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Second Appeal No. 266 of 1957, decided on 7th December 1961.

(a) Registration Act (XVI of 1908),

Ss. 77 & 49 read with S. 12, Specific Relief Act (I of 1877)‑Suit for specific performance of contract to sell immovable property under unregistered document Cause of action in suit for specific performance distinct from that under Registration Act‑Executed document whether presented for registration or not or whether suit under S. 77 had failed imma terial‑Suit for specific performance of contract for registration barred‑Suit under S. 77 relates to registration of document whose registration refused‑Court's enquiry in suit under S. 77 not concerned with validity or legal effect of document but confined to: whether document has been executed and requirements of Registration Law complied with‑Decree affects only document does not affect transaction‑Refusal to decree cannot affect contract of sale remaining unperformed till deed registered‑Registration refused‑Claimant may sue for specific performance of contract instead of appealing to Registrar under Registration Act, 1908.

Reference to larger Bench‑Proper only when conflict of decisions in same High Court or in High Courts of same state.

Shahabuddin Ahmed for Appellants.

Md. Nurul Huda for Respondents.

Md. Yakub Hossain for the Deputy Registrar.

‑This appeal by the defendants arises out of a suit for specific performance of a contract of sale of the disputed immovable property against defendants Nos. 1 to 22 and registration of the executed kabala or, in the alternative execution of afresh kabala and registration thereof and for confirmation of plaintiff's possession in the disputed land.

2. This appeal being valued at below Rs. 2,000 at first came up for hearing before a Single Bench and my learned brother Hasan, J. referred the case for disposal by a Divisional Bench as it involves a question of law on which there are conflicting decisions, namely, whether the suit for specific performance of contract for sale and execution and registration of a fresh kabala is maintainable in view of section 77 of the Indian Registration Act. Hence the case has come up before this Bench for hearing.

3. Facts of this case as alleged by the plaintiff, relevant for the purpose of this appeal, are as follows :‑

4. There was a contract for sale of the disputed land between the plaintiff and his sister, defendant No. 1 for a sum of Rs. 2,000 and in pursuance of that the defendant No. 1, on receipt of the consideration money, executed the kabala putting her thumb impressions in the stamp paper and signing her name by her husband below each of the thumb‑impressions in the Registration Office of Bhanga; but at the time for registration was up on that day the kabala could not have been registered and the parties came back home. Subsequently as the defendant No. 1 was not getting the kabala registered the plaintiff filed the kabala for registration on commission. The kabala was sent to Shibchar Registration Office within the jurisdiction of which defendant No. 1 resides, for registration on commission, but it was returned by the Sub‑Registrar with the endorsement that it could not have been registered for want of identification. Thereupon the registration was refused. The plaintiff filed an appeal which was rejected as time‑barred. Hence the suit for specific performance of contract and registration of the kabala executed, or, in the alternative, for execution and registration of afresh kabala and for confirmation of plaintiff's possession in the disputed land which he has got in pursuance of the contract for sale.

5. The suit was contested by the defendants Nos. 1 to 13 and 16 to 21 by a joint written statement. They denied the alleged con tract for sale with the plaintiff and pleaded bar of limitation and maintainability of the suit. Their case is that the plaintiff inten tionally defaulted once and again in payment of rent of the ejmali properties of the plaintiff and his sister, defendant No. 1, to purchase fraudulently their ejmali properties in rent sale and to defraud the defendant No. 1, who saved them every tinge from sale by snaking deposit and being thus disgusted at the defaulting conduct of her brother the defendant No. 1 settled to sell the land to one Nawab Ali and went to Bhanga and purchased stamp papers, but as the Sub‑Registrar was absent execution of the kabala could not have been done ; but as she took Rs. 200 from Nawab Ali, she handed over the blank stamp papers, with her thumb‑impression and her signature by her husband to Nawab Ali. Subsequently when Nawab Ali was not willing to purchase the land the defend ant transferred them to the other defendants for Rs. 4,500 In the meantime the plaintiff persuaded and gained over Nawab Ali and obtained those blank stamp papers on which he manipulated the disputed kabala and characterized the disputed kabala as fraudulent, forged and without consideration.

