Report No. 6
The Registration Act, 1908
1. History of legislation.-
The system of registration of documents was in vogue in British India from an early date. It was first introduced in Bengal by Bengal Regulation XXXVI of 1793; in Bombay by Regulation IV of 1802 and in Madras by Regulation XVII of 1802. These Regulations applied not only to the Presidency towns but also to the moffusil. The Regulations in the three different Presidencies were more or less in the same form. Taking Madras Regulation XVII of 1802 (as printed in Clarke's Regulation, 1848) as an example, we find that a Registrar was appointed for each zilla. It authorised the Registrar and required him to register the following documents:
(1) Deeds of sale or gift of lands, houses and other real property;
(2) Deeds of mortgage on land, houses and other real property, as well as certificates of the discharge of such incumbrances;
(3) Leases and limited assignments of land, houses and other real property, including generally, all conveyances used for the temporary transfer of real property;
(4) Wasseathnamas or Wills;
(5) Written authorities from husbands to their wives to adopt sons after their (husbands') demise.
Section 6 of the Madras Regulation was similar in terms to the corresponding provisions of the Bombay and Bengal Regulations. (Mulla's Commentary on the Registration Act, Fifth Edition, at page 210, sets out in full Section 6 of the Bombay Regulation). This was the most important provision of these Regulations. Firstly, it provided that every deed of sale or gift registered under the Regulation would invalidate any unregistered deed of the same nature whether executed prior or subsequent to the registered deed. Secondly, it provided that every registered mortgage deed would have priority over any unregistered mortgage deed whether executed prior or subsequent to the registered mortgage.
Thirdly, it stated that the object of the two preceding rules was to prevent persons being defrauded by purchasing or receiving in gift or taking in mortgage real property which may have been before sold, given or mortgaged, and that persons would never suffer such imposition when they are apprised of the previous transfer or mortgage of the property. It, therefore, provided that if the buyer, donee or mortgagee had knowledge of the previous sale, gift or mortgage, the rule of invalidation or priority mentioned in the previous two clauses would not apply.
2. This system, subject to certain modifications introduced by Act I of 1843, continued in force till the Registration Act, XVI of 1864 was enacted except in Bombay where an important change was introduced by a Regulation of 1827. Section 13 of that Act provided that certain documents shall not be received in evidence in any Court or be acted upon by any public officer unless the document shall have been registered. [This section corresponds to clause (c) of the present section 49 and the documents listed therein correspond to the documents specified in clauses (a), (b), (c) and (d) of sub-section (1) of the present section 17].
It may be noted that this section itself did not specifically say that these documents must be compulsorily registered but the same result was secured by means of the sanction of refusing to receive in evidence such documents, if unregistered. It was Act XX of 1866 which provided, for the first time, that instruments of the four classes mentioned therein must be registered.
3. It will thus be seen that the system of registration which was introduced in 1793 remained an optional system till 1866. From 1866 certain classes of documents were required to be compulsorily registered. The Act of 1866 was replaced by Act III of 1877 which was amended from time to time till it was replaced by the present Act XVI of 1908.
4. Existing system.-
The Indian Registration Act, 1908 applied to the British Indian Provinces and, after the coming into force of the Constitution, to the corresponding Part A and Part C States. By Act III of 1951 the Act was made applicable to Part B States also. We have not thought it necessary to enquire into the system of registration in vogue in Part B States before 1951 as it would not seem to be of any practical value in relation to the revision of the Act which now extends to the whole of the territory of India excluding only the State of Jammu and Kashmir (to 'which State the relevant legislative power of Parliament does not extend).
5. Analysis of the existing Act.-
The sections of this Act may be broadly grouped under three heads. The first head relates to the documents which are registrable under the Act. The second relates to the procedure to be followed for getting a document registered under the provisions of the Act. The third deals with the administrative machinery provided under the Act and the respective duties of the different classes of officers. This classification leaves out of consideration the provisions relating to penalties etc.
6. The documents registrable under the Act fall under three categories. In the first category come documents relating to transactions which, according to the substantive law, can be effected only by registered instruments. It is hardly necessary to point out that the Registration Act does not lay down that any transaction, in order to be valid, must be effected by a registered instrument. What it provides is that when there is a written instrument evidencing a transaction, it must, in certain cases, be registered, while in other cases, it may, at the option of the parties, be registered, in the manner laid down in the Act. The obligation to get a transaction effected only by a registered instrument is laid down by the substantive law.
