By Chaya Singhal
Abstract
This research paper talks about registration and the law of registration in India. The law of Registration Act has been now amended quite a many times. At the end of this research paper, you will be able to analyse purpose, scope and legislative philosophy of Sections 17, 18, and 49 of the Registration Act of 1908. Registration is a term which is used in the legal as well as the official language.
This research paper also talks about how the law of registration act was evolved and what were the objectives of the same. The main objective of registering a document is basically to prevent fraud. Registration of both movable and immovable property can be done. Movable property is a property which can be moved from a particular place to another, whereas immovable property is the property which is attached to the Earth and cannot be moved from one place to another. But immovable property does not include standing timber, growing crops or grass.
Introduction
Registration is a term that is used in legal and official language. Section 17 of the Registration Act of 1908 regulates registration, and paying stamp duty is a prerequisite for registration. Within four months of the date the agreements were signed, all documents must be registered. The documents of sale and purchase of immovable property must be registered in order to preserve evidence, prevent fraud and guarantee title. In order to guarantee title, prevent fraud and preserve evidence, the Registration Act of 1908 mandates the registration of various documents.
To let the world know that a document has been signed, it is necessary to register it. A document’s registration does not confer title to the property as stated in the document; rather, it provides evidence that such transactions were registered, which could be used to establish title to the property.
A “No Objection Certificate” from the relevant authorities is required for the registration of documents pertaining to the conveyance of government, local or religious property.
A document is registered with a designated authority in order to be kept as a public record. The Act’s goal is to codify the legislation governing registration, and it outlines the process for doing so. It specifies the paperwork that must be submitted in order to register. Additionally, it sets a deadline for the presentation and registration of documents and guarantees that there are provisions for their correct preparation and presentation.
Literature Review
From the book, “Registration Act, 1908” from “Lawmann’s” it was easier to gain the knowledge about the different sections and were able to understand that what documents are to be registered mandatorily under Section 17 and what documents are optional under section 18.
In the article “Understand property and its registration under laws of India” by Lalit Jain, the definition of movable and immovable property were clearly defined and there the concepts of property and how it can be registered under the laws of India could be understood.
From the research paper, “Brief overview on Registration Act 1908” by “Mahamudul Hasan Rakib” from “Daffodil International University,” I was able to understand the brief history of the Registration Act and what were the reasons behind the establishment of the Act.
From the case Suraj Lamp & Industries Pvt Ltd vs State of Haryana & Anr, it was inferred that transactions of the type of ‘General Power of Attorney Sales ‘, ‘Sale by Agreement to Sell’, or ‘Transfer by Will’ are incapable of conveying the title and they cannot be recognised as acceptable modes of immovable property transfer.
Such transactions are, therefore, not to be treated as finished or concluded transfers or conveyances by the courts because they do not convey title or create any interest in real property
From the case “Debi Singh Bhujil v Tek Bahadur Bhujil”, it was inferred that for a document to be proved as an evidence in the courts, the registration is mandatory, if it required as per the document. This is because the document is like a title that says for the future which rights, claims, or properties each member of the family will get.
Research Methodology
This research paper follows the method of doctrinal research. Using this method, “a researcher composes a descriptive and detailed analysis of legal rules found in primary sources” (cases, statutes, or regulations). This research is also based on secondary sources such as articles, books and blogs.
Research Question
- How was the Registration Act evolved?
- What are the documents which need to be registered under Registration Act, 1908?
- What are the effects of non-registration?
Research Objective
The main objective of this research is to analyse how the Registration Act, 1908 was amended and what was need for the same in India. This research paper also tried to study the various aspects of non-registration of documents.
Analysis
What is registration?
Registration is a term that is used in legal and official language. Section 17 of the Registration Act of 1908 regulates registration and paying stamp duty is a prerequisite for registration. Within four months of the date the agreements were signed, all documents must be registered. The documents of sale and purchase of immovable property must be registered in order to preserve evidence, prevent fraud, and guarantee title. In order to guarantee title, prevent fraud, and preserve evidence, the Registration Act of 1908 mandates the registration of various documents.[1]
Registration of Documents
The Registration Act of 1908 governs the process of document registration. Documents and instruments are more authentic when properly recorded and registered under the Registration Act of 1908.
A document’s contents are recorded with a State Government-appointed Registering Officer during registration. Any district or parcel of land may be excluded from State Government operations. The crucial task of preserving copies of the original document is performed by the Registering Officer.
The Act regulates transactions between individuals that are reduced to writing and specifies whether such written instruments must be registered or not, depending on the circumstances. It doesn’t talk about transactions that can’t be written down.
There are 93 sections and one schedule in this Act’s XV PARTS.
With the exception of the State of Jammu and Kashmir, the Registration Act of 1908 applies to the entirety of India.
