Registration refused' on the document. Section 72 is important, and Sub-sections (1) and (2) thereof are as follows:
(1) Except where the refusal is made on the ground of denial of execution an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or Optional) to the Registrar to whom such Sub-Registrar is subordinate, and if presented to such registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.
(2) If the order of the Registrar directs the documents to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in Sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration.
6. The most significant thing to note in Sub-section (1) of Section 72 is that it expressly contains a statement 'whether the registration of such document is compulsory or optional' and it provides for an appeal where the refusal to register is made on a ground other than the ground of denial of execution. Section 73 is identical with Section 72 except that this section deals with refusal to register a document on the ground that any person by whom it purports to be executed or his representative or assign denies its execution, and provides for an application to the Registrar to establish the applicant's right to have the document registered instead of an appeal to him. Section 74 deals with the power of the Registrar to whom an application is preferred under Section 73 or to whom a document is presented for registration, and states that the Registrar should enquire whether the document has been executed, and whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration. Sections 75 and 76 deal with the orders that the Registrar can pass, who conducted the enquiry under Section 74. Section 75 says that, if the Registrar finds that the document has been executed and the said requirements have been complied with he shall order the document to be registered. Section 76 says that every Registrar refusing to register a document except on the ground that the property to which it relates is not within his district or that the document ought to be registered in the office of a Sub-Registrar, or to direct the registration of a document under Section 72 or Section 75 shall make an order of refusal and record the reasons for such an order in his book No. 2, and on application made by any person executing or claiming under the document, shall, without unnecessary delay, give him a copy of the reasons so recorded. Sub-section (a) of Section 76 states that no appeal lies from any order by a Registrar under Section 76 or Section 72.
7. It is after these provisions Section 77 appears in the statute book and it is as follows:
(1) Where the Registrar refuses to order the document to be registered, under Section 72 or, Section 76, any person claiming under such document, or his representative, assign or agent, may, within 30 days after the making of the order of refusal, institute in the civil Court, within the local limits of whose original jurisdiction is situate the office on 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.
8. There is nothing in the language of Section 77 to confine it only to a document whose registration is compulsory. The language of Section 77 is general enough to take in a document whose registration is compulsory as well as a document whose registration is only optional. Apart from this, there is one other intrinsic evidence in Section 77 itself to make it applicable to a document whose registration is only optional. I have already referred to Section 72 which expressly uses the expression, 'Whether the registration of such document is compulsory or optional'. Section 77 itself refers to Section 72 in the opening part itself. Consequently by the express language of Section 77 itself, the section is applicable to any document, whether its registration is compulsory or optional. Thus, on a reading of the provisions of the Act, I come to the clear and definite conclusion that a suit under Section 77 will lie in respect of any document that may be registered under the Act, whether its registration is compulsory or only optional. Apart from the specific provision, I am also unable to see what grievance a person, whose execution of a document has been admitted or established, can have when the document is sought to be compulsorily registered. No doubt, where the registration of a document is not compulsory under Section 17 of the Act, such person may not be under an obligation to take steps to have the document registered so as to make the title of the other party perfect or strong. But, when such person is not subjected to any inconvenience or expense, I am unable to see any real grievance on the part of such person in having the document registered, even though the law does not require the document to be compulsorily registered. Section 34 deals with the registering officer conducting an enquiry and issuing notice to the person, who has executed the document, to appear before him. But that provision is subject to Sections 41, 43, 45, 69, 75, 77, 88 and 89 of the Act. Even when the executant declines to appear before the Sub-Registrar, and the Sub-Registrar refused registration, certainly it is open to the Registrar on application to conduct an enquiry to satisfy himself whether the document has been executed by the person by whom it purports to be, and, having been so satisfied, order its registration. Further, the expenses of the registration have to be borne by the person who presents the document for registration, since the same are payable on presentation of the document under Section 80 and if the executant is not willing to have the document registered, and the other side insists upon the document being registered, the executant cannot have any real grievance. Hence, both on the language of the statutory provisions and as a matter of principle, I am unable to see anything in Section 77 of the Act to restrict its operation only to documents whose registration is compulsory.
