Legal Service India - Sec 17 of Indian Registration Act, 1908
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Sec 17 of Indian Registration Act, 1908

Written by: Mukesh Chouhan - Vth Year Student, National Law Institute University, Bhopal (M.P)
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Indian Registration Act is an act to consolidate the enactments relating to the registration of documents. Registration means recording of the contents of the document. The object of registration is conservation of evidence and title. Section 17 of the Indian Registration Act 1908, deals with the documents that are compulsory to be registered.

The section runs as follows:
Section 17 - Indian Registration Act, 1908
(1) The following documents shall be registered, if the properties to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, of the Indian Registration Act 1866, or the Indian Registration Act 1871, or the Indian Registration Act 1877, or the this Act came or comes into force, namely:-
(a) instruments of gift of immoveable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immoveable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property (Added by Act No. 21 of 1929);
PROVIDED that the State Government may, by order published in Official Gazette, exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rent reserved by which do not exceed fifty rupees.
(2) Nothing in clauses (b) and (c) of sub-section (1) applies to -

(i) any composition-deed; or

(ii) any instrument relating to shares in a joint stock company, notwithstanding that the assets of such company consists in whole or in part of immoveable property; or
(iii) any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immoveable property except insofar as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immoveable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) any endorsement upon or transfer of any debenture issued by any such company; or

(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right or title or interest of the value of one hundred rupees and upwards to or in immoveable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) any decree or order of a court [except a decree or order expressed to be made on a compromise and comprising immoveable property other than that which is the subject-matter of the suit or proceedings] (Substituted by Act No. 21 of 1929 for the words 'and any award');

(vii) any grant of immoveable property by government; or

(viii) any instrument of partition made by a revenue officer; or

(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act 1871, or the Land Improvement Loans Act 1883; or

(x) any order granting a loan under the Agriculturists Loans Act 1884, or instrument for securing the repayment of a loan made under that Act; or

[(x-a) any order made under the Charitable Endowments Act 1890 (6 of 1890) vesting any property in a treasurer of Charitable Endowments or divesting any such treasurer of any property; or] (Inserted by Act No. 39 of 1948)

(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a civil or revenue officer.

Explanation: A document purporting or operating to effect a contract for the sale of immoveable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money. (Inserted by Act No. 2 of 1927)

(3) Authorities to adopt a son, executed after the 1st day of January 1872, and not conferred by a will, shall also be registered.

Scope of Section 17

(1) Where the award was made prior to the enforcement of the Registration Amending Act of 1929, held its non-registration would not affect its validity.

(2) It was held that even though a part of the compromise related to the property which was beyond the subject matter of the suit, had been incorporated in the compromise decree and although not being a part of the operative portion thereof did not require registration.

(3) It was further observed that in spite of this it narrowed the scope of the exemption clause and provided that if the decree or order referred to the property other than that which was the subject-matter of the suit or proceeding, it would require registration.

(4) Where the registration of an instrument embodying a contract is necessary, it is essential that each of the parties thereto should do for the acts all that is necessary towards securing registration of the instrument.

(5) Where the terms of the document render it compulsory registered under section 17, it cannot make be taken out of its purview merely because it cannot be admitted to registration as it does not specify the property as required by section 21.

(6) In the context of section 17 of the Act, a document is the same as an instrument and to draw nice distinctions between the two only serves to baffle, not to illumine.

Essentials of Section 17

Section 17 of the Indian Registration Act (Act XVI of 1908) would be attracted in a case where the disputes relates to a charge sought to be created by a debenture on immoveable property which was existent at the date of the creation of the charge and was in the ownership of the company at that date. It would, therefore, necessarily follow from it that a debenture which seeks to create, declare or limit any right, title or interest to or in immoveable property would be covered by clause (b) of sub-section (1) of section 17 of the Indian Registration Act 1908.

When A Document Needs Registration?

There are several documents that are not compulsorily register able under section 17 of the Registration Act 1908. Some of them require high stamp duty and some of them do not. Even the ones that require high stamp duty, if they are under stamped, can be rectified later by paying a penal amount ten times the original amount. Non-payment of stamp duty does not make the document void or otherwise invalid.

