17. Documents of which registration is compulsory.—(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—
instruments of gift of immovable property;
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;
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; and
leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates 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:] Provided that the 25
[State Government] may, by order published in the 26
[Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.]
Nothing in clauses (b) and (c) of sub-section (l) applies to—
any composition deed; or
any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
any endorsement upon or transfer of any debenture issued by any such Company; or
[any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
any decree or order of a Court 29
[except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or
any grant of immovable property by 30
any instrument of partition made by a Revenue-Officer; or
any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or
any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer. 32
[Explanation.—A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.]
Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered. State Amendments Andhra Pradesh: In section 17,—
in sub-section (1),—
for clause (d) the following shall be substituted, namely:— “(d) leases of immovable property;”
after clause (e) but before the proviso, the following clauses shall be inserted, namely:— “(f) any decree or order or award or a copy thereof passed by a civil court on consent of the defendants or on circumstantial evidence but not on the basis of any instrument which is admissible in evidence under section 35 of the Indian Stamp Act, 1899 (2 of 1899), such as registered title deed produced by the plaintiff where such decree or order or award purports or operate to create, declare, assign, limit, 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; and
agreement of sale of immovable property of the value of one hundred rupee and upwards;”
in sub-section (2),—
in clause (v), for the words “any document not in itself creating”, the words “any document except an agreement of sale as mentioned in clause (g) of sub-section (1) not in itself creating”, shall be substituted,
in clause (vi), for the words “any decree or order of a court”, the words “any decree or order of a court, not being a decree or order or award falling under clause (f) of sub-section (1)”, shall be substituted,
the Explanation shall be omitted. [Vide Andhra Pradesh Act 4 of 1999 (w.e.f. 1-4-1999)]. Gujarat: In section 17,—
in sub-section (1), after clause (a), insert as under:— “(aa) instruments which purport or operate to effect any contract for transfer of any immovable property;”
after sub-section (1), insert as under: “(1A) The provisions of section 23 shall apply to an instrument referred to in clause (aa) of sub-section (1) and executed before the commencement of the Registration (Gujarat Amendment) Act, 1982 as if in that section for the words “from the date of its execution” the words, figures and letters “from the 1st March, 1982” has been substituted.”
in sub-section (2), delete Explanation. [Vide Gujarat Act 7 of 1982, sec. 2 (w.e.f. 18-12-1981)]. Kerala: In sub-section (2) omit clauses (ix) and (x). [Vide Kerala Act 7 of 1968, sec. 2 (w.e.f. 22-2-1968)]. Maharashtra: In sub-section (2), in clause (x),— (a) after the words and figures “Agriculturists’ Loans Act, 1884”, insert “or under the Bombay Non-Agriculturists’ Loans Act, 1928”;
for the words “under that Act”, substitute “under either of those Acts”. [Vide Maharashtra Act 19 of 1960, sec. 2 (w.e.f. 24-10-1960)]. Pondicherry: In sub-section (3), for the words “the first day of January, 1872”, substitute the words “the 9th day of January, 1969”. [Vide Pondicherry Act 17 of 1970, sec. 2 (w.e.f. 1-11-1970)]. Rajasthan: In section 17(2) at the end of clause (xii), substitute “or”, insert clause (xiii) as under: “(xiii) any instrument referred to in sub-section (5) of section 89.” [Vide Rajasthan Act 16 of 1976, sec. 2 (w.e.f. 13-2-1976)].
in sub-section (1), after clause (e) and before the proviso, the following clauses shall be added, namely:— “(f) agreement to sell immovable property possession whereof has been or is handed over to the purported purchaser;
irrevocable power of attorney relating to transfer of immovable property in any way;” and
in sub-section (2), the existing Explanation shall be omitted. [Vide Rajasthan Act 18 of 1989, sec. 2 (w.e.f. 18-9-1989)]. Tamil Nadu: In section 17, in sub-section (1), after clause (e), the following clause shall be added, namely:— “(f) instruments of agreement relating to construction of multi unit house or building on land held by several persons as referred to in clause (i) under Article 5 of Schedule I to the Indian Stamp Act, 1899 (2 of 1899).” [Vide Tamil Nadu Act 38 of 1987, sec. 3 (w.e.f. 1-1-1988)]. Uttar Pradesh: In section 17,—
in sub-section (1)—
in clauses (b) and (e) omit the words “of the value of one hundred rupees and upwards”,
after clause (e), insert as under— “(f) any other instrument required by any law for the time being in force, to be registered”,
in sub-section (2)—
in clause (v), after the words “any document” occurring in the beginning, insert the words “other than contract for sale”, and omit the words “of the value of the one hundred rupees and upwards”,
in sub-section (3), after the words “by a will“, insert the words “and an instrument recording adoption of a child executed after the first day of January, 1977”. [Vide Uttar Pradesh Act 57 of 1976, sec. 32 (w.e.f. 1-1-1977)]. COMMENTS
An instrument of gift of immovable property requires registration under this Act, whatever be the value of the property; Charan v. Sucha, (1921) 4 Lah LJ 7.
