The Registration Trap: Sections 52-53 TPA and 17-49 Registration Act in Judicial Practice

Introduction

Three statutes converge every working morning on the table of a civil judge: the Transfer of Property Act, 1882, the Registration Act, 1908, and the Maharashtra Stamp Act, 1958. They converge at a single, deceptively ordinary moment — when an advocate says, "I tender this document, Your Honour." What the presiding officer does in the next ninety seconds decides whether the record is sound or fatally compromised; and it is the District Judge, sitting in first appeal under Section 96 of the Code of Civil Procedure, 1908, who inherits the consequences.

Three propositions frame everything that follows.

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Whether it is mandatory to register adoption deed?

 The civil court rejected the petition on two grounds firstly that the biological parents have taken objection for giving the child in adoption and secondly that adoption deed is not registered as per Section 16 of HAMA. As regards the rejection on the ground of absence of consent is concerned, as indicated above, the proper course would have been to relegate the parties to the remedy of substantive suit. This was not done and the petition was rejected. The second ground was that the adoption deed was not registered. In that context if we peruse Section 16 of HAMA, it raises a statutory presumption as to registered documents relating to adoption provided that the condition precedent is satisfied and cannot be interpreted to mean that the adoption deed is required to be registered. In that context if we peruse the provisions of Section 17 of Indian Registration Act, 1908, the deed of adoption does not find mention in the documents required to be compulsorily registered.  The provisions of HAMA do not require a document to be registered, however, there is a statutory presumption which arises in respect of the registered document relating to adoption. In the present case, as the deed of adoption is not registered, the condition precedent for statutory presumption to be raised is not satisfied and as such without evidence being led, there can be no presumption relating to adoption as regards the unregistered deed of adoption. 

{Para 32}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6461 of 2023

Decided On: 19.08.2023

Jeetendra  Vs. Yash 

Hon'ble Judges/Coram:

Sharmila U. Deshmukh, J.

Citation: MANU/MH/3247/2023.

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Important provisions of Registration Act 1908

17. Documents of which registration is compulsory.—

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

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Whether it is mandatory to register an arbitration award that provides for the partition of Properties in the future?

On a perusal of the award which is in the form of a resolution, it is clear that there was no right created in any specific item or asset of the joint family properties in any person but the parties resolved to take certain actions in pursuance of a family arrangement. Therefore under Annexure P-10 (Ex. B-13) there was no right created in favour of any party in any specific item of joint family property. The said document which has been styled as an award is, in our view, only a memorandum of understanding/family arrangement to be acted upon in future. Hence, in our considered view, the said document did not create rights in specific properties or assets of the family, in favour of specific persons. Therefore, the same did not require registration under section 17(1)(e) of the Act. The said document was in the nature of a document envisaged under section 17(2)(v) of the Act. For a better understanding of the same it would be useful to refer to section 17(1)(e) and 17(2)(v) as under:

“17. Documents of which registration is compulsory.—(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—

xxxxxxxxx

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

xxxxxxxxx

(2) Nothing in clauses (b) and (c) of sub-section (l) applies to:—

xxxxxxxxx

(v) any document other than the documents specified in sub-section (1A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest.”

{Para 28}

29. Having regard to the aforesaid provisions of law it can be safely concluded that the said award was a mere arrangement to divide the properties in future by metes and bounds as distinguished from an actual deed of partition under which there is not only a severance of status but also division of joint family properties by metes and bounds in specific properties. Hence it was exempted from registration under Section 17(2)(v) of the Act. A document of partition which provides for effectuating a division of properties in future would be exempt from registration under section 17(2)(v). The test in such a case is whether the document itself creates an interest in a specific immovable property or merely creates a right to obtain another document of title. If a document does not by itself create a right or interest in immovable property, but merely creates a right to obtain another document, which will, when executed create a right in the person claiming relief, the former document does not require registration and is accordingly admissible in evidence vide Ranjangam Iyer v. Ranjangam Iyer, AIR 1922 PC 266.

