Whether a document can be registered after four month if it was presented within that time?

From the above, it is clear that no document other than a will shall  be accepted for registration unless presented to the Registering Authority within four months from the date of its execution. In the case on hand, it is obvious that the subject lease of agreement was executed on 20.11.2019 and appears to be presented before the Registering Authority and on acceptance and stated to have been orally given various dates to attend for registration drawn the Challan bearing No.5149659836504 on

12.03.2020, which is within the prescribed period of four months from the date of its execution and the actual date of four months would be completed on 20.03.2020. Though the statute makes it imperative to present an instrument for registration within four months from the date of its execution, no time is fixed within which a deed presented and accepted for registration must be registered; and, indeed, from the nature of the requirements of the Act, the period within which the registration must be completed could not have been fixed. Earlier, this

Court, in W.P. No.313 of 2020 on 01.10.2020, dealt with the similar

aspect and held at para 10 as under:

“….Since there is no period of limitation to register the

document, once it was presented before the authority

concerned within four (4) months after its execution and

when it was accepted for registration, registering the

document at a later stage i.e, on 31.08.2019 (after lapse of

22 years), cannot be faulted.” {Para 10}

 TELANGANA HIGH COURT

 WRIT PETITION No.15986 OF 2020

 Tata Consumer Products Limited and another Vs The State of Telangana

Coram: SRI JUSTICE N.V. SHRAVAN KUMAR

Dated 10.06.2022

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Whether registration of a document by the power of attorney holder can be declared invalid if power of attorney is unregistered?

 As far as the decision in the case of Ashok Kumar (supra) of a coordinate bench of this Court, true it is that it has been held that if the document is presented for registration by a power of attorney holder, such a power of attorney must be registered one else the registration of the document at his instance would be void. However, this decision of the brother Judge can no longer be said to be laying down a correct proposition in view of the decision of the Supreme Court in the case of Rajni Tandon (supra). While reversing a decision of the Calcutta High Court on the lines similar to the one in the matter of Ashok Kumar (supra) it has been laid down in Rajni Tandon (supra) that registration of a document by a power of attorney holder is not invalid on the ground of absence of registration of the power of attorney. It, therefore, needs to be concluded that the decision in the matter of Ashok Kumar (supra) stood impliedly overruled by the decision in the matter of Rajni Tandon (supra). {Para 12}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 15 of 2020 and CA/426/2020 in SA 15/2020

Decided On: 03.03.2022

Mahendra Vs. Premsukh and Ors.

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Whether it is mandatory to attest the sale deed?

As regards the proof regarding sale-deed is concerned, as has been rightly pointed out by the lower courts, it is not a document which requires any attestation if one goes through the provisions of Section 54 of the Transfer of Property Act. Since Subhash and Ajay were the executants who had never disputed its execution and were not even called as witnesses by the appellants, no error can be found with the observation of the courts below in holding that since the plaintiff No. 1 was a person who had signed the sale-deed and was examined as a witness on behalf of the plaintiffs and had stated about execution of document and its registration, there was sufficient proof regarding its execution.

{Para 10}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 15 of 2020 and CA/426/2020 in SA 15/2020

Decided On: 03.03.2022

Mahendra Vs. Premsukh and Ors.

Hon'ble Judges/Coram:

Mangesh S. Patil, J.

Citation: MANU/MH/0720/2022

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Whether the contents of the adoption deed can rebut the presumption of the registered adoption deed?

  Now, we shall examine the nature of presumption

that arises under section 16 of the 1956 Act. In Jai Singh v.

Shakuntala, (2002) 3 SCC 634, the Apex Court had held that

the presumption that arises out of section 16 of the 1956 Act is

rebuttable and the inclusion of the words “unless and until it is

disproved” appearing at the end of the statutory provision has

made the situation not that rigid but flexible enough to depend

upon the evidence on record in support of adoption. The

relevant portion of that judgment, as found in paragraph No.2

thereof, is extracted below:

“2. The section thus envisages a statutory presumption

that in the event of there being a registered document

pertaining to adoption there would be a presumption that

adoption has been made in accordance with law. Mandate

of the statute is rather definite since the legislature has

used “shall” instead of any other word of lesser

significance. Incidentally, however, the inclusion of the

words “unless and until it is disproved” appearing at the

end of the statutory provision has made the situation not

that rigid but flexible enough to depend upon the evidence

available on record in support of adoption. It is a matter of

grave significance by reason of the factum of adoption and

displacement of the person adopted from the natural

succession — thus onus of proof is rather heavy. Statute

has allowed some amount of flexibility, lest it turns out to

be solely dependent on a registered adoption deed. The

reason for inclusion of the words “unless and until it is

disproved” shall have to be ascertained in its proper

perspective and as such the presumption cannot but be

said to be a rebuttable presumption. Statutory intent thus

stands out to be rather expressive depicting therein that

the presumption cannot be an irrebuttable presumption by

reason of the inclusion of the words just noticed above.”