9. Then an explanation is called for with reference to the ruling of this Court referred to already, and the ruling in Ashuna Begum v. Kheerun Singh 10 Suth. W.R. 360. I have already referred to the fact that the Madras ruling does not give any reasons whatever, and the judgment in Ashuna Begum v. Kheerun Singh 10 Suth. W.R. 360, is also a summary one without giving any reason. These two decisions have been considered by the Calcutta High Court in Topa Bibi v. Ashanulla Sardar I.L.R. (1899) Cal. 509, and were distinguished. The learned Judges, in that case, state:
We think it clear that under the present Registration Act, III of 1877, the suit lies. Section 17 of the Act says 'that certain documents shall be registered'. Section 16 says ' that certain other documents may be registered'. Section 32 says that 'every document to be registered...whether such registration be compulsory or optional, shall be presented...by some person executing or claiming under the same'. The effect seems to be that any person therein described may exercise the option given by Section 18. The following sections lay down rules as to whose presence is ordinarily necessary to justify registration. And Sections 36 to 39 provide for compelling the attendance of such persons as well as of witnesses. Part XII of the Act, dealing with the mode of refusal to register and its consequences with appeals against such refusals, and in the last resort a suit in a civil Court, is perfectly general in its terms.
10.After having made the above observations, with reference to the decisions referred to already, this is what the Calcutta High Court points out:
Two cases were cited as authority for the contrary view - Ashuna Begum v. Kheerun Singh 10 SW.R. 360, and an Anonymous case (1870-71) 6 M.H.C.R. Appendix 1, from the Madras High Court Reports. As to those cases it is enough to say that the Judges had in them to deal with a different Act from that now before us, and especially different in this that it did not expressly give a right of suit as the present Act does. Under the present Act we entertain no doubt that the suit lies. Any other conclusion would lead to very grave consequences; for since the passing of the Transfer of Property Act, the omission to register documents of the kinds mentioned in Section 18 of the Registration Act may lead to much more serious results than before.
11. It is perfectly correct that the two decisions were dealing with the Indian Registration Act XX of 1866 and the Calcutta High Court in Topa Bibi v. Ashanvlla Sdrdar I.L.R. (1899) Cal. 509, was dealing with the Indian Registration Act of 1877. However, the other point of distinction pointed-out by the learned Judges of the Calcutta High Court, does not appear to be correct. Though literally a suit has not been provided for in the Indian Registration Act XX of 1866, in that Act instead of a suit, a petition to the District Court had actually been provided for. Section 82 of that Act deals with the reasons to be recorded by the registering officer for refusing to register a document. Section 83 provides for appeal to the Registrar against the order of a Sub-Registrar refusing to admit a document to registration. Thereafter Section 84 occurs in the statute book and it runs as follows:
If a Registrar or Registrar-General shall under Section 82 make an order of refusal to register any document referred to in Section 29 or if a refusal to register shall have been made under Section 15 of the Act XVI of 1964, or if he shall under Section 83 on appeal make an order of refusal to direct the registration of such document it shall be lawful for any person claiming thereunder, his representative assign or agent authorised as aforesaid, within 30 days after the making of such order of refusal, to apply by a petition to the District Court in order to establish his right 'to have such document registered.
The petition shall be in the form contained in the schedule to this Act, or as near thereto as circumstances will permit, and shall be accompanied by copies of the reasons recorded under Sections 82 and 83, and the statements in the petition shall be verified by the petitioner in manner required by law for the verification of plaints, and the petition shall, where a stamp, is required by law, bear a stamp of eight annas, and may be amended by permission of the Court.
The document shall be admissible in evidence on the presentation and hearing of the petition, anything hereinbefore contained to. the contrary notwithstanding.
The Court shall fix a day for the hearing of the petition not less than two days after the service next hereinafter mentioned, and shall direct a copy of the petition, with a notice at the foot thereof of the day so fixed, to be served on the Registering officer and on such other persons (if any) as the Court shall think fit$ and the provisions of the Civil Procedure Code as to the service and endorsement of summons shall apply, mutatis mutandis to copies of petitions under this section.
