The Registration Act , 1908

Registeration Act 1908 Others

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THE REGISTRATION ACT, 1908

TABLE OF CONTENTS

1. Registration of Documents

2. Registration Establishment for registration of documents

3. Registrable Documents

4. Requirements of Registration of Documents

5. Presentation of Documents for Registration

6. Procedure for Registration of Documents

7. Effect of Registration and Non-Registration of Documents

8. Duties and Powers of Registering Officers

10. Miscellaneous Provisions

The Registration of documents is made under the provisions of the Registration Act, 1908. The Registration Act 1908 is used for proper recording and registration of documents / instruments, which give them more authenticity.

The item “Registration of deeds and documents” appears as entry No-6 in the List III of Seventh Schedule to the constitution of India. In accordance with Article 246 (2), the parliament and legislatures of the State have concurrent powers to make laws on the subject. Registration refers to the recording of the contents of a document with a Registering Officer appointed by the State Government. The State Government may exclude any district or tracts of country from its operation. The Registering Officer performs the important function of preservation of copies of the original document.

The Act deals with cases where transactions between individuals are reduced to writing and provide for compulsory or optional registration, as the case may be, of such written instruments. It does not deal with transaction not reduced to writing.

The Registration Act strict only at documents and not at the transaction. The act does not require that a transaction affecting immovable property should be carried out by a registered instrument. All that it enacts is that when a document is employed to effectuate any of the transactions specifies in section 17 of Indian Registration Act, such documents must be registered.

This Act is divided into XV PARTS containing 93 sections, and 1 Schedule.
The Registration Act 1908 extends to the whole of India except to the State of Jammu and Kashmir.

Brief History of the Registration Act 1908

Before the year 1864, there existed multiple enactments as to registration of documents in British India. There were regulations applicable to each of the provinces of Bengal, Bombay and Madras, providing for the registration of documents. The first complete enactment as to registration of documents was passed by Act XVI of 1864, consolidating and amending all the previous laws relating to the registration of assurances. It introduced for the first time a system of compulsory registration in British India as to certain clauses of the documents and also abolished the provisions limiting the rights of priority to registered deeds as against unregistered document of the same nature. But even under this Act, the right of priority was given to document optionally registerable and not to documents compulsorily registerable. Thus, if two documents A and B were both optionally registerable, and one of them A was registered, then A would have priority over B. But if A was compulsorily registerable and B was optionally registerable, the fact that A was registered did not entitle it to priority over B.

The law relating to registration of assurances was again consolidated and amended by Act XX of 1866. It was again amended by Act VIII of 1871. The Act of 1871 was subsequently amended by Act III of 1877. The Act of 1877 for the first time introduced a provision to give priority to registered documents irrespective of the fact that whether they were optionally or compulsorily registerable.

Preliminary (Part I)

In 1908, a new Act namely the Indian Registration Act, 1908 (Act No. XVI of 1908) was enacted for consolidation of enactments relating to the registration of the documents. The Registration Act 1908 was earlier known as the Indian Registration Act 1908. It shall come into force on the first day of January, 1909. The word ‘Indian’ was omitted from the name of the Act on 26th December, 1969 by Act no. 45 of 1969.

Objective of Registration

The main purpose of registration of documents or the object of The Registration Act 1908, amongst other things is to provide a method of public registration of documents so as to give information to people regarding legal rights and obligations arising or affecting a particular property and to perpetuate documents which may afterwards be of legal importance, and also to prevent fraud.

Registration lends inviolability and importance to certain classes of documents: Jogi Das v. Fakir Panda A.I.R. 1970 Orissa. 22.

Therefore, the objectives can be listed as follows:

The conservation of evidence
Assurance of title, publicity of documents and prevention of fraud.
Registration ensures and safeguards the interest of an intending purchaser.

The scheme of the Act is to consolidate the law relating to registration and to provide for the establishment of its registration. It lays down what documents require compulsory registration. S. 23 of the Act provides the time for presenting the documents for registration. It provides limitation for getting a document registered. S.25 provides for condonation of delay in presenting documents for registration. S. 34 specifically provides for that enquiry, that can be held before the registration by the Registering Officer: Central Warehousing Corporation v. Registrar of Registration of Registration of Documents-cum Collector (1988) 2 Rev .L.R. 390 (P. & H.).

Principles which govern interpretation of Stamp Act do not govern interpretation of Registration Act: Hakim Ghulam Mohammad v. Zahoor Ismaill A.I.R. 1970 Raj 171.

Stamp Act and Registration Act though not strictly in pari materia, may be read together-Definition in Stamp Act apply to Registration Act-(There being no definition of "Release" under Registration Act, definition in Art. 55 of Stamp Act is useful): Leela Dhundiraj Direkar. V.E.C. Shinde A.I.R. 1970 Born. 109.

Definitions (Section 2)

1. Addition [Section 2(1)]

It means the place of residence, and the profession, trade, rank and title (if any) of a person described, and, in the case of an Indian, his father's name, or where he is usually described as the son of his mother, then his mother's name;

2. Book [Section 2(2)]

It includes a portion of a book and also any number of sheets connected together with a view of forming a book or portion of a book

3. District and sub-district [Section 2(3)]

It means a district and sub district formed under this Act;

4. District Court [Section 2(4)]

It includes the High Court in its ordinary original civil jurisdiction;

5. Endorsement and Endorsed [Section 2(5)]

It include and apply to an entry in writing by a registering officer on a rider or covering slip to any document tendered for registration under this Act;

6. Immovable property [Section 2(6)]

Note: In India, the term is defined in (i) T.P. Act. (ii) General Clauses Act. (iii) Indian Registration Act (i) T.P. Act. The definition of immovable property is in two parts. Part I defines "immovable property". Part II is in definition of "attached to earth". Both have to be read together for knowing "immovable property". The definition of immovable property includes three things namely—Land, benefits to arise out of land, and things attached to the earth. It excludes three things, namely—standing timber, growing crops and grass. The definition of the expression "immovable property" in this Act is a negative definition and is neither comprehensive nor exhaustive. It merely excludes "standing timber, growing crops and grass". The definition as given in the Act does not help the reader much more. It leaves him nowhere. It only says that three things, namely, standing timber, growing crops and grass are not immovable. What then is immovable? The absence of any positive definition probably leaves the readers free to travel beyond the Act for getting at as to what is included in the term "immovable property"? This includes probably the residue. What is not specifically declared to be movable property will normally be within the term "immovable" if it comes as such under it by any other law.

The judicial analysis of the issue was made in Sukrey Kurdeppa v. Nagireddi, wherein Mr. Justice Holloway said: "Movability may be defined to be a capacity in a thing of suffering, alteration in the relation of place; immovability, incapacity for such alteration. If, however, thing cannot change its place without injury to the quality, it is immovable."

(ii) Immovable property in General Clauses Act Section 3, sub-section (25) of the General Clauses Act, 1897, which applies to this Act, defines immovable property as including "land", "benefit arising out of land and things attached to the earth, which means rooted in the earth, or embedded in the earth, or permanently fastened to anything embedded for its permanent beneficial enjoyments." This definition has reference only to the physical object and does not furnish an exhaustive test of what is, and what is not, immovable property.

In General Clause Act, the definition of immovable property is same as of "attached to earth" in T.P. Act. There are no exceptions in General Clauses Act as these are in T.P. Act (standing timber, growing crops and grass).

(iii) Indian Registration Act [Section 2(6)]

"Immovable property includes; land, buildings, hereditary allowances, right to ways, lights, ferries, fisheries or any other benefit to arise out of land and things attached to the earth, or permanently fastened to anything which is attached to the earth but not standing timber, growing crops nor grass."

he definition as given in Registration Act amalgamates the concepts as given in Transfer of Property Act and General Clauses Act. Despite it this definition too cannot be said to be exhaustive. It is still enumerative.

The term "immovable property" includes three things which are described as under. (i) "Land" —This does not include only the upper surface of the earthbut is extensive enough to cover things below it, for example, minerals and sea, ocean and properties below in their bottom. These are all immovable property. Any interest in these or in respect of these or any other property in it are all immovable property. Besides, well, tube-well, rivers, ponds, tanks, stream, canal dug on surface whether natural or artificial and all interests in these would fall in enumeration of the term "land". As such all are immovable property.

(ii) "Benefits arising out of land" —These benefits are immovables. The examples of benefits are rent from the house, shops and jagir, revenue from agriculture, right to collect lac , leaf or other things from forest, trees, etc. Similarly right to collect tahbazari, Baithaki, from rural market, right to collect tax on ghats and bridges are all examples of benefits arising out of the land.

It has been held by the Supreme Court that a right to enter upon land and to carry away the fish from a lake is a right to profit de prendre and that it is immovable property in India as a benefit arising from the land. Thus, right to profit de prendre are benefits arising from land, and, therefore, immovable property unless they relate to standing timber, growing crops or grass, which are specifically excluded by section 3.

Profit de prendre is included as easement in Indian Easement Act. It includes right to pluck flowers from the garden of any, right to take and carry water in bucket from well, canal or private personal tank of another, right to collect wood, twigs and leaf etc. These are benefits arising out of land; profit de prendre', 'immovable property rights in it.

RELEVANT CASES

1. Anand Behera v. State of Orissa, (1955) 2 SCR 919

FACTS: The petitioner had obtained a license to catch and appropriate all fish in specific sections of the Chilka lake from its proprietor (Raja of Parikud). With the passing of the Orissa Estates Abolition Act, 1951 ownership of the estate vested in the State of Orissa. State of Orissa refused to recognize the license of petitioner. Petitioner contended that their fundamental rights under Art 19(1)(f) and Art 31(1) is being infringed and they also contended that ‘catching and appropriating fish’ is a transaction relating to sale of future goods (which is the fish) and hence the Act which is applicable only to immovable property would not be applicable on him.

LEGAL PRINCIPLE UPHELD: The court held that the lake is an immovable property and therefore the petitioner’s right to enter in that estate (which he did not own) and carry away fish from the lake is a ‘profit a prendre’ and in India it is regarded as a benefit that arises out of the land and as such is immovable property.

REASONING BEHIND JUDGEMENT: The SC while holding that right to catch and carry away fish from specific sections of the lake over a specified future period is a license to enter on the land coupled with a grant to catch and carry away the fish and this grant is a profit-a-prendre, said that:

“The petitioners claim that the transactions were sales of future goods, namely of the fish, in these sections of the lake, and that as fish is moveable property Orissa Act of 1952 is not attracted as that Act is confined to immoveable property. If this is the basis of their right, then their petition under Article 32 is misconceived because until any fish is actually caught the petitioners would not acquire any property in it.”

“If the petitioners’ rights are no more than the right to obtain future goods under the Sale of Goods Act, then that is a purely personal right arising out of a contract to which the State of Orissa is not a party and in, any event a refusal to perform the contract that gives rise to that right may amount to a breach of contract but cannot be regarded as a breach of any fundamental right.”

Thus, as the sale of grant to petitioner was oral. However, a right related tangible immovable property (in this case, the fish), if it is more than Rs 100 needs to be registered (Sec 54 TPA). As there was no registration in this case therefore no title or interest was passed to the petitioner.

2. Shantabai v. State of Bombay AIR 1958 SC 532

FACTS: Shantabai’s husband had granted her the right to take and appropriate all kinds of wood from certain forests in his Zamindary through an unregistered document. With the passing of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, all proprietary rights in land vested in the State U/S 3 of this Act and the petitioner could no longer cut any wood. She obtained an order U/S 6(2) of the Act from the Deputy Commissioner and started cutting trees. The Divisional Forest Officer took action against her and passed an order directing that her name might be cancelled and the cut materials forfeited. She moved the State Government against this order but to no effect. Thereafter she applied to this Court under Art. 32 of the Constitution and contended that the order of Forest Officer infringed her fundamental rights under Arts. 19(i)(f) and 19(1)(g).

LEGAL PRINCIPLE UPHELD: This case basically relates as to what constitutes ‘standing timber’. However, the SC has in its judgement also talked about the phrase ‘benefit arising out of land’ and held that right to enter upon land and cut trees is a benefit arising out of land. The SC has based its decision on this point on the Anand Behera case.

REASONING BEHIND JUDGEMENT:

“In my opinion, the document only confers a right to enter on the lands in order to cut down certain kinds of trees and carry away the wood.”

“It is not a ‘transfer of a right to enjoy the immoveable property’ itself (s. 105 of the Transfer of Property Act), but a grant of a right to enter upon the land and take away a part of the produce of the soil from it. In a lease, one enjoys the property but has no right to take it away. In a profit a prendre one has a licence to enter on the land, not for the purpose of enjoying it, but for removing something from it, namely, a part of the produce of the soil.”

“Following the decision in Ananda Behera’s case, I would hold that a right to enter on land for the purpose of cutting and carrying away timber standing on it is a benefit that arises out of land. There is no difference there between the English and the Indian law.”

3. Bihar Eastern Gangetic Fishermen Cooperative Society Limited v. Sipahi Singh, (1977) 4 SCC 145

FACTS: The fishery rights in the Gangapath Islampur Jalkar which was with the Fishermen Cooperative Society from 1974 to 1975 for Rs. 150000 was made in favour of the respondent Sipahi Singh for the period 1975 to 1976 as a result of the public auction at which he offered the highest bid of Rs. 165000. However, the respondent requested for a remission in the amount at which the settlement had been made in his favour, on the ground that he had suffered a heavy loss during the year 1975-76, due to the unlawful activities of the appellants and if this was not possible, then in the alternative give him a continuance of fishery rights for the years 1976-1977 and 1977-1978 so that he could recoup his losses. The Government agreed to extend the time for his fishery rights in consideration of a deposit of Rs 165000. However, the government changed its mind later and settled the fishery rights with the appellant. Sipahi Singh (the respondent) challenged this order by filing a writ petition under Art 226 of the Constitution.

