Compulsory Document Registration: A Guide to the Requirements
The Registration Act of 1908 is a law that governs the registration of documents related to immovable property transactions. The act makes it mandatory for certain types of documents to be registered with the appropriate authorities in order to make them legally valid and enforceable. The compulsory registration strikes only at instruments and not transactions. However, the registration act, 1908 enacts that where a document is employed to effectuate any of the transactions specified in section 17 (1) of the ACT, such documents must be registered. The registered document had sanctity attached to it and strong and cogent evidence was required to rebut its genuineness. The registered document would become a public document and presumption of correctness would attach to such document. Once a document is registered then it can only be canceled by another registered document or through a declaration of the competent court of law
Meaning of registration:
Black's Law Dictionary
Registration is a system by which owner of real property may petition in court for a certificate of such title as being the owner whose name appears on the certificate.
Effect of Non-Registration:
The effect of non-registration of document is hit by section 49 of the registration act 1908 which provided that gift instruments regarding immovable property or other non-testamentary instruments which purported or operated to create, declare, assign, limit or extinguish whether in present or in future any right, title or interest whether vested or contingent were compulsorily registrable. Failing registration, the provisions of S.49 of the Registration Act, 1908 would come into play and as a consequence, the document would not operate to create any right, title, or interest, whether vested or contingent in the property.
Compulsory Registrable Document:
- Instruments of the gift of immovable property. U/S 17(1)(a)
- Instruments U/S 17(1)(b)
- Receipt of consideration U/S 17(1)(c)
- Leases U/S 17(1)(d)
- Transfer of decree, order, or award of court U/S 17(1)(e)
- Authority to adopt a son U/S 17(3).
Gift of immovable property: U/S 17 (1)(a)
By virtue of section 17(1)(a) the instrument of the gift of immovable property is a compulsorily registerable instrument. Such deed having not been registered, cannot legally convey right, title, or interest in or to immovable property.
Although a gift made under Muslim personal law is expressly excluded from the operation of section 129 of the transfer of property act 1882, yet it comes within the preview of the Registration act 1908 and therefore is compulsorily registerable.
Instruments U/S 17 (b)
Other non-Testamentary instruments which purport or operate to create declare assign, limit, or extinguish whether in Present or in the future any right, title or interest whether vested or contingent of the value of 100 rupees or upwards to or in immovable property shall be registered.
Illustrations:
(I) Mortgage deed: A mortgage deed is registerable under this clause. Section 58 of the Transfer of property act, 1882 provides that where the amount secured is RS 100 or upwards, a mortgage (other than the mortgage of title deed) can be affected only by a registered instrument.
(ii) Charge: Documents creating a charge on immovable property of the value of Rs.
100 or upwards require registration under this Act.
(iii) Transfer of Redemption: Redemption deed for transferring back land valued more than Rs. 100 or upwards
require registration if it was a registered mortgage.
(iv) Instrument of Partition: Instrument of partition of immovable property of the value of Rs. 100,
or upwards is compulsorily registerable, under this clause.
(v) Floating Charge: A floating charge creates a contingent right and a document creating such charge is Register-able under Section 17(a) (b)
(vi) Assignment of a Household: An assignment of an interest in leasehold property requires
registration of the interest assigned of the value of Rs. 100 or
upwards.
(vii) Variation of Mortgage: An agreement by which a mortgagor agrees to pay interest at a rate highest than fixed by the mortgage deed, which itself is registered, requires registration.
Receipt of Consideration u/s 17(1)(c)
(a)Description of the Clause:
“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”, shall be registered.
Illustrations:(i) Sale-deed: A sale-deed requires registration under this clause, whereby not only the immovable property is conveyed but the price thereof is also acknowledged. Sale-deed in terms of S.17 of the Registration Act, 1908 is required to be attested by two witnesses but is also required its mandatory registration in terms of S.49 of the Registration Act, 1908 and S. 54 of the transfer of Property Act, 1882. Mere writing an agreement in absence of registration does not create any right title or interest in immovable property in favor of the beneficiary of such deed despite the fact that the entire sale consideration was paid by the vendee on the basis of such deed. 2022 CLC 1740
(iii) Receipt for Premium: A receipt that purports to be for “Nazrana” paid for a lease requires registration, but not if the sum is less than Rs. 100
(iv) Will-deed: "Will" whereby an interest in any immovable property valuing more than Rs. 100/- was sought to be created should be registered compulsorily and if it was unregistered, same was to be ignored. If such "Will" was held to be validly executed it would not operate to create any right or interest being unregistered
Leases u/s 17(1)(d)
(a) Description of the Clause: “Leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, is compulsorily registerable”.
(b) Duration of Lease: The duration of the lease is the sole determinant of its registration. Insofar as the registration is compulsory, a lease must be: "
- Year to year, or
- For a term exceeding one year, or
- Reserving yearly rent.
(c) Where no term is expressed: Where no term of the lease is specially fixed and is for an indefinite period, it does not require registration.
(d) Exceptional case: Proviso 17(1)(d): The provincial government, according to the proviso of S. 18(1), may exempt any leases the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.Transfer by decree, order, or award u/s 17(1)(c)
According to this clause: “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 to the value of one hundred rupees and upwards, to or in immovable property", shall be registered.
Illustrations:
(i) Mortgage decree: A mortgage decree must be regarded as in relation to immovable property and within this clause's clutches.
(ii) Decree creating charge: A decree creating a charge, creates a right to or in immovable property and an assignment thereof comes under clause (c) of this section.
Authorities to Adopt a son U/S 17 (3)
An authority to adopt, a son, as distinguished from the deed of adoption, is Compulsorily registerable, for the reason that it is not merely a deed, but adoption itself, that creates the status of the adopted son and creates interest in the property.
Power of attorney
Power of attorney confers only those powers which are specified therein and in case power of attorney creates any right, title, or interest in immovable property, then it should be compulsorily registered as per law. Power of attorney was a written authorization by virtue of which the principal would assign a person as his agent and confer upon him the authority to perform specified acts on his behalf. The primary purpose/object of such an agency is that the agent has to act in the name of his principal and the principal also purported to ratify all the acts/deeds of his agent done by him under the authority conferred through the instrument. The such document has to be compulsorily registered. 2022 YLR 2399. The document introduced as power of attorney will be of no legal significance if the same lacked its registration under Registration Act, 1908 and Stamp Act. Such power of attorney was compulsorily registerable.
Final Words:
A document constituting the bargain between the parties requires registration compulsorily if it is not merely the records of an already completed transaction. However, if a registerable instrument is not registered within due time, it loses its evidential value.