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RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,PUNJAB,
PATIALA
EVIDENTIARY VALUE OF NON REGISTERED DOCUMENTS
PROPERTY LAW PROJECT
VSEMESTER
SUBMITTED TO: SUBMITTED BY GROUP 11:
PROF.M.R.GARG ANAND RAJA (335)
SOURABH RATH (342)RAVINDRA MANI MISHRA (347)
ASHISH KUMAR (306)
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TABLE OF CONTENTS
ACKNOWLEDGEMENT...............................................................................................................1
1.INTRODUCTION......................................................................................................................2
1.1SCOPE OF THE PROJECT..................................................................................................2
1.2RESEARCH METHODOLOGY............................................................................................2
1.3DOCUMENT UNDER INDIAN LAW....................................................................................2
1.4THE EVIDENCEACT.........................................................................................................3
1.5THE REGISTRATIONACT.................................................................................................5
1.6THE PROPERTY ACT........................................................................................................6
1.7JUDICIAL PROCESS ANDREGISTRATION.........................................................................6
2.DOCUMENTS REQUIRING REGISTRATION............................................................................8
2.1REGISTRATIONACT,1908.................................................................................................8
2.2APPLICATION OF SECTION 17........................................................................................11
2.3COMPULSORYREGISTRATION.......................................................................................11
2.4BENEFITS OFREGISTRATION.........................................................................................12
3.LAND REGISTRATION IN OTHER JURISDICTIONS...............................................................13
3.1TORRENS TITLE.............................................................................................................13
4.EVIDENTIARY EFFECT OF NON REGISTRATION OF DOCUMENTS................................... 15
4.1EFFECT OF NON REGISTRATION OFSALE.................................................................15
4.2EFFECT OF NON REGISTRATION OF LEASE..............................................................16
4.2.1LEASE HOW MADE:EFFECT OF NON REGISTRATION OF DOCUMENTS.................. 16
4.3EFFECT OF NON REGISTRATION OF MORTGAGE..................................................... 19
4.4EFFECT OF NON REGISTRATION OF EXCHANGE...................................................... 20
4.5EFFECT OF NON REGISTRATION OF ACTIONABLE CLAIMS..................................... 21
4.6EFFECT OF NON-REGISTRATION OF GIFT DEED......................................................... 21
CONCLUSION...........................................................................................................................23
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BIBLIOGRAPHY........................................................................................................................24
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ACKNOWLEDGEMENT
We would like to thank Prof. M.R. Garg for giving us theopportunity for working on such ariveting topic. We are verygrateful for all the help and guidance he has provided us inthe
course of our work and research. We are also very grateful tothe library for maintaining and
updating it with current research materials. We would also liketo thank all the people who
were directly and indirectly associated with the making of thisproject. Last but not the least,
we would like to thank RGNUL for providing us the wonderfulinternet infrastructure which
formed a base for the majority of our research.
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I
INTRODUCTION
1.1 SCOPE OF THE PROJECT
The current project deals with one issue which is vast andconstricted at the same
time: The Evidentiary Value of Non-Registration of Documents.This project deals with three
pieces of legislation namely: the Indian Evidence Act, 1872, theRegistration Act, 1908 and
the Transfer of Property Act, 1882. The aim of this project isto examine the evidentiary
value of non-registration of documents and the necessity of suchregistration.
1.2 RESEARCH METHODOLOGY
Various kinds of sources have been consulted for the creation ofthis project; however
maximum reliance is on doctrinal sources, a la books, researcharticles, electronic sources,
judicial decisions and web sites. The citation format followedthroughout this project is the
Harvard Bluebook: A Uniform Method of Legal Citation.
1.3 DOCUMENT UNDER INDIAN LAW
Documents have had a very crucial role in the law of evidence invarious legal
systems around the world. The sole reason for this is thatdocuments are a form of permanent
record which cannot be easily altered or changed. If there aretwo different versions of the
same document then the authenticity of one can be easilyverified and pronounced.
Document as a word has been aptly defined in the Indian EvidenceAct, 1872.1
According to the definition provided in the above mentioned Act,a document is taken to
1 Defined in Section 3 of the Indian Evidence Act,1872:"Document" means any matter expressed or
described upon any substance by means of letter, figures ormakes, or by more than one of those means,
intended to be used, or which may be used, for the purpose ofrecording that matter.
A writing is a document;
Words printed, lithographed or photographed are document;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.
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mean any matter described or expressed upon any substance in theform of letters, figures or
other images which is used specifically to record suchinformation. The definition then goes
on to provide many examples of what may be documents, i.e. awriting is a document, printed
words, lithographed words and photographs are documents, a mapis a document, a plan is a
document, a caricature, an inscription on a stone or a metalplate are all documents.