The consequences of under stamping as per the stamp act are:
(1) to make the document inadmissible for the evidence before any authority capable of receiving evidence of before any public authority.
(2) the document can also be impounded for enforcing the payment of full stamp value. An under stamped instrument can be admitted as evidence in court, if penal stamp duty is ten times the value of the original amount, and is paid.

In conclusion, always register a document which is compulsory registerable or for which stamp duty is not high. Documents for which stamp duty is high and which do not require registration do not become invalid for want of proper stamp duty alone. But the rights of both parties should be protected in case of default, so consult a lawyer. Always give possession separately and never in the documents itself.

Section 17 & Section 53-A of Transfer of Property Act 1882

The combined effect of section 53-A of the Transfer of Property Act 1908 and section 17 of the Indian Registration Act is that an incomplete deed of transfer, though not registered or even attested, is regarded, as a contract in writing but such a deed must have been signed by the transferor or his agent.

An unregistered document affecting immoveable property, required by the Transfer of Property Act 1882 or the Registration Act 1908 to be registered, may be received in evidence of a contract in the suit for the specific performance or as evidence of part-performance of a contract for the purpose of section 53-A or as evidence of any collateral transaction not required by a registered instrument. Where the parties execute an unregistered sale deed without prior permission of the competent authority, the transaction will be void and this section will not be applicable. In cases, where land is transferred in lieu of dower and the bride was put in possession of it and a kabulnama was executed which was unregistered evidencing the transfer, it was held that section 53-A of the Transfer of Property Act 1882 would apply to such a case and a suit by the father in law and a declaration of title and possession will fall.

In Haji Mokshed Mondal Vs. Del Rouson Bibi. (AIR 1971 Cal. 162), it was held that section 53-A of the Transfer of Property Act 1882 precludes from enforcing any rights in respect of the disputed property inconsistent with or not mentioned in the said contract and therefore, the suit was dismissed.

Section 17 and Section 54 of Transfer of Property Act 1882

The combined effect of section 54 of the Transfer of Property Act 1882 and section 17 of the Registration Act 1908 is that, a contract of sale in respect of immoveable property of the value of more than one hundred rupees without registration cannot extinguish the equity of redemption. In India, it is only on execution of the conveyance and registration of transfer of the mortgager's interest by registered instrument that the mortgagor's right of redemption will be extinguished. The conferment of power to sell without intervention of the court in a mortgage deed by itself will not deprive the mortgagor of his right to redemption. The extinction of the right to redemption has to be subsequent to the deed conferring such power. The right of redemption is not extinguished at the expiry of the period. The equity of redemption is not extinguished by mere contract of sale.

The mortgagor's right to redeem will survive until there has been completion of sale by the mortgagee by a registered deed. It must also be noted that section 17 of the Indian Registration Act 1908 or the second para of the Transfer of Property Act 1882, will have no application to the agreement to recover property, being non-creation of any interest in the immoveable property.

In Narandas Karsondas vs. S.A. Kantam (AIR 1977 SC 774), it was held that the mortgagor has a right to redeem unless the sale of the property was complete by registration in accordance with the provisions of the Registration Act 1908, and therefore, the appeal was dismissed.

Conclusion
In the light of the analysis of section 17 of Indian Registration Act 1908 and a comparative study of section 17 and section 53-A and section 54 of the Transfer of Property Act 1882, it can be fairly concluded that-
(1) an incomplete deed of transfer, though not registered or even attested, is regarded, as a contract in writing but such a deed must have been signed by the transferor or his agent and an unregistered document, affecting immoveable property, required by the Transfer of Property Act 1882, or the Indian Registration Act 1908, to be registered, may be received in evidence of part-performance of a contract or as evidence of any collateral transaction not required by a registered instrument.

(2) a contract of sale in respect of immoveable property of the value of more than one hundred rupees without registration cannot extinguish the equity of redemption.

The author can be reached at: lawyermukesh@legalserviceindia.com - Ph No: +91-9425674758 / Print This Article

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