Registration of documents means the act of noting down or recording the contents in a document with the relevant authority and preserving copies of the original document. Registration is done for maintaining a record of the documents, for evidentiary value, to prevent fraud and for establishing the rights and duties arising from the property registered. Under the Transfer of Property Act 1882, it is material to sufficiently register, stamp and attests the instruments to avoid future disputes. Hence the Registration Act along with the Transfer of Property Act deals with the manner in which transfers of immovable property can be effected legally. Transfer of property can take various forms that are sale, lease, mortgage, actionable claim, gift, and exchange.[i]
Meaning of Instrument
The instrument is defined as a document in which any right, title, interest is or purports to be created, transferred, limited, extended, extinguished or recorded.
Attestation
Under section 3 of Transfer of Property Act 1882, attestation means when an instrument is executed in the presence of two or more witnesses and such witnesses have seen the executant or some other person sign his mark on the instrument or the witness has received a personal acknowledgment from the executant or another person of his signature or mark. To attest means to sign and witness the execution of an instrument. The presence of two or more attesting witnesses is necessary however the presence of both at the same time is not necessary.[ii]
Kumar Harish Chandra and another v. Bansidhar Mohanty and Others[iii], the Supreme Court held that the party to the instrument that is executed cannot be a valid attesting witness. That is either party cannot attest its own signature or mark.
Compulsory Registration under section 17 of the Registration Act 1908
The following documents have to be registered compulsorily with the relevant authority-
a. Instruments of the gift of immovable property
KalyanaSundram v. Karuppa: In this case, the court held that registration is a necessity for the enforcement of a gift of immovable property, however, it does not suspend the gift until registration actually takes place, when the instrument of gift has been handed over by the donor to the donee and accepted by him, the donor has done everything in his power to validly make the donation and to make it effective. If the gift deed is presented by a person having a necessary interest within the time prescribed, the Registrar must register the instrument. Neither death of the party nor the express revocation by the donor is a valid ground for refusing registration, provided other conditions are complied with.
b. Other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish whether in present or future any right, title of interest whether vested or contingent of the value of one hundred rupees and upwards.
c. Non-testamentary instruments which acknowledge the receipt or payment of any consideration.
d. A lease of immovable property is compulsorily registrable if the lease is from year to year, for a term exceeding one year, if it reserves a yearly rent.
Under Section 107 of the Transfer of Property Act, a lease of immovable property that is for a term exceeding one year or for a year to year basis or reserving a year can be executed only by a registered instrument.
A transfer of a decree or order of a court or any award when such decree or order or award operates to create, declare, assign, limit or extinguish any interest of the value of rupees hundred and upwards in immovable property, requires registration.[iv]
However, under section 18 registration of the following instruments is optional –
- Instruments other than wills and gifts of a value less than rupees hundred.
- Instruments acknowledging the receipt or payment of any consideration of value less than one hundred to or in immovable property.
- Leases of immovable property not exceeding one year
- Instruments transferring or assigning any decree or order of a court of value less than one hundred rupees.
- Instruments pertaining to movable property
- Wills [v]
Consequences of non-registration of instruments under section 17
Under section 49 an instrument which requires compulsory registration fails to get registered, such an instrument will not be admissible in Court as evidence. An unregistered instrument cannot be used in legal proceedings in the Court. However, an unregistered instrument affecting the transfer of immovable property can be used as evidence when it involves a contract in a suit for specific performance or as evidence under section 53 A for the part performance of a contract or as evidence for a collateral transaction not effective by a registered instrument.[vi]
Narasimha Rao AndAnr. vs Sai Vishnu:[vii] The Court held that an unstamped instrument is not admissible as evidence even if it is for a collateral purpose. But if an instrument which is originally not stamped and if it is stamped subsequently it can be admitted as evidence although it is unregistered for a collateral purpose but the terms mentioned in the instrument cannot be taken into consideration.