The definition of document thereby was limited to those exactwords of the legislature
till the year 2000 when theInformation Technology Act, 2000 waspassed by the Parliament.
The Act introduced some changes to theIndian Evidence Act, 1872which was dealt with in
Section 92 and Schedule II.2
Schedule 2 of the Act made various changes to the existingprovisions of the Indian
Evidence Act, 1872 in the sense that it included electronicrecords to be a form of evidence
and with the insertion of Section 65-B(1),3
electronic information which was printed on paper
or stored, recorded or copied on a magnetic or optical mediumwas deemed to be a document.
So in essence, theInformation Technology Act, 2000 deemedelectronic information to be a
document subject to certain conditions that the computerrecording the information had to
meet.4
This project discusses the evidentiary value of non-registereddocuments in the ambitof three legislations. The Registration Act,1908, the Indian Evidence Act, 1872 and the
Transfer of Property Act, 1882.
1.4 THE EVIDENCE ACT
The statutory provisions regarding evidence in India are allregulated by the Indian
Evidence Act, 1872. Evidence forms the basis of all forms oflitigation and court activities in
the world. It is the very basis on which an incident can bedeclared as a fact before a court of
2 Section 92, Information Technology Act, 2000: The IndianEvidence Act, 1872 shall be amended in the
manner specified in the Second Schedule of the Act.
3 Section 65-B(1), Indian Evidence Act, 1872: Notwithstandinganything contained in this Act, any
information contained in an electronic record which is printedon a paper, stored, recorded or copied in
optical or magnetic media produced by a computer (hereinafterreferred to as the computer output) shall be
deemed to be also a document, if the conditions mentioned inthis section are satisfied in relation to the
information and computer in question and shall be admissible inany proceedings, without further proof or
production of the original, as evidence of any contents of theoriginal or of any fact stated therein of which
direct evidence would be admissible.
4 See Section 65-B(2),Indian Evidence Act, 1872.
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law. Evidence is the very foundation on which a case moves fromdetermination to the
determination of legal issues. Every time a trial is in progressthere is an undisputable need
for evidence and all the substantial provisions of evidence inIndia are dealt with by the
Indian Evidence Act, 1872.
Evidence may be defined as any material which tends to persuadethe court of the
truth or probability of some fact asserted before it.5
At its most general level the term means
those items of information presented to the Court by partiestrying to persuade it of the
correctness of their argument.6
To put it even more simply, an evidence is something which
may satisfy an inquirer of the facts existence.7
Evidence as used in judicial proceedings has
several meanings. The two senses of the word are: first, themeans whereby the Court is
informed as to the issues of fact as ascertained by thepleadings; secondly, the subject matter
of such means.8
Prior to the creation of theIndian Evidence Act, 1872 evidencein India was a bunch
of confused rules which was worked on by the various provisionsmentioned in religious texts
and the drastically distinct personal laws. It was the work ofSir James Stephen that created a
consolidated form of rules regarding the admissibility andacceptability of various forms and
kinds of evidence.
The enactment and adoption of the Indian Evidence Act, 1872 wasa path-breaking
judicial measure introduced in India, which changed the entiresystem of concepts pertaining
to admissibility of evidences in the Indian courts of law. Up tothat point of time, the rules of
evidences were based on the traditional legal systems ofdifferent social groups and
communities of India and were different for different personsdepending on his or her caste,
religious faith and social position. The Indian Evidence Act,1872 removed this anomaly and
differentiation, and introduced a standard set of law applicableto all Indians.
5 PETER MURPHY,APRACTICAL APPROACH TO EVIDENCE 1(2nd ed.1985).
6STEVE UGLOW,EVIDENCE:CASES AND MATERIALS 14 (1997).
7 CROSS &TAPPER ,EVIDENCE 1(8th ed. 1995).
8 PHIPSON,EVIDENCE 2(15th ed. 2000).
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The preamble of theIndian Evidence Act, 18729
states its objective to consolidate and
amend the existing provisions regarding evidence in Indian lawand it achieves the very
same.
1.5 THE REGISTRATION ACT
TheRegistration Act, 1908 was implemented in India to ensure auniform substantive
and procedural provision for the registration of documents. Themain reasoning behind it was
to ensure information regarding all land deals were gathered bythe state in order to ensure
maintenance of correct land records.10
The Registration Act, 1908 is the single piece of
legislation that provides the procedure for the registration ofdocuments which are mandatory
to be registered.
