Registration ActFrequently Asked Questions on Registration Act
"An Act to consolidate the enactments relating to the legislation of documents
WHEREAS it is expedient to consolidate the enactments relating to registration of documents;------"So one of the purpose of the Act is provide complete and codified law on the subject of Registration of documents. Another important purpose of law of registration is to inform people, who may deal with property, as to nature and extent of the rights which persons may have, affecting that property. Another important object is to give legal sanctity to certain classes of documents or to perpetuate documents, presence of which will be an evidence of the fact that certain transaction has taken place in respect of immoveable or moveable property or other change of legal status. Scope of the Act :- Indian Registration Act is primarily concerned with documents and not with transaction. It is only concerned with the fact that all those documents as mentioned in Section 17 of the Act, must be registered so that legal importance may be attached with transactions.
"addition means the place of residence and the profession, trade, rank and title (if any) of a person described, and indicates of an Indian, his caste (if any) and his father's name or where he is usually described as the son of his mother, then his mother's name."So "addition" means all those informations which, apart from the name of a person, give much deeper or detailed identity of him for the purpose of Act. (ii) Immoveable Property. Section 2(6) of Indian Registration Act says :-
"`Immoveable property' includes land, buildings, hereditary allowance, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land and things attached to the earth but not standing timber, growing crops or grass;"Definition of term `Immoveable Property' as given in Section 3 of Transfer of Property Act is not exhaustive, it simply say -
"Immoveable property does not include standing timber, growing crops or grass."Similarly definition of term as given under section 2(26) of General Clause Act is not comprehensive one, it states -
"Immoveable property shall include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth."So on joint reading of above said definitions it is clear that teem `Immoveable property' does not include standing timber, growing crops or grass, but it includes :-
(iii) hereditary allowance
(iv) rights to ways
(v) rights to light
(vi) right to ferries
(vii) right to fisheries
(viii) benefits to arise out of land
(ix) things attached to earth(iii) Lease. - Section 2(7) of Indian Registration Act says :-
"Lease includes a counter part, Kabuliyat, an undertaking to cultivate or occupy and an agreement to cultivate or occupy and an agreement to lease."Defination of `lease' u/s 2(7) of Act is not exhaustive, Section 105 of Transfer of property Act says
"A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied or in perpetuity, in consideration of a price-paid or promised or of money, a share of crops, service or any other thing of value, to be tendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."So lease in simple words means transfer of right to enjoy of a property for specified period and for money or money's worth. Moveable Property According to Section 2(9) "Moveable property" includes standing timber, growing crops and grass, fruit upon and juice in trees and the property of every other description, except immoveable property."
(a) instruments of gifts 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 Rs. 100 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;
(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 Rs. 100 and upwards, to or in immovable property, and
(f) authorities to adopt a son, executed after the 1st January, 1872 and not conferred by will [Section 17(3)].
(g) any other instrument required by any law for the time being in force to be registered:
Provided that the (State Government) may, by order published in the (Official Gazette), exempt from the operation of this Sub-Section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserves by which do not exceed fifty Rupees.Documents of Which Registration is Optional- Section 18 of the Registration Act provides as follows. 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 terms not exceeding one year, and leases exempted under Section 17;
(d) instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports to or operates to create, declare, assign, limit, 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;
(e) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in moveable property;
(f) wills, and
(g) all other documents not required by Section 17 to be registered. (Section 18).
Q. 5 `A' Muslim executes a deed of gift of his property to `B' but the gift is not accompanied by delivery of possession. `A' subsequently executes a deed of gift of the same property to `C' and the gift is accompanied by delivery of possession. Both the deeds are registered. Is `B' entitled to the property ? Discuss the relevant provisions of Registration Act.
(i) a declaration of gift by donor.
(ii) Acceptance of gift expressly or impliedly by or on behalf of donee.
(iii) Delivery of subject matter of gift from donor to donee.In Abdul Manan v. Mohd. Murad Ali and Other 1999 Family Law Cases 108 (Patna) it was observed that it is necessary for the validity of a gift under Muslim law that (a) There shall be declaration of gift by donor (b) Acceptance of gift by donee (c) Delivery of possession of property gifted by donor to donee. So delivery of subject matter of gift from donor to donee is essential for the validity of a gift under Muslim Law. Section 17(1)(a) of Indian Registration Act provides that "instrument of gift of immovable property is required to be registered compulsorily and Section 123 of Transfer of Property Act provides that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses....." But Section 129 of Transfer of Property Act expressly excludes the application of Section 123 of Act in the case of Mohammedan gift. So a gift by a Muslim must at least fulfil all essential conditions as to gift under Muslim law and it is not necessary for a Mohammedan to execute a registered instrument for transferring the immovable property by way of gift as required under Section 123 of Transfer of Property Act. In such a case it is sufficient to conform to the Rule of Muslim Law. A gift by a Muslim which is accompanied by delivery of possession is valid nonetheless the gift deed is not executed and registered. Registration of a gift deed will not cure the defect if the gift is invalid under Muslim law by reason of not delivering the possession of subject matter of gift to donee. In the case in hand, A Muslim though executed a registered gift deed to B but gift is not accompanied by delivery of possession of subject matter of gift, therefore gift to B is not valid under Muslim law, whereas registered gift deed along with delivery of possession of property gifted to `C' is valid and complete. Registered gift deed in favour of B will not in any way help B.
Q. 6 A and B divided certain joint properties between themselves on 28th January 1973. On 16th December 1975, B handed over a declaration to `A' in these words:
"You have constructed shops and are constructing houses on property appertaining to your share in the same I have no interest of any kind."
Whether the above declaration requires a registration ?
"Family arrangement may be oral, in which case no registration is necessary. Registration is necessary only if terms of family arrangement are reduced into writing. Here also a distinction should be made under a document containing terms and recitals of family arrangement and mere memorandum prepared after the family arrangement has already been made. In such case memorandum does not require any registration as it by itself does not create or extinguish any right in immovable property.
Q. 11 The only question for determination is as to if the lease required registration under Section 17 of Indian Registration Act or not:
A had granted lease to B on following terms "Today Ist January 1980, I have given shop on rent to B at rental of rupees 340 per month. Rent shall not be raised or lowered nor shall I eject him. But in case of refusal to pay rent, I shall have right to turn him out." Decide.