Thus, the Transfer of Property Act requires that sales, mortgages, exchanges, gifts and leases can be effected only by registered instruments subject to an exception in case of some transactions relating to immovable property of less than Rs. 100 in value. Similarly, the Trusts Act requires that a trust in respect of immovable property should be created only by an instrument in writing and registered. The substantive law, however, does not provide the machinery for effecting registration. It is the Registration Act which provides the machinery for effecting registration and the parties to registrable instruments must necessarily have recourse to the provisions of this Act.
7. Under the substantive law, certain transactions can be effected without a writing e.g., partitions, releases, settlements etc. But if the transaction is evidenced by a writing and relates to immovable property, the Registration Act steps in and clauses (b) and (c) of section 17(1) require registration of such documents, subject to the exceptions specified in sub-section (2) of that section. If an authority to adopt is conferred in writing, other than a will, it is also required to be registered [section 17(3)]. These documents fall under the second category.
8. It is open to the parties, if they so choose, to get certain documents registered at their option and this is permitted by section 18. Wills need not be registered but it is open to the parties to get them registered under the provisions of the Act. Such documents come under the third category.
9. The Act further provides for the consequences of non-registration of documents (section 49) and the effects of registration (sections 48 and 50).
10. To enable a person to get a document registered under the Act, certain conditions have to be fulfilled and certain formalities observed. The document must contain a description of the property and has to be presented for registration in the proper registration office within the time limited by the Act. The details regulating presentation, such as time for presentation, place of presentation, persons entitled to present a document and the mode of enquiry before the Sub-Registrar, are all dealt with in various parts of the Act. When the Sub-Registrar refuses registration, an appeal to the Registrar is provided in Part XII of the Act. If the Registrar also refuses registration, a suit under section 77 can be filed within thirty days of his order for a direction that the document be registered. This, in brief, is a summary of the procedure laid down by the Act.
11. The Act also prescribes the machinery for the administration of the Act. The administration of the Act is the duty of each State Government. Each State is divided for the purposes of the Act into districts and sub-districts. At the apex of the administration is the Inspector-General of Registration and under him there are a Registrar for each district and a Sub-Registrar for each sub-district. Besides these, there is a provision for the appointment of Inspectors of Registration-offices. These appointments are to be made by the State Government.
12. The Registers to be maintained by the registering officers are enumerated in section 51 as Books 1 to 5. Indexes to Books 1 to 4 have to be maintained by the registering officers. The contents of these Indexes are specified in section 55. The object of these books is not only to preserve an authentic record of the copies of the documents registered but also to afford facilities to persons interested in making a search in respect of title to immovable property.
To make the registry as complete as possible, section 89 of the Act provides that copies of certain orders, certificates and instruments, though not required to be registered under the Act, are to be sent to the registering officers concerned and they are to be filed in Book 1 which pertains to non-testamentary documents relating to immovable property. This Book is intended to furnish as complete a history of the title to immovable property as possible. Section 87 of the Act cures any defects in the appointment of officers or in the observance of the procedure relating to the registration of documents.
13. Books 1 and 2 and Indexes relating to Book 1 are open to inspection by the public who are also entitled to copies of the entries therein. With regard to Book 3, only the executants (or their agents) are entitled to copies during their lifetime but after their death any person is entitled to copies. Book 4 contains documents registered under section 18 which do not relate to immovable property and any person executing, or claiming under, the document or his agent or representative is entitled to copies of the entries therein (section 57). Book 5 relates to deposits of Wills. Book 1 is the important register maintained in respect of non-testamentary instruments relating to immovable property. When a document is registered, an endorsement is made on the document, denoting the register number and the Book and the volume in which it is registered, in the following form-
"Registered as document No. 1443 of 1948, Book 1, Vol. II, pp. 646 to 649."
14. From this brief survey of the provisions of the Act it is clear that the object of the Registration Act is to preserve an authentic record of the terms of documents so that if a document be lost or destroyed or misplaced, a certified copy from the register can be obtained. Registration also facilitates the proof of execution of a document as its execution is admitted by the executant, before the Sub-Registrar. Yet another useful purpose that registration serves is to enable any person intending to enter into any transaction relating to immovable property to obtain complete information relating to the title to such property and for this purpose to look into the register and obtain certified copies of the documents.
