Law of Registration
The Section 77 Suit and the Suit for Specific Performance: Two Different Causes of Action, Two Different Periods, and What Each Decree Achieves
Both suits end with a court compelling something about a document, and the two are regularly confused. They are not the same. A Section 77 suit presupposes a document that has already been executed and that the Registrar has refused to register; the court decides whether it was executed and is entitled to registration, and decrees that it be registered. A suit for specific performance presupposes a contract that has not been performed; the court decides whether there is a concluded contract and whether the plaintiff has been ready and willing, and decrees that the defendant execute a conveyance. The first has a period of thirty days; the second, three years. The first is against the Registrar and those denying execution; the second against the contracting party.
The two suits set side by side: what exists already, what is decided, and what the decree does
1. The Section 77 Suit
Section 77, Registration Act, 1908 77. Suit in case of order of refusal by Registrar. (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, the documents so presented may be receivable in evidence in such suit. |
- It lies against a refusal by the Registrar, in either capacity. Section 77(1) says so in terms: a refusal "under section 72 or section 76". It does not lie against a Sub Registrar's refusal, for which the remedy is the appeal or application under Sections 72 and 73.
- The plaintiff is a person claiming under the document, or his representative, assign or agent. The executant who is resiling is ordinarily the defendant, not the plaintiff.
- The forum is fixed by the office, not by the property. The suit lies in the Civil Court within whose original jurisdiction the registration office is situate.
- Thirty days, from the order of refusal. The period is written into the section itself and is not governed by any article of the Limitation Act.
- The issue is narrow. The court asks what the Registrar was required to ask under Section 74: whether the document was executed, and whether the requirements of the law for the time being in force have been complied with.
- The closing words of sub section (2) are a special rule of evidence. The document may be received in that suit notwithstanding anything in the Act, which is what makes the suit workable at all, since the document is by definition unregistered.
- The decree is followed by presentation within thirty days, and registration then relates back to the date of first due presentation, by Section 75(2) applied through Section 77(2).
2. The Suit for Specific Performance
Specific Relief Act, 1963, in substance 10. The specific performance of a contract shall be enforced by the court subject to the provisions contained in sub section (2) of section 11, section 14 and section 16. (As substituted by the Specific Relief (Amendment) Act, 2018, which made specific performance the rule rather than a discretionary remedy.) 16(c). Specific performance of a contract cannot be enforced in favour of a person who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation (ii) to section 16. The plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. Article 54, Limitation Act, 1963. For specific performance of a contract, three years from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. |
- What is sued on is the contract, not any refusal by a registering officer. No registration office need ever have seen the document.
- The typical case is the agreement to sell, where the vendor has taken the earnest and will not execute the conveyance.
- Readiness and willingness is the plaintiff's burden throughout, and must be both pleaded and proved.
- Three years, under Article 54, from the date fixed for performance, or from notice of refusal where no date is fixed.
- The decree directs execution of the conveyance. If the defendant does not execute it, the court may do so through an officer under Order XXI Rule 34 of the Code of Civil Procedure, 1908.
- That conveyance must itself be registered, and once registered it operates from its own date under Section 47, not from the date of the agreement.
3. The Two Compared
Section 77 suit | Specific performance | |
The statute | Section 77, Registration Act, 1908 | Sections 10 and 16, Specific Relief Act, 1963 |
What already exists | An executed document the Registrar has refused to register | A contract the defendant has not performed |
The cause of action | The Registrar's order of refusal under Section 72 or Section 76 | Breach or refusal to perform the contract |
The plaintiff | A person claiming under the document, or his representative, assign or agent | A party to the contract, or a person claiming under him within Section 15 |
The defendants | The Registrar, and the persons denying execution | The party in default, and ordinarily a subsequent transferee where relief is sought against him |
The issue | Was the document executed, and is it entitled to registration, Section 74 | Is there a concluded contract, and was the plaintiff ready and willing, Section 16(c) |
The relief | A decree directing the document to be registered | A decree directing the defendant to execute a conveyance |
Limitation | Thirty days from the order, prescribed by Section 77 itself | Three years, Article 54 of the Limitation Act, 1963 |
The forum | The Civil Court within whose original jurisdiction the registration office is situate | The court having jurisdiction over the subject matter, Sections 15 to 20 of the Code |
The document in evidence | Receivable notwithstanding the Act, by the closing words of Section 77(2) | An unregistered agreement is receivable as evidence of the contract, by the proviso to Section 49 |
Court fee | Ordinarily a fixed fee, the relief being a direction to a public officer | Ordinarily ad valorem on the consideration, under the Court Fees Act, 1870 and State amendments |
Discretion | None as to registration, once execution and compliance are found | Structured by Sections 11, 14 and 16 since the 2018 amendment |
After the decree | Present within thirty days; registration relates back to first due presentation | The conveyance is executed and must itself be registered; it operates from its own date under Section 47 |
4. Where the Two Meet
1. They can arise out of the same transaction. A purchaser holding an agreement to sell may find both that the vendor will not execute a conveyance and that a document already executed has been refused registration.