See AlsoNothing Personal 6 (F/F) - Stories of Tie Up GamesINSTITUTUL DE ISTORIE N. IORGA REVISTA ISTORICAiini.ro/Revista Istorica/RI_complet/1994/Revista_istorica...REVISTA ISTORICA ' apare de 6 ori pe an in numere duble. Pretul unui abonament - [PDF Document]Ayoade Pius on LinkedIn: #passion #youthdevelopment #linkedinfamilyUp Ladybug - Tenebrae_Vesper - Miraculous Ladybug [Archive of Our Own]The preamble ofThe Registration Act, 1908 declares the objectiveof the Act to be
one of consolidating the enactments related to the registrationof documents.11
Prior to the
implementation of this Act, the Registry laws relating toregistration of documents were to be
found in West Bengal Regulation, 1793; Bombay Regulation, 1800andMadras Regulation,
1802. TheIndian Registration Act, 1864 was enacted and it cameinto force in 1965, however
it was replace by Act 20 of 1866.
TheIndian Registration Act, 1871 was brought into force but itwas replaced by the
Indian Registration Act, 1877. After many amendments and changestheIndian Registration
Bill, 1908 was introduced in the legislature. This bill was theone that became the Indian
Registration Act, 1908 (16 of 1908). The Act was amended in196912
and the word Indian
was omitted. The Act then ultimately became the RegistrationAct, 1908. The Registration
Act, 1908 is divided into fifteen parts containing around ninetysections.
9Preamble,Indian Evidence Act, 1872 (Whereas it is expedient toconsolidate, define and amend the Law of
Evidence; it is hereby enacted as follows)
10 Seehttp://www.ccsindia.org/ccsindia/2006-dch/15_Registration%20of%20Documents.pdf(last visited on
October 12, 2010).
11 Preamble, The Registration Act, 1908.
12 Amended by TheIndian Registration (Amendment) Act, 1969.
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1.6 THE PROPERTY ACT
The legislation related to all manners of transactions in bothmovable and immovable
property is called as the Transfer of Property Act, 1882. Itsnot as if laws related to transfer
of property were non-existent in India before this enactment.They were strewn through the
various pieces of personal law that existed in India. Propertywas transferred by means of
succession, gift, etc. The preamble of the Act describes itsobjective as to amend certain parts
of the law relating to transfer of property by parties, therebyclearly showing that laws
regarding property were already pre-existing in India.
The Transfer of Property Act, 1882 allows various forms oftransfers, namely
mortgages,13
leases,14
gift,15
etc. all of which are executed in deeds and these deeds are
necessary to be registered in order for the state to maintain aproper record. Certain
documents mentioned within the Act are necessary to beregistered in order to be admissible
as evidence before an authority that can accept evidence and tohave the intended effect.16
In almost all property based disputes, it is pertinent to provea certain transaction was
made regarding that property and it can only be proved throughthese documents. Now the
multifarious rules of evidence have been constructed to providethe highest degree of fairness
and genuineness. That is part of the reason for the existence ofprovisions such as registrationin the first place.
1.7 JUDICIAL PROCESS AND REGISTRATION
Registration is an important part of the judicial process inIndia. Although it was
originally meant to be a provision which was for the purpose ofmaintaining a record, it has
been made an essential part of the litigation culture of ourcountry. There are side suits
happening along with the main matter to entertain a certaindocument as evidence due its
prima facie non admissibility because of non-registration.
13 See Chapter IV, Transfer of Property Act, 1882.
14 See Chapter V, Transfer of Property Act, 1882.
15 See Chapter VII, Transfer of Property Act, 1882.
16 See Section 53A, Transfer of Property Act, 1882.
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Judicial delays are caused because a matter is not decided onits merits owing to the
pendency and huge number of ancillary matters being argued upon,such as the late
production of documents, registration of documents, failure ofregistration of documents, etc.
The reason why suits take such a long time to be decided is dueto a myriad number of
reasons. But the lack of proper registration of documents formsa significant part of that
problem.
