REG 045 Effect of Registration on Validity and Title

The Effect of Registration on Validity and Title: What a Registered Document Proves, What It Cannot Cure, and Where the Burden of Proof Lies

The single most useful proposition in the whole of this Act is that the register is a register of documents, not a register of titles. India has no system of title guarantee. What the registering officer does under Section 34 is to satisfy himself of the fact of execution and of the identity of the executant; he enquires into nothing else, and he has no machinery with which to enquire into anything else. It follows that registration proves the existence of an instrument and very little about the transaction the instrument records, and that a registered document may always be challenged in a civil court.

The limited enquiry the officer makes, and the consequences that follow from it

1. The Scope of the Officer's Enquiry

Read together, these provisions describe an enquiry of a strictly limited kind. The officer asks who executed this and is this the person who says he did. He does not ask whether the executant owned the property, whether he was of full age and sound mind, whether the price recited was paid, whether the transaction was lawful, or whether the executant was acting freely. Section 60(2) is equally precise about what the certificate proves: that the document was duly registered and that the facts in the endorsements occurred. It says nothing about the truth of the document.

2. Registration Does Not Prove Title

Title comes from the transaction, not from the entry in the register. A registered sale deed transfers what the vendor had and nothing more, on the principle nemo dat quod non habet. Registration adds publicity and a date; it adds no substance.

• A vendor with no title conveys none, however impeccably his deed was registered. The true owner's rights are untouched and his remedy is a suit for declaration and possession.
• A co-owner who purports to sell the whole conveys only his own undivided share.
• A vendor with a defective title conveys that title with the same defect. The purchaser takes the shoes and not a better pair.
• A second sale by a vendor who has already sold conveys nothing, because he parted with his title on the first sale, and Section 48 gives priority to the earlier registered instrument.
• The purchaser's protection is enquiry, not registration: a search of the register under Section 57, an examination of the chain of title, and, where available, the position of a bona fide purchaser for value without notice.

3. Registration Does Not Validate a Forged Document

A forgery is a nullity. It is not a defective transfer but no transfer at all, because the person whose signature appears never executed anything. Registration does not breathe life into it. The registering officer, if a person appeared before him and impersonated the executant, was deceived; his being deceived confers nothing on the impostor or on those claiming under him.

• Nothing passes at any stage, and a subsequent purchaser from the holder of a forged deed acquires nothing, however honest his purchase, because there was nothing in his vendor to convey.
• No question of avoiding the deed arises. The true owner need only establish the forgery; the deed is void, not voidable.
• Registration by impersonation may be an offence. Section 82 makes it an offence to falsely personate another and in such assumed character to present a document, or to admit execution, and Section 81 punishes a registering officer who endorses, copies, translates or registers a document with intent to injure, knowing it to be incorrect.
• The deed may still have to be got out of the way, and a suit for declaration, with cancellation sought by way of abundant caution, is the ordinary course.

4. Registration Does Not Cure Want of Capacity, Authority or Legality

5. What Registration Does Prove

1. That an instrument in those terms existed on the date of registration. This is not trivial. It answers a charge of recent fabrication, and it fixes a document in time in a way that private custody never can.

2. That the person named as executant appeared and admitted execution, where he did. The endorsements under Section 58 record the signature and addition of every person admitting execution, the signature and addition of every person examined, and any payment of money or delivery of goods made in the presence of the officer.

3. That the registration was duly effected. The certificate under Section 60(2) is admissible to prove that the document has been duly registered and that the facts in the endorsements occurred.

4. That the world had notice from the date of registration. Explanation I to Section 3 of the Transfer of Property Act, 1882 fixes a person with constructive notice of a registered instrument, in the circumstances there stated, so a later purchaser cannot claim to be without notice.

5. That the document takes priority. Section 48 gives a registered document effect against oral agreements relating to the same property, and Section 50 gives it priority over an unregistered document relating to it.

6. That the document operates from the date of execution. Section 47 carries the operation back, so registration perfects rather than postpones.

6. The Presumption Attached to a Registered Document

A presumption does arise, and it is worth stating exactly. It is a presumption of due execution and of the regularity of the official act: that the endorsements were made, that the executant appeared, that the officer did what the Act required. It rests on the certificate under Section 60(2), on the maxim omnia praesumuntur rite esse acta, and, where the document is thirty years old and produced from proper custody, on Section 92 of the Bharatiya Sakshya Adhiniyam, 2023, corresponding to Section 90 of the Indian Evidence Act, 1872.

• Every one of these presumptions is rebuttable. None is a rule of substantive law, and each may be displaced by evidence.
• The presumption under Section 92 BSA is discretionary, expressed as "may presume", and the court is not obliged to draw it. Proper custody is itself a question of fact.
• A presumption shifts the burden; it does not decide the case. That is the subject of the next section.

7. Registration and the Burden of Proof

1. The party who asserts must prove. The burden of proof lies on the person who would fail if no evidence at all were given, and the burden of proving a particular fact lies on the person who wishes the court to believe in its existence.

2. Registration shifts the evidential burden, not the legal burden. The party relying on a registered deed can point to the endorsements and the certificate, and the party attacking it must then lead evidence.

