The Act
provides for a detailed procedure for lodgement of the documents for
registration, and their registration is subject to compliance with several
provisions under various sections. The procedure
is grouped under the following heads for an easier and better understanding of
the same:
- Execution of documents
- Presentation of documents
- Time for presentation
- Place of presentation for registration
- Presentation by whom
- Admission of execution
- Time for appearance for admission
- Appearance by whom.
A document
has to be presented for registration within four months from the date of its
execution (Section 23). In case of a court decree or order, it can be presented
within four months from the day on which it is made. If the decree/order is
appealable, it must be presented for registration within four months from the
day on which it became final.
Section 25
provides an exception to this rule. It states, “wherever documents not
presented within the stipulated period of 4 months owing to unavoidable
accidents, etc., may be accepted for registration by the Registrar, upon
payment of a fine not exceeding ten times the normal registration fee provided,
the delay in presentation is not exceeding 8 months from the date of its
execution/from the date on which the decree/order has become final.”
It is
imperative from the provisions that the Registrar has no authority to register
a document presented after the expiry of prescribed period and hence, even if
he registers, it becomes void.
If the
mortgage deed is executed by 3-4 persons at different times, the document may
be presented for registration and re-registration within four months from the
date of each execution (Section 24).
Section
23-A also provides for re-registration of a document but under a different
situation. Presume a document was presented for registration by a person not
duly empowered to present it, and the Registrar, in turn, registered it. Even
then, in the eyes of the law, this registration is void. Under such
circumstances, Section 23-A provides for re-registration of such documents if
presented for registration by the claimant of the document within four months
from his first becoming
aware that the registration of the document is invalid. In the case of
documents executed out of India, the Registrar has been given certain
discretionary powers to accept such documents for registration though presented
for registration beyond four months from the date of execution subject to:
·
The
presentation of documents within four months after its arrival in India, and
·
Upon
payment of proper fee.
A will is
however, not subjected to these provisions, i.e., it can be submitted for
registration even after the lapse of the prescribed four months.
Box 5: Registration of Will
A
will may be presented [Section 40 (i)] for registration either by the
testator himself or, on his death, by an executor or otherwise under the will
to any Registrar/Sub-Registrar for registration. Similarly, upon presentation
of a will by the testator for registration, it may be registered in the same
manner as any other instruments [Section 41 (i)]. Whenever a will is
presented by other than the testator, the Registering Officer may register it
provided he is satisfied that:
· The will was executed by the testator, and
· The testator is dead and the person presenting the will is
entitled to present the same[Section 41 (ii)]
As
provided in Section 42, the testator may, either personally or by duly
authorised agent, deposit his will in a sealed envelope superscribed with
the name of the testator and that of
his agent, if any, and with the nature of the document. On receiving the
sealed envelope, the Registrar, upon his satisfaction about the person
presenting the envelope, shall transcribe in his Register Book No.5 the
superscription aforesaid, and shall note in the same book and on the said
envelope the year, month, day, and hour of such presentation and receipt, and
the names of any persons who may testify to the identity of the testator or
his agent. The Registrar shall then place and retain the sealed envelope in
his fireproof box (Section 42). If a testator desires to withdraw the
deposited envelope, he may apply to the Registrar, upon which the Registrar shall
deliver the envelope, after satisfying himself as to whether the applicant is
the actual testator or his agent (Section 44).On the death of a testator, who
has deposited a sealed envelope with a Registrar, an application can be made
to the Registrar to open the envelope and copy the contents thereof into his
Book No.3; and the Registrar shall comply with such request, provided he is
satisfied that the testator is dead (Section 45).
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2. Place of
Registration
Documents relating to immovable property should be presented
for registration in the Office of the Sub-Registrar within whose sub-district
the whole or some portion of the property mentioned in the document is situated
(Section 28).
Lending bankers often prefer to get such mortgage deeds
registered in the Registrar’s offices located in close proximity to them for
obvious advantages.
