Lectures of Evidence

Lectures of Registration

MAINS QUESTIONS

  1. What is the significance of Registration?

 

INDIAN REGISTRATION ACT, 1908

INTRODUCTION

The real purpose of registration is to secure that every person dealing with property, where such dealings require registration, may rely with confidence the statements contained in registration as a full and complete account of all transactions by which his title may be affected unless indeed he has actual notice of some unregistered transaction which may be valid apart from registration. In England, such notice would merely prevent the registered document having priority over that which was unregister. The law in India goes further and in some cases the unregistered documentis inoperative and inadmissible in evidence of thetransaction (Section 49; Section 50 of the Registration Act secures that registered document shall take effect against every unregistered document relating to the same property). In either case, the object of the registration is :’to protect against prior transactions or frauds’.

What is the objective of Indian Registration Act ?

It is important to note that the registration cannot confer validity upon an instrument which is ultra vires or illegal or fraudulent. The law of registration is intended to prevent and not to aid fraud.

Section 17: It provides for compulsory registration ofcertain documents (discussed in detail laterin this

chapter).

Section 18 :It provides for optional registration of certaindocuments (discussed later in this chapter).

 

Effects of Registration

Section 49 :  Effect of non-registration of documents required to be registered.

 

Important Definitions

Document/Instrument: An instrument within the meaningof this Act maybe constituted by two or more letters. Thus,the instrument or document (of registration) must be in writing.

Immoveable Property: See Section 2 (6).

Non-testamentary Document: A document which is plainlyintended to be operative immediately is a non-testamentary.A question whether an instrument is testamentaryornon-testamentary is a fact depending on the construction ofparticular instrument and the fact that it is described as aWill doesn’t make any difference.

A non-testamentary document which varies that rights made by an earlier instrument has as much the effect of creating some new rights or extinguishing oldones as a fresh document.

“Purport” or “Operate”- The word ‘purport’ means ‘intendedto transfer’ while ‘operate’ means ‘actual transfer’. Thesewords refer to the immediate intention of the document andnot to ultimate consequences or its collateral effects.

“Create” Every non-testamentary document which means to or has the effect of originating some right, title or interest in immoveable property will be governed by the word ‘create’.

“Declare”- It implies a declaration of will (and not a recital or statement of fact)… to cause a change in legal relationship.

“Limit”- It connotes restriction of some right or interest in immoveable property.

“Extinguish”- It is a counterpart of the word ‘create’. In a document in question a right is created in the parties equally and it is extinguish equally. In other words, when a right is created in one party, a right is extinguished in the other party.

“Assign”- It means transfer or entrustment of one rights in immoveable property to other party.

Right/ Title/ Interest- It exists in respect to the immoveable property. And it may be vested (present by birth) or contingent interest (interest accruing on the happening of come condition).

 

INDIAN REGISTRATION ACT, 1908

PRE QUESTIONS

 

  1. The object of the Registration Act is to establish a method whereby the………….. to a particular tract or parcel of land will always be ascertainable by reference to the register maintained by the Sub-Registrar’s office, which should be of conclusive veracity.

(a) Possession

(b) Title

(c) Consideration

(d) None of the above

 

  1. The Registration Act came in to force on

(a) 1 January 1882

(b) 1 January 1900

(c) 1 January 1909

(d) 1 January 1929

 

  1. In which of the following cases, the Supreme Court declared the registration of conveyance of immovable property mandatory?

(a) Suraj Lamp Industries v State of Haryana

(b) Ashok Kumar v Govindammal

(c) Phool Patti v Ram Singh

(d) None of the above

 

  1. The Registration Act, 1908, was enacted with the intention of providing ……. .. in regard to transactions relating to immovable property.

(a) Orderliness

(b) Discipline

(c) Public notice

(d) All of the above

 

  1. The Registration Act, 1908, was enacted with the intention of providing protection from ……………….. .. of documents of transfer.