15. Though some sections of the Act have been amended, no revision of the Act has been attempted. We consider that the time has now arrived for a complete recasting of the Act.
16. It would have been better had the substantive law provided that transactions relating to immovable property, such as partition, release and surrender, should be effected only by registered documents. If a registered document were made obligatory in such cases, disputes relating to these matters would be reduced to a minimum. But these are not matters which can be provided for in the Registration Act. They will require attention when the reform of the substantive law is considered.
17. Sceme adopted for revision.-
Before dealing with the changes we recommend in the Registration Act, it is necessary to advert briefly to the general scheme of revision adopted by us in Appendix I which embodies our proposals. We have re-grouped the sections of the Act in such a way as to make its scheme logical and clear. The scheme is as follows:*
*. The sections referred to within the brackets are the existing sections.
Part I.-This Part contains the usual provisions relating to the short title, extent and commencement of the Act, and the definitions.
Part II.-The substantive provisions relating to registrable documents are contained in this Part.
Part III.-In this Part we have grouped together all the provisions dealing with the procedure for registration of documents and the effects of registration and non-registration. The sections have been divided under the following sub-heads, arranged in Chapters.
(a) Conditions to be fulfilled by a document before it is presented for registration.
(b) Presentation of a documents i.e., time for and place of registration and persons entitled to present documents for registration.
[Sections 23-33, 40, 52(1)(a)(b)]
(c) Procedure to be followed after a document is presented for registration.
[Sections 34-35, 41(1), 71, 74-77]
(d) Procedure on admitting the document to registration.
[Sections 52(1)(c), 58-62]
(e) Procedure to enforce attendance of parties and witnesses and power to examine them.
[Sections 36-39, 63]
(f) Procedure to be followed when a document is registered at a place where the whole or a part of the property is not situate.
(g) Effects of registration and non-registration and irregularities not affecting the validity of registration.
(Sections 47-50, 89)
Part IV.-This Part provides for the filing in Book 1 of the copies of certain documents other than those which are registered. It should be mentioned here that we have not only enlarged the scope of the existing provision in section 89 by including in its ambit additional documents but also improved the procedure, with the object of obviating the necessity for the registration of such documents, at the same time making the Registry as comprehensive as possible so that it may afford complete notice regarding transactions affecting immovable property. The procedure we recommend is that when a copy of such a document is received from a court or a public officer, it should not only be filed in Book 1, as at present, but a memorandum of such a document should also be prepared and entered in Book 1 and all the entries in Book 1 should be transcribed in the Index.
Part V-This Part deals with the procedure to be followed in making deposits of Wills and for the destruction of Wills lying unclaimed for a number of years.
Part VI.-This Part deals with the establishment of registration offices and matters connected therewith, which have been sub-divided under the following heads, in separate Chapters:
(a) Registration Officers, powers and duties of registration officers and establishment of the registration offices.
(Sections 3-8, 10-16, 68-69)
(b) Register Books and Indexes.
(Sections 51, 54, 55, 57)
(c) Fees for registration, searches and copies. (Sections 78-80)
Part VII.-This Part includes the provisions relating to penalties.
Part VIII.-This Part deals with Miscellaneous provisions.
(Sections 69, 85, 86, 88, 90-91)
18. In making our proposals, we have taken into consideration the suggestions received by us and have given effect to such of them as we considered useful. Special reference may be made to one suggestion which has received our particular consideration. It was suggested that panchayats should be empowered to register documents of a simple nature and that, if the experiment succeeds, their powers should be enlarged gradually. We do not think that it is expedient or practicable to adopt this suggestion. The members of panchayats would have no knowledge or experience of the procedure to be followed in the registration of documents.
The experiment will entail considerable expense for providing the staff and equipment necessary to register the documents and to maintain the several Books and Indexes required by law. The offices of Sub-Registrars are so distributed within the districts as to be within easy reach of persons intending to register documents and no particular inconvenience has been brought to our notice in this behalf. We are, therefore, unable to accept this suggestion*.
*. Dr. Sen Gupta, however, takes a different view and has dealt with the matter in his note which forms a part of our report.
19. Examination of the provisions of the Act, indicating the changes required.-We now proceed to examine the provisions of the Act seriatim, pointing out the problems which have arisen and indicating, broadly, our proposals for their solution.