land registration act, 1908 anuja g. dhopade – 060105 kirthana m. - 060116

LAND REGISTRATION ACT, 1908LAND REGISTRATION ACT, 1908Anuja G. Dhopade – 060105

Kirthana M. - 060116

LANDLAND REGISTRATION ACT, 1908REGISTRATION ACT, 1908

The Land registration Act extends to the whole of India, except the State of Jammu and Kashmir: Provided that the State Government may exclude any districts or tracts of country from its operation.

The main purpose for which the Act was designed was to ensure information about all deals concerning land so that correct land records could be maintained.

The Act is used for proper recording of transactions relating to other immovable property also.

The Act provides for registration of other documents also, which can give these documents more authenticity. Registering authorities have been provided in all the districts for this purpose.

This registration is entirely different from registration of charge done by Registrar of Companies under Companies Act.


Definitions, In this Act, unless there is anything repugnant in the subject or context-

“addition” means the place of residence, and the profession, trade, rank and title of a person described, and in the case of an Indian his father’s name, or where he is usually described as the son of his mother, then his mother’s name.

“district ”and “subdistrict” respectively mean a district and subdistrict formed under this Act.

“District court” includes the High Court in its ordinary original civil jurisdiction

“endorsement” and “endorsed” include and apply to an entry in writing by Registering Officer on a rider or covering slip to any document tendered for registration under this Act.

“immovable property” includes land, building, hereditary allowances, right to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth but not standing timber, growing crops nor grass.

“India” means the territory of India excluding the State of Jammu and Kashmir.


“lease” includes a counterpart, kabuliyat, an undertaking to cultivate or occupy, and an agreement to lease.

“minor” means a person who, according to the personal law to which he is subject, has not attained majority.

“movable property” includes standing timber, growing crops and grass and property to every other description, except immovable property.

“representative” includes the guardian of a minor and the committee or other legal curator of a lunatic.


Meaning of “Document”

The term "Document" has not been defined under the Registration Act, 1908. The object clause of the Registration Act, 1908 merely states that the Act was promulgated to consolidate the enactments relating to the registration of documents. We will therefore have to refer to various other relevant Acts in order to understand the term "Document“

Thus the word "Document", under the Registration Act, has been used in a wide sense, and it includes instruments, deeds, agreements etc.

Meaning of Registration

Registration refers to the recording of the contents of a document with a Registering Officer appointed by the State Government. The Registering Officer performs the important function of preservation of copies of the original document.


Object of Registration

The object of registration is the conservation of evidence, assurance of title, publicity of documents and prevention of fraud. Registration ensures and safeguards the interest of an intending purchaser.

All transactions with reference to any particular property are recorded in a register maintained by an officer appointed by the State Government, so that the persons dealing with that property have notice of the same.

At the Registrar's office, an intending purchaser is immediately cautioned if the property in question has been already registered.

Registration helps an intending purchaser to know if the title deeds of a particular property have been deposited with any person or a financial institution for the purpose of obtaining an advance against the security of that property.


Compulsory Registration of Documents

The act lays down different categories of documents for which registration is compulsory. The documents relating to the following transactions of immovable properties are required to be compulsorily registered:

•instruments of gift of immovable property. •lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent. •Instruments which create or extinguish any right or title to or in an immovable property of a value of more than one hundred rupees.

Optional Registration of Documents

The following documents may be registered under this Act, namely:

• Instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title • leases of immovable property for any term not exceeding one year• wills


Regulation of Registration Act

The Act states that the State Government has been empowered to appoint an officer of the rank of Inspector General of Registration with a view to perform all the functions as laid down.

The Act states that the State Government has also been empowered to form districts and sub-districts to implement the Act, along with further powers to revise the limits of these districts and sub-districts.

It is obligatory on the part of the State Government to notify, through the official gazette, about the formation of the districts and sub-districts and their limits; and every alteration of such limits.

It states that the State Government may appoint any appropriate person whether he is a public officer or not, to be the Registrar of several districts or to be the Sub-Registrar of several sub-districts.