6. The defendants Nos. 2 to 22 further pleaded that they were bona fide purchasers for valuable consideration without notice of the plaintiff's contract or of his kabala.

7. Both the Courts below found that there was a contract for sale of the disputed land between the plaintiff and his sister, defendant No. 1, and in pursuance of that contract the defendant No. 1 executed the disputed kabala on receipt of the stipulated consideration money, but the trial Court relying on the decision of the Madras High Court in the case of Satya Narayana v Chinna Venkata Rao (I L R 49 Mad. 302), dismissed the suit holding that the suit for the specific performance of contract was not maintainable on account of the provisions of section 77 of the Registration Act under which the plaintiff should have filed a suit for getting the executed kabala registered. On appeal the learned Subordinate Judge took a contrary view relying on the decisions of the Calcutta. High Court in the cases of Surendra Nath Nag Chowdhury v. Gopal Chunder Ghosh (12 C L J 464 (467)), Nasiruddin Midda v. Bipta Das and others (27 C L J 538) and of the Dacca High Court in the case of Hafez Ahmed v. Obedur Rahman and others ((1955) 7 D L R 263), which 12c prefers to that of the Madras High Court reported in I L R 49 Mad. 302 as they are more appropriate to the facts of the present case than that of the Madras case where the suit for specific performance of the contract was against the executant alone, whereas in the present case the suit was not only against the executant but also against her subsequent transferees and decreed the suit holding that the suit for specific performance of contract for sale would lie. Hence this second appeal.

8. This appeal, as stated above, at first came up for hearing before Hasan, J. as the valuation of the appeal does not exceed Rs. 2,000. The learned Judge on account of conflicting view mentioned above has referred the case to be placed before a larger Bench. Hence this appeal has come up before us. There is no conflict of decision in this High Court nor in any of the two High Courts in Pakistan, rather they are unanimous, vide 7 D L R 263 and P L D 1953 Lah. 87.

9. As to whether in such circumstances the reference is justified, I like to quote the following passage from the judgment of Sir Murray Coutts Troiter, Kt., Chief Justice in the Madras case, reported in I L R 49 Mad. 302 at 308:

"But unfortunately the matter is covered with confliction authority. The authorities in Madras appears to differ from authorities in other parts of India. In matter which is open to divergence of view, my opinion is that this Court should follow its own cursus curiae unless it is of opinion that the former decisions of the Court are clearly wrong. I do not think, if it agrees with those decisions, that it ought to harass the parties with any argument before a Full Bench merely because of different views in other Court."

At the same time, I am not unmindful of a reference to a Division Bench in a similar circumstance in Patna High Court in the case of Jhamon Mahton v. Amrit Mahton and others (A I R 1945 Pat. 62), but that may be justified as the conflict was between two High Courts of India i.e., within the same state."

10. Be that as it may, the point involves in his case is whether in the facts and circumstances of the case, the suit for specific performance of contract for sale is maintainable in view of the provisions of section 77 of the Registration Act. There are conflicting authorities on the point. This conflict is between the Madras High Court on the one side and the Calcutta, Allahabad, Patna, Dacca and Lahore High Courts on the other. Madras High Court in the case of Venkatasami v. Kristayya (44 1 C 361), followed in the case of Satya Narayana v. Chinna Venkata Rao, held that if, on denial of execution by the vendor, a Registrar refuses to register a sale‑deed presented by the purchaser for registration, the sole remedy of the purchaser is to file a suit as provided by section 77 of the Registration Act within 30 days of the refusal and not a suit for specific performance of the contract, such as the execution of a new sale‑deed and registration thereof. The other High Courts mainly in the case of Surendra Nath Nag Chowdhury v. Gopal Chandra Ghosh, Nasiruddin Midda v. Bipta Das and others, same as Nasiruddin Midda v. Shidoo Mia (7 A L J 887), Amer Chand v. A'athu (A I R 1932 All. 96), Bala Kishan Das and others v. Bachan Pandey (P L D 1953 Lah. 87), Jhaman Mahton v. Amrit Mahton and others, Hafez Ahmed v. Obedur Rahman and others, Shah Muhammad v. Inayat Ullah and others took the contrary view.

