PART A
Amendment Of The Registration Act To The Effect That An Arbitral Award
Is No Longer Exempted From Registration
Section
10 of The Transfer of Property (Amendment) Supplementary Act, 1929 amends
section 17(2)(vi) of The Registration Act, 1908 with the result that an arbitral
award which embodies a transaction under Section 17(1) (b) or (c) of
The Registration Act, 1908 is no longer exempt from registration.
Section 17(1)(b) of
The Registration Act, 1908 refers to other non-testamentary instruments
which purport or operate to create, declare, assign, limit or extinguish,
whether in the present or in future, any right, title or interest, whether
vested or contingent, of the value of one hundred rupees and upwards, to or in
immovable property. Section 17(2)(vi) of The Registration Act, 1908
as amended provides that nothing in clauses (b) and (c) of Sub-section (1)
applies to any decree or order of a Court except a decree or order expressed to
be made on a compromise and comprising immovable property other than that which
Is the subject-matter of the suit or proceeding. The amendment was made by
Section 10 of the Transfer of Property (Amendment) Supplementary Act,
1929. The clause as it stood before the amendment provided that nothing in
clauses (b) and (c) of Sub-section (1) applied to any decree or order of a
Court and any award.
The
effect of the amendment is that an award which embodies a transaction under
Section 17(1) (b) or (c) is no longer exempt from
registration. Such an award is invalid if not registered.
Since
the amendment of the Registration Act in 1929, an arbitrator's award is not
excluded from the operation of Section 17(1) (b). The only question is
whether the award now under consideration does itself create, declare, assign,
limit or extinguish any right, title or interest in immoveable property, or
whether it merely creates a right to obtain another document which will, when
executed, create, declare, assign, limit or extinguish any such right, title or
interest. If the latter is the case, then Sub-clause (v) of Clause (2) of
Section 17 of The Registration Act, 1908 will exempt the award from
the necessity of registration.
Section
49 of The Registration Act, 1908 provides that no document required by
section 17 of the same act to be registered shall--
(a)
affect any immovable property comprised therein, or
(b)
confer any power to adopt, or
(c)
be received as evidence of any transaction affecting such property or
conferring such power, unless it has been registered.
PART B
Under
The Provision Of The Transfer Of Property Act, 1882 & The Registration
Act,1908 , In Which Manner Other Than Registration Can A Transfer Of Property
Be Lawfully Executed
There
Are Two Ways In Which A Property May be Transferred:-
A. By
a written instrument, registered or unregistered
B. By
an oral agreement, with or without delivery of possession
Section
9 of The Transfer of Property Act, 1882 provides that a transfer of
property may be made without writing in every case in which writing is not
expressly required by law. Writing is necessary in the following cases:
a) Sale
of immovable property of the value of Rs.100 or more (Section 54)
b) Sale
or reversion of other intangible thing (ibid)
c) Simple
mortgage irrespective of the amount secured (Section 59)
d) All
other mortgages securing Rs.100 or more (ibid)
e) Leases
of immovable property from year to year or for a term exceeding one year or
reserving a yearly rent (Section 107)
f) Exchange
(subject to the same rules as sale) (Section. 108)
g) Gift
of immovable property (Section 123)
h) Transfer
of actionable claim (Section 130)
In
all cases other than the aforesaid, transfer of property may be made by an oral
agreement. An oral agreement is generally accompanied by delivery of
possession. But, by virtue of section 107 of The Transfer Of Property Act,
1882, “……….the State Government may, from time to time, by notification in
the Official Gazette, direct that leases of immovable property, other than
leases from year to year, or for any term exceeding one year, or reserving a
yearly rent, or any class of such leases, may be made by unregistered
instrument or by oral agreement without delivery of possession.”
In
the cases where transfer can be affected only by a written instrument, Section
17 of the The Registration Act, 1908 provides a list of instruments which must
be registered.
Section 17: Documents of which registration is compulsory
(1)
The following documents shall be registered, if the properties to which they
relate is situate in a district in which, and if they have been executed on or
after the date on which, Act No. XVI of 1864, or the Indian Registration Act,
1866, or the Indian Registration Act, 1871, or the Indian Registration Act,
1877 or this Act came or comes into force, namely:-
(a)
Instruments of gift of immovable property;
(b)
Other non-testamentary instruments 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 the value of one hundred rupees,
and upwards, to or in immovable property;
(c)
non-testamentary instruments which acknowledge the receipt or payment of any
consideration on account of the creation, declaration, assignment, limitation
or extinction of any such right, title or interest; and
(d)
leases of immovable property from year to year, or for any term exceeding one
year, or reserving a yearly rent;
(e)
non-testamentary instruments transferring or assigning any decree or order of a
court or any award when such decree or order or award purports or operates to
create, declare, assign, limit or extinguish, whether in present or in future,
any right, title or interest, whether vested or contingent, of the value of one
hundred rupees and upwards, to or in immovable property
Section
18 of the The Registration Act, 1908 deals with cases of transfer of property
where registration of instruments is optional.
Section 18: Documents of which registration is optional
Any
of the following documents may be registered under this Act, namely:-
(a)
instruments (other than instruments of gift 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
less than one hundred rupees, to or in immovable property;
(b)
instruments acknowledging the receipt or payment of any consideration on
account of the creation, declaration, assignment, limitation or extinction of
any such right, title or interest;
(c)
leases of immovable property for any term not exceeding one year, and leases
exempted under section 17;
(cc)
instruments transferring or assigning any decree or order of a court or any
award when such decree or order or award purports or operates 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 less than
one hundred rupees, to or in immovable property
(d)
instruments (other than wills) which purport or operate to create, declare,
assign, limit or extinguish any right, title or interest to or in movable
property;
(e)
wills; and
(f)
all other documents not required by section 17 to be registered.
Source: lawyersclubindia