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II
DOCUMENTS REQUIRING REGISTRATION
2.1 REGISTRATIONACT,1908
TheRegistration Act, 1908 clearly mentions documents which needto be registered. Section
17 reads as follows:
(1) The following documents shall be registered, if theproperties to which they relate
is situate in a district in which, and if they have beenexecuted on or after the date on
which, Act No. XVI of 1864, of the Indian Registration Act 1866,or the IndianRegistration Act 1871, or the Indian Registration Act1877, 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 operateto 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 hundredrupees, and upwards, to or
in immoveable property;
(c) non-testamentary instruments which acknowledge the receiptor 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 anyterm exceeding one
year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning anydecree or order of a
court or any award when such decree or order or award purportsor operates to create,
declare, assign, limit or extinguish, whether in present or infuture, any right, title or
interest, whether vested or contingent, of the value of onehundred rupees and
upwards, to or in immoveable property (Added by Act No. 21 of1929);
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PROVIDED that the State Government may, by order published inOfficial Gazette,
exempt from the operation of this sub-section any leasesexecuted in any district, or
part of a district, the terms granted by which do not exceedfive 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 ofimmoveable 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 inimmoveable property
except insofar as it entitles the holder to the securityafforded by a registered
instrument whereby the company has mortgaged, conveyed orotherwise transferred
the whole or part of its immoveable property or any interesttherein to trustees upon
trust for the benefit of the holders of such debentures; or
(iv) any endorsem*nt upon or transfer of any debenture issued byany 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 hundredrupees and upwards to or in
immoveable property, but merely creating a right to obtainanother document which
will, when executed, create, declare, assign, limit orextinguish any such right, title or
interest; or
(vi) any decree or order of a court [except a decree or orderexpressed to be made on a
compromise and comprising immoveable property other than thatwhich is the
subject-matter of the suit or proceedings] (Substituted by ActNo. 21 of 1929 for the
words 'and any award');
(vii) any grant of immoveable property by government; or
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(viii) any instrument of partition made by a revenue officer;or
(ix) any order granting a loan or instrument of collateralsecurity granted under the
Land Improvement Act 1871, or the Land Improvement Loans Act1883; or
(x) any order granting a loan under the Agriculturists Loans Act1884, 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 ordivesting any such treasurer
of any property; or] (Inserted by Act No. 39 of 1948)
(xi) any endorsem*nt on a mortgage-deed acknowledging thepayment of the whole or
any part of the mortgage-money, and any other receipt forpayment of money due
under a mortgage when the receipt does not purport to extinguishthe mortgage; or
(xii) any certificate of sale granted to the purchaser of anyproperty sold by public
auction by a civil or revenue officer.
[Explanation: A document purporting or operating to effect acontract for the sale of
immoveable property shall not be deemed to require or ever tohave required
registration by reason only of the fact that such documentcontains a recital of the
payment of any earnest money or of the whole or any part of thepurchase money.]
(Inserted by Act No. 2 of 1927)
(3) Authorities to adopt a son, executed after the 1st day ofJanuary 1872, and not
conferred by a will, shall also be registered.
The section aptly sums up all documents that are necessary to beregistered, i.e. they
have a legal requirement to be registered. The benefits ofregistration include an immediate
check as to the originality of the document and the presence ofreliability as to the evidentiary
value of said document.
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2.2 APPLICATION OF SECTION 17
Section 17 of the Registration Act, 1908 would be attracted in acase where the
dispute relates to a charge sought to be created by a debentureon immoveable property which
was existent at the date of the creation of the charge and wasin the ownership of the
company at that date. It would, therefore, necessarily followfrom it that a debenture which
seeks to create, declare or limit any right, title or interestto or in immoveable property would
be covered by section 1717
of theRegistration Act, 1908.
2.3 COMPULSORY REGISTRATION
There are several documents that are not required to beregistered compulsorily. Some
of them require high stamp duty and some of them do not. Eventhe ones that require high
stamp duty, if they are under stamped, can be rectified later bypaying a penal amount ten
times the original amount.18
Non-payment of stamp duty does not make the document void or
otherwise invalid. The consequences of under stamping as per theIndianStamp Act, 1899
are:
(1) to make the document inadmissible for the evidence beforeany authority capable of
receiving evidence of before any public authority.19
(2) the document can also be impounded for enforcing the paymentof 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.20
In conclusion it is best to always register a document which iscompulsory
registerable or for which stamp duty is not high. Documents forwhich stamp duty is high and
which do not require registration do not become invalid for wantof proper stamp duty alone.
But the rights of both parties should be protected in case ofdefault, so consult a lawyer.
Always give possession separately and never in the documentsitself.
17 Section 17 (1) (b),Registration Act, 1908.
18 See Chapter IV,Indian Stamp Act, 1899.
19 See Section 35,Indian Stamp Act, 1899.
20 See Section 33, 40,Indian Stamp Act, 1899.
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2.4 BENEFITS OF REGISTRATION
The most important question that comes up is what is the benefitof registering a
document that is not mandated to be registered by the law. Thebenefits that come are
ancillary in nature, not paying a fine when the document isrequired to be produced in
evidence,21
a benefit for the state to maintain a record of all landtransactions,22
etc.
Registration creates a positive bias regarding the genuinenessof the document;
however it is not something that is free from misuse. Althoughregistration is supposed to be
aprima facie check regarding authenticity, sometimes forgeddocuments are also registered.
This process results in the creation of an odd bias.
21 See Section 35,Indian Stamp Act, 1899.
22
Seehttp://www.ccsindia.org/ccsindia/2006-dch/15_Registration%20of%20Documents.pdf(last visited onOctober 12, 2010).