11. In the case of Surendra Nath Nag Chowdhury v. Gopal Chandra Ghosh it has been held:

"Although a document, which has been executed, is inopera tive in law and wholly ineffectual to create title in the intended lessee, it is nevertheless evidence of a valid agreement to execute a lease and consequently forms the foundation of an action for specific performance."

This decision has been criticized in the Madras case reported in I L R 49 Mad. 302 p. 309 as " a very vicious method of con struction to say that a document, which purports to be one thing, is to be allowed to be treated when it is found imperfectly to contain what it purports to be as a valid document of a different order altogether."

12. The next Calcutta case Nasiruddin Mida v. Bihta Das and others, where the document was in the same stage as in the aforesaid Madras case, namely, it had been executed but one of them refused to acknowledge the right to have it registered and it has been held ‑

"As regards the claim to enforce registration of the document executed in his favour by his vendor, lie 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 agree ment 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 instru ment; consequently, the execution of the conveyance, not followed by registration, could not be regarded as fulfillment 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 fulfill their contract."

This view is also taken by the Allahabad High Court in the case of Amer Chand v. Nathu, which is as follows :‑

"His (plaintiff's) grounds of appeal are that the substantial relief sought by him was tire specific performance of the contract for sale and for possession of the property. We see no answer to this appeal. No defence to the action was disclosed by the defendants and in view of all the facts the Courts of first instance as well as the lower appellate Court ought, in our opinion, to have granted a decree for specific performance The Court of first instance was wrong in passing an order (that is no doubt true) for registration of the sale‑deed which was executed by the guardian of the defendants in view of the provisions of the Registration Act. But it appears to us that the Court has jurisdiction to direct performance of the contract and to require that the defendants should do all necessary for the purpose of fulfilling the obligation into which through their guardian they had entered and that the plaintiff is entitled to have a fresh sale‑deed executed by all necessary parties and to have the document so executed registered."

This view of the Calcutta and Allahabad High Courts has been criticised by the learned Chief Justice of the Madras High Court in the case reported in I L R 49 Mad. 302 p. 309, as follows:

"The reasoning of the learned Judges of the Calcutta High Court appears to this. The undertaking of a person who enters into a contract for sale of real property is to do everything whereby an operative agreement in law can be effected. He has not done everything if he failed in an instrument where the obligation is cast upon him to obtain its registration and, therefore, a step in the creation of the legal relation of purchaser and vendor being wanting, you can compel the person who has taken that step to take it. The answer appears to me to be very simple. Section 77 of the Registration Act not only tells you how you are to do that but says that if you want to effect that purpose of having registration forcibly carried out by a decree of that Court, you must do it within 30 days. It seems to me that these decisions in Calcutta and Allahabad in effect take upon themselves by a side wind to get rid of the period of limitation strictly imposed by the express words of the statutes. To my mind no judicial decision has any right to temper with a thing enforced and enjoined by a statute whose construction is free from possible doubt. The most that can be said is that the remedy given by the statute is not intended to be only one. It is almost impossible to believe that the Legislature can have intended that there should be a direct and an indirect way of effecting the same thing and that the period of limitation applic able to them should be entirely different."

13. Further reason given in support of the view taken in the case reported in I L R 49 Mad. 302 p. 314 is that laches will defeat all equitable claims:

"And it must be remembered that although in this country the remedy of specific performance is a statutory remedy, it nevertheless is simply a crystallization into statutory form of an equitable remedy to which laches, as it is to all equitable claims, an answer. How can it be said that a man who is given an express statutory remedy by an Act of Legislature under section 77 of the Registration Act and has failed to take advantage of it, has not been guilty of laches and entirely free from blames passes my comprehension."