The State Government shall in every district, create the office of a Registrar, and in every sub-district, an office of a Sub-Registrar or of the Joint Sub-Registrars.


Time of presentation for registration

Document should be submitted for registration within 4 months from date of execution .

Decree or order of Court can be submitted within four months from the day it becomes final. If document is executed by several persons at different times, it may be presented for registration within 4 months from date of each execution.

If a document is executed abroad by some of the parties, it can be presented for registration within four months after its arrival in India .

RE-REGISTRATION –

If a person finds that a document has been filed for registration by a person who is not empowered to do so, he can present the document for re-registration within 4 months from the date he became aware of the fact that registration of document is invalid.


Place of Registration

Document relating to immovable property should be registered in the office of Sub-Registrar of sub-district within which the whole or some portion of property is situated.

Other document can be registered in the office of Sub-Registrar where all persons executing the document desire it to be registered. A Registrar can accept a document which is registerable with sub-registrar who is subordinate to him .

However, in special case, the officer may attend residence of any person to accept a document or will .

All persons executing the document or their representatives, assigns or agents holding power of attorney must appear before registering officer .

If some of the persons are unable to appear within 4 months, further time upto additional 4 months can be given on payment of fine up to 10 times the proper registration fee.

If document relates to transfer of ownership of immovable property, passport size photograph and finger prints of each buyer and seller of such property shall be affixed to document. The Registrar is required to ensure that these are endorsed on the document.


Procedure at the time of lodging a document for registration

For registration of any instrument, the original document which should be typed/printed on one side only along with two photocopies of the original have to be submitted to the Registering Officer.

The copies are required to be photocopied only on one side of the paper and there has to be a butter paper between the two photocopied papers. This is done so as to prevent the typed matter from getting spoilt.

The registration procedure also requires the presence of two witnesses and the payment of the appropriate registration fees.

On completion of the procedure, a receipt bearing a distinct serial number is issued. The following requirements for completing the registration are usually stated on the receipt:

•Market Value of the property; •Income-tax clearance; i.e., N.O.C. under Section 269 UL (3) issued by the Appropriate Authority constituted under Chapter XX-C of the Income Tax Act, 1961 if the same is applicable; •Certificate under section 230-A of the Income Tax Act, 1961 granted to the Transferor by the assessing officer of the Transferor; •Urban Land Ceiling declarations of the transferor/s and the transferee/s.


Language of Document

The language of a document presented for registration should be in a language commonly used in the district existing in the State.

The Registering Officer is empowered to refuse to register a document if it is presented for registration in a language which the Registering Officer does not understand and which is not commonly used in the district unless the document is accompanied by a true translation into a language commonly used in the district and also by a true copy.

Description and maps or plans of the immovable property

The description of the property is mentioned in a separate schedule, preferably with maps or plans, so as to enable the Registering Authority to make notes in the books to be preserved.

The description should mention the area of the property, the number of the property, the boundaries of the property, the streets on which it is situated, along with the name of the Village, Taluka, District.

The City Survey Number, with Hissa Number if any, should also be mentioned. It is the discretion of the registering officer to refuse to accept a document if the description of the immovable property is not sufficient to identify the property correctly.


Instruments for which registration is optional

The Act lays down the instruments of which registration is optional. Some of these instruments are listed as under:

•Instruments (other than instruments of gifts and wills) relating to the transfer of an immovable property, the value of which is less than one hundred rupees.

•Instruments acknowledging the receipt or payment of any consideration.

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

•Instruments transferring any decree or order of a court where the subject matter of such decree or order is an immovable property, the value of which is less than one hundred rupees.

•Instruments (other than wills) relating to transfer of movable property.

• Wills.


Registration of a document compulsory under the provisions of The Maharashtra Ownership Flat Act, 1963

The Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963, it is laid down that, notwithstanding the provisions of any other laws, the agreement in respect of flats to be sold by the owner/ promoter/developer to the flat purchaser requires compulsorily to be registered under The Registration Act.