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III
LAND REGISTRATION IN OTHER JURISDICTIONS
3.1 TORRENS TITLE
Torrens title is a system of land title where a register of landholdings maintained by
the state guarantees an indefeasible title to those included inthe register. The system was
formulated to combat the problems of uncertainty, complexity andcost associated with old-
system title, which depended on proof of an unbroken chain oftitle back to a good root of
title.
The Torrens title system was introduced in South Australia in1858, formulated by
then colonial Premier of South Australia Sir Robert Torrens.Since then, it has become
pervasive around the Commonwealth of Nations and very commonaround the globe.
In the United States, states with a limited implementationinclude Minnesota,
Massachusetts, Colorado, Georgia, Hawaii, New York, NorthCarolina, Ohio, and
Washington. In the Dominican Republic, the system wasimplemented in 1920, and has been
in use since.
The effect of registration under the deeds registration systemwas to give the
instrument registered "priority" over all instruments that areeither unregistered or not
registered until later. The basic difference between the deedsregistration and Torrens systems
is that the former involves registration of instruments whilethe latter involves registration of
title.23
Moreover, though a register of who owned what land wasmaintained, it was
unreliable and could be challenged in the courts at any time.The limits of the deeds-
registration system meant that transfers of land were slow,expensive, and often unable to
create certain title.
The main difference between a common law title and a Torrenstitle is that a member
of the general community, acting in good faith, can rely on theinformation on the land
register as to the rights and interests of parties recordedthere, and act on the basis of that
information. A prospective purchaser, for example, is notrequired to look beyond that record.
23 TROUFF, AN ENGLISHMEN LOOKS AT THE TORRENS SYSTEM (1957).
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IV
EVIDENTIARY EFFECT OF NON REGISTRATION OF DOCUMENTS
4.1 EFFECT OF NON REGISTRATION OF SALE
A compulsorily registrable but unregistered deed of sale ofspecific property cannot
affect the property and cannot be used to prove the sale26
though it is admissible for collateral
purposes, for instance ascertaining he nature of purchaserspossession27
, or proving payment
of purchase-money28
, or for the purpose of proving dower and liability to payit29
.
When a sale deed becomes inoperative by reason ofnon-registration no parol
evidence of it is admissible30
. The same holds even if there is part-performance31
.
An unregistered letter cannot be received as evidence to showthat a registered sale-
deed was intended to operate only as a mortgage. Such anunregistered letter is inadmissible
in evidence to show that no title passed under the sale-deed forthat would amount using it as
evidence of a transaction affecting immoveable property. But anunregistered document
which merely shows that a registered sale-deed executedpreviously in respect of certain
immoveable property was only nominal in its nature has been heldto be admissible in
evidence in as much as it is not used as evidence of anytransaction affecting immoveable
property32
.
The test to determine the admissibility is whether the documentin question does not
support or operate to create, declare or extinguish any right,title or interest in immoveable
property. A sale-deed does create an interest in immoveableproperty. If a subsequent
document purports to extinguish it must be registered.
26Hushmat v. Jamir, AIR 1919 Cal. 325.
27Dawal v. Dharma, 19 Bom. LR 822.
28 Sambu Hanmanta Kobal v. Nama Narayan Naikde, 13 Bom LR867.
29 Mohd. Quasim v. Ruqia Begum, AIR 1935 lah. 375.
30Somu Gurukhal v. Rangammal, 7 MHC 13.
31 Jangir Singh v. Rulia, AIR 1954 Pepsu 133.
32 Abdul v. Arlien, AIR 1915 Mad. 530.
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A document which gives, or purports to give a right to haveimmoveable property put
to a sale with a view to the recovery, out of its proceeds, ofmoney lent (principle and
interest) is an instrument which creates an interest inimmoveable property and as such
cannot under Section 49 of the Act, be received in evidencewithout registration33
.
An unregistered sale-deed can be received as evidence of acontract in a suit for
specific performance under Chapter II of the Hyderabad ReliefAct or under Chapter II of the
Specific Relief Act, 1877, or as evidence of part performance ofthe contract for the purpose
of Section 53A of the Transfer of Property Act, 1882, or asevidence of any collateral
transaction not required to be effected by registeredinstrument34
.
4.2 EFFECT OF NON REGISTRATION OF LEASE
A lease of immovable property, which is compulsorilyregistrable, if not registered, is
void altogether35
, and cannot be received in evidence to prove the transactionaffecting the
immoveable property to which it relates36
or any of the terms if the transaction.37
An
unregistered document purporting to be lease of immoveableproperty is not admissible in
evidence to prove the rent agreed to be paid38
. It cannot be admitted in evidence to prove that
a property to which it relates was let for a term of years39
.
