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Indian Registration Act: Practice Oriented

Property: Article, item or thing owned with the rights of possession, use, and enjoyment and which the owner can bestow, collateralize, encumber, mortgage, sell or transfer, and can exclude everyone else from it.

Immovable Property

[Sec.2(6)]

Movable Property

[Sec 2(9)]
Things which are affixed with the earth, only till when they are affixed. For ex: buildings, doors affixed in buildings etc. Timber: tree which has felled from earth or stopped taking sustenance from earth. Which can only be used after cutting for:
  1. Fuel
  2. Wood for furniture
Things which are embedded in the earth.
For ex: trees, shrubs etc.
Growing crops
Things which are movable but they are affixed in the earth permanently for the purpose of its working or for any of its principle purpose it needs to be affixed, it will become an immovable property. Grass because either it will be eaten by animals or used as a fuel by burning it.
Earnings from ferries or boats (which are movable) but benefits arising from it will be considered to be born out of immovable property. Any other property which is not an immovable property.

There are majorly two types of documents:

  1. Testamentary: Only wills which are covered under section 18.
  2. Non-testamentary: all other documents.
For example: gift, sale deed, lease deed etc.

Will

Purpose of making a will is to distribute your property as per your own wishes/desires, not to create any right in property during lifetime, to avoid future disputes.

A person make will instead of gift or sale deed because all other documents of transfer will transfer the title immediately but transfer of title in will can take place only after the death of the testator in case of will, so that the testator can enjoy his property according to his wish.

Points to remember while making a will:

  • Will become operative after the death of the testator. Before the death of the testator, will have no authority, no operation.
  • Testator is the person who testifies the will.
  • Executor: the person who will execute/divide/ distribute the property if any dispute arises after the death of the testator.
  • Executor is not mandatory.
  • If the executor becomes insufficient of performing his duties whether voluntarily or involuntarily, then court can appoint administrator, who will perform all the duties of executor.
  • If the executor is one of the beneficiaries, then he has to either leave the benefit or leave the title of executor. This is to avoid biasness, that the executor may obtain more benefits being a beneficiary also.
  • There is no requirement and limitation of registration of wills; it can also be registered even after the death of the testator.
  • 2 attesting witnesses are required for executing a will. It is not necessary for the attesting witnesses to know the contents of the will.
  • In metropolitan cities, probate of will is not mandatory. Probate: Suit for authorization of wills.
  • Mutation can be solely done on the basis of unregistered will.
  • If there are more than one will, the last one is going to prevail, whether registered or not. Because it is assumed that a person can dispose of his property at anytime anywhere.
  • If in case of registered will, a certificate of doctor about mental and physical condition is attached then, question on the condition of tester while making the will, may not be considered.
  • If testator don’t want to disclose the contents of the will to anyone, he can apply to registrar, that this is his last will and the registrar will keep it in a fire proof box after super scribing it and the executer or legal representatives, after the death of the testator, can apply to the registrar to give a copy of will and after finding the actual LR’s or Beneficiaries of the will, the registrar will open the fire proof box and supply the copy and redeposit the original copy in the fire proof box.
  • Sec. 68 of Indian Evidence Act says that only one witness is sufficient to prove the will.
  • Section 63 of Indian Succession Act describes the procedure for making a valid will i.e. it shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will (Thumb impression) or has received from the testator a personal acknowledgement of his sign/thumb impression and each of the witnesses shall sign in the presence of testator, but it shall not be necessary that more than one witness be present at the same time.
  • Will can be submitted to registrar even without registration. After registration (if registered) it will become a public document and can be inspected by any person after the death of the testator u/s 57(2).
  • Sec. 68 of Indian Evidence Act, 1872 says that if a document is required by the law to be attested, at least one witness is required to prove the execution of will.
  • If both the witnesses have died, then family members of any witness can verify his signature/thumb impression.
  • If no family member of any witness is present then any person who in his regular course of business has been acquainted with the signature/ thumb impression of that witness can verify the same.
  • Wills are not required to be registered under any legislation.
  • If special cause is shown, deposition and registration of will can be done at the residence also u/s 31. Also some persons are exempted from appearance at registration office u/s 38 namely:
    i) A person who by the reason of bodily infirmity
    ii) A person in jail
    iii) Persons exempted by law for ex: President etc.