{Para 13}

14. Even in the decision in Laxmibai’s case (supra),

relied by the learned counsel for the appellant, the Apex Court

held that a very heavy burden is placed upon the propounder to

prove adoption but once a registered document recording the

adoption is brought before the court the onus shifts. The court

however clarified that this aspect must be considered taking

note of various attending circumstances. The relevant portion of

that judgment i.e.paragraph 33, is extracted below:

“33. The appellate court could therefore, not have drawn

any adverse inference against the appellant-plaintiffs on

the basis of a mere technicality, to the effect that the

natural parents of the adoptive child had acted as

witnesses, and not as executors of the document.

Undoubtedly, adoption disturbs the natural line of

succession, owing to which, a very heavy burden is placed

upon the propounder to prove the adoption. However, this

onus shifts to the person who challenges the adoption,

once a registered document recording the adoption is

brought before the court. This aspect must be considered

taking note of various other attending circumstances i.e.

evidence regarding the religious ceremony (giving and

taking of the child), as the same is a sine qua non for valid

adoption.”

(Emphasis supplied)

15. The legal principle deducible from the decisions

noticed above is that once a registered deed of adoption is

produced though there arises a presumption that the adoption

has been made in compliance with the provisions of the 1956

Act but that presumption is rebuttable. Whether that

presumption has been rebutted depends on the facts of each

case borne out from the evidence on record.

16. In the instant case, the adoption deed on which

reliance has been placed by the appellant declares Rajendra

Singh as unmarried whereas, it is established on the record, he

was married and had a wife living on the date of adoption.

Therefore once it was proved that Rajendra Singh had a living

wife, the presumption, if any, arising from that deed with regard

to the adoption being in accordance with the provisions of the

1956 Act stood demolished because how could it be presumed

that the wife had given her consent for her husband to take a

son in adoption when even the existence of that wife is not

acknowledged. In fact in the adoption deed Rajendra Singh has

been described as unmarried. Thus, when clinching evidence

had come on board that the person who allegedly took the

appellant in adoption had a living wife, whose existence was

denied in the deed, the presumption, whatever available, stood

rebutted.

ALLAHABAD HIGH COURT

Case :- SPECIAL APPEAL No. - 22 of 2021

Appellant :- Bhanu Pratap Singh

Respondent :- State Of U.P. And 3 Others

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Is it mandatory to register a tenancy agreement for less than 11 months under Maharashtra's rent control Act?

 According to the petitioner, since the registration of an agreement of the nature with which this Court is concerned in the present case, is required to be registered under the Registration Act, all the provisions of the Registration Act, including Sections 17 and 18 thereof would squarely apply. Since the period for which possession of suit shop was given to the respondent under the said agreement was only 11 months and clearly less than one year, such an agreement was not compulsorily registrable under Section 17 of the Registration Act and that the registration of such an agreement was only optional under Section 18 thereof.

12. A perusal of the above quoted Section 55 of the said Act would show that it opens with a non-obstante clause, which provides that notwithstanding anything contained in the said Act  or any other law for the time being in force, any agreement between the landlord and tenant after commencement of the said Act has to be in writing and shall be registered under the Registration Act, 1908. The manner in which the non- obstante clause is framed, the registration of such an agreement in writing is mandatory and it is required to be registered under the Registration Act. The non - obstante clause is followed by the words "any other law for the time being in force". These words would take into their sweep the Registration Act also, since it was in force when the aforesaid Act came into being. Therefore, notwithstanding the fact that an agreement between the landlord and tenant for a period less than one year would not be compulsorily registrable under Sections 17 and 18 of the Registration Act, yet, such an agreement for less than one year shall have to be registered under the Registration Act. Any other interpretation of such a non - obstante clause in Section 55(1) of the said Act would amount to adding words into the same like "any other law for the time being in force except requirements of Section 17 r/w 18 of the Registration Act". Such adding of words cannot be resorted to, when a plain reading of the said provision, particularly the non - obstante clause shows that every agreement between the landlord and tenant after commencement of the aforesaid Act shall be in writing and must be registered.

13. The emphasis placed on words "shall be registered under the Registration Act, 1908", placed by the learned counsel for the petitioner to contend that the registration of such an agreement for a period less than one year was optional under Section 18 of the Registration Act, cannot be accepted.

