Possession, ownership and title: Why distinctions in property rights still matter

In Indian property law, three terms are frequently conflated possession, ownership, and title. While they may appear interchangeable to a layperson, each carries distinct legal implications.

Ownership refers to the complete legal right in a property, encompassing the ability to use, enjoy, sell, lease, or mortgage it. Title is the legal proof of ownership, generally demonstrated through registered documents like a sale deed. Possession, on the other hand, merely implies physical control or occupation of a property, which may or may not be supported by legal rights.

Many property disputes arise precisely because these distinctions are misunderstood or deliberately blurred. For instance, a person in possession under an unregistered agreement or a Power of Attorney (PoA) may believe they have ownership, but in law, they hold little more than a precarious foothold. As real estate transactions become more complex and digitized, it is more critical than ever to clearly delineate these concepts, not only to avoid disputes but to enable more secure investments and enforceable rights.

Sale ≠ Agreement to Sell: Why the difference is not just semantics

The Transfer of Property Act, 1882 (ToPA) makes a clear distinction between a sale and an Agreement to Sell (ATS) [Section 54, ToPA]. A sale results in the immediate transfer of ownership upon execution and registration of a duly stamped sale deed. In contrast, ATS is a promise to transfer ownership at a future date, subject to agreed terms and conditions. 

Even when possession is handed over and the buyer has paid full consideration, no legal interest in the property passes until a proper sale deed is executed and registered. Consequently, a buyer holding only an ATS does not acquire any enforceable title and cannot mutate their name in revenue records or raise finance against the property. Their remedy lies in seeking specific performance under the Specific Relief Act, 1963. This legal divide is not just technical; it fundamentally affects enforceability, ownership claims, and the security of transactions. Misunderstanding can and often does lead to years of litigation and uncertainty.

The act of registering a document does not, by itself, establish ownership. This principle is both misunderstood and misused, particularly by those who believe that registration alone guarantees title. Under the Registration Act 1908, the function of registration is procedural. It ensures public notice of transactions, evidence execution, and determines priority in case of competing claims, but does not confer title. Consequently, a registered document may be valid in form but still defective in substance if the underlying title is flawed.

The proposed Registration Bill 2025 builds on this understanding by modernizing the registration framework. It introduces online registration portals, biometric verification to reduce impersonation, and integration with land records to improve transparency. These are significant improvements to reduce fraud, speed up transactions, and improve traceability. But none of them alter the fundamental legal position that registration is not conclusive proof of ownership. A registered sale deed by someone without a proper title is still voidable and subject to challenge. In this context, the shift towards digital registration should not create a false sense of security. While it enhances procedural reliability, it does not replace the need for substantive legal scrutiny. Buyers, lawyers, lenders, and developers must continue to perform due diligence verifying the seller’s title, chain of documents, encumbrance status, and litigation history. Technology can streamline documentation, but it cannot cure legal defects.

To address situations where a buyer has taken possession under a contract and fulfilled their part of the bargain, the law provides a limited safeguard under Section 53A of the ToPA - the doctrine of part performance. This section allows a buyer in possession, acting upon a written contract for consideration, to defend their possession against the seller’s attempts to evict them, even if the sale deed has not been registered.

But the protection under Section 53A is narrow, conditional, and increasingly difficult to invoke. Crucially, it does not confer ownership; it merely prevents the seller from reclaiming possession in breach of their agreement. The buyer cannot assert title, sell the property, or claim any interest beyond possession. In legal terms, it is a “shield” and not a “sword”; useful in defence but unavailable for offensive legal action such as a suit for declaration or sale.

This limited protection is further curtailed by statutory amendments. After the 2001 amendment to the Registration Act, 1908, even the agreement underpinning the claim under Section 53A must be registered [Section 17 (1A), The Registration Act]. Unregistered agreements, however detailed or well-intentioned, offer no refuge. As a result, informal and unregistered arrangements, once a widespread practice in Indian real estate, now amount to little more than tenancy at will.

Looking ahead, the Registration Bill 2025 is set to tighten the noose further. With the move towards online registration, biometric authentication, and centralized recordkeeping, every transaction will leave a digital trail. Buyers who rely on unregistered agreements or oral understandings will increasingly find themselves unable to invoke equitable protections. In effect, the law is moving towards a regime where formal compliance with registration and documentation requirements is not merely advisable but essential. The era of informal, possession-based real estate transactions is coming to a close and rightly so.

