THE REGISTRATION ACT 1908: A CRITICAL ANALYSIS

Army Institute of Law, Mohali

Submitted in the partial fulfillment of BA LLB 5 Year Course

Submitted to:- Mr Pradeep

(faculty of Law)

Submitted by:-Nisha (1404)

5th yr Section B
Introduction

Registration is deemed to prevent fraud. The object of registering a document is to give

notice to the world that such a document has been executed. Registration of a document does not
confer the title over the property as mentioned in the document registered, but provides an
evidence of such transactions being registered, based on which title over the property could be
established. For registration of documents relating to conveyance of properties belonging to
Government, local bodies or religious institutions, “No Objection Certificate” is required from
the relevant authorities concerned.

Test of Compulsory Registration:

The test for compulsory registration of a document is the intention of parties as expressed in the
document concerned. What is material for the purpose of compulsory registration of a
document under Section 17(1) of the Registration Act, 1908 is that:

 The document (non-testamentary instrument1) must create, assign, declare,

extinguish or limit, whether in present or in future,
 any right, title or interest, whether vested or contingent, of the value of Rs. 100
and upwards, to or in Immovable Property.

1. Registration of Will is optional. A Will is made to interfere in the line of succession.

2. According to Section 17(1) (a) of the Registration Act, 1908, instrument of gift
of immovable property requires compulsory registration, whatever may be the value of
the gift or the immovable property gifted. Section 123 of the Transfer of Property Act,

1882 requires that gift of immovable property must be registered.

3. Gift is a transfer of certain movable or immovable property voluntarily made and

without consideration by a person called as the donor to a person called as the donee,

and which is accepted by or on behalf of the donee; such acceptance must be give

within the lifetime of the donor and if the donee dies before acceptance, then the gift is
void.

4. A document or instrument of gift of immovable property requires compulsory

registration and it operates from the date of the execution of the gift deed.

5. Section 122 and Section 123 of the Transfer of Property Act, 1882 read with Section 47
of the Registration Act, 1908 provides that, the gift becomes enforceable from the date of
 the signing of the gift deed; it is also pertinent to mention here that mere registration
of the gift deed would not by itself be an evidence of gift having been made, as the
ingredients set forth under Section 122 of the Transfer of Property Act, 1882 are required to
be fulfilled.

6. In the case of, Hafeeza Bibi & Ors. v. Shaikh Farid, (2011) 5 SCC 654, the Supreme
Court of India held that, the position in regards to gift(s) under Muslim law is well settled
that is, there are three (3) essentials of a gift under the Muhammadan law, these are: (1)
Declaration of the gift by the donor; (2) Acceptance of the gift by the donee; and (3)
Delivery of possession

It is the document and not the transaction that is required to be registered. Similarly a
document which does not create interest in any immovable property is not required to
be registered. A document in question if it is not an operative document, and it does not contain
all the essentials of the transaction, then it does not require registration.

The registration work is carried out by the Sub-Registrars in their sub-areas according to their
jurisdictional or territorial sub-divisions in each district under the control of the Registrar
posted for the aforesaid purpose at the district headquarter
Important Case-Laws:

1. Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana,1

a. That an immovable property can be legally and lawfully transferred/

conveyed only by a registered deed of conveyance.

b. Transactions in the nature of ‘General Power of Attorney Sales’ or ‘Sale

by Agreement to Sell’ or ‘Transfer by Will’ are incapable of conveying title and
do not amount to transfer, nor can they be recognised as valid mode of
transfer of immovable property.

c. This rule applies not only to the deeds of conveyance in regards to

freehold property but also to transfer of leasehold property. A lease can
be validly transferred only vide a registered “Assignment of Lease”.

d. An ‘Agreement to Sell/General Power of Attorney/ Will’ transaction neither

conveys any title nor creates any interest in an immovable property.

3. Tek Bahadur Bhujil v. Debi Singh Bhujil, 2: In this case, it was held that, where a
family arrangement was brought about by a document in writing with the purpose of
using that writing as a proof of what the family had arranged for, then such a document
would require compulsory registration because it is then that such a document would
amount to a document of title declaring for future, what rights/claims and what
properties the parties i.e. each member of the family would possess or enjoy.

