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2008 DIGILAW 2846 (MAD)

Indirani @ Vedanayaki v. Chitra

2008-08-06

R.BANUMATHI

body2008
Judgment :- This Second Appeal is directed against the Judgment in A.S.No.45/1996 reversing Judgment of the trial court and thereby decreeing Plaintiffs suit for Specific Performance. Defendant is the Appellant in the Second Appeal. For convenience, parties are referred as per their array in the suit. 2. Case of Plaintiff is that she has paid the entire sale consideration of Rs.5,000/- on 12.01.1987 to the Defendant for purchase of suit property and that Defendant after receipt of sale consideration of Rs.5,000/- had executed the deed of sale (Ex.A1) which was prepared on 12.01.1987 and that Defendant also executed the copy of sale deed which has to be presented to the Registration Department and that Plaintiff was put in possession of the suit property in part performance by Defendant and thereafter, Defendant failed to execute the sale deed for registration before the Registration Department despite several requests. After issuing legal notice Ex.A2 dated 111. 1992, Plaintiff has filed suit for Specific Performance. According to the Plaintiff, she was always ready and willing to complete the process of sale and she has spent Rs.600/- towards purchase of stamp paper and preparation charges. 3. Defendant opposing maintainability of suit. According to the Defendant, Plaintiff ought to have had recourse to the procedure prescribed under Indian Registration Act. One Srinivasan filed suit against the Defendant in O.S.No.343/1987 for Specific Performance which was dismissed by the Principal Subordinate Judge, Pondicherry. The said Srinivasan who arranged for sale of Plots had appropriated the sale consideration and the said Srinivasan should have obtained signature from the Plaintiff and that Defendant has not received the consideration of Rs.5,000/-and therefore, Defendant is not liable to execute the sale deed. 4. On the above pleadings, trial court framed relevant issues. Upon consideration of oral and documentary evidence, trial court held that there was no privity of contract with the Defendant and that Sec.23 of Registration Act was not complied with. Trial court further held that when the Defendant had denied the signature, Plaintiff had not taken steps to prove the execution and Plaintiff is not entitled to the discretionary relief of Specific Performance. 5. Being aggrieved, Plaintiff has preferred A.S.No.45/1996. Learned Appellate Judge negatived defence plea that Defendant did not sign in Ex.A1. Trial court further held that when the Defendant had denied the signature, Plaintiff had not taken steps to prove the execution and Plaintiff is not entitled to the discretionary relief of Specific Performance. 5. Being aggrieved, Plaintiff has preferred A.S.No.45/1996. Learned Appellate Judge negatived defence plea that Defendant did not sign in Ex.A1. Placing reliance upon 95 Law Weekly 546 (Ellammal v. Rangaswamy Koundar and others), lower Appellate court held that Civil suit filed for Specific Performance is maintainable and Sec.77 of Registration Act would not be a bar for filing of suit. Observing that there was no specific denial regarding execution of sale deed, learned Appellate Judge reversed the findings of trial court and allowed the Appeal. 6. Aggrieved, Defendant has preferred the Second Appeal. At the time of admission, the following substantial questions of law were formulated for consideration: 1) When Sec.23 of the Indian Registration Act bars the registration of documents filed after 4 months of execution is the suit filed on 3. 1993 for specific performance to register the sale deed executed on 11. 1987 maintainable? 2) Is the learned District Judge correct in decreeing the suit when the suit for registration of document is barred under Sec.9 of C.P.C.? 3) Is not the suit for specific performance barred by limitation? 7. Challenging the findings of lower Appellate court, Mr. K.S.Karthik Raja, learned counsel for the Appellant contended that Plaintiff did not pursue the remedies under Section 23 of Indian Registration Act (for short Act) and as such the suit framed is not maintainable. Submitting that Sec.9 of C.P.C. is to be strictly complied, learned counsel for the Appellant contended that when provisions of Registration Act are exhaustive and when the remedy falls within the ambit of Registration Act, lower Appellate court ought to have held that the suit is not maintainable. Learned counsel for the Appellant further submitted that for the sale deed dated 12.01.1987, suit was filed only in 1993 and the lower Appellate court failed to take note that the suit is barred by limitation. It was also urged that lower Appellate court was not right in comparing the signature and arriving at its own conclusion de hors the opinion of handwriting expert. 8. Taking me through the Judgment of lower Appellate court and pleadings, Mr. It was also urged that lower Appellate court was not right in comparing the signature and arriving at its own conclusion de hors the opinion of handwriting expert. 