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