1

UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB

UNIVERSITY, CHANDIGARH

REGISTRATION ACT, 1908

EFFECTS OF REGISTRATION AND NON REGISTRATION

(SECTION 47- 50)

SUBMITTED TO :- DR . PRIYA SINGLA

SUBMITTED BY:- KIRAT BIR KAUR

CLASS:- BALLB(HONS)

SECTION:-B

SEMESTER:-8TH

ROLL NO:- 376/19

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ACKNOWLEDGEMENT

I would like to take this opportunity to express my profound gratitude and deep regards to my
Professional ethics professor Priya ma‟am for her exemplary guidance, monitoring and constant
encouragement throughout the course of the project on the EFFECTS OF REGISTRATION
AND NON REGISTRATION. The blessing, help and guidance given by her from time to time
shall carry me a long way in the journey of life. I would also like to thank my parents who
helped me throughout the project
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TABLE OF CONTENTS

SR NO TOPIC PG NO

1. INTRODUCTION 4

2. SECTION 47 TIME FROM WHICH REGISTERED 4

DOCUMENTS OPERATED
3. SECTION 48 –REGISTERD DOCUMENTS RELATIONG TO 7
PROPERTY WHEN TO TAKE EFFECT AGAINST ORAL
AGREEMENTS
4. SECTION 49- EFFECT OF NON REGISTRATION OF 8
DOCUMENTS REQUIRED TO BE REGISTERED
5. SECTION 50- CERTAIN REGISTERED DOCUMENTS 27
RELATING TO LAND TO TAKE EFFECT AGAINST
UNREGISTERED DOCUMENTS
6. CONCLUSION 29

7. REFERENCES 30
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INTRODUCTION

The Registration Act, 1908 is a consolidating Act and provides for registration of documents and
consequences of their non – registration.

Registration is placing a document in public records for due intimation to world by charging fee.
This Act establishes a good administration system among government departments and the court
system, requiring that everything be handled in a timely and orderly manner to avoid future
misunderstandings. To avoid a property dispute, all documents must be registered.

The present Act was preceded by the Act of 1864, 1866, 1871 and 1877 which all have repealed
by the present Act.

OBJECTIVE OF REGISTRATION

1. Registration Act is a regulatory enactment, and its purpose is to keep a record of certain
categories of documents relating to certain transactions effecting immoveable property.
2. The objective of Registration Act is to preserve an authentic record of the terms of the
documents and in case the document is lost or destroyed, one may obtain a certified copy
of it.
3. Another purpose of Registration Act is to make the Registration of certain documents
compulsory so that it serves as a notice to all that document has been executed to prevent
fraud and to secure reliable and complete account of all the transactions affecting the title
to the property.
4. Another significant objective of Registration Act is that it enables any person to receive
complete information to the title of such property.

SECTION 47- TIME FROM WHICH REGISTERED DOCUMENTS

OPERATED

As per Section 47, a registered document operates from the date of it execution, and not from the
date of its registration. The result is that if two registered documents are executed by the same
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person in respect of theB same property to two different persons at different times, the one which
was executed first has priority over the other, although former was registered subsequent to the
latter; in other words, registration of a document relates back to the date of its execution.¹

In Faijahi Devi v. Sree Surendra Sil1 , there was competition between two registered sale
deeds, one (Ext.-2) executed on 13-9-78 but registered on 22-11-78 and the other (Ext.-D)
executed on 19-9-78 and registered or the same day under Section 61 of the Act. Gauhati High
Court held that Section 47 does not say when the sale would be complete. It only permits a
document when registered to operate from a certain date which may be earlier than the date when
it was registered.

The object of Section 47 is to decide which of the two or more registered instruments in respect
Of the same property is to have effect. Section 47 has nothing to do with the completion of
registration and, therefore, nothing to do with the completion of the sale when the instrument is
one of sale.For these reasons,Ext-2 and Ext-D they would operate from their respective dates of
execution and therefore,Ext-2 will prevail over Ext-D

In Yogesh Kumar Malik v. Indian Oil Corporation Ltd 2, Delhi High Court has laid
down following guiding principles:

(i) A registered document shall operate from the time it is intended to operate by the parties if no
registration thereof had been required in law or made, and not from the date of its registration.
Having said so, Section 47 of the 1908 Act would kick in only upon the subject document being
registered.

(ii) While registration accords necessary solemnity to the subject document for the purpose of
enforcing the rights encapsulated therein, the transfer of rights from one party to the other would
not remain in suspension until registration is actually effected.

(iii) Registration of a document is not consent centric, once the document is executed, the
concerned statutory authority must register it if it is presented by the person having interest in it
in accordance with the applicable provisions of law.