Registration under the provisions of The Maharashtra Apartments' Ownership Act, 1970Under Section 13 of The Maharashtra Apartment Ownership Act, 1970 it is necessary on the part of the owner/owners to execute a declaration with regard to description of the land on which the building and improvements are to be located, including the number of storeys, basements, number of each apartment, area of each apartment, number of rooms and immediate common area etc. along with a set of floor plans of the building showing the layout, location, and dimensions of the appurtenance and bearing the verified statement of an architect certifying that the same is an accurate copy of the floor plans of the building as filed with and approved by the local authority within whose jurisdiction the building is located.

Any person acquiring any apartment or any apartment owner shall be deemed to have notice of the Declaration and of the Deed of Apartments as from the date of its registration under this section.


Necessity of Registration of an agreement to transfer a flat after the registration of a co-operative society

After the registration of a co-operative society the purchasers of various premises become members and shareholders of such a society, and as such the members are thereby governed under the provisions of The Maharashtra Co operative Societies Act, 1960.

The Registration Act, 1908 do not apply to any instrument relating to shares in a society although the assets of the society consist in whole or in part of immovable property.

In a registered society, the member actually transfers his right in the shares held by him and consequently transfers the premises in his use, occupation and possession. Thus, it is not necessary to register such an agreement.

Consequences of Non-Registration of a document that should have been registered

If a document of which registration is compulsory under Section 17 of Registration Act, has not been registered, it cannot be produced as an evidence in a court of law.


Time permitted for registration of a document

The 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.

The term "execution" means signing of the agreement. Under the present rules and regulations, all agreements in respect of a transfer of a premise or an immovable property have to be duly stamped, under the provisions of the Bombay Stamp Act, 1958 before the document is presented for registration.

Provisions under the Act for the registration of a document after the expiry of the prescribed period of four months

If a document is not presented for registration within the prescribed time period of four months, and if in such a case the delay in presentation of the document does not exceed a subsequent period of four months, then the parties to the agreement can apply to the Registrar, who may direct that on payment of a fine not exceeding ten times the proper registration fees, such a document should be admitted for registration.


Delay in Registration - provision for additional four months

The practice followed in such an event is that the parties to the document execute a Deed of Confirmation confirming that the main deed is valid and binding upon them.

By way of such a deed the transferor/s also confirm/s that he/they hold/s no right, title and interest in the property and the same is being transferred to the transferee/s.

A copy of the main deed is annexed to this Deed of Confirmation. This is the only manner in which the lapse in registration can be rectified.

Document relating to an immovable property in India be executed out of India

If a document purporting to have been executed by all or any of the parties out of India is presented for registration within the prescribed time, the Registering Officer may, on payment of proper registration fee, accept such document for registration if he is satisfied that:

•the instrument was executed out of India. •the instrument has been presented for registration within four months after its arrival in India.


Cancellation Deed

The cancellation of a duly executed and registered document by mutual consent may arise in some circumstances. In that event, the Deed of Cancellation will also have to be registered.

At the same time no document can be canceled unless all the parties to it have mutually agreed to the cancellation.

Deed of Rectification

If the main document/agreement is registered, then in that event it is always necessary to register the Deed of Rectification too.

Interlineations, blanks, erasures or alterations in a document

The persons executing the document should attest with their signatures or initials such interlineations, blanks, erasures or alterations.

While registering such a document, it is the duty of the Registering Officer to make a note of any such interlineations, blank, erasure or alteration in the register.


Power of Registering Officer to make any enquiry about any person purporting to have executed the document

The Registering Officer is empowered to enquire whether or not such a document was executed by the person by whom it purports to have been executed. In order to satisfy himself, the Registering Officer may ask the person appearing before him to prove his identity. In the case of any person appearing as a representative or agent, the Registrar may ask for relevant documents which show that he has the right to appear on behalf of his Principal.

After carrying out such an enquiry, the Registering Officer is entitled to refuse the registration of a document if he is not satisfied with his findings.

Registering Officer can examine any person presenting document for registrationBefore registering the document, the Registering Officer may, in order to satisfy himself examine the persons executing the document.

If any person by whom the document purporting to be executed appears to the Registering Officer to be a minor or an idiot or a lunatic, or if a person by whom the document purporting to be executed is dead and his representative or assign denies its execution, the Registering Officer can refuse to register such a document and record his reasons for refusal.


