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.
Most of the instruments 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 document itself.
For documents which require mandatory registration certain procedures
are prescribed.
Time limit for
registration
Under 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 of
the document does not exceed a further period of four months, then the parties
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 [Sec.25].
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 of Registration
Fees charged for the registration or searching the register are prescribed
by State Governments through Notifications.
Testamentary instrument
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. How-ever, 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. After the 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.
Jurisdictional
Sub-Registrar Offices
Generally documents have to be presented for registration only at
the Sub-Registrar's office within whose jurisdiction the immovable 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 executants
or to accept deposit of Will.
Presentation of the
document
Documents which require mandatory registration have to be
presented in the concerned Sub-Registrar Office for registration by the executants
or person claiming under the Decree. However, in certain cases, the
representatives of the Executants, duly authorized under Power of Attorney, can
also execute the same on behalf of the Executants. A power of Attorney holder
can execute the document, representing 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 executants 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.
Enquiry by the Registering
authority
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.
Effect of non-registration
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.
Documents are mainly registered for conservation of evidence,
assurance of title, and to help an intending purchaser to know if the title
deeds of a particular property have been deposited with any financial
institution or person for purpose of obtaining loan or advance against security of the property. Registration of documents acts as notice to the public and to
protect oneself against the likely fraud. Therefore, it is advisable to
register all documents connected with the immovable property irrespective of
whether the registration is compulsory or not as it creates a permanent record
of event which are reflected in encumbrance certificates.
As registered documents have higher value of evidence than
unregistered documents it is always beneficial to you if you get all your property documents registered
within the stipulated period
irrespective of the fact that such registration is mandatory or not.
Endorsement
After accepting the document for registration, the Registering
authority shall endorse the document regarding affixation of the signature of
the Executant, payment of consideration, date and other relevant particulars.
If registration is declined by either of the party, the same shall be endorsed
on the document itself. Apart from this, the Registering authority shall also
endorse on the Document the registration number, Book number, pages, volume or
CD number and affix the seal of the office of the Sub-Registrar. Such a
Certificate shall be copied in the Register meant for the purpose and copy of
the map or plan, if any, shall be filed in Book No.1. Thereafter, the
registered document will be returned to the person who has presented the same
for registration or to his representatives.
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