1
AIR 1960 SC 1368
2
2018 (250 ) DLT 383
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SECTIO N 48- REGISTERD DOCUMENTS RELATIONG TO

PROPERTY WHEN TO TAKE EFFECT AGAINST ORAL AGREEMENTS

Section 48 states that in case of competition between a registered property, the registered
document shall prevail, unless the oral agreement or declaration has been accompanied or
followed by delivery of possession so as to constitute a valid transfer under the law. Section 48 is
based upon an important principle that if a person has already effected a transfer, he cannot
derogate from the grant and deal with the property free from the rights created under the earlier
transaction.

In Duraiswami Reddi v. Angappa Reddi3, Madras High Court held that the prior
transferee would be entitled to enforce his rights though his document is registered later and even
if the subsequent transferee entered into transactions bona fide without knowledge of the first
transaction.

High Court further observed that, "Such a plea, if allowed would lead to much fraud. If a later
document registered earlier is to prevail over an earlier document registered later it would always
be easy for the vendor and the later purchaser to enter into a transaction within the time given for
registration of the earlier document and get the new deed registered immediately and thus defeat
the purchaser under the earlier deed."

Accompanied or Followed by Delivery of Possession

Possession under a mortgage which was followed by an agreement to sell was equivalent to
delivery of possession so as to satisfy the requirements of Section 48 of the Registration Act.³ As
per Handley, J., the same principle may be extended to cases where possession is already with
the purchaser and he retains it under the agreement to sell. In Palani v. Selambara\, it was held
that an attornment by tenants was sufficient delivery of possession, to satisfy the requirements of
Section 48 of the Registration Act.

SECTION 49- EFFECT OF NON REGISTRATION OF DOCUMENTS

REQUIRED TO BE REGISTERED

3
1945 (1) MLJ 425
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Section 49 of the Registration Act is amended by S.10 of the Transfer Of property (Amendment)
Supplementary Act, 1929 and the amendment. Settles the doubt that Section 49 applies not only
to documents compulsorily Registrable under Section 17 of the Act but also to documents of
which Registration is required by the Transfer of Property Act, 1882. Such documents Than
leases from year to year or for any term not exceeding one year or Are sales and mortgages of
value not exceeding Rs. 100/- and leases other Reserving a yearly rent.

Raghunath v. Kedarnath4,, Supreme Court has Held that by the enactment of Act 21 of
1929 which inserted in Section 49 of the Registration Act the words “or by any provision of the
Transfer.Of Property Act, 1882” has made it clear that the documents of which Registration is
necessary under the Transfer of Property Act but not under.The Registration Act fall within the
scope of Section 49 of the Registration Act and if not registered are not admissible as evidence
of any transaction Affecting any immovable property comprised therein, and do not affect any
Such immovable property.

5
In Nand Singh v. Sewa Singh , it was observed that Section 17 provides For compulsory
registration of documents mentioned in the section. This Section is made effective by Section 49,
which provides that any document So required to be registered shall not, unless it has been so
registered:

(i)Affect any immovable property comprised therein; or

(ii) To be received as evidence of any transaction affecting such Proviso to Section 49 prohibits
the Court to receive in evidence a Document affecting immovable property which is not
registered a Under Section 17 of the Act or any provisions of the Transfer of Property Act 1882.
But the proviso contains three exceptions:

(1) Part performance of a contract for the purpose of Section 53-A Transfer of Property Act,

(2) Contract in a suit for specific performance, and

4
AIR 1969 SC 1316
5
AIR 1959 Punjab 609
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(3) An unregistered document affecting immovable property required To be registered under law
may be received as evidence of any Collateral transactions not required to be affected by
registered Instrument.”

MEANING OF COLLATERAL PURPOSE

In Budha Jagadeeswara Rao v. Sri Ravi Enterprises6, Andhra Pradesh High Court
distinguished between “main purpose” and “collateral purpose

In the following words:

The concepts “main purpose” and “collateral purpose” play a pivotal role of admitting or not
admitting in evidence an un-registered Document compulsorily registrable. The main purpose
means the Purpose mentioned in Section 17 i.e., for the purpose of creating, Declaring,
assigning, limiting or extinguishing a right to immovable Property, etc. Such a document when
compulsory registerable is not Admissible in evidence for the said main .

The effect of non- Registration of such an instrument compulsory registerable is that the
Instrument doesn‟t affect any immovable property comprised therein Property. It does not
follow, however, that the document is wholly Nor can it be received as evidence of any
transaction affecting such Irrelevant. Though the instrument is not admissible for the purpose
of.proving a concluded transaction transferring an interest, yet it can be Received in evidence for
collateral purposes.

