The Priority Principle: How Section 50 of the Registration Act Protects Property Rights

 Understanding why registered documents trump unregistered ones in Indian property law

Property disputes are among the most complex and emotionally charged legal battles in India. At the heart of many such disputes lies a fundamental question: when multiple documents claim rights over the same property, which one prevails? Section 50 of the Registration Act, 1908 provides a clear answer that has shaped Indian property law for over a century.

The Golden Rule of Property Documentation

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Supreme court: Registered Document Is Presumed To Be Genuine; Onus To Prove Otherwise Is On Person Who Challenges It

 To appreciate the findings arrived at by the Courts below,

we must first see on whom the onus of proof lies. The record

reveals that the disputed documents are registered. We are,

therefore, guided by the settled legal principle that a document is

presumed to be genuine if the same is registered, as held by this

Court in Prem Singh and Ors. v. Birbal and Ors.8. The relevant

portion of the said decision reads as below:

“27. There is a presumption that a registered

document is validly executed. A registered document,

therefore, prima facie would be valid in law. The onus of

proof, thus, would be on a person who leads evidence to

rebut the presumption. In the instant case, Respondent

1 has not been able to rebut the said presumption.”

(emphasis supplied)

In view thereof, in the present cases, the initial onus was on the

plaintiff, who had challenged the stated registered document.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3681-3682 OF 2020

Rattan Singh Vs  Nirmal Gill 

Author: A.M. Khanwilkar, J.

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What is limitation for setting aside void sale deed by minor?

 There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No. 1 has not been able to rebut the said presumption.

If a deed was executed by the plaintiff when he was a minor and it was void, he had two options to file a suit to get the property purportedly conveyed thereunder. He could either file the suit within 12 years of the deed or within 3 years of attaining majority. Here, the plaintiff did not either sue within 12 years of the deed or within 3 years of attaining majority. Therefore, the suit was rightly held to be barred by limitation by the trial court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2412 of 2006 

Decided On: 02.05.2006

Prem Singh Vs. Birbal and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and P.K. Balasubramanyan, JJ.

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Whether daughter can depose on behalf of her mother even though power of attorney was not given in her name?

 No doubt there is also a principle of law as laid down in Vidhyadhar Vs. Manikrao and others that if a party to a suit does not appear in the suit and state his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him was not correct.

35. But the said principle laid down in Vidhyadhar (supra) MANU/SC/0172/1999 : (1999) 3 S.C.C. 573 has no application in the case of exceptions mentioned in the Janki Vashdeo Bhojwani and others (supra) MANU/SC/1030/2004 : (2005) 2 S.C.C. 217.

36. It may be in the instant case, the 3 petitioner/D-2 has not given a power of attorney to the 1st petitioner/D-4. But being the biological daughter of the 3 petitioner/D-2, she would naturally be aware of the details of acquisition of title of her mother/D-2, when the same is more importantly reflected in registered documents/Court orders.

37. In my view, where title to property is in issue, and is based on registered documents and Civil Court decrees as in the instant case, there is nothing wrong, if on behalf of an aged and infirm parent like the 3rd petitioner/D-2, her biological daughter, the 1st petitioner/D-4, gives evidence.

38. It is not as if proof of title is akin to a state of mind or a conduct which is only in the personal knowledge of the title holder and cannot therefore be spoken to by others knowing of it. So it cannot be said that unless such title holder deposes, the factum of title does not get proved.

39. Further, in law, the non-examination of the title holder cannot confer title on the person disputing his/her title by way of acquiescence, estoppel or silence.

40. As held in Kamakshi Builders Vs. Ambedkar Educational Society and others MANU/SC/2681/2007 : (2007) 12 S.C.C. 27, where title to property is in issue, the finding as to who has got title is an inference of law, arising out of certain set of facts. The Supreme Court held that if in law, a person does not acquire title, the same cannot be vested only by reason of acquiescence or estoppel on the part of the other. It held that the title cannot be vested because a witness or a party is not examined.

