Sec 17 of Indian Registration Act, 1908

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Sec 17 of Indian Registration Act, 1908

Indian Registration Act is an act to consolidate the enactments relating to the
registration of documents. Registration means recording of the contents of the
document. The object of registration is conservation of evidence and title. Section
17 of the Indian Registration Act 1908, deals with the documents that are
compulsory to be registered. The section runs as follows:
Section 17 - Indian Registration Act, 1908
(1) The following documents shall be registered, if the properties 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, of the Indian Registration Act 1866, or
the Indian Registration Act 1871, or the Indian Registration Act 1877, or the this
Act came or comes into force, namely:(a) instruments of gift of immoveable 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 immoveable 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) leases of immoveable property from year to year, or for any term exceeding
one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of
a court or any award when such decree or order or award purports or operates 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 immoveable property (Added by Act No. 21 of
1929);
PROVIDED that the State Government may, by order published in Official
Gazette, exempt from the operation of this sub-section any leases executed in any
district, or part of a district, the terms granted by which do not exceed five years
and the annual rent reserved by which do not exceed fifty rupees.
(2) Nothing in clauses (b) and (c) of sub-section (1) applies to -

(i) any composition-deed; or

(ii) any instrument relating to shares in a joint stock company, notwithstanding
that the assets of such company consists in whole or in part of immoveable
property; or
(iii) any debenture issued by any such company and not creating, declaring,
assigning, limiting or extinguishing any right, title or interest, to or in
immoveable property except insofar as it entitles the holder to the security
afforded by a registered instrument whereby the company has mortgaged,
conveyed or otherwise transferred the whole or part of its immoveable property or
any interest therein to trustees upon trust for the benefit of the holders of such
debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such
company; or
(v) any document not itself creating, declaring, assigning, limiting or
extinguishing any right or title or interest of the value of one hundred rupees and
upwards to or in immoveable 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; or
(vi) any decree or order of a court [except a decree or order expressed to be made
on a compromise and comprising immoveable property other than that which is
the subject-matter of the suit or proceedings] (Substituted by Act No. 21 of 1929
for the words 'and any award');
(vii) any grant of immoveable property by government; or
(viii) any instrument of partition made by a revenue officer; or
(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; or
(x) any order granting a loan under the Agriculturists Loans Act 1884, or
instrument for securing the repayment of a loan made under that Act; or
[(x-a) any order made under the Charitable Endowments Act 1890 (6 of 1890)
vesting any property in a treasurer of Charitable Endowments or divesting any
such treasurer of any property; or] (Inserted by Act No. 39 of 1948)
(xi) any endorsement on a mortgage-deed acknowledging the payment of the
whole or any part of the mortgage-money, and any other receipt for payment of
money due under a mortgage when the receipt does not purport to extinguish the
mortgage; or

(xii) any certificate of sale granted to the purchaser of any property sold by public
auction by a civil or revenue officer.
[Explanation: A document purporting or operating to effect a contract for the sale
of immoveable property shall not be deemed to require or ever to have required
registration by reason only of the fact that such document contains a recital of the
payment of any earnest money or of the whole or any part of the purchase
money.] (Inserted by Act No. 2 of 1927)
(3) Authorities to adopt a son, executed after the 1st day of January 1872, and not
conferred by a will, shall also be registered.
Scope Of Section 17
(1) Where the award was made prior to the enforcement of the Registration
Amending Act of 1929, held its non-registration would not affect its validity.
(2) It was held that even though a part of the compromise related to the property
which was beyond the subject matter of the suit, had been incorporated in the
compromise decree and although not being a part of the operative portion thereof
did not require registration.
(3) It was further observed that in spite of this it narrowed the scope of the
exemption clause and provided that if the decree or order referred to the property
other than that which was the subject-matter of the suit or proceeding, it would
require registration.
(4) Where the registration of an instrument embodying a contract is necessary, it
is essential that each of the parties thereto should do for the acts all that is
necessary towards securing registration of the instrument.
(5) Where the terms of the document render it compulsory registered under
section 17, it cannot make be taken out of its purview merely because it cannot be
admitted to registration as it does not specify the property as required by section
21.
(6) In the context of section 17 of the Act, a document is the same as an
instrument and to draw nice distinctions between the two only serves to baffle,
not to illumine.
Essentials Of Section 17
Section 17 of the Indian Registration Act (Act XVI of 1908) would be attracted in
a case where the disputes relates to a charge sought to be created by a debenture
on immoveable property which was existent at the date of the creation of the
charge and was in the ownership of the company at that date. It would, therefore,
necessarily follow from it that a debenture which seeks to create, declare or limit