Judicial interpretation has played a critical role in clarifying the legal boundaries between possession, ownership, and title, often correcting misconceptions that informal arrangements or mere occupation can somehow evolve into full ownership. A series of landmark Supreme Court judgments have decisively settled the law on what constitutes a lawful transfer of property and what does not.

Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana

- The Supreme Court ruled that documents like General Power of Attorney (GPA), Agreements to Sell, or Wills do not transfer ownership of immovable property. [Para 11]

- While these documents may create certain contractual or fiduciary relationships, they do not amount to a conveyance under Section 54 of the Transfer of Property Act or the Registration Act.

- Ownership of immovable property passes only through a registered deed of conveyance, [Para 16] and not through creative paperwork.

Thomson Press (India) Ltd. v. Nanak Builders & Investors Pvt. Ltd.

- The Supreme Court held that a subsequent buyer who knows about an earlier agreement to sell cannot claim a better right over the original buyer.

- It was further clarified that a subsequent purchaser must be made a party to any suit for specific performance and can be required to complete the transaction in favour of the original buyer.

- The ruling reinforces that an Agreement to Sell doesn’t create ownership, but the equitable rights of the first buyer are protected if they are ready and willing to perform.

- The judgment stresses the importance of due diligence for purchasers and that failure to check prior claims can seriously affect the transaction’s validity.

K. Gopi v. Sub Registrar

- The Supreme Court examined the statutory role of sub-registrars in property registration and clarified that sub-registrars have no power to decide ownership or verify title.

- The Court clarified that the role of sub-registrars is strictly confined to checking procedural compliance and ensuring documents are properly presented, stamped, and signed.

- It emphasized that registration only gives public notice of a transaction, and it is not a determination of ownership rights.

Together, these rulings affirm that ownership of immovable property arises only from a valid, lawfully executed and registered conveyance, and not from possession, part performance, or unregistered documents. Possession may have equitable value, and registration is necessary, but neither is conclusive proof of title.

Possession ≠ Ownership: Holding a Power of Attorney, a hand-written agreement, or even long-term possession does not make you the owner. Only a registered sale deed does.

Due Diligence is non-negotiable: Buyers must verify the title chain (ideally for 30 years), check encumbrances, confirm the seller's authority, and review litigation history. This is not just a formality, it’s your shield.

Informal deals are risk magnets: Sellers and developers using MoUs, PoAs, or unregistered documents to shortcut formal conveyancing risk prolonged litigation, stalled projects, and regulatory scrutiny, especially in JDA or land pooling models.

Registration ≠ Title Verification: Sub-registrars cannot and do not determine ownership. Their job is procedural, not judicial. A registered document can still fail if the underlying title is defective.

Digital ≠ Foolproof: Biometric verification and e-records are a welcome upgrade but don’t confuse tech-enabled registration with legally sound conveyancing. The fundamentals haven’t changed.

In sum, for every stakeholder whether buyer, seller, developer, or public authority the message is clear: legal formality is not red tape; it is the spine that upholds property rights. Ignoring it, bypassing it, or substituting it with convenience-based arrangements will invite uncertainty and litigation in an area where certainty is paramount.

As the real estate sector adapts to digitization and policy reform, it is tempting to believe technology alone can cure entrenched problems of fraud, opacity, and inefficiency. The Registration Bill, 2025 marks a major shift, enabling online registration, biometric authentication, and real-time access to land records.

However, even the most advanced registration system cannot override the fundamentals of property law. Technology may verify who signed a deed and when, but it cannot establish whether the transferor had the legal right to sell. No biometric scan or digital record can replace the requirement of valid title and lawful conveyance.

The way forward demands a dual approach: embracing digital platforms, compliance systems, and data transparency, while continuing to rely on legal safeguards such as sound documentation, title scrutiny, judicial remedies, and enforceable obligations. Technology can expose defects faster, but only legal diligence and proper documentation can cure them.

Ultimately, the cornerstone of secure real estate transactions is certainly not mere possession or digital filing, but lawful conveyance, compliant registration, and a clear chain of title. As courts have consistently held, procedure records a transaction, but only a valid conveyance creates ownership. This remains the enduring bedrock of Indian property law, one that even the digital era must preserve.

About the authors: Vikram Sobti is a Partner and Head of Real Estate Practice and Aditya Pandey is a Senior Associate at Chandhiok & Mahajan.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.

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