41. This principle applies on all fours to the instant case.

42. It cannot also be disputed that there is no mandatory rule that all defendants ought to depose in a suit. In Saradamani Kandappan and others Vs. S. Rajalakshmi and others MANU/SC/0717/2011 : (2011) 12 S.C.C. 18, the Supreme Court held that where the entire transaction was done on behalf of defendant Nos. 1, 2 and 3 for the other defendants, it was unnecessary for the other defendants to be examined as witnesses and duplicate the evidence.

43. In this view of the matter, I am of the view that the Court below acted perversely in not permitting the 1st petitioner to depose on behalf of 3rd petitioner/D-2 after having accepted the illness of the 3rd petitioner/D-2. It could not have held that D-2 should depose or else adverse inference can be drawn for the benefit of the 1st respondent/plaintiff. It would be a travesty of justice to take such a view in the facts and circumstances of the case.

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD 

C.R.P. No. 1698 of 2018

Decided On: 29.08.2018

V. Kavitha Reddy  Vs.  V. Aditya Reddy and Ors.

Hon'ble Judges/Coram:

M.S. Ramachandra Rao, J.

Citation: AIR 2018 Hyderabad 173

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Whether burden of proof will be on defendant if he takes plea of loan transaction?

Submissions of Mr. Thorat that when there is a registered document, then the sale is to be considered as a genuine, would have been accepted if the defendant would not have challenged the truth-fullness of the contents of the sale-deed and not contended that it is a sham document given as a security. The case of the defendant squarely falls under proviso Section 92 of the Indian Evidence Act, 1872. Obviously, the burden lies on the defendant to prove that the document executed was intended for something else than what is mentioned in the document.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 22 of 1990

Decided On: 31.10.2012

Shripati Ramchandra Choudhari

Vs.

Rajaram Bhau Shinde

Coram:

Mrs. Mridula Bhatkar, J.

Citation: 2013(1) MHLJ 304

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How to ascertain whether registered document is sale with a condition of repurchase or is a mortgage?

The next question to be decided in this appeal is as to whether the registered document, Exh. 34 dated 20-3-1961 is out and out sale with a condition of repurchase within 10 years or is a mortgage. In the present case Exh. 34 the document relied on by both the parties to support their contentions refers to the fact that by the said document the suit property is absolutely transferred by the plaintiffs to the defendants. However, in the said document there is one recital to the effect that if within 10 years from the date of the execution of the said document the plaintiffs return the total amount of consideration he received under the agreement i.e. Rs. 200 the defendants agreed to transfer the said property in favour of the plaintiffs. Therefore, in this case the Court has to read the document as a whole and gather the intention of the parties. If after reading the document as a whole the Court comes to the conclusion that by the said document the plaintiffs sold the suit land absolutely to the defendants and only concession is given to the plaintiffs to repurchase the said property if they return the amount they have received under this salewithin 10 years, then the said document will be construed as a document of sale with the condition to repurchase. However, on the other hand if the Court comes to the conclusion that there is a sort or relationship of creditor and debtor between the defendants and plaintiffs and the property was transferred by way of security, then in that event the document, Exh. 34 shall be termed as mortgage. In the present case after going through the terms of the document, Exh. 34 the lower Appellate Court came to the conclusion that the document, Exh. 34 is a sale and not mortgage. The title of the said document, Exh. 34 to the effect that this is a sale deed for amount of Rs. 200/-, the averment in the said document to the effect that the land described in the document is sold to the defendants, the averments to the effect that the suit property is sold to the defendants and actual possession is handed over to the defendants and that the defendants and their heirs are entitled to use it as their own property by the said document and lastly the averment to the effect that in case any legal complication or objection arises in respect of the suit land, the same shall be removed by the plaintiffs, clearly show that the transaction entered into vide Exh. 34 was out and out sale. It is true that lastly it is stated in the said document that in the event the plaintiffs pay the amount which they received under the sale deedwithin 10 years from the execution of the sale deed, the defendants agreed to resell the said property to the plaintiffs. However, taking into consideration the clear averments made in the document to the effect that the property is out and out sold by the plaintiffs to the defendants it appears that in view of the near relationship of the parties, the defendants agreed to resell the said property on the plaintiffs paying the amount which they have received under the sale deed within 10 years from the execution of the sale deed. This being proper construction of the document after reading the document, Exh. 34, as a whole, I do not see any reason to interfere with the said finding given by the lower Appellate Court, in this second appeal.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 369 of 1986