(a) Fraud

(b) Forgery

(c) Both (a) and (b)

(d) None of the above

 

  1. The Registration Act, 1908 achieved its object by

(a) Requiring compulsory registration of certain types of documents

(b) Providing for consequences of non registration

(c) Both (a) and (b)

(d) None of the above

 

  1. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. The statement is

(a) True

(b) False

(c) Partly correct

(d) None of the above

 

  1. In which of the following cases, the Supreme Court held that ‘Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them’?

(a) Suraj Lamp Industries v State of Haryana

(b) Ashok Kumar v Govindammal

(c) Phool Patti v Ram Singh

(d) None of the above

 

  1. Which of the following are the advantages of registration?

(a) Registration of documents makes the process of verification and certification of title easier and simpler

(b) Registration of documents reduces disputes and litigations to a large extent

(c) Registration of documents ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers as a full and complete account of all transactions by which the title to the property may be affected and secure extracts / copies duly certified

(d) All of the above

 

  1. The word ‘addition’ is defined under the provisions of ………….. .. of Registration Act, 1908.

(a) Section 2(1)

(b) Section 2(2)

(c) Section 2(3)

(d) Section 2(4)

  1. What are the effect of registration and non registration?

 

SECTION 17

( What are those Documents of which Registration is compulsory?)

Sec. 17 (1) (a): Gifts

An instrument of gift of immoveable property requires registration, whatever be the value of property (Section 123, TPA also requires so).

If donor dies before the registration, the document may be presented for registration after his death; if registered, it will ’ve same effect as registered in his life time. On registration, the deed of gift operates as from the date of execution. (Venkati Rama v Pillai Rama (19126) 40 Mad. 204).

Once a deed of gift is executed (i.e. instrument handed by donor to done), the Registration Act allows it to be registered even though donor may not agree to its registration. In such case the donor can’t revoke gift before registration.

Note: A deed revoking the gift requires registration, if value of gift is more than Rs.100.

A gift of a debt secured by a mortgage of immoveable property requires  registration.

A document which is not actually a gift but an expression of an intention to give away the property can be used as an evidence towards “PasupuKumkuma”( Pasupu Kukuma’ as defined in P. Ramanatha Iyer’s Law Lexicon means a gift, a settlement or assignment of land to a daughter.) Inevitably therefore, such a gift of immovable property, the consideration whereof would be love and affection could come within the meaning of Section 123 thereof. and it do not require registration.

What is the significance of Sec 17(1)(b)?

Sec. 17 (1) (b): Transfer, Declarations and Releases

Mortgage:– A mortgage (for Rs.100 or upwards) (other than a mortgage by deposit of title deeds) requires registration.

Where the transaction constituted a mortgage, the agreement to recovery (the property on certain terms) requires registration (e.g. when A sells property to B by a registered deed and B agrees on the same day by an unregistered deed to retransfer property to A, the latter deeds require registration).

Charges:– Documents creating a charge on immoveable property require registration because Sec. 17 (1) (b) applies to rights, not only in, but to immoveable property.

Partition:Partition Vs Family Arrangement or Compromise

While a partition-deed requires registration, a family arrangement not.

 True test to determine whether an instrument is a partition deed or family arrangement is to see whether the instrument speaks for the present (in praesenti) and not a recital of some past agreement, and whether by itself it creates the title claimed [or effects the division) or itself embody the expression of will necessary to effect the change in legal relations [Roshan Singh v Zile Singh; Ghulam Ahmad v Ghulam Qadir].

True principle is that if the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of items to others, the formalities prescribed by law has to be complied with, since the transferees derive their respective title through transferor. If on the other hand the parties set up competing titles and differences resolved by an adjustment of the rights of parties, there is no question of one deriving title from the other as no interest in property is created/declared by document for the first time (the compromise or settlement or arrangement was on the footing that parties had antecedent title to properties and the settlement merely acknowledged and defined title of each of the parties) (SahuMadho Das v Mukand Ram, AIR 1955 SC 481;Roshan Singhv Zile Singh).

A mere agreement to divide doesn’t require registration. But if the writing itself effects a division, it must be registered (RajangamAyyar v R. Ayyar, AIR 1922 PC 226; NaniBai v Gita Bai, AIR 1958 SC 706). Further, it doesn’t matter that a partition-deed is called a compromise-deed, if the latter changes the legal relations between the parties.