12. There are a few other consequential provisions in the section, but it is unnecessary to refer to them. What I wish to point out is that though Section 84 of the Indian Registration Act XX of 1866, does not provide for a suit, it certainly provides for a petition to the District Court for compelling registration and the efficacy of that remedy cannot be said to be in any way less than that of a suit. But the point to be noticed is that Section 82 of that Act does not contain an express statement 'Whether the registration of such document is compulsory or optional' as contained in Section 72 of the Act; to which reference has been made in Section 84 of that Act. Consequently, having regard to the scheme of the present Act, which, in this behalf is different from the scheme of the Indian Registration Act XX of 1866, I am unable to hold that the ruling printed in 6 Madras High Court reports, Appendix IX, or the decision in Ashuna Begum v. Kheerun Singh 10 Suth. W.R. 360, governs the construction of the present Section 77 of the Act.
13. As far as the decision of the Full Bench of the High Court of Andhra Pradesh is concerned, it is enough to point out that the Full Bench was considering an entirely different situation, as to the remedy under Section 77 of the Act being exclusive or not, and they were also considering a question with regard to the registration of a will as against any document inter vivos. Therefore, in my opinion, this decision of the Full Bench of the Andhra Pradesh High Court does not render any assistance for a true construction of Section 77 of the Act.
14. As against this I have already referred to the decision of the Calcutta High Court in Topa Bibi v. Ashanulla Sardar I.L.R. (1899) Cal. 509, dealing with the corresponding provisions of the Registration Act of 1877.
15. There is a decision of this Court itself in Amirdam, minor by her guardian and maternal uncle Mutkakumar Chetti v. Muthukumar Chetti : (1903)13MLJ303 . That judgment appears to have been rendered on 2nd February, 1903, and therefore it must have dealt with the Indian Registration Act III of 1877. There also there is not much of a discussion, but the relevant passage in the judgment is as follows:
The document so far as it appoints a guardian is not a document relating to immoveable property within the meaning of Section 21 of the Indian Registration Act any more than a power of attorney authorising an agent to collect rents of immovable property is such a document. Registration, therefore, of that part of the document can be compelled as against the legal representatives of the executant, if the document was-really executed by the executant just as its registration could have been enforced against the executant himself, if alive.
16. This decision will give an indication that the Bench of this Court in that case took the view that, even with regard to a document whose registration was not compulsory, recourse could be had to the provisions contained in the section corresponding to Section 77 of the present Act, for having the document compulsorily registered through Court.
17. Yet another decision is that of the Calcutta High Court in Chandra Kishore Munshi v. Direndranath Sanyal (1905) 1 Cal.L.J. 126. The judgment appears to have been rendered on 2 1st August, 1894. That case also arose under the Indian Registration Act III of 1877. The argument that was advanced in that case, which is referred to at page 131 of the report, was this, that 'as the agreement was a document, registration of which was optional, it coming within Clause (b) of Section 17, the defendant was under no obligation to appear and admit execution, and that the Sub-Registrar had no power to put in force the provisions of Part VII of the Act to compel his attendance, and that therefore, the defendant could not be said to have refused to admit execution and that, consequently, no suit to compel registration would lie' Dealing with that argument, the Bench pointed out (page 132):
The third contention was not seriously pressed and when we find that Part VI of the Act of presenting documents for registration deals with documents the registration of which is either compulsory or optional, we have no hesitation in holding that the provisions of Part VII for 'enforcing the appearance of executants and witnesses' are applicable to the case of an executant of a document the registration of which is optional and that the refusal of such an executant to admit execution gives rise to a cause of action under Section 77.
18. This reasoning is fully in accordance with the reasoning I have given for holding that Section 77 of the Act is general in terms and speaks of a document whose registration is compulsory as well as of a document whose registration is only optional.
19. For these reasons I am clearly of the view that the fact that Exhibit A-10, award, is not one coming within the scope of Section 17(1) of the Act, does not prevent the plaintiff herein from filing a suit under Section 77 of the Act to have the document compulsorily registered.
20. Consequently, the second appeal fails and is dismissed. There will be no order as to costs. No leave.