Section 77 of the Registration Act does not provide an exclusive remedy to a person who seeks to enforce his rights flowing from a contract of sale and it does not bar a suit for specific performance of the agreement to sell in his favour. Section 77 of the Registration Act can have no application to wills.

( 1 ) THE question to be answered in this case is whether Section 77 of the Indian Registration Act bars a suit on the basis of an unregistered will when the Sub-Registrar refused to admit it for registration, which order was confirmed on appeal by the District Registrar.

( 2 ) THE facts leading up to the Civil Miscellaneous Appeal lie in a narrow compass and could be stated in the following words. The appellant sought to sue in forma pauperis for recovery of the properties belonging to one Padala Paddireddi, who died on 6-8-1953, possessed of the same and leaving behind him his wife and two daughters and his younger brother, the plaintiff, averring that Paddireddi executed his last will and testament two days prior to his death bequeathing most of his properties to the plaintiff. The will was presented in the Sub-Registrars Office at Kothapeta. On an objection taken by the widow and the daughters of Paddireddi, registration was refused on 19-3-1954. This order of refusal was confirmed by the District Registrar on appeal. Thereupon he filed a petition under Order 33 Rule 2, C. P. C. for permission to file the suit in forma pauperis.

( 3 ) THE petition was rejected by the Subordinate Judge, on the ground that the suit was ot maintainable in view of the provisions of Section 77 of the Indian Registration Act (hereinafter referred to as the Act ). In the opinion of the trial Court, the only course open to the present appellant was to resort to Section 77 of the Act having attempted to get the will registered as per the provisions of the Registration Act and failed. It is that order that is appealed against.

( 4 ) IN support of this appeal, it is urged by the counsel for the appellant that Section 77 of the Registration Act does not provide an exclusive relief, that it was only an optional one and that, at any rate, Section 77 has no application to wills which are not compulsorily registrable. As the decision of this question turns upon the interpretation to be put on Section 77 of the Registration Act, it is convenient here to extract the provisions of that Section. "77 (1 ). Where the Registrar refuses to Order the document to be registered, under Section 77 or Section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after [he 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 document shall be receivable in evidence in such suit. " It is seen that section gives a right to a person relying on any document to institute a suit. It is not in the mandatory form. It is only optional with the party concerned either to take advantage of the section or to have recourse to other forms of suits for obtaining the reliefs he wants. The word used in the section is may and not shall. But if he chooses to avail himself of the course indicated in that section, action has to be taken within 30 days after the making of the order of refusal by the Registrar. It is worthy of note that the claim under Section 77 has to be confined only to the registration of the document since in such a suit the concern of the Court is only with the genuineness of the document and it cannot deal with the validity of the document or allied questions. Therefore it is plain that Section 77 does not provide the only remedy and that ft gives one of the reliefs to which the plaintiff is entitled. There is ample authority for this position.

( 5 ) WE may first refer to the rulings

Click Here to Read the rest of this document