3. Where forgery is alleged, the burden is on the person alleging it, and it is a heavy burden, because fraud and forgery must be pleaded with particulars and proved and are never presumed.

4. Where fraud, coercion or undue influence is alleged, the burden begins with the person alleging it, but shifts where a relationship of trust or dominance is shown. Under Section 16(3) of the Contract Act, where a person in a position to dominate the will of another enters into a transaction which on the face of it appears unconscionable, the burden of proving that the contract was not induced by undue influence lies on the dominant party.

5. Where the executant admits his signature but denies the contents, as in the familiar plea that he signed a blank paper or a document read over to him as something else, the burden is on him to establish it, but the court examines the circumstances closely, particularly where the executant is illiterate, aged or a pardanashin woman, in which last case the burden of proving that the deed was explained and understood is on the party relying on it.

6. Registration is a circumstance that the court weighs. Appearance before a public officer, identification, and admission of execution tell in favour of genuineness. They do not conclude the enquiry.

8. Registration and Proof of Attestation

Where the law requires a document to be attested, attestation is an element of its validity, and registration neither supplies it nor proves it. The requirement appears in Section 123 for gifts, Section 59 for mortgages above the threshold, and Section 63 of the Indian Succession Act, 1925 for wills. The mode of proof is separate again.

• The proviso is the only place where registration makes a difference to proof of attestation, and it is carefully limited. Registration dispenses with calling an attesting witness for a registered document which is not a will, and only so long as execution is not specifically denied.
• Once execution is specifically denied, the proviso falls away, and an attesting witness must be called as in any other case.
• A will is expressly excluded from the proviso. A registered will must still be proved by calling an attesting witness, which is the statutory reason why registration proves so little about a will.
• Registration does not cure the absence of attestation. A gift deed registered but attested by one witness is bad, because Section 123 of the Transfer of Property Act requires two.

9. Registration and Proof of the Contents and of the Consideration

1. The recitals are the parties' statements, not the officer's findings. A recital that the whole consideration has been received in cash before the execution of the deed is a statement by the vendor, and it may be contradicted.

2. Section 58(1)(c) is the exception that proves the rule. Where money is actually paid or delivered in the presence of the registering officer, that fact is endorsed on the document, and to that extent the endorsement is evidence of payment. Payment made elsewhere is not.

3. A receipt in the deed is prima facie evidence of payment as between the parties, and shifts the evidential burden to the vendor to show that the price was not in fact paid.

4. Failure to pay the price does not by itself avoid the sale. Under Section 55(4)(b) of the Transfer of Property Act, the unpaid seller has a charge on the property for the unpaid price, and his remedy is to enforce that charge or to sue for the price, not to treat the sale as undone.

5. Proof of the contents of a registered document is governed by the ordinary law of evidence: the original is primary evidence under Section 57 BSA, and a certified copy from the register is admissible as secondary evidence under Sections 58 and 60 BSA.

10. A Registered Instrument Against a Revenue Entry

The same is true in the other direction. A person whose name stands in the revenue record but who holds no registered instrument is not the owner, and long standing entries do not ripen into title, though they may support a plea of possession and, over the statutory period and with the necessary animus, a plea of adverse possession, which is a wholly different foundation.

11. A Registered Instrument May Always Be Challenged

• By the executant, on the ground that his consent was caused by fraud, coercion, undue influence or misrepresentation, by a suit under Section 31 of the Specific Relief Act, 1963.
• By a person whose signature was forged, by a suit for declaration that the deed is void and does not bind him.
• By a person claiming a superior title, who need not attack the deed at all, but may simply say that his vendor never had what he purported to convey.
• By a co-owner whose share was dealt with without his concurrence.
• By a creditor or an official assignee, where the transfer was made to defeat or delay creditors, under Section 53 of the Transfer of Property Act.
• On the ground of illegality, where the transfer was forbidden by a statute.
• The challenge lies in a civil court and nowhere else. No writ lies to have a registered document cancelled, and the registering officer has no power to cancel it.

12. The Position Stated Shortly

1. The register is a register of documents, not of titles. The officer enquires only into the fact of execution and the identity of the executant, Section 34.

2. Registration does not prove title. Title comes from the transaction, and a person with no title conveys none.

3. Registration does not validate a forged document. A forgery is void, and nothing passes at any stage.

4. Registration does not cure minority, unsoundness of mind, want of authority in an agent, or a transfer forbidden by law.

5. Registration does not cure fraud, coercion, undue influence or misrepresentation. The deed remains voidable.

6. Registration does not supply attestation where the law requires it, nor prove that the recitals are true or that the price was paid.

7. Registration does prove that an instrument in those terms existed on that date, that the endorsed facts occurred, and that registration was duly effected, Section 60(2).

8. It also gives public notice from the date of registration, priority under Sections 48 and 50, and operation from the date of execution under Section 47.

9. The presumption that arises is one of due execution and regularity of the official act. It is rebuttable, and it shifts the evidential burden without deciding the case.

10. By the proviso to Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, a registered document other than a will need not be proved by an attesting witness unless execution is specifically denied.

11. A mutation entry neither creates nor destroys title and yields to the registered instrument.

12. A registered instrument may always be challenged in a civil court, and only in a civil court.