Registration Is Not Ownership - The Evidentiary Nature Of Title Under Indian Property Law

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Category: Property & Real Estate

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REGISTRATION IS NOT OWNERSHIP: THE EVIDENTIARY

NATURE OF TITLE UNDER INDIAN PROPERTY LAW

Gagan V, School of Law, CHRIST (Deemed to be University)

ABSTRACT

This paper argues that in India the deed registration process is often confused with legal ownership but that registration is actually a system of public notice and evidentiary construction rather than a transfer of title. Examining the Registration Act of 1908 against the Transfer of Property Act of 1882 and the Evidence Act of 1872 and placing these against the backdrop of Supreme Court case law from Narandas Karsondas v S A Kamtam and Suraj Lamp & Industries (P) Ltd v State of Haryana to Mahnoor Fatima Imran v State of Telangana, this paper shows that registration creates rebuttable presumptions but does not correct defects of entitlement like incapacity, fraud, or interruption of the chain of title.

A theoretical model guided by such thinkers as Gray, Hohfeld, Kennedy, Fuller, Raz and Dworkin explains how formalism converts visible procedure into surrogates for rights such that there is a false appearance of ownership. Empirical evidence drawn from property disputes and reviews of the Digital India Land Records Modernisation Programme shows that while digitisation adds accessibility of records but does not guarantee title assurance. Comparing the Torrens systems of countries like Australia and New Zealand, the structure of the Land Registration Act 2002 in England and Wales, and the United States' title insurance regimes shows institutional choices that combine registration with verifiable and enforceable entitlement.

This paper propounds gradual reform aimed at providing greater clarity on the presumption created by registration, strengthening pre-registration and post-registration verification processes, adopting rectification and indemnity mechanisms and testing Torrens lite areas and regulated title insurance, such that registration develops from a symbol of certainty to an instrument of certainty. Keywords: Registration Act 1908, Transfer of Property Act 1882, Evidence Act 1872, Ownership, Title, Formalism, Notice, Rectification, Indemnity, Torrens, Land Registration Act 2002, Title Insurance.

INTRODUCTION

In Indian legal practice and public administration, registration is often intuitively identified with legal ownership, but registration is above all a system of public notification and evidentiary arrangement rather than a mode of conferring title. When read as a body of law, the Registration Act of 1908, the Transfer of Property Act of 1882 and the Evidence Act of 1872 explain that distinction: the Registration Act prescribes the need for recording and controls admissibility, the Transfer of Property Act outlines the modes of transfer of title and specifies that a contracts for sale alone does not generate an interest, while the Evidence Act entrenches written forms as first evidence but permits rebuttals in relation to fraud, incapacity and errors. The Supreme Court jurisprudence has repeatedly reaffirmed that distinction. In Narandas Karsondas v.

S A Kamtam1, the Court established that no rights, titles, or interests relating to immovable property of the appropriate class are passed until a conveyance is executed and registered by a person empowered to execute such a conveyance. In Suraj Lamp & Industries (P) Ltd v. State of Haryana2, the Court refused to treat powers of attorneys and sale agreements as conveyances even when registered. In Prem Singh v. Birbal3 and Meghmala v. G Narasimha Reddy4, the Court reaffirmed the doctrine that registration shall not validate that which is void ab initio or vitiated by fraud. Most recently, in Mahnoor Fatima Imran v. State of Telangana5, the Court established that registration after the occurrence of a lapse or invalidity of entitlement does not restore. The theory explains both the persistence and the invalidity of that conflation.