Documents other than relating to immovable property may be presented
for registration in the Office of the Sub-Registrar in whose sub-district the
document was executed, or any Sub-Registrar’s office located in the state,
where all the executants and claimants thereunder desire/intend the same to be
registered (Section 29).
In the ordinary course of business, all the documents for registration
must be presented at the office of the officer authorized to accept such
documents for registration. But in exceptional cases, upon showing a special
cause, the officer may accept the documents for registration at the residence
of any person desiring to present it for registration (Section 31).
3. Persons
Entitled to Present Documents for Registration
Section 32 of the Act states that the following persons are
entitled to present the documents for registration at the proper registration
office except in situations described under sections 31, 88, and 89:
1. The person(s)
executing or claiming under the document to be registered;
2. A representative
or assignee of such a person;
3. An agent or
representative of such a person, or an assignee through a Power of Attorney;
4. The testator
or, on his death, his executor; and
5. The donor or,
after his death, the donee.
3.1. Executant
and Claimant
Executant is a person who not only signs a document but also
undertakes an obligation thereunder. Claimant is the person who is entitled to
the benefits of the document. Presentation of documents for registration by
them is always valid. In the event of there being more than one claimant or
executant, any one of them may validly present the document for registration. A
minor, claiming under the document, can also present it for its registration.
3.2.
Representative or Assignee
Section 2 (10) defines a Representative. It is construed as
a legal personal representative excluding an agent. It includes the guardian of
a minor and the committee or other legal curator of an insane person. A husband
has been identified as a representative to present documents executed by his
wife.
3.3. Power of
Attorney Holder
An agent, to be eligible for presentation of a document or
registration, should be duly authorised by a Power of Attorney and such Power
of Attorney should have been executed and authenticated on the lines of section
33.
Box 6:
Principal and Agent Legal Implications
An
agent, to be eligible for presenting a document for registration and appear
for admission of execution before a registering officer, should be duly
authorised by a power of attorney executed and authenticated as per the norms
prescribed under Section 33. The norms are as under:
A
principal residing in India where this Act is in force may execute the power
of attorney before and get it authenticated by the Registrar or Sub-Registrar
within whose jurisdiction the principal resides.
If,
at the time of execution, the principal resides in a part of India where the
Act is not applicable, he may execute the power of attorney before and get it
authenticated by any Magistrate.If at the time of execution of such power of
attorney the principal does not reside in India, he may execute the power of
attorney before and get it authenticated by a Notary Public, any Court,
Judge, Magistrate, Indian Counsel, Vice Counsel, or the Representative of the
Central Government.
The
principal may be exempted from presenting himself physically before the
registering officer for the purpose of executing the power of attorney in
cases where the persons cannot present themselves due to bodily infirmity,
inability to attend due to factors beyond their control, imprisonment, and
legal exemption from personal presence.
With
regard to the execution of documents, their presentation for registration,
and physical presence before a registering officer by an agent, the following
points merit consideration:
· Execution of a document, its presentation for
registration, and presenting oneself before a registering officer to admit
execution are three independent acts.
· An agent may be authorised to do all or any of these acts.
· To authorise a person as agent only for execution of
document, the power of attorney need not be executed in terms of Section 33.
· An agent, by virtue of his executing a document, becomes
an executant. And in the capacity of executant he is entitled to present the
document for registration and its execution. In such cases, the provisions of
Section 33 are not attracted.
·
As execution by agent is execution by principal. So the
principal continues to have the right of presenting a document for registration
and admitting its execution even though the deed was executed by his agent.
For example, a document executed by Ram (as agent of the principal – Krishna
Mohan) can be presented for registration and admission of its execution by
Mohan. But, in such cases, the principal has to execute a power of attorney
in favour of Ram on the lines of Section 33.