Remedy to a person wishing to register a document which has been refused by the Registrar

The person wishing to register the same should, within 30 days from the date of refusal, appeal to the Registrar to whom such a Sub-Registrar is subordinate, in order to establish his right to have the document registered.

The Registrar may enquire whether the document has been executed and whether the requirements of the law currently in force have been complied with on the part of the applicant or the person presenting the document for registration, as the case may be, so as to admit the document for registration.

The Registrar is empowered to issue summons to enforce the attendance of witnesses and compel them to give evidence as if he were a Civil Court. As per Section 75(1) of the Act, if the Registrar finds that the document has been executed and that the said requirement had been complied with he can order for registration of the document.

As per Section 77 of the Act, when the Registrar refuses to order the document to be registered, any person claiming under such a document or his representative, assignee or agent may within 30 days after making the order of refusal institute a suit in the proper Civil Court for a decree directing the document to be registered.


The procedure on admitting a document to registration

If all the persons executing the document appear personally before the officer and/or are personally known to him or if he is otherwise satisfied that they are the persons they represent themselves to be and if they all admit the execution of the document.

The Registering Officer should register the document as required under Section 58 of the said Act. He should endorse the following particulars, namely:

•The signature and admission of every person admitting the execution of the document in person or by his representative, assign or agent.•The signature and admission of every person examined in reference to such a document.•Any payment of money or delivery of goods made in the presence of the Registering Officer in reference to the execution of the document and any admission or receipt of consideration made in his presence in reference to such execution.

If any person admitting the execution of a document refuses to endorse the same, the Registering Officer nevertheless is empowered to register such a document but he should endorse a note of such a refusal and as required under Section 59 of the Act, as he should affix the date and his signature to all endorsements made.


After completion of all formalities related to registration, the Registering Officer shall endorse on the document a certificate containing the word "Registered" together with the number and page of the book in which the document has been copied.

Later, the endorsements and certificate shall thereupon be copied into the margin of the Register book. The copy of maps on plans if any, shall be filed in Book No.1.

The registration of the document is then deemed to be completed and the document is returned to the person who presented the same for registration or to such other person if any, who has been nominated in writing in that behalf on the receipt mentioned in Section 52 of the Act.

However, such original documents are returned by post or by hand delivery only after the proper procedure for the preservation of the original document has been completed by the Registration Authorities.

Documents unclaimed from the Registrar for a very long period of time. The Registration Act, 1908 states that all documents (other than Wills) remaining unclaimed in any registration office for a period exceeding two years may be destroyed.


Power of Attorney

A Power of Attorney is a document which empowers a specific person to act on behalf of the person who is executing the same. It also includes any document by which a person is authorized to appear and act on behalf of a person who is executing the power of attorney.

A power of attorney may also be given by a person to another to appear before any Court, Tribunal or Authority or before a Co-operative Society or any Body or Association.

Types of Power of AttorneyThere are two types of Power of Attorney, namely: General Power of Attorney and Special Power of Attorney

General Power of AttorneyThis type of a Power of Attorney gives general powers to the person in whose favor the document is executed.

The person who is given the powers is called a "Constituted Attorney" and he is authorized to perform all kinds of acts and to execute any document on behalf of the person who has so executed that document.


Special Power of Attorney

Such a Power of Attorney gives the person, power/s only for specified act/s or transactions. In this case the power has to be strictly adhered to and the Constituted Attorney cannot do anything for which he is not duly empowered by the Power of Attorney.

Necessity of a Power of Attorney

A Power of Attorney is generally executed when a person wants to authorize someone to carry out any activity pertaining to his property which he would have undertaken if he would be personally capable of doing the same.

It is an authorization, which confers powers akin to that of the Principal on the person for a temporary period of time. If a person wants to present a document for registration at the proper registration office and if, for some reason he cannot be present, he may do so through his representative who is duly authorized by a Power of Attorney which is executed and authenticated in the prescribed manner.


