1. This is an appeal by the plaintiff in a suit instituted by him on the 21st December 1912 for recovery of possession of land on declaration of title by purchase or on specific performance of a contract of sale. The case for the plaintiff is that the disputed property belonged to the first four defendants, that he obtained a conveyance from them on the 30th November 1912 and that his vendors had not only failed to register the document and to place him in possession but had transferred the property to the 5th defendant. The latter conveyance bears date the 29th November 1912, but the plaintiff asserts that the document is collusive and has in fact bean antedated. The Court of first instance found on the merits in favour of the plaintiff and decreed the suit, The Court held that the sale to the 5th defendant was collusive and without consideration and that although it purported to be anterior to the agreement whereon the plaintiff relied, the transaction took place really after the institution of this suit. Upon appeal the Subordinate Judge has reversed the decision of the Trial Court and has dismissed the suit, on the ground that the plaintiff was not competent to seek registration of the conveyance executed in his favour as he had not followed the provisions of the Indian Registration Act to compel registration of the document. In support of this view, the Subordinate Judge has relied upon the decisions in Edun v. Mahomed Siddik 9 C. 150 : 11 C.L.R. 440 : 5 Shome L.R. 35 : 4 Ind. Dec. (N.S.) 752; Lakhimoni Chowdhrain v. Akroomoni Chowdhrain 9 C. 851 : 12 C.L.R. 527 : 4 Ind. Dec. (N.S.) 1217 and Sheikh Rahmatulla v. Sheikh Sariutulla Kagchi 10 W.R. 51 : 1 B.L.R.F.B. 58 : 4 Mad. Jur. 102 : 1 Ind. Dec. (N.S.) 93. In our opinion, the decree of the Subordinate Judge cannot possibly be upheld.
2. The plaintiff framed his suit in the alternative. As regards the claim to enforce registration of the document executed in his favour by his vendors he was, no doubt, bound to follow strictly the procedure prescribed by the Indian Registration Act before he could institute a suit under Section 77 to compel registration. But as regards the alternative claim to enforce specific performance of the agreement to sell there was really no answer to the suit. Although the vendors had executed the document, they could not be deemed to have completely performed their part of the agreement. The agreement in essence was not merely to execute a conveyance which until registered would, be inoperative in law, but to transfer the full title from themselves to the plaintiff as purchaser. Such title could be transferred only by means of a registered instrument; consequently, the execution of the conveyance not followed by registration could not be regarded as fulfilment of the contract. The true position then is that the agreement to transfer remained unperformed and the plaintiff was entitled to proceed against his vendors to compel them to fulfil their contract. This is not opposed to the decision in Sheikh Rahmatulla v. Sheikh Sariutulla Kagchi 10 W.R. 51 : 1 B.L.R.F.B. 58 : 4 Mad. Jur. 102 : 1 Ind. Dec. (N.S.) 93 as the plaintiff does not seek to found his title on the unregistered conveyance which is inoperative in law.
3. It was necessary for the plaintiff to join the 5th defendant as a party to the suit properly framed for specific performance. That defendant claimed title under a conveyance ostensibly anterior in date to the agreement which is the foundation of the alleged title of the plaintiff. If the conveyance was in reality anterior to the agreement, the plaintiff has clearly no enforceable claim against that defendant. But if, on the other hand, the conveyance in favour of the 5th defendant has been antedated, the plaintiff can enforce his claim not merely against his vendors but also against that defendant, provided it is established that the latter has taken with notice of the agreement with the plaintiff. This relief could not have been obtained in a suit framed and instituted in accordance with Section 77 of the Indian Registration Act. We cannot thus hold that the only remedy, of the plaintiff was a suit of that description because the consequence would be that the plaintiff if successful in such a litigation would be driven to institute a second suit against the 5th defendant for establishment of his title and for recovery of possession. To avoid multiplicity of litigation, it was open to the plaintiff to frame his suit as he has done and to seek relief as well against his vendors as against their alleged transferee.
4. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside and the case remitted to him in order that he may re-hear the appeal on the merits. The question for investigation will be, whether the plaintiff has an enforceable claim against the 5th defendant on the basis of the agreement of sale alleged to have been made with him on the' 30th November 1912. In this connection the question raised in the fourth issue will require consideration. The appellant is entitled to his costs both here and in the lower Appellate Court.