1

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.
Note:

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 given.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.
4. 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,
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1882 are
 3

required to be fulfilled.
5. According to Section 129 of the Transfer of Property Act, 1882, a gift of moveable
property in contemplation of death shall not be deemed to have affected any of the
rules under the Muhammadan law. Hence, the law with respect to gift(s) and its
validity have to be understood solely with regards to the Muslim law. Thus, Section
129 of the Transfer of Property Act, 1882 excludes the applicability of Section 123 of
the Transfer of Property Act, 1882 on gift(s) been made by the Muslims. A gift under
the Muslim law is called “Hiba”.
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 and the same has been stated and restated time and again, 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. Though rules of Muhammadan law do not make writing essential to the
validity of a gift, an oral gift fulfilling all the three (3) essentials makes the gift
complete and irrevocable. However, the donor may record the transaction of gift in
writing.
7. If a Muslim gifts an immovable property to a Hindu by way of a written document,
does it require registration? No.

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. Non-registration of
documents as required to be registered makes them unacceptable to be read into evidence of
any transaction affecting such property or conferring such power.

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 headquarters. If the Sub-Registrar refuses the
registration or lingers it for no cogent reason or the person affected otherwise feels aggrieved
from the treatment of the meted out to him at the office of the Sub-Registrar, then he may
make a complaint thereof to the Registrar of the district for redressal of his grievance.
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Important Terms:

Doctrine of Res Nullius: This doctrine states that, no property can be without
an owner at any point of time.

Moveable Property: According to Section 2(9) of the Registration Act, 1908,

moveable property includes standing timber, growing crops and grass, fruit
upon and juice in trees, and property of every other description, except
immovable property.

Immovable Property: The term immovable property includes: land; benefits

arising out of land; and things attached to the earth, or permanently fastened to
anything attached to the earth (See: Section 3(26) of the General Clauses Act,
1897). For the purposes of the Transfer of Property Act, 1882, immovable
property does not include: standing timber, growing crops and grass.

Document: The term document has not been defined under the Registration
Act, 1908, but, it has been defined under Section 3(16) of the General Clauses
Act, 1897 as follows: “document” shall include any matter written, expressed or
described upon any substance by means of letters, figures or marks or by more
than one of these means, which is intended to be used or which may be used, for
the purpose of recording that matter.

According to Section 3 of the Indian Evidence Act, 1872, a document shall

mean any matter expressed or prescribed upon any substance by means of letters
or marks intended to be used for the purpose of recording that matter. Section 29
of the Indian Penal Code, 1860 provides a similar definition of the term
‘document’.

Instrument: The term ‘instrument’ has not been defined under the Registration
Act, 1908; however, the same has been defined under Section 2(14) of the
Indian Stamp Act, 1899 to include every document by virtue of which any right
or liability is, or, purports to be, created, transferred, extended, extinguished or
recorded.
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Important Case-Laws:

1. Hansia v. Bakhtawarmal, AIR 1958 Raj 102: The question of law that arose for
adjudication in this case was this- how far a non-registered document, which is
compulsorily required to be registered under Section 17 of the Registration Act, 1908, can
be used in a proceeding. The document in question in the present case was a mortgage
deed which was not registered, although registration of such documents is obligatory
under Section 17(1) of the Registration Act, 1908. In this case, it was held that, a suit for
redemption based on an un-registered mortgage deed is bound to fall, much because the
purpose of the mortgage deed is to prove the mortgage. The un- registered mortgage deed
can be used only for collateral purposes as provided for in the proviso to Section 49 of the
Registration Act, 1908. The necessary conclusion is this, that, the un-registered mortgage
deed can be used by the plaintiff in a suit for possession (and not in a suit for redemption)
to prove the “nature of possession”, if the defendant denies the claim of the plaintiff on
the ground of adverse possession. Thus, proviso to Section 49 of the Registration Act,
1908 cannot be relied upon for availing any benefit in a suit for redemption. Collateral
purpose connotes a purpose other than that for creating, assigning, declaring,
extinguishing or limiting a right to an immovable property; documents requiring
compulsory registration under the Registration Act, 1908, can be used for collateral
purpose.

Note: The property mortgaged is only a security for the payment of the money lent.
The mortgagor is entitled to get back his property on payment of the principal and
interest after the expiry of the due date for the repayment of the mortgagee's money.
This right of the mortgagor is called the Right of Redemption.
Note: The term “collateral transaction” is used not in the sense of an ancillary
transaction to a principal transaction or a subsidiary transaction to a main transaction.
The root meaning of the word “collateral” is running together or running on parallel
lines. The transaction as recorded would be a particular or specific transaction. But it
would be possible to read in that transaction what may be called the purpose of the
transaction and what may be called a collateral purpose, the fulfilment of that
collateral purpose would bring into existence a collateral transaction, a transaction
which may be said to be a part and parcel of the transaction but none the less a
transaction which runs together with or on parallel lines with the same.
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2. Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR 1966 SC 292: 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.

