Non-Testamentary Instruments in Indian Property Law: Concept, Classification and Contemporary Jurisprudence

Non-Testamentary Instruments in Indian Property Law: Concept, Classification and Contemporary Jurisprudence

Introduction

The regime of documentary dealings in immovable property within India is fundamentally organised around a binary distinction between testamentary and non-testamentary instruments. Whereas wills regulate post-mortem devolution, non-testamentary instruments normally operate inter vivos and invite a complex interaction between statutory formality (chiefly the Registration Act, 1908 and the Transfer of Property Act, 1882) and judge-made tests for identifying their nature, validity and enforceability. Recent Supreme Court pronouncements—most notably Suraj Lamp & Industries (P) Ltd. v. State of Haryana[1]—have reignited interest in this classification by scrutinising surrogate conveyancing devices such as SA/GPA/Will transactions. This article undertakes a systematic analysis of the notion of “non-testamentary instrument”, traces its jurisprudential evolution, and evaluates contemporary controversies surrounding registration, revocability and unilateral cancellation.

Conceptual Framework

Statutory Point of Departure

While the Registration Act, 1908 does not define the expression non-testamentary instrument, Section 17(1)(b) employs it residually to denote “other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish… any right, title or interest… to or in immovable property”. Read contextually with Section 49, the phrase captures a broad universe of documents that affect proprietary interests during the lifetime of the executant and whose efficacy is contingent on compliance with prescribed formalities, principally registration when the value of the subject property exceeds one hundred rupees. Complementarily, Section 5 of the Indian Trusts Act, 1882, mandates that a trust of an immovable property be created either “by a non-testamentary instrument… and registered”, or by will, thereby reinforcing a parallel statutory usage[2].

Judicial Tests Distinguishing Testamentary and Non-Testamentary Instruments

Decisional law has crystallised two main indicia:

  • Timing of operative effect. If an instrument is intended to come into operation only upon the death of the executant, it is testamentary; if it is to operate immediately or in praesenti, it is non-testamentary.[3]
  • Revocability. A will is inherently ambulatory and revocable during the testator’s life, notwithstanding any clause declaring it “irrevocable”. Conversely, a deed or settlement conferring immediate proprietary rights remains irrevocable in law even if it purports to reserve a right of cancellation to the settlor.[4]

These principles, reiterated by the Supreme Court in P.K. Mohan Ram v. B.N. Ananthachary[5], guide courts in resolving disputes where a single document is claimed either as a gift/settlement (non-testamentary) or as a will (testamentary), or where the instrument combines both characters.

Doctrinal Evolution Through Case-Law

(A) Immediate versus Deferred Devolution

In Rajammal v. Pappayee Ammal, the Madras High Court held that a document conferring an immediate estate, even while reserving a life interest to the settlor, remains a non-testamentary settlement requiring registration; irrevocability, not nomenclature, is the pivotal test[6]. Likewise, Sellayi (Deceased) v. Valliammal reaffirmed that an instrument operative forthwith is a non-testamentary gift notwithstanding a recital of revocability[7].

(B) Composite Instruments and Dual Character

Courts have acknowledged the possibility of a single document functioning partly as a deed and partly as a will. The Bombay High Court in Thakur Umrao Singh v. Thakur Lachhman Singh accepted that one portion of an instrument may effect an immediate transfer (non-testamentary), while another may operate after the executant’s death (testamentary)[8]. The task is interpretative: ascertain the true intention by reading the instrument as a whole and, where necessary, admitting surrounding evidence.

(C) Family Arrangements and Oral Settlements

The Supreme Court’s decision in Kale v. Deputy Director of Consolidation provides a specialised application. A bona fide family arrangement—whether oral or reduced to writing merely as a memorandum—may fall outside Section 17 if it does not itself purport to create or transfer rights but only records a pre-existing partition.[9] Such instruments, though non-testamentary, are valid without registration and gain enforceability through the doctrine of estoppel when parties have acted upon them.

(D) Surrogate Conveyancing Devices

Suraj Lamp constitutes a watershed in underscoring that agreements to sell (SA) coupled with general powers of attorney (GPA) or wills do not, singly or cumulatively, amount to valid conveyances. GPA and agreement are quintessentially non-testamentary instruments; yet, absent a registered deed of conveyance, they neither create nor transfer title[1]. The Court’s rationale—curbing stamp-duty evasion and black-money circulation—demonstrates the regulatory dimension of non-testamentary instruments.