Bombay High Court

Anwar Noormohammed Pirani vs Santosh Gajanan Naskulwar on 3 December, 2019

Bench: Manish Pitale

 Writ Petition No. 5650 of 2018
Citation: 2020(6) MHLJ 257

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Whether it is mandatory to register a memorandum of family settlement if a family member not having title to the property previously was allocated a particular property?

The settled legal position is

that when by virtue of a family settlement or arrangement,

members of a family descending from a common ancestor or a

near relation seek to sink their differences and disputes, settle

and resolve their conflicting claims or disputed titles once and for all in order to buy peace of mind and bring about complete

harmony and goodwill in the family, such arrangement ought to be governed by a special equity peculiar to them and would be enforced if honestly made. The object of such arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family, as observed in Kale (supra). In the said reported decision, a threeJudge  Bench of this Court had observed thus: “

9.….. A family arrangement by which the property is

equitably divided between the various contenders so as to

achieve an equal distribution of wealth instead of

concentrating the same in the hands of a few is

undoubtedly a milestone in the administration of social

justice. That is why the term “family” has to be

understood in a wider sense so as to include within its

fold not only close relations or legal heirs but even those

persons who may have some sort of antecedent title, a

semblance of a claim or even if they have a spes

successionis so that future disputes are sealed for ever

and the family instead of fighting claims inter se and

wasting time, money and energy on such fruitless or futile

litigation is able to devote its attention to more

constructive work in the larger interest of the country.

The courts have, therefore, leaned in favour of

upholding a family arrangement instead of disturbing

the same on technical or trivial grounds. Where the

courts find that the family arrangement suffers from a

legal lacuna or a formal defect the rule of estoppel is

pressed into service and is applied to shut out plea of

the person who being a party to family arrangement

seeks to unsettle a settled dispute and claims to

revoke the family arrangement under which he has

himself enjoyed some material benefits. …..”

(emphasis supplied)

In paragraph 10 of the said decision, the Court has delineated

the contours of essentials of a family settlement as follows: “

10. In other words to put the binding effect and the

essentials of a family settlement in a concretised form,

the matter may be reduced into the form of the following

propositions:

“(1) The family settlement must be a bona fide one

so as to resolve family disputes and rival claims by a

fair and equitable division or allotment of properties

between the various members of the family;

(2) The said settlement must be voluntary and

should not be induced by fraud, coercion or undue

influence;

(3) The family arrangement may be even oral in

which case no registration is necessary;

(4) It is well settled

that registration would be

necessary only if the terms of the family arrangement

are reduced into writing. Here also, a distinction

should be made between a document containing

the terms and recitals of a family arrangement

made under the document and a mere

memorandum prepared after the family

arrangement had already been made either for the

purpose of the record or for information of the

court for making necessary mutation. In such a

case the memorandum itself does not create or

extinguish any rights in immovable properties and

therefore does not fall within the mischief of Section

17(2) of the Registration Act and is, therefore, not

compulsorily registrable;

(5) The members who may be parties to the family

arrangement must have some antecedent title, claim

or interest even a possible claim in the property which

is acknowledged by the parties to the settlement. Even

if one of the parties to the settlement has no title

but under the arrangement the other party

relinquishes all its claims or titles in favour of such

a person and acknowledges him to be the sole

owner, then the antecedent title must be assumed

and the family arrangement will be upheld and the

courts will find no difficulty in giving assent to the

same;

(6) Even if bona fide disputes, present or possible,

which may not involve legal claims are settled by a

bona fide family arrangement which is fair and

equitable the family arrangement is final and binding

on the parties to the settlement.”

(emphasis supplied)

Again, in paragraph 24, this Court restated that a family

arrangement being binding on the parties, clearly operates as an

estoppel, so as to preclude any of the parties who have taken

advantage under the agreement from revoking or challenging the

same. In paragraph 35, the Court noted as follows: “

35. … We have already pointed out that this Court

has widened the concept of an antecedent title by holding

that an antecedent title would be assumed in a person

who may not have any title but who has been allotted a

particular property by other party to the family

arrangement by relinquishing his claim in favour of such

a donee. In such a case the party in whose favour the

relinquishment is made would be assumed to have an

antecedent title. …..”

