Section 47 and Section 49: When a Registered Document Speaks, and What an Unregistered One Cannot Do

The two sections sit a page apart and are constantly confused, though they never operate on the same document at the same moment. Section 47 applies only after registration has happened, and answers a question of date: the registered document operates from the time it would have operated if registration had never been required, which is ordinarily the date of execution. Section 49 applies only where the document has not been registered, and answers a question of effect: the document does not affect the property, does not confer a power to adopt, and is not receivable as evidence of the transaction. One presupposes the registration that the other penalises the absence of.

The two sections, the question each answers, and the narrower relation back in Section 75(2)

1. Section 47

• It is a rule about the date, not about validity. The section assumes a document that has been registered and asks only from what moment it speaks.
• For most deeds that moment is execution. A sale deed executed in January and registered in April ordinarily operates from January.
• For a will, that moment is death. A will operates from the testator's death whether registered or not, because that is when it would have commenced to operate if registration had never been in question.
• It resolves priority between two registered deeds. Where the same vendor executes two deeds and both are registered, priority is worked out from the dates of execution, not from the order in which the two reached the registry.
• It protects against death between execution and registration. If the executant dies after execution and the document is afterwards registered, the registration is good and the document operates from the earlier date.
• It does not cure a document that was never validly executed. Registration adds nothing to a deed that is a forgery, or that was executed by a person without title or capacity.
• It does not fix the date of payment or of delivery of possession. Those are questions of fact, decided on the evidence, and the deed's recitals are not conclusive.

2. The Qualification the Supreme Court Has Put on Section 47

• The distinction is between the completion of the transaction and the operation of the document. Section 47 governs the second and leaves the first to the substantive law.
• So the section is not a licence to treat an unregistered deed as operative. Until the document is registered, there is nothing for Section 47 to act upon.
• Once registration is complete, the operation relates back, and the consequences of the deed are worked out from the date of execution.

3. Section 49

• The bar has three limbs, and they are cumulative: the document does not affect the property, does not confer a power to adopt, and is not evidence of the transaction.
• The proviso has three savings, and they are the whole of the exception: evidence of a contract in a suit for specific performance, evidence of part performance under Section 53A, and evidence of a collateral transaction.
• The reference in the proviso is now read as the Specific Relief Act, 1963. The section as enacted referred to Chapter II of the Specific Relief Act, 1877, which the 1963 Act replaced.
• "Collateral" is narrow. A collateral transaction is one independent of the transfer itself. The nature of possession, the existence of a relationship of landlord and tenant, or the rate of rent may sometimes be proved; the transfer of title never can.
• The section applies only to documents required to be registered, by Section 17 or by the Transfer of Property Act. An optionally registrable document loses nothing by remaining unregistered.
• It bars the document, not the transaction. Where the law permits a transfer to be made without writing, as by delivery of possession, the transfer may still be proved by other evidence.

4. The Two Compared

5. The Third Relation Back: Section 75(2)

6. How They Work Together

1. Ask first whether the document was required to be registered. If it was not, Section 49 never comes into play and the document is fully effective unregistered.

2. If it was required, ask whether it was registered. If it was not, Section 49 bars it, subject only to the three savings in the proviso.

3. If it was registered, Section 49 has no further work to do. The question then becomes one of date, and Section 47 answers it.

4. Section 47 will ordinarily carry the document back to execution, which is what makes a four month registration under Section 23 harmless.

5. Where the registration came about through an order or decree, add Section 75(2), which relates the registration back to the first due presentation.

6. Where there are two competing registered deeds, priority follows the dates of execution, by Section 47 read with Section 48.

7. Where a registered deed competes with an unregistered one, Section 50 gives the registered one priority, subject to what that section itself excepts.

7. The Common Errors

• Supposing that Section 47 makes registration unnecessary. It does the opposite: it applies only to a document that has been registered.
• Supposing that Section 47 completes the transfer from the date of execution. Ram Saran Lall holds that where a registered instrument is required, the transaction is complete only on registration; Section 47 dates the operation of the document, not the completion of the sale.
• Supposing that Section 49 bars every unregistered document. It bars only those required to be registered.
• Supposing that "collateral purpose" lets in the transfer itself. It does not. The saving is for transactions collateral to the transfer, not for the transfer.
• Supposing that Section 49 can be reached while the instrument is unstamped. It cannot. Section 35 of the Indian Stamp Act, 1899 excludes the instrument for any purpose until the duty and penalty are paid.
• Supposing that Section 47 and Section 75(2) say the same thing. One is about the date of operation, the other about the date of registration.
• Supposing that Section 49 affects a will. A will is optionally registrable under Section 18, so Section 49 has no application to it.

8. The Position Stated Shortly

1. Section 47 says a registered document operates from the time it would have operated if registration had never been required, and not from the time of registration.

2. That time is ordinarily the date of execution; for a will, it is the testator's death.

3. Section 47 applies only after registration has taken place, and adds nothing to a document never validly executed.

4. Ram Saran Lall v. Mst. Domini Kuer confines the section to the operation of the document: where a registered instrument is required, the transaction is complete only on registration.

5. Section 49 says a document required by Section 17 or by the Transfer of Property Act to be registered does not affect the property, does not confer a power to adopt, and is not evidence of the transaction, unless registered.

6. The proviso saves three things: evidence of a contract in a suit for specific performance, evidence of part performance under Section 53A, and evidence of a collateral transaction.

7. Section 49 does not touch an optionally registrable document, which is fully effective unregistered.

8. Section 47 is a question of date; Section 49 a question of effect; and the two never operate on the same document at the same time.

9. Section 75(2), applied to a decree by Section 77(2), is a third and narrower relation back, and fixes the date of registration rather than the date of operation.

10. No question under either section can be reached while the instrument is not duly stamped, because Section 35 of the Indian Stamp Act, 1899 shuts it out for every purpose until the duty and penalty are paid.