Registration of Property

Leading advocate in Bangalore | property lawyers | real estate lawyers in India

All documents do not require registration compulsorily. The Transfer of Property Act, 1882 and the Indian Registration Act, 1908 have made registration of certain documents compulsory while in respect of certain other documents it is optional.

According to Section 17 of the Indian Registration Act, 1908 registration of documents is compulsory if they relate to an immovable property.  Similarly, Section 54 of Transfer of Property Act 1882, stipulates that sale of immovable property the value of which is one hundred rupees or more should be registered. Since no immovable property is available for rupees one hundred or less than rupees one hundred, implicitly all sale deeds of immovable property need compulsory registration.  

Most of the instruments dealing with the immovable property for  creating, declaring, assigning, limiting or extinguishing any right, title or interest in  the property require compulsory registration, as enumerated under the Indian Registration Act, 1908. For executing an instrument, the first and the foremost aspect to be considered is the nature of the right intended to be transferred. If the document falls within the category of the documents which warrants compulsory registration, any avoidance of registration of such document would invalidate the document itself.  For documents which require mandatory registration certain procedures are prescribed.

Time limit for registration

Under Section 23 of the Registration Act, subject to certain exceptions, any document other than a Will has to be presented for registration within four months from the date of its execution.  Execution means signing of the document. It is not uncommon that the date of execution and the date of registration may differ. For the non-testamentary documents such as Sale Deed, Gift Deed, Mortgage Deed, etc, the time limit within which the document has to be registered is four months from the date of execution. Decrees drawn in terms of Compromise Petition wherein shares of the parties are allotted by metes and bounds require registration. Even for registration of the court decree, four months time limit is stipulated under the Act. If the document is executed by all or any of the parties residing abroad, the same can be accepted for registration within four months from the date of receipt of the document in India. In case of doubt as to the validity of registration, the document may be re-registered within four months from the date when it is noticed that the registration is invalid or of doubtful validity. Where a document is executed by several persons at different times, it should be presented within four months from the date of the latest execution for registration. If a document is not presented for registration within the prescribed period of four months and the delay in presentation of the document does not exceed a further period of four months, then the parties can apply to the Registrar for registration of the document who may direct, upon payment of  fine not exceeding ten times the actual registration fees, for registration of such a document [Sec.25].

A document relating to an immovable property can be executed out of India and later it can be presented for registration in India.  As per section 26 of the Registration Act, 1908, if a document purporting to have been executed by all or any of the parties out of India is presented within the prescribed period of time for registration, the Registering Officer may, on payment of proper registrat- ion fee accept such document for registration if he is satisfied that the instrument was executed out of India and the instrument has been presented for registration within four months after its arrival in India.

Fees of Registration

Fees charged for the registration or searching the register are prescribed by State Governments through Notifications.

Testamentary instrument

In case of Testamentary instrument, that is, Will, registration is optional and time limit is not prescribed. It can be registered any time before the death of the Testator. How-ever, it is advisa-ble to register the same as soon as possible in order to avoid disputes about the genuineness of its execution. In case of registration of Will, the same may be presented by the Testator during his life time and after his death, by the beneficiary or the administrator, for registration.          A Will may be deposited with the Sub-Registrar in a sealed cover and such deposit may be done through an agent. After the death of the Testator, the sealed envelope will be opened and the contents recorded in the relevant register maintained in the Sub-Registrar's Office. The Original copy of the 'Will' will be in the custody of the Sub-Registrar.

Jurisdictional Sub-Registrar Offices

Generally documents have to be presented for registration only at the Sub-Registrar's office within whose jurisdiction the immovable property is situated. However, in certain exceptional cases, documents may be presented for registration with the Registrar who has been conferred with the power to register the documents. In fact, Sub-Registrars have been vested with the special power to register the document at the residence or office of the executant or to accept deposit of Will.

Presentation of the document

Documents which require mandatory registration have to be presented in the concerned Sub-Registrar Office for registration by the executant or person claiming under the Decree. However, in certain cases, the representatives of the Executant, duly authorized under Power of Attorney, can also execute the same on behalf of the Executant. A power of Attorney holder can execute the document, representing the Principal only if an authority has been vested in him under Power of Attorney, which is authenticated by the Registering authority within whose jurisdiction the Principal resides. If the Principal does not reside in India, then the Power of Attorney should be executed before and authenticated by a Notary Public or any Court, Judge, Magistrate, Indian Consul or Vice-Consul or the Representative of Central Government in that country and the same is required to be presented with the concerned registrar in India with in a period of three months of its receipt in India. When a document has been executed by more than one executant and after execution of the same, one of the executants refrain from attending the concerned Sub-Registrar's Office for registration, then the remaining executants can compel attendance of the executant reluctant to be present before the registering authority through the process of law.

