REG 081 Section 72 Appeal and Section 73 Application — Law of Registration Notes for Judiciary

The Section 72 Appeal and the Section 73 Application: Two Routes to the Registrar, and Why the Ground of Refusal Decides Which One Lies

When a Sub Registrar refuses to register a document, the aggrieved party has thirty days and two possible routes, and taking the wrong one is fatal. Everything turns on the ground of the refusal. If the refusal was on the ground that a person denies execution, the route is an application under Section 73, leading to an enquiry under Section 74, an order under Section 75, and, on refusal, a suit under Section 77. If the refusal was on any other ground, the route is an appeal under Section 72, and no Section 77 suit lies against the Registrar's order on it. Both periods are thirty days, both are strictly applied, and neither route decides title.

The two routes, from the ground of refusal to the final remedy

1. The Refusal

Sections 35(3) and 71, Registration Act, 1908, in substance

35(3). If any person by whom the document purports to be executed denies its execution, or is a minor, an idiot or a lunatic, or is dead and his representative or assign denies execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead.

71(1). Reasons for refusal to register to be recorded. Every Sub Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub district, shall make an order of refusal and record the reasons for such order in his Book No. 2, and endorse the words "registration refused" on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.

71(2). No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.

A refusal under Section 35(3) is mandatory. Where execution is denied, the officer has no discretion at all.
A refusal on any other ground is made under Section 71, and the reasons must be recorded in Book 2 and endorsed on the document.
A copy of the reasons must be given free and without delay to any person executing or claiming under the document. That copy is what tells the party which route to take.
The refusal is partial where execution is denied, being confined to the person denying, and the document may be registered as to the others.
Once "registration refused" is endorsed, no officer may accept the document unless it is directed to be registered under the provisions that follow.
One ground is outside Section 71 altogether: a refusal on the ground that the property is not situate within the officer's sub district. That is dealt with by the rules about place in Sections 28 to 30.

2. The Section 72 Appeal

Section 72, Registration Act, 1908, in substance

72(1). Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub Registrar refusing to admit a document to registration, whether the registration of such document is compulsory or optional, to the Registrar to whom such Sub Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.

72(2). If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration.

1. It lies against a refusal on any ground other than denial of execution. That is the defining condition.

2. It goes to the Registrar to whom the Sub Registrar is subordinate, and not to a court.

3. The period is thirty days from the date of the order, and the appeal must be presented within it.

4. The Registrar may reverse or alter the order. His powers on an appeal are those of a superior administrative authority.

5. If he directs registration, the document must be presented within thirty days of his order.

6. Registration then relates back to the date of first due presentation, by Section 72(2).

7. If he refuses, a suit lies under Section 77. The section applies in terms where the Registrar refuses to order a document to be registered under section 72 or section 76, so the suit is available on this route as much as on the other. What Section 76(2) bars is a further appeal from the Registrar's order, not a suit.

3. The Section 73 Application

Sections 73, 74 and 75, Registration Act, 1908, in substance

73(1). When a Sub Registrar has refused to register a document on the ground that any person by whom it purports to be executed, or his representative or assign, denies its execution, any person claiming under such document, or his representative, assign or agent authorised as aforesaid, may, within thirty days after the making of the order of refusal, apply to the Registrar to whom such Sub Registrar is subordinate in order to establish his right to have the document registered.

73(2). Such application shall be in writing and shall be accompanied by a copy of the reasons recorded under section 71, and the statements in the application shall be verified by the applicant in manner required by law for the verification of plaints.

74. Procedure of Registrar on such application. In such case, and also where such denial as aforesaid is made before a Registrar in respect of a document presented for registration to him, the Registrar shall, as soon as conveniently may be, enquire (a) whether the document has been executed; (b) whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration.

75(1). If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered.

75(2). If the document is duly presented for registration within thirty days after the making of such order, the registering officer shall obey the same and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration.

75(3). The Registrar may, for the purpose of any enquiry under section 74, summon and enforce the attendance of witnesses, and compel them to give evidence, as if he were a Civil Court, and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure.

The application must be in writing, accompanied by the copy of the reasons under Section 71, and verified as a plaint is verified.
The enquiry under Section 74 has two limbs: whether the document was executed, and whether the requirements of the law have been complied with.
The Registrar has the powers of a civil court as to witnesses under Section 75(3), and may award costs recoverable as under the Code of Civil Procedure.
Section 74 also covers a denial made before the Registrar himself, where the document was presented to him, so that the same enquiry follows without an intermediate application.
Relation back under Section 75(2) is to the date of first due presentation, which is a different and narrower rule from Section 47, and is what protects the party against intervening transactions.

4. The Two Compared

	Section 72 appeal	Section 73 application
When it lies	Refusal on any ground other than denial of execution	Refusal on the ground that a person by whom the document purports to be executed denies its execution
The refusal	Under Section 71, with reasons recorded in Book 2	Under Section 35(3), the officer having no discretion
Who may move	Any person claiming under the document, or his representative or agent	The same
Form	An appeal, presented to the Registrar	A written application, verified as a plaint, with a copy of the reasons annexed
Time	Thirty days from the order of refusal	Thirty days from the order of refusal
The enquiry	Whether the Sub Registrar's ground was good: language, description, presentation, fees, time	Whether the document was in fact executed, and whether the requirements of the law were complied with, Section 74
Powers of the Registrar	To reverse or alter the order, Section 72(1)	The powers of a civil court as to witnesses, and to award costs, Section 75(3)
The outcome	The order is reversed or altered	If satisfied, he orders the document to be registered, Section 75(1)
After the order	Present within thirty days; registration relates back to first due presentation, Section 72(2)	Present within thirty days; registration relates back to first due presentation, Section 75(2)
If the Registrar refuses	Reasons recorded under Section 76, and a suit under Section 77 within thirty days; Section 76(2) bars a further appeal, not a suit	The same: reasons under Section 76, and a suit under Section 77 within thirty days

