This article is written by Amrisha Mitra, a student of Amity University, Kolkata.
Table of Contents
Introduction
The Registration Act, 1908 deals with the enactments relating to the registration of documents. Registration is the procedure through which all the documents are recorded by a recognized officer along with other necessary information to ensure it’s transparency and authenticity. Section 17(1) of the Act provides for mandatory registration of certain documents which are as follows :
a) gift deed of immovable property.
b) non-testamentary documents signifying any operation, declaration, assignment, limitation and extinguishment of any right, title or interest in immovable property worth rupees one hundred and above.
c) non-testamentary instruments granting receipt or payment of any consideration on account of creation, limitation, assignment, declaration or termination of such right, title or interest.
d) leases of such immovable property for a term exceeding one year or reservation of yearly rent.
e) non-testamentary documents conveying or assigning any decree or award of the court involving creation, declaration, assignment, limitation or extinguishment of any right, title or interest in an immovable property worth rupees one hundred and above.
f) The documents of contracts regarding transfer of any immovable property for consideration for the purpose of section 53 A of The Transfer of Property Act, 1882 that has been executed on or after the inception of Registration and Other Related Laws Amendment Act, 2001.
However, it must be noted that The State Government has the right to exclude any lease executed in any district or part of a district, the terms granted by which do not exceed five years and annual rents which do not exceed fifty rupees.
Optional registration of documents
Section 18 of this Act lists the following documents that may be registered under this Act :-
a) Adoption Deed
b) Instruments which relate to share in Joint Stock company
c) Debenture issued by Joint Stock Company
d) Endorsement upon or Transfer of Debenture, which is issued by Joint Stock Company.
e) Decree or order of the court involving creation, declaration, assignment and extinguishment of any right, title or interest in an immovable property of value less than one hundred rupees.
f) Document of Past transaction
g) Wills
h) Grant of immovable property by the Government.
i) Instrument of Collateral Security
j) Power of Attorney
k) Agreement to Sell
l) Agreement of Mortgage
m) Certificate of Sale
n) Counterpart of Lease
o) Promissory Note
p) Leases of immovable property not exceeding one year and leases excluded under section 17.
When to register documents?
According to section 23 of this Act no documents except will shall be allowed for registration unless it’s presented within four months from the date of it’s execution. If the document is executed by several persons at different times, then such document has to be furnished for registration and re-registration within four months from the date of each execution (s.24).
If any document executed or decree made is not presented for registration within the prescribed time period due to any unavoidable accident or urgent necessity then the registrar may direct to present such document for registration within four months with a payment of fine not exceeding ten times the amount of registration fees.(s. 25). An application must be made to the sub-registrar who shall forward it to the Registrar to whom he is the subordinate. If a document, has been executed by any of the parties outside India for registration after the expiry of the given time period, then such document must be presented to the Registering Officer for registration within four months after it’s arrival in India.
Where to register documents?
According to section 28 of this Act all the documents in relation to immovable property must be presented for registration in Sub registrar’s Office within whose sub-district the whole or part of the property is situated. The officer may on special circumstances attend at the residence of any person who desires to deposit a will or present a document for registration (s.31).
Who can apply for registration ?
According to section 32 of this Act all documents to be registered under this Act must be presented at the proper registration office by :
- some person executing or claiming under the same or incase of a copy of a decree or order, claiming under the decree or order;
- representative of that person;
- representative or assignee of such person who is authorized by power of attorney executed and authenticated in manner hereinafter mentioned.
Every person presenting any document shall affix his passport size photograph and fingerprints to the document provided that such document is in relation to transfer of ownership of immovable property. Photographs and fingerprints of both buyer and seller of the property must be mentioned in the document.
A will or authority presented by the testator or the donor for registration shall be registered in the same manner as any other document provided that 1) the will was executed by the testator or donor, 2) The testator or donor is dead, 3) The person presenting the will or authority u/s 40 is permitted to present the same.
Effects of non-registration of documents
Section 49 of this act states that :
- No document required to be registered under section 17 of this Act shall be valid for creation, operation, declaration, limitation and assignment of any right, title or interest in any immovable property unless it’s registered within the specified time period.
- The document shall not confer any power to adopt.
- The document cannot be received as an evidence of any transaction affecting such property or conferring such power.
Registration fees
The required amount of fees must be paid while presentation of documents. (s.80)
Case laws
In the case of Narinder Singh Rao v. Avm Mahinder Singh Rao Narender’s father had left behind a will stating that his wife could inherit the property. The will that was signed by a single witness wasn’t registered and the widow bequeathed the entire property to one of her nine children. The aggrieved children challenged their mother’s action in the court stating that the will was invalid and that they too had a right in their father’s property. The Supreme Court held that the children had the right to inherit the property as the will was invalid because it was not attested by two witnesses.
