C.S. Raghu Raman,
Professor, Law Faculty, (Guest Faculty of Telangana, AP, Karnataka, West Bengal, Delhi Judicial Academies)
Mobile No. 9490190210
Email: csraghuraman1954@gmail.com
SUPREME COURT ON SEC. 77 OF THE REGISTDRATION ACT, 1908
In earlier Articles, (A) ‘Critical Examination of Case Law under Section 87 of the Indian Registration Act, 1908 relating to Registration of Documents’ (Andhra Law Times Hyderabad, July, 2014) B) ‘Compliance with Secs. 60 and 61 of the Registration Act, 1908 -- Study of Case Law’ (Supreme court Journal, Hyderabad, December 2015, Joint Article with my colleague Sri M Srinivas, Junior Civil Judge, Andhra Pradesh) C) ‘Registration of Documents by Power of Attorney Holders--From Privy Council to the Supreme Court in India’ (Supreme Court Journal, Hyderabad) The Author like to place before the readers ‘on getting assistance of Sec. 77 of The Registration Act, 1908 (known as ‘the Reg. Act) from the Court for registration sale deeds etc., in the officer of Registrar when the vendors refuse to register property.’
After obtaining leave of Supreme Court, appeal was preferred before under Art. 136 of Constitution of India. (Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy on 5 August, 1999)
In a suit by respondent-plaintiff for specific performance seeking a direction to register the sale deed dated July 2, 1979 (Exhibit A-6) together for injunction or possession of the immovable property,’ the appellant-defendant said that ‘he did not facilitate registration of deed since he signed it as a result of fraud and misrepresentation by the respondent taking advantage of the fact that he was an illiterate person.’
The trial court dismissed the suit on the reason that ‘the respondent had to avail of the remedy under Sec. 77 of Reg Act, (‘Suit in case of order of refusal by Registrar’) but not bringing suit for specific performance.’
After two rounds of litigation, review petition filed, arguing that that ‘questions of law were involved,’ was dismissed by High Court on the view that lower judgments were ‘concurrent and the matter involves only pure findings of fact.’
Lord Justices A. P. Misra and S. R. Babu, observed, first, that ‘on the facts admitted the execution of the deed could not be doubted.’
Next, Their Lordships, said that ‘a suit under Sec. 77 of the Reg. Act could be filed’ only in the following circumstances.
a) document has to be presented for registration within the time prescribed
by Secs. 23-26 of the Act (These Sections are about ‘Time for presentation of documents’)
b) document has to be presented by a person authorised to do so under Sec. 32 of the Act (‘Persons to present the documents’)
c) the Sub-Registrar has refused to register the document presented to him for registration
d) appeal or application against such refusal has been made under Sec. 72 or 73 of the Act (S.72. Appeal to Registrar from orders of Sub-Registrar refusing registration on grounds other than denial of execution, Sec. 73. Application to Registrar where Sub-Registrar refuses to register on ground of denial of execution) within 30 days of the order of the Sub-Registrar;
e) the Sub-Registrar has refused to register under Sec. 76 of the Act and
f) suit is filed within 30 days of the order of the Sub-Registrar
After clearly observing that ‘the document has not been presented by the respondent to the Sub-Registrar at all for registration although the sale deed is stated to have been executed by the appellant though he refused to cooperate with him in that regard,’ Lord Justices A. P. Misra and S. R. Babu declared that ‘therefore, various stages contemplated under Sec. 77 of the Act have not arisen in the present case at all. We do not think, in such a case when the vendor declines to appear before the Sub- Registrar, the situation contemplated under Sec. 77 of the Act would arise. It is only on presentation of a document the other circumstances would arise.’
Their Lordships further declared that ‘provisions of Sec. 77 of the Act would indicate that it would apply only if a matter is pertaining to registration of a document and not for a comprehensive suit as in the present case where the relief prayed for is directing the defendant to register the sale deed in favour of the plaintiff in respect of the plaint schedule property and if he so fails to get a registration in favour of the plaintiff, for permanent injunction or in the alternative for delivery of possession of the plaint schedule mentioned property.’
Lord Justices A. P. Misra and S. R. Babu also said that ‘First Appellate Court rightly took the view (The First Appellate Court allowed the appeal and decreed the suit on the basis that the relief insofar as the decree for specific performance of the latter half of the document could be granted and that Sec. 77 of the Act will not come in the way.) that under Sec. 49 of the Act (Effect of non-registration of documents required to be registered) the sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property. The trail Court noticed that there was an agreement to transfer the immovable property in the suit by the defendant to the plaintiff on the terms stated in the sale deed. Such an agreement to sell the immovable property in suit could be specifically enforced under the provisions of the Specific Relief Act. Therefore, the First Appellate Court came to the opinion that the plaintiff was alternatively entitled to base his claim of specific performance on the pleaded oral agreement to sell and, as there are further reliefs sought for, it was a comprehensive suit including a relief for specific performance of a contract contained in the sale deed executed, but not registered and, therefore, held that such relief for specific performance could be granted.’
Finally, the appeal was dismissed declaring that the First Appellate Court and the High Court were justified in upholding the claim of the plaintiff.
The following are the comments of the Author.
Since ‘registration of agreement to sell immovable property is mandatory’ (Ref. Sec. 17 (1A) of the Reg. Act) from 2001 onwards, this precedent shall be kept in mind for filing a suit under Sec.77 of the Reg. Act if the vendor do not come forward for registration, for any reasons, though the vendee is ready.
Until Legislature comes forward with simplified procedure for ‘registration of agreement of sale,’ the procedure followed for registration of Sale Deed shall be followed.
Some clarifications may be expected from Supreme Court.