REG 051 Registration Act and Code of Civil Procedure — Law of Registration Notes for Judiciary

The Registration Act and the Code of Civil Procedure, 1908: Jurisdiction, the Section 77 Suit, Appeals, Compromise Decrees, Res Judicata and Order VII Rule 11

The Registration Act and the Code of Civil Procedure were passed in the same year, and they were meant to work together. The Registration Act creates an administrative office with strictly limited powers; every question it cannot decide, which is every question of substance, goes to a civil court, and gets there through the Code. The Code supplies the forum, the procedure, the appeal, and the finality. Four points of contact matter most: the suit under Section 77, the treatment of decrees under Section 17(2)(vi), the reach of res judicata, and the misuse of Order VII Rule 11 to get a plaint thrown out because the document sued on was unregistered.

Where the two statutes meet: forum, the Section 77 suit, appeals, decrees and the rejection of plaints

1. The Jurisdiction of the Civil Court

Section 9, Code of Civil Procedure, 1908

9. Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

The Registration Act bars nothing. There is no provision in it ousting the jurisdiction of the civil court, and the scheme of the Act positively assumes that court, because Section 77 sends a party there and Section 31(2) of the Specific Relief Act assumes a decree correcting the register.
The registering officer is not a tribunal. He makes no adjudication on title, and his orders are administrative. Nothing he does can oust the jurisdiction of a court.
So every question of substance is for the civil court: whether a document is genuine, whether the executant had title or capacity, whether the transaction is void or voidable, whether a contract should be specifically performed, and whether an instrument should be cancelled or rectified.
A writ under Article 226 lies only on grounds of jurisdiction, such as an order passed without authority, and not to decide disputed questions of title or the validity of a registered deed. The Supreme Court made that plain in Satya Pal Anand v. State of M.P., (2016) 10 SCC 767.

2. Which Court, and Where

Provision	What it fixes
Section 15 CPC	Every suit shall be instituted in the court of the lowest grade competent to try it
Section 16 CPC	Suits for the recovery of immovable property, for partition, for foreclosure, sale or redemption of a mortgage, for the determination of any other right to or interest in immovable property, and for compensation for a wrong to immovable property, shall be instituted in the court within whose local limits the property is situate
Section 17 CPC	Where the property is situate within the jurisdiction of different courts, the suit may be instituted in any court within whose local limits any portion of the property is situate, provided the whole claim is cognizable by it
Section 19 CPC	Suits for compensation for wrongs to the person or to movables may be instituted where the wrong was done or where the defendant resides or carries on business
Section 20 CPC	All other suits, where the defendant resides or carries on business or personally works for gain, or where the cause of action wholly or in part arises
Section 77, Registration Act	The Section 77 suit is instituted in the civil court within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered

Note the difference in the last row. The venue for a Section 77 suit is fixed not by where the property lies but by where the registration office is. That is deliberate, because the suit is about the officer's order and not about the property. In most cases the two coincide, because Sections 28 to 30 of the Registration Act require the document to be presented in the office of the sub district in which some part of the property is situate, but they need not coincide where Section 30 has been used.

3. The Section 77 Suit Tried Under the Code

1. It is a regular civil suit. It is instituted by a plaint, tried on issues, decided on evidence, and disposed of by a decree, all under the Code.

2. The defendant is the Registrar, and in practice also the persons who denied execution, because a decree directing registration affects them.

3. The limitation is thirty days from the making of the order of refusal, prescribed by Section 77(1) itself.

4. The issue is narrow. The court decides whether the document was executed and whether the requirements of the law were complied with. It does not decide title, consideration or the validity of the transaction, and a finding on those questions would be outside the scope of the suit.

5. The decree directs the document to be registered if it is duly presented within thirty days after the passing of the decree.

6. Registration then relates back. Section 75(2) makes the registration take effect as if the document had been registered when it was first duly presented.

7. Appeal lies as from any decree, under Section 96 of the Code to the first appellate court, and under Section 100 by way of second appeal on a substantial question of law.

⚠ The Section 77 suit decides nothing about title

It is a mistake to treat a decree in a Section 77 suit as establishing the plaintiff's title or the validity of the transaction. The suit exists to get a document onto the register when the Registrar wrongly refused. A person against whom the registered document is later set up may attack it on every ground open to him, and the Section 77 decree is no answer, because the issue of title was neither raised nor decided. This is also why a Section 77 decree does not operate as res judicata on questions of title, as explained below.

