Law of Registration
REG 067 Release Deed and Relinquishment Deed
The Release Deed and the Relinquishment Deed: Why They Are the Same Instrument in Law, and Where the Difference Actually Lies
This comparison has an unusual answer, and it is worth giving at the outset: in law, a release and a relinquishment are the same instrument. Neither expression is defined in the Registration Act or in the Transfer of Property Act. Both describe a deed by which a person gives up a right he already holds, in favour of someone who also has an interest in the same property, and both fall within the word extinguish in Section 17(1)(b). The distinction that practitioners draw between them is one of usage, and the distinction that actually costs money is one of stamp duty under the State schedules. Treating them as two legal categories, and looking for a difference in effect, is the mistake this note exists to prevent.
The same instrument under two names, what the law does with it, and where the difference genuinely bites
1. The Statutory Position
Section 17(1)(b), Registration Act, 1908 17(1). The following documents shall be registered: (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 immovable property. |
- Neither word appears in the Act. The Registration Act does not use "release" or "relinquishment", and neither does the Transfer of Property Act use them as terms of art for this purpose.
- Both are caught by the word "extinguish". That is the operative limb, and it is the same limb for both.
- The Transfer of Property Act does not govern the transaction as a transfer, because a release does not transfer anything: the releasor's share is extinguished and the shares of the remaining co-owners are correspondingly enlarged.
- The value threshold applies. Above one hundred rupees, registration is compulsory; below it, Section 18(a) makes it optional.
- There is no attestation requirement by statute for either, because neither Section 123 nor Section 59 of the Transfer of Property Act applies.
2. How the Two Words Are Used
"Release" | "Relinquishment" | |
Breadth of the word | The wider term. It is used of giving up any right, in property or otherwise | The narrower usage. It is generally confined to giving up a share in property |
Typical subject matter | A share in property; a mortgage on repayment; a claim under a contract; an easement; a right of pre emption | A share in inherited property, or in joint family or coparcenary property |
Typical parties | Any persons between whom a right subsists | Co-heirs, co-sharers or members of a family |
Common occasion | Discharge of a mortgage, settlement of a claim, giving up a share | Succession: one heir gives up his share in favour of the others |
Regional usage | Used across India, in the wider sense | Common in North India for a deed among co-heirs; some States use "release deed" for the same transaction |
The point to hold on to is that these are differences in how the words are used, not differences the law attaches consequences to. A deed by which one heir gives up his share in his father's house in favour of his brothers is exactly the same instrument whether it is headed "Deed of Release" or "Deed of Relinquishment", and the Registration Act treats it identically.
3. What the Law Requires of Both
1. Registration is compulsory where the value of the right given up is one hundred rupees or more, under Section 17(1)(b), because the deed extinguishes a right in immovable property.
2. The releasor must have a subsisting interest. A person who has no share cannot release one, and a document by which a stranger purports to release is in truth a conveyance or nothing at all.
3. It must be in favour of a person who already has an interest in the same property. This is the defining condition, and it is what distinguishes a release from a gift or a sale.
4. It may be with or without consideration. A release for consideration is still a release, provided it operates by way of giving up a share among persons already interested.
5. No attestation is required by statute, though two witnesses are taken in practice and cost nothing.
6. The effect is a merger, not a transfer. The released share merges in the shares of the remaining co-owners, in proportion to their existing shares unless the deed provides otherwise, and nothing new is created.
7. It is irrevocable once executed and registered. A releasor who changes his mind must sue under Section 31 of the Specific Relief Act, 1963 on a ground on which the deed is void or voidable.
⚠ A release in favour of a stranger is not a release at all This is the one substantive trap, and it catches both names equally. Where the person in whose favour the deed is made has no pre existing interest in the property, the transaction cannot operate by extinguishment, because there is no share into which the released interest can merge. Such a document is construed according to its substance: a gift if there is no consideration, and a sale if there is. The consequences follow at once. A gift must be attested by two witnesses under Section 123 of the Transfer of Property Act, and a deed drawn as a release will usually not have been; and a sale attracts full conveyance duty, not the concessional release rate. Calling the instrument a release does not save either requirement, and the registering officer is not bound by the label. |
4. Where the Difference Actually Lies: Stamp Duty
The one place where the choice of word has a practical consequence is the State stamp schedule. Several States carry a separate article for a release or relinquishment, and many provide a concessional rate where the deed is between family members or co-heirs, as against the full conveyance rate. The wording of the article, and the class of relations it covers, differ from State to State.
- Some schedules use the word "release" and some "relinquishment", and a deed headed with the other word may be assessed under the general article rather than the concessional one.
- The concession is usually confined to a defined class of relations, and a release outside that class attracts the ordinary rate.