Kevin Gray and Susan Francis Gray characterize ownership as a complex legal relationship, the ramifications of which extend beyond official registration6. Duncan Kennedy's critique of formalism reveals how legal systems make formalities substitutes for correctness, while Lon L. Fuller's critique of the internal morality of law demands procedure appropriate for its purpose7. Joseph Raz and Ronald Dworkin 1Narandas Karsondas v. S A Kamtam 1977) 3 SCC 247

2 Suraj Lamp & Industries (P) Ltd v. State of Haryana(2012) 1 SCC 656

3 (2006) 5 SCC 353

4 (2010) 8 SCC 383

5 2025 SCC OnLine SC 505

6 Kevin Gray and Susan Francis Gray, Elements of Land Law (5th edn, OUP 2009) 183–84

7 Duncan Kennedy, ‘Form and Substance in Private Law Adjudication’ (1976) 89 Harvard Law Review 1685; Lon L collectively detail the tension between settlement and correctness by cautioning that a recording system that fails to confirm entitlement engenders a false sense of assurance8. The ramifications of the problem are both practical as well as theoretical. Empirical studies of civil dockets report high percentages of property disputes with an emphasis upon declaratory actions, injunctions and specific performance, evidencing that registered documents frequently need new decisions of entitlement. An assessment of the Digital India Land Records Modernisation Programme discloses increased accessibility as well as efficiency, but ongoing doubt regarding parcel identity, incomplete encumbrance data and poor consolidation of registration, mutation and survey processes.

Comparative experience offers lessons that direct towards institutional corrections. Torrens systems attain reliance by combining indefeasibility with rectification and indemnity funds9. The system of the Land Registration Act 2002 grants title by registration while retaining rectification, indemnity and overriding interests specifically identified. United States law charges residual uncertainty by layering private title insurance over public recording.

Against this backdrop the present paper poses the question of whether registration in India provides title as such or merely a rebuttable evidentiary presumption of title, of how courts have coped with the gap between form and substance of right in disputes over ownership, of institutional change that will bring the registry nearer an entitlement focused system and of how by doctrinal analysis, study of case law, jurisprudential contribution, empirical reference and comparative approach it argues that the materials for unbundling recordation from right already exist within Indian law and that step-wise change will bring registration nearer verification, rectification, indemnity so that appearance of certainty will be legal certainty in fact.

OWNERSHIP, FORMALISM AND THE FUNCTION OF REGISTRATION In property law, the relationship of ownership is best conceptualized as a legal relationship that exists over more than a single deed or registration entry. This relationship entails a variety of Fuller, The Morality of Law (Yale University Press 1964) 38–45 8 Joseph Raz, The Authority of Law: Essays on Law and Morality (2nd edn, OUP 2009) 40–47; Ronald Dworkin, Law’s Empire (Harvard University Press 1986) chs 2–4 9 Peter Butt, Land Law (7th edn, Lawbook Co 2017) 717; Simon Opas, Torrens Title in Australia (2nd edn, Federation Press 2020) chs 1–2 incidents like use, exclusion, alienation and succession that may be vested in different parties and which may fluctuate over time.

Kevin Gray and Susan Francis Gray caution against assuming that a documentary or registered title is definitive, given that a variety of rights, equitable, possessory or customary, may continue to exist beside the register10. Registration thus remains more an act of evidence of a transaction as well as an administrative facility rather than the definitive attribution of ownership. The problem arises when formalism veils the distinction between substance and form. Duncan Kennedy explains that legal regimes often privilege following visible rules as substitutes for substantive fairness, thus masking underlying unequalities11. In an Indian context, such a tendency is evident from administrative procedure and the prevalence of the view that registration alone entitles someone to ownership despite judicial rejection of such an approach.

Wesley Hohfeld's analytical model explains such a misconception: the right of putting a document on the register is distinguishable from the right of exclusion of others from property and incapacity, absence of consent, or valid title absence cannot be made good by an inscription in the register. Interpretation by the judiciary also supports the same. In Suraj Lamp & Industries (P) Ltd v. State of Haryana12, the Supreme Court decided that settlements of sale agreements and general powers of attorney do not effect transfer of possession even if registered. In Prem Singh v. Birbal13 and Meghmala v. G Narasimha Reddy14, the court again reaffirmed that registration is incapable of ratifying void or fraudulent documents. Most recently, in Mahnoor Fatima Imran v.

