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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
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(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
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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 Vs. Del Rouson Bibi. (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 and 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
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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
 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 (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 part-performance 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.
The author can be reached at: lawyermukesh@legalserviceindia.com - Ph No: +91-
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