2. They are not alternatives on the same facts. Section 77 assumes execution; specific performance assumes non execution. A party who admits that no conveyance was ever executed has no Section 77 suit.
3. Missing the thirty days does not by itself destroy the contract. If the underlying contract survives and Article 54 has not run, a suit for specific performance may still lie on it.
4. But the specific performance suit cannot be used to revive the lapsed registration remedy. The relief there is a fresh conveyance, not a direction to register the document the Registrar refused.
5. The evidentiary route differs. In the Section 77 suit the document is admissible by the closing words of Section 77(2); in the specific performance suit an unregistered agreement is admissible as evidence of a contract by the proviso to Section 49.
6. In both, the Stamp Act stands in front. Section 35 of the Indian Stamp Act, 1899 bars an instrument not duly stamped from being admitted in evidence for any purpose until the duty and penalty are paid, and Section 33 makes impounding a duty of the court.
7. The decree in each case is only the beginning of the registration. Section 77(2) gives thirty days to present after the decree; a conveyance executed under a specific performance decree must be presented within four months under Section 23.
5. The Registration of a Decree Itself
⚠ A decree is not a substitute for registration A decree for specific performance does not by itself transfer the property. It directs the defendant to execute a conveyance, and it is that conveyance, once executed and registered, which passes the title. Section 17(2)(vi) exempts from compulsory registration any decree or order of a court, except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit. So a decree that merely grants the relief claimed in the suit needs no registration; a compromise decree that travels beyond the subject matter of the suit does. A party who obtains a decree and stops there, without procuring and registering the conveyance, has a decree and not a title. |
6. Practical Differences That Decide Cases
The question | Section 77 suit | Specific performance |
Who must be sued | The Registrar is a necessary party, the refusal being the cause of action | The Registrar has no place in the suit |
What the plaintiff must prove first | Execution of the document | A concluded and enforceable contract |
If execution is denied | That is the very issue the court tries | The suit fails at the threshold; there is no contract to enforce |
If the plaintiff was not ready and willing | Irrelevant; the section does not ask | Fatal, under Section 16(c) |
If the period has run | Thirty days gone, the suit is barred | Three years gone, the suit is barred under Article 54 |
The effect on the date of title | Registration relates back to first due presentation, Section 75(2) | The conveyance operates from its own date of execution, Section 47 |
7. The Common Errors
- Supposing that a Section 77 suit lies against a Sub Registrar's refusal. It does not. The remedy there is the Section 72 appeal or the Section 73 application.
- Supposing that no Section 77 suit lies where the Registrar has decided a Section 72 appeal. It does. Section 77(1) applies to a refusal under Section 72 or Section 76 alike; what Section 76(2) bars is a further appeal.
- Supposing that the thirty days under Section 77 can be extended under Section 5 of the Limitation Act. The period is prescribed by the special Act itself, and the safe course is to treat it as inelastic.
- Supposing that a decree for specific performance transfers the property. It directs the execution of a conveyance, which must then be registered.
- Supposing that an unregistered agreement to sell is useless. The proviso to Section 49 expressly saves it as evidence of a contract in a suit for specific performance.
- Supposing that the stamp objection can be postponed. Section 33 of the Stamp Act makes impounding a duty, and Section 35 shuts the document out for every purpose until the duty and penalty are paid.
- Supposing the two suits are alternatives. They rest on opposite premises: one on a document executed, the other on a promise not performed.
8. The Position Stated Shortly
1. A Section 77 suit is a suit for a decree directing a document to be registered, brought against a refusal by the Registrar under Section 72 or Section 76.
2. A suit for specific performance is a suit to compel performance of a contract, brought against the party in default.
3. The first presupposes execution; the second presupposes that execution has not taken place.
4. The first must be brought within thirty days of the order of refusal; the second within three years under Article 54 of the Limitation Act, 1963.
5. The first lies in the court where the registration office is situate; the second in the court having jurisdiction over the subject matter.
6. In the first, the document is receivable in evidence notwithstanding the Act, by Section 77(2); in the second, an unregistered agreement is receivable as evidence of a contract by the proviso to Section 49.
7. The first ends in a direction to register; the second in a direction to execute a conveyance, which must itself be registered.
8. Registration under a Section 77 decree relates back to the date of first due presentation; a conveyance executed under a specific performance decree operates from its own date under Section 47.
9. Missing the thirty days does not destroy an independent right to specific performance, but the specific performance suit cannot be used to revive the lapsed registration remedy.
10. In both, an instrument not duly stamped is shut out for every purpose by Section 35 of the Indian Stamp Act, 1899 until the duty and penalty are paid.