State of Telangana15, the court decided that registration at a later stage is incapable of reviving a lapsed or defective entitlement. Independently, these decisions highlight that while registration provides certain presumptions, registration does not itself correct defects of entitlement. Theories offer complementary validation. Lon L. Fuller argued that procedural mechanisms should be connected rationally with their goals such that a procedure that deceives parties undermines

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11 Duncan Kennedy, ‘Form and Substance in Private Law Adjudication’ (1976) 89 Harvard Law Review 1685

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legality16. Ronald Dworkin stressed that judicial judgments had to obey principled rather than rigid formalistic reasoning, while Joseph Raz noted that there was a need for an accommodation of unpredictability with correctness of results17. Together, these approaches clarify why excessive reliance upon registration leads to what could be termed an illusion of title. Though registration has the roles of giving notice, providing evidence and facilitating effective administration, any guarantee of title is impossible without verification, rectification and indemnity. Therefore, its worth is remarkable but limited, requiring its place within a wider legal framework that ensures that form supplements but does not supplant substantive rights.

THE STATUTORY ARCHITECTURE IN INDIA The interaction of registration with ownership law in India is regulated by three foundational legislative enactments: the Registration Act, 1908, the Transfer of Property Act, 1882 and the Indian Evidence Act, 1872. Each of these statutes plays a separate role within the body of property law, taken collectively demonstrating that although registration is imperative, it alone is insufficient for passing title. The Registration Act specifies the documents that are subject to recording, provides for the evidentiary value of such registers and delineates the powers of the registrar. By contrast, the Transfer of Property Act provides the essential mechanisms of transfer, requiring that ownership alone may pass by a valid conveyance from an empowered person and by registration when registration is required.

Finally, the Evidence Act addresses presumptively valid documents and circumstances in which written documents could be challenged or perfected. None of these statutory provisions can be read as suggesting that the title itself is conferred by registration alone; instead, they create a system by which registration facilitates proof and notice but by itself creates a title that is substantive only upon the validity of the underlying transaction. The Registration Act, 1908 is essentially procedural. Section 17 obliges registration of certain types of instruments that affect immovable property, while Section 49 provides that an instrument that needs registration but is not registered shall not affect property rights or be received as evidence

16 Lon L Fuller, The Morality of Law (Yale University Press 1964) 38–45

17 Ronald Dworkin, Law’s Empire (Harvard University Press 1986) chs 2–4; Joseph Raz, The Authority of Law: Essays on Law and Morality (2nd edn, OUP 2009) 40–47 except for certain collateral uses. The amendment of 2001 created section 17(1A), requiring that agreements for the transfer of consideration shall be registered if such agreements are to avail of the uses specified by section 53A of the Transfer of Property Act, thereby affirming formal requirements of part-performance. Importantly, the Act does not empower the registrars to decide issues of title; their roles are strictly ministerial, limited only to the verification of the form and admissibility of papers. In Satya Pal Anand v. State of Madhya Pradesh18, the Supreme Court held that the registrars are prohibited from examining titles of ownership or rival claims that are reserved for determination by the courts.

The result is that although the Registration Act structures elements of evidence and notice, entitlements are not decided upon. The Transfer of Property Act, 1882 outlines the substantive creation and passing of ownership. Section 54 states that the sale of immovable property of value exceeding one hundred rupees shall be made by an instrument registered by a person empowered by law to convey and that a contract of sale does not of itself create any such interest. In the case of Narandas Karsondas v. S A Kamtam19, the Supreme Court ruled that rights, title, or interest do not pass until conveyance is executed and registered by a legally qualified person.

