Law of Registration
The Registration Act and the Transfer of Property Act: One Says How a Transfer Is Made, the Other How It Is Recorded
The Transfer of Property Act, 1882 is the substantive law. It says what a sale, a mortgage, a lease, an exchange and a gift are, and it prescribes the mode by which each is made. The Registration Act, 1908 is procedural. It says which documents must be registered, how the registration is done, and what follows if it is not. They meet at two points. Section 17 of this Act and the transfer sections of that one together decide what must be registered; and Section 49 bars a document required to be registered "by section 17 or by any provision of the Transfer of Property Act, 1882", which is how a failure under the older Act is enforced through the newer one.
The two Acts, where each speaks, and the provisions that join them
1. What the Transfer of Property Act Requires
Transfer of Property Act, 1882, the modes of transfer 54. Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. 59. Mortgage when to be by assurance. Where the principal money secured is one hundred rupees or upwards, a mortgage, other than a mortgage by deposit of title deeds, can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. 107. Leases how made. A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. 118. Exchange how effected. A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale. 123. Transfer how effected. For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. |
- Each mode carries its own threshold. One hundred rupees for sale and for mortgage; the year for a lease; no threshold at all for a gift.
- Attestation is a requirement of that Act, not of this one. A mortgage under Section 59 and a gift under Section 123 must be attested by at least two witnesses.
- Some transfers may still be made without writing. A sale below one hundred rupees by delivery, a short lease by oral agreement with delivery of possession, and a mortgage by deposit of title deeds under Section 58(f).
- Section 53A is the doctrine of part performance, and since the amendment made by Act 48 of 2001 the contract it protects must itself be a registered one.
2. What the Registration Act Requires
- Section 17 lists the documents of which registration is compulsory, chiefly non testamentary instruments creating, declaring, assigning, limiting or extinguishing any right, title or interest in immovable property of the value of one hundred rupees and upwards, and leases of immovable property from year to year, for a term exceeding one year, or reserving a yearly rent.
- Section 18 lists the documents of which registration is optional, including wills.
- Sections 23 to 26 fix the time, four months from execution under Section 23, with a further four months on fine under Section 25.
- Sections 28 to 31 fix the office, by the situation of the property.
- Sections 32 to 35 govern presentation, appearance and admission of execution.
- Sections 51 to 61 govern the register, the copying, the endorsements and the certificate.
- Sections 47 to 50 supply the consequences, as to the time from which a registered document operates, the bar on an unregistered one, and priority.
3. The Two Compared
Transfer of Property Act, 1882 | Registration Act, 1908 | |
The subject | The substantive law of transfer inter vivos | The procedure for registering documents, and the consequence of not doing so |
What it prescribes | The mode: Section 54 for sale, Section 59 for mortgage, Section 107 for lease, Section 118 for exchange, Section 123 for gift | The process: presentation, appearance, admission, copying, endorsement, certificate |
Attestation | Required for a mortgage, Section 59, and a gift, Section 123, by at least two witnesses | No general requirement. The Act deals with identifying witnesses, Section 58(1)(b) |
When registration is required | It says so itself, for each mode of transfer | Section 17 lists the documents of which registration is compulsory |
Consequence of not registering | The transfer is not effected in the mode the Act requires | Section 49: the document does not affect the property and is not evidence of the transaction |
The link | Section 49 covers documents required to be registered by the Transfer of Property Act as well as by Section 17 | Which is how a breach of Section 54, 59, 107 or 123 is enforced |
Notice | Explanation I to Section 3: a person is deemed to have notice of a registered instrument | Registration is the act that sets that Explanation working |
Part performance | Section 53A, which requires a written contract, and since 2001 a registered one | The second saving in the proviso to Section 49 preserves Section 53A evidence |
Priority | Section 48: rights created at different times, the later subject to the earlier | Sections 48 and 50 of this Act, against an oral agreement and against an unregistered document |
What it does not do | Prescribe where or how a document is registered | Make valid a transfer the Transfer of Property Act does not recognise |
4. The Points of Contact
1. Section 49 expressly incorporates the older Act. It bars a document required to be registered "by section 17 or by any provision of the Transfer of Property Act, 1882".
2. So the lists are not identical, and both must be checked. A document may fall outside Section 17 and still be caught, because the Transfer of Property Act requires a registered instrument for that mode of transfer.
3. The proviso to Section 49 preserves Section 53A, in its second saving, so an unregistered document may be evidence of part performance.