4. Appeal and Revision in Registration Related Proceedings

The proceeding	The remedy
Refusal by a Sub Registrar on a ground other than denial of execution	Appeal to the Registrar under Section 72 of the Registration Act, within thirty days
Refusal by a Sub Registrar on the ground of denial of execution	Application to the Registrar under Section 73, within thirty days, and an enquiry under Sections 74 and 75
Refusal by the Registrar to order registration	Suit under Section 77, within thirty days, in the civil court
Decree in a Section 77 suit	First appeal under Section 96 CPC; second appeal under Section 100 on a substantial question of law
Decree in a suit for cancellation, declaration or specific performance	The same appellate hierarchy under the Code
An order where no appeal lies	Revision under Section 115 CPC, on the limited grounds of jurisdiction there stated, subject to the proviso
An order of a registering officer said to be without jurisdiction	Writ under Article 226, confined to jurisdiction; not a route to decide title

Section 115 was narrowed by the amendments of 1999 and 2002. The proviso now bars the High Court from varying or reversing any order made in the course of a suit or proceeding except where the order, if it had been made in favour of the party applying, would have finally disposed of the suit or other proceeding.
An appeal under Section 72 lies to the Registrar and not to a court, and the Registrar's order on such an appeal is itself the subject of the Section 77 suit.
No appeal lies against the act of registering. The Act provides remedies against refusal, not against registration, which is one reason a person aggrieved by a registered document must sue in the civil court.

5. Court Decrees and Registration

Section 17(2)(vi), Registration Act, 1908

17(2). Nothing in clauses (b) and (c) of sub section (1) applies to: (vi) any decree or order of a court, except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding.

A contested decree is exempt whatever property it covers. The rights are declared by the adjudication and the decree is the record of it.
A preliminary decree and a final decree in a partition suit are both decrees of a court, and both are within the exemption.
The rationale is redundancy, not indulgence. A decree is already a public and authenticated record made after enquiry, and registration would add nothing to the publicity it already has.
A document executed in pursuance of a decree is not the decree. A conveyance executed to carry out a decree for specific performance, whether by the defendant or by an officer of the court under Order XXI Rule 34 of the Code, is an ordinary registrable instrument.
An assignment of a decree relating to immovable property transfers an interest in immovable property and is registrable; execution by the transferee is governed by Order XXI Rule 16, under which the court gives notice to the transferor and the judgment debtor.

6. Compromise Decrees

Order XXIII Rule 3, Code of Civil Procedure, 1908, in substance

3. Compromise of suit. Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit.

Proviso. Where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding it unless the court, for reasons to be recorded, thinks fit to grant such adjournment.

Rule 3 permits the court to record a compromise even where its subject matter is not the same as the subject matter of the suit, but the decree follows only so far as it relates to the parties to the suit. The part of the compromise that goes beyond the suit operates as a contract between the parties, and Section 17(2)(vi) withdraws the registration exemption from that part where it comprises immovable property.

📖 Bhoop Singh v. Ram Singh Major, (1995) 5 SCC 709

Facts. A consent or compromise decree was passed and was relied upon as conferring rights in immovable property. The question was whether it fell within the exemption in Section 17(2)(vi) or required registration under Section 17(1)(b).

Held. The Supreme Court held that the exemption applies where the decree merely recognises or declares a pre existing right. Where a compromise decree creates for the first time a right, title or interest in praesenti in immovable property of the value of one hundred rupees or upwards, it falls within Section 17(1)(b) and must be registered. The Court warned against the exemption being used as a device to obtain a conveyance without registration by filing a suit and compromising it.

Ratio. The test is whether the decree declares an antecedent title or is itself the source of the right. Being about the property in suit does not save a decree of the second kind.

1. First ask whether the decree is on a compromise. If it is contested, the exemption applies.

2. Then ask what property it comprises. So far as it comprises property outside the subject matter of the suit, the express exception applies and registration is compulsory.

3. Then ask whether the decree declares or creates, even as to the property in suit. On Bhoop Singh, a decree that creates a right in praesenti for the first time must be registered.

4. A compromise decree may be set aside on grounds on which the agreement could be avoided, and the proviso to Rule 3 requires the court that passed it to decide the question. Rule 3A bars a separate suit to set aside a decree on the ground that the compromise was not lawful.

7. Registration and Res Judicata

Section 11, Code of Civil Procedure, 1908, in substance

11. Res judicata. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

An order of a registering officer creates no res judicata. Section 11 speaks of a former suit decided by a court, and a registering officer is neither. A refusal to register, or a decision to register, concludes nothing between the parties.
An order of the Registrar under Section 75 creates no res judicata for the same reason, and because his enquiry is expressly confined to the fact of execution.
A decree in a Section 77 suit binds the parties on what it decided, namely whether the document was executed and should be registered. It does not bind them on title, because that was not directly and substantially in issue.
A decree in a suit for cancellation, declaration or specific performance binds on what it decided, in the ordinary way, and may well conclude questions of title.
Explanation IV brings in constructive res judicata: any matter which might and ought to have been made a ground of defence or attack in the former suit is deemed to have been directly and substantially in issue. This can defeat a party who split his case, but it does not convert an administrative order into a judicial decision.
Order II Rule 2 separately bars a suit for a relief omitted from an earlier suit on the same cause of action, and is a distinct and often decisive bar.

