Section 17 of the Registration Act, talks about the compulsory registration, it reads thus:
“17. Documents of which registration is compulsory.-
(1) 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 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely-
(a)
(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 immovable property.”
Section 49 declares the effect of non-registration that no document required under Section 17 … to be registered shall have an effect on any immovable property comprised therein … or be received as evidence of any transaction affecting such property … unless it has been registered. A conjoint reading of Section 17(1)(b) and Section 49 of the Registration Act establishes that a non-testamentary instrument which purports or operates to create, declare, assign, limit or extinguish in present or future, any right, title or interest, whether vested or contingent to or in any immovable property of the value of Rs 100 and above, shall compulsorily be registered, otherwise the instrument does not affect any immovable property comprised therein or shall not be received as evidence of any transaction affecting such immovable property.
Supreme Court in Lachhman Dass v. Ram Lall held the purpose of registration that: (SCC p. 106, paras 13 and 14: SCR p. 259 C & D) “In other words, it is necessary to examine not so much what it intends to do but what it purports to do. The real purpose of registration is to secure that every person dealing with the property, where such document requires registration, may rely with confidence upon statements contained in the register as a full and complete account of all transactions by which title may be affected. Section 17 of the said Act being a disabling section, must be construed strictly. Therefore, unless a document is clearly brought within the provisions of the section, its non-registration would be no bar to its being admitted in evidence.”
In Satish Kumar v. Surinder Kumar[1] an arbitrator was appointed by the parties without reference to the court to partition their immovable properties. An award in that behalf was made and on an application under Section 14 of the Arbitration Act, the award was made a rule of the court. The question arose whether such award was admissible in evidence as affecting partition of the immovable property. Supreme Court held that the award required registration under Section 17(1)(b). Therefore, the award is a non-testamentary instrument.
In Sardar Singh v. Krishna Devi (1994), the court considered the question whether the award in favour of the appellant creates any right, title and interest in half share of the house in his favour or extinguishes the right, title and interest therein. While answering the question the court said that it is necessary to examine the award not so much to find what the award intended to do, but what it purports to do and the consequences that would flow therefrom. While maintaining this, the court rejected the contention of the counsel that award does not require registration as it merged in the decree of the civil court making it a rule of the court.
In Champalal v. Samarath Bai[2] the Court held that: (SCR p. 816)
“The filing of an unregistered award under Section 49 of the Registration Act is not prohibited; what is prohibited is that it cannot be taken into evidence so as to affect immovable property falling under Section 17 of that Act.”
In Addanki Narayanappa v. Bhaskara Krishtappa[3] (SCR at pp. 410 and 41 1) Supreme Court held that a document of dissolution only records the fact that the partnership had come to an end. It cannotbe said to convey any immovable property by a partner to another expressly or by necessary implication, nor is there any implication. It was held that such a deed was not compulsorily registrable under Section 17(1)(b) of the Registration Act.
In CIT v. Juggilal Kamalapat8 (SCR at p. 790) the deed of relinquishment was accepted by one partner in favour of the other partners in the partnership firm including immovable property. This Court held that the deed of relinquishment was in respect of individual interest of a partner in the assets of the partnership firm including immovable property was valid without registration. All the assets of the partnership firm vested in the new partners of the firm.
The Court approved the Full Bench judgment of the Lahore High Court in Ajudhia Pershad Ram Pershad v. Sham Sunder[4] wherein the Full Bench held that assignment of the interest of partnership of a partner is to be regarded as movable property, notwithstanding the fact that at that time when it was charged or sold, the partnership assets included immovable property. In Lachhman Dass case’ the Court noted the distinction between the declaration of an existing right as a full owner of the property in question and creation of a right in immovable property in praesenti. In that case since a new right was created under the award in favour of the respondent, it was held that the award required registration and non-registration rendered the award inadmissible in evidence under Section 49.
In Kale v. Dy. Director of Consolidation[5] the Court held that a family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour. Family arrangements are governed by principles which are not applicable to dealings between the strangers. The court when deciding the rights of partners under family arrangements, consider what is the broadest view of the matter, having regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. If the terms of the family arrangement made under the document as a mere memorandum, itself does not create or extinguish any right in immovable property and, therefore, does not fall within the mischief of Section 17(1)(b) of the Registration Act and is, therefore, not compulsorily registrable.
The Court in Sardar Singh Case (Supra) said that, It is well-settled law that the unregistered award per se is not inadmissible in evidence. It is a valid award and not a mere waste paper. It creates rights and obligations between the parties thereto and is conclusive between the parties. It can be set up as a defence as evidence of resolving the disputes and acceptance of it by the parties. If it is a foundation, creating right, title and interest in praesenti or future or extinguishes the right, title or interest in immovable property of the value of Rs 100 or above it is compulsorily registrable and non- registration renders it inadmissible in evidence. If it contains a mere declaration of a pre-existing right, it is not creating a right, title and interest in praesenti, in which event it is not a compulsorily registrable instrument. It can be looked into as evidence of the conduct of the parties of accepting the award, acting upon it that they have pre-existing right, title or interest in the immovable property.
[1] (1969) 2 SCR 244: AIR 1970 SC 833
[2] (1960) 2 SCR 810
[3] (1966) 3 SCR 400: AIR 1966 SC 1300
[4] ILR 28 Lah 417
[5] (1976) 3 SCC 119, 126: (1976) 3 SCR 202