4. Explanation I to Section 3 of the Transfer of Property Act turns registration into notice, subject to the conditions it lays down as to the manner of registration and entry in the indexes.
5. Section 48 of the Registration Act protects the mortgage by deposit of title deeds defined in Section 58(f) of the Transfer of Property Act, against a mortgage deed subsequently executed and registered.
6. Section 47 of this Act supplies the date from which the registered instrument operates, which is the date the substantive law would have given it had registration not been required.
7. Section 17(2) of this Act exempts a number of documents which would otherwise be caught, and those exemptions have to be read together with the transfer sections.
5. Where the Two Diverge
The document | Under the Transfer of Property Act | Under the Registration Act |
Sale of tangible immovable property below one hundred rupees | May be made by delivery of the property, Section 54 | Registration not compulsory; Section 17(1)(b) has the same threshold |
Lease for eleven months, no yearly rent reserved | May be made orally with delivery of possession, Section 107 | Exempt by the proviso to Section 17(1)(d) |
Mortgage by deposit of title deeds | Needs no instrument at all, Section 58(f) | Nothing to register; and the proviso to Section 48 protects it against a later registered mortgage deed |
A will | Outside this Act altogether; it is a testamentary disposition | Optional, Section 18(e) |
An agreement to sell | Creates no interest in the property, Section 54 | Not compulsorily registrable as such; the proviso to Section 49 saves it as evidence of a contract |
A contract for part performance under Section 53A | Must be in writing, and since 2001 must be registered | Where unregistered, the second saving in the proviso to Section 49 applies |
A decree or order of court | Not a transfer by act of parties | Exempt by Section 17(2)(vi), except a compromise decree comprising property outside the subject matter of the suit |
6. How to Use Them Together
⚠ The order of the questions decides the answer Take the questions in this order and the two Acts fall into place. First, what kind of transfer is this, and what does the Transfer of Property Act require for it? That settles whether a registered instrument is needed, and whether attestation is needed as well. Second, does Section 17 of this Act independently require registration? Either source will do, and Section 49 catches both. Third, was the instrument duly stamped, because Section 35 of the Indian Stamp Act, 1899 forbids an instrument not duly stamped from being registered at all. Fourth, was it registered, at the proper office under Sections 28 to 30 and within the time allowed by Sections 23 to 25? Fifth, if it was not, what does Section 49 do to it, and do any of the three savings in the proviso help? And sixth, if it was, from what date does it operate, which is Section 47. |
7. The Common Errors
- Supposing that Section 17 is the only source of the requirement. Section 49 catches a document required to be registered by the Transfer of Property Act as well.
- Supposing that the Registration Act requires attestation. It does not; Sections 59 and 123 of the Transfer of Property Act do, for a mortgage and a gift.
- Supposing that registration validates a transfer the substantive law does not recognise. It does not.
- Supposing that an agreement to sell transfers an interest if registered. Section 54 says in terms that it does not.
- Supposing that Section 53A still protects an unregistered contract. The amendment made by Act 48 of 2001 requires the contract itself to be registered.
- Supposing that notice comes from the Registration Act. It comes from Explanation I to Section 3 of the Transfer of Property Act.
- Supposing that the thresholds are the same everywhere. One hundred rupees for sale and mortgage, the year for a lease, and nothing at all for a gift.
8. The Position Stated Shortly
1. The Transfer of Property Act, 1882 is substantive and prescribes the mode of each transfer; the Registration Act, 1908 is procedural and prescribes how documents are registered.
2. Sections 54, 59, 107, 118 and 123 of the older Act require a registered instrument for sale above one hundred rupees, mortgage above one hundred rupees, a lease from year to year or exceeding one year or reserving a yearly rent, an exchange, and a gift.
3. Attestation by two witnesses is a requirement of Sections 59 and 123 of that Act, not of this one.
4. Section 17 of this Act independently lists the documents of which registration is compulsory.
5. Section 49 bars a document required to be registered by Section 17 or by any provision of the Transfer of Property Act, so both sources must be checked.
6. The three savings in the proviso to Section 49 include evidence of part performance under Section 53A, which since 2001 requires the contract itself to be registered.
7. Explanation I to Section 3 of the Transfer of Property Act turns registration into constructive notice.
8. The proviso to Section 48 of this Act protects a mortgage by deposit of title deeds, defined in Section 58(f) of that Act, against a later registered mortgage deed.
9. Section 47 of this Act supplies the date from which a registered instrument operates, being the date the substantive law would have given it.
10. Neither Act validates what the other forbids: registration does not cure a transfer the Transfer of Property Act does not recognise.