14. Next case of Allahabad High Court is reported in A I R 1932 All. 96 where it has been held that mere failure of a suit under section 77 or its in fructuous termination cannot operate as res judicata in a subsequent suit brought for specific performance of the original contract and for recovery of possession of the immovable property. The latter suit is based on the original cause of action which was independent and separate from the cause of action arising from the refusal to register the document executed and that the remedy, which the plaintiff claims in the suit for specific performance of contract by executing a new and fresh document and for recovery of possession, which relief he could not have claimed in the previous suit under section 77 of the Registration Act. Section 77 does not provide the only exclusive relief to the transferee who paid the consideration and earnest money on the promise of the vendor to transfer to him the immovable property. There is absolutely no reason why he should not be able to enforce the contract specifically and obtained actual possession.

15. In coming to this conclusion the learned Judge followed the Calcutta and earlier Ailahabad and Patna decisions.

16. In case of Hafez Ahmed v. Obedur Rahman and others, it has been held that a contract for sale of immovable property cannot be said to have been specifically performed till the kabala is validly presented for registration and that once it is established that the contract was an executor contract and not an executed contract there is hardly any doubt that it would be attracted by section 27 (b) of the Specific Relief Act.

17. So also the Lahore High Court in the case of Shah Muhammad v. Inayat Ullah and others, took the same view as follows:

"When the vendor executes a deed of sale but it remains unregistered and the vendee sues for specific performance of the original contract the question that is to be considered is whether there is subsisting contract for sate or not. If the contract be subsisting the vendee has a statutory right subject to the provision of the Specific Relief Act to have the contract performed. The suit cannot be defeated merely because the deed executed had not been registered."

In some of these latter cases, Madras cases reported in I L R 16 Mad. 341 and I L R 49 Mad. 302 have been considered but not followed.

18. Even in the Madras case reported in I L R 49 Mad. 302 at page 313, maintainability of the suit for specific performance has been upheld in cases where the defendant held the document fraudulently or stolen it from the plaintiff and concealing it from the plaintiff for the purpose of preventing registration or in cases where soon after the execution, the document in question is lost or destroyed by fire before registration. It was so held on the ground that as things stood at the time of the suit he had nothing so ever to register. But that does not make any difference in principle on which suit for specific performance of contract was held to be not maintainable, in respect of an executed document which could not have been registered because of the refusal of the execution or on which suit for specific performance of contract for sale of immovable property is held to be maintainable. It is the original contract for sale which is sought to be specifically enforced by the suit and not the registration of the executed document to be barred under the Registration Act. It seems that there is some confusion between the two, because of the fact of the case reported in I L R 49 Mad. 302 where, of the several executants, only one, a Hindu widow, having little interest in the disputed property objected registration and did not appear to admit the execution and therefore, the document, so far as she was concerned, was not registered which was followed by a suit for specific performance of contract against all the executants. There is no doubt and there is no difference of opinion that al suit for specific performance of contract for registration of the very executed document is barred because of the specific provision f in the Registration Act. There again after the registration of the executed document there is nothing to be specially enforced by a suit. All the reasons given by the Madras High Court may be aptly applicable in suit only for specific performance of the implied contract for registration of the executed document and the observation as to the inadmissibility of the executed document as foundation of a suit for specific performance of contract for sale of immovable property might have been correct as has been pointed out, by the subsequent Privy Council decision in the case of James R. R. Skinner v. Robert Hercules Skinner and others (A I R 1929 P C, 769), where their Lordships held that an agreement for the sale of immovable property was a transaction "affecting" the property within the meaning of section 49 of the Registration Act inasmuch as, if carried out, it will bring about a change of ownership and to allow a document, which did itself create such an interest, to be used as the foundation of a suit for specific performance was an evasion of the Registration Act. Their Lordships have not said anything about the maintainability of the suit for specific performance of the contract, if the contract can be proved independently of the document executed.

19. Soon after the Privy Council decision in 1929, section 49 of the Registration Act has been amended and a proviso was added to the following effect :‑

"Provided that an unregistered document affecting the immovable property and required by this Act or by Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter 2, Specific Relief Act or as evidence of part perform ance of a contract for the purpose of section 53‑A, Transfer of Property Act, 1882 or as evidence of any collateral transaction not required to be effected by registered instrument."

