REG 054 Execution and Registration Distinguished — Law of Registration Notes for Judiciary

Execution and Registration Distinguished: The Act of the Party and the Act of the State, the Two Dates, and Why Section 47 Carries the Deed Back

Execution and registration are two different acts, done by two different people, at two different times, with two different consequences. Execution is the act of the party: he signs the instrument with the intention of giving effect to it, and from that moment the document exists as his act. Registration is the act of the State: the document is presented, the officer enquires into execution and identity, and the document is copied into the register. Nearly every difficulty in this Act comes from confusing the two, and the confusion produces three recurring errors: treating the date of registration as the date of transfer, treating an admission of execution as proof of the transaction, and treating registration as something that can cure a defect in the execution itself.

The two acts side by side, and the third thing that is neither: admission of execution

1. What Execution Is

The Registration Act does not define execution, and it did not need to. Execution is the signing of an instrument by a person with the intention of giving effect to it as his act. It is complete when he signs, and it requires nothing from anyone else. A document is executed the moment the executant puts his hand to it animo executandi, whether or not the other party has signed, whether or not the consideration has passed, and whether or not it is ever presented for registration.

Signature or mark. A signature, or a mark by an illiterate executant, or a signature by another in his presence and by his direction where the law allows, all constitute execution.
The intention matters. A person who signs a blank paper, or who signs by way of witness, or who signs a draft for approval, has not executed the instrument, and this is a question of fact.
Delivery is not a separate requirement in India for most instruments, though the intention to give effect to the document must be present.
Execution by more than one person may be on different dates. Section 24 provides for a document executed by several persons at different times, and allows it to be presented within four months from each date of execution.
Execution by an agent is execution by the principal, where the agent acts within an authority that extends to the act. The power need not be registered, but if the agent is also to present the document for registration it must be authenticated under Section 33.
A lease must be executed by both parties. The third paragraph of Section 107 of the Transfer of Property Act is peculiar in this respect; a sale deed is executed by the vendor alone.

2. What Registration Is

1. Presentation. The document is presented at the proper office under Sections 28 to 31, within the time allowed by Sections 23 to 26, by a person competent under Section 32.

2. Enquiry. The officer enquires under Section 34 whether the document was executed by the persons by whom it purports to have been executed, and satisfies himself as to their identity and, where a representative or agent appears, as to his right to appear.

3. Admission or denial. If the executants appear and admit execution, the officer proceeds under Section 35(1). If any of them denies execution, the officer must refuse under Section 35(3).

4. Endorsement. The officer endorses the particulars required by Section 58 and dates and signs them under Section 59.

5. Certificate. He certifies under Section 60, and the certificate is admissible to prove that the document has been duly registered and that the endorsed facts occurred.

6. Copying. The document is copied into the appropriate book under Section 51, and the entry is indexed under Sections 55 and 56.

3. The Two Acts Compared

	Execution	Registration
Whose act	The executant's	The registering officer's, on presentation by a competent person
When	Whenever the party chooses	Within four months of execution, Section 23, with the extensions in Sections 25 and 26 and the special rule for wills in Section 27
What it requires	A signature with the intention of giving effect to the instrument	Presentation, enquiry, admission, endorsement, certificate and copying
What it produces	The instrument, as the act of the party	An operative instrument, on the public record
What it proves	Nothing by itself; it must be proved in court	That the document exists, was duly registered, and that the endorsed facts occurred, Section 60(2)
The date it fixes	The date from which the registered document operates, Section 47	The date from which the world has constructive notice, Section 3 of the Transfer of Property Act
If it is missing	There is no document at all	The document does not affect the property and is not evidence of the transaction, Section 49
Can the other cure it?	No. Registration cannot supply execution that never happened	No. Execution does not dispense with registration where the law requires it

4. Section 47 and the Relation Back

Section 47, Registration Act, 1908

47. Time from which registered document operates. A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.

This is the provision that ties the two acts together, and it is the most misunderstood section in the Act. It does not say that a document operates on execution and that registration is a formality. It says that once registration has taken place, the document is treated as operating from the time it would have operated from had no registration been required, which for a sale deed is the date of execution. Registration is a condition of the document operating at all; once satisfied, the operation relates back.