30. In the instant case exhibit B-13 award is more in the nature of a memorandum of understanding, a mere agreement of the steps to be taken in future for the division of the properties. Hence, the said document did not require registration under Section 17(1)(b) of the Act as under the said document no creation of rights in any specific joint family property was effected. Hence the second limb of the contention of the appellant is accordingly answered.

31. Thus, in our view the judgment in O.P. No. 7 of 1972 which was a petition filed under Section 17 of the Arbitration Act, 1940 praying to receive the award passed by the arbitrators and to pass a judgment thereon, wherein it was held that the award was not registered as mandated under Section 17(1)(b) of the Act and hence could not be made a rule of the Court, is wholly incorrect. In our view, the award was not a document of title to the property hence it did not require registration. Therefore, the Order dated 22nd August, 1975 passed in O.P. No. 7 of 1972 holding that the award was inadmissible in evidence as it was not registered and hence a decree could not be passed, is incorrect.

32. In our view, exhibit B-13 did not require registration.

 In the Supreme Court of India

(Before L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna, JJ.)

K. Arumuga Velaiah  Vs P.R. Ramasamy 

Civil Appeal No. 2564 of 2012

Decided on January 27, 2022

Citation: 2022 SCC OnLine SC 95

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Supreme Court: Purported lessee can not claim any right based on unregistered lease deed

We are of the considered opinion, that no reliance can be placed upon the lease deeds allegedly executed between the defaulting rice miller(s) and the Respondent(s), as they do not satisfy the statutory requirements of Section 17(1)(d) of the Registration Act, 1908. These Lease-deeds thus cannot be accepted as evidence of valid transfer of possessory rights. The plea taken by the Appellant-FCI, that such documentation was made only to escape the liability fastened on the defaulting rice millers, carries some weight, though it is a pure question of fact. The High Court nevertheless ought to have refrained from opining on the sufficiency of such lease deeds for recognition of a new legal entity, and consequential non-transfer of liability to the lessees.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2070 of 2020 

Decided On: 06.03.2020

 Food Corporation of India  Vs.  V.K. Traders and Ors.

Hon'ble Judges/Coram:

S.A. Bobde, C.J.I., B.R. Gavai and Surya Kant, JJ.

Citation:(2020) 4 SCC 60,MANU/SC/0298/2020

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Whether lease deed is to be registered in case of tenancy-at-will even though rent was payable yearly?

 In Mt. Aishan v. Municipal

Committee Lahore 92 Ind.Cas. 526 Campbell

J. held that a mere recital of an annual

rate of rent did not constitute the lease,

a lease reserving a yearly rent within the

meaning of Section 17, Registration Act.

The lease in that case was determinable at

any time at the will of the landlord. In

the present case after the expiry of one

year for which the lease was granted, this

lease too was determinable at the end of

Jeth, Sambat 1985. In this aspect the

present lease constituted no more than a

tenancy-at-will after the expiry of the

first year and so appears to be covered by

the decision of Campbell, J. referred to

above. There is considerable body of

authority for the proposition that where

there is a tenancy-at-will created even

though the rent is fixed and is payable

annually, the document is not subject to

compulsory registration. Reference in this

connection may be made to Muhammad Masam

Khan v. Mt. Bakhtawar (1895) 70 P.R. 1895

where a Division Bench held on a

construction of the document before them

that only those leases must be registered

which are in terms for a period exceeding

one year, a lease reserving a yearly rent,

and containing no other provision

establishing a tenancy-at-will, being

presumably a lease from year to year.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVI L APPEA L NO. 2617 O F 2020

SIRI CHAND (DECEASED) THR. LRS. Vs SURINDER SINGH .

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Whether the court can infer that tenancy was for more than a year if there is a clause of increase of rent every year in rent note?