Section 53A of the Transfer of Property Act, which encapsulates the doctrine of part-performance, provides protections made to transferees in possession but not conveying title and from the amendment of 2001, an unregistered agreement is not able to claim such protection. These provisions of statute demonstrate that whilst transfer may be conditional upon registration, that does not exclude substantive validity or competence of the transferor. The Evidence Act of India, 1872 highlights such principles by controlling the evidentiary status of written documents. Sections 91 and 92 confirm the predominance of documentary evidence by mandating that if terms of a transaction are recorded, that document constitutes the best evidence that cannot be rebutted by oral evidence except when fraud, error, or incapacity is involved. In the case of K B Saha & Sons Pvt Ltd v.

Development Consultant Ltd20, the Court explained that while oral evidence is prohibited from varying the terms of a written agreement, its admission was allowed to challenge the validity of the document per se. Further, presumptions iterated by section

18 (2016) 10 SCC 767

19 Supra 1

20 (2008) 8 SCC 564

114 regarding the consistency of official acts are also open to rebuttal. Mutation entries recorded

in land revenue accounts that usually follow registered transfers have always been treated as fiscal rather than determinative of ownership, as was established by Balwant Singh v. Daulat Singh (Dead)21 and Bhimabai Mahadeo Kambekar v. Arthur Import and Export Company22. Hence, the statutory regime confirms that registration promotes admissibility and fosters presumptions but does not grant indefeasible ownership such that entitlement must be proved by substantive law and by judgment of the courts. JUDICIAL TREATMENT OF REGISTRATION AS OWNERSHIP IN INDIAN PROPERTY LAW The jurisprudence of the Supreme Court of India has consistently refrained from holding registration as conclusive proof of ownership.

In most cases involving general powers of attorney, agreement to sell, frauds or void instruments, collateral use of unregistered documents, mutation entries and powers of registrars, the Court has drawn a sharp distinction. Registration is relevant with reference to notice and evidentiary presumption but does not and indeed cannot, set right defects in title. The Court's reasoning manifests an adherence to the continued paramountcy of substantive validity to right over ownership so as to prevent the triumph of the form over right. The decision in Suraj Lamp and Industries Private Limited v. State of Haryana23 dealt with the common phenomenon of resort to agreement to sell, general powers of attorney and wills, occasionally registered, in place of sale deeds.

The Court ruled such arrangements do not effect title and title only transfers with a validly executed and registered sale deed from a person capable of conveying. Though the Court was alive to the legitimate uses of powers of attorney like agency or development arrangements, it categorically disagreed with their use as conveyancing instruments. This judgment put an end to practices which had generated widespread confusion in property markets and reaffirmed the proposition that registration cannot take the place of an effective transfer.

21 (2008) 8 SCC 564

22 (2019) 3 SCC 191

23 Supra 2

The Court has also clarified that registration cannot validate void or fraud documents. In Prem Singh v. Birbal24, it also held that a void ab initio document is a nullity that cannot be validated either through registration or limitation. In Meghmala v. G Narasimha Reddy25, the Court again established that fraud vitiates registered instruments as well. Earlier, in Narandas Karsondas v. S A Kamtam26, the Court clarified that title does not pass until a valid conveyance has been executed and registered by an person empowered to transfer. These decisions invariably affirm the rule that defects like fraud, incapability, or want of title cannot be remedied through technical-compliance with Jotting or registering requirements. Subsequent rulings have vindicated this position. In S Kaladevi v.

V R Somasundaram27, the Court ruled that an agreement for sale which was not registered could not effect title transfer, but was still competent for collateral purposes such as proof of possession. In K B Saha and Sons Private Limited v. Development Consultant Limited28, the Court clarified that documentary evidence is-not subject to variation on oral testimony, but validity questions are reserved for challenge. The Court has also considered entries in revenue records as fiscally in nature, without effecting title conferral or obliteration, as in Hardev Singh v. Gurmail Singh29 and Bhimabai Mahadeo Kambekar v. Arthur Import and Export Company30. In Satya Pal Anand v. State of Madhya Pradesh31, it reaffirmed that registrars act non-suo-motu and cannot adjudicate title controversies. Most recently, in Mahnoor Fatima Imran v.