Illustrations

  • A and B in 1870 divide certain joint properties between themselves. In 1877, B passes a writing to A : “You are building new houses on property belonging to your share. In the same I have no interest.”

Here, no registration required as there is no declaration of right in property, but a mere statement of fact admitting a former partition between the parties.

  • A document recites a division of lands and ends with the words, “both of us are to act as stated above”. It is a partition instrument/and require registration, the concluding words do not make document a mere record of a past transaction.
  • An instrument of re-union of partition, if reduced to writing, requires registration.
  • Three Hindu brothers forming a joint family own several immoveable properties. In 1867, a partition-deed is executed… whereby after reciting that some years previously to its date a division of properties exceptcertain houses had been effected, the parties divide the houses among themselves. The deed requires registration as to the houses but not as to the properties already divided among the parties.

Roshan Singh v Zile Singh (AIR 1988 SC 881)- In this casethe question was whether the document was an instrumentof partition or was merely a memorandum of familyarrangement arrived at by the parties with a view toequalisation of their shares. The document reads: “Todayafter discussion it had been mutually agreed and decidedthat residential house and the area towards its west come tothe share of ChaudharyPooran Singh. House baithak hascome to the share of ChaudharySoonda. The field area willbe half-half of each of co-sharers”.

Held that it was only a memorandum recording thedecision arrived at between the parties as to the manner inwhich partition was to be effected. The opening words of thedocument, “Today after discussion it had been mutually agreed and decided that . . . (what follows is a list of properties allotted to the parties) makes it clear that the document contains the recital of past events and doesn’t itself embody the expression of will necessary to effect the change in the legal relation contemplated. The true and intrinsic character of the memorandum (document) was to record the settlement of family arrangement.

The court observed that Sec. 17 [1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immoveable property. A mere recital of what has already taken place can’t be held to declare any right. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an accidentalrecital of a previously completed transaction.

Ghulam Ahmad v Ghulam Qadir (AIR 1968 J&K 35)-In this case, the question was whether the document is a partition deed or a family arrangement. The document reads: “With respect to the dispute of immoveable property the parties have agreed that agricultural land which stands in the name of Hazi Sahib deceased is divisible in equal shares between the parties and should be entered as such, because the said land has been purchased when the parties lived joint. The property to be entered in equal shares in the name of parties in the revenue records.”

The court observed that the document says that some immoveable property stand in the name of Hazi Sahib, who may perhaps be the ancestor of parties. There is a stipulation that land is divisible between parties in equal shares. There is an admission that it has been purchased when the family was joint. There is a further stipulation that it will be gotentered in equal shares in the name of parties in revenue records.

The court held that this document satisfies most of there quirements of Sec. 17(1)(b]. It is a document which create srights in the property vis-a-vis the parties. Further, it declares their rights, it limits the rights of one party, at the same time extinguishes them as well as creates the rights in favour of either one or both the parties.

It was argued that this document is a memorandum(recites the decision arrived at by the parties on 6th Kartik2007 on which date another document had been executed) and it is a compromise and as such not registrable. The courtrejecting the argument, observed that a non-testamentary document which varies the right/interest made by an earlier instrument has as much the effect of creating some new right or extinguishing old one as an absolutely fresh document could do. Further, it doesn’t matter that a partition-deed is called a compromise-deed, because if the latter changes the legal relations between the parties, it is within the mischief of Sec. 17 (1)(b).

 

 

Partnership:– The interest of a partner in partnership assets, moveable and immoveable property. The share of a partner in partnership business in moveable property and the transfer of the same doesn’t require registration.

A document recording the previous fact of the dissolution of partnership and relinquishment of the interest of a partner in partnership assets by way of adjustment doesn’t require registration.

Release:– A release which may be in the form of a deed or a letter or a receipt, if of value of Rs.100 or upwards, requires registration.

An agreement by a member of joint Hindu family not to exercise his right of partition doesn’t require registration.

A surrender deed executed by a tenant in favour of a landlord in respect of tenancy, require registration.

A recognition of title or share do not create, limit, etc.any right or interest, so no registration is required.