And again, in paragraph 36, the Court noted as follows: “

36. … Yet having regard to the near relationship

which the brother and the soninlaw

bore to the widow

the Privy Council held that the family settlement by which

the properties were divided between these three parties

was a valid one. In the instant case also putting the case

of Respondents Nos. 4 and 5 at the highest, the position

is that Lachman died leaving a grandson and two

daughters. Assuming that the grandson had no legal title,

so long as the daughters were there, still as the

settlement was made to end the disputes and to benefit

all the near relations of the family, it would be sustained

as a valid and binding family settlement. …”

While rejecting the argument regarding inapplicability of principle

of estoppel, the Court observed as follows: “

38. … Assuming, however, that the said

document was compulsorily registrable the courts

have generally held that a family arrangement being

binding on the parties to it would operate as an

estoppel by preventing the parties after having taken

advantage under the arrangement to resile from the

same or try to revoke it. …..”

(emphasis supplied)

And in paragraph 42, the Court observed as follows: 42.

..… In these circumstances there can be no doubt

that even if the family settlement was not registered

it would operate as a complete estoppel against

Respondents Nos. 4 and 5. Respondent No. 1 as also the

High Court, therefore, committed substantial error of law

in not giving effect to the doctrine of estoppel as spelt out

by this Court in so many cases. …”

(emphasis supplied)

 A priori, we have

no hesitation in affirming the conclusion reached by the first

appellate Court that the document Exhibit P6

was nothing but a

memorandum of a family settlement. The established facts and

circumstances clearly establish that a family settlement was

arrived at in 1970 and also acted upon by the concerned parties.

That finding of fact recorded by the first appellate Court being

unexceptionable, it must follow that the document Exhibit P6

was merely a memorandum of a family settlement so arrived at.

Resultantly, it was not required to be registered and in any case,

keeping in mind the settled legal position, the contesting

defendants were estopped from resiling from the stated

arrangement in the subject memorandum, which had recorded

the settlement terms arrived at in the past and even acted upon

relating to all the existing or future disputes qua the subject

property amongst the (signatories) family members despite

absence of antecedent title to the concerned property.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7764 OF 2014

Ravinder Kaur Grewal Vs  Manjit Kaur 

A.M. Khanwilkar, J.

Dated: July 31, 2020.

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Whether the presence of purchaser is necessary for the registration of sale deed?

So far as the provisions of Registration Act, 1908 is

concerned, the law requires presentation of the document to be

registered at the proper registration office by following categories

of persons:“

32. Persons to present documents for

registration.—Except in the cases

mentioned in [Sections 31, 88 and 89],

every document to be registered under

this Act, whether such registration be

compulsory or optional, shall be

presented at the proper registration

office,(

a) by some person executing or claiming

under the same, or, in the case of a copy

of a decree or order, claiming under the

decree or order, or

(b) by the representative or assign of such

a person, or

(c) by the agent of such a person,

representative or assign, duly authorised

by powerofattorney

executed and

authenticated in manner hereinafter

mentioned.”

7. The plaintiff has not disputed that the vendor or seller i.e.

Madegowda had executed the document (first sale deed) and we

do not find any doubt expressed over his presence before the

Registering Authority. No case has been made out either that

the deed of conveyance carried any collateral obligation on the

part of the purchaser, in this case being Manchegowda (since

deceased). The plaintiff has not made out a case of acquiring

title under the principle of part performance as incorporated in

Section 53 (A) of the Transfer of Property Act, 1882. No pleading

to that effect in the plaint has been made out.

8. We find from the judgment of the Trial Court and the First

Appellate Court that the respective parties had led evidence of

execution and subsequent registration of the deeds but the first

two courts did not reject the contention of the second set of

defendants that there was no execution by Madegowda (since

deceased) of the deed of sale to Manchegowda (since deceased).

The case has been decided in favour of the plaintiff on the

ground that the buyer was not present at the time of

registration of sale deed. There is evidence to the effect that the

second defendant (Manchegowda) had not come to the office of

the SubRegistrar

at the time of execution of the sale deed. But

as per law as it stood at the material point of time, there was no

necessity of presence of purchaser at the Registration Office

during the registration of sale deed. The deed was executed by

Madegowda and that aspect has not been disputed. The deed in

question does not fall within Sections 31, 88 and 89 of the

Registration Act. Section 32 of the said Act does not require

presence of both parties to a deed of sale when the same is

presented for registration.

(NonReportable)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3975 OF 2010

H.P.Puttaswamy Vs  Thimmamma 

ANIRUDDHA BOSE,J.

Dated:24th January, 2020.

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Whether plaintiff is required to pay Advaloram court fees if he has only filed suit for registration of sale deed?

