Difference

Distinction between a Suit under Section 77 of the Registration Act and a Suit for specific performance of a Contract of sale

Tanmoy

Scope of a suit under Section 77 of the Registration Act and of the distinction between a suit under Section 77 of the Registration Act and a suit for specific performance of a contract of sale. The suit that is contemplated by Section 77 of the Registration Act is one for a decree directing the particular document executed between the Parties to be registered. The parties to a suit under Section 77 are only those who are parties to the document and not a third party. The scope of the suit is limited to an inquiry on two points only, namely, whether the document was executed by the defendant and whether the requirements of law as to presentation have been complied with by the person presenting the document for registration, see Ibrahim v. Mt. Sugrabai, AIR 1924 Nag 77 (D).

In a suit instituted under Section 77 of the Registration Act, the Court is not concerned with the validity or binding nature of the document apart from its genuineness. The Court will not consequently examine such defences as that the document was cancelled, or that the document was executed by the guardian of a minor in contravention of his powers, or that the document was void for want of consideration, or that the document was executed by fraud or undue influence. In a suit under Section 77, the only relief that a plaintiff can get is one of a decree directing the registration of the particular document executed between the parties. No other relief can be granted to the plaintiff and no other claim can be coupled with the prayer to enforce registration. A suit for specific performance of a contract of sale is not a suit for a direction to register a deed.

It is a suit based on the original cause of action which is independent and separate from the cause of action arising from the refusal of a party to register a document executed by one party in favour of the other. The remedy which the plaintiff claims in the suit is for the specific performance of the contract by executing a new and fresh document for recovery of actual possession. It cannot, therefore, be said that Section 77 of the Registration Act in terms or by necessary implication bars a suit for specific performance of a contract embodied in a deed for the registration of which a decree could be obtained in a suit under Section 77.

Now the remedy of specific performance is an equitable remedy. The jurisdiction to decree specific performance is discretionary and the Court is not bound to grant specific performance in every case in which the agreement has not been carried out in its entirety. The existence of an alternative effective remedy and the conduct of the party applying for specific performance are always important elements’ for consideration. Thus the question whether a suit for specific performance is or is not maintainable in view of the provisions of Section 77 of the Registration Act would depend mainly on the nature of the pleadings in the suit for specific performance and the facts determined by the Court in that suit, If for example on the pleadings of the parties, the controversy in a suit for specific performance is confined only to the points that could be adjudicated in a suit under Section 77 of the Registration Act, then clearly the suit for specific performance would not be maintainable.

If, on the other hand, in a suit for specific performance, the defendant while admitting or denying the execution of an unregistered document embodying the contract between the parties, raises pleas as to the validity of the contract such as fraud, undue influence or want of consideration, then clearly the defendant cannot turn round and say that the plaintiff should have resorted to the remedy under Section 77 of the Registration Act. Again, if a vendor, after having executed a sale-deed in favour of a vendee and without getting it registered, sells the same property to another person subsequently and executes a registered sale-deed in his favour, then in a suit under Section 77 of the Registration Act, the plaintiff cannot obtain complete relief.

When there is a sale of the same property in favour of a prior and subsequent transferee, then as pointed out by the Supreme Court in Durga Prasad v. Deep Chand, AIR 1954 SC 75 (E), the proper form of decree in a suit for specific performance brought by the prior transferee, in case he succeeds, is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior transferee. In a suit under Section 77 of the Registration Act, the plaintiff could not have claimed and obtained the relief of directing the subsequent transferee to join in the conveyance so as to pass on the title which resides in him. Now, here the defendant pleaded that the plaintiff did not pay Rs. 75/- within the time agreed and thus failed to perform the contract and so the contract was not binding on him. The plaintiff sought relief as against Gulabsingh who had purchased the property by a registered sale-deed subsequent to the deed which the defendants Prithvisingh and Bherusingh had executed in favour of the plaintiff on 6-11-1946.

The Plaintiff also claimed the alternative damages and also the relief of possession of the house. All these questions were beyond the scope of a suit under Section 77 of the Registration Act. It cannot, therefore, be contended that the plaintiff’s suit for specific performance in effect covered the same ground as in a suit under Section 77 of the Registration Act and that he could have obtained complete relief, in a suit under Section 77 of the Registration Act. In my view, in this case the plaintiff is not precluded from bringing a suit for specific performance even though he did not file a suit under Section 77 of the Registration Act for the registration of the document which the vendors had executed in his favour.


 

  • Section 77 in The Registration Act, 1908

77. Suit in case of order of refusal by Registrar.—

(1) Where the Registrar refuses to order the document to be registered, under section 72 or a decree section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty 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 in 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 documents shall be receivable in evidence in such suit.