In Naginbhai P. Desai v. Taraben A Sheth AIR 2003, Bom, 192 it was held that the agreement for sale cannot be considered as conveyance for the purpose of Indian Registration Act, 1908.
There is no force in contention that agreement for sale was compulsorily registrable under Clause (b) to subsection (1) of Section 17 of the Registration Act.
The Supreme Court in the case of H.P. Puttaswamy v Thimmamma & Ors CIVIL APPEAL NO. 3975 OF 2010 observed whether the presense of purchaser of an immovable property is required before the concerned authority under the Act when registration of a deed is carried out in conveyance in accordance with the Act. The dispute in this case was in relation to a property measuring 4,500 square feet in the village of Hittanahalli Koppalu in Malavallu Taluk in the State of Karnataka (“Suit Property“).
It was found out that two sale deeds were executed with regard to this property. The appellant instituted a suit on March 31, 1989 to be regarded as lawful owner of the suit property. The appellant had come in possession of this suit initially as a tenant and later as a purchaser pursuant to the plaintiff’s deed. The Supreme Court invoked section 32 of the act and stated that apart from the exceptions proposed under Section 31,88 and 89 of the Act if the document is being registered notwithstanding the fact whether the registration of such a document is compulsory or optional would require either:
(i) some person executing the document or claiming rights under the document, or
(ii) by the representative or assign of such a person, or
(iii) by the agent of such a person, representative who has a duly authorized power of attorney to be present before the concerned authority under the Act. From a bare reading of Section 32 it can be understood that both the parties to a sale deed need not be be present before the concerned authority under the Act. And since the conveyance deed did not fall under the exceptions mentioned under the section 32, the Supreme Court disposed the case without intervening with the High Court’s Judgement and clarified that Section 32 does not require the presence of both the parties to a sale deed when the same is given for registration to the concerned authority under the Act.
In the case of Thualsidhara & Another v. & Others, the Supreme Court observed that a written document relating to family settlement or family arrangement without registration can be used as a corroborative evidence for explaining the arrangement made and the conduct of the parties.
In the case of Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana, AIR 2012 SC 206, the court held that an immovable property can be legally transferred only by a registered deed of conveyance and transactions which are in the form of General Power of Attorney Sales or Sale by agreement to sell or Transfer by will do not confer title and does not amount to transfer of immovable property. Transactions of such a nature cannot be recognized as deeds conferring title except to the limited extent of Section 53 A of The Transfer of Property Act, 1882.
In the case of Hansia v. Bakhtawarmal, AIR 1958 Raj 102 the issue that arose in this case was how far a non-registered document that needed mandatory registration under Section 17 of this act can be used in the proceeding. The document in question was a mortgage deed that was not registered. It was observed that a suit for recovery based on an unregistered mortgage deed is bound to fall because the purpose of the mortgage deed is to prove the mortgage. The unregistered mortgage deed can only be used for collateral purposes as per Section 49 of the Registration Act.
The unregistered deed can only be used by the plaintiff in a suit for possession and not in a suit for redemption to prove the nature of possession. Thus, Section 49 of the Act cannot be used for availing any benefit in a suit for redemption. Collateral purpose connotes a purpose other than that for creating, assigning, declaring, extinguishing or limiting a right to an immovable property; documents requiring compulsory registration under the Registration Act, 1908, can be used for collateral purpose.In the case of Tek Bahadur Bhujil v. Debi Singh Bhujil AIR 1966 SC 292 The court held that where a document regarding family arrangement is made in writing with the purpose of using it as a proof then such a document would require mandatory registration as the document would amount to document of title declaring for future the various rights or claims or properties each member of the family would acquire and enjoy.
Why registration of documents is important?
- The Registration Act, 1908 was implemented to provide discipline and public notice concerning transactions in relation to immovable property. The Act provides for mandatory registration of certain documents to protect them from any type of fraud.
- It acts as a valid proof and aids a person in taking a legal action during any dispute.
- It ensures transparency in deals.
- It’s easier to find out if there’s any impediment or ongoing litigation with regard to a property if the document is registered.
Conclusion
Registration of documents is mandatory to prevent any property dispute. The necessary documents must be properly registered by following the procedure mentioned under this Act otherwise it may become invalid. It also provides for a proper administration in the court system within a definite time frame.
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