"Term of a lease for the purpose of Registration must be understood to mean the period for which the lessee is protected against dispossession at the will and pleasure of his lessor or in other words, the length of time for which the lessee is entitled to continue in possession provided he himself fulfils all the stipulated conditions."Keeping in view the above said principle let us see which lease is compulsorily registerable and which is not:
(a) A lease for year to year means the lease which can be determined at the end of first or any subsequent year of tenancy, but not in between it. This is a tenancy which does not come to an end by the efflux of time for the simple reason that the time is not limited by the original lease itself. It commences with the year and without any further action on the part of either of the lessor or lessee continues till either party determines it by giving proper notice at the end of any year of tenancy. A tenant from year to year has an interest for one year certain, with a growing interest during every year thereafter, springing out of the original contract and as parcel of it and such lease is compulsorily registerable in view of Section 17(1)(d) of Act.
(b) Lease for period of 6 months is not a lease exceeding one year, therefore is not compulsorily registerable.
(c) Lease for term exceeding one year is certainly compulsorily registerable in view of Section 17(1)(d) of Indian Registration Act
(d) Lease for one year containing option to the tenant to renew for further period of one year or any other term is not a lease for term exceeding one year and therefore does not require compulsory registration under Section 17(1)(d) of the Act.
"If any document duly presented for registration be in a language which the registering officer does not understand, and which is not commonly used in the district, he shall refuse to register the document, unless it be accompanied by a true translation into a language commonly used in the district and also by a true copy."So if any document duly presented for registration be in a language which the registering officer does not understand, and which is not commonly used in the district, he shall refuse to register the document, unless it be accompanied by a true transaction into a language commonly used in district and also by a true copy. (Section 19). (b) Section 20 of Indian Registration Act deals with the situation when document presented for registration, contains interlineations, blanks, erasures or alterations. It says :-
"The registering officer may in his discretion refuse to accept for registration any document in which any interlineation, blank, erasure or alteration appears, unless the persons executing the document attest with their signatures or initials such interlineation, blank, erasure or alteration."If the registering officer registers any such document-he shall, at the time of registering the same, make a note in the register of such inter lienation, blank, ensure or alteration.
(1) No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same.
(2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered.
(3) Other houses and lands shall be described by their name, if any, and as being in the territorial division in which they are situate, and by their superficial contents, the roads and other properties on which they stand and their existing occupancies, and also, whenever it is practicable, by reference to a Government map or survey.
(4) No non-testamentary document containing a map or plan of any property comprised therein shall be accepted for registration unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of true copies of the map or plan as are equal to the number of such districts."So, section 21 provides for two requirements :
(1) that the instrument shall contain a description of the property sufficient to identify it and,
(2) that, if the instrument contains a map, a copy or copies of the map shall accompany the instrument when presented for registration.Section 21 should be read with Section 22 of the Act which says :-
"(1) Where it is, in the opinion of the State Government, practicable to describe houses, not being houses in towns, and lands by reference to a Government map or survey, the State Government may, by rule made under this Act, require that such houses and lands as aforesaid shall, for the purposes of Section 21, be so described.
(2) Save as otherwise provided by any rule made under sub-section (1), failure to comply with the provisions of section 21, sub-section (2) or sub- section (3), shall not disentitle a document to be registered if the description of the property to which it relates is sufficient to identify that property."
"Subject to the provisions contained in Section 24, 25 and 26, no document other than a will, shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:
Provided that a copy of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable within four months from the day on which it becomes final."In Ram Singh Sant Ram v. Jasmer Singh Vardit Singh AIR 1963 Punj. 100 it was observed that "According to Section 23 of the Act, no document other than a will can be accepted for Registration unless presented for that purpose to the proper officer within four months from the date of its execution. Under Section 25 of the Act a further period of four months is allowed for registration in certain cases of urgent necessity or unavoidable accident. That is to say, eight months is the outside limit for presenting the document of registration. Section 24 provides that :
"Where there are several persons executing a document at different times, such document may be presented for registration and reregistration within four months from the date of each execution." Section 25 lays down as follows :
(1) If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in India is not presented for registration till after expiration of the time here-in-before prescribed in that behalf, the Registrar, in cases where delay in presentation does not exceed four months may direct that, on payment of a fine not exceeding ten times the amount of the proper registration fee, such document shall be accepted for registration.
(2) Any application for such direction may be lodged with a Sub- Registrar, who shall forthwith forward it to be Registrar to whom he is subordinate.Section 26 of the Act then provides:
"When a document purporting to have been executed by all or any of the parties out of India is not presented for registration till after the expiration of the time here-in-before prescribed in that behalf, the registering officer, is satisfied
(a) that the document was executed, and
(b) that it has been presented for registration within four months after arrival in India, may on payment of proper registration fee, accept such document for registration."Section 27 of the Act says a Will may at any time be presented for registration or deposited in the manner as provided in Parts VIII and IX of the Act.
"Notwithstanding anything to the contrary contained in the Act, if, in any case, a document requiring registration has been accepted for registration by a Registrar or Sub-Registrar from any person not duly empowered to present the same and has been registered, any person claiming under such document may within four months from his first becoming aware that the registration of such document is invalid, present such document or cause the same to be presented, in accordance with the provisions of Part VI for registration in the office of the Registrar of the district in which the document was originally registered; and upon the Registrar being satisfied that the document was so accepted for registration from any person not duly empowered to present the same, he shall proceed to reregistration of the document as if it had not been previously registered, and as if such presentation for reregistration was a presentation for registration made within the time allowed therefor under Part IV, and all the provisions of this Act, as to registration of documents, shall apply to such registration; and such documents if duly reregistered in accordance with the provisions of this Section , shall be deemed to have been duly registered for all purposes from the date of its original registration:
Provided that, within three months from the twelfth day of September, 1917, any person claiming under the document to which this Section applies may present the same, or cause the same to be presented for reregistration in accordance with this Section whatever may have been the time when he first became aware that the registration of the document was invalid."