As per law laid down by this Court in Ram Kumar Das(supra) there shall be a presumption that the tenancy in the

present case is monthly tenancy. When the clauses of

rent note are cumulatively read, the intention of the

tenant is more than clear that tenancy was only

monthly tenancy, which could have been terminated on

default of payment of rent by 5th day of any month or

by notice of one month. The rent deed did not confer

any right to tenant to continue in the tenancy for a

period of more than one year nor it can be said that

tenancy was created for a period of more than one

year. Clause (9), which noticed the promise of the

tenant of payment of rent by increasing 10% each year

was a promise contingent on tenancy being continued

beyond one year but cannot make the tenancy year to

year or tenancy for a period of more than one year.

Present was a case of tenancy for which no period was

specified and looking to all the clauses

cumulatively, we find that the rent note was not such

kind of rent note, which requires compulsory

registration under Section 17(1)(d).

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVI L APPEA L NO. 2617 O F 2020

SIRI CHAND (DECEASED) THR. LRS. Vs SURINDER SINGH .

ASHO K BHUSHAN, J.

Dated:June 17, 2020.

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Whether title in immovable property can be transferred on basis of unregistered exchange deed?

 This takes us to the next question as to whether the exchange deed at Exhibit P2 is admissible in evidence or not. The transfer of ownership of their respective properties by Defendant Nos. 1 and 2 was done through Exhibit P2 deed of exchange. It was contended by Defendant No. 1 that the exchange was only of the businesses. However, a careful perusal of Exhibit P2 clearly shows that the RCC building is also a subject matter of the deed of exchange. The value of RCC building exceeds Rs. 100/- which is not in dispute. Section 118 of the TP Act defines 'exchange' as under:

118. "Exchange" defined.-When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".

A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

18. It is clear from this provision that where either of the properties in exchange are immovable or one of them is immovable and the value of anyone is Rs. 100/- or more, the provision of Section 54 of the TP Act relating to sale of immovable property would apply. The mode of transfer in case of exchange is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs. 100/- and above, it can be made only by a registered instrument. In the instant case, the exchange deed at Exhibit P2 has not been registered.

19. Section 49 of the Registration Act, 1908 provides for the effect of non-registration of the document which is as under:

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:

20. Section 17(i)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered Under Section 17 of the Registration Act. Since, the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property, namely, RCC building, it requires registration Under Section 17. Since the deed of exchange has not been registered, it cannot be taken into account to the extent of the transfer of an immovable property.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5415 of 2011

Decided On: 02.07.2018

Shyam Narayan Prasad Vs. Krishna Prasad and Ors.

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Whether unregistered lease deed can be used for collateral purpose?

 Section 55 of the Rent Control Act deals with the tenancy agreement to be compulsorily registered. Sub section 2 of Section 55 of the Act is relevant here. It reads thus :

"The responsibility of getting such agreement registered shall be on the landlord and in the absence of the written registered agreement, the contention of the tenant about the terms and conditions subject to which a premises have been given to him by the landlord on leave and licence or have been let to him, shall prevail, unless proved otherwise."

10. From sub-section 2 of Section 55 of the Rent Control Act, it can be seen that registration of agreement is required to be at the behest of landlord and otherwise burden to prove tenancy or licence is on the tenant. Section 55(2) of the Rent Control Act cannot be read in isolation and has to be read in conformity with the provisions of Section 17 of the Registration Act. Section 17 of the Registration Act refers to the documents of which registration is compulsory. Sub-section (1)(d) relates to leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent.

11. Under Section 107 of the Transfer of Property Act such as lease is to be made only by a registered instrument. So far as the effect of non-registration of lease-deed is concerned, Section 49 in clear and unambiguous words speaks that it can be used only for collateral purpose. It means, the factum of tenancy and possession if disputed between landlords and tenant can be considered even on the basis of unregistered lease-deed, but when it touches the terms and conditions of lease-deed the same cannot be admitted and read in evidence.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 3270 and 3271 of 2016

Decided On: 24.07.2017

Prasram Vs. Deepak and Ors.

Hon'ble Judges/Coram:

Indira Jain, J.

Citation: 2017(6) MHLJ 883

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Whether deed dissolving partnership firm is to be registered?