Collateral purpose is any Purpose other than that of creating, declaring, assigning, limiting or
Extinguishing a right to immovable property. The proviso to Section 49 permits the use of an un-
registered document as evidence of a Collateral transaction. Collateral transaction means a
transaction other Than the transaction affecting the immovable property but which is in

In Webster’s Seventh New Collegiate Dictionary, expression „collateral‟, has been

Given meaning as “accompanying as secondary or subordinate.”

6
2017(2) MWN ( CIVIL) 556 SC
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Black’s Law Dictionary, Ninth.Edition. The meaning according to this dictionary is

“supplementary; Accompanying, but secondary and subordinate”.

The Jowitt’s Dictionary Of English Law published by Sweet & Maxwell

Limited, 1977 Second Edition defines collateral‟ as something which is by the side of or
Distinct from, a certain thing. In brief, it can be said that „collateral Purpose‟ is only „secondary
purpose”.”

In K.B. Saha & Sons Pvt Ltd v. Development Consultant Ltd, SC laid down

following principle in respect of section 49 of registration act

1. An unregistered document required to be registered is not Admissible into evidence under

Section 49 of the Registration Act
2. Such unregistered document can however be used as an evidence Of collateral purpose as
provided in the Proviso to Section 49 of The Registration Act.
3. A collateral transaction must be independent of, or divisible from, The transaction to
effect which the law require registration.
4. A collateral transaction must be a transaction not itself required to Be effected by a
registered document, that is, transaction creating, Etc. any right, title or interest in
immovable property of the value Of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration None of its terms can
be 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.”

ILLUSTRATIVE CASE LAWS ON UNREGISTERED DOCUMENTS

BEING USED FOR COLLATERAL PURPOSE

In K.C Itoop & Sons v. Antony7, Kerala High Court has summarized the Legal value of
unregistered lease deed in the following words:

7
AIR 1984 SC 143
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1. When a yearly lease can be created only by a registered instrument, No operative lease
can come into existence on the strength of an Unregistered lease deed. The lease so
created is void.
2. The jural relationship of landlord and tenant cannot be traced to a Document which
offends the statutory prescription of registration. The yearly lease cannot therefore be
proved through the very not Document which does not have any legal force and which
cannot Affect any immovable property.
3. The unregistered lease deed evidencing a yearly lease cannot be Accepted as evidence of
that very lease or of any right, title or Interest to any immovable property because no
such lease can be Created by Court on the basis of the unregistered deed.
4. The unregistered deed in such cases can be used only for the Limited purposes mentioned
in the proviso to Section 49 of the Registration Act. Even then, it is excluded from
evidence if it is Sought to be used “as the foundation of an adjudication or decision
Affecting immovable property comprised in such document “and can be received as
evidence only in respect of those rights which May crystallise in future.

In State Bank of Bikaner & Jaipur v. Vijay Kumar,8 P&H High Court Held that
lease of immovable property from year to year or for exceeding one Year or reserving a yearly
rent can be made only by a registered document And other leases of immovables can be created
either by registered or oral Agreement accompanied by delivery of possession. By virtue of
provisions of Section 49 of Registration Act, an unregistered lease which is compulsorily
Registrable can be received as evidence of part performance of contract but The necessary
requirement is that there should be a writing evidencing The terms of lease, which is signed and
suffers from the defect of want of Registration.

ILLUSTRATIVE CASE LAWS WHERE THE PURPOSE NOT HELD TO BE

COLLATERAL PURPOSE

8
1993 (3) ICC 320
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In Varada Pillai v. Jeevarathnammal, 9Privy Council held that the Endorsement of

cancellation on the back of sale-deed if not registered does Not extinguish title of the vendee and
it is not admissible in evidence except To show character of possession of vendee.

10
In Haran Chandra Chakroarti v. Kaliprasanna Sarkar , it was held that the terms
of a compulsorily Registrable instrument are nothing less than a transaction affecting the
property comprised in it. It was also held that to use such an instrument for the purpose of
proving such a term would not be using it for a collateral purpose and that the question as to who
is the tenant and on what terms he has been created a tenant are not collateral facts but they are
important terms of the contract of tenancy, which cannot be proved by admission of an
unregistered lease-deed into evidence..

11
In Ranga Reddy v. Sadhu Padamma , the issue before the Court was Whether an
unregistered gift deed could be receive in evidence for a Collateral purpose. Answering in
negative, Andhra Pradesh high Court held That an unregistered gift deed cannot be used even for
collateral purposes As the transaction affects immovable properties requiring registration.