20. After this amendment of section 49 of the Registration Act which specifically provides for specific performance of contract on the evidence of an unregistered document there can be hardly any doubt as to the maintainability of a suit for specific perfor mance of a contract for sale of immovable property if the executed document is not registered.

21. There can be hardly any difference in effect whether the document executed is presented for registration or not as my learned brother Hasan, J., seems to think in his referring judgment that there is. It is immaterial whether the executed document was presented for registration or not or there was failure in a suit under the Registration Act or its infructuous termination, because the cause of action for a suit for specific performance of contract is quite distinct and separate from the cause of action B for a suit under the Registration Act, in one the cause of action is the original contract and in the other the cause of action is the refusal to get the kabala registered and the scope of inquiry in the two suits are quite different. Of course, if the executed document is registered there is nothing left to be specifically enforced by a suit for specific performance because the contract is executed and no contract is subsisting.

22. On the facts and circumstances of this case, I therefore, hold that the suit for specific performance of the contract for sale and execution and registration of a fresh kabala in favour of the plaintiff by the defendants is maintainable.

23. Now coming to the other contention of Mr. Shahabuddin, the learned Advocate for the appellant, that the plaintiff failed to prove that the defendants are not bona fide purchasers for value with notice of the plaintiff's contract, there is a finding by both the Courts below that the defendants are purchasers with knowledge of the plaintiff's contract and that finding is based on the evidence of defendant No. 1 who is found to have entered into a contract of sale with the plaintiff. In her deposition she has stated thus:

Which can be translated thus:

"My brother is friendly with Goyezuddin Haji. Before I executed a kabala (in favour of Goyezuddin Haji and others) I told Goyezuddin that my brother had procured a kabala and creating trouble. My brother prohibited Goyezuddin not to take any kabala. I have not executed any kabala in favour of my brother. He has forged the kabala."

24. It is contended by Mr. Shahabuddin that, first of all, the deposition quoted above does not convey any notice of the contract as she all through denied the contract but it simply stated about the creation of a fraudulent kabala and so that will not constitute any notice of the plaintiff's contract. He also contends that even if it is a notice about the kabala or the contract of sale, it does not bind any other purchaser than Goyezuddin Haji, defendant No. 2, as there are 20 other purchasers, not of the same family or same house, but according to the finding of the Courts below, they are men of different localities, joined together for purchasing the property and the evidence of defendant No. 16 is that each one of them paid Rs. 225 towards the consideration of the purchase. Be that as it may, section 27 of the Specific Relief Act provides :‑

"Except as otherwise provided by this chapter specific perfor mance of a contract may be enforced against‑

(a) either party thereto ;

(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract."

This provision lays down a general rule that the original contract may be specifically enforced against a subsequent transferee but allows an exception to that general rule and it is to the subsequent transferee for value without notice and it has been held in the case of Rhup Narain Singh alias Shyam Narain Singh v. Gokhul Chand Mahton and others (38 C W N 393 (P C 398)), that it is clearly for the transferee to establish the circumstances which will allow him to retain the benefit of a transfer which, prima facie, he had no right to get. Their Lordships of the Privy Council further observed:

"Further, the subsequent transferee is the person within whose knowledge the facts as to whether he has paid and whether he had notice of the original contract lie, and the provisions of sections 103 and 106 of the Indian Evidence Act, 1872 have a bearing on the question."

We have asked the learned Advocate for the appellants to point out any evidence in the record to show wherefrom we can infer that the defendants are not aware of the original contract or that they have discharged that onus in any way. The learned Advocate has failed to show us anything except the evidence of D. W. 6 Goyezuddin Haji, who is defendant No. 2 but his evidence has been contracted by the evidence of defendant No. 1 who definitely alleged that she told him about the kabala of the plaintiff.

25. Another point raised by Mr. Shahabuddin is that though there is a prayer for confirmation of possession, none of the Courts below has come to any finding about the possession. It is true, none of the Courts below has come to any finding as to possession, but at the same time, none of the Court below has decreed the suit for confirmation of possession. It is admitted by the defendant No. 1 herself that the properties are joint properties and are in possession and management of the plaintiff as ancestral properties and the plaintiff was trying to gab them fraudulently by keeping them in arrears of rent and putting them to sale and that being disgusted with this defaulting conduct of the plaintiff she was trying to sell her share of the properties. Be that as it may, the suit was only decreed directing the defendants to execute a kabala in favour of the plaintiff.