8. Registration Records as Evidence in a Civil Suit

1. The register books are public records. Books 1 to 5 kept under Section 51 are public records of private documents, and so are public documents under Section 74 of the Bharatiya Sakshya Adhiniyam, 2023.

2. Certified copies are given under Section 57 and are, by Section 57(5), admissible for the purpose of proving the contents of the original documents.

3. They may be produced in proof of the contents under Section 76 of the Adhiniyam, and their genuineness is presumed under Section 78.

4. The endorsements under Section 58 and the certificate under Section 60 prove appearance, admission of execution, and any payment made in the officer's presence.

5. Production may be compelled by summons under Order XVI of the Code, and the court may under Order XIII Rule 10 send for the record of any other court.

6. Section 76 of the Adhiniyam makes a certified copy enough, so the officer need not ordinarily bring the original register to court, and the general practice is to prove the transaction by a certified copy.

7. Section 62 of the Registration Act restricts access to Books 3 and 4, and Section 57(2) limits copies of entries in Book 3, which holds wills, to the testator during his lifetime and to any applicant after his death.

9. Order VII Rule 11 and the Registration Bar

Order VII Rule 11, Code of Civil Procedure, 1908, in substance

11. Rejection of plaint. The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9.

1. Clause (d) is the one invoked, on the argument that Section 49 bars the suit because the document sued on is unregistered.

2. The argument is usually wrong, because Section 49 bars the document and not the suit. The section says the document shall not affect the property or be received as evidence of the transaction. It does not say that a suit founded on such a document is barred by law.

3. The plaintiff may succeed without the document. He may rely on the proviso to Section 49 and sue for specific performance, or plead part performance under Section 53A, or prove his title from another source altogether.

4. The court looks only at the plaint and the documents filed with it. The defence is not looked at on an application under Rule 11, and the averments in the plaint are assumed to be true for that purpose.

5. The plaint is read as a whole and meaningfully, not by picking out isolated sentences, and clever drafting designed to get round a real bar is looked through.

6. Rule 11 admits of no partial rejection in the ordinary case. A plaint is rejected as a whole or not at all, so a plaint containing one claim founded on an unregistered document and another on an independent title will not be thrown out.

7. Where Rule 11 does apply, it applies at any stage, and the court may act on its own motion.

⚠ The stamp objection is different again, and is not a Rule 11 point either

An unstamped document is inadmissible for any purpose under Section 35 of the Indian Stamp Act, 1899, which is a stricter bar than Section 49 because it admits of no collateral purpose. But it is still a bar on the document, not on the suit, and it is curable: the court impounds the instrument under Section 33 and admits it once the duty and penalty are paid. A plaint is therefore not rejected under Order VII Rule 11 merely because the document annexed to it is unstamped. The objection is taken when the document is tendered, and under Section 36 of the Stamp Act it must be taken then, because once the instrument has been admitted in evidence the admission cannot be called in question later in the same proceeding except under Section 61.

10. The Position Stated Shortly

1. The Registration Act bars no civil suit; Section 9 of the Code gives the court jurisdiction over every question of substance.

2. A registering officer is not a tribunal, and a writ under Article 226 lies against his orders only on grounds of jurisdiction.

3. Venue for a suit about immovable property is fixed by Sections 16 to 20 of the Code; venue for a Section 77 suit is fixed by where the registration office is.

4. A Section 77 suit is a regular civil suit, tried under the Code, limited to the fact of execution, and must be brought within thirty days of the order of refusal.

5. Registration following a decree in such a suit relates back to the first presentation, Section 75(2).

6. Appeals lie under Sections 96 and 100 of the Code, revision under Section 115 as narrowed by the proviso, and appeals to the Registrar under Sections 72 and 73 of the Registration Act.

7. A decree or order of a court is exempt under Section 17(2)(vi), except a compromise decree comprising property outside the subject matter of the suit.

8. A compromise decree creating a right in praesenti for the first time must be registered, Bhoop Singh v. Ram Singh Major.

9. A conveyance executed in pursuance of a decree is not the decree and must be registered.

10. An order of a registering officer creates no res judicata; a decree binds only on what was directly and substantially in issue.

11. Register books are public records, and certified copies under Section 57(5) prove the contents of the originals.

12. A plaint is not rejected under Order VII Rule 11(d) merely because the document sued on is unregistered, because Section 49 bars the document and not the suit.