The High Court laid down following principle

1. creating, declaring, Assigning, limiting or extinguishing any right, title or interest, but
Merely creating right to obtain another document does not require Registration under
Section 17(1) of the Registration Act.
2. As a necessary corollary a document of contract for sale of Immovable property creating
right to obtain another document Shall not require registration, by reason of the payment
of earnest Money or whole or part of purchase money by the purchaser.
3. In any event, the prohibition under Section 49© of the Registration Act does not apply to
an unregistered document affecting Immovable property in a suit for specific
performance under the Specific Relief Act or as evidence of part performance of contract
or As evidence of any collateral transaction not required to be effected By registered
document.”

9
AIR 1999PC 44
10
AIR 1932 Calcutta 83(2)
11
2003 (1) ALT 228
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Form the various case laws, following instances may be cited where the Purpose not found to be
collateral‟:
(a) Showing terms of lease,
(b) For proving adverse possession,
(c)An agreement to vacate the lease property without notice,
(d) Duration of lease for a fixed period exceeding one year
(e)To record a compromise when the terms of compromise a Dispute,
(f) The date when the tenancy began and what the rent reserved was,
(g) For proceeding under Section 145, Code of Criminal Procedure 1973,
(h) Recital permitting sub lease in a lease deed.

ADMISSIBILITY OF UNSTAMPED AND UNREGISTERED DOCUMENT

The question of admissibility of unstamped and unregistered document Gains importance in view
of the provisions of Section 35 of the Stamp Act Read with proviso to Section 49 of the
Registration Act. Section 35 of the Stamp Act is to the following effect:

Instruments not duly stamped inadmissible in evidence etc- No instrument Chargeable with duty
shall be admitted in evidence for any purpose by any Person having law or consent of parties
authority to receive evidence, or Shall be acted upon, registered or authenticated by any such
person or by Any public officer, unless such instrument is duly stamped. It can be seen that
under Section 35 of the Stamp Act, it is clearly Mentioned that no instrument chargeable with
duty shall be admitted in Evidence “for any purpose”.

Whereas, Section 49 of the Registration Act, does Not contain such express language and on
the other hand, the proviso says That document can be received as evidence of any “collateral
transaction” Not required to be effected by a registered instrument. But proviso to Section 35 of
the Stamp Act2 resolves the above stated conflict and on Payment of Stamp duty and penalty, an
unregistered and unstamped document can be Received in evidence for collateral purposes.
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12
In M/s SMS Tea Estates Pvt Ltd v. M/s Chandmari Tea Co. Pvt Ltd .The
question for consideration before the Supreme Court was whether arbitration agreement
contained in an unregistered (but compulsorily agreement does not require registration under the
Registration Act. Even if it registrable ) instrument is valid and enforceable? Court held that an
arbitration is found as one of the clauses in a contract or instrument, it is an independent main
contract or instrument. Therefore, the Court held that having regard agreement to refer the
disputes to arbitration, which is independent of the to the proviso to Section 49 of Registration
Act, an arbitration agreement in Registered but compulsorily registrable document can be acted
upon and enforced for the purpose of dispute resolution by arbitration. But if such document is
found not to be duly stamped, then even the arbitration clause contained in it cannot be acted
upon.

13
In Subalakshmi v. Radhakrishnan , Madurai Bench of Madras High Court held that a
document cannot be received in evidence even for collateral Purpose unless it is duly stamped or
duty and penalty Section 35 of Stamp Act. When document is neither stamped Document cannot
be looked into for collateral purpose.

ADMISSIBILITY OF UNREGISTERED DOCUMENT IN PERFORMANCE

A Suit for Specific Proviso to Section 49 of the Registration Act makes it clear that an
Unregistered document affecting immovable property and required by the Registration Act or by
the Transfer of Property Act, 1882, to be registered May be received as evidence of a contract in
a suit for specific performance Under Chapter II of the Specific Relief Act, 1877.

14
Punjab & Haryana High Court in the case Ram Kishan & Anr. V. Bijender Mann had
an occasion to resolve the conflict between the contradictory Judgments of the same Court in the
cases Gurbachan Singh v. Raghubir Singh,³ and Birham Pal and others v.
Niranjan Singh and another. Going By the latter judgment, the Court observed:

12
2011 (7) SCALE 747
13
2011(2) Law Herald (P &H ) 1136
14
2010 (2) PLR 511
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a) A suit for specific performance, based upon an unregistered Contract/agreement to sell

that contains a clause recording part Performance of the contract by delivery of
possession or has been Executed with a person, who is already in possession shall not be
Dismissed for want of registration of the contract/agreement;
b) The proviso to Section 49 of the Registration Act, legitimizes such A contract to the
extent that, even though unregistered, it can form The basis of a suit for specific
performance and be led into evidence As proof of the agreement or part performance of a
contract.