Decided On: 28.03.1995

Decided On: 29.03.1995

 Vasant Pandu alias Pandurang Birwatkar
Vs.
Shankar Dhondu Ghole and Anr.

Hon'ble Judges/Coram:
M.L. Dudhat, J.

Citation:1995(2) MHLJ471

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Whether the court can permit defendant to plead contrary to registered Sale deed ?

Order 7 Rule 11, Order 12 Rule 6 - Evidence Act, 1872 - Section 91, 92 - Possession - Sale deed - Title - Rejection of counter-claim - Decree on admission - By way of a registered sale deed defendant transferred the suit property to the plaintiffs - Total consideration of Rs. 1,65,00,000 was paid - Sale deed was registered in the office of the Sub-Registrar - Right of possession of plaintiffs was recognized in the sale deed - Despite the receipt of the entire consideration and execution of the sale deed, the defendant has failed to handover the physical vacant possession of the suit property - Defendant claimed that the amounts received by him were towards loan, and not towards sale consideration - Defendant has not produced any document to show that amounts were received by way of loan - Defense set up by the defendant is barred under section 91 and 92 of the Evidence Act - Since the title of the plaintiffs in respect of the suit property stands established, suit of the plaintiff for possession has to succeed - Defendant has failed to establish any right or title in the suit Property - Defendant may have occupied the suit property as a licensee - License stands terminated - Cause of action pleaded by the defendant in the counter claim is the so-called oral agreement that the plaintiffs shall re-transfer - No cause of action has arisen to seek the cancellation of the sale deed - Counter claim of the defendant is rejected - Possession was never delivered to the plaintiff would not deprive the plaintiff to claim ownership on the basis of their title derived from the sale deed, and to claim possession of the suit property - Applications of the plaintiffs are allowed - Suit is decreed in respect of the relief of possession.

IN THE HIGH COURT OF DELHI

CS (OS) 1633/2012, CC 18/2013 and I.A. Nos. 10623 and 16134/2012

Decided On: 26.03.2014

 Karan Madaan and Others

Vs.

 Nageshwar Pandey

Hon'ble Judges/Coram:Vipin Sanghi, J.

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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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Whether terms of registered document can be varied by unregistered document?

If the registered sale deed was in the joint names of the plaintiff and the defendant, without indicating the quantum of contribution towards the sale price, even if one of the parties had contributed the entire sale consideration, the same is irrelevant, and each co-owner is entitled to one half of the property in the eye of law. This proposition finds support from the view expressed in the case of Narayana Murthy v. Venkateshalu, MANU/KA/0472/1995 : ILR 1995 Kar 2876.

It is well settled that a document which varies the essential terms of an existing registered deed, must be registered. (See: Sunil Kumar Roy v. Bhowra Kankanee Colleries Ltd., MANU/SC/0448/1970 : AIR 1971 SC 751 (A three judge bench decision).

 Citation: 2015(2) AKR 393,AIR 2015(NOC)763 KAR

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Regular First Appeal No. 828 of 2009

Decided On: 20.01.2015

P.V. Krishnappa 
Vs.
 M. Ramaswamy Reddy

Coram:Anand Byrareddy, J.

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Whether Sub Registrar can cancel registration of registered document?

