ATTESTATION AND REGISTRATION OF DOCUMENTS AND THEIR

RELEVANCY - ISSUES AND CHALLENGES

INTRODUCTION

The Registration Act, 1908, is one of the oldest legislations enacted during the pre-
independence period, which is in force in almost all parts of the country without altering
substantially for more than the last 100 years. The Registration Act, 1908 is having the object
of proper recording and registration of documents, which gives them more authenticity.
Registration means recording the contents of a document with a Registering Officer and
preserving copies of original documents. Documents are registered for conservation of
evidence, assurance of title, publicity of documents, and fraud prevention. The transfer of
immovable property is a significant cause of litigation. The dispute often arises because the
form by which the title is transferred was not registered/ not sufficiently stamped. Hence, the
Registration Act and Transfer of Property Act deal with how the title in the property can be
transferred. An essential aspect of the execution of a document is the attestation of the
document. Similarly, section 17 of the Registration Act provides the list of documents that
require compulsory registration.

ATTESTATION

The Transfer of Property Act, 1882, in Section 3 defines the term “attested,” in
relation to an instrument, means and shall always be deemed to have meant attested by two or
more witnesses, each of whom has seen the executant sign or affix his mark to the instrument,
or has seen some other person sign the instrument in the presence and by the direction of the
executant, or has received from the executant a personal acknowledgment of his signature or
mark, or of the signature of such other person, and each of whom has signed the instrument in
the presence of the executant; but it shall not be necessary that more than one of such
witnesses shall have been present at the same time, and no particular form of attestation shall
be necessary.1

1
Section 3 of the Transfer of Property Act, 1882, Act no. 4 of 1882.
 The cardinal principle that governs the attestation is that “animo attestandi,” the
settled rule position to this effect of attestation was clear by the dictum of the Hon’ble
Supreme Court of India in M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons,2 where
it was held that it is essential that the witness should have put his signature “animo
attestandi,” that is, for the purpose of attesting that he has seen the executant sign or-has
received from him a personal acknowledgment of his signature. If a person puts his signature
on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a
registering officer, he is not an attesting witness.3
In the case of Iswar Das Lal v. Sohan Lal,4 the Hon’ble Supreme Court of India, held
that the mode of proof of documents required to be attested is contained in sections
68 to 71 of the Evidence Act. Under section 68, if the execution of a document required to be
attested is to be proved, it will be necessary to call an attesting witness, if alive and subject to
the process of Court and is capable of giving evidence. But in case the document is registered
then except in the case of a will, it is not necessary to call an attesting witness, unless the
execution has been specifically denied by the person by whom it purports to have been
executed. This is clear from section 68 of the Evidence Act.5

The Indian Evidence Act, 1872, Section 68, prescribes that, if a document is required
by law to be attested, it shall not be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution, if there be an attesting witness alive, and
subject to the process of the Court and capable of giving evidence. Further proviso clarifies
that, it shall not be necessary to call an attesting witness in proof of the execution of any
document, not being a will, which has been registered in accordance with the provisions of
the Indian Registration Act, 1908, unless its execution by the person by whom it purports to
have been executed is specifically denied.6

REGISTRATION

2
AIR 1969 SC 1147, followed in S.R. Srinivasa v. S. Padmavathamma, (2010) 5 SCC 274.
3
Ibid para 5.
4
AIR 2000 SC 426.
5
Ibid para 14.
6
Section 68 of the Indian Evidence Act, 1872.
 The definition of the term “Registration” according to the Black’s Law Dictionary is,
“recording or inserting in an official register.” 7 According to the Explanation I provided to
the Section 3 of the Transfer of Property Act, 1882, any transaction relating to immovable
property is required by law to be and has been effected by a registered instrument, any person
acquiring such property or any part of, or share or interest in, such property shall be deemed
to have notice of such instrument as from the date of registration. Further, Section 17 of the
Registration Act, 1908, provides an enumerated list of documents that requires compulsorily
registration and Section 18 provides for documents of which registration is optional. The list
so enumerated thereof is an exhaustive one.

Compulsory Registrable Documents (Section 17):

a. Instruments pertaining to the gift of Immovable 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 Rs. 100/- and upwards, to or in
immovable 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 immovable property from year to year, or for any term exceeding one year,
or reserving a yearly rent; and
e. 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 Rs. 100/- and upwards, to or in
immovable property.

Further, the Section 17 also provides an enumerated list of transactions that are
exempted which requires instruments in nature of non-testamentary 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 Rs. 100/- and upwards, to or in
immovable property; and which acknowledge the receipt or payment of any consideration on

7
Black’s Law Dictionary, 4th Ed., p.1449.
account of the creation, declaration, assignment, limitation or extinction of any such right,
title or interest.

Exemption under Section 17 is applicable to the following:

i. any composition deed; or
ii. 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
iii. 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
iv. any endorsement upon or transfer of any debenture issued by any such Company;
v. any decree or order of a Court 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
vi. any grant of immovable property by Government; or
vii. any instrument of partition made by a Revenue-Officer.

