Kunhimmu vs Viyyathamma on 21 July, 1884

Madras High Court
Kunhimmu vs Viyyathamma on 21 July, 1884
Equivalent citations: (1883) ILR 7 Mad 535
Bench: C A Turner, Kt., M Ayyar


1. On the 30th July 1881 the respondent, Viyyathamma (defendant), assigned to the appellant, Varatan Kunhimmu (plaintiff), in consideration of Rs. 300 the kanam right which she had in certain land and executed the deed of transfer A and the enuka B. The appellant presented these documents to the Sub-Registrar of Tirurangadi for registration on the 7th August 1881. On the same date the Sub-Registrar refused to register them on the ground that their execution was denied. He instituted also criminal proceedings in regard to them before the Sub-Magistrate who dismissed his complaint on the 10th October 1881. Thereupon, the appellant preferred an appeal on the 28th October to the Registrar from the Sub-Registrar’s order of the 13th August, but the appeal was rejected on the 22nd March, because it was not presented as required by Section 73 of the Registration Act within thirty days after the order of refusal had been made. On the 18th April 1882 the appellant brought this suit to have the documents A and B registered.

2. The District Munsif considered that Section 77 of the Registration Act was only an enabling provision, and, finding the execution of the documents proved, ordered their registration. On appeal, however, the District Judge regarded the suit as a suit for the enforcement of the contract of sale, and held that the Court of First Instance must go into the question whether the contract was completed, and that it included the question whether the consideration was paid. He remanded the suit for further inquiry and disposal on the merits. The District Munsif then found that the assignment was completed as between the appellant and the respondent and affirmed his former decree. On appeal, the Subordinate Judge held that the suit was not maintainable under Section 77 of the Registration Act.

3. The Subordinate Judge would not have been justified in ignoring the order of remand made by the District Court and entertaining the objection that the suit was not maintainable; but the question is now before us on second appeal, and we are of opinion that the suit cannot be maintained. Having regard to the plaint, we are unable to treat the suit as one brought for the specific performance of an agreement to transfer. The appellant’s case was that the respondent actually conveyed her kanam right to him. but failed to register the conveyance or the deed of transfer, and the enuka which she had executed, and he prayed for a decree ordering the registration of the documents. It is not denied that the Sub-Registrar endorsed the documents “Registration refused.”

4. The 71st Section of the Registration Act declares that no Registering Officer shall accept for registration a document so endorsed unless and until, under the provisions thereinafter contained, the document is directed to be registered.

5. The plaintiff did not comply with the directions of the Act; he did not present an application under Section 73 to the Registrar within the thirty days prescribed by that section; and when, after the lapse of the thirty days, the application was presented to him, the Registrar properly refused to receive it.

6. The Registration Act by prescribing that a document endorsed “Registration refused” shall not be registered until, under the provisions thereinafter contained, the document is directed to be registered, prohibits the Court from making such an order in any other case.

7. It is only when an application has been made to the Registrar in time and after inquiry registration has been again refused that a Civil Court is competent under Section 77 to order registration.

8. Agreeing with the ruling of the High Court, Calcutta, in Edun v. Mahomed Siddik I.L.R. 9 Cal. 150 and with that of the Allahabad Court in Bhagwan Singh v. Khuda Bakksh I.L.R. 3 All. 397, we hold the suit cannot be maintained and dismiss the appeal.

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