5. Refusal by the Registrar, and the Suit

Sections 76 and 77, Registration Act, 1908, in substance

76(1). Order of refusal by Registrar. Every Registrar refusing (a) to register a document except on the ground that the property to which it relates is not situate within his district or that the document ought to be registered in the office of a Sub Registrar, or (b) to direct the registration of a document under section 72 or section 75, shall make an order of refusal and record the reasons for such order in his Book No. 2, and, on application made by any person executing or claiming under the document, shall without unnecessary delay give him a copy of the reasons so recorded.

76(2). No appeal lies from any order by a Registrar under this section, or section 72.

77(1). Suit in case of order of refusal by Registrar. Where the Registrar refuses to order a document to be registered, under section 72 or section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute 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, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree.

77(2). The provisions contained in sub sections (2) and (3) of section 75 shall, mutatis mutandis, apply to all documents presented for registration in accordance with the provisions of this section.

Section 76 obliges the Registrar to record reasons and to give a copy, exactly as Section 71 obliges the Sub Registrar.
Section 77 gives a suit, in the civil court within whose local limits the office is situate, and not where the property lies.
The period is thirty days from the order of refusal, prescribed by the Act itself and strictly applied.
The decree directs registration, if the document is presented within thirty days of the decree.
Section 77(2) applies Section 75(2) and (3), so the registration that follows relates back to the first due presentation.
The issue in the suit is narrow. It is whether the document was executed and should be registered, and nothing about title or the validity of the transaction.

⚠ The thirty day periods are short, and none of them can be extended in the ordinary way

There are three separate periods of thirty days in this scheme: to appeal under Section 72, to apply under Section 73, and to sue under Section 77; and a fourth, to present the document after an order or decree directing registration. Each is prescribed by the Registration Act itself, and the ordinary indulgence under Section 5 of the Limitation Act, 1963 has not been treated as available for the Section 77 period. A party who loses the period is thrown back on a suit for specific performance of the underlying contract, which is a different suit, with different issues, a heavier burden, and its own limitation under Article 54. A refusal must therefore be acted on at once, and the first step is to obtain the copy of the reasons that Section 71 obliges the officer to give free of charge.

6. Choosing the Route

The Sub Registrar refused because	The route
An executant appeared and denied execution	Section 73 application, then Sections 74 to 76, then a Section 77 suit
An executant is a minor, an idiot or a lunatic	Section 73; Section 35(3)(b) is in the same sub section
An executant is dead and his representative denies execution	Section 73; Section 35(3)(c)
The executants simply did not appear	Section 72, since no denial was made; and consider Sections 36 to 38
The document was presented out of time	Section 72; and consider Sections 25 and 34 on condonation
The document was presented by a person not competent under Section 32	Section 72
The description of the property was insufficient under Sections 21 and 22	Section 72
The document was not in a language the officer understands, Section 19	Section 72
The fee was not paid, Section 80	Section 72
The property is not within his sub district	Neither. Section 71 excepts this ground; present at the proper office under Sections 28 to 30
The document was not duly stamped	Neither. The officer impounds under Section 33 of the Indian Stamp Act, 1899; clear the duty and present again within time

7. What Neither Route Decides

Not title. The Registrar's enquiry under Section 74 is confined to the fact of execution and compliance with the requirements of the law.
Not the validity of the transaction. Whether the deed was obtained by fraud, whether the executant had capacity, and whether the vendor had anything to convey, are all for a civil court in a properly constituted suit.
Not res judicata on title. A decree in a Section 77 suit binds the parties on what it decided, and the question of title was neither raised nor decided.
Nor is the reverse true. A registered document is not validated by having been registered through this machinery, and remains open to every challenge.
And the officer cannot undo a registration. Once a document is registered, the Sub Registrar is functus officio, Satya Pal Anand v. State of M.P., (2016) 10 SCC 767, and the only route is a suit under Section 31 of the Specific Relief Act, 1963.

8. The Position Stated Shortly

1. A Sub Registrar refusing registration must record his reasons in Book 2 under Section 71 and give a free copy on application.

2. A refusal on the ground of denial of execution is made under Section 35(3), and the officer has no discretion.

3. Where the refusal is on any ground other than denial of execution, an appeal lies to the Registrar under Section 72 within thirty days, and he may reverse or alter the order.

4. Where the refusal is on the ground of denial of execution, an application lies to the Registrar under Section 73 within thirty days, in writing, verified, and with the copy of the reasons annexed.

5. On such an application the Registrar enquires under Section 74 whether the document was executed and whether the requirements of the law were complied with.

6. He has the powers of a civil court as to witnesses and may award costs, Section 75(3).

7. If satisfied he orders registration under Section 75(1), and if the document is presented within thirty days the registration relates back to the first due presentation, Section 75(2).

8. The same relation back applies to an order under Section 72(2).

9. A Registrar refusing must record reasons under Section 76, and a suit lies under Section 77 within thirty days in the civil court where the office is situate.

10. A suit under Section 77 lies against a Registrar's refusal in either line of cases, because the section speaks of a refusal under section 72 or section 76; Section 76(2) bars a further appeal, not a suit.

11. All the periods are thirty days and are strictly applied.

12. Neither route decides title, and neither validates the transaction.