COMPULSORY REGISTRATION OF DOCUMENTS UNDER REGISTRATION ACT, 1908

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Introduction

The Registration Act, 1908 serves the purpose of proper recording and registration of documents/instruments, which give them more authenticity. Registration means recording of the contents of a document with a Registering Officer and preservation of copies of original document. Documents are registered for the purpose of conservation of evidence, assurance of title, publicity of documents and prevention of fraud.

Object of Registration Act

The object of Registration and inter-alia Registration Act is elaborately discussed by Hon’ble Supreme Court in case of Suraj Lamp and Industries Pvt. Ltd. versus State of Haryana and Another AIR 2012 SC 206, as under:

“The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer.”

Registration of Document

The documents registrable under the Act fall under three categories.

In the first category, documents relating to transactions which according to the substantive law, can be affected only by registered documents. In order for a transaction to be valid must be effected by a registered instrument only. What it provides is that when there is a written instrument evidencing a transaction, it must, in certain cases, be registered. Under section 17 of the Registration Act, the compulsorily registrable documents are given.

In the second category, certain transactions can be effected without writing, i.e. 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) of said Act require registration of such documents, subject to the exception 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 vide section 17(3).

In the third category, 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. ‘Will’ need not be registered but it is open to the parties to get it registered under the third category.

Under the Registration Act, the following documents are compulsorily registrable.

  1. Instruments of gift of immovable property.
  2. Other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
  3. Non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest.
  4. Leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent.
  5. Non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.

 

Limitation for registration of a document

Limitation for registration of a document under Section 23 of 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.

Section 17 deals with documents of which registration is compulsory. Whereas, sub-Section (2) of section 17 provides a dozen of exceptions to clause (b) and (c) of section 17(1).

Section 18 of Registration Act pertains to documents of which registration is optional. Word ‘may’ is used in textual of section 18.

The Registration Act strikes only at documents, and not at transactions. All that it enacts is that when a document is employed to effectuate any of the transaction specified in s.17 of the Registration Act, such document must be registered.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

OPTIONAL REGISTRATION OF DOCUMENTS UNDER THE REGISTRATION ACT, 1908

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The real purpose of the Registration Act, 1908 (the Act) is to provide a method of public registration of documents so as to give information to people regarding legal rights and obligations arising or affecting a particular property, and to perpetuate documents which may afterwards be of legal importance, and to secure every person dealing with any property against fraud. The scheme of the Act is to consolidate the law relating to registration.

Registration lends inviolability and importance to certain types of documents. At the time of registration, it is very essential to see that the officer is duly competent to register a document and that the document is not presented to unqualified or a wrong registration circle, as otherwise such registration would be of no use or validity. If the language in the document is not understood by the registering officer, he shall refuse to register the document. Also, no non-testamentary deed relating to immovable property would be accepted for registration, unless it contains a description of such property sufficient to identify the same.

If an instrument is compulsorily registrable, it should be presented for registration before an officer who is competent to register such document which can be read under Section 17 of the Act. However, in case of an instrument which is not compulsorily registrable, it is complete without registration.

At this juncture, it is very essential to refer Section 18 of the Act, 1908 which deals with “Documents of which registration is optional”.

Section 18 of the Registration Act, 1908- Documents of which registration is optional

Any of the following documents may be registered under this Act, namely:

(a) instruments (other than instruments of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less then one hundred rupees, to or in immovable property;

(b) instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;

(c) leases of immovable property for any term not exceeding one year, and leases exempted under Section 17;

(cc) instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;]

(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;

(e) wills; and

(f) all other documents not required by Section 17 to be registered.

 

TARUNA VERMA

SENIOR ASSOCIATE

THE SUPREME COURT OF INDIA: SEX WITH MINOR WIFE AMOUNTS TO RAPE

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The Supreme Court held on Wednesday, 11th October, 2017 that sex with one’s minor wife will amount to rape. A Bench comprising of Justice Madan Lokur and Justice Deepak Gupta watered down an exception to Section 375 of the Indian Penal Code (IPC) which said sexual intercourse by a man with his wife not under the age of 15 would not amount to rape whereas the age of consent was 18 years.

The order came on a PIL by NGO ‘Independent Thought’ filed in 2013, demanding that clause (2) in Section 375 of the IPC be declared unconstitutional as it violated Articles 14 (right to equality),15 (right to non-discrimination) and 21 (right to live with human dignity) of the Constitution. The Petitioners argued that the exception clause went against the objectives of the Prohibition of Child Marriage Act, 2006.