LEGAL PRINCIPLE UPHELD: The SC affirmed Anand Behera v State of Orissa case.

REASONING BEHIND JUDGEMENT: The SC said that there is no binding and enforceable contract between the State of Bihar and Sipahi Singh because the requirements for a government contract to be valid as provided in Art 299 of the Constitution were not complied with.

“The right to catch and carry away the fish being a ‘profit a prendre’ i.e. a profit or benefit arising out of the land, it has to be regarded as immovable property within the meaning of the Transfer of Property Act, read in the light of s. 3(26) of the General Clauses Act. If a ‘profit a prendre’ is tangible immovable property, its sale has to be by means of a registered instrument in case its value exceeds Rs. 100/- because, of section 54 of the Transfer of Property Act. If it is intangible, its sale is required to be effected by, a registered instrument whatever its value. Therefore, in either of the two situations, the grant of the ‘profit a prendre’ has to be by means of a registered instrument. Accordingly, the transaction of sale of the right to catch and carry away the fish if not effected by means of a registered instrument, would pass no title or interest.”

4. State of Orissa v. Titagarh Paper Mills Company Limited, AIR 1985 SC 1293

FACTS: Section 3B of Orissa Sales Tax Act, 1917 empowered the State Government to declare goods or class of goods liable to be taxed. The government issued a notification through which standing trees and bamboos agreed to be severed were liable to be taxed on the turnover of purchase. Writ petitions were filed by a group of those people who had entered into bamboo contracts and timber contracts with the State. The respondent (group of petitioners who had entered into agreement with the State for the felling, cutting obtaining and removing bamboos from forest areas ‘for the purpose of converting the bamboo into paper pulp or for purposes connected with the manufacture of paper or in any connection incidental therewith’, i.e., bamboo contracts) contended before the High Court that the subject matter of the bamboo contract was not a sale or purchase of goods but was a lease of immovable property or was a creation of an interest in immovable property by way of grant of ‘profit a prendre’ and due to this the royalty payable under the bamboo contracts could not be made exigible to either sales tax or purchase tax.

LEGAL PRINCIPLE UPHELD: The SC after referring to the terms and conditions of the bamboo held that “felling, cutting, obtaining and removing bamboos from forest areas for the manufacture of paper” is a benefit to arise out of land and it would thus be an interest in immovable property.

REASONING BEHIND JUDGEMENT:

“The Bamboo Contract is not a lease nor is it a grant of an easement to the respondent company, as it was not a grant of any right for the beneficial equipment of any of the respondent company. In addition to the right of entry there are other important rights flowing from the contract. It is a grant of a profit a prendre which in Indian law is a benefit to arise out of land and thus creates an interest is immovable property. A profit a prendre is a benefit arising out of land and in view of section 3(26) of the General Clauses Act, it is ‘immovable property’ within the meaning of the Transfer of Property Act.”

“Bamboo contract is not a contract of sale of goods. It is a grant of exclusive right and licence to fell, cut, obtain and remove bamboos. The person giving the grant the Governor of the State, is referred to as “grantor”; the consideration payable is “royalty” which is not a term used in legal parlance for the price of goods sold. It is not an agreement to sell bamboos standing in the contract area with the accessory licence to enter upon such area for the purpose of felling and removing bamboos nor is it for a particular felling season only. It is an agreement for a period ranging from fourteen, thirteen and eleven years with the option to renew the contract for further terms of twelve years.

The payment of royalty has no relation to the actual quantity of bamboos cut and removed. The respondent company was bound to pay a minimum royalty and the royalty paid was always in excess of the royalty due on the bamboos cut in the contract areas.

The Bamboo contract conferred upon the respondent-company a benefit to arise out of land, namely, the right to cut and remove bamboos which would grow from the soil coupled with several ancillary rights and was thus a grant of a profit a prendre. Being a profit a prendre or a benefit to arise out of land any attempt on the part of the State Government to tax the amounts payable under the Bamboo Contract would not only be ultra vires the Orissa Act but also unconstitutional as being beyond the State’s taxing power under Entry 54 in List II in the Seventh Schedule to the Constitution of India.”

The SC looked into the substance of the contract by reading into the language of the contract and held that bamboo contracts are a grant of profits-a-prendre, i.e., benefits arising out of land.

5. Bibi Sayeeda v. State of Bihar, (1996) 9 SCC 516

FACTS: Certain municipal plots were transferred to Sayed Imam by his predecessor Zamindar. He constructed several shops in 4 plots of the land and let them out to diverse tenants on monthly rentals. The state wanted to acquire these shops under the Bihar Land Reforms Act. The question raised in this case was about the meaning of the word ‘Bazar’ within Section 4(a) of the Bihar Land Reforms Act 30 of 195 or short the ‘Act’. The appellants (legal representatives of Syed Imam) claimed in the writ petition that the shops are ‘homestead’ within the meaning of Section 2 (j) of the Bihar Land Reforms Act and these shops are not bazars. They do not vest in the State and, therefore, they remain to be the property of the appellants. The High Court repelling the contention held that ‘hats’ or ‘bazars’ are vested in the State. A congregation of buyers and sellers is enough to constitute a bazaar and the right to hold a bazar is an interest in the land.

LEGAL PRINCIPLE UPHELD: The Supreme Court affirming the decision of the High Court held that right to hold a bazaar is a benefit arising out of immovable property.

REASONING BEHIND JUDGEMENT:

“…holding a hat or bazar or mela is only a mode of user by the owner of his land. Just as he can enjoy the land belonging to him in other ways, he can use it for the purpose of having a concourse of people – buyers and sellers and others for a hat, or bazar or mela subject, as in the case of other user, to the requirement of other use. The right to hold mela has always been considered in this country to be an interest in land, an interest which the owner of the land can transfer to another along with the land or without the land.”

FINDINGS

In order to determine whether a particular grant is a ‘benefit arising out of the land’ the Courts have in some cases looked at the substance of the agreement and the terms and conditions incorporated in the agreement by the parties (as was done in the case of State of Orissa v Titagurh Paper Mills Ltd.). Some of the other landmark judgements of the SC which discuss about ‘benefits’ rely on the Anand Behera case (eg: Shantabai v State of Bombay; Bihar Eastern Gangetic Fishermen Cooperative Society Ltd v Sipahi Singh). So basically, there is no specific test laid down to classify a grant as a ‘benefit’ which makes it very vague. Courts have relied on precedents to recognise a right as ‘benefit’ and the classification of this type of a grant is not based on any sound legal test/principle.

It is well settled that an instrument which creates a right or interest in the rents, profits, benefits and income from an immovable properly, is a document which is compulsorily registrable. Thus, a document creating an assignment of a debt will not require registration, but a document assigning rents will require registration. If the power of attorney in question is to be treated as creating an equitable assignment of rents, it will require registration and if not registered, will be void and unenforceable. The power of attorney does not create or recognise any right in or relating to any immovable property or benefit arising there from in favour of the bank. It merely authorises the bank to act as the company's agent to perform the acts stated therein. That is not an equitable assignment: Corporation Bank v. Laalitha H. Halla A.I.R. 1994 Karn. 133.

A lease of fishery is immovable property as defined by S. 2(6) of the Registration Act. If it is for a term exceeding one year or reserves yearly rent, it has to be registered: Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh A.I.R. 1977 S.C. 2149.

(iii) 'Things attached to earth" —It means three things— (a) things rooted in the earth, for example, trees and shrubs; (b) things embedded in the earth, for example, walls and buildings, etc, (c) things fastened for the permanent beneficial enjoyment of anything so embedded, for example, doors, windows, ceiling fans, pegs etc.

The question whether a machinery which is embedded in the earth is movable property or an immovable property, depends upon the facts and circumstances of each case; primarily, the Court will have to take into consideration the intention of the parties when it decided to embed the machinery whether such embedment was intended to be temporary or permanent (case under Stamp Act, 1899): Duncans Industries Ltd. v. State of U.P. A.I.R. 2000 S.C. 355: (2000) 1 S.C.C. 633.

The hereditary office of shebait which would be enjoyed by the person by turn would be immovable property. The gift of such immovable property must, of course, be by registered instrument: Ram Rattan v. Bajrang Lal A.I.R. 1978 S.C. 1393: (1978) 3 S.C.C. 236.

Where it was specifically pleaded that the right to tonsure in Tirumala-Tirupathi Devasthanam (TTD) Kalyanakatta was not a hereditary office and there "Vas nothing on record to show that any specific allowances were prescribed to said office, held, right to tonsure could not, therefore, be said to be a right in immovable property; its transfer, thus, did not require registration: Y. Venkateswarlu v. V. Narayana (1998) 6 An .L.T. 520: 1999 A.I.H.C. 4749 (Andh.Pra.).

Growing crops are exception to thing rooted, these are not immovable

These are movables. It includes grain crops, like wheat, barley, gram, vegetable plants, flower plants, creepers and sugar cane.

Grass—Movable property; In no case, immovable property. Grass is movable property whether cut or not cut. Its main use is in the form of fodder. It makes no difference whether grass is in pastures or on fodder cutting machine. Both, in all forms are movable property for the purposes of Transfer of Property Act. Right to cut grass from pasture may not be immovable property. In Seeni Chettiar v. Santhanathan,1 the Madras High Court held that it has long been settled that an agreement for the sale and purchase of uncut grass, growing timber plant or wood, or growing fruit bearing tree, not made with a view to their immediate severance and removal from the soil and delivery as chattels to the purchaser, plants in nurseries is a contract for the sale of an interest in land. It is not movable property.

Following are immovable property :

1. A jalkar right.

2. The equity of redemption.

3. A right of ferry and right to catch fish and to carry it away.

4. Rights and interests of a grove-holder in a grove.

5. A right of way and in the of soil before separation from the earth.

6. A right of easement—right of way;

7. Advertisement hoardings fixed in the land.

8. A hereditary office under Hindu Law.

9. A pension or periodical payment or allowance granted in permanence.

10.A right to vetan.

11.A right to jagir income.

12.A right to use water of stream.

13.A right to take produce of inam land free from assessment.

14.A right to collect rents and profits of land but the right of a person to arrears of rent of the land sold to him cannot be said to be a benefit arising out of land and cannot constitute immovable property. A contrary view has, however, been taken in Kamal Narayart's case.

15.A right to possession and management of sarjan land.

16.A right to pluck and collect leaves of the tendu tree.

17.A right to collect lac from the Parsa or Palas tree.

18.Reversion in leased property

19.A factory building and the machineries annexed to land.

20.What are not immovable property

The following are not immovable property :

(1) Right to worship.

(2) Right of purchaser to have lands registered in his name.

(3) A machinery which is not permanently attached to the earth and which can be shifted from one place to another.

(4) A decree for sale of immovable property.

(5) Royalty.

(6) Right to recover maintenance allowance even though charged on immovable property

(7) Government promissory notes.

(8) Standing timber, i.e., trees which are to be used in building and repairing houses and which have not been severed from the ground or which are not intended to be severed from the soil.

(9) Growing crops

(10) Grassy

7. India [Section 2 (6-A)]

It means the territory of India excluding the State of Jammu and Kashmir

8. Lease [Section 2(7)]

It includes a counterpart, kabuliyat, an undertaking to cultivate or occupy, and an agreement to lease;

The ingredients of lease as per Transfer of Property Act are transfer of a right to enjoy immoveable properly, for certain time or in perpetuity and the lease consideration is either premium or rent or both and acceptance of the (lease) transfer by the transferee. Thus, lease is a transfer of interest in immoveable property. If it is initially an oral lease and subsequently only a memorandum of the past transaction reduced to writing it doesn’t require registration u/s 17 or 49.

(a) The difference between lease and agreement to lease is that whether the agreement itself would confer a legal right or whether the execution of another instrument which would give a legal right was in the contemplation of the parties should be construed to be a lease if the present demise is to be inferred from the language employed. Since the dominant intention of the parties that should be the criteria in deciding whether a particular instrument is an agreement to lease or merely an agreement to grant lease in future creating right in a party to obtain a document under certain contingencies or circumstances. See 1959 Sc 620, 1960 AP 83, 1930 Bom 210, 1960 ALL 420, 1976 Delhi 15, 1998 (5) ALD 330, 502, 1998 (6) ALT 224 & 2003 (5) ALD 43.

(b) The difference between lease and license is that (i) in a lease one enjoys the property but has no right to take the property away since, interest created in property is to enjoy it whereas in a profit-a-pendree one has a license to enter the property, not for enjoying the property but for removing something from it like plucking of leaves, nuts, fruits or part of produce of soil, to collect toll tax etc. (ii) For the difference the document must be preferred to the forum, (iii) the real test is the intention of the parties as to whether they intend to create a lease or a license (iv) if the document creates interests in immoveable property it can be a lease but, if it only permits another to make use of the property on which the legal possession continues with the owner, it is a license and (v) where contents of documents use exclusive possession of property, it can be inferred as lease unless the circumstances show that intention of parties is not to create lease. However, exclusive possession by itself is not decisive generally without re-course to the intention of the parties See. 1953 SC 108, 1958 SC 532, 1958 SC 1262, 1965SC 610, 1968 SC 175 & 919, 1974 SC 396, 1976 SC 1813, 1988 SC 184 & 1845 and 1971 (1) SCC 276.

