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(xii) any certificate of sale granted to the purchaser of any property sold by public
auction by a civil or revenue officer.
[Explanation: A document purporting or operating to effect a contract for the sale
of immoveable property shall not be deemed to require or ever to have required
registration by reason only of the fact that such document contains a recital of the
payment of any earnest money or of the whole or any part of the purchase
money.] (Inserted by Act No. 2 of 1927)
(3) Authorities to adopt a son, executed after the 1st day of January 1872, and not
conferred by a will, shall also be registered.
Scope Of Section 17
(1) Where the award was made prior to the enforcement of the Registration
Amending Act of 1929, held its non-registration would not affect its validity.
(2) It was held that even though a part of the compromise related to the property
which was beyond the subject matter of the suit, had been incorporated in the
compromise decree and although not being a part of the operative portion thereof
did not require registration.
(3) It was further observed that in spite of this it narrowed the scope of the
exemption clause and provided that if the decree or order referred to the property
other than that which was the subject-matter of the suit or proceeding, it would
require registration.
(4) Where the registration of an instrument embodying a contract is necessary, it
is essential that each of the parties thereto should do for the acts all that is
necessary towards securing registration of the instrument.
(5) Where the terms of the document render it compulsory registered under
section 17, it cannot make be taken out of its purview merely because it cannot be
admitted to registration as it does not specify the property as required by section
21.
(6) In the context of section 17 of the Act, a document is the same as an
instrument and to draw nice distinctions between the two only serves to baffle,
not to illumine.
Essentials Of Section 17
Section 17 of the Indian Registration Act (Act XVI of 1908) would be attracted in
a case where the disputes relates to a charge sought to be created by a debenture
on immoveable property which was existent at the date of the creation of the
charge and was in the ownership of the company at that date. It would, therefore,
necessarily follow from it that a debenture which seeks to create, declare or limit
not mentioned in the said contract and therefore, the suit was dismissed.
Section 17 & Section 54 Of Transfer Of Property Act 1882
The combined effect of section 54 of the Transfer of Property Act 1882 and
section 17 of the Registration Act 1908 is that, a contract of sale in respect of
immoveable property of the value of more than one hundred rupees without
registration cannot extinguish the equity of redemption. In India, it is only on
execution of the conveyance and registration of transfer of the mortgager's
interest by registered instrument that the mortgagor's right of redemption will be
extinguished. The conferment of power to sell without intervention of the court in
a mortgage deed by itself will not deprive the mortgagor of his right to
redemption. The extinction of the right to redemption has to be subsequent to the
deed conferring such power. The right of redemption is not extinguished at the
expiry of the period. The equity of redemption is not extinguished by mere
contract of sale. The mortgagor's right to redeem will survive until there has been
completion of sale by the mortgagee by a registered deed. It must also be noted
that section 17 of the Indian Registration Act 1908 or the second para of the
Transfer of Property Act 1882, will have no application to the agreement to
recover property, being non-creation of any interest in the immoveable property.
In Narandas Karsondas vs. S.A. Kantam & Anr. (AIR 1977 SC 774), it was held
that the mortgagor has a right to redeem unless the sale of the property was
complete by registration in accordance with the provisions of the Registration Act
1908, and therefore, the appeal was dismissed.
Conclusion
In the light of the analysis of section 17 of Indian Registration Act 1908 and a
comparative study of section 17 and section 53-A and section 54 of the Transfer
of Property Act 1882, it can be fairly concluded that (1) an incomplete deed of transfer, though not registered or even attested, is
regarded, as a contract in writing but such a deed must have been signed by the
transferor or his agent and an unregistered document, affecting immoveable
property, required by the Transfer of Property Act 1882, or the Indian
Registration Act 1908, to be registered, may be received in evidence of partperformance of a contract or as evidence of any collateral transaction not required
by a registered instrument.
(2) a contract of sale in respect of immoveable property of the value of more than
one hundred rupees without registration cannot extinguish the equity of
redemption.