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LEGAL CHAT
The process of verification
N.C.S. RAGHAVAN
ARVIND RAGHAVAN
Once a compulsorily registrable document is presented for registration, the registering authority begins the process of verifying whether legal requirements and statutory compliances have been fully observed. The verification will be on the following lines:
• Whether the instrument has been duly signed and executed by the parties who are involved in the transaction or transfer relating to the immovable property which is the subject matter of the document.
• Whether the parties have either signed the instrument or document themselves or through their authorised representatives duly authorised as per law.
• Whether the immovable property has been sufficiently and adequately described in the Schedule or Schedules together with the property sketch, plans, maps wherever necessary so as to clearly identify the property, its location, its description and dimensions.
• Whether the document has been duly attested by two witnesses.
• Whether the stamp duty has been paid on the instrument based on the “guideline value” fixed by the State Government. Any deficiency in the stamp duty will have to be paid by the parties on demand being made by the registering authority and the same will be endorsed on the document itself.
• Whether the document has been presented for registration within the prescribed time.
The registering authority, after verification of the correctness and completeness of the aforesaid legal requirements, shall make suitable endorsements and attestations in the document with the affixation of the official seal thereon.
The registering authority shall require all the parties to the document to appear by themselves or through their authorised representatives and formally admit execution of the document presented for registration.
Where one of the executants of the document is dead, his legal representative shall appear for and on behalf of the estate of the deceased person.
Where any of the parties to the document who appears before the registering authority denies the execution of the document, the registering authority shall record the same and shall refuse to register the document {Section 35(3) of the Act}. In this regard, the registering authority shall follow the procedures prescribed in Part- XII of the Act.
The matters relating to enquiry under Part-XII of the Act will be discussed in the subsequent issues.
Vital step
The most important legal formality carried out by the registering authority is to formally record the contents of the document in Book – I and make specific references of the same in the document itself, indicating the Volume / CD, pages etc., of the Book – I where they are copied and recorded. Unless this legal formality is carried out, the registration is not complete. On the completion of registration, the original registered document is returned to the parties. In the case of a compulsorily registrable document, these recordings and copying in Book – I become “public property”, in the sense, that it is accessable to all persons and any outsider can apply for and obtain an official copy of such a document. The law presumes “public notice” of the presence and existence of such a document and its contents as the official copy of the same is readily available to any outside person who can formally apply for and obtain an official certified copy of the document. Further, where in respect of the immovable property any encumbrance certificate is sought for by any person, it can be obtained. The encumbrance certificate will contain proper references made in relation to various documents executed and registered in the past connected with it from time to time.
A conveyance of rights and interests in immovable property between parties in relation to a compulsorily registrable document gets completed only on the completion of the registration of the document as mentioned above. However, it has to be clearly and carefully noted that even though the registration takes place later on, the conveyance and passing of rights and interests under the document takes effect from the very date of its execution or on the day fixed as effective date in the document itself. In this regard, provisions of Section 8 of the Transfer of Property Act, 1882, are applicable.
In effect, the subsequent registration gives retrospective legal recognition to the earlier conveyance of the property on the execution of the document.
The legal effect and consequences of the compulsorily registrable document and the legal effect and consequences of non-registration of a compulsorily registrable document will be discussed in the next issue.
(N.C.S. Raghavan is a chartered accountant and Arvind Raghavan, an advocate)
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