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 theIndian 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 whichwarrants compulsory registration, any avoidance of
registration of such document would invalidate the document itself. For documents which require
mandatory registration certain proceduresare prescribed.
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 canbe accepted
for registration within four months from the date of receipt of thedocument 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 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. How-ever, it is advisa-ble 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.
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
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, 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 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.
Effect of non-registration
What would be the repercussion if a document which requires
compulsory registration is not registered? Section 49 of IndianRegistration 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.
