Registration of an instrument - Whether amounts to Public Notice?

As per section 3 of Transfer of Property Act, a person is said to have notice of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation - I to the section clarifies that where 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. Thus, the provisions take into its ambit not only actual notice but also impute notice where a person prevented himself from acquiring notice due to his willful abstention or gross negligence. But, the rule is restricted to instruments which are required by law to be and has been registered. The only requirements being that the instrument should be compulsorily registerable and it should be registered in the manner prescribed by the Registration Act. However, if there a mistake in registration process in such a case registration would not operate as notice.

But, no notice can be imputed in case of an instrument where registration is not compulsory. It has been held by Allahabad High Court in the case of Asharfi Devi Vs Prem Chand (AIR 1971 All 457) where the court was dealing with an instrument of WAQF which was not required to be compulsorily registered that “the courts below denied the protection of Section 41 to the appellants on the ground that he did not make a search of the registration records though the alleged waqf had been made by registered documents dated 28-5-1908 and 12-10-1927 and as such he will be deemed to have constructive notice of the property in suit being included in the waqf in view of Explanation 1 to the definition of 'notice' contained in Section 3 of the Transfer of Property Act which provides that where 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 thereof, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration. In my opinion this provision is not applicable to the case. For one thing, both the above documents though registered under the Registration Act were not required by any law to be so registered. Both these documents were in the nature of will and there is no provision in law which requires a will to be registered. A will is also not a transfer within the meaning of Transfer of Property Act. … If there is no requirement of law that a dedication can only be made by means of registered document, the definition of 'notice' contained in Section 3 including its Explanation will not apply to a property that has been dedicated to God.” This was also so held in earlier cases involving registration of agreement to mortgage (AIR 1942 Bom 339), hypothecation deed (AIR 1928 Rang), an agreement not to alienate property (AIR 1929 All 85), registration of will (AIR 1971 Ker. 3). In Mulla’s commentary on Transfer of Property Act, tenth edition at page 51 it has been observed that “registration is not notice when there is no duty to search the register.”