The rent note is an agreement to lease which falls under wider definition of lease under the Registration Act. The rent note or agreement to lease may be in counter-part signed by both the parties or it may be in correspondence or in acts or conduct. If there is no present demise, the agreement may be effected by an unregistered instrument or even orally. If there is present demise, the rent note operates as a transfer by way of lease and if the term does not exceed one year, registration is not necessary, but if the term exceeds one year, registration is necessary not under S. 107, T.P. Act but under the Registration Act. An instrument signed by either the lessor or lessee alone would operate as an agreement to lease or a rent note. A rent note signed by the lessee alone is not a lease but would be a lease under the Registration Act and the question of its registration has to be decided under that Act: John Mithalal Desai v. Dineshbhai K. Vora 1998 A.I.H.C. 1894: (1997-3) 38 Guj.L.R. 2103 (Guj.).

The agreement between two parties which entitles one of them merely to claim the execution of the lease from other without creating present and immediate demise or interest in his favour, is not included under S. 2(7) of the Registration Act: Food Corporation of India v. Babul Agarwal A.I.R. 1998 Madh. Pra. 23 (D.B.).

9. Minor [Section 2 (8)]

It means a person who, according to the personal law to which he is subject, has not attained majority;

10. Movable Property [Section 2(9)]

The term "movable property" includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property;

Things attached to the land without any intention to make it a permanent part of the land, for example, a machinery attached to the land but capable of being shifted from that place is movable property. Similarly, royalty, right of worship, right to get maintenance allowance are the examples of movable property.

11. Representative [Section 2(10)]

It includes the guardian of a minor and the committee or other legal curator of a lunatic or idiot.

Other terms:

Document: The term document has not been defined under the Registration Act, 1908, but, it has been defined under Section 3(16) of the General Clauses Act, 1897 as follows: “document” shall include any matter written, expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, which is intended to be used or which may be used, for the purpose of recording that matter. According to Section 3 of the Indian Evidence Act, 1872, a document shall mean any matter expressed or prescribed upon any substance by means of letters or marks intended to be used for the purpose of recording that matter. Section 29 of the Indian Penal Code, 1860 provides a similar definition of the term ‘document’.

Instrument: The term ‘instrument’ has not been defined under the Registration Act, 1908; however, the same has been defined under Section 2(14) of the Indian Stamp Act, 1899 to include every document by virtue of which any right or liability is, or, purports to be, created, transferred, extended, extinguished or recorded.

Chapter 2

Registration Establishment for registration of documents (Part II)

The main purpose for which the Registration Act 1908 was designed was to ensure that correct land records could be maintained. The Act is also used for proper recording of transactions relating to other immovable property. The Act provides for registration of other documents also, which can give these documents more authenticity. Registering authorities have been provided in all the districts for this purpose.

The authorities dealing with registration under the Registration Act, 1908 are as follows:

Inspector General of Registration (appointed by State Government) (Section 3)

(l) The State Government shall appoint an officer to be the Inspector General of Registration for the territories subject to such Government:

Provided that the State Government may, instead of making such appointment, direct that all or any of the powers and duties hereinafter conferred and imposed upon the Inspector General shall be exercised and performed by such officer or officers, and within such local limits, as the State Government appoints in this behalf.

(2) Any Inspector General may hold simultaneously any other office under the Government.

Inspectors of Registration Offices (appointed by State Government and is subordinate to the Inspector General) (Section 8)

The State Government may also appoint officers, to be called Inspectors of Registration offices, and may prescribe the duties of such officers. (2) Every such Inspector shall be subordinate to the Inspector General.

The State Govt. shall form Districts and Sub-Districts for purpose of the Registration Act 1908 (Section 5)

The State Government shall form districts and sub-districts, and shall prescribe, and may alter, the limits of such districts and sub-districts. The districts and sub-districts formed under this section, together with the limits thereof, and every alteration of such limits, shall be notified in the Official Gazette. Every such alteration shall take effect on such day after the date of the notification as is therein mentioned

Registrars of Districts (Section 6)

The State Government may appoint such persons, whether public officers or not, as it thinks proper, to be Registrars of the several districts, and to be Sub-Registrars of the several sub districts, formed as aforesaid, respectively.

Sub-Registrars of Sub-Districts (Section 6)

Other important Provisions

Offices of Registrar and Sub-Registrar (Section 7)

(l) The State Government shall establish in every district an office to be styled the office of the Registrar and in every sub-district an office or offices to be styled the office of the Sub-Registrar or the offices of the Joint Sub-Registrars. (2) The State Government may amalgamate with any office of a Registrar any office of a Sub-Registrar subordinate to such Registrar, and may authorise any Sub-Registrar whose office has been so amalgamated to exercise and perform, in addition to his own powers and duties, all or any of the powers and duties of the Registrar to whom he is subordinate: Provided that no such authorization shall enable a Sub-Registrar to hear an appeal against an order passed by himself under this Act.

Absence of Registrar or vacancy in his office (Section 10)-(I) When any Registrar, other than the Registrar of a district including a Presidency-town, is absent otherwise than on duty in his district, or when his office is temporarily vacant, any person whom the Inspector General appoints in this behalf, or in default of such appointment, the Judge of the District Court within the local limits of whose jurisdiction the Registrar's office is situate, shall be the Registrar during such absence or until the State Government fills up the vacancy . (2) When the Registrar of a district including a Presidency-town is absent otherwise than on duty in his district, or when his office is temporarily vacant, any person whom the Inspector General appoints in this behalf shall be the Registrar during such absence, or until the State Government fills up the vacancy.

Absence of Registrar on duty in his district (Section 11)-When any Registrar is absent from his office on duty in his district, he may appoint any Sub-Registrar or other person in his district to perform, during such absence, all the duties of a Registrar except those mentioned in sections 68 and 72.

Absence of Sub-Registrar or vacancy in his office (Section 12)-When any Sub-Registrar is absent, or when his office is temporarily vacant, any person whom the Registrar of the district appoints in this behalf shall be Sub-Registrar during such absence, or until 11 [the vacancy is filled up].

Keeping of books in computer floppies and diskettes, etc.(Section 16-A) (1) Notwithstanding anything contained in section 16, the books provided under subsection (1) of that section may also be kept in computer floppies or diskettes or in any other electronic form in the manner and subject to the safeguards as may be prescribed by the Inspector General with the sanction of the State Government. (2) Notwithstanding anything contained in this Act or in any other law for the time being in force, a copy or extracts from the books kept under subsection (1) given by the registering officer under his hand and seal shall be deemed to be a copy given under section 57 for the purposes of sub-section (5) of that section.

Chapter 3

Registrable Documents (Part III)

Documents of which registration is compulsory -

Section 17(1) of the Act provides for mandatory registration of certain documents which are as follows:

a) gift deed of immovable property –

Gift of Immovable Property: According to Section 17(1) (a) of the Registration Act, 1908, instrument of gift of immovable property requires compulsory registration, whatever may be the value of the gift or the immovable property gifted. Section 123 of the Transfer of Property Act, 1882 requires that gift of immovable property must be registered. If Gift is a transfer of certain movable or immovable property voluntarily made and without consideration by a person called as the donor to a person called as the donee, and which is accepted by or on behalf of the donee; such acceptance must be given within the lifetime of the donor and if the donee dies before acceptance, then the gift is void. A document or instrument of gift of immovable property requires compulsory registration and it operates from the date of the execution of the gift deed.

Section 122 and Section 123 of the Transfer of Property Act, 1882 read with Section 47 of the Registration Act, 1908 provides that, the gift becomes enforceable from the date of the signing of the gift deed; it is also pertinent to mention here that mere registration of the gift deed would not by itself be an evidence of gift having been made, as the ingredients set forth under Section 122 of the Transfer of Property Act, 1882 are required to be fulfilled.

According to Section 129 of the Transfer of Property Act, 1882, a gift of moveable property in contemplation of death shall not be deemed to have affected any of the rules under the Muhammadan law. Hence, the law with respect to gift(s) and its validity have to be understood solely with regards to the Muslim law. Thus, Section 129 of the Transfer of Property Act, 1882 excludes the applicability of Section 123 of the Transfer of Property Act, 1882 on gift(s) been made by the Muslims. A gift under the Muslim law is called “Hiba”.

In the case of, Hafeeza Bibi & Ors. v. Shaikh Farid, (2011) 5 SCC 654, the Supreme Court of India held that, the position in regards to gift(s) under Muslim law is well settled and the same has been stated and restated time and again, that is, there are three (3) essentials of a gift under the Muhammadan law, these are: (1) Declaration of the gift by the donor; (2) Acceptance of the gift by the donee; and (3) Delivery of possession. Though rules of Muhammadan law do not make writing essential to the validity of a gift, an oral gift fulfilling all the three (3) essentials makes the gift complete and irrevocable. However, the donor may record the transaction of gift in writing.

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.

Note:

1. In the case of Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana, AIR 2012 SC 206, it was held as follows:

a. That an immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance.

b. Transactions in the nature of ‘General Power of Attorney Sales’ or ‘Sale by Agreement to Sell’ or ‘Transfer by Will’ are incapable of conveying title and do not amount to transfer, nor can they be recognised as valid mode of transfer of immovable property. The Courts are not to treat such transactions as completed or concluded transfers or conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds conferring title except to the limited extent of Section 53-A of the Transfer of Property Act, 1882. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records.

c. This rule applies not only to the deeds of conveyance in regards to freehold property but also to transfer of leasehold property. A lease can be validly transferred only vide a registered “Assignment of Lease”.

d. An ‘Agreement to Sell/General Power of Attorney/ Will’ transaction neither conveys any title nor creates any interest in an immovable property.

e. Court Held: Observations made by the High Court of Delhi in the case of, Asha M. Jain v. Canara Bank, 94 (2001) DLT 841, that the concept of ‘Power of Attorney Sales’ has become, over a period of time, a recognised mode of transfer apropos transactions concluded by way of Agreement to Sell or General Power of Attorney or Will, are unwarranted, unjustified and misleading.

2. Hansia v. Bakhtawarmal, AIR 1958 Raj 102: The question of law that arose for adjudication in this case was this- how far a non-registered document, which is compulsorily required to be registered under Section 17 of the Registration Act, 1908, can be used in a proceeding. The document in question in the present case was a mortgage deed which was not registered, although registration of such documents is obligatory under Section 17(1) of the Registration Act, 1908. In this case, it was held that, a suit for redemption based on an un-registered mortgage deed is bound to fall, much because the purpose of the mortgage deed is to prove the mortgage. The unregistered mortgage deed can be used only for collateral purposes as provided for in the proviso to Section 49 of the Registration Act, 1908. The necessary conclusion is this, that, the un-registered mortgage deed can be used by the plaintiff in a suit for possession (and not in a suit for redemption) to prove the “nature of possession”, if the defendant denies the claim of the plaintiff on the ground of adverse possession. Thus, proviso to Section 49 of the Registration Act, 1908 cannot be relied upon 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.

Note: The property mortgaged is only a security for the payment of the money lent.

The mortgagor is entitled to get back his property on payment of the principal and

interest after the expiry of the due date for the repayment of the mortgagee's money.

This right of the mortgagor is called the Right of Redemption.

Note: The term “collateral transaction” is used not in the sense of an ancillary

transaction to a principal transaction or a subsidiary transaction to a main transaction.

The root meaning of the word “collateral” is running together or running on parallel

lines. The transaction as recorded would be a particular or specific transaction. But it

would be possible to read in that transaction what may be called the purpose of the

transaction and what may be called a collateral purpose, the fulfilment of that

collateral purpose would bring into existence a collateral transaction, a transaction

which may be said to be a part and parcel of the transaction but none the less a

transaction which runs together with or on parallel lines with the same.

3. Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR 1966 SC 292: In this case, it was

held that, where a family arrangement was brought about by a document in writing

with the purpose of using that writing as a proof of what the family had arranged for,

then such a document would require compulsory registration because it is then that

such a document would amount to a document of title declaring for future, what

rights/claims and what properties the parties i.e. each member of the family would

possess or enjoy.

4. Ghulam Ahmad v. Ghulam Qadir, AIR 1968 J. & K. 35: In this case, it was held

that, when the agreement is purely mutual and a family one for the enjoyment of

property without limiting or extinguishing the right of anybody, then it may not be

registered. It was held that, after examining, whether or not, a document is

compulsorily registrable under Section 17 of the Registration Act, 1908, comes the

stage of examining the document and seeing whether it could be admitted to

registration in view of Section 21 of the 1908 Act, once is it found that the document

is to be compulsorily registered. Thus, the test is, if the document is hit by any of the

provisions of Section 17 of the 1908 Act, the application or non-application of Section

21 of the 1908 Act does not at all arise for consideration, because it is the second-step

in the chain of steps which completes the registration formality.

A document which comes within the terms of Section 17(1) (b) of the 1908 Act is

compulsorily registrable; whatever is saved from the operation of this clause

(that is, clause (b) of sub-section (1) of Section 17 of the 1908 Act) of the Section

is not compulsorily registrable.

5. A family arrangement will need registration only if it creates any interest in immovable property in praesenti in favour of the parties mentioned therein. In case, however, no such interest is created, the document will be valid despite its non-registration and will not be hit by 5. 17 of the Act: Maturi Pullaian v. Maturi Narasimham A.I.R. 1966 5.C. 1836.