State of Telangana32, the Court reaffirmed that subsequent registration is incapable of breathing life back into an inadequate or lapsed right. These decisions, as a whole, reflect the long-held view of the courts that registration aids proof but of itself creates title. EMPIRICAL AND ADMINISTRATIVE REALITIES Divergence between registration and ownership is not merely a doctrinal issue but also a visible phenomenon in litigation and administration. Data from civil dockets invariably show property disputes to take a commanding major slice of the Indian judiciary's caseload, oftentimes involving

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27 (2010) 5 SCC 401

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29 (2007) 2 SCC 404

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32 Supra 5

declaratory suits, injunctions, or actions for specific performance33. The sheer prevalence of such litigation is proof enough of the fact that the presence of a registered instrument does not definitively determine questions of entitlement. Far from it, parties recurrently come back to court to prove or disprove ownership against rivalling claims and hence convert registration from a terminal guarantee of rights to a procedural step. The continuance of such litigation reflects the systemic expense of what amounts to false certainty: documents which seem definitive but in actuality invite judicial reconstruction of right entitlement. Patterns of litigation reveal specific forms of disputes emanating from the boundaries of registration.

Partition and succession disputes commonly involve registered deeds which interfere with unrecorded settlements of the family or heirs who have been omitted from formal transfers. 2 Situation of plurality of conveyances, where latter instruments registered over earlier agreement or equitable interest, also exemplifies how priority cannot be determined through entry alone on the register. Fraud and forgery, in spite of registration, continue to be fertile fields of dispute, echoing the Supreme Court's persistent holding that fraud vitiates even duly registered instruments34. Development-related disputes, particularly those involving powers of attorney general and agreement to sell, reflect the surviving impact of informal conveyancing practices which were sought to be checked but not eliminated through the Suraj Lamp case35.

Registration accordingly acts as probative evidence but does not go so far as to eliminate systemic ambiguity. Administrative changes have not done enough to eliminate the disjuncture. Digitisation has brought measurable gains in accessibility, standardisation and quickness of retrieval through the Digital India Land Records Modernisation Programme (hereinafter referred to as DILRMP). Reviews and especially CEPT University's, admit digitisation has boosted transparency through the ease of online searches of encumbrance and linking of registering and revenue offices to an extent36. But these also highlight the endurance of structural gaps.

Identity of parcels remains inaccurate due to out-of-date or non-geosreferenced cadastral maps; mutation processes fall short of registration, making fiscal records different from registered instruments; and encumbrance certificates only reflect registered burdens, excluding pending litigation, statute attachment, or equitable interests. Consequently,

33 PRS Legislative Research, ‘Pendency of Civil Suits’ (2021)

34 Meghmala v. G Narasimha Reddy (2010) 8 SCC 383

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36 CEPT University, ‘Evaluation of the Digital India Land Records Modernisation Programme (DILRMP)’ (2022) digitisation has transplanted most of the faults of paper-based regimes onto a more visible platform, gaining accessibility but not assurance. The pressure between recordation and title is compounded further by sectoral regimes. The Real Estate (Regulation and Development) Act, 2016 insists on title and project information being given by developers to obtain registration, but regulatory commissions usually accept documents supplied by promoters without making independent verification of chain of title. Although the statute enriches transparency in markets, it does not establish state-guaranteed assurance of title. Likewise, the operation of mutation, although usually initiated through registration, still hinges upon revenue departments and awaits objections or pending actions.