3. Ghulam Ahmad v. Ghulam Qadir, AIR 1968 J. & K. 35: 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 be 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 21 of
the 1908 Act does not at all arise for consideration, because it is the second-step in the chain of
steps which completes the registration formality.
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 (that
is, clause (b) of sub-section (1) of Section 17 of the 1908 Act) of the Section is not
compulsorily registrable.
Document is any substance having any matter expressed or described upon it by marks
capable of being read. As per the law for time being in force in India, it is the matter
written and not the substance on which the matter is expressed or described which is said
to be a document.
Meaning of the words- creating, declaring, limiting and extinguishing:
• The word “create” in legal terminology means to bring into being, to invest with a
new title, or to produce. Therefore, every non-testamentary instrument which means to,
or has the effect of originating some right, title or interest in immovable property will be
governed by the word “create”.
• The word “declare” is equivalent to “define” or “authoritatively set forth”; a mere
recital of fact does not tantamount to a declaration.
• The word “limit” connotes restriction of some right or interest in immovable property.
• The word “extinguish” is a counter-part of the word “create”, for it means “to bring to
an end” or to “quench” some right, title or interest in immovable property.
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4. Ram Sewak Jaiswal v. Abdul Majeed, AIR 1980 All. 262: 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.
iv. Note: The period for which the house was taken according to the terms of the
rent-note was for 11 months and the rent reserved was Rs. 5/- per month, it
was held that, no compulsory registration was required as regards Section
17(1) (d) of the Registration Act, 1908, although the above arrangement shall
constitute a lease within the mischief of Section 2(7) of the Registration Act,
1908. Thus, no registration was required, neither within the mandate of
Section 17 of the Registration Act, 1908, nor within the mandate of any of the
provisions of the Transfer of Property Act, 1882, as the lease was for a period
which was less than one-year.
(Note: Section 2(7) of the Registration Act, 1908: “lease” includes a
counterpart, Kabuliyat, as undertaking to cultivate or occupy, and an
agreement to lease)
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5. K. Raghunandan & Ors v. Ali Hussain Sabir & Ors, AIR 2008 SC 2337:
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 ororder
expressed to be made on a compromise and comprising immovable property other than that
which is the subject-matter of the suit or proceeding”.

Thus, the exception contained in Section 17(2) (vi) of the Registration Act, 1908 states that, if a
suit is filed by the plaintiff in respect of immovable property ‘X’, then, a decree in that suit in
respect of immovable property ‘Y’ (which was not the subject matter of the suit at all) will require
registration. It was held that, if a right is created or extinguished by virtue of a compromise
decree, then such a decree would require compulsory registration, however, Section 17(2) (vi) of
the Registration Act, 1908 stands as an exception to this.The legal position as regards Section
17(2) (vi) of the Registration Act, 1908 can be summarised as follows:
a. A compromise decree, if bona fide, in the sense that the compromise is not a
device to obviate payment of stamp duty and/or frustrate the law relating to
registration, then, it would not require compulsory registration;
b. If the compromise decree was to create for the first time, any right, title or interest
in an immovable property of value of Rs. 100/- or upwards in favour of any party
to the suit, then such a decree or order of the court would require compulsory
registration;
c. If the decree or the order of the court does not attract any of the clauses as regards
Section 17(1) of the Registration Act, 1908, then such decree or order of the court
would not require compulsory registration;
d. If decree of a court does not embody the terms of the compromise, then, the
benefit from the terms of the compromise cannot be derived, even if, a suit were to
be disposed of because of the compromise in question. Thus, where a suit is
disposed of stating, “Suit compromised and accordingly dismissed”, it could not
be said to have embodied the terms of the compromise. However, where the suit is
disposed of stating, “Suit decreed in terms of the compromise” or “Suit dismissed
in terms of the compromise”, it can be said that the terms of the compromise are
embodied in the decree of the court.
e. A decree or order of the court including a decree or order expressed to be made on
a compromise which declares the pre-existing right and does not by itself create
any new right, title or interest in praesenti in immovable property of value of Rs.
100/- or upwards, does not require registration.
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6. Bhoop Singh v. Ram Singh Major, AIR 1996 SC 196:

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; this is the plain meaning of Section
17(2) (vi) of the Registration Act, 1908.
7. K.B. Saha & Sons Pvt. Ltd. v. Development Consultant Ltd., (2008) 8 SCC 564: It was
held that, there are certain exceptions to the general rule that insufficiently stamped
documents and unregistered documents are not admissible in evidence. The court
summarising the law as regards necessity of affixation of appropriate stamp duty and
compulsory registration of documents held as under:
i. A document required by law to be registered, if unregistered, is not admissible
into evidence by virtue of Section 49 of the Registration Act, 1908;
ii. Such unregistered document can however be used as an evidence for collateral
purpose (for instance, in case of a lease-deed, the term ‘collateral purpose’
would mean proving the nature and character of the possession and the
purpose of leasing out) as provided for in the Proviso to Section 49 of the
Registration Act, 1908;
iii. A collateral transaction must be independent of, or must be divisible from, the
transaction as regards which registration is compulsorily required under law;
iv. A collateral transaction must not be a transaction which: creates, declares,
assigns, limits or extinguishes any right, title or interest in an immovable
property of Rs. 100/- and upwards.
v. If a document is inadmissible in evidence for want of registration, then, none
of its terms can be admitted in evidence and that to use a document for the

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; this is the plain meaning of Section
17(2) (vi) of the Registration Act, 1908.
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8. K.B. Saha & Sons Pvt. Ltd. v. Development Consultant Ltd., (2008) 8 SCC 564: It was
held that, there are certain exceptions to the general rule that insufficiently stamped
documents and unregistered documents are not admissible in evidence. The court
summarising the law as regards necessity of affixation of appropriate stamp duty and
compulsory registration of documents held as under:
vi. A document required by law to be registered, if unregistered, is not admissible
into evidence by virtue of Section 49 of the Registration Act, 1908;
vii. Such unregistered document can however be used as an evidence for collateral
purpose (for instance, in case of a lease-deed, the term ‘collateral purpose’
would mean proving the nature and character of the possession and the
purpose of leasing out) as provided for in the Proviso to Section 49 of the
Registration Act, 1908;
viii. A collateral transaction must be independent of, or must be divisible from, the
transaction as regards which registration is compulsorily required under law;
ix. A collateral transaction must not be a transaction which: creates, declares,
assigns, limits or extinguishes any right, title or interest in an immovable
property of Rs. 100/- and upwards.

If a document is inadmissible in evidence for want of registration, then, none

of its terms can b purpose of proving an important clause would not be using it
as a collateral purpose;
x. The Indian Stamp Act, 1899 is a fiscal legislation the primary object of which
is to collect revenue for the State and to prevent its evasion. Any ambiguity or
doubt in any of the provisions of the 1899 Act has to be resolved in favour of
the citizen. An objection with respect to the admissibility of a document on
account of insufficiency of stamps or improper cancellation of stamps (See:
Section 12 of the Indian Stamp Act, 1899) cannot be entertained after the
evidence has been adduced and the document has been exhibited on record; in
such cases where a document has been admitted and placed on record as an
exhibit the same cannot be controverted either by trial court or the appellate
court or in revision. However, a mere marking of a document as an exhibit on
record does not dispense with the proof thereof.
Note: If a mortgage-deed is not registered, the mortgagor cannot use it to
prove his right of redemption for that is not a collateral purpose.
xi. e admitted in evidence and that to use a document for the purpose of proving
an important clause would not be using it as a collateral purpose;
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xii. The Indian Stamp Act, 1899 is a fiscal legislation the primary object of which
is to collect revenue for the State and to prevent its evasion. Any ambiguity or
doubt in any of the provisions of the 1899 Act has to be resolved in favour of
the citizen. An objection with respect to the admissibility of a document on
account of insufficiency of stamps or improper cancellation of stamps (See:
Section 12 of the Indian Stamp Act, 1899) cannot be entertained after the
evidence has been adduced and the document has been exhibited on record; in
such cases where a document has been admitted and placed on record as an
exhibit the same cannot be controverted either by trial court or the appellate
court or in revision. However, a mere marking of a document as an exhibit on
record does not dispense with the proof thereof.
Note: If a mortgage-deed is not registered, the mortgagor cannot use it to
prove his right of redemption for that is not a collateral purpose.

9. S. Kaladevi v. V.R. Somasundaram, AIR 2010 SC 1654: 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 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.

10. Bajaj Auto Ltd. v. Behari Lal Kohli, AIR 1989 SC 1806: 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.
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The School of Legal Studies

ASSIGNMENT –I
(SOLS 515A)

TOPIC

THE REGISTRATION ACT, 1908

Critical Analysis

Submitted By:

GARIMA
2005170031
B.A.LLB
Xth - semester

Submitted To: Ms. SADHANA NIRBAN