 In this case, plaintiff is seeking appropriate directions to the authorities to register the sale deed dated 1st February, 2011 and thus, it was not a comprehensive suit, being not coupled with any other reliefs. In the given set of facts, the subject matter of the dispute being not susceptible of monetary valuation, it is subject to valuation under clause (j) of Section 6 of the Maharashtra Court-fees Act.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5426 of 2012

Decided On: 05.07.2019

Prakash Nandkishor Bhalke  Vs.  The Joint District Registrar, Photozinco Premises 

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2020(1) MHLJ 646

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Bombay HC: Registered leave and licence agreement is not public document

 In fact, this Court, in Vithoba Savlaram v. Shrihari Narayan MANU/MH/0077/1944 : AIR 1945 BOM 319, has held that once a private document has been kept in official record with entry about their execution, say by a registering authority, that document per se does not become a public document. But the entry in the official record in relation to that document does.

41. Here the alleged registered 'leave and license agreement' still remains a private document that its registration does not cure the mischief under Section 74 of the Act. Its marking through PW1 does not amount to its proof, though. I reckon the other documents are public documents or private documents sought to be marked through PW1, from whom they originate. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8764 of 2018

Decided On: 07.08.2019

 Kumarpal N. Shah Vs.  Universal Mechanical Works Pvt. Ltd.

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: AIR 2019 Bom 290: 2020(1) MHLJ 442

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Whether consent letter can be treated as relinquishment deed?

However, defendant No. 1/appellant herein intends to deny the said share of the plaintiff by placing reliance on Ex. D-2. Ex. D-2 cannot be considered in law to be a relinquishment of plaintiff's right, tide and interest in the suit schedule properties. The said consent letter may have been given for the purpose of entering the name of defendant No. 1 in the revenue records. The said consent letter would not amount to a relinquishment of the right, tide and interest of the plaintiff in the suit schedule properties. Even the said consent letter has not been believed by the trial court, nor Ex. D-2 could be equated to a deed of relinquishment. Any deed of relinquishment would require registration as per Section 17 of the Indian Registration Act, 1908. In the absence of there being any deed of relinquishment which has been registered in accordance with law, it cannot be held that the plaintiff has given up her right, title and interest in the suit schedule properties.

IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)

Regular First Appeal No. 100377 of 2017

Decided On: 04.02.2019

 Lokappa  Vs. Shekavva and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and A.S. Bellunke, JJ.

Citation: AIR 2019 Karnat 119

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Whether it can be presumed that registered power of attorney was duly stamped?

 Reverting to the registered General Power of Attorney, the same has been executed by the original Defendant No. 1 -predecessor in title of Respondent Nos. 1 & 2 (Defendant Nos. 3 & 4), in favour of Respondent No. 3 (Defendant No. 2). Being a registered document, in our opinion, the Trial Court was justified in observing that there is a legal, rebuttable presumption that the same has been duly stamped. As observed by the Trial Court, the question as to whether the document is hit by the provisions of the 1882 Act or the 1899 Act can be decided after the parties adduce oral and documentary evidence.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 18377 of 2017

Decided On: 04.07.2018

Ameer Minhaj Vs. Dierdre Elizabeth (Wright) Issar and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation: 2019(3) MHLJ 550

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Whether gift deed can registered after death of donor?

14. Section 122 of the Transfer of Property Act, 1882 defines “Gift” in the following words:—

“122. “Gift” defined.—“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.”

15. If the deed of gift satisfies the requirement of Section 122 of the Transfer of Property Act read with Section 17 of the Registration Act, there is no scope to say that the said deed of gift is invalid. During the trial of the suit the deed of gift in question was marked as exhibit-“Ga”. It is found from the said exhibit that it was executed on 5th January, 1994. The recital of the deed states that the donees were grand-sons (sons of one of the daughters) of the donor. It is not disputed that before her death the donor used to reside in the house of the donees. They used to look after the donor during her old age. Precisely due to such reason, Jagomaya Dasi transferred the suit property in favour of the appellants by executing a deed of gift on 5th January, 1994. Section 123 of the Transfer of Property Act stipulates that a deed of immovable property can be made only for transferring the right, title and interest by the donor to the donee by a registered instrument signed by or on behalf of the donor and must be attested by at least two witnesses. The pre-existing right, title and interest of donor thereby stand divested in the donee only when the gift deed is duly registered and thereafter the donor would lose title to the property, provided the donee had accepted the property gifted over under the instrument.

