Registration: Process and Structure

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In erstwhile State of Jammu & Kashmir, the task of registration of documents including Sale Deeds, Lease Deeds, Mortgage Instruments etc., was being carried out by judicial officers of the State. Prior to the bifurcation of State of J&K into two Union Territories, the Government of J&K vide Order no.117 dated 24.10.2019, passed in pursuance of State Administrative Council Decision No.246/22/2019 dated 22-10-2019, ordered creation/establishment of a separate and independent Registering Department for purposes of the Registration Act. As per the said Order, the new Department was to function under the overall administrative control of Revenue Department. The Order further announced creation of posts for the new Department. In its statement, the government had inter alia stated that the change was aimed to “provide hassle free and speedy service to the citizens for registration of documents pertaining to immovable property like sale, gift, mortgage, lease, and bequest”. However, the practice prevalent suggests otherwise owing to multiple reasons including lack of infrastructure, lack of knowhow and overburdening of existing revenue officials etc.

Though the Government had announced that a new department for registration would be created, but the power to register documents has as on date been given to existing revenue officers of the rank of SDMs and ADCs as Sub-Registrars and Deputy Commissioners as Registrars for their respective areas of jurisdiction. (See S O 02 dated 31.10.2019 of Revenue Department Government of J&K). A separate department as it exists in States like Maharashtra would certainly help people in getting the documents registered quickly and achieve the objective of the government in proving hassle free and speedy services. But the existing arrangement of the government has proved otherwise.

First and foremost, most of the revenue officials entrusted with the job are not well versed with the laws involved in the process of Registration unlike the judicial officers. The process of Registration generally involves interplay of a host of laws and specifically provisions of Registration Act, Stamp Act and transfer of Property Act. The ADCs and the DMs ought have been given sufficient training to understand basic principles of these laws before the job of registration was assigned to them. A few examples based on practical experience may help understand present state of affairs.

As per Section 60 of Registration Act, a Registrar/ Sub-Registrar has to endorse a Certificate (usually on back side of first page of the document) wherein the word “registered” has to be mentioned once the document is registered. The Registering officer also has to mention the number and page of the book in which the document has been copied. In practice, during initial days, the Registering officers were (and some continue to do so) reluctant to use the word “Registered” in their certificates (Just like Naib Tehsildars and Tehsildars instead of writing “Attested” use the expression “S.A” meaning Signature (of patwari) attested) in Revenue Extracts. Instead of the word “Registered” expressions like “document attested”, “admitted to execution” etc., have been used (thereby literally executing the very spirit of Registration). In many instances, the documents are not duly stamped, as required by Stamp Act. As per the applicable provisions of Indian Stamp Act, a document attracting stamp duty is to be stamped either before date of execution or at the time of execution (See Section 17). In many cases, the date of execution precedes the date of purchase of stamp duty which contravenes the aforesaid provision of law and affects admissibility of the document registered in evidence in the court of law.  Similarly, as per provisions of Transfer of Property Act a Deed of Mortgage must be attested by at least two witnesses. The same is not adhered to. In many cases, name of the witnesses is mentioned without their signatures/ thumb impressions having bee affixed on the document. As per provisions of Registration Act (See Section 34), the Registering officers are duty bound to make enquires as to execution of the document by its executants and witnesses. In case the document is not executed/ parties do not admit its execution, the same can not be registered.

Many Sub-Registrars and registrars use expression “In court of Sub-Registrar/Registrar” in their Certificates which is not correct. Office of the Sub-registrar is not a court in its strict sense of the term. The main purpose of having a department of Assurance is to register documents so that same may act as public notice as to creation, extinction, assignment, declaration etc of any right, title or interest in an immoveable property. A Sub-Registrar or a Registrar cannot sit in judgment over a civil dispute. Where in a case, the party refuses to execute a document or refuses to admit execution of a document, the registering officer should not register the document and the document should be returned with reasons in accordance with the provisions of Registration Act. Any allegation of fraud, forgery of signatures or nonpayment of consideration amount in a transaction gives rise to a civil dispute which registering officers are not competent under Registration Act to adjudicate upon. As per Rule 40 of Registration Rules, A registering officer is not concerned about contents of a document. In Daduram Sidar v. State of Chhattisgarh decided in 2019, Chhattisgarh High Court observed that a conjoint reading of Sections 34 and 35 shows that the scope of enquiry to be made by the registering officer is limited by the Act, restricted to the factum of execution and the identity of the person executing document, other than the levy of stamp duty, collection of registration charges and the completion of procedural formalities such as attestation, etc. there is nothing in this provision requiring the registering officer to make a roving enquiry about the title of the person with regard to the property which is being sold by the sale of deed. Likewise, in case of mortgage for example, how much land should be mortgaged against a particular amount of loan or how much loan should be granted against particular area of land is for the parties to decide. In case of sale however, registering officers are duty bound to ensure that no Conveyance documents is registered unless appropriate amount of stamp duty and registration fee as per valuation provided by the government is paid. Similarly, in case a document is not duly stamped (i.e. adequate stamp duty is not paid), the registering officer cannot order addition of deficient stamp duty. Stamp Act does not give any such power to a registering officer. Instead the Registering Officer should either return the document or impound the same and send it to Collector of Stamps for adjudication as to whether the document is duly stamped and whether or not payment of deficient stamp duty may be allowed.

One of the issues frequently faced by the parties is the amount of time consumed in getting a document registered. This is mainly due to non availability of registering officers in offices owing to their other official assignments. The same officer is administrative head of a territorial division/sub-division, responsible for law and order within his division, the same officials are charged with duties under Revenue laws; they also have responsibilities under many social welfare schemes and other legislations. This multiplicity of assignments/duties results in delays in getting the document registered. On the other hand however, Registration Act requires that a document once executed must normally be registered within four months of its execution (Section 23 of Registration Act). Delay in getting a document registered inter alia defeats the very object and spirit of process of registration.

Some other issues faced during registration have arisen due to online mode of registration switched to recently by the Government. The issues mainly arise due to lack of practical training to the staff handling the process of registration. Like one of the Sub-registrars is of the view that once a document is registered online and a QR code is generated, the original document registered is to be retained in the office of Sub-Registrar. The executants are given only scanned copy of the document without any seal/signature and original is retained. This practice is contrary to the provisions of Registration Act and also of Evidence Act wherein the scanned copy of a document being secondary evidence of inferior category is not admissible in evidence per se. It is no evidence of title Per Se and no Mortgage by deposit can be created by deposit of scanned copy of title deeds.

The list of issues that were born out of the decision of the Government of J &K to assign the task of registration to revenue Department is only illustrative. The bottom line is that it is a welcome step if a separate Department for registration is created. But creating the same only on paper and charging the already burdened department with the task without adequate training has created hardships to public in general and financial institutions and business community in particular. There is dire need to equip and educate all registering officers and their staff with basic understanding of the laws involved in the process of registration. It would have been prudent if the old practice of registration by judicial officials were continued till the time adequate infrastructure for a specialized and separate Department was made

Showkat Shah works at J&K Bank, Law Department.