Importance of Registration
Registration of instruments is important for the following purposes-
- To notify people who are dealing with the property and provide relevant information
- To provide information about legal proceedings to people interested in a property
- To prevent fraudulent activities
- To prevent forgeries
- To ensure people about the reliability and contents of the deed of a property and provide an account of all relevant information pertaining to it.
- Provides safety and security to the relating transactions[viii]
Stamping of Instruments
- Stamp duty is a tax levied on documents or transactions usually in the transfer of assets or property. Under the Indian Stamp Act 1899, the following instruments will be chargeable with duty. Section 3 states that instruments specified under schedule I shall be chargeable with duty. That are, mortgage deeds, share warrants, trust deeds, instruments of partnership, certification of sale, a memorandum of agreement, power of attorney, lease agreements, partition awards.
- However no stamp duty will be levied on any instrument that is executed by or on behalf of or in favour Government, or instruments for the sale, transfer or disposition of any ship or vessel or part interest or share of such ship or vessel that is registered under the Merchant Shipping Act 1894, or any instrument executed by or on behalf of or in favour of any developer or unit associated with the carrying out of the purpose of the special economic zone.
- In case of a sale, mortgage or settlement and any transaction involving several instruments, the principal instrument shall be chargeable with the duty and each of the other instruments shall be chargeable with a duty of one rupee each.
- In the case of altering an instrument, the second document has to be stamped as the first document and not according to the provision relating to liability arising in the case of several instruments.
- In the case where an instrument is relating to several distinct matters, the stamp duty levied will be the aggregate amount of the duties with which each separate instrument would be chargeable.
- Where an instrument which comes under several descriptions in schedule I and the stamp duty chargeable there under is different, the instrument will be chargeable with the highest of the duties.
- Instruments that are not duly stamped will not be admitted as evidence or acted upon or registered or authenticated by any such person or public officer. [ix]
Mt. Mewa Kunwariv v. Bourney[x] The Court held that if an instrument is duly stamped at the time of execution but the stamp duty is subsequently removed or lost, the instrument will still be admissible as evidence in the Court.
Frequently Asked Questions
Which documents require compulsory registration?
The following documents need to be registered compulsorily
- Gift of immovable property
- Mortgage deed, charge, transfer of redemption, an instrument of partition, floating charge, assignment of household, variation of mortgage
- Sale deed, the surrender of land, receipt of premium
- Lease
- Transfer of decree, order or award example, mortgage decree, decree creating charge
- Authority to adopt a son[xi]
When is the stamp duty payable?
Stamp duty is payable before executing an instrument, a day before the execution of the instrument or the day after the execution of the instrument that is the next working day whichever is earlier.[xii]
What is the validity of the stamp duty?
The stamp duty paid on an instrument is valid for six months. In the case of foreign documents, the stamp duty is valid for three months.[xiii]
Edited by Sakshi Agarwal
Approved & Published – Sakshi Raje
Reference
[i]Various provisions relating to execution and registration of documents, Maharashtra Judicial Academy http://mja.gov.in/Site/GR/Title%20NO.203(As%20Per%20Workshop%20List%20title%20no203%20pdf).pdf
[ii] Transfer of Property Act 1882, section 3
[iii] AIR 1965 SC 1738
[iv] Registration Act 1908, section 17
[v] Registration Act 1908, section 18
[vi] Transfer of Property Act 1882, section 49
[vii]2005 (5) ALT 653
[viii] Ibid.
[ix] Indian Stamp Act 1899
[x] AIR 1934 All. 388
[xi] Documents require compulsory registration, Law studies blog, August 04, 2016 http://thelawstudies.blogspot.com/2016/08/documents-require-compulsory-registration.html
[xii]Athulya, What Are All The Agreements That Need Stamp Duty?, vakil search, October 22, 2019
https://vakilsearch.com/advice/do-you-need-to-pay-stamp-duty-on-all-agreements/
[xiii] Ibid.