6. The family arrangements may be even oral in which case no registration is necessary. It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and, therefore, does not fall within the mischief of S. 17(1)(b) of the Registration Act and is, therefore, not compulsorily registrable: Kale v. Director of Consolidation A.I.R. 1976S.C. 807; Mohan Lal Duggal v. lnder Mohan Sharma 1999 A.I.H.C. 4686 (Del.). Where a document of family settlement was not a memorandum prepared after family arrangement was already made but it created right in immovable property, held, said document was compulsorily registrable: Harshvardhan Singh v. Ranveer Singhan A.I.R. 1997 Raj. 211; Golak Behari Biswal v. Karunakar Rout A.I.R. 1987 Ori. 236.

7. Document is any substance having any matter expressed or described upon it by marks capable of being read. As per the law for time being in force in India, it is the matter written and not the substance on which the matter is expressed or described which is said to be a document.

Meaning of the words- creating, declaring, limiting and extinguishing:

? The word “create” in legal terminology means to bring into being, to invest

with a new title, or to produce. Therefore, every non-testamentary instrument

which means to, or has the effect of originating some right, title or interest in

immovable property will be governed by the word “create”.

? The word “declare” is equivalent to “define” or “authoritatively set forth”; a

mere recital of fact does not tantamount to a declaration.

? The word “limit” connotes restriction of some right or interest in immovable

property.

? The word “extinguish” is a counter-part of the word “create”, for it means “to

bring to an end” or to “quench” some right, title or interest in immovable

property.

A non-testamentary instrument which varies the right or interest made by an earlier

instrument, has as much the effect of creating some new right or extinguishing an old

one as an absolutely fresh document would do- such a document also requires

registration.

8. A compromise is a settlement of disputed claim and applies to demands of all sorts.

Where it merely contains a recital of a previous agreement, it does not require

registration, but where the compromise itself declares a right to immovable property

then it operates as a contract and requires registration.

9. Naran Das Karsan Das v. S.A. Kamtam, AIR 1977 SC 774:

a. Section 59 of the Transfer of Property Act, 1882 provides that where the principal money secured is Rs. 100/- or upwards, a mortgage other than a mortgage by deposit of title-deeds can be effected only by a registered instrument signed by the mortgagor (that is, the person who mortgages the property) and attested by at least two witnesses.

(Note: Section 59 of the Transfer of Property Act, 1882: Mortgage when to be by

assurance)

b. A mortgage by deposit of title-deeds may be created without any writing and

merely by delivery of title-deeds with the intention of creating a security for a

debt; no question of registration arises in such a transaction.

c. In case of a simple mortgage there must be a registered document. A document

would require registration if independently of the provisions of Section 58(f) of

the Transfer of Property Act, 1882, it creates a mortgage.

(Note: Section 58(f) of the Transfer of Property Act, 1882: Mortgage by deposit of

title-deeds)

d. A document specifying that in case the mortgagor fails to repay the loan amount

within the stipulated period, then the mortgagor would be entitled to sell the

mortgaged property for recovering the loan amount, would be compulsorily

registrable, as the title in the property was created in favour of the mortgagee by

virtue of the said document. Mortgagor has a right to redeem until the sale of the

mortgaged property is complete. By registration the mortgagor does not lose right

of redemption.

e. Conferment of power to sell the mortgaged property by the mortgagee without intervention of the court in a mortgage-deed by itself will not deprive the mortgagor of his right to redemption. The equity of redemption is not extinguished by mere contract for sale by the mortgagee of the mortgaged property; the mortgagor’s right to redeem will survive until there has been completion of sale by the mortgagee by a registered deed.

10. State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77: In this case it was held as

follows:

i. A grant of power of attorney is essentially governed by Chapter X of the Contract Act, 1872;

ii. A power of attorney is not an instrument of transfer in regard to any right, title

or interest in an immovable property;

iii. A power of attorney is creation of an agency where by the grantor authorises

the grantee to do the acts specified therein, on behalf of grantor, which when

executed will be binding on the grantor as if done by him (See: Section 1-A

and Section 2 of the Powers of Attorney Act, 1882);

iv. A power of attorney is revocable or terminable at anytime unless it is made

irrevocable in a manner known to law;

v. Even an irrevocable power of attorney does not have the effect of transferring

title to the grantee;

vi. A power of attorney is nothing but a document of convenience;

vii. An attorney-holder may execute a deed of conveyance in exercise of the

power granted under the power of attorney and thereby convey title on behalf

of the grantor.

11. Bina Murlidhar Hemdev v. Kanhaiyalal Lokram Hemdev, AIR 1999 SC 2171:

In this case, it was held that, after a document is registered, the Sub-Registrar ceases

to have jurisdiction over the matter. It is only before the registration of the document

that, for reasons to be recorded, the Sub-Registrar can refuse to register the document

within the mandate of Section 71 of the Registration Act, 1908. However, such an

order of the Sub-Registrar, refusing the registration of the document in question can

be appealed before the Registrar under Section 72 of the Registration Act, 1908.

The question that arose for adjudication in this case was the following: Whether a

person admitting the execution of series of documents before the Sub-Registrar can

afterwards raise a question that his initials were there only on some of the pages and

not on all the pages?

It was held that, a person executing and admitting series of documents before the Sub-Registrar cannot afterwards deny the existence of some of documents bearing his

signatures, while admitting the others.

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.

1. Ram Sewak Jaiswal v. Abdul Majeed, AIR 1980 All. 262: In this case it was held as

follows:

i. In case of an agricultural lease, a registered kabuliyat coupled with acceptance of the same by the landlord is sufficient to constitute a lease in the eyes of law.

ii. A rent-note or kabuliyat is executed unilaterally by the lessee alone, by which, the lessee agrees to take some immovable property on lease from the lessor. A rent-note or kabuliyat comes within the definition of the term ‘lease’ for the purposes of Section 2(7) of the Registration Act, 1908, though it cannot be termed as ‘lease’ sensu stricto for the purposes of Section 107 of the Transfer of Property Act, 1882, however, it shall require compulsory registration if it is executed for a period stated in Section 17(1) (d) of the Registration Act, 1908.

iii. A rent-note or kabuliyat is inadmissible in evidence if it is not registered,

though it requires compulsory registration under Section 17(1) of the Registration Act, 1908.

iv. Note: The period for which the house was taken according to the terms of the

rent-note was for 11 months and the rent reserved was Rs. 5/- per month, it

was held that, no compulsory registration was required as regards Section

17(1) (d) of the Registration Act, 1908, although the above arrangement shall

constitute a lease within the mischief of Section 2(7) of the Registration Act,

1908. Thus, no registration was required, neither within the mandate of

Section 17 of the Registration Act, 1908, nor within the mandate of any of the

provisions of the Transfer of Property Act, 1882, as the lease was for a period which was less than one-year.

(Note: Section 2(7) of the Registration Act, 1908: “lease” includes a counterpart, Kabuliyat, as undertaking to cultivate or occupy, and an agreement to lease)

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.

Note:

1. K. Raghunandan & Ors v. Ali Hussain Sabir & Ors, AIR 2008 SC 2337: Section 17(2) (vi) of the Registration Act, 1908 states that, nothing in clauses (b) and (c) of Section 17(1) shall apply to: “any decree or order of a court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding”.

Thus, the exception contained in Section 17(2) (vi) of the Registration Act, 1908

states that, if a suit is filed by the plaintiff in respect of immovable property ‘X’, then,

a decree in that suit in respect of immovable property ‘Y’ (which was not the subject

matter of the suit at all) will require registration.

It was held that, if a right is created or extinguished by virtue of a compromise decree,

then such a decree would require compulsory registration, however, Section 17(2) (vi)

of the Registration Act, 1908 stands as an exception to this.

The legal position as regards Section 17(2) (vi) of the Registration Act, 1908 can be

summarised as follows:

a. A compromise decree, if bona fide, in the sense that the compromise is not a

device to obviate payment of stamp duty and/or frustrate the law relating to

registration, then, it would not require compulsory registration;

b. If the compromise decree was to create for the first time, any right, title or interest

in an immovable property of value of Rs. 100/- or upwards in favour of any party

to the suit, then such a decree or order of the court would require compulsory

registration;

c. If the decree or the order of the court does not attract any of the clauses as regards

Section 17(1) of the Registration Act, 1908, then such decree or order of the court

would not require compulsory registration;

d. If decree of a court does not embody the terms of the compromise, then, the

benefit from the terms of the compromise cannot be derived, even if, a suit were

to be disposed of because of the compromise in question. Thus, where a suit is

disposed of stating, “Suit compromised and accordingly dismissed”, it could not

be said to have embodied the terms of the compromise. However, where the suit is

disposed of stating, “Suit decreed in terms of the compromise” or “Suit dismissed

in terms of the compromise”, it can be said that the terms of the compromise are

embodied in the decree of the court.

e. A decree or order of the court including a decree or order expressed to be made on

a compromise which declares the pre-existing right and does not by itself create

any new right, title or interest in praesenti in immovable property of value of Rs.

100/- or upwards, does not require registration.

2. Bhoop Singh v. Ram Singh Major, AIR 1996 SC 196:

It was held that, if a decree is passed regarding some immovable property which is not

the subject matter of the suit, then, it (that is, the decree) will require compulsory

registration. That is, if a suit is filed in respect of property ‘A’, but, the decree is in

respect of immovable property ‘B’, then the decree so far as it relates to immovable

property ‘B’, will require compulsory registration; this is the plain meaning of Section

17(2) (vi) of the Registration Act, 1908.

3. S.M.S. Tea Estates Pvt. Ltd. v. Chandmari Tea Co. Pvt. Ltd., 2011 All SCR 1722: 2011 AIR SCW 4484:

It was held that, insufficiently stamped documents and unregistered documents, which

are required under law to be compulsorily registered, are not admissible in evidence.

The Supreme Court of India directed all the Courts across the country to adopt the

following procedure where an arbitration clause is contained in a document which is

not registered (but requires to be compulsorily registered) and which is not duly

stamped:

i. The court should, before admitting any document into evidence or acting upon such document, examine whether the instrument/document is duly stamped and whether it is an instrument which requires compulsory registration.

ii. If the document is found to be not duly stamped, then, Section 35 of the Stamp Act, 1899 bars the said document from being acted upon, and consequently even the arbitration clause therein cannot be acted upon. The court should then proceed to impound the document under Section 33 of the 1899 Act and follow the procedure under Sections 35 and 38 of the 1899 Act respectively.

iii. If the document is found to be duly stamped, or if the deficit stamp duty and penalty is paid, either before the court or before the collector (as contemplated under Section 35 and Section 40 of the Stamp Act, 1899) and the defect with reference to deficit stamp duty is cured, then, the court may treat the document as duly stamped.

iv. Once the document is found to be duly stamped, the court shall proceed to consider whether the document is compulsorily registrable. If the document is found to be compulsorily registrable, and is in fact a registered document, then, the court can act upon the arbitration agreement, without any impediment.

v. If the document is not registered, but is compulsorily registrable, then, having regard to Section 16(1) (a) of the Arbitration and Conciliation Act, 1996, the court can de-link the arbitration agreement from the main document, as an agreement independent of the other terms of the document, even if the main document itself cannot in anyway affect the property and cannot be received as evidence of any transaction affecting such property. The only exception is where the respondent in the application demonstrates that the arbitration agreement is also void and unenforceable, thus, if the respondent raises any objection that the arbitration agreement was invalid, the court will consider the said objection before proceeding to appoint an arbitrator.

vi. Where the document is compulsorily registrable, but is not registered, however, the arbitration clause (or arbitration agreement) is valid and separable, what is required to be borne in mind is that the arbitrator appointed in such a matter cannot rely upon the unregistered instrument except for two purposes, that is: (a) as evidence of contract in a claim for specific performance, and (b) as evidence of any collateral transaction which does not require registration

4. Arbitration award resulting in dissolution of partnership firm and provides for distribution of residue or surplus properties of the dissolved firm among partners after settlement of Accounts does not requires registration [S.V. Chandra Pradhan vs S.V.Shivling Nadar, 1993 (a) SCC 589]

5. A private award affecting partition of family property (immovable) worth more than Rs.100/- requires registration. [AIR 1970 SC 333; AIR 1974 SC 1066; 1993(3) ALT 21)]

6. Consent decree does not require registration. (Bachan Singh v. Kartar Singlh, J.T. 2001 (IO)SC64),

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.

1. Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra, AIR 2004 SC 4342: It was held that the essential conditions which are required to be fulfilled if a transferee (the one to whom the property has been transferred by the transferor) wants to defend or protect his possession under Section 53-A of the Transfer of Property Act, 1882, are as follows:

I. There must be a contract for transfer of any immovable property for consideration;

II. The contract must be writing, signed by the transferor, or by someone on his behalf;

III. The writing must be in such words from which the terms necessary to construe the transfer can be ascertained;

IV. The transferee must in part-performance of the contract take possession of the property, or any part thereof;

V. The transferee must have done some act in furtherance of the contract; and,

VI. The transferee must have performed or be willing to perform his part of the

contract.

If these conditions are fulfilled then in a given case there is equity in favour of the

proposed transferee who can protect his possession against the proposed transferor

even though a registered-deed conveying the title is not executed by the proposed

transferor. In such a situation, equitable doctrine of part-performance provided under

Section 53-A of the Transfer of Property Act, 1882 comes into play.

