Attestation and RegistrationAjey Sangai

Conditions for valid transfer of title• Section 123, TP Act. Transfer how effected

For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered.

• Three requirements for valid transfer: (i) execution (ii) attestation and (iii) registration

Attestation• Purpose: verification of the voluntary execution of the transfer

deed in case of doubt or to contradict the transferor in case s/he denies making that transfer.

• Difference between the English and the Indian Law• Attestation after personal acknowledgment of the transferor• Whose presence is required in the process of attestation?

• Indian Law: Only transferor’s presence when the document is attested not vice a versa.

• Two types of witnesses: (a) Identifying; (b) Attesting Witnesses

Performa

IN WITNESS WHEREOF the parties herein have affixed their respective signatures to this deed at _______________ on this ______________ day of ______________ year in presence of the witness:

WITNESSES:1.________________ ____________

SELLER

2.________________ ____________ PURCHASER

Ingredients of Attestation (S.3)• Attestation by two or more witnesses• Either seen the transferor signing the document or someone

else on her/his directions.• If not that, personal acknowledgement of the transferor of the

valid signature. • Witnesses must sign the document in the presence of the

transferor and after the latter has signed the document• Sant Lal v. Kamala Prasad, AIR 1951 SC 477 (6 witnesses, yet invalid)

• Both witnesses are not required at the same time even both of them can be dispensed away with (personal acknowledgement)

• There is no specific form of the attestation• Attesting person must be competent to contract (although TP

Act does not mention so.)

Who can attest a deed?• Scribes• Brij Raj Singh v. Sewak Ram, (1999) 4 SCC 331 (Plaintiff received land

by a gift – defendant (tenant) denied P’s title and P filed a suit for the possession of property. Scribe’s signature at 3 places in different capacities: scribe, identifying witness and attesting witness.)

• Parties to the transaction v. Parties to the deed• Kumar Harish Chandra Singh Das v. Bansidhar Mohanty, AIR 1965 SC

1738 (One friend wanted to help the other but could not ask for security, took help of the third person)

• Any person with Animo Attestandi (Physical act + Mental Act (intention to authenticate)) • M.L. Abdul Jabbar v. Venkata Sastri, AIR 1969 SC 1147

REGISTRATIONTopic 2

Compulsory Registration• Section 17, Registration Act, 1908: Documents of which

registration is compulsory:• Instruments of gift of immovable property• 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;

• 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;

• Leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent.

Description of Property• At the end, the transfer deed of an immovable property, to be

presented for registration, carries a schedule of the property in question.

• Section 21, Registration Act states that every instrument of non-testamentary transfer of a property must provide a description of property with details sufficient to identify it.

SCHEDULE OF THE PROPERTY(Conveyed under this deed)

All the piece and parcel of immovable property (depending on the property) bearing No.____________Measuring _______________Bounded by:-On the East :On the West :On the South :On the North :

Other requirements• Document/deed needs to be presented for registration within 4

months of the execution. (S. 23)• Delay: If within four months, then the Registrar may register the

document subject to the payment of fine which may extend to 10 times the registration fee.

• Place for registration: with the sub-registrar within whose sub-district the property is situated.

• Who shall present the document for registration? • person(s) executing the document or person(s) claiming under them; • Representatives or assigns of such person• Agents or representatives duly authorized by the power of attorney.

• Registration Fee is fixed by State Government

Effects of registration • Section 47: A registered document operates retrospectively

from the date when the transaction was made and not from the date of registration.

• Section 48: Registration prevails over the oral agreements unless it is accompanied or followed by delivery of possession.

• Effects of Non-registration (Section 49): • Title in the immovable property is not transferred• Unregistered document is not received as an evidence of such

transfer. • In case of deeds relating to land, the registered documents

prevails over the unregistered documents (Section 50)

Registration as Notice• What is ‘notice’?• Actual • Constructive

• Registration acts as a constructive notice. [Explanation I, Section 3] • Transaction required by law to be and has been effected by a

registered instrument• Transferee is deemed to have notice of the instrument• From the date of registration only for the subsequent transfers.

• All purchasers are under a legal obligation to exercise diligence in examining the title recorded in the register.

STAMP DUTYPart III

Introduction• Stamp Duty is a tax imposed on documents that effect or purport

to effect creation, modification, extinguishing and declaration of any right.

• The documents/instruments without requisite Stamp Duty are not allowed as evidence by court.

• Stamp Duty is imposed under Indian Stamp Act, 1899. It is paid to the Collector of Stamp appointed by the state government.

• All the instruments listed under the Schedule I of the Act are liable to be charged with stamp duty (Section 3).

• Transaction comprising of several matters separately chargeable: Proper Stamp Duty = Aggregate sum of stamp duty levied on each component.

• States have been given power to levy the stamp duty. Hence, it varies from one state to another.

Requirements• That stamp duty has been paid also needs to be mentioned in

the instrument.

• Types of stamps• Adhesive Stamp (includes stamps that are pasted on a paper,

generally for smaller matters)• Impressed Stamp (includes embossed or engraved stamp e.g.

stamp paper, for larger transactions)

Market value of the property conveyed under this deed is Rs.____________ (Rupees ________________________________ only).

The Stamp duty is paid on the market value as computed above.

Impressed Stamp (Stamp Paper)• Section 13: Every instrument written upon paper stamped

with an impressed stamp shall be written in such manner that the stamp may appear on the face of the instrument and cannot be used for or applied to any other instrument.

• Section 14: Only one instrument on one stamp paper• Non-compliant document is deemed unstamped. • Instruments stamped before or at the time of execution.

Buy stamp paper

Execute the document

Certificate from Collector Attestation Registration

Valuation of Stamp Duty• Stamp duty is chargeable on the consideration disclosed in the

document of conveyance• Stamp Duty is prescribed by state government.• Market value of a property is estimated by the Collector and

based on that valuation the stamp duty is done.• Collector has the power to impound the document if it is

unduly stamped (Section 40)• Who shall pay the stamp duty? Sale (Purchaser); Lease

(Lessee); Mortgage (Mortgagor) • Illustrations:• A mortgages a house of the value of Rs. 10,000 to B for Rs. 5,000.

B afterwards buys the house from A. Suppose C buys the property instead of A?