REGISTRATION OF PROPERTIES AND TRANSFER OF PROPERTY IN INDIA
The system of registration of documents was in vogue in British India and the same process and procedure is continued now with little changes. As per the Registration Act, the following documents must be registered mandatory/compulsorily with the jurisdictional sub-registrars in India. The Registrars were appointed for each district and required them to register the following documents:
1) Deeds of sale or gifts of lands, houses and other real property;
2) Deeds of mortgage on land, houses and other real property, as well as certificates of the discharge of such encumbrances;
3) Leases and limited assignments of land, houses and other real property, including generally, all conveyances used for the temporary transfer of real property;
4) Wasseathnamas or Wills;
5) Written authorities from husbands to their wives to adopt sons after their (husbands’) demise;
Firstly, Section 6 of the Madras Regulation was similar in terms to the corresponding provisions of the Bombay and Bengal Regulations. This was the most important provision of these Regulations. Mulla’s commentary on the Registration Act sets out in full section 6 of the Bombay Regulation. Firstly, it provided that every deed of sale or gift registered under the Regulation would invalidate any unregistered deed if the same nature whether executed prior or subsequent to the registered deed.
Secondly, it provided that every registered mortgage deed would have priority over any unregistered mortgage deed whether executed prior or subsequent to the registered mortgage.
Thirdly, it stated that the object of the two preceding rules was to prevent persons being defrauded by purchasing or receiving in gift or taking in mortgage real property which may have been before sold, given or mortgaged, and that persons would never suffer such imposition when they are appraised of the previous transfer or mortgage of the property.
It therefore provided that if the buyer, donee or mortgagee had knowledge of the previous sale, gift or mortgage, the rule of invalidation or priority mentioned in the previous two clauses would not apply.
Registration Act, XVI of 1864 was enacted except in Bombay where an important change was introduced by a Regulation of 1827. Section 13 of that Act provided that, certain documents shall not be received in evidence in any court or be acted upon by any public officer unless the document shall have been registered. It may noted that this section itself did not specifically say that these documents must compulsorily registered but the same result was secured by means of the sanction of refusing to receive in evidence such documents, if unregistered. The Registration Act, XX of 1866 provided that instruments of the four classes mentioned therein must be registered. The Registration Act, 1866 was repealed by the Act III of 1877 which was amended from time to time till it was replaced by the present Act XVI of 1908.
The Indian Registration Act, 1908 presently extends to whole of the territory of India excluding the state of Jammu and Kashmir to which State the relevant legislative power of the Parliament does not extend.
The provisions of the Act may be broadly grouped under three heads. The first head relates to the documents which are registerable under the Act. The second relates to the procedure to be followed for getting a document registered under the provisions of the Act. The third deals with the administrative machinery provided under the Act and the respective duties of the different classes of officers.
The documents registerable under the Act fall under three categories
In the first category, documents relating to transactions which according to the substantive law, can be effected only by registered documents. It is hardly necessary to point out that the Registration Act does not lay down that any transaction in order to be valid, must be effected by a registered instrument.
What it provides is that when there is a written instrument evidencing a transaction, it must, in certain cases, be registered, while in other cases, it may, at the option of the parties, be registered, in the manner laid down in the Act. The obligation to get a transaction effected only by a registered instrument is laid down by the substantive law. Thus, as per the provisions of the Transfer of Property Act, 1882 sales, mortgages, exchanges, gifts and leases requires to be effected only by registered instruments subject to an exception in case of some transactions relating to immovable property of less than ‚100 in value. Similarly, as per section 5 of the Indian Trusts Act, 1882 a trust in relation to immovable property is valid only if it is declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered or by the will of the author of the trust or of the trustee.
The substantive law, however, does not provide the machinery for effecting registration. It is the Registration Act which provides the machinery for effecting registration and the parties to the registerable documents must necessarily have recourse to the provisions of this Act.
Under the substantive law, certain transactions can be effected without a writing example partitions, releases, settlements etc. But, if the transaction is evidenced by a writing and relates to immovable property, the Registration Act steps in and clauses (b) and (c) of Section 17(1) require registration of such documents, subject to the exception specified in sub-section 2 of that section. If an authority to adopt is conferred in writing, other than a Will, it is also required to be registered [section 17(3)]. These documents fall under the second category.
It is open to the parties, if they so choose, to get certain documents registered at their option and this is permitted by section 18.
Wills need not be registered but it is open to the parties to get them registered under the third category.
The Act further provides for the consequences of non-registration of documents [section 49] and the effects of registration [section 48 and 50]. To enable a person to get a document registered under the Act, certain conditions have to be fulfilled and certain formalities to be observed. The document must contain a description of the property and has to be presented for registration in the proper registration office within the time limited by the Act. The details regulating presentation, such as time for presentation, place of presentation, persons entitled to present a document and the mode of enquiry before the Sub-registrar are all dealt with in various parts of the Act. If the Registrar also refuses registration, a suit under section 77 can be filed within 30 days of his Oder for a direction that the document be registered. This in brief is a summary of the procedure laid down by the Act.
The Act also prescribes the machinery for the administration of the Act. The administration of the Act is the duty of each State Government. Each state is divided for the purposes of the Act into districts and sub-districts. At the apex of the administration is the Inspector General of Registration and under him a Registrar for each district and a Sub-registrar for each sub-district. Besides these, there is a provision for the appointment of Inspector of Registration Offices. These appointments are to be made by the State Governments.
From the brief analysis of the provisions of the Act it is clear that the object of the Registration Act is to preserve as authentic record of the terms of documents so that if a document be lost or destroyed or misplaced, a certified copy from the Registrar can be obtained. Registration also facilitates the proof of execution of a document as its execution is admitted by the executant, before the Sub-registrar. Yet another useful purpose that registration serves is to enable any person intending to enter into any transaction relating to immovable property to obtain complete information relating to the title to such property and for this purpose to look into the register and obtain certified copies of the documents.
Registration of sale of an immovable property creates a right in rem in favor of the buyer of the property with exclusive possession of the property till the same is transferred. In case of lease, the lessee enjoys the exclusive possession of property for a defined period.