any right, title or interest to or in immoveable property would be covered by

clause (b) of sub-section (1) of section 17 of the Indian Registration Act 1908.
When A Document Needs Registration?
There are several documents that are not compulsorily register able under section
17 of the Registration Act 1908. Some of them require high stamp duty and some
of them do not. Even the ones that require high stamp duty, if they are under
stamped, can be rectified later by paying a penal amount ten times the original
amount. Non-payment of stamp duty does not make the document void or
otherwise invalid. The consequences of under stamping as per the stamp act are:
(1) to make the document inadmissible for the evidence before any authority
capable of receiving evidence of before any public authority.
(2) the document can also be impounded for enforcing the payment of full stamp
value. An under stamped instrument can be admitted as evidence in court, if penal
stamp duty is ten times the value of the original amount, and is paid.
In conclusion, always register a document which is compulsory registerable or for
which stamp duty is not high. Documents for which stamp duty is high and which
do not require registration do not become invalid for want of proper stamp duty
alone. But the rights of both parties should be protected in case of default, so
consult a lawyer. Always give possession separately and never in the documents
itself.
Section 17 & Section 53-A Of Transfer Of Property Act 1882
The combined effect of section 53-A of the Transfer of Property Act 1908 and
section 17 of the Indian Registration Act is that an incomplete deed of transfer,
though not registered or even attested, is regarded, as a contract in writing but
such a deed must have been signed by the transferor or his agent. An unregistered
document affecting immoveable property, required by the Transfer of Property
Act 1882 or the Registration Act 1908 to be registered, may be received in
evidence of a contract in the suit for the specific performance or as evidence of
part-performance of a contract for the purpose of section 53-A or as evidence of
any collateral transaction not required by a registered instrument. Where the
parties execute an unregistered sale deed without prior permission of the
competent authority, the transaction will be void and this section will not be
applicable. In cases, where land is transferred in lieu of dower and the bride was
put in possession of it and a kabulnama was executed which was unregistered
evidencing the transfer, it was held that section 53-A of the Transfer of Property
Act 1882 would apply to such a case and a suit by the father in law and a
declaration of title and possession will fall.
In Haji Mokshed Mondal & Ors. Vs. Del Rouson Bibi & Anr. (AIR 1971 Cal.
162), it was held that section 53-A of the Transfer of Property Act 1882 precludes
from enforcing any rights in respect of the disputed property inconsistent with or

not mentioned in the said contract and therefore, the suit was dismissed.
Section 17 & Section 54 Of Transfer Of Property Act 1882
The combined effect of section 54 of the Transfer of Property Act 1882 and
section 17 of the Registration Act 1908 is that, a contract of sale in respect of
immoveable property of the value of more than one hundred rupees without
registration cannot extinguish the equity of redemption. In India, it is only on
execution of the conveyance and registration of transfer of the mortgager's
interest by registered instrument that the mortgagor's right of redemption will be
extinguished. The conferment of power to sell without intervention of the court in
a mortgage deed by itself will not deprive the mortgagor of his right to
redemption. The extinction of the right to redemption has to be subsequent to the
deed conferring such power. The right of redemption is not extinguished at the
expiry of the period. The equity of redemption is not extinguished by mere
contract of sale. The mortgagor's right to redeem will survive until there has been
completion of sale by the mortgagee by a registered deed. It must also be noted
that section 17 of the Indian Registration Act 1908 or the second para of the
Transfer of Property Act 1882, will have no application to the agreement to
recover property, being non-creation of any interest in the immoveable property.
In Narandas Karsondas vs. S.A. Kantam & Anr. (AIR 1977 SC 774), it was held
that the mortgagor has a right to redeem unless the sale of the property was
complete by registration in accordance with the provisions of the Registration Act
1908, and therefore, the appeal was dismissed.
Conclusion
In the light of the analysis of section 17 of Indian Registration Act 1908 and a
comparative study of section 17 and section 53-A and section 54 of the Transfer
of Property Act 1882, it can be fairly concluded that (1) an incomplete deed of transfer, though not registered or even attested, is
regarded, as a contract in writing but such a deed must have been signed by the
transferor or his agent and an unregistered document, affecting immoveable
property, required by the Transfer of Property Act 1882, or the Indian
Registration Act 1908, to be registered, may be received in evidence of partperformance of a contract or as evidence of any collateral transaction not required
by a registered instrument.
(2) a contract of sale in respect of immoveable property of the value of more than
one hundred rupees without registration cannot extinguish the equity of
redemption.