(E) Mortgages by Deposit of Title Deeds

The Supreme Court in State of Haryana v. Narvir Singh and earlier in Rachpal Mahraj v. Bhagwandas Daruka examined whether a memorandum recording an equitable mortgage by deposit of title deeds itself attracts registration. The Court held that if the memorandum embodies the bargain creating the charge, it is a non-testamentary instrument within Section 17(1)(b) and must be registered; if purely evidentiary, registration is unnecessary.[10]

(F) Awards and Trust Deeds

Arbitral awards partitioning immovable property are now settled to be non-testamentary instruments requiring registration (Sardar Singh v. Krishna Devi)[11]. Trusts of immovable property created inter vivos through a written deed also fall within the taxonomy of non-testamentary instruments and hence attract Section 5 of the Trusts Act and Section 17 of the Registration Act (Sri Dilip Kumar Dey v. Sarathi Sundar Dey)[12].

Registration, Revocation and Unilateral Cancellation

Mandatory Registration and Evidentiary Consequences

Section 17(1)(b) of the Registration Act renders registration compulsory for non-testamentary instruments affecting rights in immovable property valued above one hundred rupees. Failure to register invites the disabling effect of Section 49: such document “shall not affect any immovable property… nor be received as evidence” except for collateral purposes. Decisions such as Sardar Singh (1994 SC) underscore that the court must look to what the document purports to do, not merely what it intends, to determine registrability[13].

Revocability and Cancellation

The irrevocable character of a completed non-testamentary transfer constrains the executant from unilaterally cancelling the deed. The Full Bench of the Madras High Court in Latif Estate Line India Ltd. v. Hadeeja Ammal declared unilateral cancellation void ab initio, a principle recently reiterated in S. Govarthanan v. Inspector of Registration and Brindha v. Natarajan[14]. Remedies lie in civil suits for annulment on recognised grounds such as fraud, undue influence or failure of consideration.

Inter-relation with Procedural Law

Appellate scrutiny of findings concerning non-testamentary instruments is circumscribed by Section 100 of the Code of Civil Procedure. In Thulasidhara v. Narayanappa, the Supreme Court restored concurrent findings of the lower courts because the High Court did not frame a “substantial question of law” on the admissibility and effect of an unregistered partition deed— itself a non-testamentary instrument whose probative value was confined to corroborative purposes[15]. The ruling aligns procedural discipline with substantive validity requisites.

Contemporary Challenges and Policy Considerations

  • Digital Registration. State initiatives for electronic registration raise questions about the authenticity, storage and evidentiary status of digitally executed non-testamentary instruments.
  • Taxation and Valuation. Under-valuation remains a concern; judicial calls for stringent duty-collection (as in Suraj Lamp) invite policy refinements to curb evasion without stifling legitimate transactions.
  • Consumer Protection in Real Estate. The Real Estate (Regulation and Development) Act, 2016 presupposes registered conveyances; proliferation of informal or proxy instruments threatens allottees’ interests, necessitating robust enforcement.
  • Overlap with Trust and Charity Law. Public charitable trusts often employ settlement deeds; clarity on their non-testamentary character ensures certainty over vesting and governance.

Conclusion

The jurisprudence of non-testamentary instruments reveals a delicate balance between freedom of contract, evidentiary certainty and public-revenue considerations. Courts have consistently privileged substance over form: the operative timing and intended irrevocability of the document remain decisive, clothing the instrument with the legal incidents of a deed rather than a will. Registration is the statutory linchpin that validates and publicises such transactions; its absence cannot be cured by ingenuity in draftsmanship, as Suraj Lamp emphatically demonstrates. At the same time, equitable doctrines—family settlement, estoppel, trust—temper rigidity where justice demands flexibility. Legislators, registrars and practitioners must assimilate this layered doctrine to ensure that property transfers are effected transparently, irrevocably and in consonance with the rule of law.

Footnotes

  1. Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC 656.
  2. Sri Dilip Kumar Dey v. Sarathi Sundar Dey, (2010) Cal HC; Indian Trusts Act, 1882, s. 5.
  3. Rajammal v. Pappayee Ammal, (2002) Mad HC.
  4. Sellayi (Deceased) v. Valliammal, (2014) Mad HC; also, cf. Lord Coke in Vynior’s Case (1609).
  5. P.K. Mohan Ram v. B.N. Ananthachary, (2010) 12 SCC 269.
  6. Rajammal v. Pappayee Ammal, supra note 3.
  7. Sellayi, supra note 4.
  8. Thakur Umrao Singh v. Thakur Lachhman Singh, (1911) 13 BOMLR 404.
  9. Kale v. Deputy Director of Consolidation, (1976) 3 SCC 119.
  10. State of Haryana v. Narvir Singh, (2014) 1 SCC 105; Rachpal Mahraj v. Bhagwandas Daruka, AIR 1950 SC 272.
  11. Sardar Singh v. Krishna Devi, (1994) 4 SCC 18.
  12. Sri Dilip Kumar Dey, supra note 2.
  13. Sardar Singh, supra note 11.
  14. S. Govarthanan v. Inspector of Registration, (2024) Mad HC; Brindha v. Natarajan, (2020) Mad HC.
  15. Thulasidhara v. Narayanappa, (2019) 6 SCC 409.