"Where there are several persons executing a document at different times, such document may be presented for registration and reregistration within four months from the date of each execution."Section 24 should be read with Section 34(2). Section 24 deals with partial registration, i.e., partial as to the persons executing it. Where a document which has been executed by several persons and it is registered upon the appearance and admission of some of the executants, there is no effective registration as regards other executants who neither appear nor admit execution. In AIR 1928 Nag. 239 it was observed that when a document is executed by several persons at different times, the Section 24 of the Act contemplates registration within four months of the last execution of all previous executions whether they were within four months or not.
"Save as in this part otherwise provided, every document mentioned in Section 17 Sub-Section (1) clauses (a), (b), (c), (d) and (e), Section 17, Sub-Section (2), in so far as such document affects immovable property and Section 18 clauses (a), (b), (c) and (cc), shall be presented for registration in the office of a Sub-Registrar within whose Sub-district the whole or some portion of property to which such documents relates is situate.In Julumdhari v. Debi Raj AIR 1965 Patna 279 it was held that as long as the law permits registration of a document at a place where any portion of the land covered by any deed of transfer is situate, parties can take advantage of that and get the document registered at a place where not the bulk of the land under transfer but only a small portion which was also intended to be transferred is situate. Section 29(1) of the Act then says "Every document not being document referred to in Section 28, or a copy of a decree or order, may be presented for registration either in the office of the Sub- Registrar in whose Sub-district the document was executed, or in the office of any other Sub-Registrar under the State Government at which all the persons claiming under the decree or order desire the same to be registered. Sub-Section (2) to Section 29 of the Act says:
"A copy of decree or order may be presented for registration in the office of the Sub-Registrar in whose Sub-district the original decree or order was made or where the decree or order does not affect the immovable property, in the office of any other Sub-Registrar under the State Government at which all the persons claiming under the decree or order desire the copy to be registered."Section 30 of the Act provides as under:
"(1) Any Registrar may in his discretion receive and register any document which might be registered by any Sub-Registrar subordinate to him.
(2) The Registrar of a district in which a presidency town is included and the Registrar of the Delhi district, may receive and register any document referred to in Section 28 without regard to the situation in any part of India of property which the document relates."Section 31 of the Act lays down: "In ordinary cases the registration or deposit of documents under this Act shall be made only at the office of the officer authorised to accept the same for registration and deposit:
Provided that such officer may on special cause being shown attend at the residence of any person desiring to present a document for registration or to deposit a will, and accept for registration or deposit such document or will."
"In ordinary cases the registration or deposit of documents under this Act shall be made only at the office of the officer authorised to accept the same for registration or deposit :
Provided that such officer may on special cause being shown attend at the residence of any person desiring to present a document for registration or to deposit a will, and accept for registration or deposit such document or will."So, in extraordinary cases registration can be validly done at places other than the office of the registering officer or the residence of the person desiring to present the document for registration. The words "may on special cause being shown" in proviso to section 31 imply that the registering officer is the judge of the sufficiency of the special cause, and, if he is satisfied, the Court has no power to question his decision on that point. Assuming that the discretion was not rightly exercised by him, it was a mere defect of procedure within the meaning of section 87.
(a) by some person executing the document or claiming under the document or, in the case decree or order, claiming under the decree or order, or
(b) by the representative or assign of such person, or
(c) by the agent of such person, representative or assign, duly authorised by power of attorney executed and authenticated in the prescribed manner [Section 32].The object of the legislature in enacting section 32 is to prevent a mere outsider from presenting for registration a document with which he has no concern. To allow all and sundry to present document for registration would be to open a door a fraud and forgery, therefore intended to provide that registration should be initiated by the document being presented for registration by person having direct relation to deed. In Shri Kishore Chandra Singh Deo v. Babu Ganesh Pd. Bhagat AIR 1954 SC 316 Supreme Court observed :
"One object of Sections 32 to 35 is to make it difficult for persons to commit fraud by means of registration under the Act, and it is the duty of the Courts in India not to allow the imperative provisions of the Act to be defeated when it is proved that an agent who presented a document for registration had not been duly authorised in the manner prescribed by the Act to present it."Section 33(1) of the Indian Registration Act provides that for the purposes of Section 32 of the Act, the following powers of attorney are alone recognized:
(a) A power of attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or Sub-district the principal resides, if the principal at the time of executing the power of attorney resides in any part of States in which the Indian Registration Act is in force;
(b) A power of attorney executed before and authenticated by a Magistrate if the principal at the time of executing the power of attorney resides in any other part of the State in which the said Act is not in force;
(c) A power of attorney executed before and authenticated by a Notary Public, any Court, Judge, Magistrate, Indian Consul, Vice-Consul or representative of the Central Government; if the principal at the time of aforesaid does not reside in India :
Provided that the following persons shall not be required to attend at any registration office or Court for the purpose of executing any such power of attorney as is mentioned in clauses (a) and (b) of this Section , namely:
(i) persons who by reason of bodily infirmity are unable without risk of serious inconvenience so to attend;
(ii) persons who are in jail under civil or criminal process; and
(iii) persons exempt by law from personal appearance in Court.(2) In the case of every such person the Registrar or Sub- Registrar or Magistrate, as the case may be, if satisfied that the power of attorney has been voluntarily executed by the person purporting to be principal, may attest the same without requiring his personal attendance at the office or Court aforesaid. (3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go in the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination. (4) Any power-of-attorney mentioned in this Section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court herein before mentioned in that behalf."
Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear; the Registrar in cases where delay in appearing does not exceed four months, may direct that on payment of fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under Section 25, the document may be registered."Sub-Section (4) of Section 34 says any application for direction under the proviso to Sub-Section (1) may be lodged with Sub- Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate. Section 34(2) says that appearance as provided in Sub- Section (1) may be simultaneous or at different times. Section 34(3) then says : The registering officer shall thereupon
(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;
(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and
(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such persons so to appear.The provisions of this Section do not apply to copies of decree or orders [Section 34(5)]. In Ajit Investment Co. v. G. Malvadkar AIR 1973 Bom. 285 it was observed that Section 34 has inter alia provided that no document shall be registered unless the person executing such documents, or their representatives, assigns or agents appear before the registering officer within the time allowed for presentation. Such appearance may be simultaneous or at different times. Sub-Section (3) of Section 34 thereof provides that the registering officer shall thereupon (a) enquire whether or not such document was executed by the persons by whom it purports to have been executed; (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such persons so to appear. Section 35 of the Registration Act provide procedure on admission and denial of execution of document. Section 35(1) says:
(a) If all the persons executing the document appear personally before the registering officer and are personally known to him or if he be otherwise satisfied that they are the persons they represent themselves to be and if they all admit the execution of the document; or
(b) if in the case of any person appearing by a representative, assign or agent, such representative, assign, or agent admits the execution;
(c) if the person executing the document is dead, and his representative or assign appears before the registering officer and admits the execution;
(d) The registering officer shall register the document as directed in Sections 58 to 61 inclusive.Section 35(2) of the Act provides: The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office. Sub-Section (3) to Section 35 then provides:
(a) if any person by whom the document purports to be executed denies its execution; or
(b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic; or
(c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution;
the registering officer shall refuse to register the document as to the person so denying, appearing or dead:
Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII:
Provided further that the State Government may, by notification in the official Gazette, declare that any Sub-Registrar named in the notification shall in respect of documents, the execution of which is denied, be deemed to be a Registrar for the purposes of this Sub-Section and of Part XII.In Ajit Investment Co. v. G. Malvadkar (supra) it was observed by Kantawala, J. of the High Court of Bombay that there is enough indication in the provisions of the Registration Act, 1908, to suggest that it is impossible for the registering officer to register a document qua some of the executants, though it may not be registered qua the rest. If regard be had to the provisions of Section 35 (3) of the Registration Act, it is amply clear that the legislature never intended refusal to register a document in toto simply because some of the executants thereto may not produce the tax clearance certificate as provided by Section 34 of the Wealth Tax Act or Section 230A of the Income Tax Act. Under Section 35 (3) when execution of a document is denied by some or when the party executing it appears to be a minor, an idiot or a lunatic, or in case of an executant who is dead and his representative or assign denies the execution, the registering officer has to refuse to register the document as to the person so denying, appearing or dead. Section 36 of Act then provides: If any person presenting any document for registration or claiming under any document, which is capable of being so presented desires the appearance of any person whose presence or testimony is necessary for the registration of such document, the registering officer may, in his discretion call upon such officer or Court as the State Government directs in this behalf to issue summons requiring him to appear at the registration office either in person or by duly authorised agent at time mentioned in the summons. Section 37 says: The officer or Court upon receipt of the process fee payable in such cases shall issue the summons accordingly and cause it to be served upon the person whose appearance is so required. Under Section 38 of the Indian Registration Act, the following persons are not required to appear at the registration office:
(i) Persons who by reasons of bodily infirmity are unable without risk or serious inconvenience, to appear at the registration office;
(ii) Persons in jail under civil or criminal process; or
(iii) Persons exempted by law from personal appearance in court.Section 38(2) says in case of every such person the Registering Officer shall either himself go to the house of such person or to the jail in which he is confined and examine him or issue commission for his examination. Section 39 of the Act makes it clear that: The law in force as to summons, commissions and compelling the attendance of witnesses and the law for their renunciation in suits before Civil Courts applies to any summons or commission issued and any person summoned to appear under the Indian Registration Act.
"(1) A will or an authority to adopt presented for registration by the testator or donor may be registered in the same manner as any other document.
(2) A `will' or `authority to adopt' presented for registration by any other person entitled to present it shall be registered if the Registering Officer is satisfied (i) that `will' or `authority to adopt' was executed by testator or donor (ii) that testator or donor is dead (iii) that the person presenting the `will' or `authority to adopt' is entitled to present it."So the effect of Sections 40 and 41 of the Act is that a will and an authority to adopt can be presented for Registration after the death of the testator and the donor of the authority. These Sections do not exclude the operation of Section 32 of Act. Rules as to Deposit of Wills - The Rules as to deposit of wills have been provided under Sections 42 to 46 of the Indian Registration Act. These are given below: Section 42 of the Act provides:
"Any testator may either personally or by duly authorised agent, deposit with any Registrar his will in a sealed cover superscribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document."Section 43 of the Act lays down :
"On receiving such cover if the Registrar is satisfied that the person presenting the same for deposit is the testator or his agent, the Registrar shall transcribe in his Registrar Book No. 5 the superscription abovesaid and shall note in the same book and on the said cover the month, day, hour of such presentation and receipt the names of any persons who may testify the identity of the testator or his agent and any legible inscription which may be on the seal of the cover. The Registrar shall then place and retain the sealed cover in his fire proof box."Section 44 says that :
"If the testator who has deposited such cover wishes to withdraw it, he may apply, either personally or by duly authorised agent, to the Registrar who holds it in deposit if and the Registrar is satisfied that the applicant is actually the testator or his agent, the Registrar shall deliver the cover accordingly."Section 45 of the Act says :
"If on the death of a testator who has deposited a sealed cover, an application is made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, the Registrar in the presence of the applicant opens the cover and at the applicant's expense causes the contents thereof to be copied into his Book No.3. When such copy has been made, the Registrar shall redeposit the original will."Section 46(1) of the Act says :
"Nothing here-in-before contained shall affect the provisions of Section 259 of the Indian Succession Act, 1865, or Section 81 of the Probate and Administration Act, 1881, or the power of any Court by order or compel the production of any will."Sub-Section (2) to Section 46 says :
"When any such order is made, the Registrar shall, unless the will has been already copied under Section 45, open the cover and cause the will to be copied into his Book No. 3 and make a note on such copy that the original has been removed into Court in pursuance of the order aforesaid."In C.W. Mariano v. The Rt. Rev. F. Provost AIR 1941 Rang. 305 it was observed:
"The object and effect of Sections 42 to 46 are that the contents of the sealed cover deposited by the testator, shall remain secret during his lifetime, but on his death the terms of his will shall be made public and copies of the will shall be available to the public."
"A registered document shall operate from time from which it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration." So Section 47 does not purport to create a new title but only affirms the title which was created by the deed. The title is complete when the deed is executed and the effect of Registration is only to make it absolute and unquestionable. So according to Section 47 of the Act priority is determined as to date of execution and not according to date of registration and as soon as a document is registered, it relates back and becomes operative from the date of execution.As between two registered documents, the date of execution determines the priority. Of two registered deeds executed by same person in respect of the same property to two different persons at two different times, the one which is executed first has under Section 47 priority over the other, although the former deed is registered subsequently to the latter. If a deed is tendered for registration within the time allowed by the Act and duly registered, it is immaterial that another deed has priority of registration.
