Transfer of Property Act (TPA)
The Transfer of Property Act and the Registration Act, 1908: Compulsory Registration, and the Effect of Not Registering
The two Acts work as one. The Transfer of Property Act says which transactions require a registered instrument; the Registration Act says which instruments must be registered, how, within what time, and what happens if they are not. Between them they produce the rule that decides a great many property disputes: an instrument requiring registration and not registered does not affect the immoveable property comprised in it, and cannot be received in evidence of the transaction — though it may still be used for the limited purposes the proviso to section 49 preserves.
1. Which Transfers Require a Registered Instrument
Transfer | Provision of the Act | When a registered instrument is required |
|---|---|---|
Sale | Section 54 | Tangible immoveable property of the value of ₹100 or more, and a reversion or other intangible thing, in every case. Below ₹100, a registered instrument or delivery |
Mortgage | Section 59 | Where the principal money secured is ₹100 or more, for every kind of mortgage except a mortgage by deposit of title deeds. Below ₹100, a registered instrument or, except for a simple mortgage, delivery |
Lease | Section 107 | A lease from year to year, or for a term exceeding one year, or reserving a yearly rent. All other leases, by a registered instrument or an oral agreement with delivery of possession |
Gift | Section 123 | For immoveable property, always — whatever the value — signed by the donor and attested by two witnesses. For moveable property, a registered instrument or delivery |
Exchange | Section 118 | In the manner provided for a transfer of such property by sale |
Actionable claim | Section 130 | A signed writing is required, but not registration |
2. Section 17 of the Registration Act
The principal clauses of section 17(1) (a) Instruments of gift of immoveable property. (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 immoveable property. (c) Non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest. (d) Leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent. (e) Non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree, order or award purports or operates to create, declare, assign, limit or extinguish any such right, title or interest of the value of ₹100 and upwards. Section 17(1A) — the contracts referred to in section 53A of the Transfer of Property Act, inserted by the amendment of 2001, must be registered if the defence of part performance is to be available. |
2.1 The principal exemptions in section 17(2)
- Wills, which are governed by their own law and are optionally registrable.
- Any decree or order of a court, except one expressed to be made on a compromise and comprising immoveable property other than that which is the subject matter of the suit.
- Grants of immoveable property by the Government.
- Leases not exceeding one year and not reserving a yearly rent.
- Instruments of partition made by a revenue officer, and certificates of sale granted to a purchaser at a court sale, among the other cases the sub-section lists.
3. Section 49: The Effect of Non-Registration
Section 49, Registration Act, 1908 No document required by section 17, or by any provision of the Transfer of Property Act, to be registered shall — (a) affect any immoveable property comprised in it; (b) confer any power to adopt; or (c) be received as evidence of any transaction affecting such property or conferring such power — unless it has been registered. Proviso — an unregistered document affecting immoveable property and required to be registered may be received as evidence of a contract in a suit for specific performance, or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, or as evidence of any collateral transaction not required to be effected by a registered instrument. |
Use of an unregistered document | Permitted? |
|---|---|
To prove the transfer of the immoveable property | No — the document affects no immoveable property |
To prove the transaction in evidence | No, so far as the transaction is one required to be effected by a registered instrument |
To prove a contract in a suit for specific performance | Yes — within the proviso |
To prove part performance under section 53A | Yes — within the proviso; but note that the agreement itself must now be registered for section 53A to be available at all |
To prove a collateral transaction not required to be effected by a registered instrument | Yes — for example, to prove the nature of possession, or the purpose of a payment, or a person's character as a tenant |
To prove the terms of a lease that required registration | No, though the tenancy itself may be established by conduct and be governed by section 106 |
4. The Other Sections That Matter
Section | Provision | Why it matters under the Act |
|---|---|---|
23 | A document must be presented for registration within four months of its execution | A deed presented too late cannot be registered, and the transaction fails for want of the prescribed mode |
25 | The Registrar may, on sufficient cause and on payment of a fine, admit a document presented within a further four months | The outer limit is eight months; beyond that there is no cure |
47 | A registered document operates from the time it would have commenced to operate if no registration had been required — that is, from execution | Priority under section 48 of the Act is measured from execution, so registering first does not put a later deed ahead |
48 | A registered document relating to property takes effect against any oral agreement relating to the same property, unless the agreement is accompanied by delivery of possession and amounts to a valid transfer | It settles the contest between a registered deed and an earlier oral arrangement |
50 | Certain registered documents relating to land take effect against unregistered documents relating to the same property | The register prevails over what is not on it |
60 | The certificate of registration endorsed on the document is admissible for the purpose of proving that the document has been duly registered | Proof of compliance |
5. Registration and Notice
Registration does more than validate. Under Explanation I to section 3 of the Act, where a transaction relating to immoveable property is required by law to be effected by a registered instrument, any person acquiring the property after the instrument has been registered is deemed to have notice of it from the date of registration — provided the instrument was duly registered in the manner prescribed and its particulars were correctly entered in the indexes. A purchaser who does not search the register is therefore fixed with what the search would have shown.
6. The Practical Sequence
From execution to effect One. The instrument is executed — signed, and attested where the Act requires attestation. Two. It is presented for registration within four months, or within a further four months on payment of a fine. Three. On registration, it operates from the date of execution by force of section 47. Four. From the date of registration it is notice to everyone who acquires the property afterwards. And if it is never registered, it affects no immoveable property and proves no transaction — but it may still prove a contract, part performance, or a collateral transaction. |
7. Landmark Cases
📖 Suraj Lamp & Industries (P) Ltd. v. State of Haryana, (2012) 1 SCC 656 Held: Immoveable property can be transferred or conveyed only by a registered deed of conveyance. Transactions carried out by an agreement to sell with a general power of attorney and a will convey no title and do not amount to transfers of immoveable property, though a genuine agreement may be enforced by specific performance and a genuine power of attorney remains valid for its own purposes. Ratio: Only a registered conveyance passes title to immoveable property; devices avoiding registration transfer nothing. |
📖 Ram Saran Lall v. Mst. Domini Kuer, AIR 1961 SC 1747 Held: A sale of immoveable property requiring registration is not complete until the deed is registered. Section 47 of the Registration Act does not say when a sale is to be deemed complete; it applies to a document only after it has been registered, and its function is to fix the date from which the registered document operates. Ratio: Registration completes the transfer; section 47 then relates its operation back to the date of execution. |
📖 Anthony v. K.C. Ittoop & Sons, (2000) 6 SCC 394 Held: An unregistered instrument of lease, where registration was compulsory, cannot create the lease and cannot be received in evidence to prove it. But the conduct of the parties — delivery of possession and the payment and acceptance of rent — may bring a tenancy into existence by implication, which operates as a month-to-month lease under section 106; and the document may be looked at for collateral purposes. Ratio: Non-registration destroys the instrument, not necessarily the relationship: conduct may create a periodic tenancy. |
8. Related Topics and Provisions
- Execution vs Registration of a Sale Deed — the two dates and what each decides
- Registered Subsequent Transfer vs Earlier Rights — priority and registration
- Notice under Section 3 — registration as constructive notice
- Doctrine of Part Performance, Section 53A — and the amendment of 2001
- Sections 54, 59, 107, 118 and 123, TPA — the transactions requiring a registered instrument
- The Transfer of Property Act and Other Statutes — the wider map