Law of Registration
REG 032 Suit Where Registration Is Refused Section 77
The Suit under Section 77 of the Registration Act, 1908: When It Lies, Who May Bring It, the Thirty Day Limitation, What the Court Decides, and How It Differs from a Suit for Specific Performance
Section 76 closes the administrative route: no appeal lies from an order of the Registrar refusing to register. Section 77 opens the judicial one. A person claiming under the document may sue in the civil court for a decree directing the document to be registered, and he must do so within thirty days of the Registrar's order. If the decree is passed and the document presented within thirty days of it, registration relates back to the first due presentation. The suit is narrow: it decides whether the document should be registered, not who owns the property.
The four elements of the suit, what follows a decree, and what the court does not decide
1. The Section
Section 77, Registration Act, 1908 (1) 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 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 the provisions of this section, and, notwithstanding anything contained in this Act, such documents shall be receivable in evidence in such suit. |
2. The Four Elements
1. Who. Any person claiming under the document, or his representative, assign or agent. The executant who refuses to admit execution is the defendant, not the plaintiff.
2. When. Within thirty days after the making of the Registrar's order of refusal. The period is short, and it runs from the order, not from knowledge of it.
3. Where. In the Civil Court within the local limits of whose original jurisdiction the office in which registration is sought is situate. The forum follows the registration office, not the property or the parties.
4. For what. A decree directing the document to be registered in that office. It is not a declaration of title, and not an order against the registering officer personally.
3. After the Decree
- Present within thirty days of the decree, exactly as under Section 75(2).
- The officer obeys the decree and follows the procedure in Sections 58, 59 and 60: endorsements, date and signature, and the certificate.
- Relation back, Section 75(3) applied through Section 77(2). Registration takes effect as if the document had been registered when it was first duly presented, so priority under Sections 47 and 50 is preserved despite the litigation.
- Admissibility in the suit. The closing words of Section 77(2) make the document receivable in evidence in the suit notwithstanding anything in the Act, which displaces Section 49 for that limited purpose. Without it the plaintiff could not prove the very document he seeks to have registered.
4. What the Court Decides, and What It Does Not
The court decides | The court does not decide |
Whether the document was in fact executed by the person who denies it | Who has title to the property |
Whether the requirements of the law for registration were complied with | Whether the transaction is valid, or vitiated by fraud, coercion or want of consideration |
Whether the document is therefore entitled to registration | Whether the executant had authority to make the transfer |
Costs of the suit | Any question that would need a separate suit for declaration or possession |
⚠ A Section 77 suit is not a suit for specific performance The two are constantly confused. A Section 77 suit concerns a document that has already been executed and refused registration; it asks the court to direct that it be registered, and must be brought within thirty days. A suit for specific performance concerns a contract that has not yet been performed; it asks the court to compel the defendant to execute a conveyance, and is governed by the Specific Relief Act, 1963 with its own limitation of three years under Article 54 of the Limitation Act, 1963. A party who has missed the thirty days under Section 77 is not thereby shut out of a suit for specific performance on the underlying contract, if one lies; but he cannot use that suit to cure the lapsed registration remedy. |
5. The Administrative Route and the Judicial Route
- Sections 72 to 76 are administrative. The Registrar hears the matter, enquires under Section 74, and makes an order. His enquiry is summary, and Section 76 makes his order final within the Act.
- Section 77 is judicial. The civil court tries the question on evidence, with pleadings, issues, examination and cross-examination, and a decree.
- They are sequential, not alternative. A party must first exhaust the Registrar's jurisdiction under Section 72 or Section 73; the suit lies only where the Registrar has refused.
- The thirty day periods run through the whole chain, from the Sub-Registrar's refusal to the Registrar, from the Registrar's refusal to the suit, and from each order or decree to re-presentation.
6. The Position Stated Shortly
1. Section 77 lies where the Registrar has refused to order registration under Section 72 or Section 76.
2. Any person claiming under the document, or his representative, assign or agent, may sue.
3. The suit must be brought within thirty days of the order of refusal.
4. It lies in the Civil Court within whose original jurisdiction the registration office is situate.
5. The relief is a decree directing the document to be registered.
6. Section 77(2) applies Section 75(2) and (3), so the document must be presented within thirty days of the decree and registration relates back to the first due presentation.
7. The document is receivable in evidence in the suit, notwithstanding Section 49.
8. The court decides execution and entitlement to registration, not title or the validity of the transaction.