Provided that a mortgage by deposit of title deeds as defined in Section 58 of the Transfer of Property Act shall take effect against any mortgage deed subsequently executed and registered which relates to the same property."So under Section 48 of the Act a registered instrument is to have priority over an oral agreement unless the agreement or declaration has been accompanied or followed by delivery of possession. The object of Section 48 of the Act is to limit the operation of oral alienations. In Ghasi Ram v. Shankar Lal AIR 1960 M.P. 3 while following the decision of Waman Ramchandra v. D. Krishnaji I.L.R. 4 Bom. 126 it was observed:
"Section 48 of the Indian Registration Act (VIII of 1871) provides that a document, duly registered under that Act, shall "take effect" against an oral agreement unaccompanied by possession, but that provision cannot properly be applied to a registered document which has been given, accepted and registered in favour of a third party, as is the case with the registered deed of sale which has been given by the first defendant, and accepted by the other defendants, with full notice of the prior contract of sale to the plaintiff by the first defendant,........... The object of that Section was to prevent fraud, the application of it in favour of the second, third and forth defendants would be to render fraud triumphant."Section 48 of Act refers to the priority of Registered document over oral agreements and Section 50 of the Act refers to priority of Registered document over non-registered written document. Section 50 reads as under:
"Every document of the kinds mentioned in clauses (a), (b), (c) and (d) of Section 17, Sub-Section (1), and clauses (a) and (b) of Section 18, shall, if duly registered take effect as regards the property comprised therein, against every unregistered document relating to the same property and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not."
(a) the agreement or declaration has been accompanied or followed by delivery of possession, and
(b) the same constitutes a valid transfer under any law for the time being in force.But, however, a mortgage by deposit of title deed as defined in Section 58 of the Transfer of Property Act, 1882, shall take effect against any mortgage deed subsequently executed and registered which relates to the same property. So under the proviso to Section 48 of the Registration Act, equitable mortgage takes effect against any mortgage deed relating to the same property if executed and registered subsequent to the equitable mortgage. In the present case mortgage in favour of B is equitable mortgage which is prior in time. As such it will have priority over the subsequent mortgage made in favour of C, through a registered deed, and B must consequently succeed.
(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:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.So Section 49 of Registration Act consists of two parts. It provides first "that no document required by Section 17 or by provision of Transfer of Property Act to be registered, shall affect any immovable property comprised therein." The second part of the Section says that a "document shall not be received as evidence of any transaction affecting such property." The two parts of Section deal with different subjects. The first part presupposes that the document itself is the transaction or the mode in which it is carried out. The second part relates to cases where the document is not the transaction but is only record of transaction. In Narender Kumar v. Hans Raj AIR 1986 H.P. 75 it was observed "Section 49 of Registration Act does enjoin that no document which requires compulsory registration either under Section 17 of that Act or under any provision of the Transfer of Property Act any immovable property comprised therein or confer any power to adopt or be received as evidence of transaction affecting such property unless it has been registered. At the same time, however, the proviso appended to this Section lays down in no ambiguous terms that an unregistered document affecting immovable property and requiring compulsory registration may be received in evidence to prove any collateral transaction not required to be effected by a registered instrument or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act." Under the provisions of Section 50, an unregistered document gives way to a subsequent registered deed in respect of the same property. In other words, a subsequent registered deed takes effect against a previous unregistered deed in respect of the same property. To sum up of the following are the effects of non-registration:
1. The unregistered document shall not affect any immovable property comprised in it.
2. It shall not confer any power to adopt.
3. It shall not be received as evidence of any transaction affecting such property or conferring such power.
4. It gives way to a subsequent registered deed in respect of the same property. That is, it will take effect against a previous unregistered deed in respect of the same property.
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received in evidence of any transaction affecting such property or conferring such power.Unless it has been registered....." So where a document which is required to be registered in view of provisions of Section 17 of Act, if not registered will not avail to create, declare, assign, limit or extinguish any right, title or interest in or to immovable property comprised in the document nor will confer any power to adopt and nor such unregistered document can be received in evidence for proving creation, declaration, assignment, limitation or extinction of any right, title or interest to or in immovable property comprised in the document. However, proviso to Section 49 provides that an unregistered document affecting immovable property which is required to by registered may be received as evidence of contract in a suit for specific performance or as evidence of part performance of contract or as evidence of any collateral transaction not required to be effected by registered instrument. So in view of proviso to Section 49 of Act an unregistered document may be looked at as evidence of collateral transactions which are not required to be effected by registered instrument, therefore a lease of immovable property which is compulsorily registerable, if not registered though cannot be received in evidence to prove the transaction affecting immovable property to which it relates but in view of proviso to Section 49, such unregistered lease deed can be received in evidence for proving collateral transaction such as nature of possession over property by lessee, etc.
Q. 31 The only point in dispute before the court is whether the premises in dispute had been let out to defendant for residential purposes as contended by the plaintiff or the same had been taken by him for commercial purposes as contended by the defendant. The parties had admittedly executed an agreement in writing in which the purpose of letting is mentioned. The agreement, though it required registration, has not been registered. The plaintiff has produced the agreement in court for proving his case about the purpose of letting. The defendant has contended that the agreement cannot be admitted into evidence for determining the controversy. How will you decide ? Give reasons.
(i) Not affect any immovable property comprised therein or
(ii) Not confer any authority to adopt or
(iii) Not be received in evidence of any transaction affecting such property or conferring such power :
Provided that an unregistered document affecting the immovable property required to be registered under this Act or Transfer of Property Act may be received in evidence of contract in a suit for specific performance or evidence of part performance of a contract or as evidence of any collateral transaction, not required to be effected by registered document.So Section 49 of the Act implies that any document which is required under the law to be registered, if not registered will not create or extinguish etc. any right to or in immovable property comprised in such document nor shall be received in evidence of transaction affecting such immovable property. However such an unregistered document can be received in evidence of contract in a suit for specific performance or evidence of past performance of contract or for any collateral transaction which is not required to be effected by a registered document. Coming to the case in hand, an agreement was admittedly executed between plaintiff and defendant in which purpose of letting the property is also mentioned, although such agreement was required to be registered but not got registered. Such unregistered document may not be given in evidence to prove the fact of letting the premises to defendant but such unregistered document can be received in evidence to prove collateral transactions and therefore plaintiff can prove such registered document for proving the purpose of letting the premises in view of proviso to Section 49 of the Act.