In Sukhwinder Kaur v. Amarjit Singh, 15P & H High Court made it clear That an
agreement to sell falls under the mischief of Section 17(2) (v) of the Registration Act. It itself
does not create, declare, assign, limit or extinguish Any right, title or interest in the property.
Rather it creates a right to obtain Another document which will, when executed, create, declare,
assign, limit Or extinguish. At the same time, Section 49 of the Act makes it clear that an Act or
the TPA to be registered may be received as evidence of a contract In a suit for specific
performance under Chapter II of the Specific Relief Act, 1877. A conjoint reading of Section
17(2)(v) and proviso to Section 49 of The Act leaves no room for doubt that an agreement to sell
property itself When executed will create right, title and interest in the property. Hence, an Does
not create any right, title to the property. It is the sale-deed which Agreement to sell is not
required to be registered and the same is receivable In evidence in a suit for specific performance
under Chapter II of the Specific Relief Act, 1877.

RULES REGARDING PRIORITY IN DOCUMENTS

Sections 47 to 50 of the Registration Act, 1908 postulates the Following rules with respect to the
effects of registration and non-Registration of documents:

1. Section 47 incorporates the principle that registration of a Document does not postpone
the commencement of operation Of a document. It provides that a registered document
shall Operate from the date of its execution and not from the time or Date of its
registration. Thus, registration does not affect the Operation of commencement of the

15
2013 (5) RCR (Civil) 155
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document. A subsequently Registered document but executed prior in time would prevail
Or have priority over a document executed subsequently but Registered prior there to.
2. All non-testamentary documents duly registered relating to Movable or immovable
property shall have priority over the Oral agreements effecting the same property; (S. 48).
However, the aforesaid rule admits of the following two

EXCEPTIONS.

I. Where on oral agreement constitute a valid transfer Under the law and is also followed by
delivery of Possession. In that situation if the oral agreement is prior In time, it will have
priority over the subsequently registered document pertaining to the same property.
II. A mortgage by deposit of title deeds, even if oral is Nature, will have priority over the
subsequently executed And registered mortgage deed relating to the same Property.
(1) A document which is required by S. 17 of the Registration Act Or any provision of
Transfer of Property Act, 1882 to be Registered, if not registered, suffers from various
disabilities. Section 49 of the Act imposes the following disabilities:.
(2) )The document shall not affect the immovable property.Comprised therein.
(3) ii)The document will not confer any power to adopt.
(4) The document shall not be received as evidence of any Transaction effecting such
property.
(5) However, the proviso appended to S. 49, carves out the Following two exceptions:
i) An unregistered document may be received as evidence Of a contract in suit for
specific performance.
ii) An un-registered document may be received as evidence For collateral transaction..

The term “collateral Transaction” has been used in contra-distinction with the Term “main
transaction”. Any transaction which is effected by the document has essential characteristic
Features. Those cannot be proved by relying upon un- Registered document. However, the
collateral matters can be proved by relying upon the un-registered document.

ARBITRATION CLAUSE IN UNREGISTERED DOCUMENT

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The Andhra Pradesh High Court in ARC Overseas Private Limited Vs. Bougainvillea
Multiplex and Entertainment Centre Pvt. Ltd., 16, held that an arbitration clause in a
document Amounts to a separate agreement and will be considered a collateral Purpose even if
the main transaction covered by the document was Required to be compulsorily registrable.

However a contrary opinion has been expressed by Delhi High Court In National Textile
17
Corporation Limited and Another vs. Ashval vaderaa , holding that if a document is
Inadmissible because of its non-registration or because of its not Having proper stamp duty, all
its terms are inadmissible including the One which provides for an arbitration between the
parties. An Arbitration agreement can be enforced only along with the contract Between the
parties and such a contract must be a valid contract, Admissible under law. If a contract is not
admissible in law, every Clause of it is inadmissible in law including arbitration clause.

VOIDABLE CONTRACT

But where the contract or instrument is voidable at the option of a party (as for example under
section 19 of the Indian Contract Act, 1872), the invalidity that attaches itself to the main
agreement may also attach itself to the arbitration agreement, if the reasons which make the main
agreement voidable, exist in relation to the making of the arbitration agreement also.