The question raised in that case was whether the arbitration award, distributing assets of the firm after settlement of accounts, between partners in accordance with their shares, was compulsorily registrable under S. 17 of the Registration Act, 1908. Herein, it is to be emphasised that, no such dispute arises, since the impounding was occasioned when the document was presented for registration. Dissolution of partnership, whether it was compulsorily registrable, when the partnership assets included immovable property, was a vexed question which was finally resolved in the two decisions referred to in N. Khadervali Saheb (supra); viz., S.V. Chandra Pandian v. S.V. Sivalinga Nadar (MANU/SC/0450/1993 : (1993) 1 SCC 589) and Ratan Lal Sharma v. Purshottam Harit (MANU/SC/0003/1974 : (1974) 1 SCC 671).

9. Ratan Lal Sharma (supra) was concerned with the necessity of registration under Section 16 of the Registration Act. The dispute between the two partners was referred for arbitration, in which the partnership assets were assigned to one partner, in consideration of a specified sum. This exclusive allotment of the assets of the partnership, which included immovable property, was held to create rights in the immovable property, thus making registration compulsory. This decision was pressed to advance the contention of compulsory registration of an arbitration award which allotted the immovable properties and assets of a partnership to each of the partners in accordance with their shares S.V. Chandra Pandian (supra). The decision in Ratan Lal Sharma (supra) was distinguished in S.V. Chandra Pandian (supra) in the following manner:

"This Court while reiterating that the share of a partner in the assets of the partnership comprising even immovable properties, is moveable property and the assignment of the share does not require registration under Section 17 of the Registration Act. The legal position is thus affirmed. However, since the award did not seek to assign the share of the respondent to the appellant but on the contrary made an exclusive allotment of the partnership asset including the factory and liabilities to the appellant, thereby creating an absolute interest on payment of consideration of ` 17,000 plus half the amount of the realisable debts, it was held to be compulsorily registrable under S. 17 of the Registration Act. The Court did not depart from the principle that the share of a partner in the asset of the partnership inclusive of immovable properties, is moveable property and the assignment of the share on dissolution of the partnership did not require registration under S. 17 of the Registration Act. The decision, therefore, turned on the interpretation of the award in regard to the nature of the assignment made in favour of the appellant".

10. The essential distinction hence is in looking at whether there is an allotment of the surplus assets, on dissolution, amongst the partners. If that is so, the partners who owned the assets together, during the existence of the partnership, had a right to share in the business in accordance with their shares. On dissolution and allotment of the remaining assets, even if there is immovable property, each goes with his share, not creating any new right But when there is an assignment in favour of one or other and consideration is passed then it creates new rights on the immovable property. A deed creating such rights would have to be registered compulsorily and the creation of such right is a "release" under Article 48(b) to be stamped accordingly.

IN THE HIGH COURT OF KERALA

W.P.(C) No. 34751 of 2008

Decided On: 22.06.2015

 Vinayakrishnan Vs.Commissioner for Land Revenue

Hon'ble Judges/Coram:

K. Vinod Chandran, J.

Citation:2015 (3) KLT 214 : 2015 (3) KLJ 347 : ILR 2015 (3) Ker. 537 : 2015 (3) KHC 752

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Whether registered instrument is necessary for mortgage by deposit of title deeds?

This Court had the occasion to consider this
question in the case of Rachpal v. Bhagwandas, AIR
37 1950 SC 272, and the statement of law made
therein supports the view we have taken, which
would be evident from the following passage of the
judgment:
“4. A mortgage by deposit of titledeeds
is a form of mortgage recognized
by S. 58(f), T.P. Act, which provides
that it may be effected in certain
towns (including Calcutta) by a person
“delivering to his creditor or his
agent documents of title to immovable
property with intent to create a
security thereon.” That is to say,
when the debtor deposits with the
creditor the title-deeds of his
property with intent to create a
security, the law implies a contract
between the parties to create a
mortgage, and no registered instrument
is required under S.59 as in other
forms of mortgage. But if the parties
choose to reduce the contract to
writing, the implication is excluded
by their express bargain, and the
document will be the sole evidence of
its terms. In such a case the deposit
and the document both form integral
parts of the transaction and are
essential ingredients in the creation
of the mortgage. As the deposit alone
is not intended to create the charge
and the document, which constitutes