4. Ghulam Ahmad v. Ghulam Qadir,3 In this case, it was held that, when the
agreement is purely mutual and a family one for the enjoyment of property
without limiting or extinguishing the right of anybody, then it may not registered. It
was held that, after examining, whether or not, a document is compulsorily
registrable under Section 17 of the Registration Act, 1908, comes the stage of
examining the document and seeing whether it could be admitted to registration
in view of Section 21 of the 1908 Act, once is it found that the document is to be
compulsorily registered. Thus, the test is, if the document is hit by any of the provisions
of Section 17 of the 1908 Act, the application or non-application of Section

A document which comes within the terms of Section 17(1) (b) of the 1908 Act is
compulsorily registrable; whatever is saved from the operation of this clause

1
AIR 2012 SC 206
2
AIR 1966 SC 292
3
AIR 1968 J. & K. 35
 (that is, clause (b) of sub-section (1) of Section 17 of the 1908 Act) of the Section is
not compulsorily registrable.

A compromise is a settlement of disputed claim and applies to demands of all sorts.

Where it merely contains a recital of a previous agreement, it does not require
registration, but where the compromise itself declares a right to immovable property
then it operates as a contract and requires registration.

5. Ram Sewak Jaiswal v. Abdul Majeed,4 In this case it was held as follows:

i. In case of an agricultural lease, a registered kabuliyat coupled with acceptance

of the same by the landlord is sufficient to constitute a lease in the eyes of law.

ii. A rent-note or kabuliyat is executed unilaterally by the lessee alone, by which,

the lessee agrees to take some immovable property on lease from the lessor. A
rent-note or kabuliyat comes within the definition of the term ‘lease’ for the
purposes of Section 2(7) of the Registration Act, 1908, though it cannot
be termed as ‘lease’ sensu stricto for the purposes of Section 107 of the Transfer
of Property Act, 1882, however, it shall require compulsory registration if it is
executed for a period stated in Section 17(1) (d) of the Registration Act, 1908.

iii. A rent-note or kabuliyat is inadmissible in evidence if it is not registered,

though it requires compulsory registration under Section 17(1) of the
Registration Act, 1908.

6. Naran Das Karsan Das v. S.A. Kamtam, 5

a. Section 59 of the Transfer of Property Act, 1882 provides that where the principal
money secured is Rs. 100/- or upwards, a mortgage other than a mortgage
bydeposit of title-deeds can be effected only by a registered instrument signed by
the mortgagor (that is, the person who mortgages the property) and attested by at
least two witnesses.

(Note: Section 59 of the Transfer of Property Act, 1882: Mortgage when to be by

assurance)

b. A mortgage by deposit of title-deeds may be created without any writing and

merely by delivery of title-deeds with the intention of creating a security for
a debt; no question of registration arises in such a transaction.

4
AIR 1980 All. 262
5
AIR 1977 SC 774:
 c. In case of a simple mortgage there must be a registered document. A document
would require registration if independently of the provisions of Section 58(f) of the
Transfer of Property Act, 1882, it creates a mortgage.

7. Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra,6

It was held that the essential conditions which are required to be fulfilled if
a transferee (the one to whom the property has been transferred by the transferor)
wants to defend or protect his possession under Section 53-A of the Transfer
of Property Act, 1882, are as follows:

I. There must be a contract for transfer of any immovable property

for consideration;

II. The contract must be writing, signed by the transferor, or by someone on his
behalf;

III. The writing must be in such words from which the terms necessary to construe
the transfer can be ascertained;

IV. The transferee must in part-performance of the contract take possession of the
property, or any part thereof;

V. The transferee must have done some act in furtherance of the contract; and,

VI. The transferee must have performed or be willing to perform his part of the
contract.

8. State of Rajasthan v. Basant Nahata,7 In this case it was held as follows:

i. A grant of power of attorney is essentially governed by Chapter X ICA.

ii. A power of attorney is not an instrument of transfer in regard to any right, title or
interest in an immovable property;

iii. A power of attorney is creation of an agency where by the grantor authorises the
grantee to do the acts specified therein, on behalf of grantor, which when executed
will be binding on the grantor as if done by him (See: Section 1-A and Section 2 of
the Powers of Attorney Act, 1882);

iv. A power of attorney is revocable or terminable at anytime unless it is made

irrevocable in a manner known to law;

6
AIR 2004 SC 4342:
7
(2005) 12 SCC 77
 v. Even an irrevocable power of attorney does not have the effect of transferring title
to the grantee;

vi. A power of attorney is nothing but a document of convenience;

9. Bina Murlidhar Hemdev v. Kanhaiyalal Lokram Hemdev,8

Held that, after a document is registered, the Sub-Registrar ceases to have jurisdiction
over the matter. It is only before the registration of the document that, for reasons to be
recorded, the Sub-Registrar can refuse to register the document within the mandate of
Section 71 of the Registration Act, 1908.