(i) The Court should, before admitting an document into evidence or acting upon such
document, examine whether the instrument/document is duly stamped and whether it is an
instrument which is compulsorily registrable.

(ii) If the document is found to be not duly stamped, S. 35 of Stamp Act bars the said document
being acted upon.Consequently, even the arbitration clause therein cannot be acted upon. The
court should then proceed to impound the document u/s 33 of the Stamp Act and follow the
procedure u/s 35 and 38 of the Stamp Act.

(iii) If the document is found to be duly stamped, or if the deficit stamp duty and penalty is paid,
either before the Court or before the Collector (as contemplated in S. 35 or 40 of the Stamp Act),

16
2008 (2) AWC 1212
17
167 (2010) DLT 602
 17

and the defect with reference to deficit stamp is cured, the court may treat the document as duly
stamped.

(iv) Once the document is found to be duly stamped, the Court shall proceed to consider whether
the document is compulsorily Registrable. If the document is found to be not compulsorily
registrable, the court can act upon the arbitration agreement, without any impediment.

(v) If the document is not registered, but is compulsorily registrable, having regard to S. 16(1)(a)
of the Act, the Court can de-link the arbitration agreement from the main document, as an
agreement independent of the other terms of the document, even if the document itself cannot in
any way affect the property or cannot be received as evidence of any transaction affecting such
property. The only exception is where the Respondent in the application demonstrates that the
arbitration agreement is also void and unenforceable, as pointed out in para 8 above. If the
Respondent raises an objection that the arbitration agreement was invalid, the court will consider
the said objection before proceeding to appoint an arbitrator,

(vi) Where the document is compulsorily registrable, but is not registered, but the arbitration
agreement is valid and separable what is required to be borne in mind is that the Arbitrator
appointed in such a matter cannot rely upon the unregistered .instrument EXCEPT FOR TWO
PURPOSES, THAT IS

(a), as evidence of Contract in a claim for specific performance and

(b) as evidence Of any collateral transaction which does not require registration.

USE OF UNREGISTERED LEASE FOR COLLATERAL PURPOSE

Where a lease deed is for a term of thirty years and is unregistered, the terms of such a deed
cannot be relied upon to claim or enforce any right under or in respect of such lease. It can be
relied upon for the limited purposes of showing that the possession of the lessee is Lawful
possession or as evidence of some collateral transaction.
 18

A unregistered lease deed does not confer any right in the lessee. However the character of
possession may be established from the unregistered lease deed. (Anthony vs. K.C. Ittoop and
Sons and others, 18

UNREGISTERED SALE DEED IN A SUIT FOR SPECIFIC PERFORMANCE OF THE

CONTRACT.

In S.Kaladevi vs. V.R. Somasundaram and others, 19, the short question was one of
admissibility of an unregistered.Sale deed in a suit for specific performance of the contract. The
plaintiff in the suit claimed for the reliefs of directing the Defendants to execute a fresh sale deed
with regard to the suit Property in pursuance of an agreement for sale dated 27.02.2006 on Or
before the date that may be fixed by the court and failing which Execution of the sale deed by the
court. According to the plaintiff, 1” defendant for himself, as the guardian Father of 3rd defendant
and 2nd defendant jointly entered into an oral Agreement with her on 27.02.2006 to sell the suit
property for a Consideration of Rs. 1,83,000/-. It was agreed that the sale deed, in Pursuance of
the oral agreement for sale, would be executed and Registered on the same day. The plaintiff
purchased the stamp papers; Paid the entire sale consideration to the defendants; the
defendants.Put the plaintiff in possession of the suit property and also executed a Sale deed in
her favour. On 27.02.2006 itself, the said sale deed was Taken to the Sub- Registrar‟s office. The
Sub-Registrar, however, Informed that in view of an order of attachment of the suit property

The sale deed could not be registered. The sale deed, thus, could not.Be registered. But
subsequently defendant refused to get the sale deed registered. It was observed that S. 17 of 1908
Act is a disabling section. The Documents defined in Clauses (a) to € therein require registration
Compulsorily. Accordingly, sale of immovable property of the value Of Rs. 100/- and more
requires compulsory registration. Part X of the.1908 Act deals with the effects of registration and
non- registration.

Section 49 gives teeth to S. 17 by providing effect of non-registration Of documents required to

be registered.

18
AIR 2000 SC 3523.)
19
AIR 2010 SC 1654
 19

The main provision in S. 49 provides that and document which is Required to be registered, if
not registered, shall not affect any Immovable property comprised therein nor such document
shall be Received as evidence of any transaction affecting such property.