(1) Where the unregistered document relating to the same property is a decree or order ;
(2) In case of unregistered leases which are exempted from compulsory registration under the proviso to sub-section (1) Section 17 ;
(3) In case of unregistered documents which are exempted from registration under Section 17(2) ;
(4) In case where the registered document has no priority under the law in force when the Registration Act came into force ;
(5) Where the subsequent transferee under the registered document has actual notice of the previous unregistered document of which registration is optional.
Q. 33 `A' a Hindu widow owned a house. On 28-4-63 she adopted `B' as her son and executed a deed of adoption. This document which is not registered also contains a covenant wherein she has stated that after this deed of adoption, her adopted son will be entitled to whole property and she will have no right to alienate any part of property. The widow (a) sold the house to C by registered sale deed. C filed a suit for possession against B on the basis of registered sale deed. B relied upon recital of adoption deed to plead that `A' had no right to sell the house. Decide.
(a) As to the Register Books and Indexes (Sections 51 to 57)
(b) As to Procedure on Admitting to Registration (Sections 58 to 63)
(c) Special duties of Sub-Registrar (Sections 64 and 65)
(d) Special duties of Registrar (Sections 66 and 67)
(e) Controlling powers of Registrars and Inspector General (Sections 68 to 70)(a) As to Register Books and Index : Section 51 of the Act says following books shall be kept in all Registration Offices:
Book 1 Register of non-testamentary documents relating to immovable property.
Book 2 Record of Reasons for refusal to register.
Book 3 Register of wills and authorities to adopt.
Book 4 Miscellaneous Register.Section 51(3) says in Book No. 4 entries shall be made of all documents registered under clauses (d) and (f) of Section 18 which do not relate to immovable property. Section 51 says in the offices of all registrars Book No. 5 will also be kept containing record of deposit of wills. Section 52 of the Act provides that day, time and place of presentation of document for registration and signature of person presenting shall be endorsed on document and subject to provisions of Section 62 every document admitted to registration shall be copied in the book appropriated therefor forthwith and all such books shall be periodically authenticated by inspector general. Section 53 then requires that all entries in respective books shall be numbered in consecutive series. Section 54 says every registration office shall prepare current index of contents of respective books. According to Section 55 Index No. 1 shall contain names of all persons executing and of all persons claiming under the document. Index No. II shall contain such particulars as mentioned in Section 21 of the Act. Index No. III shall contain the names and additions of all persons executing Will or Authority entered in Book No.3 and of executors and persons respectively appointed thereunder. Index No. IV shall contain the names of persons executing every document entered in Book No. 4. Section 57 then says subject to payment of prescribed fee, Book Nos. 1 and 2 and index relating. Book No. 1 shall be open to inspection by any person and copies of entries in such book shall be given to any person who applies for it subject to provision of Section 62. (b) Procedure On Admitting To Registration : Section 58 of the Act says about particulars to be endorsed on a document admitted to Registration and provides that every document admitted to registration (other than copy of decree or order or copy sent under Section 89 of Act) shall be endorsed following particulars:
(a) Signature of every person admitting execution of document and if such execution is admitted by any representative, assign or agent of any person, signature of such representative, assign or agent.
(b) Signature of any person examined in reference to such document.
(c) Fact of payment of money or delivery of goods etc. made in presence of Registering Officer in reference to execution of document.
(d) If any person admitting the execution of document but refuses to endorse the same, Registering Officer shall nevertheless register it but shall endorse a note of such refusal.Section 59 then provides that Registering Officer shall affix date and signature on all endorsements as made under Sections 52 and 58 relating to document. Section 60 says that after complying with provisions of Sections 34, 35, 58 and 59 as apply to a document presented for registration, Registering Officer shall endorse thereon a certificate containing word "Registered" with the serial No. and page of book in which document is copied in office. Such certificate shall be signed, sealed and dated by Registering Officer. Section 1 of Act provides as to copy of document admitted to registration in Book appropriated therefor. Section 62 then provides the procedure to be adopted by Registering Officer when document is presented in language unknown to Registering Officer. Section 63 says every Registering Officer has been empowered to administer oath to any person and to record the substance of his examination under the Act. (c) Special Duties Of Sub-registrar : Sections 64 and 65 of Act provide in this regard : When the immovable property comprised in a non-testamentary document is situated in more than one Sub- district under the same Registrar, the Sub-Registrar registering the document is under a duty to send the memorandum to every Sub- Registrar within whose sub-district any part of such property is situated. Similarly, when such immovable property is situated in more than one district, the Sub-Registrar shall send a copy alongwith the endorsement and certificate to the Registrar of every district in which any part of such property is situated. (d) Special Duties OF Registrar : Section 66 of Act says on registering any non-testamentary document relating to immovable property, Registrar shall forward memorandum of such document to each Sub- registrar subordinate to him in whose sub-district any part of property is situated. Section 67 says Registrar will, on any document being registered under Section 30(2), forward a copy of such document and of endorsement and certificate, to every Registrar within whose district any part of property to which document relates is situated. (e) Controlling Powers of Registrar and Inspector General : A Registrar has the powers of superintendence and control over the Sub- Registrars of his district. He has also been empowered to issue any order consistent with this Act in respect of any act or omission of any Sub- Registrar subordinate to him or in respect of the rectification of any error regarding the book or the office in which any document has been registered. The Inspector General shall exercise general superintendence over all the registration offices in the territories under the State Government. He has also been empowered to make Rules, with the approval of the State Government, consistent with this Act with respect to the matters stated in Section 69 of the Act.
