Most of the instruments viz. creating, declaring, assigning, limiting or extinguishing any right, title or interest in immovable property require compulsory registration, as enumerated under the Indian Registration Act, 1908.
For the documents which require mandatory registration certain procedures are prescribed in the Statute. They are briefly discussed as under:-
Generally, documents will be drafted in the local language or in English. If the document is in a language which the Registering authority has no knowledge or does not understand, then the document has to be translated into the language known to the Registering Authority.
After the translation, if any interlineations, blanks, erasures and alterations are found in the document, the authority may ask for attestation of the same.
Further, it is also necessary that description of the property has to be clearly mentioned for identification of the property and to ascertain the actual location where the property is situated. If necessary, it may require production of map or plan.
In certain deeds, date of execution and date of registration may vary. This is because the Act stipulates time limit for registration of the documents. For the non-testamentary documents such as Sale Deed, Gift Deed, Mortgage Deed, etc, the time limit within which the document has to be registered is four months from the date of execution. Orders passed by the Court do not require registration. Decrees drawn in terms of Compromise Petition wherein shares of the parties are allotted by metes and bounds require registration. Even for registration of the court decree, four months time limit is stipulated under the Act. If the document is executed by all or any of the parties residing abroad, the same can be accepted for registration within four months from the date of receipt of the document in India.
However, in case of doubt as to the validity of registration, the document may be re-registered within four months from the date when it is noticed that the registration is invalid or of doubtful validity.
In case of Testamentary instrument, that is, Will, registration is optional and time limit is not prescribed. It can be registered any time before the death of the Testator. However, it is advisable to register the same as soon as possible in order to avoid disputes about the genuineness of its execution.
Where a document is executed by several persons at different times, it should be presented within four months from the date of the latest execution for registration.
If for unavoidable reasons, the document could not be presented for registration within four months from the date of execution, registration can be done on payment of fine prescribed under the Act, which will be up to ten times the amount to be paid as registration fee.
Jurisdictional Sub-Registrar Offices:
Generally documents have to be presented for registration only at the Sub-Registrar's office within whose jurisdiction the immovable property is situated. However, in certain exceptional cases, documents may be presented for registration with the Registrar who has been conferred with the power to register the documents. In fact, Sub-Registrars have been vested with the special power to register the document at the residence or office of the Executant or to accept deposit of Will.
Presentation of the document :
Documents which require mandatory registration has to be presented in the concerned Sub-Registrar Office for registration by the Executant or person claiming under the Decree. However, in certain cases, the representatives of the Executant, duly authorized under Power of Attorney, can also execute the same on behalf of the Executant. A power of Attorney holder can execute the document, representing the Principal only if an authority has been vested in the Agent under Power of Attorney, which is authenticated by the Registering authority within whose jurisdiction the Principal resides.
If the Principal does not reside in India, then the Power of Attorney should be executed before and authenticated by a Notary Public or any Court, Judge, Magistrate, Indian Consul or Vice-Consul or the Representative of Central Government. However, such an execution of Power of Attorney can be proved by producing the same at the concerned Sub-Registrar's Office.
When a document has been executed by more than one executant and after execution of the same, one of the executants refrain from attending the concerned Sub-Registrar's Office for registration, then the remaining executants can compel attendance of the executant reluctant to be present before the registering authority through the process of law.
However, in case of registration of Will, the same may be presented by the Testator and after his death, by the Executor, for registration.
A Will may be deposited with the Sub-Registrar in a sealed cover and such deposit may be done through an agent. After the death of the Testator, the sealed envelope will be opened and the contents recorded in the relevant register maintained in the Sub-Registrar's Office. The Original copy of the 'Will' will be in the custody of the Sub-Registrar.
Effect of Registration
Any instrument of transfer registered in the concerned Sub-Registrar's office will be considered as a valid transfer under the Act. The document shall operate from the time stipulated in the instrument and not from the date of registration.
Generally, a written document will prevail over the oral agreement, unless the physical or constructive possession of the property is handed over to the Agreement-Holder. In such a case, subsequent written agreement will not override the oral agreement.
Documents which are not registered, apart from illegality as to the transfer, cannot be produced as evidence in any transaction affecting such property.
An exception to this is the Agreement of Sale which does not require registration but can be produced in a suit for specific performance seeking execution of sale deed.
After accepting the document for registration, the Registering authority shall endorse the document regarding affixation of the signature of the Executant, payment of consideration, date and other relevant particulars. If registration is declined by either of the party, the same shall be endorsed on the document itself.
Apart from this, the Registering authority shall also endorse on the Document the registration number, Book number, pages, volume or CD number and affix the seal of the office of the Sub-Registrar. Such a Certificate shall be copied in the Register meant for the purpose and copy of the map or plan, if any, shall be filed in Book No.1.
Thereafter, the registered document will be returned to the person who has presented the same for registration or to his representatives.
Fees of Registration:
Fees charged for the registration or searching the register are prescribed by State Governments through Notifications.
For executing an instrument, the first and the foremost aspect to be considered is the nature of the right intended to be transferred.
If the document falls within the category of the documents which warrants compulsory registration, any avoidance of registration of such document would invalidate the document itself.