 

The Petitioner challenged the exception on the ground that it permitted sexual intercourse with a girl child aged between 15 and 18 only on the grounds that she was married. The age of consent for sexual relationship should be treated as 18, irrespective of the marital status of the girl child, the petitioner contended.

The Apex Court held that, “In our opinion, sexual intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not” and “Merely because child marriages have been performed in different parts of the country as a part of a tradition or custom does not necessarily mean that the tradition is an acceptable one, nor should it be sanctified as such. Times change and what was acceptable a few decades ago may not necessarily be acceptable today,”. Further held that “The exception in rape law under the IPC is contrary to other statutes, violates bodily integrity of girl child,” The Court also said that an exception in the rape law is discriminatory, capricious and arbitrary.

The Supreme Court ruling harmonises the definition of rape under the IPC with the Protection of Children from Sexual Offences Act (POCSO Act), 2012 that fixed the age of consent of the girl at 18 and also treats sex with a minor as crime, irrespective of her consent. It was also held by the Bench that “The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is discriminatory and is definitely not in the interest of the girl child,..”

Taruna Verma

Senior Advocate

RISK OF MANDATORY AADHAAR-LINKING TO ANY DATABASE

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Recently, there has been a huge uproar against the mandate of the Government of India for every person to link his/her Aadhaar Card to various services of the banks, mobile service providers, Income Tax Department, etc and to avail benefits of various Government Social Welfare Schemes such as midday meals, disability pension, rehabilitation for Bhopal gas tragedy victims, etc. Although the Government may have passed this mandate with a view to keep a track of an individual’s financial transactions, a transparency in his/her property dealings and filing of tax returns, and to prevent any instances of money laundering, etc, but consequently, the public may have to bear a huge risk associated with mandatory linking of Aadhaar to the various databases.

There may be instances after an Aadhaar is linked with any of the databases, where the individual’s activities may get disclosed and monitored by the Government. For instance, if a person’s bank account is linked with his Aadhaar and he books a railway ticket online or does shopping online, that particular booking transaction, indirectly, may store the particular travel/shopping details, as the case may be. Moreover, when someone’s mobile number is linked with his Aadhaar, all the details about his calls, messages, etc may get monitored. As a result, it may pose to be a threat to the privacy of a person whose Aadhaar has been linked to the various databases.

The general public reportedly has opposed the mandatory Aadhaar-linking on the grounds of issues of surveillance and privacy, risk of identity theft and of information being stolen, replicated, faked or misused by third parties, including the enrollment agencies, who may gain access to the entire demographic and biometric database along with the allotted Aadhaar numbers. Moreover, when any unscrupulous and/or deceitful parties gain access to the biometric database of a person, such data may be put to wrong and illegal use by terrorists, anti-nationals, or illegal immigrants to finance terrorism, or execute organized crime in the country, it may render the objectives of mandatory linking of Aadhaar ineffective and counter-productive. It is generally believed that the hazards of Aadhaar-linking with the databases may outweigh the benefits that the Government may reap out of it.

The Supreme Court in a case of Justice K.S. Puttaswamy vs. Union of India 2017 SCC OnLine SC 996 on 24.08.2017 has held that the right to privacy is a fundamental right under Article 21 of the Constitution of India. Currently, a number of public interest litigations (PILs) have also been filed in the Supreme Court challenging the Government’s mandate of Aadhaar-linking to various such services on the grounds of issues of privacy, etc. But the Government has sought time from the Apex Court as they are in the process of drafting a data protection legislation.

Therefore, the Government has extended the deadlines for mandatory Aadhaar-linking in the following cases until the Supreme Court pronounces the verdict on this issue:

  • Permanent account number (PAN): 31.12.2017,
  • Mobile numbers: 06.02.2018,
  • Bank accounts: 31.03.2018,
  • Various Government Social Welfare Schemes: 31.03.2018, etc.