26. The result, therefore, is that this appeal is dismissed; but in the fact and circumstances of this case, we direct that the parties will bear their own costs throughout.

27. In view of the order passed in this appeal the connected Civil Rule No. 609 (S) of 1957 is discharged without any order as to costs.

I

agree with my Lord, the Chief Justice that this appeal should be dismissed, but having regard to the J importance of the point of law involved in this case, I would like to express my own view thereon.

28. The question is whether a suit for specific performance of a contract of sale of immovable property lies in view of the remedy available under section 77 of the Registration Act. An answer to this question will depend upon whether or not section 77 of the Registration Act bars specific performance of a contract of sale under the Specific Relief Act, 1877, either expressly or by implication. Subsection (1) of section 77 which is material here runs thus :‑

"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 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 decree directing the docu ment to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree."

Obviously, section 77 does not expressly bar specific performance of a contract of sale if it is otherwise liable to be specifically C enforced under the Specific Relief Act. In order to determine if section 77 bars specific performance of a contract of sale by implication it is necessary to examine the scope and purpose of a suit under that section and those of a suit, for specific performance of a contract of sale under the Specific Relief ‑Act. The Registration Act deals with registration of documents generally. According to the scheme of that Act, every document to be registered there under may be presented at the proper registration office by its executant or by the persons claiming under the same or by their duly authorised agents, vide section 32. The registering officer shall, as required by section 35 (1) register the document if he is satisfied as to its due execution, but he may refuse its registration on the ground of the executant's denial of its execution under section 35 (3) or on grounds other than denial of execution e.g., insufficient description of property (sections 21 and 22), presentation of the document beyond time (section 23) or in wrong office (section 28). or by incompetent person (section 32), non‑appearance of executant within time (section 34), or executant appearing to be a minor, idiot or lunatic [section 35 (3)]. If the Sub‑Registrar refuses to register a document on a ground other than denial of its execution, an appeal to have the document registered lies to the Registrar under section ii within thirty days from the date of the order of refusal. If, however, the Sub‑Registrar refuses to register the document on the ground of denial of its execution by the executant or his legal representative, the person claiming under that document may, within thirty days after the making of the order of refusal, make an application under section 73 to the Registrar to establish his right to have the document registered. On such appeal or application, the Registrar may direct the document to be registered under section 72 or section 75, or refuse to do so under section 72 or 76. Where .the Registrar refuses to order the document to be registered, the person claiming under , such document may, within thirty days after the making of the order of refusal, institute in the Civil Court of appropriate jurisdiction, a suit under section 77 for a decree directing the document to be registered. Thus, it will appear that the sole purpose of a suit under section 77 is to procure registration of the document whose registration was refused initially by the Sub‑Registrar and ultimately by the Registrar. Acting under section 77, a Civil Court can do only what the Registrar could have done. Therefore, inquiry by the Court in a suit under the said section is confined to the plaints mentioned in section 74, namely, (a) whether the document has been executed, and (b) whether the requirements of the registration law have been complied with. In such a suit, the Court is not concerned with the validity or legal effect of the document and," as such, it cannot inquire into defences like fraud, misrepresentation, undue influence, coercion, duress, want of consideration and matters affecting the validity of the document. But, all such matters can be inquired into by the Court in a suit for specific performance of a contract of sale, if these are raised therein by the party opposing performance of the contract. A decree in a suit under section 77 of the Registration Act affects only the document concerned but does not strike at the transac tion between the contending parties. Therefore, the Court's) refusal to pass a decree in a suit under section 77 directing the registration of the document cannot affect the contract of sale, which remains unperformed until the deed of sale is registered.) While the sole purpose of a suit under section 77 is to procure registration of the document presented for registration, the purpose of a suit for specific performance of a contract is not to procure registration of the very document whose registration has been refused by the Registrar but to enforce the contract itself by getting a fresh document executed and registered through Court to perfect the