Power of Attorney to be authenticated by Sub-Registrar / Registrar where the principal resides

As per Section 33(a) of the Registration Act, 1908, if the principal resides in any part of India where the Registration Act is in force at the time of executing the Power of Attorney, the power of attorney has to be executed before and authenticated by the Registrar or Sub-Registrar within whose District or Sub-district the Principal resides.

Execution of Power of Attorney in a case when the principal resides in any part of India where the Act is not in force

As per Section 33(b) of the Registration Act, 1908, if the principal at the time of executing the Power of Attorney resides in any part of India where the Act is not in force, the power of attorney is required to be executed before and authenticated by any Magistrate.

Execution of Power of Attorney, if the principal at the time of its execution does not reside in India

As per Section 33(c) of the Registration Act, 1908, if the principal, at the time of executing the Power of Attorney does not resides in India, then the Power of Attorney has to be executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or a representative of the Central Government in the country where the principal resides.


Persons exempted from being present at any registration office for the purpose of admitting any document

As per Section 38 of the Registration Act, 1908, the following persons are exempted from attending the office of the Registrar for admitting any document:

•Persons, who are physically incapacitated due to some infirmity and who will have to take too much of a risk or serious inconvenience in order to be present. •Persons who are in jail under civil or criminal process. •Persons who are exempt by law from making personal appearance in Court.

Attestation of a Power of Attorney by a Registrar

The Registrar or the Sub-Registrar or the Magistrate, must first satisfy himself that the Power of Attorney has been voluntarily executed by the Principal.

Only after he is satisfied as regards the same, can he attest a Power of Attorney. If he is not satisfied as to the genuineness of the Power of Attorney, then he has the authority to get evidence as to the voluntary nature of the execution.


These appeals involve a pure question of law as to whether an award by which residue assets of a partnership firm are distributed amongst the partners on dissolution of the partnership firm requires registration under Section 17 of the Registration Act, 1908?

Briefly the facts are that a partnership firm was constituted comprising of four persons belonging to the same family. Disputes and differences arose between the partners which were ultimately referred to arbitration.

The award was challenged by way of objections filed under Section 30 of the Arbitration Act, 1940 by some of the partners. The objection petition was contested by the other partners who prayed that the award be made a rule of the Court.

The grounds of challenge to the award included misconduct on the part of the arbitrators as well as another ground that the award required registration under Section 17 of the Registration Act.

The trial Court accepted both the objections holding that there was misconduct on the part of the arbitrators as also that the award was required to be compulsorily registered and since it was not registered it was inadmissible in evidence.

CASE NO : Appeal (civil) 5680-81 of 1994 PETITIONER: N. Khadervali Saheb (Dead)RESPONDENT: N. Gudu Sahib(Dead) and Ors. DATE OF JUDGMENT: 05/02/2003


By the award the arbitrators have distributed the assets of the dissolved firm between the partners in accordance with their respective shares in the partnership.

The real question for consideration is whether such an award amounts to creation of or transfer of any fresh rights in movable or immovable properties so as to bring it within the ambit of Section 17 of the Registration Act?

A perusal of the award shows that it is simply a case of distribution of assets of the dissolved firm amongst the partners themselves. A partnership firm is not an independent legal entity, the partners are the real owners of the assets of the partnership firm.

The distribution of assets may be done either by way of an arbitration award or by mutual settlement between the partners themselves. The document which records the settlement in this case is an award which does not require registration under Section 17 of the Registration Act since the document does not transfer or assign interest in any asset.

This Court took the view that the property falling to the share of the partner on distribution of the residue would naturally belong to him exclusively "but since in the eye of law it is money and not an immovable property there is no question of

registration under Section 17 of the Registration Act."


It was further observed "even if one looks at the award as allocating certain immovable property since there is no transfer, no partition or extinguishment of any right therein

There is no question of application of Section 17(1) of the Registration Act." As observed in the above case, in the present case also we are satisfied that the award seeks to distribute the residue after settlement of accounts on dissolution, while distributing their residue the arbitrators allocated the properties to the partners. The award in such circumstances did not require registration under Section 17 (1) of the Registration Act.