18. The respondents have raised serious doubt over the authenticity of the said deed of gift because of the fact that it was registered after the death of the donor. However, well established is the law that it is not necessary for the validity of a deed of gift that it should be registered by the donor himself. In Bhabotosh v. Soleiman reported in 33 Cal 584, a Hindu man executed a deed of gift in favour of his wife and died, and the deed was subsequently registered at the instance of the widow-donee. Validity of the deed of gift was challenged on the ground that it was registered subsequent to the death of the donor. This Court held that subsequent registration of a deed of gift after the death of the donor at the instance of the donee did not offend the provisions of Section 123 of the Transfer of Property Act. The post-mortem registration of a deed of gift by the legal representative of the donor has the same effect as its registration by the donor himself during his lifetime.

In the High Court of Calcutta

(Before Bibek Chaudhuri, J.)

Dinabandhu Mondal  v. Laxmi Rani Mondal 

SA 596 of 2008

Decided on June 17, 2019, 

Citation: 2019 SCC OnLine Cal 1118 : AIR 2019 Cal 232

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Whether purchaser of property can take benefit of doctrine of part performance if sale deed is exhibited?

 On a plain reading of this provision, it is amply clear that the document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53A of the 1882 Act. The issue, in our opinion, is no more res integra. In S. Kaladevi v. V.R. Somasundaram and Ors., MANU/SC/0246/2010 : (2010) 5 SCC 401 this Court has re-stated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act. Section 49 of the 1908 Act reads thus:

49. Effect of non-registration of documents required to be registered.- No document required by Section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 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 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.

11. In the reported decision, this Court has adverted to the principles delineated in K.B. Saha and Sons Private Limited v. Development Consultant Limited, MANU/SC/7679/2008 : (2008) 8 SCC 564 and has added one more principle thereto that a document is required to be registered, but if unregistered, can still be admitted as evidence of a contract in a suit for specific performance. In view of this exposition, the conclusion recorded by the High Court in the impugned judgment that the sale agreement dated 9th July, 2003 is inadmissible in evidence, will have to be understood to mean that the document though exhibited, will bear an endorsement that it is admissible only as evidence of the agreement to sell under the proviso to Section 49 of the 1908 Act and shall not have any effect for the purposes of Section 53A of the 1882 Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 18377 of 2017

Decided On: 04.07.2018

 Ameer Minhaj  Vs. Dierdre Elizabeth (Wright) Issar and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation: (2018) 7 SCC 639

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Whether private document can be treated as public document if it is registered with competent authority?

The Section 74 of the Indian Evidence Act, 1872 describes which documents would form public documents. The sub-section (1) thereof provides that the documents forming the acts, or records of the acts of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country are the public documents whereas the sub-section (2) of Section 74 provides that the public records kept in any state of private documents are also public documents. Merely because the public records kept in the state of private documents are defined as public documents under Section 74 of the Evidence Act, that itself would not amount to contend that any document executed between two or more parties by itself would form a public document. The record pertaining to such document kept by the State though in the form of public record may form a public document, any such private document by itself cannot constitute to be a public document and it will continue to be a private document executed by the private parties. As such document would be a document enumerated under Section 75 of the Indian Evidence Act. Being so, merely because the deed of assignment is registered with the competent authority that deed itself would not partake the nature of a public document and it will continue to be a private document. A record relating to the execution of such deed maintained by the State however may be a public document bearing in mind the provision of law comprised under Section 74 of the Indian Evidence Act. Being so, the contention that the deed of assignment is a public document and therefore the petitioner would be taken by surprise by production of such document is to be rejected as being totally devoid of substance.

IN THE HIGH COURT OF BOMBAY

W.P. No. 5832 of 2004

Decided On: 20.09.2004

Purushottam alias Nana U. Sanyasi Vs. A.N. Jog and Ors.

Hon'ble Judges/Coram:

R.M.S. Khandeparkar, J.

Citation: 2005(1) Mh.L.J. 426,

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To what extent unregistered family settlement can be relied on?

 Under Section 17 of the Registration Act, the documents which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, are to be registered. Under Section 49 of the Registration Act no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting an immovable property. As provided by Section 49 of the Registration Act, any document, which is not registered as required under the law would be inadmissible in evidence and cannot therefore be produced and proved Under Section 91 of the Evidence Act.

17. Even though recitals in the Ex. D22 is to the effect of relinquishment of right in items No. 1 and 2, Ex. D22 could be taken as family arrangements/settlements. There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties. In the present case, Ex. D22 panchayat resolution reduced into writing, though not registered can be used as a piece of evidence explaining the settlement arrived at and the conduct of the parties in receiving the money from the Defendant in lieu of relinquishing their interest in items No. 1 and 2.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5805 of 2016 (Arising out of SLP (C) No. 27268 of 2008)

Decided On: 05.07.2016

Subraya M.N. Vs. Vittala M.N. and Ors.

