Wednesday 24 July 2013

Need And Importance of Property Registration.

The system of registration of documents was in vogue in British India first in Bengal in 1793, thereafter in Bombay and in Madras in 1802. These regulations were applicable both in Presidency Towns as well as Moffusil. 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;

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 รข‚¹100 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.
Source: lawyersclubindia.com


Tuesday 9 July 2013

Writing a Will

Will

Introduction

Will is a legal declaration of the intention of a testator through testamentary instrument with respect to his property, which he desires to be carried into effect after his death. It includes codicil and every document in writing making a voluntary posthumous disposition of property. A Will is ambulatory which may be amended or revoked during the lifetime of the testator of the Will.

The Andhra Pradesh High Court held that contents of the Will must indicate that it is intended to come into effect after death of testator and that it is revocable at any time prior to his death and a document cannot be treated as a Will by a mere reading of the heading of it; [Mandakini Naik v G.K. Naik, 2004 (3) ALT 829 (AP HC)].

A legacy through the Will lapses where the legatee dies before the testator. For instance, A makes a bequest of certain property in favour of B. However, B dies before A. The bequest, then, cannot naturally take effect and the legacy is said to have lapsed.

A legatee is liable to the creditors. He is liable to refund the legacy that he has received, irrespective of whether the assets of the testator’s estate are sufficient or not at the time of death of the testator to pay both debts and the legacies, as well as irrespective of whether the payment of legacy by the executor is voluntary or not.

A great weight is given to the wordings of a Will. A full effect must be given which is main part of operative portion of a Will in the light of declared wish of the testator as well as other provision of the Will. The court in any way has to interpret the words in their both ordinary and grammatical sense and simultaneously to give weight if there is absurdity or inconsistency. Hence, the whole of words should be taken together without any surmise in the light of the intention of testator. Where the maker includes additional words or phrases then it shall mean additional meaning. In order to ascertain the very material purpose of the Will, the court has to go through each and every word used by the testator in a Will.

Necessity

Most of the people would like to dispose of their property according to their own wishes through a Will. A Will after death of person, reduces the confusion of sharing property amongst the family members and relatives.

In case a person dies without making a Will, he is said to have died intestate. His property shall be inherited to his legal heirs in accordance with the personal law applicable to him i.e. The Hindu Succession Act, 1956, The Indian Succession Act, 1925, un-codified law of Muslims,  Parsis etc.

Types of Wills:

1. Privileged and unprivileged Wills: Wills executed according to section 63 of the Indian Succession Act, 1925 are called unprivileged Wills and Wills executed according to section 66 of the Indian Succession Act, 1925 by a soldier or airman or mariner employed in an expedition or engaged in actual warfare are called privileged Wills.

2. Conditional or contingent Wills: A will may be expressed to take effect only in the event of the happening of some contingency or condition, and if the contingency does not happen or the condition fails, the Will is not legally enforceable. A conditional will is void if the condition imposed is unlawful.

3. Joint Wills: A joint Will is a testamentary instrument whereby two or more persons agree to make a conjoint Will. Where a Will is joint, and is intended to take effect after the death of both, it will not be enforceable during the lifetime of either. Joint Wills are revocable at anytime by either of the testators during their joint lives, or after death of one, by the survivor.

A Will executed by two or more testators as a single document duly executed by each testator disposing of his separate properties or his joint properties is not a single Will. It operates on the death of each and is in effect for two or more Wills, on the death of each testator, the legatee would become entitled to the properties of the testator who dies.

4. Mutual Wills: A Will is mutual when two testators confer upon each other reciprocal benefits by either of them constituting the other his legatee. But when the legatees are distinct from the testators, there can be no position for Mutual Wills.

5. Duplicate Wills: A testator, for the sake of safety, may make a Will in duplicate, one to be kept by him and the other to be deposited in the safe custody with a bank or executor or trustee. If the testator mutilates or destroys the one which is in his custody it is revocation of both.

6. Concurrent Wills: Generally, a man should leave only one Will at the time of his death. However, for the sake of convenience a testator may dispose of some properties in one country by one Will and the other properties in another country by a separate Will.

7. Sham Wills: If a document is deliberately executed with all due formalities purporting to be a Will, it will still be nullity if it can be shown that the testator did not intend it to have any testamentary operation, but was to have only some collateral object. One thing must be borne in mind that the intention to make the Will is essential for the validity of the Will.

8. Holograph Wills: Such Wills are written entirely in the handwriting of the testator.

What can be bequeathed in a Will

All properties, movable or immovable of which the testator is the owner and which are transferable can be disposed of by a Will. Property which is not legally transferable cannot be bequeathed. If a person has only a life-interest in a property, he cannot make a Will in respect of it. A Hindu governed by Mitakshara law can bequeath his interest in the joint family property to any person he desires by means of a Will. But a female Hindu, in all cases, is entitled to dispose of her property without any restriction. In case of leasehold property, so long as lease does not expire, the bequest is effective. If the lease expires during the lifetime of a testator, no bequest is made.

The testator has no right to bequeath all the assets to an institution or a trust leaving his family and dependants in poverty and deprivation. The member’s of the testator’s family are entitled to claim maintenance from the estate of the testator.

Who can make a Will

According to section 5 of the Indian Succession Act, 1925 every person of sound mind and not being a minor may dispose of his property by Will.
  
Proof and effect of Will

Probate is a certificate issued by court on the application of the executor appointed by a Will to the effect that the Will is valid. It is also the official evidence of the executor’s right to administer the estate of a deceased person.

Executor is a person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided.

Letters of administration is granted when a person who had executed a legally valid Will dies without having named an executor and on application by one of the beneficiaries named in the Will. The procedure for grant of Letters of administration is more or less similar to that for the grant of probate.

To establish a right of an estate under the Will, a probate or Letters of administration granted by a competent court needs to be attached.

Execution of wills

Section 63 of the Indian Succession Act, 1925 provides that every testator other than a soldier or an airman or a mariner employed in an expedition or engaged in actual warfare must execute his Will according to the following rules:

He must sign or must affix his mark to the Will, or it must be signed by some other person in his presence and by his direction; and the signature or the mark of the testator, or the signature of the person signing for him, must be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. It is further provided that the Will must be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of such witnesses must sign the Will in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary.

Applicability of Indian Evidence Act, 1872

The provisions of the Indian Evidence Act, 1872, apply to Wills as to other documents and the court may draw the presumption under it in deciding whether the Will has been properly attested or not.

The Executor

The executor is the most important person in the Will. Executor is defined in the Indian Succession Act, 1925, as a person to whom the execution of the last Will of a deceased person, is by the testator’s appointment confided. An executor is charged with the duty and conferred with the power to carry out the directions contained in the Will. He has to collect and realize the estate of the deceased, pay his debts and distribute the legacies.

The executor shall file the petition for obtaining probate of the Will. The court shall grant probate only to an executor who has been named in the Will.

The executor should not be minor. The executor should be younger than testator in age so that there is greater possibility of his outliving or surviving the testator.

Administrator

In case the deceased has not appointed an executor then the court shall appoint one. Also in case the executor is incapable of or refuses to act or has predeceased the testator or the executor dies after having proved the Will but before administering all the estates of the deceased, the court shall appoint an administrator at the instance of interested person or persons.

Registration of Will

Registration of a Will is purely an optional matter. It is not compulsory at all. No inference can be drawn by the Court or any authority about the genuineness of a Will on the ground of its non-registration. Nor a Will can be accepted as genuine by courts even though it has been registered.
Source:lawyersclubindia.com