Gifts

General provisions relating to gifts:

  • Gift can be of both movable and immovable property.
  • Not compulsory registration in movable property, but mandatory in immovable property.
  • There must be a donor and a donee.
  • There must be offer and acceptance.
  • Acceptance must be in the lifetime of the donor.
  • If the gift is not accepted by the donee, it becomes void.
  • Although minor is incompetent to gift but he can through guardian.
  • No consideration in gift.
  • 2 attesting witnesses required.
  • Contents of the documents not necessary to disclose.
  • In case of blood relations, there are some provisions, where they can get rebate in taxes.
  • If gift is given to unregistered institute/society/association it is void, because unregistered institute /society /association is not a person according to legislation.
  • If trust is registered, then there is no need of gift to be registered.
  • Donee can get the gift registered even after the death of the donor according to section 40.
  • Onerous Gift: Where liability on property is more than its actual value, therefore acceptance is mandatory.

Objectives Of Section 17 i.e. Compulsory Registration

  • No immovable property having value of more than Rs.100 can be transferred without registration.
  • Gift of any value even below Rs.100 in respect of immovable property can be made only by registered document.
  • State gets revenue when the documents are registered.
  • The documents if registered become public documents and can be inspected by any person.
  • The chances of fraud, misrepresentation are reduced.
  • The person who gets the documents registered and the witnesses thereof are required to produce their identity card so that the document if registered has to be treated as registered document.
  • In case of dispute the presumption flows in favor of registered document, unless the contrary is proved.
  • In case of immovable properties, the purchaser can verify the title of property by inspecting documents of property.
  • In case of mortgage the title of the property can be verified before the grant of loan, to know the registered owner.

Registration Required For:

  • Document of transfer of any immovable property having value more than Rs.100.(Sale Deed)
  • Gift deed of any immovable property.
  • Any decree or order creating any right, title or interest to any immovable property of value more than Rs.100.
  • Mortgage by title deeds, if title deed is deposited and loan against it is given on the same date.
  • All other mortgages. (For example: simple mortgage, conditional mortgage, usufructuary mortgage, anomalous mortgage etc.)
  • Compromise Deed in respect of an immovable property.
  • Lease deed of any immovable property having value of more than Rs. 100. (R/W Sec. 107 of T.P.A).
  • Partition deed made by a revenue officer.

Fundamentals of Optional Registration Under Section 18:

  • Always presumption unless rebutted and proved, if documents u/s 18 are registered.
  • This presumption is rebuttable because registration can be done by many aspects like coercion, undue influence, fraud, fear etc which has to be prove by other party against genuiness of registered document.
  • Presumption is made that person coming for registration was of sound mind.
  • Presumption is that government records have a continuance in terms of date and time and the document registered is registered on the date mentioned on it.
  • Witnesses present were those witnesses who are mentioned in the registered document.
  • Persons making registration were those who are legally entitled to have that registration done.
  • Party coming for registration of a document which falls under section 18 will have some extra benefits over a party not opting for registration.
  • If no penalty is imposed on the registered documents, then it will be presumed that document is registered under 4 months from the date of execution.
  • After registration the document will become public document and can be proved by certified copies.
  • One additional witness as registrar can also be called in case of dispute.
  • Registered document will also authenticate that the contents of the documents were mutually agreed by the parties in a sound state.
  • All these points are presumption of genuiness of the document and can be raised in case of any dispute, also these presumptions are rebuttable but the onus to prove will be on the other party.

Registration Not Required For:

  • Mortgage by deposit of title deed, if deed is deposited on different date & loan has been given on different date.
  • Lease of any immovable property for a term less than one year. (R/W section 107 T.P.A)
  • If a partition is executed in a family orally, then at a subsequent event, if the memorandum of partition has been made, then it is need not to be registered.
  • Document of transfer of any immovable property having value of Rs. 100 or less.
  • Document of contract of transfer of any immovable property. (For example: Agreement to sell)
  • Any decree or order creating any right, title or interest to any immovable property of value Rs.100 or less.
  • Documents of transfer of any movable property.
  • Adoption Deeds.
  • License deed because it does create any estate or interest in the property. It only confers legality on an act which would otherwise become unlawful.
  • Wills.

Limitation
It is not necessary that registration should be done on the same day the document is executed.
There is a time of 4 months for a document to be presented for registration from the date of its execution. (Sec. 23)
But presentation can be extended to 4 months, but with a fine which may extend to 10 times of the registration fees. (Sec. 25)

The appearance of the persons can be filed: (Sec. 34)

  1. After the expiration of the period mentioned in Sec.23, but only with fine which may be extended to 10 times of the registration fee mentioned in proviso of sec. 34.
  2. Before the expiration of period mentioned in sec. 25, with fine mentioned in sec. 25 along with fine mentioned in proviso of sec. 34.
U/s 70 only inspector general has the power to remit wholly or in part the fine if any levied u/s 25 or 34.

After 8 months has been elapsed, the document can be registered only by the order of the court, by showing reasonable cause by filing a suit in the court.

If the document is registered, then it will be considered to have come in force from the date of execution. Any liability like rents, electricity bills etc will be paid by the buyer from the date of execution. 

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