All documents do not require
registration compulsorily. The Transfer of Property Act, 1882 and the Indian
Registration Act, 1908 have made registration of certain documents compulsory
while in respect of certain other documents it is optional. According to
Section 17 of the Indian Registration Act, 1908 registration of documents is compulsory
if they relate to an immovable property. Similarly, Section 54 of Transfer of
Property Act 1882, stipulates that sale of immovable property the value of which
is one hundred rupees or more should be registered. Since no immovable property
is available for rupees one hundred or less than rupees one hundred, implicitly
all sale deeds of immovable property need compulsory registration.
dealing with the immovable property for
creating, declaring, assigning, limiting or extinguishing any right, title or interest
in the property require compulsory registration, as enumerated under the Indian
Registration Act, 1908. For executing an instrument, the first and the foremost
aspect to be considered is the nature of the right intended to be transferred. If
the document falls within the category of the documents which warrants compulsory
registration, any avoidance of registration of such document would invalidate
the compulsory registration, any avoidance of registration of such document
would invalidate the document itself. For documents which require mandatory registration
certain procedures are prescribed.
U n d e r Section 23 of the Registration
Act, subject to certain exceptions, any document other than a Will has to be
presented for registration within four months from the date of its execution. Execution
means signing of the document. It is not uncommon that the date of execution and
the date of registration may differ. For the non-testamentary documents such as
Sale Deed, Gift Deed, Mortgage Deed, etc, the time limit within which the
document has to be registered is four months from the date of execution. Decrees
drawn in terms of Compromise Petition wherein shares of the parties are allotted
by metes and bounds require registration.
Even for registration of the court
decree, four months time limit is stipulated under the Act. If the document is executed
by all or any of the parties residing abroad, the same can be accepted for
registration within four months from the date of receipt of the document in
India. In case of doubt as to the validity of registration, the document may be
re-registered within four months from the date when it is noticed that the registration
is invalid or of doubtful validity. Where a document is executed by several persons
at different times, it should be presented within four months from the date of the
latest execution for registration.
If a document is not presented for registration within the prescribed period of four months and the delay in presentation
or the document does not exceed a further period of four months, then theparties can apply to the Registrar for registration of the document who may
direct, upon payment of fine not exceeding ten times the actual registration fees,
for registration of such a document.
A document relating to an immovable
property can be executed out of India and later it can be presented for registration
in India. As per section 26 of the Registration Act, 1908, if a document
purporting to have been executed by all or any of the parties out of India is presented
within the prescribed period of time for registration, the Registering Officer
may, on payment of proper registration fee accept such document for
registration if he is satisfied that the instrument was executed out of India
and the instrument has been presented for registration within four months after
its arrival in India.
Fees charged for the registration or
searching the register are
prescribed by
State Governments through Notifications.
In case of Testamentary instrument, that
is, Will, registration is optional and time limit is not prescribed. It can be registered
any time before the death of the Testator. However, it is advisable to register
the same as soon as possible in order to avoid disputes about the genuineness
of its execution. In case of registration of Will, the same may be presented by
the Testator during his life time and after his death, by the beneficiary or the
administrator, for registration.
A Will may be deposited with the Sub-
Registrar in a sealed cover and such deposit may be done through an agent. Afterthe death of the Testator, the sealed envelope will be opened and the contents recorded
in the relevant register maintained in the Sub-Registrar's Office. The Original
copy of the 'Will' will be in the custody of the Sub-Registrar.
Generally documents have to be presented
for registration only at the Sub-Registrar's office within
whose juri diction
the immo able property is situated. However, in certain exceptional cases,
documents may be presented for registration with the Registrar who has been
conferred with the power to register the documents. In fact, Sub-Registrars have
been vested with the special power to register the
document at the residence or office of the executant or to accept deposit of Will.
Documents which require mandatory registration
have to be presented in the concerned Sub- Registrar Office for registration by
the executant or person claiming under the Decree. However, in certain cases, the
representatives of the Executant, duly authorized under Power of Attorney, can also
execute the same on behalf of the Executant. A power of Attorney holder can
execute the document, epresenting the Principal only if an authority has been vested
in him under Power of Attorney, which is authenticated by the Registering authority
within whose jurisdiction the Principal resides. If the Principal does not reside
in India, then the Power of Attorney should be executed before and authenticated
by a Notary Public or any Court, Judge, Magistrate, Indian Consul or Vice-Consul
or the Representative of Central Government in that country and the same IS required
to be presented with the concerned registrar in India with in a period of three
months of its receipt in India. When a document has been executed by more than one
executant and after execution of the same, one of the executants refrain from attending
the concerned Sub- Registrar's Office for registration, then the remaining executants
can compel attendance of the executant reluctant to be present before the registering
authority through the process of law.
The Registering Officer is empowered
under sec. 34 of the Registration Act to enquire whether or not the person is the
same by whom it purports to have been executed such a document. He may insist on
production of proof for his identity and in case any person is appearing as a representative
or agent, the Registrar may ask for relevant documents to show that the agent or
representative has the right to appear on behalf of his principal.
What would be the repercussion if a document
which requires compulsory registration is not registered? Section 49 of Indian
Registration Act deals with this situation. It states clearly that such un-registered
documents do not convey to the transferee a legally valid title and such documents
are not admitted as evidence for any transaction affecting the property referred
to in the document. However, there is an exception provided in the Act. The unregistered
documents may be admitted as evidence in a suit for specific performance under Specific
Relief Act or in any other related transaction, not required to be effected under
a registered instrument.
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