Protection provided under Section 53-A of the Transfer of Property Act, 1882 to the

proposed transferee is a shield only against the transferor. It disentitles the transferor

from disturbing the possession of the proposed transferee who is put in possession in

pursuance of the contract in writing between the transferor and the transferee. It has nothing to do with the ownership of the proposed transferor who remains the absolute owner of the property until it is legally conveyed by executing a registered sale-deed in favour of the transferee.

Such a right to protect possession by the proposed transferee against the proposed vendor (or proposed transferor) cannot be pressed into service if the proposed vendor (or proposed transferor) is not the title-holder of the immovable property in question and is just a third-party.

As per Section 54 of the Transfer of Property Act, 1882, the title in an immovable property valued at more than Rs. 100/- can be conveyed only by executing a registered sale deed.

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.

Documents exempted from Registration:

Some documents though related to immovable property are not required to be registered. These are given in section 17(2) of the Registration Act 1908.

The provisions in sub paragraphs (b) and (c) of the Section 17 do not apply in the following cases :-

(i) Any composition deed; or

Note: An agreement embodying the terms of a composition between a debtor and his creditors (Composition Deed) does not require compulsory registration.

(ii) Any instrument relating to share in a joint stock of company not withstanding that the assets of such company consist in which or in part of immovable property ;or

(iii) Any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right little or interest , to or in immovable property except in so far as it entitles to the holder to the society afforded by a registered instrument where by the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trusted upon trust for the benefit of the holders of such debentures; or

(iv) Any endorsement upon or transfer of any debenture issued by any such company; or

(v) Any document not itself creating, declaring, assigning, limiting or extinguishing any right little or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed create, declare, assign, limit or extinguish any such right, title or interest, or

(vi) Any decree or order of a court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding; or

Note:

Thus, the exception contained in Section 17(2) (vi) of the Registration Act, 1908 states that, if a suit is filed by the plaintiff in respect of immovable property ‘X’, then, a decree in that suit in respect of immovable property ‘Y’ (which was not the subject matter of the suit at all) will require registration. It was held that, if a right is created or extinguished by virtue of a compromise decree, then such a decree would require compulsory registration, however, Section 17(2) (vi) of the Registration Act, 1908 stands as an exception to this. The legal position as regards Section 17(2) (vi) of the Registration Act, 1908 can be summarised as follows: a. A compromise decree, if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and/or frustrate the law relating to registration, then, it would not require compulsory registration; b. If the compromise decree was to create for the first time, any right, title or interest in an immovable property of value of Rs. 100/- or upwards in favour of any party to the suit, then such a decree or order of the court would require compulsory registration; c. If the decree or the order of the court does not attract any of the clauses as regards Section 17(1) of the Registration Act, 1908, then such decree or order of the court would not require compulsory registration; d. If decree of a court does not embody the terms of the compromise, then, the benefit from the terms of the compromise cannot be derived, even if, a suit were to be disposed of because of the compromise in question. Thus, where a suit is disposed of stating, “Suit compromised and accordingly dismissed”, it could not be said to have embodied the terms of the compromise. However, where the suit is disposed of stating, “Suit decreed in terms of the compromise” or “Suit dismissed in terms of the compromise”, it can be said that the terms of the compromise are embodied in the decree of the court. e. A decree or order of the court including a decree or order expressed to be made on a compromise which declares the pre-existing right and does not by itself create any new right, title or interest in praesenti in immovable property of value of Rs. 100/- or upwards, does not require registration.

2. Bhoop Singh v. Ram Singh Major, AIR 1996 SC 196: It was held that, if a decree is passed regarding some immovable property which is not the subject matter of the suit, then, it (that is, the decree) will require compulsory registration. That is, if a suit is filed in respect of property ‘A’, but, the decree is in respect of immovable property ‘B’, then the decree so far as it relates to immovable property ‘B’, will require compulsory registration; this is the plain meaning of Section 17(2) (vi) of the Registration Act, 1908.

(vii) Any grant of immovable property by the government ; or

(viii) Any instrument of partition made by a Revenue Office ; or

(ix) Any order granting a loan or an instrument of collateral security granted under the land improvement Act, 1871, (XXVI of 1871) or the Land Improvement Loans Act 1883.

(x) Any order granting a loan under the agriculturists loans Act 1884 (XII of 1884, XIX of 1883) or instrument for securing the repayment of a loan made under this Act, or

(xi) Any order made under the Charitable Endorsement Act 1890 (Vi of 1890 ) vesting any property in a treasurer of chargeable endowment or divesting any such treasurer of any property; or

(xii) Any endorsement on a mortgage deed acknowledging the payment of the whole or any part of the mortgage money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage ; or

(xiii) 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 immovable 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.

(3) Authorities to adopt a son, executed after the first day of January, 1872, and not conferred by a will, shall also be registered.

Note:

1. Dinaji v. Daddi, AIR 1990 SC 1153: It was held that, an adoption deed, reciting only about the factum of adoption does not require compulsory registration, however, if the adoption deed, not only states about the factum of adoption but also states that, pursuant to adoption, the adoptee shall acquire certain right, title or interest in an immovable property of the value of Rs.100 and upwards, then such an adoption deed would require compulsory registration.

In this case, ‘Z’, a widow, was an absolute owner of an immovable property ‘X’. She adopted a son ‘AD’. The adoption deed was unregistered and contained a stipulation as regards relinquishment of all rights of ‘Z’ in the immovable property ‘X’ in favour of ‘AD’. The question that arose for consideration was that, whether or not, within the mandate of Section 17(1) (b) of the Registration Act, 1908, the adoption deed required compulsory registration so that it is admissible in evidence so far as Section 49 of the Registration Act, 1908 is concerned?

The court held that, in the present case, the adoption deed assigns an interest in favour of the adopted son and extinguishes an interest in the widow, thus, clearly the adoption deed is hit by Section 17(1) (b) of the Registration Act, 1908. Hence, the adoption deed cannot be read/ admitted into evidence without being registered, in view of Section 49 of the Registration Act, 1908.

A document incapable of valuation need not be registered.

A lease deed executed for a period not exceeding 11 months does not require registration, even if reduced in writing and possession is delivered thereunder to a tenant.

A foreign award does not require registration under Registration Act. However, an award under Indian Arbitration Act will require registration (if it pertains to immovable property)

Optional Registration- (Section 18)

Documents relating to immovable property (of value of less than 100 /-), lease of immovable property for a term of less than a year, documents relating to movable property, wills are optionally registrable.

Following documents can be registered on optional basis :

1. Instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest in movable property,

2. Wills

3. Documents not requiring registration under section 17(1) for the reason that the value is below Rs.100

4. Documents not required to be registered under Section 17(2) (as explained above)

Note: Power of Attorney : - The power of attorney holder is an authorised agent of its grantor to do all acts specified therein on behalf of the grantor in respect of the properties. It does not create any right, title or interest, whether vested or contingent in favour of the holder which relates to the properties of the grantor. It is optional and even the general power of attorney is not compulsorily registrable. [ AIR 1919 SC 553 = 1979 (2) SCC 60]

Partner relinquishing his interest : - If a partner relinquishes his rights in both moveable and immovable properties to a new partner by means of a document, Registration is not necessary. ( AIR 1967 SC 401 = 1967 (1) SCR 784)

Tabular Representation of Situations / documents wherein registration is compulsory / optional under Sec.17 and Sec.18 of the Registration Act, 1908:

Sl.No	Situation / documents	Registration requirement
1.	Gift of immovable property	Compulsory
2.	Transfer of right, title or interest, whether vested or contingent, of an immovable property, wherein the value exceeds Rs.100/-.	Compulsory
3.	Receipt or payment of any consideration on account of creation, declaration assignments, limitation or extinction of any such right, title or interest.	Compulsory
4.	Lease of immovable property for any term exceeding one year or reserving a yearly rent.	Compulsory
5.	Transfer or assignment of decree / order of a Court or any award if it creates, assigns, limit or extinguishes in present or future, any right, title or interest in an immovable property, wherein the value exceed Rs.100/-.	Compulsory
6.	Composition Deed	Not applicable
7.	Any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such company consist in whole or in part of immovable property.	Not applicable
8.	Any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders or such debentures.	Not applicable
9.	Any endorsement upon or transfer of any debenture issued by any such company.	Not applicable
10.	Any document that does not create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, to or in immovable property, but merely creates right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest.	Not applicable
11.	Any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceeding.	Not applicable
12.	Any grant of immovable property by the Government	Not applicable
13.	Any Instrument of partition made by a Revenue office	Not applicable
14.	Any order made under the Charitable Endowments Act 1890 vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property.	Not applicable
15.	Any endowment on a mortgage deed acknowledging the payment of the whole or any part of the mortgage money and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage.	Not applicable
16.	Any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer.	Not applicable
17.	Authority to adopt a son and not conferred by a Will.	Compulsory
18.	Instruments which create, assign, declare or limit any title or interest, wherein the value of the immovable property is less than Rs.100/-.	Optional
19.	Lease of immovable property not exceeding one year.	Optional
20.	Transfer or assignment of decree / order of a Court or any award if it creates, assigns, limit or extinguishes in present or future, any right, title or interest in an immovable property, wherein the value does not exceed Rs.100/-.	Optional
21.	Wills	Optional

Chapter 4

Requirements of Registration of Documents

Translation if unknown language – Section 19	If the document is in language not understood by registering officer and not commonly used in the district, a true translation of document and its true copy should be submitted along with original.
Blanks, erasures etc. should be authenticated – Section 20	If the document has interlineations, blank, erasure or alterations, these should be attested with signatures or initials of persons executing the document Registering Officer will make a note of such interlineations, blank, erasure or alteration
Description of property – maps or plans – Section 21	The non-testamentary document should contain description of the immovable property in sufficient details to identify the same. Details should contain : Houses situated on north and front side of roads and their existing and former occupancies and their house numbers (if any). Territorial division of land, roads and other properties on which they are situated if possible, situation with reference to Government map or survey.
Photograph and fingerprints of buyer and seller – Section 32A	If document relates to transfer of ownership of immovable property, passport size photograph and fingerprints of each buyer and seller of such property shall be affixed to document.
Effect of inaccurate or insufficient description	It was held that even if document gives inaccurate or insufficient description, it is not invalidated. The document does not become invalid. – Lal Bahadur Yadav vs. Ram Bilash Rai (1997)

Time of presentation for registration (Part IV)

Time Limit for registration – Sections 23 – 27

Document should be submitted for registration within 4 months from date of execution. (Section 23)

Decree or order of Court can be submitted within four months from the day it becomes final. (Section 23)

If document is executed by several persons at different times, it may be presented for registration within 4 months from date of

each execution. (Section 24)

If a document is executed abroad by some of the parties, it can be presented for registration within four months after its arrival in India. (Section 26)

A document executed outside India is not valid unless it is registered in India.

If a person finds that a document has been filed for registration by a person who is not empowered to do so, he can present the document for re-registration within 4 months from the date he became aware of the fact that registration of document is invalid. (Section 23A)

Registrar is authorized to condone delay in filing of documents executed in India. Condonation can be upto four months and fine upto 10 times the normal registration fee as prescribed by Registrar is payable. (Section 25)

Wills may be presented for registration at any time and may be deposited in any manner. (Section 27)

Permitted exclusions

Applying the maxims of equity viz. actus curiae neminem gravabit i.e., an act of the court shall prejudice no man or lex non cogit ad impossibilia i.e., law should not compel a man to do what he cannot possibly perform, it has been held that subsistence of order of injunction is to be excluded while reckoning eight months. Time taken by the Collector of Stamps for adjudication can also be excluded.

However, if no impediment exists in presenting a document for registration, a document is required to be presented within four months from the date of execution, which period on payment of fine and subject to satisfaction of conditions of Section 25 of the Registration Act can be extended for a further period of four months. Thus, the aggregate period available for registering the document is eight months only. Non-registration within such period attracts consequences specified under Section 49 of the Registration Act. Therefore, a document on being presented before the Court and an objection as to its admissibility being raised on the ground of non-registration, in cases where period of eight months from execution of the document has lapsed, it may not be open to the party relying on the document to seek registration thereof. The registration shall be void beyond a period of 8 months. (Section 25 of the Registration Act)

In computing the period for presentment of document for registration, the period during which the award was in the custody of the Court should be excluded as the arbitrator could not take back the award from Court during the entire period and was thus precluded from getting it registered.

Place of Registration (Part V)

The documents for registration may be presented before the sub-registrar or registration authority. As per Section 28 of Registration Act 1908 the document can be presented for registration as mentioned below.

Place for registering documents relating to land (Section 28)

Save as in this Part otherwise provided, every document mentioned in section 17, sub-section (1), clauses (a), (b), (c), 19[(d) and (e), section 17, sub-section. (2), insofar as such document affects immovable property, and section 18, clauses (a), (b) 20[(c) and (cc)], shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.

Note: The burden of proving that the property is situate within the jurisdiction in which a document relating thereto registered is on the person relying on such documenti Mohd. Khaja v. Monappa, AIR 1953 Hyd 280.

Place for registering other documents (Section 29)

Section 29 (1) Every document (not being a document referred to in section 28 or a copy of a decree or order), may be presented for registration either in the office of the Sub-Registrar in whose sub-district the document was executed, or in the office of any other Sub-Registrar under the State Government at which all the persons executing and claiming under the document desire the same to be registered.

