PROPERTY REGISTRATION 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 modifications. As per the Registration
Act, the following documents must be registered mandatorily/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.
|
Wednesday, July 17, 2013
THE IMPORTANCE OF PROPERTY REGISTRATION IN INDIA
Subscribe to:
Post Comments (Atom)
BBMP-Planning to regularise(convert) B Katha to A Katha
The BBMP has sent a proposal to the State Government of Karnataka to regularise (convert) B katha properties (vacant properties-without an...
-
No. Name of Town & Village 001. Bangalore City 002. Deevatige Ramanahalli ...
No comments:
Post a Comment