4.2.1 LEASE HOW MADE:EFFECT OF NON REGISTRATION OF DOCUMENTS
An unregistered lease being inoperative, the express contractuallease did not take
effect in law. It, therefore, follows from the observations thatthe plaintiff-respondents cannot
ask for ejectment of the defendant-appellant solely on the basisof the duration c1ause in the
unregistered deed. The unregistered deed can at best be lookedinto for ascertaining the
33Kalachand v. Gopal Chander, AIR 1953 Hyd. 225.
34Hamda Ammal v. Avadippa Pathar, AIR 1953 Hyd. 225.
35 Anand v. Taiyab, AIR 1949 All. 279.
36 Vasudev Reddy v. Nalappa Reddy, AIR 1914 Mad. 349.
37Fatelal Shah v. Dayalal Bishrambhai, AIR 1949 Nag. 218.
38 Atul Krishna v. Zayed, AIR 1941 Cal. 102.
39 Moti Sagar v. Dhanna Mat., AIR 1922 Lah.
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commencement of possession, rate of rent or Similar otherprovisions which are collateral to
the principal transaction40
.
The Privy Councl in Mitchel v. MathuraDas41, noted :
'The Registration Act was not passed to. avoid the mischief ofallowing a man to be in
possession of real property without having a registered deed,but as a check against
the production of forged documents, and in order that subsequentpurchasers, or
persons to whom subsequent conveyances of property were made,should not be
affected by previous conveyances unless those previousconveyances were
registered."
An unregistered lease deed executed from month to month for aperiod not exceeding
11 months, though reduced to writing and possession is deliveredthereunder to a tenant is not
compulsorily registerable instrument and therefore theprohibition contained in Sec 49 of the
Registration Act is inapplicable. Therefore, the document isadmissible in evidence to
consider the effect of the immovable property contained thereinor to receive as an evidence
of any transaction vis-a-vis such property42
.
Non-registration of leases for immoveable property for a periodless than a year and
with an yearly rent of rupees fifty or below rupees fifty maynot be hit by Sec. 49 of the
Registration Act43
.
The position is well settled that an unregistered lease deed isnot admissible to prove
the terms, duration or nature of tenancy except the nature andcharacter of possession of the
lessees. The prohibition which is mandatory is contained in Sec.49 (a) and (e) of the
Registration Act.
The creation of a tenancy can be proved by oral agreement or byacceptance of rent
and that the right of occupancy being a creature of the statutecan be acquired only under Sec.
24 of the Orissa Tenancy Act, 1913 and cannot be conferred bythe landlord by contract or
40 Rai Chand v. Miss Chandra Kanta Khosla, AIR 1991 SC 744.
4112 IA 150.
42 Satish Lumar v. Zarif Ahmed, 1997 (1) UJ (SC) 576.
43 Haji fateh Rather v. Anwar Sheikh, 1986 Kar. LJ 40.
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otherwise. In view of the admissibility of the unregisteredlease-deed for the limited purpose
as it is impossible to hold that the respondents acquired anyoccupancy right in the suit
property.
The disputed document, though inadmissible in evidence for thepurpose of proving
the terms and conditions of the document, can be admitted inevidence for collateral purpose
of proving the factum of partition and nature of possession ofthe parties44
. The document in
question can certainly be looked into for collateral purposeviz. for the purpose of proving the
character of possession45
.
If a lease deed contained a clause whereby the tenancythereunder was absolutely
determinable to any moment at the option of the lessor than thedeed was not compulsorily
registrable, notwithstanding that it also contained provisionsfor an "annual rental" and for
payment of "rent in advance each year". There is a decision ofthe Allahabad High Court in
Kishori v.Ram Swarup46, to the same effect. That was also a casewhere the lease deed fixed
the annual rent but stipulated that in case of default thetenant would be liable to ejectment
and that the lessor would always have a right to eject thetenant after giving him one month's
notice. The Court held that the document did not requireregistration47
.
If a decree purporting to create a lease is inadmissible inevidence for want of
registration, none of the terms of the lease can be admitted inevidence and that to use a
document for the purpose of proving an important clause in thelease is not using it as a
collateral purpose48
.
Unregistered document extinguishing lease is not admissible butcan be used for
collateral purpose to show handing over of possession49
.
44Kaheeda Mohn v. Md. Iqbal Ali, 1998 (5) ALT 704.
45 P. Sankara Pandi Therav v. C. Arumugam, 1999 (2) MLJ 438.
46 ILR (1996) 1 All, 229.
47TK Subramania Pillai v. Pennigton Committee, 1987 (2) MLJ39.
48 Bajaj Auto Ltd. v. Behari Lal Kohli, 39 (1989) DLT 55.
49 Kovil Patti Sri Dhandayuthapati Trust v. M. Tilakraj, 1993(1) MLJ 522 .
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An unregistered lease deed can be looked into for showing thenature and condition of
the building as well as the purpose for which it was letout50
.