(i) The day, hour and place of presentation and signature of every person presenting a document for registration shall be endorsed on every such document at the time of presenting it ;
(ii) A receipt for such document shall be given by the registering officer to the person presenting the same ; and
(iii) A document admitted to registration shall, without unnecessary delay, be copied in the book appropriate according to the order of its admission.(b) Duties and powers of the registering officers to allow inspection of books and indices. - Subject to the previous payment of the fees payable, the Book Nos. 1 and 2 and the indices relating to Book No. 1 shall be at the times, open to inspection by any person applying to inspect the same. Subject to the provisions of Section 62, copies of entries in Book No. 3 and in the Index relating to Book No. 3 shall be given to the persons executing the document to which such entries relate, or to their agents and, after the death of the executants (but not before) to any person applying for such copies. Subject to the provisions of Section 62, copies of entries in Book No. 4 and in the Index relating to Book No. 4 shall be given to any person executing or claiming under the documents to which such entries respectively refer or to his agent or representative. The requisite search for entries in books No. 3 and 4 shall be made only by the registering officer. All copies given shall be signed and sealed by the registering officer and shall be admissible for the purposes of proving the contents of the original documents (Section 57). Section 62. - Thus according to Section 62 when a document is presented for registration the endorsement and certificate respectively mentioned in Sections 59 and 60 shall be made on the original and for the purpose of making the copies and memoranda required by Sections 57, 64 and 65, the translation shall be treated as if it were the original.
(1) If the property is not situate within the sub-district or district of registering officer
(2) If the executant denies execution
(3) If the executant appears to registering officer to be a minor or an idiot or a lunatic
(4) If the executant is dead and his representative or assign denies the execution;
(5) If the document is written in language not understandable by the registering officer and which is not commonly used in district and document is not accompanied by true translation into language commonly used in the district
(6) If the document is presented more than 4 months after its execution.So in above-stated circumstances, Registering officer can refuse to register the document presented before him for registration. In such situation, Section 71 of Act says :-
(1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No. 2 and endorse the words "Registration refused" on the document ; and, on application made by any person executing or claiming under the document shall, without payment and unnecessary delay, give him a copy of the reason so recorded.
(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered."
(2). Application in case of refusal on the ground of denial of execution
(3). Suit in case of order of refusal by the Registrar(1) Appeal :- Upon refusal of sub-registrar to register a document presented for registration, appeal can be filled against order of refusal, however appeal does not lie where the order of refusal is passed on the ground of denial of execution. Section 72 of Act says :-
(1) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of order ; and the Registrar may reverse or alter such order.
(2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub-Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60 ; and such registration shall take effect as if the document had been registered when it was first duly presented for registration."So Section 72 provides for an appeal to Registrar from orders of sub- registrars refusing registration on a ground other than denial of execution. Period for filling appeal to Registrar is thirty days after making the order of refusal. (2) Application in case of refusal on the ground of denial of execution. - Section 73 of the Indian Registration Act provides for the remedy available to a person where registration has been refused on the ground of denial of execution. This remedy is a available only to those persons specified in this section. This section states that when a Sub-Registrar has refused to register a document on the ground that any person by whom it purports to be executed or his representative or assign denies its execution, any person claiming under such document or his representative, agent or assign may, within 30 days after the making of the order of refusal, to apply the Registrar to whom such Sub-Registrar as subordinate, in order to establish his right to have the document registered. The application should be in writing and accompanied with a copy of the reasons recorded. The statement in the application should be verified by the applicant in the manner required by law for the verification of plaints. On presenting on an application under Section 73, the Registrar will enquire -
(a) whether the document has been executed ;
(b) whether the requirements of law have been complied with on the part of the applicant so as to entitle the document to registration. (Section 74).(1) In case the Registrar finds that the document has been executed and the requirements of law have been complied with, he will order the document to be registered. (2) On receipt of such order the person claiming under the document should duly present the document before the registering officer for registration within 30 days, and he will register the document. (3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration. (4) The registrar may, for the purpose of any enquiry under Section 74, summon and enforce the attendance of witnesses, and compel them to give evidence, as if he were a civil court, and he may also direct, by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the C.P.C. But the Registrar can refuse to direct registration of the document under Section 72 or Section 75, in which case he will make an order of refusal and record the reasons for such order and on application made by any person executing or claiming under the document, will without unnecessary delay give him a copy of the reasons so recorded. No appeal lies from such order of refusal by the Registrar. (Section 76). (3). Suit in case of order of refusal by the Registrar. - Where the Registrar refuses to order the document to be registered under Section 72 or 76, any person claiming under such document or his representative, agent or assign may within 30 days after the making of the order of refusal institute in the civil courts within local limits of whose original jurisdiction, the office is situate in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office (Section 77 of Act).
(a) for the registration of document ;
(b) for searching the registers;
(c) for making or granting copies of reasons, entries or documents, before, on or after registration;
and of extra or additional fees payable -
(d) for every registration under section 30;
(e) for the issue of commissions;
(f) for filing translations;
(g) for attending at private residences;
(h) for the safe custody and return of documents; and
(i) for such other matters as appear to the State Government necessary to effect the purposes of this Act."Then Section 79 of Act provides that a table of fee, so payable shall be published in the official Gazette and copy thereof in English and the vernacular language of district shall be exposed in public view in every registration office. Thereafter Section 80 of Indian Registration Act says that all fees for the registration of documents, shall be payable on the presentation of such document.
"(1) The Inspector General shall have power from time to time, to make rules consistent with this Act -
(a) prescribing the manner in which and the terms subject to which persons who write documents outside the precincts of a registration office.
(b) prescribing the fees to be paid for such licence;
(c) declaring the conditions under which persons who writes documents outside the precincts of Registration offices without licence shall be deemed to be touts."Rules so framed shall be approved by State Government and then they shall be published in official Gazette and on publication shall have effect as if enacted in Registration Act.