- Where consideration passes, some schedules charge the deed as a conveyance on the amount of the consideration, which removes the advantage of using a release at all.
- The registering officer applies the article, and an instrument he considers understamped is impounded under Section 33 of the Indian Stamp Act, 1899 and sent to the Collector under Section 38.
- Undervaluation is referred to the Collector under the State provision corresponding to Section 47A.
- So the State article must be read before the deed is drawn, and the deed headed to match it. This is drafting practice rather than law, but it is where the money is.
5. Release Compared With the Neighbouring Instruments
Release or relinquishment | Gift | Partition | |
What happens | One co-owner gives up his share; it merges in the shares of the others | The donor transfers property to the donee | The joint property is divided; each sharer takes a defined portion in severalty |
In whose favour | A person already interested in the same property | Anyone, including a stranger | Among the co-sharers themselves |
Number of sharers afterwards | Fewer sharers, the same property | Not applicable | The same sharers, each with a separate part |
Direction | One way: from the releasor to the others | One way: from donor to donee | Mutual: each gives up and receives |
Consideration | May be with or without | Must be without | Not required; an adjustment of existing rights |
Attestation | Not required by statute | Two witnesses, Section 123 | Not required by statute |
Acceptance | Not a statutory requirement | Essential, Section 122 | Not applicable |
Registration | Compulsory above Rs. 100, Section 17(1)(b) | Compulsory whatever the value, Section 17(1)(a) | Compulsory where the instrument effects the division |
Can it be oral? | In practice no, if it is to be proved; an unregistered writing cannot prove it | No, for immovable property | Yes; an oral partition is valid and a memorandum of it needs no registration |
6. Release of Things Other Than a Share
The wider sense of "release" covers transactions that have nothing to do with co ownership, and their registration treatment differs. It is worth separating them, because they are met under the same word.
What is released | Registration | Why |
A share in immovable property | Compulsory above Rs. 100, Section 17(1)(b) | A right in immovable property is extinguished |
A mortgage, on repayment | Compulsory, Section 17(1)(b) | The mortgagee's interest in the immovable property is extinguished |
A receipt endorsed on the mortgage deed acknowledging payment | Exempt, Section 17(2)(xi) | It acknowledges payment and does not purport to extinguish the mortgage |
A claim for money | Not registrable | No right in immovable property is affected |
An easement over immovable property | Compulsory above Rs. 100, Section 17(1)(b) | An easement is a right in immovable property |
A right under a contract | Not registrable, unless it affects immovable property | Ordinarily a matter of contract only |
A decree relating to immovable property | Compulsory, Section 17(1)(e) for an assignment; the decree itself is exempt under Section 17(2)(vi) | The assignment transfers an interest in immovable property |
7. Drafting the Deed
1. Read the State stamp article first, and head the deed with the word the article uses.
2. Recite the releasor's existing interest, and how he came by it, because the whole validity of the instrument depends on his having a subsisting share.
3. Recite the releasee's existing interest as well, since a release in favour of a person with none is construed as a gift or a sale.
4. State whether consideration passes, and if so how much, because the stamp treatment turns on it.
5. Use the language of extinguishment, that the releasor gives up, releases and relinquishes all his right, title and interest, rather than the language of transfer.
6. Take two attesting witnesses, although the statute does not require them, because if the deed is later construed as a gift, Section 123 will.
7. Register it within four months, under Section 23, and present it at the office of the sub district in which the property lies, under Sections 28 to 30.
8. Apply for mutation afterwards, remembering that the revenue entry confers no title of its own.
8. The Position Stated Shortly
1. Release and relinquishment are not defined in the Registration Act or the Transfer of Property Act, and in law they are the same instrument.
2. Both operate by extinguishing a right the executant already holds, and both fall within the word "extinguish" in Section 17(1)(b).
3. Registration is compulsory where the value is one hundred rupees or more, and optional below that under Section 18(a).
4. The releasor must have a subsisting interest, and the deed must be in favour of a person who already has an interest in the same property.
5. A release in favour of a stranger is construed as a gift if gratuitous and a sale if for consideration, with the attestation and duty consequences that follow.
6. A release may be with or without consideration, and needs no attestation by statute.
7. The effect is a merger of the released share in the shares of the others; nothing new is created.
8. The difference between the two words is one of usage: "release" is wider and covers a mortgage, a claim or an easement, while "relinquishment" is generally used of a share in inherited or joint family property.
9. The practical difference is in the State stamp schedule, which may carry separate articles or concessional rates for each, and the article must be read before the deed is drawn.
10. A release removes a sharer; a partition divides the property among the sharers. They are different transactions.