Section 29 (2) A copy of a decree or order may be presented for registration in the office of the Sub-Registrar in whose sub-district the original decree or order was made or, where the decree or order does not affect immovable property, in the office of any other Sub-Registrar under the State Government at which all the persons claiming under the decree or order desire the copy to be registered.

Registration by Registrars in certain cases (Section 30)

Section 30 (1) Any Registrar may in his discretion receive and register any document which might be registered by any Sub-Registrar subordinate to him.

Section (2) (The Registrar of a district in which a Presidency-Town is included and the Registrar of the Delhi district) may receive and register any document referred to in section 28 without regard to the situation in any part of of the property to which the document relates.

Registration or acceptance for deposit at private residence (Section 31)

In ordinary cases the registration or deposit of documents under this Act shall be made only at the office of the officer authorised to accept the same for registration or deposit:

PROVIDED that such officer may on special cause being shown attend at the residence of any person desiring to present a document for registration or to deposit a will, and accept for registration or deposit such document or will

Duties and Powers of Registering Officers (Part XI)

Procedure where document relates to land in several sub-district (Section 64) :- Every Sub Registrar and registering a non-testamentary document relating to immovable property not wholly situate in his own sub-district shall make a memorandum there of and of the endorsement and certificate (if any) thereon , and send the same to every other Sub-Registrar subordinate to the same Registrar as himself in whose Sub-District any part of such property is situated and such Sub-Registrar shall file the memorandum in his Book No-1

Procedure where document relates to land in several districts (Section 65)

(i) Every Sub-Registrar on registering any non testamentary document relating to immovable property the Registrar shall forward a memorandum of such document to each Sub-registrar subordinate to himself in whose Sub-District any part of the property is situated.

(ii) The Registrar on receiving the same shall file it in his Book No-1 the copy of the document and the copy of the map or plan (if any), and shall forward a memorandum of the document to Sub-District in whose district any part of such property is situated, and every sub-Registrar receiving such memorandum shall file it in his Book No.1

Procedure after registration of documents relating to land (Section 66)

(I) On registering any non-testamentary document relating to immovable property, the Registrar shall forward a memorandum of such document to each Sub Registrar subordinate to himself in whose sub-district any part of the property is situate.

(2) The Registrar shall also forward a copy of such document, together with a copy of the map or plan (if any) mentioned in section 21, to every other Registrar in whose district any part of such property is situate.

(3) Such Registrar on receiving any such copy shall file it in his Book No.1, and shall also send a memorandum of the copy to each of the Sub Registrars subordinate to him within whose sub-district any part of the property is situate.

(4) Every Sub-Registrar receiving any memorandum under this section shall file it in his Book No. 1.

Chapter 5

Presentation of Documents for Registration

Presenting Documents for Registration (Part VI)

Document may be presented for registration by the person executing the documents or representative, power of attorney holder etc. As per Section 32 and 33 of Registration Act 1908 the document can be presented for registration by the following persons.

Persons to present documents for registration (Section 32)

Except in the cases mentioned in sections 31, 88 and 89 every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office-

(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or

(b) by the representative or assignee of such a person, or

(c) by the agent of such a person, representative or assign, duly authorised by power of-attorney executed and authenticated in manner hereinafter mentioned.

Compulsory affixing of photograph, etc (Section 32-A)- Every person presenting a document for registration shall affix his passport size photograph along with fingerprints to the document. In a case where a document is related to transfer of ownership of immovable property, passport size photographs and fingerprints of all the buyers and sellers mentioned in the document shall be affixed (Section 32A of The Registration Act, 1908).

Power-of-attorney recognisable for purposes of section 32 (Section 33)

Section 33 (1) For the purposes of section 32, the following powers-of-attorney shall alone be recognised, namely:-

(a) if the principal at the time of executing the power-of-attorney resides in any part of India in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;

(b) if the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power-of-attorney executed before and authenticated by any Magistrate;

(c) if the principal at the time aforesaid does not reside in India, a power-of-attorney executed before and authenticated by Notary Public, or any court, Judge, Magistrate, Indian Consul or vice-consul, or representative of the Central Government:
PROVIDED that the following persons shall not be required to attend at any registration-office or court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely-

(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;

(ii) persons who are in jail under civil or criminal process; and

(iii) persons exempt by law from personal appearance in court.

Explanation: In this sub-section "India" means India, as defined in clause (28) of section 3 of the General Clauses Act, 1897.]

Section 33 (2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or court aforesaid.

Section 33 (3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.

Section 33 (4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or court hereinbefore mentioned in that behalf.

Wills and Authorities to Adopt (Part VIII)

Persons entitled to present wills and authorities to adopt (Section 40)

In case of a will or authority to adopt, the testator or after his death any executor may or a donor or after his death the donee or adoptive son may present it to the Registrar or Sub-Registrar for registration respectively.

Registration of wills and authorities to adopt (Section 41)

Wills and Authorities to adopt shall be registered if the registering authority is satisfied that:-

The will or authority to adopt was executed by the executor or donor;
The testator or donor is dead;
The person presenting the will or authority to adopt is entitled to present the same

Chapter 6

Procedure for Registration of Documents

Enquiry before registration by registering officer (Section 34)

(l) Subject to the provisions contained in this Part and in sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the registering officer within the time allowed for presentation under sections 23, 24, 25 and 26:

Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section 25, the document may be registered.

(2) Appearances under sub-section (1) may be simultaneous or at different times.

(3) The registering officer shall thereupon-

(a) Enquire whether or not such document was executed by the persons by whom it purports to have been executed;

(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and

(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear.

(4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.

(5) Nothing in this section applies to copies of decrees or orders.

Procedure on admission and denial of execution respectively (Section 35)

(1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or

(b) if in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or

(c) if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution, the registering officer shall register the document as directed in sections 58 to 61, inclusive.

(2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine anyone present in his office.

(3)(a) If any person by whom the document purports to be executed denies its execution, or

(b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or

(c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead:

Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII:

Provided further that the State Government may, by notification in the Official Gazette, declare that any Sub-Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this sub-section and of Part XII.

Persons exempt from appearance at registration office (Section 38) (l)(a) A person who by reason of bodily infirmity is unable without risk or serious inconvenience to appear at the registration office, or (b) a person in jail under civil or criminal process, or (c) persons exempt by law from personal appearance in Court, and who would but for the provision next hereinafter contained be required to appear in person at the registration office, shall not be required so to appear. (2) In the case of every such person the registering officer shall either himself go to the house of such person, or to the jail in which he is confined, and examine him or issue a commission for his examination. (PART VII OF ENFORCING THE APPEARANCE OF EXECUTANTS AND WITNESSES)

Procedure on admitting a document to Registration:

If all the persons executing the document appear personally before the officer and/or are personally known to him or if he is otherwise satisfied that they are the persons they represent themselves to be and if they all admit the execution of the document, the Registering Officer should register the document as required under Section 58 of the said Act. He should endorse the following particulars, namely :

a) The signature and admission of every person admitting the execution of the document in person or by his representative, assign or agent;

b) The signature and admission of every person examined in reference to such a document;

c) Any payment of money or delivery of goods made in the presence of the Registering Officer in reference to the execution of the document and any admission or receipt of consideration made in his presence in reference to such execution.

If any person admitting the execution of a document refuses to endorse the same, the Registering Officer nevertheless is empowered to register such a document but he should endorse a note of such a refusal and as required under Section 59 of the Act, as he should affix the date and his signature to all endorsements made under Sections 52 and 58 of the Act which is relating to the same document.

After completion of all formalities related to registration, the Registering Officer shall endorse on the document a certificate containing the word “Registered” together with the number and page of the book in which the document has been copied. Later, the endorsements and certificate shall thereupon be copied into the margin of the Register book. The copy of maps on plans if any shall be filed in Book No.1. The registration of the document is then deemed to be completed and the document is returned to the person who presented the same for registration or to such other person if any, who has been nominated in writing in that behalf on the receipt mentioned in Section 52 of the Act. However, such original documents are returned by post or by hand delivery only after the proper procedure for the preservation of the original document has been completed by the Registration Authorities. (Sections 60 and 61 of the Registration Act)

Part IX deals with Deposit of Wills.

Deposit of wills (Section 42)

Any testator may, either personally or by duly authorised agent, deposit with
any Registrar his will in a sealed cover super scribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document.

Procedure on deposit of wills (Section 43)

(1) On receiving such cover, the Registrar, if satisfied that the person presenting the same for deposit is the testator or his agent, shall transcribe in his Register-book No. 5 the superscription aforesaid, and shall note in the same book and on the said cover the year, month, day and hour of such presentation and receipt, and the names of any persons who may testify to the identity of the testator or his agent, and any legible inscription which may be on the seal of the cover.

(2) The Registrar shall then place and retain the sealed cover in his fire-proof box.

Withdrawal of sealed cover deposited under section 42 (Section 44)

If the testator who has deposited such cover wishes to withdraw it, he may apply, either personally or by duly authorized agent, to the Registrar who holds it in deposit, and such Registrar, if satisfied that the applicant is actually the testator or his agent, shall deliver the cover accordingly.

Proceedings on death of depositor (Section 45)

(l) If, on the death of a testator who has deposited a sealed cover under section 42, application be made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, he shall, in the applicant's presence, open the cover, and at the applicant's expense, cause the contents thereof to be copied into his Book No.3.

Saving of certain enactments and powers of Courts (Section 46)

(l) Nothing hereinbefore contained shall affect the provisions of section 259 of the Indian Succession Act, 1865, or of section 81 of the Probate and Administration Act, 1881, or the power of any Court by order to compel the production of any will.

(2) When any such order is made, the Registrar shall, unless the will has been already copied under section 45, open the cover and cause the will to be copied into his Book No.3 and make a note on such copy that the original has been removed into Court in pursuance of the order aforesaid.

Chapter 7

Effect of Registration and Non-Registration of Documents

Registered Documents have its effect and non registered documents have its disadvantage when it needs to be compulsorily registered. Effect of Registration under Section 47, 48, 49 and 50 of Registration Act 1908 are as follows.

Time from which registered document operates (Section 47)

A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.

In Har Narain v Mam Chand, (Civil Appeal Np. 995-996/2003, judgment dated October 8, 2010, the Supreme Court discussed and reviewed the law relating to the doctrine of lis pendens with regard to Section 47 of the 1908 Registration Act. The doctrine of lis pendens provides that no fixed property can be transferred while an action relating to it is pending before a court of law. Under Section 47, a registered sale deed of a fixed property, on registration, is deemed to operate from the date of execution. The court clarified that the legal fiction created by virtue of Section 47 does not circumvent the operation of lis pendens. In effect, the court held that if a sale deed was not registered at the time the civil suit commenced and is registered subsequently, the property sale will still be subject to the principle of lis pendens.

Facts

The first respondent, owner of certain land, mortgaged the property in favour of its predecessor in interest of the appellant, which had been in possession of the land since 1970. The respondent and the appellant had also entered into an agreement to sell the property. Subsequently, the respondent executed a sale deed purporting to transfer the property to a third party on August 2 1971.The sale deed was registered on September 3, 1971.

In the period between execution of the sale deed and its registration on August 10 1971, the appellant filed suit against the respondent seeking specific performance of the agreement to sell. The suit was resisted by the respondent on the grounds that the sale deed (dated August 2) related back to the date of execution under Section 47, and accordingly the property was classed as sold prior to initiation of the lawsuit. The appellant argued that since registration took place after filing of the suit, the sale was affected by lis pendens.

The trial court and the High Court both took the view that the doctrine of lis pendens did not apply to the facts of this case. The lower courts had proceeded on the presumption that although the documents had been registered after the suit was filed, they related back to the date of execution. Therefore, the sale of the property was deemed to have been effected on the date of the execution of the sale deed itself.

Decision

The appellant appealed to the Supreme Court, which upheld the appeal. It held that:

"in spite of the fact that the registration would relate back to the date of execution, the sale cannot be termed as complete until its registration and it becomes effective only once it stands registered. Thus, the fiction created by Section 47 does not come into play before the actual registration of the document."

The Supreme Court observed that a similar issue, though involving a right of pre-emption, was considered by the Constitution Bench in Ram Saran Lall v Mst Domini Kuer, AIR 1961 SC 1747, wherein the Supreme Court concluded that:

"in spite of the fact that the Act, 1908, could relate back to the date of execution in view of provisions of Section 47 of the Registration Act, 1908, the sale could not be given effect to prior to registration and thus the sale was not complete until the registration of instrument of sale."

The court in Ram Saran also clarified that Section 47 of the Registration Act does not specify when a sale is deemed to be complete. It was observed that:

"a sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of Section 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date."

The Supreme Court took the view that the lower courts failed to appreciate that the fiction created by Section 47 of the act itself is a consequence of registration of the document. Accordingly, it was held that the doctrine of lis pendens applied in the present case, as the registration of the sale deed occurred after the suit was filed.

Comment

The Supreme Court has clarified its position with regard to the operation of Section 47 of the Registration Act. It appears that, in its reasoning, the court has equated the words "shall operate from" to "be effective from". On that reading, the position taken by the Supreme Court is not in tune with the literal meaning of the words used in Section 47. This is one of the many instances in which the courts have chosen to eschew a literal meaning in favour of a purposive one in order to serve the ends of justice.

Examples

1. B transfers a house worth Rs. 1, 00, 000/- to M by means of a registered instrument. The deed of conveyance is dated 1st July, 1987. The deed is presented for registration on 1st October, 1987. The registration is made by Registrar only on 21st January, 1988 after receiving certificate under Sec. 230A of the Income Tax Act. 1961. On what day M becomes the owner of the house?