The interface between registration, mutation and survey creates several points of failure wherein title seems established in one regime but still contested in another. Administrative practice here reflects doctrinal reality: registration is a move towards transparency, but not towards finality. A comparative lens makes visible the effects of institutional design in India. For parcel-based architecture, state-supported powers of rectification and indemnity funds, litigation is kept to a minimum because mistakes are rectified institutionally instead of through lengthy private litigation37. For the Land Registration Act, 2002 in England and Wales, the co-existence of provision for rectification and indemnity guarantees registered title without excluding equitable flexibility.

For the United States, residual risk is shifted onto the market with title insurance, which insulates purchasers and lenders from defects beyond prevention by registration or recording38. For comparison, Indian practice imposes this risk virtually entirely on litigants so that judicial determination of right becomes necessary in each contentious case. As empirical evidence confirms high litigation rates and programme evaluations of digitisation sans verification, so too the conclusion then holds without institutional correctives, registration is a fragile indicator of title. COMPARATIVE PERSPECTIVES Comparative practice shows that the ambiguities with respect to registration in India are not a

37 Simon Opas, Torrens Title in Australia (2nd edn, Federation Press 2020)

38 John C Murray, ‘Title Insurance and Public Records’ (2019) 92 ABA Journal 44

characteristic of property law but a product of institutional design. The Australian and New Zealand-style Torrens systems present an example of title by registration: entry onto the register per se provides ownership subject only to narrow exceptions like fraud39. This certainty is maintained through two principal mechanisms: correction of errors through rectification and compensation from an assurance fund. The mirror principle insures the register is current in respect of title's present legal state, while the curtain principle obviates the need to peruse ancient deeds. 2 Accompanied with parcel-based cadastral mapping and tight institutional integration, the design provides marketplace assurance that recourse to the register is safe and final. The English system under the Land Registration Act, 2002 is a moderated regime.

Section 58 bestows legal title on registering, but the Act balances this rule with powers of rectification and with indemnity provisions securing parties who lose from register mistakes. Further, recognising overriding interests, such as short leases and rights of persons in actual occupation, maintains equitable flexibility. This framework balances settlement and equity: the register offers presumptive authority, but the law has correctory avenues to sort out error or unfairness. For India, the English illustration demonstrates that a title by registration regime can be built without reverting to formalism, as long as rectification and indemnity stay core to the conception. The American model emphasizes an alternative solution: allocation of risk via the market.

Recording acts establish priority but do not ensure precision, so title insurance has evolved to insure and pay back defects, frauds, or adverse claims40. Insurers do their due diligence, keep title plants, and take residual losses in return for premiums. Although this regime entails considerable expense and does not eradicate inequality of access, it affords functional certainty for scale transactions. In theIndian setting, such insurance might play an intermediate role during transitions while public regimes converge on greater verification and assurance. Collectively, these comparative regimes reflect an identical lesson: reliability does not emanate from registration per se but from attendant institutions like verification, rectification, indemnity, or insurance that match appearance with actionable title.

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40 American Land Title Association (ALTA), ‘Title Insurance Basics’ (2020)

PROPOSED REFORMS FOR INDIA Reform of the Indian registration system involves shifting from treating registration as determinative of title to looking upon it as just one aspect in a general scheme of verification of title, rectification and allocation of risk. Short-term reform should begin with clarification of statute. The Registration Act, 1908 could be amended to state in so many words that an instrument registered creates a rebuttable presumption of due consideration and due execution but does not confer indefeasible title. This provision would accord legislative expression to the Supreme Court's consistent jurisprudence from Suraj Lamp and Industries Private Limited v. State of Haryana 41through Mahnoor Fatima Imram v. State of Telangana42, which has been uncompromising in holding that registration provides proof but does not affirm incorrect transactions.

Administrative reform would involve an improvement in the quality of encumbrance searches through the integration of court proceedings, revenue objections and statute attachments in a standard report to augment the informational value of registration without undue pre-emption of assurance43. Medium-term reforms must correct institutional failures across seams in the chain from registration, through mutation, to survey. Entitlement checks before pre-registering high-value urban transfers could be instituted through a requirement to submit a chain-of-title dossier compiled by licensed conveyancers, accordingly enhancing accountability without turning registrars into tribunals44.