the bargain regarding the security, is
also necessary and operates to create
the charge in conjunction with the
deposit, it requires registration
under S.17, Registration Act, 1908, as
a non-testamentary instrument creating
an interest in immovable property,
where the value of such property is
one hundred rupees and upwards. The
time factor is not decisive. The
document may be handed over to the
creditor along with the title-deeds
and yet may not be registrable……”
This Court while relying on the aforesaid
judgment in the case of United Bank of India v.
M/s. Lekharam Sonaram & Co.,AIR 1965 SC 1591
reiterated as follows:
 “7. …………It is essential to bear in
mind that the essence of a mortgage by
deposit of title-deeds is the actual
handing over by a borrower to the
lender of documents of title to
immovable property with the intention
that those documents shall constitute
a security which will enable the
creditor ultimately to recover the
money which he has lent. But if the
parties choose to reduce the contract
to writing, this implication of law is
excluded by their express bargain, and
the document will be the sole evidence
of its terms. In such a case the
deposit and the document both form

integral parts of the transaction and
are essential ingredients in the
creation of the mortgage. It follows
that in such a case the document which
constitutes the bargain regarding
security requires registration under
Section 17 of the Indian Registration
Act, 1908, as a non-testamentary
instrument creating an interest in
immovable property, where the value of
such property is one hundred rupees
and upwards. If a document of this
character is not registered it cannot
be used in the evidence at all and the
transaction itself cannot be proved by
oral evidence either…….”
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9030 OF 2013
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 18323 OF 2008)
STATE OF HARYANA & OTHERS
V
NAVIR SINGH AND ANOTHER 
Dated: OCTOBER 7, 2013.

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When registration of supplementary agreement is mandatory?

The last document which needs to be looked into is
Exhibit-156. This document neither registered nor notarized. It is
executed by defendant nos. 1 to 5 and the plaintiff as also defendant
no.6 are the parties to it. The narration therein commences from
agreement dated 09.08.2002 and the rates stipulated therein. It then
mentions that after execution of said document the Nagpur
Improvement Trust has regularized 1900 unauthorized lay outs and
the Gunthewari Law also came into existence, with the result ample
space became available and the rates came down. The
plaintiff/developer, therefore, was likely to face problems as it had
already invested huge amount over the project. The parties,
therefore, had a joint meeting and the land owners agreed to reduce
the land rate mentioned in registered agreement dated 09.08.2002. It
mentions that till then the developer had paid an amount of Rs.
2,61,00,250/- to the defendants. The rate per acre was reduced of Rs.
1,25,000/- and new rate agreed was Rs. 15,82,000/- per acre. It also
mentions that after said reduction, the developer/plaintiff paid an
amount of Rs. 1,15,00,000/- to the defendants. The time bound
schedule of payments with registered agreements dated 09.08.2002
was re-framed and as per re-framed schedule, the amount due and

payable in March, 2003 as per the old/original schedule is agreed to
be paid within six months from the date of clearance of Park
reservation. Second installment is agreed to be paid ten months after
such payment and third or last installment was agreed to be paid
nine months after the second payment. This agreement described to
be supplementary agreement executed on 04.10.2003 expressly
mentions that except the changes mentioned supra, all other
conditions of registered agreement dated 09.08.2002 would remain
unchanged and supplementary agreement would form part and
parcel of registered agreement dated 09.08.2002.
45. There is factual dispute about the execution of this
supplementary agreement. According to the defendants, their
signatures were obtained by misleading them under the pretext that it
would facilitate obtaining the orders of de-reservation or clearance.
This document is not registered and the trial Court has refused to read
it into evidence. Considering the legal challenges to this document,
we are not inclined to delve into niceties of factual aspects. Witness
on behalf of land owners namely Suresh (DW-1) has accepted that he
understands English and he did all signatures after reading and
understanding the document.
46. Exhibit-156 mentions name of Nandkishore T.
Adhau as confirming party. Shri Adhau appears to have placed his