Ans. Section 47 of the Registration Act provides that a registered instrument shall operate from the time from when it was executed. By virtue of this section, once registration is effected, the title relates back to the date of execution.

In the present case, the deed of conveyance was executed on 1st July 1987 while the deed was registered on 21st January 1988. The registration relates back to the date of execution. Therefore, M became the owner of the house on 1st July 1987.

2. ‘A’ sold a house to ‘B’ for a sum of Rs. 1, 00,000/- on 3.3.2011. ‘A’ retained the possession of the house. On 7.3.2011, ‘A’ again sold the same house to ‘C’ for a sum of Rs. 2, 00,000/-. ‘C’ was aware of the earlier sale deed between ‘A’ and ‘B’. The sale deed in favour of ‘C’ was registered on the same day and ‘C’ was also given the physical possession of the house. The sale deed in favour of ‘B’ got registered on 10.4.2011. ‘B’ thereafter filed a suit for recovery of possession of the house against ‘A’ and ‘C’. Decide.

Ans. Section 47 provides for time of operation of a registered document. It states that a registered document shall operate from the date of its execution and not from the date of registration. Further, it has been laid down by the Calcutta High Court that as between the transferor and the transferee, the registered document takes effect from the date of execution and if there is a competition between the two documents relating to the same property both of which are registered, the one executed earlier will have priority.

In the present case, A sold a house to B on 3.3.2011 by executing a sale deed while sold the same house to C on 7.3.2011 by a sale deed registered on the same day. The sale deed between A and B got registered on 10.4.2011. Since the registered deed takes effect from the date of execution and not from the date of registration, the deed executed between A and B shall have precedence over that of A and C. Thus, B is entitled to the possession of the house against C.

Registered documents relating to property when to take effect against oral agreements (Section 48)

All non-testamentary documents duly registered under this Act, and relating to any property, whether movable or immovable, shall take effect against any oral agreement or declaration relating to such property, unless where the agreement or declaration has been accompanied or followed by delivery of possession and the same constitutes a valid transfer under any law for the time being in force:

PROVIDED that a mortgage by deposit of title-deeds as defined in section 58 of the Transfer of Property Act, 1882, shall take effect against any mortgage-deed subsequently executed and registered which relates to the same property.

Effect of non-registration of documents required to be registered (Section 49)

No document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

PROVIDED that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.

Note:

K.B. Saha & Sons Pvt. Ltd. v. Development Consultant Ltd., (2008) 8 SCC 564: It was held that, there are certain exceptions to the general rule that insufficiently stamped documents and unregistered documents are not admissible in evidence. The court summarising the law as regards necessity of affixation of appropriate stamp duty and compulsory registration of documents held as under:

i. A document required by law to be registered, if unregistered, is not admissible into evidence by virtue of Section 49 of the Registration Act, 1908;

ii. Such unregistered document can however be used as an evidence for collateral purpose (for instance, in case of a lease-deed, the term ‘collateral purpose’ would mean proving the nature and character of the possession and the purpose of leasing out) as provided for in the Proviso to Section 49 of the Registration Act, 1908;

iii. A collateral transaction must be independent of, or must be divisible from, the transaction as regards which registration is compulsorily required under law;

iv. A collateral transaction must not be a transaction which: creates, declares, assigns, limits or extinguishes any right, title or interest in an immovable property of Rs. 100/- and upwards.

v. If a document is inadmissible in evidence for want of registration, then, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose;

vi. The Indian Stamp Act, 1899 is a fiscal legislation the primary object of which is to collect revenue for the State and to prevent its evasion. Any ambiguity or doubt in any of the provisions of the 1899 Act has to be resolved in favour of the citizen. An objection with respect to the admissibility of a document on account of insufficiency of stamps or improper cancellation of stamps (See: Section 12 of the Indian Stamp Act, 1899) cannot be entertained after the evidence has been adduced and the document has been exhibited on record; in such cases where a document has been admitted and placed on record as an exhibit the same cannot be controverted either by trial court or the appellate court or in revision. However, a mere marking of a document as an exhibit on record does not dispense with the proof thereof.

Note: If a mortgage-deed is not registered, the mortgagor cannot use it to prove his right of redemption for that is not a collateral purpose.

S. Kaladevi v. V.R. Somasundaram, AIR 2010 SC 1654: It was held that, Proviso to Section 49 of the Registration Act, 1908 would show that an unregistered document affecting an immovable property required to be registered may be received as an evidence to the contract in a suit for specific performance or as an evidence of any collateral transaction not required to be effected by registered instrument. Therefore, the court opined that, by virtue of Proviso to Section 49 of the Registration Act, 1908 an unregistered sale-deed can be admitted in evidence of a contract in a suit for specific performance of the contract. When an unregistered sale-deed is tendered in evidence not as evidence of a completed sale but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it was received only as evidence of an oral agreement of sale under Proviso to Section 49 of the Registration Act, 1908.

Bajaj Auto Ltd. v. Behari Lal Kohli, AIR 1989 SC 1806: It was held that, if a document is inadmissible in evidence for want of registration then all the terms/stipulations/clauses albeit the unregistered document in question are inadmissible in evidence including the one dealing with landlord’s permission to his tenant to sub-let. If a lease-deed is inadmissible in evidence for the want of registration then to use such an unregistered lease-deed to prove an important clause as regards such a lease-deed is not using such an unregistered lease-deed for collateral purposes.

M/s. Jiwan Industries (P) Ltd. v. Smt. Kamlesh Rani Budhiraja, 208 (2014) DLT 589: In this case, it was held that, an un-registered lease-deed can be looked into only for collateral purposes; the term ‘collateral purposes’ cannot mean to include the terms and conditions of tenancy, but rather it shall mean the use of an unregistered lease-deed to show the nature of the possession, that is, to show that the tenant has not illegally entered into the possession of the property, but is rather a legal-entrant.

Certain registered documents relating to land to take effect against unregistered documents (Section 50)

Section 50 (1) Every document of the kinds mentioned in clauses (a), (b), (c) and (d) of section 17, sub-section (1), and clauses (a) and (b) of section 18, shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not.

Section 50 (2) Nothing in sub-section (1) applies to leases exempted under the proviso to sub-section (1) of section 17 or to any document mentioned in sub-section (2) of the same section, or to any registered document which had not priority under the law in force at the commencement of this Act.

Explanation : In cases where Act No. XVI of 1864 or the Indian Registration Act, 1866, was in force in the place and at the time in and at which such unregistered document was executed, "unregistered" means not registered according to such Act, and, where the document is executed after the first day of July, 1871, not registered under the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act.

Example - A, a Hindu widow owned a house. On 28-4-63 she adopted B as her son and executed a Deed of Adoption. This document, which is not registered, also contained a covenant wherein she has stated that after this deed of Adoption her adopted son will be entitled to the whole property, moveable and immoveable and she will have no right to alienate any part of the property. The widow sold the house to C by a registered sale deed. C filed suit for possession against B on the basis of the sale deed. B relied upon the recital of the Adoption deed to plead that A had no right no right to sell the house. How will you decide the suit of C? Pass reasoned order.

[Note:- Sec.13 of Hindu adoption and Maintenance Act, 1957 provides “subject to any agreement to the contrary” an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer intervivos or will.”]

Ans. An adoption deed is not compulsorily registrable as per section 17 of the Registration Act as it does not create, limit or extinguish any right, title or interest in the immovable property of Rs. 100 or upwards. However, if a document creates, limits or extinguishes any right, title or interest in the immovable property of Rs. 100 or upwards then such document is compulsorily registrable under section 17 of the Registration Act.In the present case, the adoption deed is not registered. However, it contains a covenant whereby a right, title or interest is created in favour of adopted son in the immovable property. In absence of the deed being registered as per section 17 of the Registration Act, the same cannot be used in evidence except as evidence to show a collateral purpose (Section 49 of the Registration Act). The said immovable property was sold by A by a registered sale deed to C. Thereafter, C filed a suit for possession against B on the basis of the sale deed.

As per section 50 of the Registration Act, a registered document is to be given precedence over an unregistered document with respect to the immovable property. Hence, the registered sale deed conferring title on C must be given precedence over the unregistered Adoption Deed on which A relies.

Chapter 8

Duties and Powers of Registering Officers

Part XI of Indian Registration Act provides as to duties and powers of Registering Officers. Such powers and duties have been divided into following heads:

(a) As to the Register Books and Indexes (Sections 51 to 57)

(b) As to Procedure on Admitting to Registration (Sections 58 to 63)

(d) Special duties of Registrar (Sections 66 and 67)

(e) Controlling powers of Registrars and Inspector General (Sections 68 to 70)

(a) As to Register Books and Index : Section 51 of the Act says following books shall be kept in all Registration Offices:

Book 1 Register of non-testamentary documents relating to immovable property.

Book 2 Record of Reasons for refusal to register.

Book 3 Register of wills and authorities to adopt.

Book 4 Miscellaneous Register.

Section 51(3) says in Book No. 4 entries shall be made of all documents registered under clauses (d) and (f) of Section 18 which do not relate to immovable property.

Section 51 says in the offices of all registrars Book No. 5 will also be kept containing record of deposit of wills. Section 52 of the Act provides that day, time and place of presentation of document for registration and signature of person presenting shall be endorsed on document and subject to provisions of Section 62 every document admitted to registration shall be copied in the book appropriated therefor forthwith and all such books shall be periodically authenticated by inspector general.

Section 53 then requires that all entries in respective books shall be numbered in consecutive series. Section 54 says every registration office shall prepare current index of contents of respective books. According to Section 55 Index No. 1 shall contain names of all persons executing and of all persons claiming under the document. Index No. II shall contain such particulars as mentioned in Section 21 of the Act. Index No. III shall contain the names and additions of all persons executing Will or Authority entered in Book No.3 and of executors and persons respectively appointed thereunder. Index No. IV shall contain the names of persons executing every document entered in Book No. 4. Section 57 then says subject to payment of prescribed fee, Book Nos. 1 and 2 and index relating. Book No. 1 shall be open to inspection by any person and copies of entries in such book shall be given to any person who applies for it subject to provision of Section 62.

(b) Procedure On Admitting To Registration : Section 58 of the Act says about particulars to be endorsed on a document admitted to Registration and provides that every document admitted to registration (other than copy of decree or order or copy sent under Section 89 of Act) shall be endorsed following particulars:

(i) Signature of every person admitting execution of document and if such execution is admitted by any representative, assign or agent of any person, signature of such representative, assign or agent.

(ii) Signature of any person examined in reference to such document.

(iii) Fact of payment of money or delivery of goods etc. made in presence of Registering Officer in reference to execution of document.

(iv) If any person admitting the execution of document but refuses to endorse the same, Registering Officer shall nevertheless register it but shall endorse a note of such refusal.

Section 59 then provides that Registering Officer shall affix date and signature on all endorsements as made under Sections 52 and 58 relating to document. Section 60 says that after complying with provisions of Sections 34, 35, 58 and 59 as apply to a document presented for registration, Registering Officer shall endorse thereon a certificate containing word "Registered" with the serial No. and page of book in which document is copied in office. Such certificate shall be signed, sealed and dated by Registering Officer. Section 1 of Act provides as to copy of document admitted to registration in Book appropriated therefor. Section 62 then provides the procedure to be adopted by Registering Officer when document is presented in language unknown to Registering Officer. Section 63 says every Registering Officer has been empowered to administer oath to any person and to record the substance of his examination under the Act.

(c) Special Duties Of Sub-registrar : Sections 64 and 65 of Act provide in this regard : When the immovable property comprised in a non-testamentary document is situated in more than one Sub- district under the same Registrar, the Sub-Registrar registering the document is under a duty to send the memorandum to every Sub- Registrar within whose sub-district any part of such property is situated. Similarly, when such immovable property is situated in more than one district, the Sub-Registrar shall send a copy alongwith the endorsement and certificate to the Registrar of every district in which any part of such property is situated.

(d) Special Duties OF Registrar : Section 66 of Act says on registering any non-testamentary document relating to immovable property, Registrar shall forward memorandum of such document to each Sub- registrar subordinate to him in whose sub-district any part of property is situated.

Section 67 says Registrar will, on any document being registered under Section 30(2), forward a copy of such document and of endorsement and certificate, to every Registrar within whose district any part of property to which document relates is situated.

(e) Controlling Powers of Registrar and Inspector General : A Registrar has the powers of superintendence and control over the Sub- Registrars of his district. He has also been empowered to issue any order consistent with this Act in respect of any act or omission of any Sub- Registrar subordinate to him or in respect of the rectification of any error regarding the book or the office in which any document has been registered.

The Inspector General shall exercise general superintendence over all the registration offices in the territories under the State Government. He has also been empowered to make Rules, with the approval of the State Government, consistent with this Act with respect to the matters stated in Section 69 of the Act.

Chapter 9

Refusal to register the documents

Part XII provides for Refusal to Register the documents.

Reasons for refusal to register a document:

Sec.71 of the Indian Registration Act 1908

“Sec.71: Reasons for refusal to register to be recorded: Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusaland record his reasons for such order in his Book No.2, and endorse the words ‘registration refused’ on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.”

Rule 162 of the Registration Rules:

1. Section 19: That the document is written in a language which the registering officer does not understand and which is not commonly used in the district, and that it is unaccompanied by a true translation and a true copy.

2. Section 20:That it contain unattested interlineations, blanks, erasures, or alterations which in the opinion of the registering require to be attested.