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4. Admission of
Execution
It means admitting the fact of entering into an obligation
under the document besides admitting to having signed it. To establish this fact,
the executant has to appear before the registering authority and admit to
having undertaken an obligation besides signing the document.
5. Time for
Appearance for Admission
Section 34(1) of the Act states: “No document shall be
registered unless the person appears before the registering officer within the time
allowed for presentation of a document for registration.”
However, if owing to urgent necessity or unavoidable
accident, the person does not so appear, the Registrar may direct a document for
registration, provided the delay in appearing does not exceed four months and
on payment of prescribed fine. The amount of fine cannot exceed ten times the
amount of proper registration. This fee is, of course, in addition to what has
been levied under Section 25 for extending the period by four months for the
presentation of document for registration.
It
is to be noted that the maximum period for presentation of documents for
registration is eight months (four months form the date of execution of the
document originally provided for under Section 23 plus an extension of four
months granted under Section 25). The maximum period for appearance for
admission is 12 months (Sections 23, 25, and 34).
6. Appearance
by Whom
According to Section 34(1) persons executing the document or
their representatives, assignees, or agents are authorised to appear before a registering
officer, for admitting its execution.
On Appearance before the Sub-Registrar, an executant, or his
representative or agent, may either admit execution or deny it. Again, mere
admission of signing the document is not sufficient. He has also to admit to
having undertaken the obligation. In situations like where an executant says
that he has signed the mortgage deed, while the documents presented for
registration is a sale deed, or states that he signed a blank document but it
has been filled up otherwise than agreed for, there cannot be an admission of
execution, rather it is a denial. In all such situations, the registering
officer has no authority to register the document. Where execution is admitted
by some of the executants, the Registrar may register the documents as against them
(Section 35(3)).
On proper admission of execution and making requisite
enquiry, the registering officer is duty bound to register the document.
7. Grounds for
Refusal of Registration (Section 35)
Registration of a document can be refused by the Registrar:
- If any of the persons, by whom the document purports to be executed, denies the execution;
- If any such person appears to the registering officer to be a minor, or insane; and
- If any person, by whom the document purports to be executed, is dead and the representative or assignee denies its execution.
8. Effects of
Registration
A registered document shall operate from the date on which
it is executed but not from the date of registration (Section 47). Registration
only lends validity which would date back to the time when it was made to be
operative.
Example:
M/s. Motilal executed a mortgage deed in favour of Bank of
India say on 10.06.1998. This deed was registered on 20.07.1998. The mortgage
deed becomes operative with effect from 10.06.1998, i.e., its date of
execution.
Suppose, a mortgage deed was executed in favour of bank on 08.05.1998,
and it was registered on 07.07.1998. In the meanwhile, the borrower sold the
property vide a sale deed dated 25.05.1998 and the document was registered on
27.05.1998. Even in the circumstances of this nature, the mortgage deed that
was executed on 08.05.1998 stands in priority over the sale deed (though registered
subsequently).
According to Section 48, all non-testamentary documents duly
registered and relating to either movable or immovable properties, shall take
effect against any oral agreement or declaration relating to such property.
However, this has got two exceptions:
One exception is that oral agreement would take effect
against the registered document if it satisfies the following two conditions:
- The agreement or declaration has been accompanied or followed by delivery of possession; and
- The same constitutes a valid transfer under any law for the time being in force.
The second exception is with regard to equitable mortgages.
It says that “a mortgage by deposit of title deeds as defined in Section 58 of
Transfer of Property Act 1882 shall take effect against any mortgage deed
subsequently executed and registered, which relates to the same property”.
Example:
Assume, M/s. Batliwala created an equitable mortgage on
10.05.1998 by depositing the title deeds pertaining to their factory properties
to secure a working capital limit granted by Bank of India. Subsequently, on
20.07.1998, the company sold the properties to M/s. Kantawala & Sons,
executed a sale deed, and the same was registered on 25.07.1998.