8. Taking me through the Judgment of lower Appellate court and pleadings, Mr. R.Natarajan, learned counsel for the Respondent submitted that notwithstanding the time stipulated under Sec.23 of the Act, suit for Specific Performance is well maintainable. In support of his contention, learned counsel for the Respondent placed reliance upon 95 Law Weekly 546 (Ellammal v. Rangaswamy Koundar and others) and (1999) 7 SCC 114 (Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy). Submitting that suit is well within the period of limitation, learned counsel for the Respondent argued that from the date of refusal to perform the contract by the Defendant, suit has been filed within three years. Learned counsel for the Respondent submitted that conclusion of the lower Appellate court is based upon the evidence and the same cannot be interfered with. 9. First plea raised is maintainability of the suit. Learned counsel for the Appellant submitted that Registration Act provides for exhaustive remedies. It was urged that under Sec.23 of the Act, document has to be presented within four months. Ex.A1 allegedly executed on 12.01.1987 and notice issued only in 1992 and Civil suit for Specific Performance is not maintainable. It was further argued that having armed with the sale deed, Plaintiff ought to have exhausted the remedy under the provisions of Registration Act. It was pointed out that Sec.36 of the Act deals with procedure when the appearance of executant is desired and without exhausting the remedy, Civil suit is not maintainable. It was further argued that Sec.23 of the Act contemplates four months time for presentation of the document and as per Sec.25 of the Act, in cases of unavoidable delay, further four months time is given and the time so stipulated under the Act cannot be circumvented by filing Civil suit. 10. Section 23 of Registration Act provides for a period of four months for presenting a document for registration. Sec.25 provides for a further period of four months in cases of urgent necessity and unavoidable accident on payment of a fine. Section 34 provides that no document shall be registered unless the persons executing the document appear before the registering officer within the time allowed for presentation by Sections 23 and 25. Sec.25 provides for a further period of four months in cases of urgent necessity and unavoidable accident on payment of a fine. Section 34 provides that no document shall be registered unless the persons executing the document appear before the registering officer within the time allowed for presentation by Sections 23 and 25. However, the proviso to Sec.34 allows a further period of four months, with the result that while the maximum period for presenting a document is eight months, that for the appearance of parties before the registering officer is 12 months. 11. When there are two alternative remedies available to a party, it is open to him to exercise his right of election. If he seeks to bring a suit under Sec.77 of the Act only for the registration of the document, the suit must necessarily be brought within thirty days when the Registrar refused to register document. But if he seeks to have recourse to a full and more comprehensive remedy it is open to him to resort to a suit for Specific Performance. 12. Substantial question of law raised was pointedly considered by this Court in 95 Law Weekly 546 (Ellammal v. Rangaswamy Koundar and others). Referring to the decisions of various other High Courts and observing that the suit is not barred by reason, failure of Vendee to file a suit for compulsory registration under Sec.77 of the Act, this Court has held thus: " ...... Therefore, the remedy available to the Plaintiff under the Registration Act is ineffective and futile so far as the subsequent alienee is concerned. That, in such circumstances the only proper and effective remedy for the Plaintiff is to go before the civil court for the relief of specific performance of the contract of sale not only as against his vendor, but also against the subsequent alienee, has been held in Jhaman Mahton v. Amrit Mahton." "It is also to be remembered that all the High Courts, other than Madras, have taken a consistent view that a suit for specific performance is maintainable even though the remedy for registration provided for under the Registration Act has not been followed. This Court, however, at early stages in Venkatasami v. Kristtayya (16 Mad. This Court, however, at early stages in Venkatasami v. Kristtayya (16 Mad. 341); Thayarammal v. Lakshmi ammal 12 L.W. 161) and Kakarla Venkatasubbayya v. Sravanam Venkataatnam (67 L.W. 99), has taken the view that the aggrieved party has to invoke the remedy available to him under the Registration Act to have the document registered, and if that remedy has not been resorted to, he cannot approach the civil court for the equitable remedy of specific performance. As pointed out by Krishna Iyer, J in Mathi v. Joseph ( AIR 1970 Ker. 261 ): "A powerful current of judicial thought has however blowed the other way also. Indeed, the preponderance of authority has swung in the last two decades towards the view that a suit for specific performance by way of registration of a document is maintainable notwithstanding the bypassing of the alternative remedy prescribed in part 12 of the Registration Act." 13. In (1999) 7 SCC 114 (Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy) where sale deed was executed, but Vendor refuses to appear before the Sub-Registrar and the document could not be presented for registration. Holding that Sec.77 of the Act is not attracted and a comprehensive suit for Specific Performance is maintainable, Honble Supreme Court has held as follows: "The difference of opinion amongst the various High Courts on this aspect of the matter is that Section 77 of the Act is a complete code in itself providing for the enforcement of a right to get a document registered by filing a civil suit which but for the special provision of that section could not be maintainable. Several difficulties have been considered in these decisions, such as, when the time has expired since the date of the execution of the document whether there could be a decree to direct the Sub-Registrar to register the document. On the other hand, it has also been noticed that an agreement for transfer of property implies a contract not only to execute the deed of transfer but also to appear before the registering officer and to admit execution thereby facilitating the registration of the document wherever it is compulsory. The provisions of the Specific Relief Act and the Registration Act may to a certain extent cover the same field but so that one will not supersede the other. The provisions of the Specific Relief Act and the Registration Act may to a certain extent cover the same field but so that one will not supersede the other. Where the stage indicated in Section 77 of the Act has reached and no other relief except a direction for registration of the document is really asked for, Section 77 of the Act may be an exclusive remedy. However, in other cases it has no application, inasmuch as a suit for specific performance is of a wider amplitude and is primarily one for enforcement of a contract and other consequential or further relief. If a party is seeking not merely the registration of a sale deed, but also recovery of possession and mesne profits or damages, a suit under Section 77 of the Act is not an adequate remedy." 