History of the Registration Act, 1908
Numerous laws governing the registration of documents existed in British India prior to 1864. Each of the provinces of Bengal, Bombay, and Madras had regulations that required documents to be registered. [2]
Act XVI of 1864 was the first comprehensive law regulating the registration of documents. It combined and amended all previous laws governing the registration of assurances. It also abolished provisions limiting the rights of priority to registered deeds as opposed to unregistered documents of the same nature and introduced a system of compulsory registration for the first time in British India for certain clauses of the documents.
However, even under this Act, documents that were optionally registerable were given priority over documents that were compulsorily registerable. Therefore, if two documents A and B were both optionally registrable and one of them was registered, A would have priority over B.
On the other hand, if A was compulsorily registerable and B was optionally registerable, the fact that A was registered did not grant it priority over B. Act XX of 1866 further consolidated and amended the law governing the registration of assurances. Act VIII of 1871 added to it another time. Act III of 1877 made amendments to the Act of 1871.For the first time, the Act of 1877 made it possible to give priority to registered documents, regardless of whether they had to be registered or not.
The Indian Registration Act of 1908, also known as Act No. XVI of 1908, was passed to consolidate legislation pertaining to document registration. The Indian Registration Act of 1908 was the previous name of the Registration Act of 1908. Act No. 26 of 1969 omitted the word “Indian” from the Act’s title on December 26 of 1969.
Is registration process mandatory?
All transactions involving the sale of an immovable property for more than Rs 100 must be recorded, per Section 17 of the Registration Act of 1908. [3]
Since no immovable property can be purchased for just Rs 100, this effectively means that all sales of immovable property must be registered. The Act’s Section 17(1) mandates the required registration of the following documents:
- Instruments of the gifts of immoveable property
- documents that are not testamentary and signify the operation, declaration, assignment, limitation, and termination of any right, title, or interest in immovable property worth more than one hundred rupees.
- Leases of such immovable property for a term exceeding one year or reservation of yearly rent”.
- The documents that establish, limit, or assign a person’s interest in immovable property must be worth more than one hundred rupees. A document that creates an interest in immovable property with a current or future value of more than one hundred rupees must be registered.
- Contracts involving the transfer of any immovable property in exchange for consideration, as defined in Section 53 A of the Transfer of Property Act of 1882, executed after the Registration and Other Related Laws Amendment Act of 2001
It should be mentioned that the State Government has the authority to disallow any lease signed in any district or portion of a district with periods more than five years and yearly rentals greater than fifty rupees.
Optional Registration of Documents
There are quite a many documents which are mentioned under the Section 18 of the Registration Act which mention the documents whose registration is optional [4]. Some of them are:
- Adoption Deed
- Wills
- Debenture which is issued by The joint stock company
- Power of Attorney
- Leases of property that do not exceed a limit of 1 year and the leases exempted under Section 17.
Where can documents be registered?
According to Section 28 of this Act, all papers pertaining to real estate must be submitted to the sub-registrar’s office of the subdistrict in which the whole or a portion of the property is located for registration. If there are exceptional circumstances, the officer may visit the home of someone wishing to deposit a will or deliver a document for registration mentioned under Section-31 of the act.
Objective of registration
The main objective for getting a document registered is to provide a method for the public registration of documents to inform people of their legal rights and responsibilities regarding a specific property, preserve documents that may later be of legal importance, and deter fraud. The objectives can be:
- The safeguarding of evidence
- ensuring title, making documents more visible, and stopping fraud.
- A prospective customer’s interest is protected by registration.
Effects of non-registration of documents
Although, registration is not mandatory in certain fields but it is stated that getting a document registered increases the volume of the same. The effects which are caused due to the non-registration of the documents are mentioned in Section-49 of the act. [5]
The effects can be:
- Inoperativeness of document
Any right, title, or interest in or to immovable property, whether vested or contingent, shall not be created, declared, assigned, limited, or extinguished by any document required to be registered under this Act or any prior law providing for or relating to registration of documents.
- No conferment of power to adopt
A deed of adoption that is not properly registered, as required by Section 17 of the Registration Act, is in violation of this section and will not grant any authority to adopt.
- Inadmissibility as evidence
A document that must be registered but has not been can’t be used as proof of creation, etc., of any interest, title, or right in specific immovable property. Non-registration decimates an instrument’s evidential value, but it can be used as evidence in some collateral transactions.
In the case of “Tek Bahadur Bhujil v. Debi Singh Bhujil” the court said that if a document about a family arrangement is written so that it can be used as proof, it must be registered.[6] This is because the document is like a title that says for the future which rights, claims, or properties each member of the family will get.
- Admissibility for collateral transaction
However, such a document can be admitted to prove an admission of a party with regard to the character of the property, i.e., whether it is joint or otherwise, even though it is required by law to be registered and cannot be received in evidence of any transaction affecting such property under Section 49 of the Registration Act.
Case laws
- In the case known as “Narinder Singh Rao v Avm Mahinder Singh Rao[7]“, it was held that the decedent’s will made it clear that the property would go to the decedent’s wife. In her unregistered will, signed by only one witness, the widow left the entire estate to one of her nine children. The resentful children took their mother to court, arguing that the will was against the law and that they were also entitled to their father’s wealth. The Supreme Court ruled that the will was invalid because it was not confirmed by two witnesses, and the children were entitled to the property as a result. It can be concluded that if the will was registered then the will would not have been held invalid.