plaintiff's title and possession. Thus, a decree in a suit under section 77 affects only the document, but a decree in a suit for specific performance of a contract strikes at the transaction itself, and the reliefs obtainable in a suit for specific performance which may in appropriate cases, include recovery or confirmation of possession, cannot be had in a suit under section 77. Also the causes of action in the said two classes of suits are different. The cause of action in a suit under section 77 arises on the Registrar's refusal to register the docu ment, but the cause of action in a suit of the other class is the breach of the contract by the person contracting to sell. Thus, it is quite clear that the scope and purpose of a suit under section 77 of the Registration Act and those of a suit for specific performance of a contract of sale are different. A suit for specific performance of a contract of sale provides a separate remedy based on a cause of action which is independent and separate from the cause of action for a suit under section 77 of the Regis tration Act. Therefore, section 77 which is apparently an enabling provision cannot be construed as providing, the only exclusive remedy to the person claiming under the unregistered document. Section 77 being an enabling provision the person claiming under the unregistered document may bring a suit under the section for procuring only the registration of the document and if he chooses to do so, the suit must be brought within thirty days after the Registrar's order refusing its registration. As the said section does not provide the only exclusive remedy, separate suit under the Specific Relief Act for the enforcement of the contract itself is maintainable if it is not otherwise barred. I am, therefore, clearly of opinion that section 77 of the Registra tion Act does not bar, either expressly or by implication, a suit under the Specific Relief Act for specific performance of a contract of sale of immovable property. This view finds support also from the proviso to section 49 of the Registration Act according to which "an un‑registered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received in evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 . . . . . " The said proviso was introduced on 1‑4‑1930 by the Registration (Amendment) Act XXI of 1929. The Legislature should be presumed to have made the proviso with knowledge of the various provisions of the Registration Act, including sections 35 (1), 72, 75 and i7 all of which provide for procuring registration of documents. Of these, section 35 (1) confers power on the registering officer to register a document and sections 72 and 75 empower the Registrar to direct that the document be registered in case of refusal of its registration by the Sub‑Registrar. Also the same power, namely, the power to direct registration of the self‑same document is vested in the Civil Court under section 77 in case the Registrar refuses registration. Thus, the purpose of each of the sections 3"(1), 72, 75 and 77 is the same, namely, to secure registration of the same document by or through different authorities on refusal of its registration by one or the other. That being so, if a suit for specific performance of a contract of sale be not maintainable in view of the availability of the remedy under section 77, it will follow, by parity of reasoning, that such suit will be non‑maintainable because of the remedies available under sections 35 (1), 72 and 73. But the Legislature must not have intended that since the Registration Act makes elaborate provi sions for procuring registration of a document registration of that document can never be secured by a suit for specific perfor mance of the contract. After the registration or a document has been refused by the registering authority, the person claiming under the document may prefer an appeal to the Registrar under section 72 or file an application before him under section 73. The claimant may also bring a suit for specific performance of the contract of sale instead of having recourse to an appeal or application to the Registrar under sections 72 or 73. If a suit for specific performance is maintainable after the refusal of registration by the Sub‑Registrar notwithstanding the claimant's failure to have recourse to appeal or application to the Registrar, there is no reason why such a suit shall not be maintainable merely because of the availability of the remedy under section 77 particularly when the scope of inquiry by the Civil Court in a suit under section 77, as already said, is the same as in the case of an appeal or application before the Registrar under section 72 or 73. The proviso to section 49 having been introduced in the; face of sections 35 (1) 72, 75 and 77, the implication is that a separate suit for specific performance of a contract will be main tainable if the document be not registered in accordance with the aforesaid provisions of the Registration Act. In view of what has been stated above, I would answer the question in the affirmative and hold that section 77 of the Registration Act does not provide the only exclusive remedy and that a suit for specific performance of a contract of sale under the Specific Relief Act is maintainable in spite of the availability of the remedy by a suit under section 77 of the Registration Act.

S. B./A. H.

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