14. When there are two alternative remedies available to the Plaintiff, she cannot be prevented from approaching the court and asking for exercise in her favour of a discretionary and equitable remedy. Registration Act does not affect equitable jurisdiction possessed by Civil courts to pass a decree for Specific Performance where circumstances exhausted entitling the Plaintiff to such a decree. 15. Defendant has denied her signature in Ex.A1. The learned Appellate Judge compared the signature in Ex.A1 with Vakalat and observed that there was no difference between the signature of the Defendant in Ex.A1 with other admitted signatures. Assailing the approach of the lower Appellate court, learned counsel for the Appellant contended that lower Appellate court was not right in comparing the disputed signature in Ex.A1 and arriving at the conclusion in respect of the signature. 16. Contending that it would be unsafe to rely upon the opinion formed by the Court itself, learned counsel for the Appellant placed reliance upon (2008) 4 SCC 530 (Thiruvengadam Pillai v. Navaneethammal and another) and AIR 1996 Supreme Court 1140 (O.Bharathan v. K.Sudhakaran and another). First decision relates to comparison of thumb impression by the Court and the said decision is not applicable to the facts of the present case. Second decision is in respect of the disputed signature in Election O.P. where signature was the only material available before the Court for comparison and therefore, the ratio of second decision cannot be applied to the case on hand. Second decision is in respect of the disputed signature in Election O.P. where signature was the only material available before the Court for comparison and therefore, the ratio of second decision cannot be applied to the case on hand. In the present case to arrive at the conclusion as to the denial of signature in Ex.A1, lower Appellate court referred to other circumstances as well. In the written statement, Defendant did not specifically deny her signature in Ex.A1. Per contra, in the written statement, Defendant has alleged that one Srinivasan who filed the suit against the Defendant in O.S.No.343/1987 for Specific Performance might have taken her signature. Since the Defendant did not specifically deny her signature in Ex.A1, learned Appellate Judge on comparison of the disputed signature in Ex.A1 with her signature in the Vakalat was of the opinion that the signature in Ex.A1 tallied with the signature in the Vakalat. It cannot be said that exercise of jurisdiction in terms of Sec.73 of Indian Evidence Act (for short I.E. Act) is erroneous. To say that without expert opinion, Court cannot exercise its jurisdiction under Sec.73 of I.E. Act would render the same inoperative. 17. Ex.A1 sale deed was executed on 11. 1987. Plaintiff had issued Ex.A3 notice only on 111. 1992 calling upon the Defendant to execute the document. Learned counsel for the Appellant contended that the time stipulated for presentation of document was only four months and for all practical purposes, the date for refusal can be taken as the date of expiry of four months and as per Article 54 of Limitation Act for filing a suit, limitation starts from the date of refusal. 18. The above contention does not merit acceptance. Limitation is three years in a suit for Specific Performance and under the first part the period of limitation starts from the date fixed for the performance. On the contrary in the absence of a date fixed for performance of the contract, the time does not start to run until there has been demand and refusal and date commences from the date when the Plaintiff got the notice of refusal. 19. Admittedly, no date was fixed for performance of the contract. In Ex.A3 notice, Plaintiff has averred that he has asked the Defendant to perform her part of contract number of times but the Defendant evaded. 19. Admittedly, no date was fixed for performance of the contract. In Ex.A3 notice, Plaintiff has averred that he has asked the Defendant to perform her part of contract number of times but the Defendant evaded. Plaintiff has paid the entire sale consideration and possession was also delivered to the Plaintiff. Having regard to the fact that no date was fixed for performance of the contract, it cannot be said that the suit is barred by limitation. Limitation would start running from Ex.A4 reply notice dated 211. 1992. Limitation runs from the date of notice of refusal of Specific Performance by the vendor and therefore, the plea that the suit is barred by limitation cannot be countenanced. 20. Upon consideration of oral and documentary evidence, lower Appellate court arrived at correct conclusion that the suit is maintainable and Plaintiff is entitled to the decree for Specific Performance. The conclusion of the lower Appellate court does not suffer from perversity warranting interference. No substantial question of law is involved in this Second Appeal and the same is liable to be dismissed. 21. In the result, Judgment of the lower Appellate court in A.S.No.45/1996 dated 15.09.1997 on the file of the District Judge, Pondicherry (arising out of the Decree and Judgment in O.S.No.213/1993 dated 24. 1996 on the file of III Additional District Munsif, Pondichery) is confirmed and the Second Appeal is dismissed. In the circumstances of the case, there is no order as to costs.