"Every registering officer appointed under this Act and every person employed in his office for the purposes of this Act, who, being charged with the endorsing, copying, translating or depositing under its provisions endorses, copies, translates or registers such document in a manner which he knows or believes to be incorrect, intending thereby to cause on knowing it to be likely that he may thereby cause injury as defined in the Indian Penal Code to any person, shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both."(2) Penalty for Making False Statements, Delivering False Copies or Translations, False Personation and Abetment :- Section 82 of the Act says "Whoever -
(a) intentionally makes any false statement, whether on oath or not and whether it has been recorded or not, before any officer acting in execution of this Act, in any proceeding or enquiry under this Act; or
(b) intentionally delivers to a registering officer, in any proceeding under section 19 or section 21, a false copy or translation of document, or a false copy of a map or plan; or
(c) falsely personates another, and in such assumed character presents any document or makes any admission or statement, or causes any summons or commission to be issued, or does any other act in any proceeding or enquiry under this Act; or
(d) abets anything made punishable by this Act;shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both." So Section 82 of Indian Registration Act create substantive offence. It is pertinent to mention here that for prosecution for offence under Registration Act procedure as contemplated u/s 195 of Criminal Procedure Code, is not required to be invoked in view of provision of sub-section (2) of Section 195 Cr.P.C. In Hirday Narain Singh v. Emperor, AIR 1929 Pat. 500, it was observed that the false statement to be punishable u/s 82 must have been made before acting in execution of this Act." In King Emperor v. Tim Anug Graw, 3 L.B.R. 222 it was held that section 82 of the Registration Act having been enacted with a view to punish act which are not essential to be an offence of falsely personating a party under I.P.C. Where A intended to register a deed but was too ill to do so, and B who was known to A, personated A and had the deed registered in her name, it was held that in the absence of any thing to prove that it was intended to defraud any body A was not guilty of cheating by personation under section 419 of the Penal Code but an offence under section 82(c). Prosecution Under the Act - Section 83 of Indian Registration Act says
"(1) A prosecution for any offence under this Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permission of the Inspector-General, the Registrar or the Sub-Registrar, in whose territories, district or sub-district, as the case may be, the offence has been committed.
(2) Offences punishable under this Act shall be triable by any court or officer exercising powers not less than those of a Magistrate of the second class."So Section 83 says that where an offence comes to the knowledge of Registering Officer in his official capacity, a prosecution may be launched by or with the permission of any officer as mentioned in Section 83. If Registering Officer does not know in his official capacity that document produced before him is false or that person appearing before him is personating some other offence or any other offence under Act is committed which does not come to the knowledge of Registering officer, Section 83 does not prohibit a private person to bring it the knowledge of Registering Officer to initiate prosecution against guilty persons. In Nag Pan Caing v. King Emperor, AIR 1927 Rangoon 61 and in Emperor v. Mohd Mehndi, AIR 1934 All. 963, it has been held by the Rangoon and Allahabad High Courts that although the word `may' occurring in the section can not be read as `must', it has to be read in the context as having a mandatory character and that a prosecution for an offence under the Act coming to the knowledge of a Registering officer in his official capacity can not be commenced by a private person without the permission mentioned in the section. But Supreme Court in Dharma Deo Rai v. Ram Nagna Rai, AIR 1972 SC 928 while dissenting from above said decision has observed :-
"In our view, this reading of the section is inadmissible for the obvious reason that the Section 83, as we have said, provides only for one type of cases, namely cases in which the commission of an offence under the Act comes to the knowledge of the Registering officer in his official capacity and even there the language of the section is permissive and not mandatory. If the authorities mentioned in section 83 of the Act were to collude with the person guilty of an offence under section 82 of the Act, or if they fail to launch a prosecution against the Registering Officer for an offence under Section 81 of the Act, there would be a total bar to prosecution by a private person in case we accept the reasoning of the Rangoon and Allahabad High Courts.
"Documents (other than wills) remaining unclaimed in any registration office for a period exceeding two years may be destroyed."So section 85 exclude its application on wills, because of its peculiar importance and provides for destruction of other documents which have not been claimed by any body for period of 2 years of more. Ans. (b) As provided in Section 86 of the Indian Registration Act, registering officer is not liable to any suit, claim or demand by reason of anything done in good faith or in his official capacity. Though this section protects a registering officer in the same way as section 77, Penal Code protects a judge it does not make the registering officer a judge or a court. Ans. (c) Section 87 of the Indian Registration Act provides that nothing done in good faith pursuant to this Act by any registering officer shall be deemed invalid merely by reason of any defect in his appointment or procedure. Thus this section protects acts done by any registering officer in good faith but otherwise defective due to two facts -
(a) defect in the appointment of the registering officer, and
(b) defect in the procedure adopted by him.These two kinds of defects are curable under this section and do not render acts done in good faith invalid merely on these grounds.
(a) any officer of Government, or
(b) any Administrative General, official Trustee or official Assignee, or
(c) the Sheriff, Receiver or Registrar of a High Court, or
(d) the holder for the time being of such other public office as may be specified in a notification in the official Gazette issued in that behalf by the (State Government), to appear in person or by agent at any registration office in any proceeding connected with the registration of any instrument executed by him or in his favour in his official capacity, or to sign as provided in section 58.(2) Any instrument executed by or in favour of any officer of Government or any other person referred to in sub-section (1) may be presented for registration in such manner as may be prescribed by rules made under section 69. (3) The registering officer to whom any instrument is presented for registration under this section may, if he thinks fit, refer to any Secretary to State Government or to such officer of Government or other person referred to in sub-section (1) for information respecting the same and, on being satisfied of the execution thereof shall register the instrument.
(1) Document issued, received or attested by any officer engaged in making a settlement or revision of settlement to land revenue and which form part of the record of such settlement, or
(2) Documents and maps issued, received or authenticated by any officer engaged on behalf of Government in making or revising the survey of any land and which form part of record of such survey, or
(3) Documents which under law are filed periodically in any revenue office by patwaries or other officers charged with the preparation of village records, or
(4) Sanads, inam, title deeds and other documents purporting to be or to evidence grants or assignments by Government of land or of any interest in land, or
(5) Notice given under Section 74 or 76 of the Bombay Land Revenue Code, 1879, of relinquishment of occupancy by occupants of or of alienated land by holders of such land. All such documents and maps shall, for the purpose of Sections 48 and 49 be deemed to have been and to registered in accordance with the provisions of this Act.The above noted documents shall be open to the inspection of any person applying to inspect the same, subject to such rules and the previous payment of such fees as the State Government prescribes in this behalf, and subject to the same provisions, copies of such documents shall be given to all persons applying for such copies. [Section 91].