Miscellaneous transactions – A deed purporting to relinquish or assign the chance of a Hindu reversioner or a Mohammedan heir, succeeding to an estate doesn’t require registration. The heir or reversioner has only a spessuccessionis or chance of succession and has no right/interest in property, vested or contingent.

The right of a Hindu widow to maintenance doesn’t require registration, as it doesn’t constitute a charge upon the immoveable property of joint family. But a right of maintenance if charged upon immoveable property is an interest in property and therefore a deed conferring on a Hindu wife a right of maintenance out of rents of a house require to be registered.

Power of Attorney– A general power of attorney is not compulsorily registrable. A power of attorney which authorizes donee to recover the rents of property belonging to donor for donee’s own benefit is an assignment and require registration.

Sec. 17(1) (c): Receipt of Consideration

This clause requires an acknowledgment in the form of a receipt to be registered, but not an acknowledgment of the fact that a transaction has taken place as distinguished from instrument of transaction.

A simple receipt — ‘Received from B the sum of Rs.200’ will not require registration, but the following receipt require registration – ‘Received from B the sum of Rs.200 being the price of my land which I have sold to him and in which I have no further interest.’

A receipt by a mortgagee to mortgagor… that mortgaged money paid and the mortgage has been redeemed require registration.

Sec. 17 (1)(d): Lease

A lease for one year or more than one year would require registration. A lease for 11 months will not require registration. A lease reserving a yearly rent require registration.

Sec. 17 (2): No registration required

Clause (i)– “Composition-Deed“- It is any instrument executed by a debtor whereby he conveys his property for the benefit of his creditors, or whereby the payment of acomposition or dividend on their debts is secured to hiscreditors.

It is not necessary that the creditors should’ve agreed to accept less than the amount due to them. An agreement which expressly contemplate payment in full to the creditorsis not a composition-deed.

Clause (v)- “Documents merely creating a right to obtain another document – Such documents need not be registered.

Recital of payment of earnest money – An “agreement for sale” in the usual form acknowledging receipt of earne stand providing for the execution of a regular sale-deed on payment of the balance of purchase-money, do not require registration.

An agreement by a debtor to execute a mortgage of his immoveable property to his creditors doesn’t itself create an interest in immoveable property, but merely creates a rightto obtain a deed of mortgage from the debtor. Similarly, the agreement to lease.

A document containing a promise to transfer a portion of property under litigation, if decreed in favour of executant, do not require registration.

Clause (vi) – A “consent or compromise decree” doesn’trequire registration if it doesn’t comprise immoveable property other than that which is the subject-matter of suit. Thus, a consent decree which operates as a release of immoveable property in suit doesn’t require registration.

The documents which form part of ‘judicial proceedings’ do not require registration.

Clause (xi)–“Receipts for mortgage claim”– Anendorsement/receipt for the payment of money due under a mortgage didn’t carry with it any limitation or extinction of mortgagee’s interest in property. Such a receipt only modified the account between the mortgagor and mortgagee and it didn‘t therefore require registration. However, where such receipt purport on the face of it to limit or extinguishany such interest, then registration required.

Examples – (a) A receipt – “Paid on the 21st December 1981, Rs.3000”. (No registration required).

(b) A receipt –“…… Nothing remains due under mortgage”. [No registration required).

(c) A receipt –“I have received Rs.500 in full satisfaction of mortgage-debt and I will return

the title-deeds to you”.(Registration required).

Sec.17 (3): Authority to Adopt [Registration required)

Section 17 (3) refer to authority given by a husband to adopt. Where widow adopts with the consent of sapindas,clause (3) do not apply.

A Will containing an authority to adopt doesn’t require registration.

A deed of adoption, as distinguished from an authority to adopt, doesn’t require registration. This is because it is not the deed, but the adoption itself, that creates the status of adopted son and confers an interest in property of adoptive father. But, if the adoption-deed declares or reserves an interest for a third person in the property exceeding Rs.100,then registration required.

 

SECTION 18

(Optional Registration)

An optional registration means that an instrument may be registered, if so desired by the executor. If not registered, it doesn‘t become invalid. And a registered document can’t take effect against an optionally registrable document on the ground of its non-registration.