The role of the Sub-Registrar (Registration) stands discharged, once the document is registered (see Raja Mohammad Amir Ahmad Khan (supra). Section 17 of the Act of 1908 deals with documents which require compulsory registration. Extinguishment Deed is one such document referred to in Section 17(1)(b). Section 18 of the same Act deals with documents, registration whereof is optional. Section 20 of the Act deals with documents containing interlineations, blanks, erasures or alterations. Section 21 provides for description of property and maps or plans and Section 22 deals with the description of houses and land by reference to Government maps and surveys. There is no express provision in the Act of 1908 which empowers the Registrar to recall such registration. The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration. The power to cancel the registration is a substantive matter. In absence of any express provision in that behalf, it is not open to assume that the Sub-Registrar (Registration) would be competent to cancel the registration of the documents in question. Similarly, the power of the Inspector General is limited to do superintendence of registration offices and make Rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6673 of 2014

Decided On: 26.10.2016

 Satya Pal Anand
Vs.
State of M.P. and Ors.

Coram:Ranjan Gogoi, Prafulla C. Pant and A.M. Khanwilkar, JJ.

Citation:(2016) 10 SCC767

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Whether document registered on date subsequent to its execution will operate from date of execution?

 In reply to above, Shri C.A. Sundaram, learned senior
counsel appearing for the plaintiff – Respondent no.1, pointed
out that under Section 47 of the Registration Act, 1908, the
document registered on a subsequent date relates to the date
of execution. It is further submitted that since the date of
Resolution was 10.12.1994, as such there was no impediment
on the part of B.S. Narayan to exercise his powers under the
amended Para IV(i).
14. Section 47 of Registration Act, 1908 reads as under:
“47. Time from which registered document
operates. – A registered document shall operate
from the time which it would have commenced to
operate if no registration thereof had been
required or made, and not from the time of its
registration”
 In view of the above provision of law, we are in agreement
with the submission of learned counsel for the Respondent
no.1 that the document registered on a subsequent date,
operates from the date of execution, not from the date of
registration.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8895 OF 2012
Principal Secretary,
Government of Karnataka and Another 
V
Ragini Narayan and Another 
Citation:(2016) 10 SCC424
Prafulla C. Pant, J.

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What is presumption regarding Registered document?

Indisputably, the deed of gift is a registered one. It contains a clear and unambiguous declaration of total divestment of property. A registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid.

Supreme Court of India

Abdul Rahim & Ors vs Sk.Abdul Zabar & Ors on 6 March, 2009

Bench: S.B. Sinha, Asok Kumar Ganguly, R.M. Lodha

Citation; 2009(5) MHLJ 701

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Whether Registered power of attorney can be revoked by filing police complaint?

 It is crystal clear that the appellants chose not to avail an opportunity which was available to them. In such circumstances, it will not be appropriate to say that the deeds  and documents as well as the Powers of Attorney executed in favour of respondent no. 9 stood revoked merely by filing complaints with the police. We cannot lose sight of the fact that a registered document has a lot of sanctity attached to it and this sanctity cannot be allowed to be lost without following the proper procedure.

Supreme Court of India

Shanti Budhiya Vesta Patel & Ors vs Nirmala Jayprakash Tiwari & Ors on 21 April, 2010

Bench: Mukundakam Sharma, R.M. Lodha

Citation; 2010 (5) MHLJ (SC) 67

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Whether revenue officer can decide legality of registered document?

