28 February 2021
Section 17 of the Registration Act specifies the document which are required to be compulsorily registered;
"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, 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:
Provided that the State Government] may, by order published in the 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.
A partition deed simpliciter does not "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". As such, a partition deed or deed or family settlement is not required to be compulsory registered. A plethora of decisions of the Supreme Court, various High Courts as well as the Privy Council has upheld this aspect and hence, is the settled law that :
""Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess."
The leading case in this context is Kale & Others vs Deputy Director Of Consolidation 1976 AIR 807, 1976 SCR (2) 202.
Moreover, proviso to Section 49 provides that such documents could be received "as evidence of any collateral transaction not required to be effected by registered instrument"
"49. Effect of non-registration of documents required to be registered.—No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], 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: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.
05 March 2021
Dear sir I want to purchase 150 squad yards from a vendor who is 80 years old. He has one son, 3 daughters. He has great grand son of age 4 years, the old man got property share through oral partition from his brothers in 2019, In 2019 he executed sale deed to one of his son in law for the above said property, now the son in law wants to sell this property to me. In old mans family there are four male lineages, will this become ancestral property. There is no partition deed, family settlement deed. If I want to purchase what precautions should I take, should I add all legal heirs as executant? Without partition deed, family settlement deed, is it worthy to buy this property? In future will i have any litigation from them. Please suggest