Lease – It is compulsory registrable under the Transfer of Property Act, even though exempted under proviso to sec. 17(1). Section 18 (c) can, therefore, only refer to agricultural leases which are not governed by T.P.A.

Will – As it is optionally registrable, no adverse inference can be drawn from the fact of its non-registration, but if it is registered by testator himself, it will raise a strong presumption of its genuineness.

Adoption-Deed– A deed of adoption reciting the factum of adoption and stating that the adoptee had acquired certain rights in immoveable property may be registered, thus not compulsorily registrable.

 

SECTION 49

(Effect of Non-Registration)

Section 17 provides for the compulsory registration of certain documents. That section is made effective by the section 49. No document required by section 17 or by any provision of the T.P.A. to be registered shall –

  1. affect any immoveable property comprised therein, or
  2. confer any power to adopt, or
  3. be received as evidence of any transaction affecting such property or conferring such power.

However, proviso to Section 49 provides that an unregistered document may be received as evidence of any collateral transaction not required to be effected by registered document (even if that transaction does indirectly affect the immoveable property).

A Collateral purpose refers to any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immoveable property. An unregistered document may be required in evidence to prove the factum of transaction, but not of its contents (e.g. to prove that done of a gift held in her own right, and not to prove gift, [VardaPillai v Jeevarathnammual]. Thus, if a mortgage-deed is not registered, the mortgagor cannot use it for proving his right of redemption for that is not a   collateral purpose [Hansia vBakhtawarmal).

An antecedent title, the nature and character of possession, an admission of an acknowledgement, relationship of the parties and their state of mind [original intention]are some of the “collateral purposes”.

An unregistered document can be looked into for the limited purpose of establishing a severance in status (of joint family members). The document could always be looked in to for the collateral purpose of proving the nature and character of possession of each item of property allotted to the members. The document can be used for the collateral purpose of showing that the subsequent division of properties allotted was in pursuance of the original intention to divide (i.e. to prove the fact of partition, and not to prove the partition itself) (Roshan Singh v Zile Singh, AIR 1988 SC 881].

 

INDIAN REGISTRATION ACT, 1908

PRE. QUESTIONS

 

  1. Does an instrument of partition of immovable property require registration?

(a) Yes

(b) Ne

(c) Yes, If the value of the interest so declared is Rs

100 or upwards

(d) None of the above

 

  1. Which of the following documents are exempted from registration?

(i) Any composition deed

(ii) Any instrument relating to shares in a joint stock

Company,   notwithstanding that the assets of such

Company consist in whole or in part of immovable

Property

(iii) Any certificate of sale granted to the purchaser of any

property sold by public auction by a Civil or Revenue Officer

(iv) Any instrument of partition made by a Revenue-Officer

(a) (i) only

(b) (i) and (ii)

(c) (i); (ii) and (iii)

(d) (i); (ii); (iii) and (iv)

 

  1. Grant of immovable property by government need not be registered. The statement is

(a) True

(b) False

(c) Partly correct

(d) None of the above

 

  1. Does authorities to adopt a son, not conferred by a will, required be registered?

(a) Yes

(b) No

(c) Depends

(d) None of the above

 

 

 

  1. Which of the following sections of the Registration Act, 1980, describes the category of documents of which registration is optional?

(a) Section 17

(b) Section 18

(c) Section l9

(d) Section 20

 

  1. Which of the following categories of documents are those in which registration is optional?

(i) Instruments (other than instruments of girl and wills)

which purport or operate to create, declare, assign, limit

or extinguish, whether in present or in future, any right, title

or interest, whether vested or contingent, of a value more

then one hundred rupees, to or in immovable property

(ii) Instruments acknowledging the receipt or payment of

any consideration on account of the creation, declara-

tion,   assignment, limitation or extinction of any such right,

title or interest

(iii) Leases of immovable property for any term not exceeding

one year

(iv) Wills

(a) (i) only

(b) (i) and (ii)

(c) (ii) (iii) and (iv)

(d) (i) (ii) (iii) and (iv)

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