Hon'ble Judges/Coram:

Kurian Joseph and R. Banumathi, JJ.

Citation: 2017(5) BomCR160

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Whether mutation entries in absence of registered relinquishment deed can be relied on?

Since this Court has already come to the conclusion, on the basis of aforesaid provision of law as well as material available on record, that no immovable property could be relinquished without there being registered document, mutation, if any, conducted on the basis of oral relinquishment/'Azadinama' as reflected in Ex. P-1 and Ex. DX has no bearing on the rights of plaintiff, who is absolute owner of the suit land.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Regular Second Appeal No. 23 of 2006

Decided On: 05.05.2017

 Piar Chand and Ors. Vs. Sant Ram and Ors.

Hon'ble Judges/Coram:

Sandeep Sharma, J.

Citation:AIR 2017(NOC) 918 HP

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Whether doctrine of part performance as per S 53A of transfer of property Act can be used by plaintiff as shield?

 The first contention raised by learned advocate Mr. Vimal Purohit is that the suit agreement requires to be registered compulsorily in view of the provisions contained under Section 17(aa) of the Registration Act. Since, it is not registered, it cannot be admitted in evidence as provided under Section 49 of the Registration Act. It is true that the agreement to sale is required to be registered as per amended Section 17(aa) of the Registration Act. Since there is no corresponding amendment in Section 49 of the Registration Act, the suit of the plaintiff would not fail on the ground of non-registration of the agreement to sale. Even otherwise, document, required to be registered, if unregistered, can be admitted in evidence as evidence of contract in a suit for specific performance. Thus, unregistered agreement can be used as an evidence of collateral purpose as provided in proviso to Section 49 of the Registration Act. Therefore, it is neither appropriate nor necessary to consider the contention raised by learned advocate Mr. Vimal Purohit about maintainability of the suit as framed by the plaintiff. If any issue in that regard is settled by the learned trial Court, obviously, such issue would be decided in accordance with law. There is no doubt in the mind of this Court that the sale agreement by itself does not create any interest or charge in the immovable property. In the case of Suraj Lamp & Industries Pvt. Ltd. (supra), the Hon'ble Apex Court has held that the immovable property can be legally and lawfully transferred/conveyed only by registered deed of conveyance. While holding so, the Hon'ble Apex Court held that observations regarding SA/GPA/WILL transactions are not intended to apply to such bona fide/genuine transactions. Therefore, contention raised by learned advocate Mr. Purohit that doctrine of part performance incorporated in Section 53A of the Transfer of Property Act can be pressed into service only as a defence and the holder of agreement of contract cannot file a suit against the transferor in respect of the suit property for any purpose, cannot be accepted. Scrutiny of Section 53A of the Transfer of Property Act would indicate that when necessary conditions for application of the provisions are fulfilled, the transferor or any person claiming under him is debarred from enforcing against the transferee or any person claiming under him any right in respect of the property in question, even though, required to be registered, is not registered or where there is an instrument of transfer, the transfer is not legally complete. So, attempt on the part of learned advocate Mr. Purohit is to drive the Court to hold that the transferee can use the unregistered deed as shield only as a defendant and not as a plaintiff would defeat the very spirit of Section 53A for it will be possible for an over-powering transferor to forcibly dispossess the transferee even against the covenants in the contract and compel him to go to the court as a plaintiff. If the right as a shield is available to the transferee as a defendant, there is no justification that it would be denied to the transferee even if by force of circumstances, he is compelled to approach the Court as a plaintiff to use that shield.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Appeal From Order No. 457 of 2016 and Civil Application No. 12575 of 2016 in Appeal From Order No. 457 of 2016

Decided On: 10.01.2017

Ghnshyambhai Dhirubhai Barvaliya Vs. Rasikbhai Dhirubhai Ambaliya and Ors.

Hon'ble Judges/Coram:

S.H. Vora, J.

Citation: AIR 2017 Gujarat 164

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Whether Registering officer can undertake inquiry into legality and validity of document to be registered?