SURAJ LAMP CASE: PURPOSES AND ADVANTAGES OF REGISTRATION

The Registration Act, 1908, was enacted with the intention of providing
orderliness, discipline and public notice in regard to transactions relating to immovable
property and protection from fraud and forgery of documents of transfer. This is achieved
by requiring compulsory registration of certain types of documents and providing for
consequences of non-registration.8

Section 17 of the Registration Act clearly provides that any document (other than
testamentary instruments) which purports or operates to create, declare, assign, limit or

8
Suraj Lamp & Industries Pvt. Ltd. (2) vs State Of Haryana & Anr., (2012) 1 SCC 656.
extinguish whether in present or in future “any right, title or interest” whether vested or
contingent of the value of Rs. 100 and upwards to or in immovable property. 9

Section 4910 of the said Act provides that no document required by Section 17 to
be registered shall, affect any immovable property comprised therein or received as
evidence of any transaction affected such property, unless it has been registered.
Registration of a document gives notice to the world that such a document has been
executed. Registration provides safety and security to transactions relating to immovable
property, even if the document is lost or destroyed. It gives publicity and public exposure
to documents thereby preventing forgeries and frauds in regard to transactions and
execution of documents. Registration provides information to people who may deal with
a property, as to the nature and extent of the rights which persons may have, affecting that
property. In other words, it enables people to find out whether any particular property
with which they are concerned, has been subjected to any legal obligation or liability and
who is or are the person/s presently having right, title, and interest in the property. It gives
solemnity of form and perpetuate documents which are of legal importance or relevance
by recording them, where people may see the record and enquire and ascertain what the
particulars are and as far as land is concerned what obligations exist with regard to them.
It ensures that every person dealing with immovable property can rely with confidence
upon the statements contained in the registers (maintained under the said Act) as a full
and complete account of all transactions by which the title to the property may be affected
and secure extracts/copies duly certified. 11 Registration of documents makes the process
of verification and certification of title easier and simpler. It reduces disputes and
litigations to a large extent.

9
Ibid, para 10.
10
Section 49 of the Registration Act, 1908: Effect of non-registration of documents required to be registered.
11
Suraj Lamp & Industries Pvt. Ltd. (1) vs State Of Haryana & Anr., (2009) 7 SCC 363.
 ADMISSIBILITY AND RELEVENCY

The magna carta of civil law, the Code of Civil Procedure, 1908, in Order XIII Rule
312, provides that, the Court may at any stage of the suit reject any document which it
considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

Admissibility of unregistered documents which requires compulsory registration:

The Hon’ble Apex Court in K.B. Shah & Sons Pvt. Ltd. v. Development
Consultant,13 elaborated the principles laid down in the various decisions of the Hon’ble
Apex Court and the High Courts, pertaining to the admissibility of the registered documents,
and if follows as:-

i. A document required to be registered is not admissible into evidence under Section

49 of the Registration Act.
ii. Such unregistered document can however be used as an evidence of collateral purpose
as provided in the Proviso to Section 49 of the Registration Act.
iii. A collateral transaction must be independent of, or divisible from, the transaction to
effect which the law required registration.
iv. A collateral transaction must be a transaction not itself required to be effected by a
registered document, that is, a transaction creating, etc. any right, title or interest in
immoveable property of the value of one hundred rupees and upwards.
v. If a document is inadmissible in evidence for want of registration, none of its terms
can be admitted in evidence and that to use a document for the purpose of proving an
important clause would not be using it as a collateral purpose.

Evidentiary relevance of insufficiently stamped documents:

Black’s Law Dictionary defines the term “Impound” as, “to take into the custody of
the law or of a court.” Thus, a court will sometimes impound a suspicious document
produced at a trial.14 It is now well settled that there is no prohibition under Section 49 of the
Registration Act, to receive an unregistered document in evidence for collateral purpose. But
the document so tendered should be duly stamped or should comply with the requirements of

12
The Code of Civil Procedure, 1908, Order XIII Rule 3: Rejection of irrelevant or inadmissible documents.
13
(2008) 8 SCC 564.
14
Black’s Law Dictionary, 4th Ed., p.889.
Section 35 of the Stamp Act, 1899,15 if not stamped, as a document cannot be received in
evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid
under Section 35 of the Stamp Act, 1899.16

The Hon’ble High Court of Andhra Pradesh, in the case of Thippareddy Obulamma
v. Balu Narasimhulu,17 stated the following propositions of law with regard to unstamped or
under-stamped or unregistered documents:-

i. An unstamped or insufficiently stamped document is inadmissible in evidence.

ii. As per the proviso to Section 49 of the Indian Registration Act, an unregistered
document affecting immovable property and required to be registered can be received
as evidence either in cases referred to therein or to prove any collateral transaction.
iii. If an unstamped or insufficiently stamped document coupled with the infirmity of
being unregistered can be received as evidence for a collateral purpose, provided, the
first defect under the Indian Stamp Act, 1899, is corrected. In other words, an
unstamped or insufficiently stamped document after duly impounded as prescribed
under Section 33 of the Indian Stamp Act, 1899 can be relied in evidence for
collateral purpose.

15
Section 35 of the Indian Stamps Act, 1899: Instruments not duly stamped inadmissible in evidence, etc.
No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law
or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any
such person or by any public officer, unless such instrument is duly stamped :
Provided that—
(a) any such instrument shall be admitted in evidence on payment of the duty with which the same is
chargeable, or, in the case of any instrument insufficiently stamped, of the amount required to make up
such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or
deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an
unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such
receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person
tendering it;
(c) Where a contract or agreement of any kind is effected by correspondence consisting of two or more
letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to
be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in proceeding in
a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of
Criminal Procedure 1898;
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such
instrument has been executed by or on behalf of the Government, or where it bears the certificate of the
Collector as provided by section 32 or any other provision of this Act.
16
T. Bhaskar Rao vs T. Gabriel And Ors., AIR 1981 AP 175.
17
AIR 2003 AP 525.