3. Section 21: and Section 22: That the description of the property is insufficient to identity it or does not contain the information required by rule 18.

4. Section 21(4): That the document is unaccompanied by a copy or copies of any map or plan which it contains.

5. Rule 32: That the date of execution is not stated in the document or that the correct date is not ascertainable.

6. Sections 23, 24, 25, 26, 72, 75 and 77: That it is presented after the prescribed time.

7. Sections 32,33,40 and 43: That it is presented by a person who has no right to present it.

8. Section 34: That the executing parties or their representatives, assigns, or agents have failed to appear within the prescribed time.

9. Sections 34 and 43: That the registering officer is not satisfied as to the identity of a person appearing before him who alleges that he has executed the document.

10. Section 34 and 40: That the registering offer is not satisfied as to the right of a person appearing as a representative, assign, or agent so to appear.

11. Section 35: That execution is denied by any person purporting to be an executing party by his agent.

12. Section 35: That the person purporting to have executed the document is a minor, an idiot or a lunatic.

13. Section 35: That execution is denied by the representative or assign of a deceased person by whom the document purports to have been executed.

14. Section 353 and 41: That the alleged death of a person by whom the document purports to have been executed has not been proved.

15. Section 41: That the registering officer is not satisfied as to the fact of execution in the case of a will or of an authority to adopt presented after the death of the testator or donor.

16. Sections 25, 34 and 80: That prescribed fee or fine has not been paid.

Remedies available if registration of document is refused:

When the sub-registrar refuse to register the document presented for registration, the following remedies are available to aggrieved party:-

(1). Appeal

(2). Application in case of refusal on the ground of denial of execution

(3). Suit in case of order of refusal by the Registrar

(1) Appeal:- Upon refusal of sub-registrar to register a document presented for registration, appeal can be filled against order of refusal, however appeal does not lie where the order of refusal is passed on the ground of denial of execution. Section 72 of Act says :-

(1) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of order ; and the Registrar may reverse or alter such order.

(2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60 ; and such registration shall take effect as if the document had been registered when it was first duly presented for registration."

Section 72 provides for an appeal to Registrar from orders of sub- registrars refusing registration on a ground other than denial of execution. Period for filling appeal to Registrar is thirty days after making the order of refusal.

(2) Application in case of refusal on the ground of denial of execution. - Section 73 of the Indian Registration Act provides for the remedy available to a person where registration has been refused on the ground of denial of execution. This remedy is a available only to those persons specified in this section. This section states that when a Sub-Registrar has refused to register a document on the ground that any person by whom it purports to be executed or his representative or assign denies its execution, any person claiming under such document or his representative, agent or assign may, within 30 days after the making of the order of refusal, to apply the Registrar to whom such Sub-Registrar as subordinate, in order to establish his right to have the document registered. The application should be in writing and accompanied with a copy of the reasons recorded. The statement in the application should be verified by the applicant in the manner required by law for the verification of plaints.

On presenting on an application under Section 73, the Registrar will enquire -

(a) whether the document has been executed;

(b) whether the requirements of law have been complied with on the part of the applicant so as to entitle the document to registration. (Section 74).

(1) In case the Registrar finds that the document has been executed and the requirements of law have been complied with, he will order the document to be registered.

(2) On receipt of such order the person claiming under the document should duly present the document before the registering officer for registration within 30 days, and he will register the document.

(3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration.

(4) The registrar may, for the purpose of any enquiry under Section 74, summon and enforce the attendance of witnesses, and compel them to give evidence, as if he were a civil court, and he may also direct, by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the C.P.C.

But the Registrar can refuse to direct registration of the document under Section 72 or Section 75, in which case he will make an order of refusal and record the reasons for such order and on application made by any person executing or claiming under the document, will without unnecessary delay give him a copy of the reasons so recorded. No appeal lies from such order of refusal by the Registrar. (Section 76).

(3). Suit in case of order of refusal by the Registrar. - Where the Registrar refuses to order the document to be registered under Section 72 or 76, any person claiming under such document or his representative, agent or assign may within 30 days after the making of the order of refusal institute in the civil courts within local limits of whose original jurisdiction, the office is situate in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office (Section 77 of Act).

The analysis of the provisions of S. 77 would indicate that it would apply only if a matter is pertaining to registration of a document and not for a comprehensive suit where the relief prayed

for is directing the defendant to register the sale deed, in favour of the plaintiff in respect of the

plaint schedule property and if he so fails to get a registration in favour of the plaintiff for permanent injunction or in the alternative for delivery of possession of the plaint schedule mentioned property. The document had not been presented by the respondent to the Sub-Registrar

at all for registration although the sale deed was stated to have been executed by the appellant as

he refused to co-operate with him in that regard. Therefore, various stages contemplated under S.

77 of the Act had not arisen in the present case at all. In such a case when the vendor declined to

appear before the Sub-Registrar, the situation contemplated under S. 77 of the Act would not arise. It was only on presentation of a document the other circumstances would arise. There was an agreement to transfer the immovable property in the suit by the defendant to the plaintiff on the terms stated in the sale deed. Such an agreement to sell the immovable property in suit could be specifically enforced under the provisions of the Specific Relief Act. Therefore, the First

Appellate Court was of the opinion that the plaintiff was alternatively entitled to base his claim of specific performance on the pleaded oral agreement to sell and, inasmuch as there are further relief sought for, it was a comprehensive suit including a relief for specific performance of a contract contained in the sale deed executed, but not registered and, therefore, held that such relief for specific performance could be granted: Kalavakurti Venkata Subbaiah v. Bala Gurappagari Gurvvii Reddy A.I.R. 1999 S.c. 2958: (1999) 7S.C.C. 114: J.T. (1999) 5 S.c. 389.

In a suit instituted under Section 77 of the Registration Act, the Court is not concerned with the validity or binding nature of the document apart from its genuineness. The Court will not consequently examine such defences as that the document was cancelled, or that the document was executed by the guardian of a minor in contravention of his powers, or that the document was void for want of consideration, or that the document was executed by fraud or undue influence. In a suit under Section 77, the only relief that a plaintiff can get is one of a decree directing the registration of the particular document executed between the parties. No other relief can be granted to the plaintiff and no other claim can be coupled with the prayer to enforce registration. A suit for specific performance of a contract of sale is not a suit for a direction to register a deed.

It is a suit based on the original cause of action which is independent and separate from the cause of action arising from the refusal of a party to register a document executed by one party in favour of the other. The remedy which the plaintiff claims in the suit is for the specific performance of the contract by executing a new and fresh document for recovery of actual possession. It cannot, therefore, be said that Section 77 of the Registration Act in terms or by necessary implication bars a suit for specific performance of a contract embodied in a deed for the registration of which a decree could be obtained in a suit under Section 77.

Now, the remedy of specific performance is an equitable remedy. The jurisdiction to decree specific performance is discretionary and the Court is not bound to grant specific performance in every case in which the agreement has not been carried out in its entirety. The existence of an alternative effective remedy and the conduct of the party applying for specific performance are always important elements’ for consideration. Thus the question whether a suit for specific performance is or is not maintainable in view of the provisions of Section 77 of the Registration Act would depend mainly on the nature of the pleadings in the suit for specific performance and the facts determined by the Court in that suit, If for example on the pleadings of the parties, the controversy in a suit for specific performance is confined only to the points that could be adjudicated in a suit under Section 77 of the Registration Act, then clearly the suit for specific performance would not be maintainable.

If, on the other hand, in a suit for specific performance, the defendant while admitting or denying the execution of an unregistered document embodying the contract between the parties, raises pleas as to the validity of the contract such as fraud, undue influence or want of consideration, then clearly the defendant cannot turn round and say that the plaintiff should have resorted to the remedy under Section 77 of the Registration Act. Again, if a vendor, after having executed a sale-deed in favour of a vendee and without getting it registered, sells the same property to another person subsequently and executes a registered sale-deed in his favour, then in a suit under Section 77 of the Registration Act, the plaintiff cannot obtain complete relief.

When there is a sale of the same property in favour of a prior and subsequent transferee, then as pointed out by the Supreme Court in Durga Prasad v. Deep Chand, AIR 1954 SC 75 (E), the proper form of decree in a suit for specific performance brought by the prior transferee, in case he succeeds, is to direct specific performance of the contract between the vendor and the prior transferee and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the prior transferee. In a suit under Section 77 of the Registration Act, the plaintiff could not have claimed and obtained the relief of directing the subsequent transferee to join in the conveyance so as to pass on the title which resides in him. Now, here the defendant pleaded that the plaintiff did not pay Rs. 75/- within the time agreed and thus failed to perform the contract and so the contract was not binding on him. The plaintiff sought relief as against Gulabsingh who had purchased the property by a registered sale-deed subsequent to the deed which the defendants Prithvisingh and Bherusingh had executed in favour of the plaintiff on 6-11-1946.

The Plaintiff also claimed the alternative damages and also the relief of possession of the house. All these questions were beyond the scope of a suit under Section 77 of the Registration Act. It cannot, therefore, be contended that the plaintiff’s suit for specific performance in effect covered the same ground as in a suit under Section 77 of the Registration Act and that he could have obtained complete relief, in a suit under Section 77 of the Registration Act. In my view, in this case the plaintiff is not precluded from bringing a suit for specific performance even though he did not file a suit under Section 77 of the Registration Act for the registration of the document which the vendors had executed in his favour.

Effects of non-registration of documents required to be registered –

All the documents, which are required to be registered, and actually they are not got registered, have following effects:

Chapter 10

Miscellaneous Provisions

PENALTIES (Part XIV)

Penalty for incorrectly endorsing, copying, translating or registering documents with intent to injure (Section 81) –

Every registering officer appointed under this Act and every person employed in his office for the purposes of this Act, who, being charged with the endorsing, copying, translating or registering of any document presented or deposited under its provisions, endorses, copies, translates or registers such document in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause, injury, as defined in the Indian Penal Code (45 of 1860), to any person, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.

Penalty for making false statements, delivering false copies or translations, false personation, and abetment (Section 82) –

Whoever- (a) intentionally makes any false statement, whether on oath or not, and whether it has been recorded or not, before any officer acting in execution of this Act, in any proceeding or inquiry under this Act; or (b) intentionally delivers to a registering officer, in any proceeding under section 19 or section 21, a false copy or translation of a document, or a false copy of a map or plan; or (c) falsely personates another, and in such assumed character presents any document, or makes any admission or statement, or causes any summons or commission to be issued, or does any other act in any proceeding or enquiry under this Act; or (d) abets anything made punishable by this Act, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.

Registering officer may commence prosecutions (Section 83) -(l) A prosecution for any offence under this Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permission of the Inspector General, the Registrar or the Sub-Registrar, in whose territories, district or sub-district, as the case may be, the offence has been committed. (2) Offences punishable under this Act shall be triable by any Court or officer exercising powers not less than those of a Magistrate of the second class.

Registering officers to be deemed public servants (Section 84) –

(l) Every registering officer appointed under this Act shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860). (2) Every person shall be legally bound to furnish information to such registering officer when required by him to do so. (3) In section 228 of the Indian Penal Code (45 of 1860), the words "judicial proceeding" shall be deemed to include any proceeding under this Act.

Miscellaneous (Part XV)

Destruction of unclaimed documents (Section 85)-Documents (other than wills) remaining unclaimed in any registration office for a period exceeding two years may be destroyed.

Registering officer not liable for thing bona fide done or refused in his official capacity (Section 86) -No registering officer shall be liable to any suit, claim or demand by reason of anything in good faith done or refused in his official capacity.

Nothing so done invalidated by defect in appointment or procedure (Section 87) - Nothing done in good faith pursuant to this Act or any Act hereby repealed, by any registering officer, shall be deemed invalid merely by reason of any defect in his appointment or procedure.

Exemptions from Act

Exemption of certain documents executed by or in favour of Government (Section 90)

(1) Nothing contained in this Act or in the Indian Registration Act, 1877, or in the Indian Registration Act, 1871, or in any Act thereby repealed, shall be deemed to require, or to have at any time required, the registration of any of the following documents or maps, namely,-

(a) documents issued, received or attested by any officer engaged in making a settlement or revision of settlement of land revenue, and which form part of the records of such settlement; or

(b) documents and maps issued, received or authenticated by any officer engaged on behalf of Government in making or revising the survey of any land, and which form part of the record of such survey; or

(c) documents which, under any law for the time being in force, are filed periodically in any revenue office by Patwaries or other officers charged with the preparation of village-records; or

(d) sanads, inam title-deeds and other documents purporting to be or to evidence grants or assignments by Government of land or of any interest in land; or

(e) notices given under section 74 or section 76 of the Bombay Land Revenue Code, 1879, or relinquishment of occupancy by occupants, or of alienated land by holders of such land.

(2) All such documents and maps shall, for the purposes of sections 48 and 49, be

deemed to have been and to be registered in accordance with the provisions of this Act

Inspection and copies of such documents (Section 91)

(1) Subject to such rules and the previous payment of such fees as the 63[64[State Government], by notification in the Official Gazette, prescribes in this behalf], all documents and maps mentioned in section 90, clauses (a), (b), (c) and (e), and all registers of the documents mentioned in clause (d), shall be open to the inspection of any person applying to inspect the same,

and, subject as aforesaid, copies of such document shall be given to all persons applying for such copies.

(2) Every rule prescribed under this sub-section or made under section 69 shall be laid, as soon as it is made, before the State Legislature.

By: Abhipedia

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The Registration Act , 1908