Proviso, however, would show that an unregistered document Affecting immovable property and
required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as
an Evidence to the contract in a suit for specific performance or as Evidence of any collateral
transaction not required to be effected by Registered instrument. By virtue of proviso, therefore,
an unregistered Sale deed of an immovable property of the value of Rs. 100/- and More could be
admitted in evidence as evidence of a contract in a suit

ADOPTION DEED WITH RELINQUISHMENT OF RIGHTS IN PROPERTY

In Dina Ji and others vs. Daddi and others, 20, aDeed of adoption of adoption was executed. It
was in two parts. One Recites the factum of adoption and the second contains the covenant
Wherein adopter/ woman has relinquished her rights in the property And conferred rights on
adopted son.

It was held by the Supreme Court that S. 17(1)(b) of the Registration Act clearly provides that
such a document where any right in Immovable property is either assigned or extinguished will
require Registration. It could not be disputed that the part of the deed which Refers to creation of
an immediate right in the adopted son and the Divesting of the right of the adoptive mother in the
property will Squarely fall within the ambit of S. 17(1)(b) and therefore under Section 49 of the
Registration Act, this could not be admitted, if it is Not a registered document.

UNREGISTERED LEASE DEED CONTAINING CLAUSE FOR SUB-LEASE

In Bajaj Auto Limited vs. Behari Lal Kohli, 21, the Apex Court held that such a clause cannot
be looked into for want of.Registration of the lease deed. Reliance was placed on the
Observations of Fazal Ali, J. in Sachindra Mohan Ghose vs. Ramjash Agarwalla, 22, that if a
decree purporting to Create a lease is inadmissible in evidence for want of registration,.None of

20
AIR 1990 SC 1153
21
AIR 1989 SC 1806
22
AIR 1932 Pat 97
 20

the terms of the lease can be admitted in evidence and that to Use a document for the purpose of
proving an important clause in the.Lease is not using it as a collateral purpose.

UNREGISTERED TRANSFER DEED IN LIEU OF DOWER

In Mohammad Quasim vs. Ruquia Begum, 23, an.Unregistered transfer deed transferring
immovable property in lieu of.Dower is admissible in evidence to prove the amount of dower
and The promise made by the transferor to pay the same. A woman can.File a suit to claim her
dower and prove the amount of the dower by.Relying upon the unregistered transfer deed.

UNREGISTERED PARTITION DEED

In Hinday Narain Choudhary vs. Shayam Kishore Singh, AIR 2002 SC 2526, it was held
that partition is a transaction which affects the.Immovable property comprised in the partition
deed. A partition Envisages two steps i.e.

(i) severance of joint status which is not Required to be effected by a registered instrument;
and
(ii) partition By meets and bounds. An unregistered partition deed can be used to Prove the
first part i.e. severance of status. It can also be used for.Proving the nature and character
of possession of the respective items Of properties in the hands of the members of the
coparcenary.

SECTION 50- CERTAIN REGISTERED DOCUMENTS RELATING TO

LAND TO TAKE EFFECT AGAINST UNREGISTERED DOCUMENTS

Section 47 of the Registration Act provides for principles relating to priority when there are two
documents and both are registered. In such case, as per Section 47, the one executed first in point
of time will get priority over the other. Section 50 of the Act, on the other hand, provides for
situation where out of two documents, one is registered and another one is not. Here, the
registered documents will get priority over the unregistered document even if such unregistered
document is of the same nature as the registered document.

23
AIR 1935 Lah. 375
 21

Thus, under Section 50, a registered document is entitled to priority

unregistered document:

(a) If it of the kind mentioned in clauses (a), (b), (c) and (d) of Section 17(1) (compulsorily
registrable) or in clauses (a) and (b) of Section 18(optionally registrable),

(b) If it is duly registered, and

(c) If it covers the same property as that covered by the unregistered document.

BUT THE PROVISIONS OF SUB SECTION (1) OF SECTION 50 ARE NOT

APPLICABLE TO.

(a) leases exempted under the proviso to sub-section (1) of Section 17,

(b) to any document mentioned in sub-section (2) of Section 17,

(c) an unregistered decree or order, and

(d) to any registered document which had not priority under the law in force at the
commencement of this Act.

EXPLANATION TO SECTION 50 ALSO EXPLAINS WHAT IS MEANT BY

'UNREGISTERED IN FOLLOWING TERMS:

(1) In cases where Act No. 16 of 1864 or the Indian Registration Act, 1866 (20 of 1866), was in
force in the place and at the time in and at which such unregistered document was executed,
'unregistered' means not registered according to such Act, and

(2) where the document is executed after the first day of July, 1871, 'unregistered' means not
registered under the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act,
1877 (3 of 1877), or the Registration Act, 1980.

