REG 057 Registration and Mutation

Registration and Mutation Distinguished: The Record of Rights, Why a Revenue Entry Confers No Title, and Sawarni v. Inder Kaur

Registration transfers property. Mutation records who pays the revenue on it. The two are separated by everything that matters: the statute, the officer, the purpose, and above all the legal effect. A registered sale deed vests ownership in the purchaser from the date of execution; a mutation entry changes the name against which land revenue or property tax is demanded, and confers no title on anyone. Yet no confusion in Indian property practice is more common or more expensive, because the revenue record is the document people actually see, and the entry in it looks like an official statement of who owns the land.

The two compared, and the rule that mutation neither creates nor extinguishes title

1. What Mutation Is

Mutation is the alteration of the entry in the record of rights maintained under State revenue legislation, so that the name of the person now liable to pay land revenue, or now shown in possession, replaces the name previously entered. It follows an event: a sale, a gift, an inheritance, a partition, a decree. It is an administrative act performed by a revenue officer, on an application supported by the document or the fact relied on.

• There is no central Act. Mutation is governed entirely by State legislation: the land revenue codes and, for urban property, the municipal legislation. The Punjab Land Revenue Act, 1887 governs Punjab and Haryana; other States have their own codes, and the procedure and the presumptions differ.
• The record of rights is the core document, variously called the jamabandi, the khatauni, the record of rights or the settlement record, and is prepared and periodically revised under the State code.
• The register of mutations is the running record of changes between revisions of the record of rights, and mutation entries are attested by a revenue officer.
• The purpose is fiscal. The State needs to know from whom to collect, and the record exists to tell it. Its use as evidence of who owns land is a by product, not its object.
• For urban property, the municipal assessment register performs the same function for property tax, and the same principles apply.

2. The Two Compared

3. The Governing Principle

That proposition has been applied consistently since, and it cuts both ways. A person in whose favour mutation stands is not thereby an owner, and a person against whom it stands has not thereby lost his title. The entry proves, at most, that somebody applied and that the revenue officer acted on the application.

4. What a Mutation Entry Does Prove

• Some State codes attach a statutory presumption to entries in the record of rights. In Punjab and Haryana, Section 44 of the Punjab Land Revenue Act, 1887 provides that an entry in the record of rights, or in an annual record, is presumed to be true until the contrary is proved or a new entry is lawfully substituted.
• That presumption is about the entry, not about title. It says that what is written may be taken to have been correctly written; it does not say that the person named owns the land.
• It is rebuttable, and is displaced by proof of the true position.
• The strength of the presumption varies by State, and the local code must be read before it is relied on.

5. The Four Situations

6. Mutation Proceedings and the Civil Court

1. A mutation proceeding is summary. The revenue officer decides whether to alter the entry, on the material before him, and he is not equipped to try a title dispute.

2. An appeal lies within the revenue hierarchy, under the State code, ordinarily to the Collector and then to the Commissioner or the Financial Commissioner.

3. But a revenue order does not decide title. Where the entry is contested on the footing of rival claims of ownership, the revenue officer either records the rival claim or leaves the parties to the civil court.

4. The civil court's jurisdiction is not ousted. Section 9 of the Code of Civil Procedure gives it jurisdiction over every suit of a civil nature except where cognizance is barred, and the bars in the State codes are directed at the correctness of entries, not at questions of title.

5. A decree of the civil court binds the revenue authorities, and the entry is corrected to follow it.

6. A mutation order creates no res judicata. A revenue officer is not a court within Section 11 of the Code for this purpose, and a summary order on an entry cannot preclude a suit on title.

7. Limitation is not affected. A mutation entry does not start a period of limitation against the true owner, though it may be relevant to when he had notice of a hostile claim.

7. Mutation and Adverse Possession

• Long standing entries do not ripen into title of themselves. Title by prescription requires possession that is actual, open, continuous, hostile and to the knowledge of the true owner, for the statutory period, which under Article 65 of the Limitation Act, 1963 is twelve years against a private owner and thirty years against the Government under Article 112.
• But an entry may be evidence in support of such a plea, because it may show when possession began, in what character it was held, and that it was open and known.
• The entry may also supply the element of notice, since an entry in a public record made on an application is hard to describe as secret.
• A person relying on adverse possession must plead it specifically, and must admit the title of the true owner, since one cannot claim adversely to a title one denies exists.

8. The Practical Sequence

1. The transfer is effected by a registered instrument, where the law requires one.

2. The registering officer registers it, and it takes effect from the date of execution under Section 47.

3. An application for mutation is made to the revenue officer, supported by the registered deed.

4. The revenue officer gives notice to the parties affected and to the persons in the record, and hears objections.

5. The entry is attested and the record of rights or the register of mutations is altered.

6. Where the systems are integrated, as they increasingly are under the State land records programmes, the registration itself triggers the mutation, and the record is corrected from the registered deed rather than on a separate application.

7. The purchaser then pays the revenue, and the record and the title agree. Until then, the title is complete and the record is behind.

9. The Position Stated Shortly

1. Registration is governed by the central Act with the Transfer of Property Act; mutation is governed entirely by State revenue and municipal legislation.

2. Registration effects and records a transfer; mutation records who is liable for land revenue or property tax.

3. A registered instrument creates title where the transferor had title; a mutation entry creates none.

4. Mutation of a property in the revenue record does not create or extinguish title and has no presumptive value on title, Sawarni v. Inder Kaur.

5. Where a State code attaches a presumption to entries in the record of rights, as Section 44 of the Punjab Land Revenue Act, 1887 does, the presumption is about the correctness of the entry and is rebuttable.

6. A purchaser with a registered deed and no mutation is the owner; a person whose name stands in the record with no registered deed is not.

7. Where property devolves by succession, no instrument is needed, and the entry follows a devolution that occurred by operation of law.

8. Mutation proceedings are summary, appeals lie within the revenue hierarchy, and a mutation order creates no res judicata.

9. The civil court decides title, and the revenue entry is corrected to follow the decree.

10. Long standing entries do not ripen into title, though they may be evidence in support of a plea of adverse possession.

11. The correct enquiry for a purchaser is into the chain of registered instruments and an encumbrance certificate, not into the jamabandi alone.