As per the provisions of Section 48, the equitable mortgage
created on 10.05.1998, though not registered, stands in priority over the sale deed
registered on 25.07.1998. In effect, the buyer would be acquiring the property
along with its mortgage charges. It is in this context that it is of paramount
importance to insist on submission of original title deeds to property by a
lending banker before accepting a property as security for a loan.
9. Effects of
Non-Registration
Section 49 of the Act states that no document required by
Section 17 or by the provision of the T.P. Act, to be registered shall: affect
any immovable property comprised therein; confer any power to adopt; or be
received as evidence of any transaction affecting such property or conferring
such power, unless it has been registered. Let us now take a close look at the
effect of these provisions:
· “Shall not affect the immovable property” – It
means the documents do not bring into effect the transaction which is intended
to be brought out by executing the document. We have earlier seen that a
document affects the immovable property when it operates to create, declare,
assign, limit or extinguish a right, title or interest in the immovable
property. So, when the document is not registered (by virtue of this provision),
it cannot have the effect of creating, declaring, assigning, limiting or
extinguishing a right, title or interest in the property, and therefore, it
does not affect the property.
· “Document cannot be received as an evidence” –
It means reception of an unregistered document as evidence of the transaction
affecting the property, is prohibited. This, in turn, means that, though there is a mortgage deed
because it is not registered (by virtue of Section 49), there would be no proof
of the terms of mortgage that is admissible as evidence before the court. It
does not, however, mean that the transaction itself is void, for the
transaction exists independent of the document.
By virtue of proviso to Section 49, an unregistered document
may be received as evidence in the following situations:
- As evidence in a suit for specific performance under the Specific Relief Act
Suppose, Vinod
executed a mortgage deed in favour of a bank and the bank failed to get it registered
in the prescribed time limit. In the meanwhile, relations became sour. In such circumstances,
the bank filed a petition for a specific performance of a contract to register
the mortgage deed. In such a suit, the mortgagee may show from the unregistered
mortgage deed that an agreement to create a mortgage was actually reached.
Here, it can be admitted as evidence of the contract to create a mortgage
though it is not admissible being unregistered in proving the very mortgage
itself.
- As evidence of part performance of a contract for the purposes of Section 53 A of the T.P. Act
Section 53A of
the T.P. Act empowers a person in possession of property to resist
dispossession if he holds it under an unregistered contract or deal. In such
situations, the possessor, in defence of part performance may rely on the
unregistered sale deed, and in such circumstances, it is admissible as
evidence, though not registered, for proving the nature of possession.
- As evidence of any collateral transaction not required to be effected by registered instruments
Suppose, a
mortgage deed has been executed to secure a loan received from a bank but it
has remained unregistered. Here, though it cannot be admitted to prove the
mortgage itself, it can still be used to prove the relationship between the
mortgagor and mortgagee, lender and borrower with reference to recitals in the
deed to prove the handwriting of the person, receipt of consideration, etc.
10. Registered
vs. Unregistered Document
As per the provisions under Section 50 of the Act, a
registered document is entitled to priority over an unregistered document. However,
the following instances could be an exception:
- Where the unregistered document relating to the same property is a decree or order;
- In the case of unregistered leases, which are exempted from compulsory registration under the proviso to sub-section (1) of section 17;
- In the case of unregistered documents which are exempted from registration under Section 17(2);
- Where the registered document has no priority under the law in force when the Registration Act came into force; and
- Where the subsequent transferee under the registered document has actual notice of the previous unregistered document of which registration is optional.
Upon
compliance of the provisions under Sections 34, 35, 58, and 59 as applicable to
any documents presented for registration, the registering officer shall endorse
on the document, a certificate containing the word “Registered “, together with
the number and page of the book on which the document has been copied. Such
certificate shall be signed, sealed, and dated by the registering officer. It
shall then be admissible for the purpose of proving that the document has been
duly registered in the prescribed manner and the facts mentioned in the
documents have occurred as mentioned therein (Section 60).
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