signature on behalf of defendant no.6/Co-operative Society. Insofar as
registered documents dated 09.08.2002 at Exhibit nos. 136 to 141
are concerned, those documents carry photograph and signature of
Shri N.T. Adhau. That signature is different even to a naked eye from
both the signatures of this person which appear on last page of
Exhibit-156.
47. Section 17(1)(b) of the Registration Act, 1908,
stipulates that such non-testamentary instrument which purports to
limit or extinguish any right, title or interest, whether vested or
contingent, of the value of one hundred rupees and upwards, to or in
immovable property must be compulsorily registered. Exhibit-156
limits the right of land owners to claim consideration at Rs. 17,7000/-
per acre. It brings down or reduces that rate by Rs. 1,25,000/- per
acre and new selling rate as agreed therein is Rs. 15,82,000/- only
per acre. Thus, the entitlement of the land owners to receive the
larger amount of sale consideration has been curtailed or brought
down substantially. Not only this but as per the registered
agreements dated 09.08.2002, all the payments were also to be
completed by July, 2005. Exhibit-156 shows that payment due to
the land owners in March, 2003 as per Exhibit nos. 136 to 141 itself
was not released till date of its purported execution i.e. till
04-10-2003. As per Exhibit nos. 136 to 141, the next payment was
due in December, 2003, thereafter in October, 2004 and lastly in July,

2005. Vide Exhibit-156 the amount which should have been received
by defendant nos. 1 to 5 in March 2003 is made payable within six
months after clearance from Park reservation granted by the
Competent Authority. Thus, till the event of de-reservation or deletion
of reservation, this period of six months could not have & can not
begun to run. The next installment was made payable 10 months after
the expiry of above mentioned period of six months. Third installment
was to be paid after nine months from the second installment. Thus,
specific time on which the defendants were guaranteed payment in
Exhibit nos. 136 to 141 was deleted. The quantum of installments
was varied, payment thereof was rescheduled & also made contingent
upon the event of clearance from Park reservation. This event or
clearance from Park reservation could not have been controlled by any
of the parties or even by any Government agency. The plaintiff has
pointed out that Writ Petition No.1629 of 2011 filed by it for seeking
declaration of de-reservation has been admitted by this Court on
12-04-2013 for final hearing and it is still pending.
48. This discussion on effect of Exhibit-156 shows that
it is a document which required compulsory registration under
Section 17 (1)(b) of the Registration Act.
49. The plaintiff has relied upon the proviso to Section
49 of the Registration Act, to urge that Ex. 156 can be taken into

consideration for collateral purposes. In this suit, when the plaintiff
seeks specific enforcement of Exhibit-156, it is apparent, that the said
contention is misconceived. The defendants/land owners have invited
our attention to the provisions of Section 50 of the Registration Act, to
urge that in such situation, registered documents like Exhibit nos.
136 to 141 only take effect and must be given primacy as against
unregistered document at Exhibit-156. We do not find it necessary, to
delve on that aspect while considering this issue. The impact of
Section 50 of the Registration Act is being considered while resolving
point no.4, mentioned supra. However, the original time schedule as
envisaged in paragraph no.2 of registered agreement dated
09-08-2002 revealed that the payment at Annexure-B thereto was
not contingent upon any such de-reservation or clearance by the
Planning Authority. It obliged the plaintiff to strictly abide by the
time schedule. If the plaintiff delayed the payment by more than
three months, it had to pay interest at 15% on that amount. In case
of habitual defaults, the land owners were given liberty to terminate
their respective agreements with three months prior notice. Ex. 156
eclipses this scheme in registered documents totally.
50. This, therefore, shows that the land owners who
were to receive the last payment in July, 2005 had not received even
second installment as per Annexure-B and, as per case of plaintiff, that
second installment payable in March, 2003 is indefinitely postponed.

