The importance of property registration in India


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

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.

 

ATTESTATION OF A DOCUMENT OR DEED – HOW IMPORTANT IS IT?


If a deed or document is to be attested usually by two or more witnesses, it must be very clear from the wordings or the attendant circumstances that the Attestors have signed the deed or document as witnesses. 

 Not just a formality: The Attestor attesting witness must sign the deed or document concerned in the presence of the Executant.

 One of the factors which is not considered to be important in the course of execution and registration of deeds is attestation of deeds. In respect of deeds which are being registered, many parties regard this as a formality. The general approach is that any person who can sign the deed as a witness is good enough to attest the deed. However, this is an important matter and is not to be treated casually. It is desirable to have an understanding of the issues concerned.

 An Attestor is a person who has seen the deed concerned being executed. As such, a party who is executing the deed or document cannot be an Attester. A Power of Attorney holder executing the deed or document is also deemed to be a party and therefore, cannot be an Attestor in his individual capacity. In order that the attestation is proper, the Attestor attesting witness must sign the deed or document concerned in the presence of the Executant. A person who has made the deed or document, namely, the Scribe, can be a valid witness who can attest the deed or document.

 To give a clear picture, if a deed or document is to be attested usually by two or more witnesses, it must be very clear from the wordings or the attendant circumstances that the Attestors have signed the deed or document as witnesses. The witness should have put his signature for the purpose of attesting the deed or document in having seen the Executant sign the deed or must have received an acknowledgement for this purpose. Its execution should happen in the presence of the attesting witness. The purpose is to testify the signature of the Executant. As such, the Attestor must personally know the Executant whose signature he or she attests.

 Different kind

 An attestation is different from an acknowledgement. Attestation is done by a witness. An acknowledgement is done by the party concerned. You will also come across the word “Subscribe” in legal documents. Strictly speaking, the word “Subscribe” does not impute personal knowledge of the matter in consideration and is more in the nature of appending the names of signatures in a mechanical manner.

The term attested, when used in relation to a deed or document, means that the deed or document concerned isattested by two or more witnesses. Each of the witnesses should have seen the Executant sign the document. Each of them should have signed as a witness in the presence of the Executant. However, it is not necessary that the witnesses should sign in the presence of each other. No specific or particular form is prescribed for attestation.  At times, a person may sign his or her name in a deed or document for identifying an Executant. The purpose of this is only to confirm the identity and such an identifier does not become an Attestor for the execution of deed or document concerned.

The term “Sign” would generally mean affixing the signature or otherwise affixing the name or a mark to represent the name of a person. The “signing” should be such that it would bind the person concerned as relating to the aspect of signing. Even the insertion of a name, done in the manner required, may amount to signing, authentication or attestation as the case may be.

 Common errors

 One of the common errors in perception is that, when a person signs as a witness in a deed or document, he or she is taken to have consented to the transaction covered by the deed or document concerned. This is a wrong perception. Merely because the deed or document is attested or witnessed by a person, it does not mean that the person is aware of the contents of the said document. The position of the Attestor is very important. If execution of a deed or document is denied or is doubtful, or is to be proved otherwise, the evidence of the Attestor, in a Court of law or other Authoritywould be vital. If a deed or document under which a property is conveyed to you or under which you may obtain substantial benefits is called in question, and you do not know who the Attestor or witness is, imagine the circumstances that may arise. Documents for which valid attestation by two or more witnesses, is mandatory include Will and Testamentary dispositions, mortgages and Gifts of immovable property. While choosing witnesses for Wills particularly, make sure that in normal circumstances the witnesses would outlive the Testator or Testatrix or the person who makes the Will. Also such a person should be willing to prove the execution of the Will by signing necessary affidavits and if so appear in the Court and give evidence, when the Will takes effect and orders from the court are necessitated.

 Where attestation is mandatory and the execution has been denied, in order to prove that a document has been duly executed, at least one of the witnesses should be called to prove that the document has been duly executed. Such a person should provide satisfactory evidence to the effect that he or she had duly attested the deed or document concerned. He or she should also prove that the deed or document has been duly executed by the Executant.

 An illiterate can be a witness to the execution of a deed or document, provided the other requirements for a valid attestation are satisfied.

 Where the document contains several pages and the Executant has signed each page, it is sufficient if the Attestor has generally seen the execution and at least one signature is attested. In respect of documents for which attestation is mandatory, if the attestation is invalid or is not made, then the transaction or bequest as the case may be intended under the deed or document would not operate. At times, an officer, registering a deed, makes an endorsement to the effect that the Executant is personally known to the Registering Officer concerned. This does not amount toattestation.

 It is to be noted that the purposes for which a person signs the document as a witness may differ. If related to execution, the signature of the witness is to secure the attestation. If relating to presentation of the document for registration, it may be limited to identifying the Executant. Hence, attestation and identification can be made by different persons.

When you are called to witness the execution of a deed or document or when you are calling a person to be a witness for the execution of a document, think of nature and purpose. In law, nothing can be labelled as a trivial or an insignificant matter. Often, it is these very factors which may loom large. An organised approach can save lot of unnecessary hassles.