 In the case in hand it is not in dispute that the petitioners had produced a registered sale deed dated 15-7-1998 while requesting for entry in their favour in mutation register. The Talathi based on the said document had allowed the application filed by the petitioners and had carried out necessary mutation in the register. The Sub-Divisional Officer while dealing with the appeal against the decision on mutation of entry, assuming illegally, the jurisdiction of the authorities under the Tenancy Act sought to deal with the controversy pertaining to the tenancy claim and right under the provisions of The Bombay Agricultural Tenancy Act, 1948, sought to set aside the said decision of Tahsildar allowing the application for mutation of entry, and thereby clearly transgressed the jurisdiction of the revenue authorities available under the provisions of the said Code and the said rules in relation to disputes pertaining to the mutation of entries. Additional Divisional Commissioner by confirming the said order of the said Divisional Officer reiterated the same illegality. Apparently both the authorities have acted illegally and beyond the powers vested in them in relation to the proceedings pertaining to mutation of entries under the said Code and the said rules, and therefore the orders passed by them cannot be sustained and are liable to be quashed and set aside. At the same time it is also to be noted that in case there is any application by the respondents for mutation of entries in their favour based on any valid and lawfully registered document or any decision pronounced by any court or judicial or quasi-judicial authority competent to pronounce such decision, certainly the Authorities acting under sections 149 and 150 of the said Code cannot ignore such application nor can refuse to carry out the mutation in accordance with the declaration of right in favour of the party by virtue of such decision of the Court or the competent Authority. In case of any conflict between such entries, the parties have to settle the dispute by taking resort to the regular remedy available under appropriate statutes but the revenue authorities acting under Sections 149 and 150 of the Code cannot assume jurisdiction to decide about the rights of the parties in relation to properties, while acting under those provisions for the purpose of mutations. Albeit, the revenue authorities can certainly decide in such cases, the issue of actual possession. However, such decision would be final, subject to the decision of the civil court in that regard.


Bombay High Court

Shrikant R. Sankanwar And Ors. vs Krishna Balu
 Naukudkar on 16 January, 2003

Equivalent citations: 2003 (3) BomCR 45, 
2003 (2) MhLj 276

R.M.S. Khandeparkar, J.

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Whether Surrender of Agricultural tenancy should be by Registered document?

It would clearly indicate that the legislature intended to protect the leasehold rights of a protected tenant and the surrender being in derogation of the right, Section 6(1) enjoins to divest that right only when the tenant surrenders agricultural leases only by a registered document executed in favour of the landholder surrendering tenancy rights thereunder. Then only the protected tenant ceases to be a lessee of the agricultural lands. Admittedly, though the document Annexure I marked in this paper book was executed on January 3, 1956 surrendering his rights in the aforesaid land it was not through a registered instrument and that, therefore, the surrender is clearly illegal and in violation of mandatory provision. The contention of Shri Joshi is that the evidence on record shows that the appellant had voluntarily surrendered and it is not vitiated by any fraud or coercion and, therefore, the finding is well justified. We find no force in the contention. It is seen that only if the document is a registered instrument the question of enquiry into fraud or coercion would arise and the Tribunals need to go into that question. If the instrument is not a registered instrument, then the question of genuineness or fraud or coercion need not be gone into as the surrender gets crushed under the fringing facts of Section 6(1) of Berar Act.

Supreme Court of India

Junjaram vs Bhaurao & Ors on 22 February, 1996

Equivalent citations: 1996 AIR 1885, JT 1996 (3) 55

Bench: Ramaswamy, K.

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Madras HC: Registered Deed shall have priority over unregistered deed

Section 50 of the Registration Act contemplates a conflict between two bona fide transactions relating to the same property, and not a case where a subsequent purchaser or mortgagee having notice that there is a buna fide and valid encumbrance on the property seeks to make use of the Registration Act to avoid it, thus making an enactment intended to prevent fraud an instrument of fraud.

Madras High Court

Simanapalli Krishnamma vs Rongali Suranna And Ors. on 29 September, 1892

Equivalent citations: (1893) 3 MLJ 54

Author: M Aiyar

JUDGMENT

1. The question referred to the Full Bench is whether when it is proved that a subsequent incumbrancer under a registered conveyance had notice of a valid prior unregistered incumbrance and of possession by such incumbrancer or of such conveyance without possession, the courts are bound to interpret Section 50 of the present Registration Act so as to defeat the title of the prior incumbrancer.

2. The first attempt to compel the registration of deeds &c, in India was by Regulation XVII of 1802, a regulation for establishing a Registry for Wills and Deeds for the transfer or mortgage of real property and it was enacted by Section 6, Clause 3, that, "it being the object, however, of the rules in the two preceding clauses, to prevent persons being defrauded by purchasing or receiving in gift, or taking in mortgage, real property which may have been before sold, given, or mortgaged, subsequent to the period fixed for

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