The future payments were also postponed and everything was made
contingent upon a contingent event of securing such de-reservation
or clearance from Park reservation. Thus, Exhibit-156, in fact,
materially substitutes the essential terms and conditions of registered
agreements at Exhibit nos. 136 to 141. Perusal of Annexure-B with
registered agreements show that a small amount was received by the
land owners at the time of registration or before registration. The
major amount was to be received or recovered by them thereafter
only. This portion to be recovered is about 10 times more than the
amount already received by them. The change brought about by
Exhibit-156, therefore, shows that it has material impact on rights of
the parties and on modalities. This discussion, therefore, leaves no
manner of doubt that Exhibit-156 is not sought to be used for any
colateral purpose & the plaintiff company is praying for its specific
performance. It ought to have been therefore duly registered.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
FIRST APPEAL NO. 1010 OF 2012
AND
CROSS OBJECTION NO. 63 OF 2013
FIRST APPEAL NO. 1010 OF 2012
M/s. GOLD TOUCH REAL ESTATE
PRIVATE LIMITED, 
V
Shri Suresh s/o Manoharlal Suri,

CORAM : B.P. DHARMADHIKARI &
 P.N. DESHMUKH, JJ.

DATED: NOVEMBER 21, 2015.
Citation: 2016(6) ALLMR 806

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Procedure to be followed by court when instrument is not duly stamped.

The provisions contained in ss, 33, 34 and 37 of the Act of 1958 in particular, are clear which provide the procedure to be adopted by a Court whenever a question is raised that an instrument is not duly stamped. Whenever such instrument is tendered in evidence, the Court has to impound it as obligated by Section 33 and then proceed as required by Section 34. That section empowers the Court, to recover deficit stamp duty alongwith penalty. Section 33 provides that if a person having by law authority to receive evidence and the Civil Court is one such person before whom any document chargeable with duty is produced and it is found that such document is not duly stamped, the same has to be impounded. The duty and penalty has to be recovered according to law. Section 34 prohibits its admission in evidence till such duty and penalty is paid. Therefore, unless the stamp duty and penalty is paid, such document is not admissible in evidence. In other words, such document cannot be received in evidence and the opposite party cannot be invited to cross-examine the witness in respect of such document.

Bombay High Court

Conwood Agencies Pvt. Ltd. vs Namdeo Pandurang Panchal And Anr. on 21 October, 2004

Equivalent citations: (2005) 107 BOMLR 319

Bench: D Bhosale

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Supreme Court: Adoption Deed does not require Registration

In this context, it will be worthwhile to note the requirement of registration of an Adoption Deed. Section 17 of the Registration Act specifically refers to the documents of which registration is compulsory. The deed of adoption is not one of the documents mentioned in sub-section 1 of Section 17 which mandatorily required registration. Sub-section 3 of Section 17 only refers to the mandatory requirement of registration of an authorization that may be given for adopting a son executed after 01.01.1872 if such authorization was not conferred by a Will. Dealing with the said provision relating to authorization, it has been held in the decision reported in Vishvanath Ramji Karale V. Rahibai Ramji Karale and others - AIR 1931 Bombay 105 by a deed of adoption as distinguished from authority to adopt does not require registration.

Supreme Court of India

Mst.Param Pal Singh Tr.Father vs M/S National Insurance Co.& Anr. on 14 December, 2012

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Registration of Agreement OR filling of Notice of intimation in case of mortgage by way of Deposit of title deed

Registration of Agreement OR filling of Notice of intimation
in case of mortgage by way of Deposit of title deed
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 The Registration Act 1908, in its application to the State of Maharashtra has 
been amended vide Maharashtra Act No X of 2012. 
 It is coming into force from 1st April 2013.
 The amended provisions, relating to the banking sector are as follows-
1) Section 17 of the Registration Act, provides the list of documents which are 
compulsory for registration. Through the above mentioned amendment, a
new type of deed “The agreement relating to the Deposit of title deeds, where 
such deposit has been made by way of security for the repayment of a loan or 
existing or further debts.” (which is generally known as ‘Equitable Mortgage 
Deed’) is added in this list.

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