The words 'create', 'limit' or 'extinguish' and 'right', 'title' or 'interest' imply a definite change of legal relation to the property by an expression of will embodied in the document. The word 'declare' is ejusdem genesis with the words 'create', 'assign' or 'limit'. It implies a declaration of will, not a mere statement of a fact; Sakharan v. Madan, (1881) 5 Bom 232 approved by Privy Council in Bageshwari Charan v. Jagarnath Kuari, (1931) 59 IA 130, wherein it stated: "The distinction is between a mere recital of a fact and something which in itself creates a title." When it is necessary to determine whether an instrument other than a deed of gift purports or operates to create an interest of the value of Rs. 100 or upwards in immovable property within the meaning of section 17(1)(b) the test of value is the consideration stated in the instrument; Nana v. Anant, (1877) 2 Bom 353. A deposit of title deeds with the creditor by the debtor with the intent to create a security implies in law a contract between the parties to create a mortgage and no registered instrument is required under section 59 of the Transfer of Property Act as in other case of mortgage. But if the parties choose to reduce the contract to writing, this implication of law is excluded by their express bargain and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential in the creation of the mortgage. In such a case the document which constitutes the bargain regarding security requires registration under section 17 of the Act as a non-testamentary instrument creating interest in immovable property where the value is Rs. 100 or upwards; United Bank of India Ltd. v. Lakhram Sonaram & Co., AIR 1965 SC 1591. An instrument of partition of immovable property requires registration as it declares an interest in immovable property provided, however, the value of the interest so declared is Rs. 100 or upwards; Siromoni v. Hemkumar, AIR 1968 SC 1299. But a writing which merely states that there has in time past been a partition is not a declaration of will but a mere statement of fact and it does not require registration; Venkataraju v. Yudhkondalu, AIR 1958 AP 147.
The term 'consideration' used in this clause is a technical term. It implies that the person to whom the money is paid himself declares, limits or extinguishes his interest in immovable property in consideration of such payment; Shidlingapa v. Chenbasapa, (1819) 4 Bom 235. A lease for one year containing an option to the tenant to revenue for a further period of one year or any other term is not a lease for a term exceeding one year and does not requires registration under this clause; Boyd v. Kreig, (1890) 17 Cal 548 dissenting from; Bhobani v. Shibnath, (1886) 13 Cal 113. A lease for the life of the lessee is a lease for a term exceeding one year as it entitles the lessee to hold for more than one year if he lives so long. It is not a lease terminable at the end of a year or at the option of the lessor. It therefore requires registration; Parstrotam v. Nana, (1893) 18 Bom 109.
Sub-section 2(i) of section 17 merely provided that nothing in sub-section 1(b) applied to a composition deed, but that did not mean that if a document required registration under another enactment, it was valid without registration; Govind Ram v. Madan Gopal, (1944) 721.A 76: AIR 1945 PC 74.
A consent decree purporting to create a gift requires registration under section 17(1)(a) and is not exempt from registration under section 17(2)(vi); Kauleshwari v. Surajnath Rai, AIR 1957 Pat 456.
The only test under the present clause is whether the receipt purports to extinguish the mortgage. If it does, it requires registration, but not otherwise. A receipt for payment of money under a mortgage (other than an endorsement on a mortgage-deed) issued by a mortgage mentioning not only the payment of the full mortgage amount but also the extinction of mortgage requires registration; Gurdial Singh v. Kartar Singh, AIR 1964 Punj 141. A deed of adoption as distinguished from an authority to adopt does not require registration; Vishwanth Ramji v. Rahibai, AIR 1931 Bom 105: 128 IC 901.