Monday, November 27, 2023

UNREGISTERED DOCUMENTS RELATING TO IMMOVEABLE PROPERTIES

 

 


unregistered documents relating to immoveable propErties

 

The validity of unregistered agreement has often been the subject matter of deliberation in courts with regard to any rights if accrued or enforceable on that premise. The Registration Act 1908 , though, has contained the relevant provisions, mandating registration of any title or conveyance or even interest in respect of immoveable properties still, the transactions as regards immoveable properties are in vogue and thus filling the disputes to be deliberated and adjudicated by Courts of law.

Recently, Supreme Court has dealt with this issue in a matter captioned as SHAKEEL AHMED VERSUS SYED AKHLAQ HUSSAIN Civil Appeal No.1598 of 2023. At the very outset, para 10 of the judgment in the above case may be referred to as under:

“10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries183 (2011) DLT 1 (SC) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882”.

It is held further:

         

11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:

(i) Ameer Minhaj Vs. Deirdre Elizabeth (Wright) Issar and Others  (2018) 7 SCC 639

(ii) Balram Singh Vs. Kelo Devi In Civil Appeal No. 6733 of 2022

(iii) M/S Paul Rubber Industries Private Limited Vs. Amit Chand Mitra & Anr In SLP (C) No. 15774 of 2022.”

 



The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.

The judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view.

 

Ameer Minhaj Vs. Deirdre Elizabeth (Wright) Issar and Others  (2018) 7 SCC 639

The core issue in the above case was whether the suit based on an agreement and on the basis of which relief of specific performance has been claimed, could be received as evidence as it is not a registered document. 

Section 17 may be perused as under:

“17. Documents of which registration is compulsory:­ 

(1)   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:­

(1A) The documents containing contracts to transfer for consideration, any immoveable property for the purpose of section 53 A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the of the Registration and Other Related laws(Amendment)   Act,   2001 and if such documents are  not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.

It may also be apt to illustrate as to which instruments relating to immoveable property shall have to be mandatorily registered as per Secrion17, if the value, if more than Rs 100/-:

(a) Instruments of Gift;

(b) Other non testamentary instruments which creates or purports to create, declare, assign, limit or extinguish , whether vested or contingent;

(c)  Non-testamentary instruments acknowledging receipt or payment of any consideration relating to creation, declaration, assignment, limitation or extinguishment of any right, title, interest;

(d) Lease from year to year or for any term exceeding one year or reserving yearly rent;

(e) Other non-testamentary instruments assigning, transferring any decree or order of court when it purports to create or create, declare, assign, limit or extinguish any right, title or interest whether vested or contingent

However, the following shall be exempted from the aforesaid Section 17 (1) (b) & (c):

(i)          Any composite deed;

(ii)        Instruments related to share in joint stock company, even if part of it related to immoveable property

(iii)       Any debenture issued by the such company while not creating, declaring, assigning, limiting , extinguishing any rights in immoveable properties except by way of security;

(iv)       Any endorsement upon or transfer of any debenture issued by any such company;

(v)         Any document other than specified in Section 17 (A) not in itself creating any right, title or interest in immoveable properties , but merely creating a right to obtain another document;

(vi)       Any decree or order of court except relating to rights in immoveable properties including by way of compromise etc.

(vii)      Any grant of immoveable property by the Government;

(viii)    Any instrument of partition made by a Revenue Officer’

(ix)       Any order granting a loan or instrument of collateral security granted under the Land Improvement Act 1871 or the Land Improvement Loans Act 1883;

(x)         Any order granting loan under the Agriculturist, Loans Act,1884;

(xi)       Any order made under the charitable Endowments Act,1890;

(xii)     Any endorsement on a mortgage deed acknowledging the payment of whole or any p[art of mortgage money, when it does not purport to extinguish mortgage;

(xiii)    Any certificate of sale granted to the purchaser of property sold in public auction by Civil or Revenue Officer.    

The Section 17 (1) (A) came into force with effect from 24th September 2001.

(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.

 

The Supreme Court in Ameer Minhaj (Supra) has held that 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 immoveable 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 is no more res integra.  In S. Kaladevi Vs V.R Somasundaram & Ors -SLP  (C) 1451/2009, the Supreme Court has reiterated 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 18 of the Registration Act,1908 lists the instruments where registration is optional. These instruments are as under:

(a)         Instruments (other than gift or Will) purporting to create rights vested or contingent relating to immovable properties if the value if less than Rs 100;

(b)         Instruments acknowledging receipt or payment of any consideration on account of creating. Limiting, extinguishing of such right, title and interest;

(c)         Lease of immoveable properties not exceeding one year;

(d)        Instruments transferring or assigning any decree or order of a court of value less than 100 Rs;

(e)         Instruments purports to or operate to create, declare, assign, limit or extinguish any rights etc in moveable properties;

(f)          Wills;

(g)         All other documents not required to be registered u/s 17 of the Registration Act 1908.  

 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, or as evidence of any collateral transaction not required to be effected by registered instrument.”

The Supreme Court 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, if the conclusion recorded by a court that the sale agreement 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 that,  it is received as evidence of a contract in a suit for specific performance and nothing more. The genuineness, validity and binding nature of the document or the fact that it is hit by the provisions of the 1882  Act  or  the  1899  Act,  as the case may be, will have to be adjudicated at the appropriate stage as noted by the Trial Court after the parties adduce oral and documentary evidence.  

If a registered General Power of Attorney,  has been executed by  the title holder, being a registered document, there shall be a legal, rebuttable presumption that the same has been duly stamped. If it is hit by the provisions of the 1882 Act or the 1899 Act can be decided after the parties adduce oral and documentary evidence. The principal document, namely, the agreement to sell was executed prior to coming into force of Section 17 (1A) of   the 1908   Act, it may be noted that provision has been made applicable prospectively. Hence, the same was not required to be compulsorily registered at the time of its execution.  Even if it was required to be registered, keeping in view the purport of Section 49 read with Section 17(1A) of the 1908 Act, the same could be received as evidence for a limited purpose, without having any effect for the purposes of Section 53A of 1882 Act.

The Supreme Court in KB Saha & Sons Pvt Ltd Vs Department Consultant Pvt Ltd (2008) 8 SCC 564 has culled out the following principles:-

"1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.

2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49  of the Registration Act.

3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.

5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."

It is further observed that to the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.

From the above discussion and after having recourse to the law laid down by Supreme Court including the recent judgment in Shakeel Ahmed (Supra), Supreme Court has categorically held that no unregistered instruments relating to immoveable properties shall be valid, unless it is exempted under the Registration act 1908.The Supreme Court has also sought to allay any misconception as regards Suraj Lamp (Supra) and the fact that it was prospective in nature. It is clearly held that no right, title and interest in immoveable properties vide unregistered instruments and also under Power of Attorney, agreement to sell could be held to be valid. The Supreme Court after taking note of Section 17 and 49 of The Registration act 1908 has further observed that even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, a purchaser could claim relief of specific performance in appropriate proceedings.

                                           ------

Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com   

 

 

 

 

 

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