- In the case “Suraj Lamp & Industries Pvt Ltd vs State of Haryana & Anr[8]”, it was held by the learned bench of three judges who made it clear that a registered deed of conveyance is the only way to legally transfer or convey immovable property. To put it another way, transactions that fall under the headings of “GPA sales” or “Sale agreement/ General power of attorney sale/WILL transfers” neither constitute a transfer nor are they recognized as a valid method of transferring immovable property as outlined in Section 53 A of The Transfer of Property Act, 1882. In addition, they believed that decision should be applied prospectively to avoid difficulty. However, the Sale agreement and Will transactions that have been accepted by the Delhi DA or other developmental authorities or by the municipal or revenue authorities to effect mutation and need not be disturbed were excluded from this judgment.
- In the case “Naginbhai P Desai vs Taraben A Sheth[9]” it was held by the court that he Indian Registration Act of 1908 does not recognize a sale agreement as a conveyance. It cannot produce a new title and cannot be used as an admissible proof in the court.
- In the case “Hansia vs Bakhtawarmal & Ors[10]”, the question was how far an unregistered document that had to be registered under Section 17 of this act could be used in the case. A mortgage deed that was not registered was the document in question. A suit for recovery based on an unregistered mortgage deed is bound to fail because the purpose of the mortgage deed is to demonstrate the mortgage. A mortgage deed that has not been registered can only be used as collateral, as stated in Section 49 of the Registration Act. In a claim for possession, the plaintiff can only use the unregistered deed to demonstrate possession, not in a redemption suit. Consequently, redemption litigation cannot benefit from Section 49 of the Act. The Registration Act of 1908 stipulates that documents must be registered before they can be used for collateral.
Conclusion
We can conclude by saying that To let the world know that a document has been signed, it is necessary to register it. As discussed, we know that under Section-18 there are many documents that have the option of optional registration, getting a document registered always has an positive effect. The Registration Act has been amended quite a many times so as to consolidate legislation pertaining to document registration. Non- registration of a document can cause a lot of trouble and cannot be used as a collateral or an admissible proof in the court.
Bibliography
Narinder Singh Rao v Avm Mahinder Singh Rao, Civil appeal 6918-6919 of 2011 (SUPREME COURT OF INDIA MARCH 22, 2013).
Suraj Lamp & Industries Pvt Ltd vs State of Haryana & Anr, 2009(7) SCC 363 (SUPREME COURT OF INDIA OCTOBER 11, 2011).
Hansia v. Bakhtawarmal & ors, AIR 1958 RAJ 102 (RAJASTHAN HIGH COURT OCTOBER 8, 1957).
Tek Bahadur Bhujil v Debi Singh Bhujil, AIR 1966 SC 292 (SUPREME COURT OF INDIA FEBRUARY 26, 1965).
Hassan, M. (2015). Brief overview on Registration Act, 1908. Academia.
Naginbhai P. Desai vs Taraben A. Sheth, AIR 2003 Bom 192 (BOMBAY HIGH COURT NOVEMBER 22, 2002).
JAIN, L. (2020, JUNE 16). UNDERSTANDING PROPERTY AND ITS REGISTRATION UNDER LAWS OF INDIA. CORPORATE LAW, pp. 1-2.
Shaik, U. (2022). Effect of registration and non registration under the registration act,1908. bnw journal.
Shivam Goel, The Registration Act, 1908: CRITICAL ANALYSIS OF THE 1908 Act
Rahul sharma, All about the registrations Act, 1908
https://www.latestlaws.com/articles/all-about-the-registration-act-1908
Uzma Shaik, Effect of registration and non registration under the registration act,1908
http://www.commonlii.org/pk/other/PKLJC/reports/67.html
[1] Lalit Jain, Understanding Property and its Registration under Laws of India (2020)
[2] Mahamudul Hassan, Brief overview on Registration Act,1908 (2015)
[3] Shivam Goel, The Registration Act, 1908: CRITICAL ANALYSIS OF THE 1908 Act
[4] Rahul sharma, All about the registrations Act, 1908
[5] Uzma Shaik, Effect of registration and non-registration under the registration act,1908
[6] Tek Bahadur Bhujil v Debi Singh Bhujil, AIR 1966 SC 292
[7] Narinder Singh Rao v Avm Mahinder Singh Rao, 6918-6919 OF 2011
[8] Suraj Lamp & Industries Pvt Ltd vs State of Haryana & Anr, 2009(7) SCC 363
[9] Naginbhai P Desai vs Taraben A Sheth, AIR 2003 BOM 192
[10] Hansia v. Bakhtawarmal, AIR 1958 RAJ 102
Chaya Singhal is a third-year student of
LLB (Hons), studying in Narsee Monjee Institute of Management Studies, Bangalore. She has already completed her BBA.