In Suresh Laxmanrao Patil v. Sandeep Annasab 24the rival documents question were
an agreement to sell dated 25.11.2004 and a registered sale deed dated 22.11.2006. Both the trial

24
Decided by Karnataka H.C. On 21. 01.2016
 22

court as well as first appellate granted relief to the plaintiff on the strength of the registered sale
Court leed dated 22.11.2006. Aggrieved, the appellant/defendant preferred regular Second appeal
to the Karnataka High Court. Dismissing the appeal, the Court upon Section 50 of the
Registration Act and held that the registered Document dated 22.11.2006 would take effect
against unregistered agreement to sell dated 25.11.2004.

A full Bench of the Allahabad High Court in Lachman Das v. Dip Chand 25held that "in
the case of a document executed while Act VIII of 1871 was in force, the registration of which
under that Act was optional, and which was not registered thereunder, and of a document
executed after Act III of 1877 had come into force, the registration of which under that Act was
to the same property, under the provisions of Section 50 of Act III of 1877, compulsory, and
which was registered thereunder, both documents relating the registered document took effect as
regards such property against the unregistered document."

IS IT NECESSARY THAT THE COMPETING DEEDS SHOULD HAVE

BEEN EXECUTED BY THE SAME PERSON?

In Mohandas Kalidas v. Shankardas Haribhai 26giving a wider interpretation to

Section 50, Bombay High Court observed, "the words of the Section are wide enough to include
documents executed by different grantors as well as those by the same grantor."

In Gungaram Ghose Sirdar v Kalipodo Ghose27, Calcutta High Court was confronted
with the question that whether it is essential to take the benefit of Section 50 of the Registration
Act that the vendor with respect to the impugned transactions should be common? Replying in
negative, the Court held that all that a person seeking the benefit of this Section is required to
prove is that his document is a document of the kind mentioned in the clause aforesaid; that it has
been duly registered under the Act of 1877; and that it covers the same property as that covered
by any unregistered document against which it is contended that his document shall take effect. It
is not necessary for him to show that he is claiming from a common vendor.

25
I.L.R 2.All.851
26
(1875) 12 B.H.C 241
27
(1885) ILR 11 Cal 661
 23

NOT BEING A DECREE OR ORDER

Section 50 carves out an exception as a Decree or order, thoughnunregistered will not be

postponed to a subsequent registered document relating to the same property. However, the
unregistered decree will not be entitled to priority if it is obtained after the execution of the
subsequent registered document.

As stated by Edge CJ in the case Jagrup Rai v. Radhey Singh28, "Under Section 50 of the
Registration Act the decree or order which is not to be affected by a registered document must be
a decree or order made prior to the execution and registration of the registered document."

It may be noted that the Law Commission of India, in its 6th report recommended that an
exception should be carved out from Section 50 of the Registration Act keeping in view the
provisions of Section 53A of the Transfer of property Act. Thus, a person who is in possession of
property under unregistered document and whose rights are protected under Section 58A of the
Transfer of Property Act, he must be exempted from application of Section 50 of the Registration
Act. Commission also recommended for inclusion of another exception in order to ensure that
though an unregistered document may not affect the property comprised therein, the person in
whose favour such document was executed would be entitled to enforce the contract embodied in
the unregistered document in a suit for specific performance, provided the subsequent purchaser
was served with notice of the prior agreement as envisaged by Section 27(b) of the Specific
Relief Act.

CONCLUSION

The purpose of registering a document is to notify the world that such a document has been
executed, to prevent fraud and forgery and to secure a reliable and complete account of all
transactions affecting the property‟s title. Consequently, it can be seen that registration of a
document is of utmost importance and should be done as soon as possible otherwise it would
lead to long years of a legal battle.

28
(1890) 13 All 288
 24

BIBLIOGRAPHY

1. Gupta Dr Neetu, Fundamentals of registration act , Shree Ram , (2023)

2. Sarohi J.P.S and Sarohi Sunil ,The Indian Regisration act, Allahbad Law Agency ( 2022)

WEBLIOGRAPHY

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:~:text=Effect%20of%20Registration%20under%20Section,Act%201908%20are%20as%20follows
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registration-act-1908/( accessed on 24 march, 2023)
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5. https://www.scconline.com/blog/post/2021/05/22/can-a-document-be-registered-after-eight-
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months-of-execution/( accessed on 31 march, 2023)
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non-registration/29927112( accessed on 28 march, 2023)
7. https://www.legalserviceindia.com/legal/article-8706-landmark-judgements-under-registration-
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