Amendment in Registration Act & Transfer of property other than registration

PART A

Amendment Of The Registration Act To The Effect That An Arbitral Award Is No Longer Exempted From Registration

Section 10 of The Transfer of Property (Amendment) Supplementary Act, 1929 amends section 17(2)(vi) of The Registration Act, 1908 with the result that an arbitral award which embodies a transaction under Section 17(1) (b) or (c) of The Registration Act, 1908 is no longer exempt from registration.

Section 17(1)(b) of The Registration Act, 1908 refers to other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in the 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 17(2)(vi) of The Registration Act, 1908 as amended provides that nothing in clauses (b) and (c) of Sub-section (1) applies to 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. The amendment was made by Section 10 of the Transfer of Property (Amendment) Supplementary Act, 1929. The clause as it stood before the amendment provided that nothing in clauses (b) and (c) of Sub-section (1) applied to any decree or order of a Court and any award.

The effect of the amendment is that an award which embodies a transaction under Section 17(1) (b) or (c) is no longer exempt from registration. Such an award is invalid if not registered.

Since the amendment of the Registration Act in 1929, an arbitrator's award is not excluded from the operation of Section 17(1) (b). The only question is whether the award now under consideration does itself create, declare, assign, limit or extinguish any right, title or interest in immoveable property, or whether it merely creates a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest. If the latter is the case, then Sub-clause (v) of Clause (2) of Section 17 of The Registration Act, 1908 will exempt the award from the necessity of registration.

Section 49 of The Registration Act, 1908 provides that no document required by section 17 of the same act to be registered shall--

(a) affect any immovable property comprised therein, or

(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.

PART B

Under The Provision Of The Transfer Of Property Act, 1882 & The Registration Act,1908 , In Which Manner Other Than Registration Can A Transfer Of Property Be Lawfully Executed

There Are Two Ways In Which A Property Maybe Transferred:-

A. By a written instrument, registered or unregistered

B. By an oral agreement, with or without delivery of possession

Section 9 of The Transfer of Property Act, 1882 provides that a transfer of property may be made without writing in every case in which writing is not expressly required by law. Writing is necessary in the following cases:

a)  Sale of immovable property of the value of Rs.100 or more (Section 54)

b) Sale or reversion of other intangible thing (ibid)

c) Simple mortgage irrespective of the amount secured (Section 59)

d) All other mortgages securing Rs.100 or more (ibid)

e) Leases of immovable property from year to year or for a term exceeding one year or reserving a yearly rent (Section 107)

f) Exchange (subject to the same rules as sale) (Section. 108)

g) Gift of immovable property (Section 123)

h) Transfer of actionable claim (Section 130)

In all cases other than the aforesaid, transfer of property may be made by an oral agreement. An oral agreement is generally accompanied by delivery of possession. But, by virtue of section 107 of The Transfer Of Property Act, 1882, “……….the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.”

In the cases where transfer can be affected only by a written instrument, Section 17 of the The Registration Act, 1908 provides a list of instruments which must be registered.

Section 17:  Documents of which registration is compulsory

(1) The following documents shall be registered, if the properties 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:-

(a) Instruments of 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 one hundred rupees, 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; and

(d) leases of immovable 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 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

Section 18 of the The Registration Act, 1908 deals with cases of transfer of property where registration of instruments is optional.

Section 18: Documents of which registration is optional

Any of the following documents may be registered under this Act, namely:-

(a) instruments (other than instruments of gift and wills) 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 a value less than one hundred rupees, to or in immovable property;

(b) instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;

(c) leases of immovable property for any term not exceeding one year, and leases exempted under section 17;

(cc) 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 a value less than one hundred rupees, to or in immovable property

(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;

(e) wills; and

(f) all other documents not required by section 17 to be registered.