4.3 EFFECT OF NON REGISTRATION OF MORTGAGEThe transfer ofmortgage to be effectual requires registration. An unregistered
mortgage is not valid as a mortgage and cannot operate as acharge.
When a suit is brought for money claim based on a covenant in acompulsorily
registrable, but unregistered mortgage-deed, the deed isinadmissible to prove the covenant
and hence the money claim51
. It is also not admissible to prove the covenant for thepayment
of compound interest52
. A suit by the mortgagor for redemption on the basis of an
unregistered mortgage is not maintainable53. It is, of course,open to the mortgagor to file suit
for the recovery of the possession of the property based on histitle in which case it may be
open to the defendant to plead that he had advanced moneys whichthough advanced on an
invalid mortgage, must in equity be re-paid to him before theplaintiff takes possession of his
lands54
. Such cases will now be decided under Sec. 53-A of the Transferof Property Act.
Although a person cannot sue for redemption on the strength ofan abortive or invalid
usufructuary mortgage, yet if he sues for possession and proveshis title and then the
defendant sets up adverse possession, the plaintiff may provethat the character of the
possession was not adverse by giving evidence of the factum ofmortgage though not of its
terms55
. Where a person obtains possession under a void (unregistered)mortgage he acquires
on the lapse of twelve years a prescriptive right to the limitedinterest by way of mortgage.
An unregistered mortgage will be received as evidence of apersonal obligation and
will be admitted in evidence to prove the debt for the purposeof granting simple money
decree, if the personal covenant to pay is separable from thecreation of security56
, but not if
50Dhalli Devi v. (Firm) Gopal Iron trading Company & other,1993 (2) Rent. LR 160.
51Mattogeny v. Ram Narain, ILR 4 Cal. 83.
52 Swami Chetty v. Ethirajulu Naidu, 34 IC 583 .
53 Sheikh Bhukhan Mian v. Srimati Radhika Kumari Debi, AIR 1938Pat. 479.
54Maung Po Sin v. Mg. Po Sin AIR 1926 Assam 291 (FB).
55 Halka v. Nannahon AIR 1932 All 259.
56 Jagappa v. lachchappa ILR 5 Mad. 119.
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the transaction if indivisible and if the loan cannot beseparated from the portion of document
charging the poperty57
. It may also be admissible in evidence to prove acknowledgmentof
the amount due under mortgage sufficient to save limitation. Acompulsorily registrable but
unregidtered deed of assignment of debt. Where in a mortgage thenature and terms of the
security negative a personal liability to pay the debt and ifthe deed is inadmissible for want
of registration as evidence of mortgage, it would not support asuit to recover the money. The
document may be used to show the payment of consideration58
.
An invalid (unregistered) mortgage, though it cannot be admittedin evidence to prove
initial delivery of possession, may be admissible in evidencefor a collateral purpose to
ascertain the nature and character of possession, and todetermine to quantum of interest and
the character of possession thereunder is not to use thedocument for the purpose of enforcing
the mortgage itself under the document59
.
An unregistered payment on hypothecation bond is admissible asconfirmatory proof
of a fact provable orally60
.
4.4 EFFECT OF NON REGISTRATION OF EXCHANGEIn the case ofMahomedYahia v. Bibi Soghra
61, the exchange of shares between co-
owners has been held not to affect any immoveable property andan instrument of such
exchange is admissible in evidence though it is not evidence bya registered instrument.
A letter written by A, to the plaintiff embodied an agreementfor the exchange of
lands that fell to each other's share. It was held to create nointerest in immoveable properly
but was merely an evidence of agreement to convey lands and wasadmissible in evidence
without registration62
.
57Mattogeney v. Ram Narain ILR 4 Cal. 667.
58 Hanif Shah v. Murad, 16 IC 125.
59 Rupa Nonia v. Ram Brich AIR 1959 Pat. 164.
60Venkataramma Naicker v. Chinnathsmbi Reddi, AIR 1999 SC56.
61 AIR 1937 Pat. 232.
62 G. Rama Brahman v. G. Kottayya 21 IC 777.
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By virtue of Cl. (a) of Sec. 49 of the Registration Act, effectof the non-registration of
the agreement to exchange would be that far from vesting anytitle in the immoveable
property such a document cannot even affect such property.Indeed because of Cl. (c) of the
said section such a document cannot be received as evidence ofany transaction affecting such
property and it; is common ground that the proviso to thesection is not attracted63
.
4.5 EFFECT OF NON REGISTRATION OF ACTIONABLE CLAIMSOnly wherethe terms of the agreement had been incorporated in decree ororder,
registration of the agreement was unnecessary even with regardto immoveable property
outside the scope of the particular suit in which the decree (ororder) was passed, as the entire
agreement must be considered to have been incorporated in thedecree (or order), the decree
(or order) being sufficient evidence of its terms.