We have exhaustively produced relevant provisions
of Act, 1908 which confer adequate powers upon
registering officer and higher ups including to obtain
photographs and finger prints and the signature for
obtaining registration under Section 32 (a) of the Act and
duties of registering officer when such document is
presented under Section 52 of the Act. Section 34
envisaged nature of limited inquiry but not about legality
and validity of the title to be undertaken before
registration of the document by registering officer and in
case when identity of the person presenting the document
is doubtful registration is to be refused, which is again
subject matter of appeal before higher officer. The
contention based on Sections 68 and 69 of the Act, 1908
by learned Additional Advocate General about powers of
Registrar to Superintend and control Sub Registrars and
Power of Inspector-General to Superintend registration
offices and make rules, however would not confer any
power upon the State Government to issue such executive
instructions which are contrary to Act, 1908 and
provisions of Article 254(2) of the Constitution of India and
further Section 69(2) envisaged that rules made under
Section 69 shall have to be submitted to the State
Government for approval and after they have been
approved and published in the official gazette the same
shall have effect as if enacted under the Act. Admittedly,

no such rules are framed. In a case of Pandurangan v.
Sub-Registrar, Reddiar-Palayam Pondicherry & Ors. where
Rule 54 was framed in exercise of power conferred under
Section 69 of the Act, 1908 was held to be illegal by
holding that statutory rules cannot override express
provisions of the statute. Further, the powers conferred
under Section 69 are only of General Superintendence and
for purpose mentioned therein and not to make any inroad
or obviate provisions of the Act. That Chapter XIV
pertaining to ‘of penalties’ of the Act 1908 provides
action to be taken against registering officer in case if
such officer knows or believes that endorsement, copying,
translation or registration of such document is incorrect
such action shall be punishable with imprisonment for a
term which may extend to 7 years or with fine or with
both. Likewise, Section 82 is about penalty for making
false statements, delivering false copies or translations,
false personation and abetment and in this case also
punishment is the same. Further registering officer is
empowered to commence prosecution with permission of
superior officer whenever such offence is committed.
Thus, sufficient care is taken for any mischief either to be
made by presenter or even officer of registration
department. The apprehension of learned Additional
Advocate General about suspicion and doubtful power of
attorney and holder of such power of attorney therefore is
misconceived.

18.1.The contention raised by Mr. P.K.Jani, learned
Additional Advocate General about breach of provisions of
other statute, prima facie to be looked into by the
registering authority has no merit. It is trite that for
breach of provisions of any other Act, competent authority
under such Act has all the powers to take action in
accordance with law for the breach alleged. For example,
if the stamp duty is not paid in accordance with the
requirement under Stamp Act, competent authority under
the above Act has all the powers to take action in
accordance with law but for such ground registering
officer is not empowered to refuse the registration of the
document if otherwise found proper in accordance with
provisions of the Act, 1908. That Rule 45 of the rules
1970 framed by the State of Gujarat in exercise of powers
conferred by Section 69 of the Act 1908 also envisaged
preliminary and limited inquiry by Registering Officer
before accepting the document and the same is in
consonance with Section 34 of the Act but under above
rule also provision of the main Act 1908 also cannot be
subdued or can be given go by or whittled down and the
contentions based on Rule 45 also have no merit.
19. That contention raised by learned Additional
Advocate General on the strength of decisions cited to
which reference is made in para 4 of this judgment has no
applicability inasmuch as in the case of Rai Sahib Ram
Jawaya Kapur & Ors. v. The State of Punjab (supra), it only

explain scope of executive power in the context of Article
162 of the Constitution of India and in case of Ajit
Investment Co.Pvt. Ltd., Jamnagar Gujarat and Anr. V. K.G.
Malvadkar and Ors. (supra) though deal with Sections 34
and 35 of the Act 1908 and Rule 44 of Maharashtra Rules,
1961 it is only about empowerment of a registering officer
to verify certain requirements pertaining to registration of
documents which are prescribed in the said rules but may
not be concerned about validity of such document. Such
registering authority can satisfy himself as to the identity
of the persons appearing before him. Thus, above
decision also do not approve inquiry to be made in the
legality and validity of the title of the document if it
satisfies other requirement of the Act 1908. in the case of
Suraj Lamp and Industries (P) Ltd. Thru Div. State of
Haryana and Anr. (supra), the Apex Court was concerned
with transactions undertaken by taking recourse to power
of attorney and not following the procedure and
requirement of registration of sale deed of transfer of
immovable property and, therefore, deprecated transfer of
immovable property either by sale agreement or general
power of attorney or wil.
19.1.Therefore, none of the above authorities permit
registering officer to undertake inquiry into legality and
validity of the title and document empowering registering
officer to act like judicial officer.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 22 of 2013
In SPECIAL CIVIL APPLICATION NO. 14413 of 2011

STATE OF GUJARAT 
V
RAJIV MAHESHKUMAR MEHTA & 3
CORAM:  MR.JUSTICE ANANT S. DAVE
and
 MR.JUSTICE R.P.DHOLARIA
Date : 09/08/2016

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