Whether proof of registration of document amounts to proof of its genuineness?

Section 68 prescribes that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Section 123 of the Transfer of Property Act, 1882 mandates that a Gift Deed pertaining to immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Section 17 of the Registration Act, 1908 also requires that instruments of gift of immovable property "shall be registered." Section 34, thereafter, requires the executants or their authorized representatives of the document executed for registration appear before the registering officer. However, the witnesses to a document need not also be the witnesses to its registration. The pandect being Part X, comprising Sections 47 to 50 of the Registration Act would next be required to be adverted to.Section 47 adumbrates that the registered document will take effect from the date of its execution. Section 48 is indeed significant in that it clarifies that a registered document will probatively prevail over oral agreements, except for an agreement or declaration which does not itself mandatorily require registration provided the oral agreement is accompanied by delivery of possession. The preeminent Section 49 declares that if any document despite requiring registration is not so done it shall not be received in evidence or attain any legal efficacy, except in the context of a suit for specific performance, or if it is intended to be used to prove any collateral transaction. We have ventured into this lengthy and arguably avoidable analysis to accentuate on two aspects - (a) the imperative necessity to produce in evidence a written instrument where it exists; and (b) that the registration of documents does not per se, ipso facto, render it impervious to challenge or and make its reception automatic in curial proceedings.

Supreme Court of India

Om Prakash(D) Tr.Lrs vs Shanti Devi & Ors on 5 January, 2015

Bench: Anil R. Dave, M.Y. Eqbal, Vikramajit Sen

Citation; AIR2015SC976, 2015(2)ALLMR(SC)492, (2015)4SCC601, 

Print Page

Whether Sub Registrar can decide validity of document presented before him for Registration?

Reading these sections together it is clear that the only person, who can present a document for registration or institute a suit is the person claiming under the document, and the only person who is entitled to deny the execution is the person who is purported to be the executant of it. The scope of Section 77 of the Registration Act is limited only to the enquiry as to whether the document has been executed by the person alleged to have executed it. In the case of Dwijendra Narain Roy v. Jogish Chandra Dey it was observed at page 47 "it may be conceded that in a suit instituted under Section 77, the Court is concerned not with the validity but with the genuineness of the document sought to be registered, i.e., whether the document has been executed by the person by whom it is alleged to have been executed; the question of its validity must be determined in a suit) properly framed for the purpose." The case cited in the above case shows that even a defence as to the executing power of the alleged executant or the document being one void for want of consideration; fraud or undue influence is foreign to a suit under Section 77

Calcutta High Court

Baikuntha Kumar Shil vs Sarat Chandra Nath And Ors. on 23 February, 1925

Equivalent citations: AIR 1925 Cal 1257

Print Page