Enquiry by the Registering authority

The Registering Officer is empowered under sec. 34 of the Registration Act to enquire whether or not the person is the same by whom it purports to have been executed such a document.  He may insist on production of proof for his identity and in case any person is appearing as a representative or agent, the Registrar may ask for relevant documents to show that the agent or representative has the right to appear on behalf of his principal.    

Effect of non-registration

What would be the repercussion if a document which requires  compulsory registration  is not registered? Section 49 of Indian Registration Act deals with this situation. It states clearly that such un-registered documents do not convey to the transferee a legally valid title and such documents are not admitted as evidence for any transaction affecting the property referred to in the document. However, there is an exception provided in the Act. The unregistered documents may be admitted as evidence in a suit for specific performance under Specific Relief Act or in any other related transaction, not required to be effected under a registered instrument.

Documents are mainly registered for conservation of evidence, assurance of title, and to help an intending purchaser to know if the title deeds of a particular property have been deposited with any financial institution or person for purpose of obtaining loan or advance against security of the property. Registration of documents acts as notice to the public and to protect oneself against the likely fraud. Therefore, it is advisable to register all documents connected with the immovable property irrespective of whether the registration is compulsory or not as it creates a permanent record of event which are reflected in encumbrance certificates.

As registered documents have higher value of evidence than unregistered documents it is always beneficial to you if you  get all your property documents registered within the stipulated period  irrespective of the fact that such registration is mandatory or not.

Endorsement

After accepting the document for registration, the Registering authority shall endorse the document regarding affixation of the signature of the Executant, payment of consideration, date and other relevant particulars. If registration is declined by either of the party, the same shall be endorsed on the document itself. Apart from this, the Registering authority shall also endorse on the Document the registration number, Book number, pages, volume or CD number and affix the seal of the office of the Sub-Registrar. Such a Certificate shall be copied in the Register meant for the purpose and copy of the map or plan, if any, shall be filed in Book No.1. Thereafter, the registered document will be returned to the person who has presented the same for registration or to his representatives.

Compulsorily registerable Documents:

Section 17(1) of Indian Registration Act 1902, deals with the documents which require registration compulsorily.  They include:

1. Instruments of gift of immovable property:  Gift is given by the donor to the donee without any monetary consideration, but only in consideration of love and affection the donor has towards the donee.  Therefore, gift deeds transferring immovable property of the value of Rs.100/- and above needs registration.

2. Other non-testamentary documents which purport to create, assign, limit or extinguish the right, title and interest in immovable property the value of which is more than one hundred rupees.

3. All non-testamentary documents which acknowledge the receipt or payment of any consideration on account of the transactions pertaining to the creation of any right, title, interest in the immovable property.

4. All non-testamentary documents transferring or assigning any decree or order, award of a court, which affect the right, title and interest in immovable property the value of which is one hundred rupees and above.

The documents may create, extinguish, assign, declare, limit or restrict the right, title and interest in the immovable property for the present or future, but if the value of such immovable property is one hundred rupees or more, the deed needs to be registered.

Though all types of mortgages need registration, mortgage created by depositing of title deeds, known as equitable mortgage, is not compulsorily registerable. Mostly, banks and financial institutions use this mode of mortgage. However, memorandum of deposit of title deed needs registration.

Section 107 of Transfer of Property Act 1882, prescribes that lease of immovable property from “year to year” or for any term exceeding one year or reserving a yearly rent must be done only by a registered instrument.  The phrase from 'year to year', refers to a continuous lease from year to year, that is, where the landlord has no option to terminate the lease at the end of the year without notice.

Similarly the phrase, “reserving yearly rents” means that the lease has no definite period, but the annual rent is determined.  The word “yearly” means that the lease should run year after year or at least more than a year.  In general, any lease in excess of one year and above should be registered.

Documents where registration is optional

There are certain documents registration of which is optional.  Section 18 of the Indian Registration Act, 1908 lays down the instruments of which registration is optional. They include:

a)       Instruments relating to transfer of an immovable property, the value of which is less than rupees one hundred.

b)       Lease of an immovable property for a term not exceeding one year.

c)       Wills.

d)       Deed of gift of property valued at less than Rs.100/-.

Generally, documents will be drafted in the local language or in English. If the document is in a language which the registering authority has no knowledge or does not understand, then the document has to be translated into the language known to the registering authority. If there are any interlineations, blanks, erasures and alterations in the document, the authority may ask for attestation of the same. The description of the property has to be clearly mentioned for identification of the property and to ascertain the actual location where the property is situated. Production of map or plan may be necessary in certain cases.