10. K. Raghunandan & Ors v. Ali Hussain Sabir & Ors,9

Section 17(2) (vi) of the Registration Act, 1908 states that, nothing in clauses (b) and
(c) of Section 17(1) shall apply to: “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 or proceeding”.

11. Bhoop Singh v. Ram Singh Major, 10

It was held that, if a decree is passed regarding some immovable property which is not
the subject matter of the suit, then, it (that is, the decree) will require compulsory
registration. That is, if a suit is filed in respect of property ‘A’, but, the decree is in
respect of immovable property ‘B’, then the decree so far as it relates to immovable
property ‘B’, will require compulsory registration;

13. K.B. Saha & Sons Pvt. Ltd. v. Development Consultant Ltd.,11

It was held that, there are certain exceptions to the general rule that insufficiently
stamped documents and unregistered documents are not admissible in evidence.

14. S. Kaladevi v. V.R. Somasundaram,12

It was held that, Proviso to Section 49 of the Registration Act, 1908 would show that an
unregistered document affecting an immovable property required to be registered

8
AIR 1999 SC 2171:
9
AIR 2008 SC 2337
10
AIR 1996 SC 196
11
(2008) 8 SCC 564
12
AIR 2010 SC 1654
 may be received as an evidence to the contract in a suit for specific performance or
as an evidence of any collateral transaction not required to be effected by registered
instrument. Therefore, the court opined that, by virtue of Proviso to Section 49 of the
Registration Act, 1908 an unregistered sale-deed can be admitted in evidence of a
contract in a suit for specific performance of the contract. When an unregistered
sale-deed is tendered in evidence not as evidence of a completed sale but as proof
of an oral agreement of sale, the deed can be received in evidence making an
endorsement that it was received only as evidence of an oral agreement of sale
under Proviso to Section 49 of the Registration Act, 1908.

15. Bajaj Auto Ltd. v. Behari Lal Kohli,13

It was held that, if a document is inadmissible in evidence for want of

registration then all the terms/stipulations/clauses albeit the unregistered
document in question are inadmissible in evidence including the one dealing with
landlord’s permission to his tenant to sub-let. If a lease-deed is inadmissible in
evidence for the want of registration then to use such an unregistered lease-deed to
prove an important clause as regards such a lease-deed is not using such an unregistered
lease-deed for collateral purposes.

16. State of U.P. v. District Judge & Ors,14 It was held that, as per Section 54 of the
Transfer of Property Act, 1882, an immovable property of the value of Rs. 100 and
upwards can be conveyed/transferred only by way of a registered sale- deed. Further,
Section 53-A of the Transfer of Property Act, 1882 provides a shield of protection to
the proposed transferee, enabling him to remain in possession of the property in
question, as against the original owner who has agreed to sell that property to the
proposed transferee; this protection is available to the proposed transferee provided
that the proposed transferee satisfies all other conditions as provided for by Section 53-
A of the Transfer of Property Act, 1882.

17. Meghmala v. G. Narasimha Reddy & Ors,15

It was held that, an agreement to sell does not create any right, title or interest in favour
of the intending buyer. An agreement to sell does not fall within the mischief of Section
53-A of the Transfer of Property Act, 1882 or Section 17(1A) of the Registration Act,

13
AIR 1989 SC 1806
14
(1997) 1 SCC 496
15
(2010) 8 SCC 383
 1908, and hence, an agreement to sell does not require registration. An agreement to
sell, at best, falls under the mischief of Section 17(2) (v) of the Registration Act,
1908, as an agreement to sell does not create, declare, assign, limit or extinguish, any
right, title or interest in any immovable property of the value of Rs.100 and upwards,
but rather it creates a right in favour of the intending buyer of the immovable property
to obtain another document, that is, the registered sale-deed, in future. Thus, an
agreement to sell does not require registration under the mischief of the
provisions of the Registration Act, 1908.

20. Dinaji v. Daddi, 16

It was held that, an adoption deed, reciting only about the factum of adoption does not
require compulsory registration, however, if the adoption deed, not only states about
the factum of adoption but also states that, pursuant to adoption, the adoptee shall
acquire certain right, title or interest in an immovable property of the value of Rs.100
and upwards, then such an adoption deed would require compulsory registration.

16
AIR 1990 SC 1153