The learned judges did not choose to give the expression orderor decree such a
wide meaning as was given by the Bombay and Lahore High Courts.It is however, clear that
the terms of the security bond were not embodied in any order ofthe Court. All that was done
was that the security bond was accepted by the Court. Thisacceptance by itself, will not
make the order as a substitute for the security bond. On thefacts of the present case there can
be no doubt that the liability under the security bond could notbe enforced unless it was
registered64
.
InAribam Keshorjit Sarma v. Kanjangham Amu Singh65
under Sec. 35 of the Indian
Stamp Act the Munsif was correct in calling upon the petitionerto deposit Rs. 34.50 towards
the deficit stamp duty and penalty. If they are deposited, thedocument in question becomes
validly stamped simple mortgage bond, still it can be relied onas evidence of the money debt.
4.6 EFFECT OF NON-REGISTRATION OF GIFT DEEDA gift can be dulyeffected by a registered instrument whether it is accompaniedby
possession or not. An unregistered instrument of gift cannot bereceived as evidence of the
gift. But it can go in not to prove any definite gift, but forwhat it is worth that there was talk
63Nachhattar Singh v. Jagir Kaur AIR 1986 P. & H. 197.
64 Narahariappa v. Mohd. Moulana AIR 1967 AP 5.
65 AIR 1969 Manipur 23.
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of making some assignment at that date." An unregisteredinstrument purporting to be an
instrument of gift of immoveable, property and actionableclaims, does not necessarily fall as
a gift of actionable claims, unless the donees getting ofactionable claims is ,conditional on
his also getting the immovables allotted to him.
A registered document operates from the time from which it wasintended to operate
and not from the date of registration.
A registered document, other than a will, relating to property,takes effect against any
oral agreement relating to such property. However, when the oralagreement is accompanied
by delivery of possession, then the oral agreement will prevailover the registered document.
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CONCLUSION
The provisions regarding registration of documents in India israther elaborate,
detailed and vast. The necessity of registration cannot bestressed upon enough. The Courts
have taken an elaborate stand regarding the position ofregistered documents. A certain
strictness has to be maintained to ensure that registerabledocuments need to registered to
maintain absolute records of all land transactions happeningwithin the state.
This strictness can only be brought about by Courts of law. Thisstate of strictness will
lead to a position where every-one registers every documentwhether it is mandatory or not.
This will lead to the creation of a smoother judicial systemwhere unnecessary delays and
side litigation is avoided on the basis of an invalidregistration, wrongful registration or lack
of registration.
The massive judicial backlog is partly due to the lackadaisicalattitude of the people
who fail to register mandatory documents and when suits happenon those documents, there
are delays due to additional litigation going on to admit acertain document as evidence.
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BIBLIOGRAPHY
BOOKS
1. A.K.BANERJEE,COMMENTARIES ON THE TRANSFER OF PROPERTY ACT(2007).2. ALISON CLASKE,PROPERTY LAW (2005).3. AVTAR SINGH,TRANSFEROF PROPERTY ACT (2007).4. B.CHRISTOPHER MUELLER &LAIRDC.KIRKPATRICK,EVIDENCE (2009).5. CROSS &TAPPER ,EVIDENCE (8thed. 1995).6. G.P.TRIPATHI,TRANSFER PROPERTY ACT (2006).7.H.P.GUPTA,LAW OF EVIDENCE (2007).8. I.H.DENNIS,LAW OF EVIDENCE (2ndEd. 2007).9. M.MONIR,THE LAW OF EVIDENCE (14th Ed.2006).10.MALIK,THE REGISTRATIONACT,1908(2004).11.P.P.SAXENA,PROPERTY LAW (2006).12.PETERMURPHY,APRACTICAL APPROACH TO EVIDENCE 1(2nd ed.1985).13.PHIPSON,EVIDENCE (15th ed. 2000).14.R.S.RAO,LECTURES ONTRANSFER OF PROPERTY (2006).15.RATANLAL RANCHODDAS &DHIRAJLALK.THAKORE,LAW OF EVIDENCE (2006).16.SOLI J.SORABJEE,TRANSFER OFPROPERTY ACT (2004).17.STEVE UGLOW,EVIDENCE:CASES AND MATERIALS(1997).18.V.KRISHNAMCHARI,LAW OF EVIDENCE (2007).19.VEPAP.SARATHI,LAW OF TRANSFER OF PROPERTY (2005).WEBSITES
1. www.google.com2. www.manupatra.com3. www.westlaw.com4.www.books.google.com5. www.westlawindia.com6. www.ccs.org
Topa Final - [PDF Document] (2024)
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