1. This is an appeal by the plaintiff in a suit institutedby him on the 21st December 1912 for recovery of possession of land ondeclaration of title by purchase or on specific performance of a contract ofsale. The case for the plaintiff is that the disputed property belonged to thefirst four defendants, that he obtained a conveyance from them on the 30thNovember 1912 and that his vendors had not only failed to register the documentand to place him in possession but had transferred the property to the 5thdefendant. The latter conveyance bears date the 29th November 1912, but theplaintiff asserts that the document is collusive and has in fact beanantedated. The Court of first instance found on the merits in favour of theplaintiff and decreed the suit, The Court held that the sale to the 5thdefendant was collusive and without consideration and that although itpurported to be anterior to the agreement whereon the plaintiff relied, thetransaction took place really after the institution of this suit. Upon appealthe Subordinate Judge has reversed the decision of the Trial Court and hasdismissed the suit, on the ground that the plaintiff was not competent to seekregistration of the conveyance executed in his favour as he had not followedthe provisions of the Indian Registration Act to compel registration of thedocument. In support of this view, the Subordinate Judge has relied upon thedecisions in Edun v. Mahomed Siddik 9 C. 150 : 11 C.L.R. 440 : 5 S L.R. 35 : 4Ind. Dec. (N.S.) 752; Lakhimoni Chowdhrain v. Akroomoni Chowdhrain 9 C. 851 :12 C.L.R. 527 : 4 Ind. Dec. (N.S.) 1217 and Sheikh Rahmatulla v. SheikhSariutulla Kagchi 10 W.R. 51 : 1 B.L.R.F.B. 58 : 4 Mad. 102 : 1 Ind. Dec.(N.S.) 93. In our opinion, the decree of the Subordinate Judge cannot possiblybe upheld.

2. The plaintiff framed his suit in the alternative. Asregards the claim to enforce registration of the document executed in hisfavour by his vendors he was, no doubt, bound to follow strictly the procedureprescribed by the Indian Registration Act before he could institute a suitunder Section 77 to compel registration. But as regards the alternative claimto enforce specific performance of the agreement to sell there was really noanswer to the suit. Although the vendors had executed the document, they couldnot be deemed to have completely performed their part of the agreement. Theagreement in essence was not merely to execute a conveyance which untilregistered would, be inoperative in law, but to transfer the full title fromthemselves to the plaintiff as purchaser. Such title could be transferred onlyby means of a registered instrument; consequently, the execution of theconveyance not followed by registration could not be regarded as fulfilment ofthe contract. The true position then is that the agreement to transfer remainedunperformed and the plaintiff was entitled to proceed against his vendors tocompel them to fulfil their contract. This is not opposed to the decision inSheikh Rahmatulla v. Sheikh Sariutulla Kagchi 10 W.R. 51 : 1 B.L.R.F.B. 58 : 4Mad. 102 : 1 Ind. Dec. (N.S.) 93 as the plaintiff does not seek to found histitle on the unregistered conveyance which is inoperative in law.

3. It was necessary for the plaintiff to join the 5thdefendant as a party to the suit properly framed for specific performance. Thatdefendant claimed title under a conveyance ostensibly anterior in date to theagreement which is the foundation of the alleged title of the plaintiff. If theconveyance was in reality anterior to the agreement, the plaintiff has clearlyno enforceable claim against that defendant. But if, on the other hand, theconveyance in favour of the 5th defendant has been antedated, the plaintiff canenforce his claim not merely against his vendors but also against thatdefendant, provided it is established that the latter has taken with notice ofthe agreement with the plaintiff. This relief could not have been obtained in asuit framed and instituted in accordance with Section 77 of the IndianRegistration Act. We cannot thus hold that the only remedy, of the plaintiffwas a suit of that description because the consequence would be that theplaintiff if successful in such a litigation would be driven to institute asecond suit against the 5th defendant for establishment of his title and forrecovery of possession. To avoid multiplicity of litigation, it was open to theplaintiff to frame his suit as he has done and to seek relief as well againsthis vendors as against their alleged transferee.

4. The result is that this appeal is allowed, the decree ofthe Subordinate Judge set aside and the case remitted to him in order that hemay re-hear the appeal on the merits. The question for investigation will be,whether the plaintiff has an enforceable claim against the 5th defendant on thebasis of the agreement of sale alleged to have been made with him on the 30thNovember 1912. In this connection the question raised in the fourth issue willrequire consideration. The appellant is entitled to his costs both here and inthe lower Appellate Court.