The creation of rectification forums having powers to correct erroneous or forged entries, with an assurance fund paid through a modest levy on transaction volume, would put the system pari passu with international experience with and without the Torrens framework and the Land Registration Act, 2002 respectively. Concomitant investment in geospatial resurvey and distinct parcel identifiers would yield the geographic precision to shift from a registry based on deeds to a parcel-based register of rights. Such changes would diminish dependence on litigation as the ultimate dispute-settling mechanism in favor of incorporation of verification and correction in institutional arrangements.

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44 Law Commission of India, 101st Report on the Registration Act (1984); 222nd Report on Need for Conclusive Land Titling (2009) In the longer term, India might take on hybrid mechanisms to fairly apportion residual risk. A Torrens-lite system might be tested in districts where cadastral resurvey and institutional integration were finished, conferring statutory conclusiveness on the register prospectively while retaining powers of rectification and indemnity for persons adversely affected45. At the same time, regulated title insurance might function as a market buffer, insuring residual risks remaining outside public institutions and securing buyers and lenders against hidden defects. These reforms would neither displace Transfer of Property Act nor Evidence Act but supplement them so that appearance of certainty generated through registration becomes congruent with right in law.

By structuring a regime in which mistakes are put right institutionally and not through litigation without end, Indian property law might escape documentary formalism and achieve true legal security.

CONCLUSION

The analysis in this paper has shown that Indian property law systematically overstates the function of registration. The statutory framework of the Registration Act, 1908, the Transfer of Property Act, 1882 and the Evidence Act, 1872 establishes registration as a mechanism of recordation and evidentiary ordering, but not as a guarantee of ownership. Jurisprudence from Narandas Karsondas v. S A Kamtam through Suraj Lamp and Industries Private Limited v. State of Haryana to Mahnoor Fatima Imran v. State of Telangana confirms that defects of entitlement such as fraud, incapacity, or break in the chain of title are not cured by registration. Registration creates presumptions but not conclusive rights. This doctrinal boundary has been repeatedly reaffirmed by the Supreme Court to resist the conflation of procedure with substance. Empirical realities attest to this conclusion.

Litigation figures reveal property disputes comprise a high volume of civil cases, testifying to the inability of registration to establish title decisively. Evaluations of the DILRMP also reveal increased accessibility and expedition through digitisation have been unable to remedy underlying defects in parcel identity, capture of encumbrances, or integration across registration, mutation and survey. The administrative mechanism accordingly generates what best amounts to false certainty: registers generally visible but still requiring judicial

45 Peter Butt, Land Law (7th edn, Lawbook Co 2017) 717

reconstruction of title entitlement. Comparative regimes in Australia, England and the United States then reveal that this is not a necessary outcome. Torrens regimes achieve it through indefeasibility and indemnity, the Land Registration Act, 2002 balances title by registration with rectification and overriding interest and American practice shares risk through title insurance. Each demonstrates how certainty is produced not from the volume of registration but from institutionalising error and allocation of risk. For India, the challenge is in reconciling visibility of registration with verifiability of entitlement.

Incremental reform - clarifying the presumptive nature of registered title, upgrading encumbrance intelligence, instituting rectification forums and assurance funds and piloting Torrens-lite regimes backed by regulated title insurance can take the system towards substantive security. These changes would not reverse the existing doctrinal equilibrium under Transfer of Property Act or Evidence Act but supplement them through institutionalization of verification and correction. In Fuller's sense, such changes would impart procedures of registration a tighter link with legality; in Raz's sense, they would render settlement more dependable and in Dworkin's sense, they would put outcomes more in tune with principle.

By shifting from symbol to substance, property law in India can rebuild faith in land markets, lighten litigation burdens and take its registration regime closer to the rule-of-law values necessary to a secure and just society.