Before registration, the deed operates from no date. An unregistered sale deed does not transfer title on its date of execution and then wait to be perfected. It transfers nothing.
After registration, the transfer takes effect from execution. A vendor who executes on 1 March and dies on 10 March, the deed being registered on 20 March, has effectively sold on 1 March, and the property does not devolve on his heirs.
Priority between two registered deeds is decided by the dates of execution, not by the order in which they reached the office, which is why Section 47 read with Section 48 governs the case of a vendor who sells twice.
Section 47 does not apply to delivery of possession or payment of price, which are governed by the contract.
Nor does it cure a deed that was never validly executed. Relation back operates on a document that was executed; it cannot manufacture one that was not.
Section 75(2) is a different and narrower relation back. Where a document is registered under a decree in a suit under Section 77, the registration takes effect as if the document had been registered when it was first duly presented, which is a rule about the date of registration and not about the date of operation.

5. The Date of Execution and the Date of Registration

	Date of execution	Date of registration
Fixed by	The act of the party	The office
Appears on	The face of the deed	The endorsements under Sections 58 and 59 and the certificate under Section 60
Relevance to the transfer	The deed operates from this date once registered, Section 47	Not the date of operation; expressly excluded by Section 47
Relevance to presentation	The four months under Section 23 run from here	The end point of the period
Relevance to notice	None; the world knows nothing of an unregistered deed	Constructive notice runs from here, Explanation I to Section 3 of the Transfer of Property Act
Relevance to priority	Decides priority between competing registered instruments under Sections 47 and 48	Decides priority over an unregistered instrument under Section 50
If the deed is never registered	The date has no operative effect	Does not arise

⚠ A recital of a date of execution is not conclusive of it

The date written at the head of a deed is a statement by the parties, and like any other recital it may be displaced by evidence. Where the true date of execution is in dispute, as it often is when the question is whether the deed was presented within four months, or which of two deeds was executed first, the court decides it on evidence. The endorsements are of real help here, because Section 52(1)(a) requires the day, hour and place of presentation to be endorsed, and Section 59 requires the officer to date his endorsements, so the date of presentation is fixed by the record even where the date of execution is not.

6. Admission of Execution: The Third Thing

Between execution and registration sits a third act which belongs to neither, and which is the subject of the officer's only real enquiry. Under Section 34 he asks whether the document was executed by the persons by whom it purports to have been executed, and under Section 35 he acts on their admission. An admission of execution is an admission of a fact, and it is confined to that fact.

An admission before the registering officer is evidence of	It is not evidence of
That the person appeared before the officer	That the recitals in the document are true
That he was identified, or was personally known to the officer	That the consideration recited was paid, unless it was paid in the officer's presence and endorsed under Section 58(1)(c)
That he admitted having executed the document	That he had title to what he purported to convey
That the admission was made on the date endorsed	That he had capacity, or acted freely, or had authority

An admission is not conclusive proof, but it operates strongly, and a person who later denies execution must explain why he appeared, was identified and admitted it.
The officer's satisfaction as to identity is not conclusive of identity. Where impersonation is proved, the endorsement records only that somebody appeared and said he was the executant, which is why Section 82 makes false personation an offence.
A denial under Section 35(3) compels refusal. The officer has no discretion: where any person by whom the document purports to be executed denies its execution, he shall refuse to register.
The remedy on refusal is the Sections 73 to 77 machinery. An application to the Registrar under Section 73 within thirty days, an enquiry under Sections 74 and 75 confined to the fact of execution, and, on refusal, a suit under Section 77 within thirty days.
Nothing in that machinery decides title either. The Registrar's enquiry and the Section 77 suit are both limited to whether the document was executed.