 

Harini Daliparthy

Legal Associate

THE SUPREME COURT’S BAN ON SALE OF FIRECRACKERS IN THE DELHI-NCR REGION

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The Supreme Court, in the case of Arjun Gopal v. Union of India, has issued an order dated 09.10.2017 (Order) to ban the sale of fireworks (including fire crackers) in the territory of Delhi-NCR till 01.11.2017 in order to control the deteriorating quality of air in this region and to reduce the adverse effects of bursting fireworks during the festival of Diwali. The Apex Court has, therefore, ordered for suspension of licenses for storing and selling fireworks in the Delhi and NCR area and added that it may issue further orders depending on the situation that may emerge during the Diwali season.

The Supreme Court had issued a similar order last year when the bursting of fire crackers during Diwali appeared to be one of the major causes of worsening air quality in the Delhi-NCR area as a result of which various schools had to be closed and authorities had to take various measures on health emergency basis. The Supreme Court added that the impact of that order could only be tested during the festive season of Diwali.

According to the Order, although this suspension may have an adverse effect on the business of permanent and other license holders but currently, their primary concern is public health and to ensure that people are not compelled to breathe poor quality air, there is a dire need to ban the sale of fireworks in the Delhi-NCR area and to observe its resultant effect on the air quality.

This suspension has seen a huge uproar amongst the fireworks-manufacturers but on the other side, various doctors and environmentalists have happily welcomed this decision of the Supreme Court. The affected traders had filed an interim application on 13.10.2017 seeking modification of the Order of suspension of license for sale of firecrackers in the Delhi-NCR ahead of Diwali but the Apex Court has refused to modify the Order and stated that the traders had been granted temporary licenses only up to 21.10.2017 and therefore, in pursuance of the Order dated 09.10.2017, they may seek renewal of their temporary licenses w.e.f. 01.11.2017 and this request may be considered by the police authorities.

It has also been reported that the Supreme Court has said that most of the traders had already sold their old stock of fire crackers before the pronouncement of this Order and therefore, it may not entirely be a Diwali without bursting of crackers.

As a result, the effect of the Order dated 09.10.2017 on the air quality may be observed only after 01.11.2017 when the Supreme Court may decide on lifting of the ban or pass any other order, whichever it deems fit.

 

Harini Daliparthy

The Indian Lawyer

HINDU UNDIVIDED FAMILY ASSETS SHOULD BE TAKEN AS JOINT PROPERTY AND MEMBERS CLAIMING INDIVIDUAL OWNERSHIP HAS TO PROVE ASSET IS SELF ACQUIRED

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A Hindu Undivided Family (HUF) is a separate entity that can be created by members of a family, wherein the members are lineal ascendants or descendants. Hindus, Buddhists, Jains and Sikhs can open HUFs.

A single person cannot create an HUF. Usually the senior-most member of the family is considered the karta that is the person who manages the affairs of the HUF.

In a recent judgment of the Supreme Court of India in Adiveppa vs. Bhimappa, dated 6th September 2017 it was held that a property belonging to all its members is taken as joint property and a family member while staking a claim has to produce evidence if it is ‘self-acquired’.

In the case mentioned above, the Supreme Court was hearing an appeal challenging an Order passed by the Karnataka High Court in a family dispute pertaining to ownership and partition of agricultural lands. It upheld the High Court’s Order which had declared the property as joint property of the family.

The two Judge Bench comprising of Justice R.K. Agrawal and Justice Abhay Manohar Sapre said that the burden is always on a family member, claiming ownership over a part of property of joint family, to prove before a Court that it is his self-acquired property and not joint property of the family by placing oral or documentary evidence.

The Bench opined,  “It is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property,” the observed.

The Supreme Court further held that the Appellants had failed to prove that the property was self acquired and observed, “In order to prove that the suit properties described in Schedule ‘B’ and ‘C’ were their self-acquired properties, the plaintiffs could have adduced the best evidence in the form of a sale-deed showing their names as purchasers of the said properties and also could have adduced evidence of payment of sale consideration made by them to the vendee. It was, however, not done. Not only that, the plaintiffs also failed to adduce any other kind of documentary evidence to prove their self-acquisition of the Schedule ‘B’ and ‘C’ properties nor they were able to prove the source of its acquisition.”

The Supreme Court in its Order held that, “Not only that, they also failed to adduce any other kind of documentary evidence to prove their self acquisition of properties nor they were able to prove the source of its acquisition”. Thus, the Bench said it was obligatory upon the contesting family members to prove that despite existence of jointness in the family, properties were not part of ancestral properties but were their self-acquired properties and the petitioners failed to prove their claim.

Taruna Verma

Senior Associate