7. The Common Errors

1. Treating the registration date as the transfer date. It is not, by the express words of Section 47. The commonest practical consequence is a wrong answer on succession where the vendor died between execution and registration.

2. Treating an unregistered deed as operative from execution. It is not operative at all, and Section 49 shuts it out as evidence of the transaction.

3. Treating admission of execution as proof of the transaction. It proves only the fact of execution, and the officer enquires into nothing else.

4. Treating registration as curing a defect in execution. A deed not attested where the law requires attestation, or executed by a minor, or forged, is not improved by registration.

5. Treating a refusal as a decision on the merits. A refusal decides nothing about title, and neither does a decree in a Section 77 suit.

6. Treating the four month period as running from anything but execution. It runs from the date of execution under Section 23, and under Section 24 from each date of execution where a document is executed by several persons at different times.

7. Treating Section 47 as making registration optional. It does the opposite: it presupposes registration and then dates back its effect.

8. Execution, Registration and the Other Formalities

The requirement	Its source	What it does	Can registration supply it?
Execution	The general law	Brings the instrument into existence as the act of the party	No
Attestation	Section 123 of the Transfer of Property Act for gifts, Section 59 for mortgages, Section 63 of the Indian Succession Act, 1925 for wills	A witness sees the executant sign, or receives his acknowledgment, and signs in his presence	No
Stamping	Sections 17 and 35 of the Indian Stamp Act, 1899	Secures the revenue; an unstamped instrument is inadmissible for any purpose until duty and penalty are paid	No; and the officer must impound under Section 33
Registration	Section 17 of the Registration Act and the Transfer of Property Act	Makes the instrument operative and gives it publicity and priority	Not applicable
Acceptance	Section 122 of the Transfer of Property Act, for gifts	Completes the gift; it is void without acceptance during the donor's lifetime	No
Mutation	State revenue legislation	Records a name for the collection of revenue	Does not arise; mutation follows registration and confers no title

The table makes the architecture plain. These are cumulative requirements, each imposed by a different provision for a different reason, and the satisfaction of one never supplies another. A gift deed must be executed, attested by two witnesses, stamped, registered and accepted; it fails if any one of them is missing, and the presence of the other four will not save it.

9. The Sequence, and Why It Is Always the Same

1. The party executes. The instrument comes into existence as his act.

2. The instrument is stamped, before or at the time of execution, under Section 17 of the Indian Stamp Act, 1899.

3. It is presented, at the proper office under Sections 28 to 31, within four months under Section 23, by a person competent under Section 32.

4. Execution is admitted, before the officer under Section 35, after the enquiry under Section 34.

5. The officer endorses under Section 58, dates and signs under Section 59, and certifies under Section 60.

6. The document is copied into the appropriate book under Section 51 and indexed under Sections 55 and 56.

7. And the deed then speaks from the day it was signed, by force of Section 47.

10. The Position Stated Shortly

1. Execution is the act of the party: signing with the intention of giving effect to the instrument. Registration is the act of the State.

2. Execution is complete on signature, and requires nothing from the office.

3. Registration requires presentation within time by a competent person, enquiry into execution and identity, admission, endorsement, certificate and copying.

4. Section 47 makes a registered document operate from the time it would have operated had no registration been required, and not from the time of registration.

5. Before registration the document operates from no date at all; after registration the operation relates back to execution.

6. Priority between competing registered instruments is decided by the dates of execution, under Sections 47 and 48.

7. The four month period under Section 23 runs from the date of execution, and under Section 24 from each date where several persons execute at different times.

8. Admission of execution under Section 35 is an admission of the fact of execution alone, and proves nothing about the contents, the consideration, the capacity or the title.

9. A denial of execution compels refusal under Section 35(3), and the remedy is the Sections 73 to 77 machinery.

10. Registration cannot supply execution, attestation, stamping or acceptance; these are cumulative requirements, each from a different provision.

11. Registration under a decree in a Section 77 suit relates back to the first presentation, Section 75(2), which is a different rule from Section 47.