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The Transfer Of Property Act, 1882
The Registration Act, 1908
Section 17 in The Transfer Of Property Act, 1882
Section 3 in The Transfer Of Property Act, 1882
Section 34 in The Transfer Of Property Act, 1882

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Law Commission Report
Indian Registration Act, 1908
QONFIDENTIAL » ` LAW COMMISSION O F I N D I A THIRTY-FOURTH REPORT ON INDIAN REGISTRATION ACT, 1908 SEPTEMBER 1967 GOVERNMENT OF INDIA Q MINISTRY OF LAW C1-rA11mAN, Shri P. Govinda Menon, Law COMMISSION, Minister of Law, 5, jor Bagh, New Delhi--3. New Delhi. December 15;, 1967. Mv DEAR Mmrsren, I have great pleasure in forwarding herewith the gath Report of the Law Commission on the Indian Registration Act, 1908. 2. The circumstances in which the subject was taken up for consideration are stated in the first few paragraphs of the Report. After the subject was taken np, a draft Report was prepared. 3. The draft Report was discussed at the following meetings of the Commission:— (i) 82nd meeting of the Commission on the Ist and 2nd February, 1967; (ii) Sgrd meeting of the Commission on 22nd to 25th February, 1967; (iii) 84th meeting of the Commission on 30th and 31st March, 1967; (iv) 85th meeting of the Commission on 24th to 28th April, 1967; and (v) 86th meeting of the Commission on the 15th May, 1967. The draft Report was revised in the light of the decisions taken at these meetings. 4. The comments of the State Governments, High Courts and other interested persons and bodies on the earlier Report (6th Report) had been forwarded to us by the Ministry of Law, and have been considered by us while preparing this Report. This Report has not, therefore, been circulated to State Governments etc. for comments. A Press Communique inviting views of the public on the subject was also considered unnecessary for the same reason. r (ii) 5. It may not be out of place to mention here, that preparation of this Report has involved strenuous labour, having regard to the fact that material in the case-law was studied afresh, and the Views of State Governments, High Qourts, Othcers of the Registration Department, and other interested persons and bodies, raised numerous points, a large number of which were new. 6. I would again like to express my appreciation and also that of the Commission for the work done by our Secretary Mr. P. M. Bakshi in making available the material for the report and in preparing the report. Yours sincerely, _ J. L. KAPUR. EXPLANATION OF ABBREVIATION USED Mullet (IQ63)=MU]]&, The Indian Registration Act (1963). (iii) REPORT ON THE INDIAN REGISTRATION ACT, 1908 CONTENTS _. S uspacr-MATTER ` PAGE Genesis of the {Report .... . . . . ; Scope of the Report . . . ..... 1 Comments Qconsidered . . . . . . . 1 aExempti0n__for Government . . . . . . . I SIIOIT title • . • ; • 4 • • • • I Clause x (2) . . . . . . . . . . 2 Clause 2 (1) " addition " .... . . . . 2 Clause 2 (2) ..... . . . . . 2 Clause 2 (3) . . . . . . . . . . 3 Clause 2 (5) . . ..... . . . 4 2 . . • • • • • • • • 4 Clause 2 (7) . . . . . . . . . . 5 (a) Standing timber . . . . . . . . 5 (ls) Fruit and juice , . . . . , . . 7 (cl Machinery . . . . . . . . . S Zi...il.3\'|SC‘ 2 (B)-- 1 Existing section _ |2 (GA)-Dc1‘i11ition of ‘° Indm " .7 . .... . 9 Clause 2 (9)- “Lease " . . _. . · ‘. ~ |.. . . IO Clause 2 (10)- { a“L{I1`]O],` ” ¤ · ¤ v • ·r ~ v · • II Claus: 2- *‘ Movable pr0pcrty‘” . I ..... · l . _(Omi1tcd in 6th Report) [ tz (vb . {vi) Sungncr-Marten - HG'; Clause 2 (1 1)-- ··P¤¤•cribed" (New) ........ · 12 Clmse 2 (12)- " Representative " ..... . · - · U Clause 2- New points . . .- ....... I5 Clause 3 (1)(o)— Instruments requiring registration under any law for their validity 15 Clause 2 (UG)- Non-testsmentary instruments generally ..... 16 Clause 3 (1) (ic)- Leases .......... 17 Clause a- Assignments of decrees . . . . . . . 18 Clause 3 (1)- Explanaticns ........ . IB Omission of section 17 (1)(o) ...,... 18 Clause 3 (1]- _»- New points . ........ I9 Clause 3 (2) (tz) ....... . . IQ Clause 3 (z)(b) .......... 19 ' Clause 3 (2)(c)-— Pcint regarding receipts extinguishing mortgage . . . zo Clause 3 (2) gd)- Exemptton for counterpart of eleese ..... 22 Clause 3 (2)(e) end. clause }(I>E.1pl.G{) .... 26 ` *1 Clause ¤|(2}(_{)—- uecreejplaiut, etc.,{pf [which copies are IO be sent Under new ClRI1SC:42 .......... :.7 llviil Susyacr-Mates PAGE Clause 3 (3)- Adoption ...... . . . . 2B Deeds of adoption .-... . . · · 30 Clause 3- (New points)- Wills . . . . . . . . .. - - 3¥ Clause 4 . . .... , . . - · 32 Clause 5- Documents in other languages . ~, . • - · 32 Clauses 5 to 7- Suggested standard form to be signed by the exeeutant 33 Clause 6- Point for phctostst copies ...... .. 33 Clause 7 (1)-- 34 Clause 7 (2) and (3)- Description of property . . . .. . . • 34 Clause 7 {4)- Copies of maps tc accompany documents . , . . 36 Clause S (1)-- Time for presenting documents ...... 37 Clause 8 (2) A Period of wills . ........ 38 Clause g- Doeuments executed bfjseveral persons in different times . 38 Clause to- Fim for tlelay in presentation ...r.. 39 Clause 11- Dueurncnts executed outside India . . . . .. 4`{ Clause I2 (I)- Place of presentation . . . . . . . . 41 (Fiiii) SU'B]ECT-MATTER PAGE Other points- Verbal changes ......, , _ 48 (_]onc1usio11 . . . ` . . . , _ _ _ 49 Etfect of proposed change n , , _ _ _ _ _ 49 Analysis . . . .... , _ _ 49 Clause I2 (2)-—· Place of presentation of will or authority to adopt . . , 50 Clause I2 (3}- Residual Provision for place of ngistration _ _ _ _ SO Clause I2 (4)- Detinition of " notice " contd. , _ _ _ _ _ SI Clause I3 - · - · - . . . . , 55 Clause I4 . . · . . . . , _ _ sg Clause 15 (:2) (i) .... . . .. . . 58 Clause I5 (6) ..... , . . . . . gg Clause I5 fc) ----r l ' . . . . , 60 Clause 16 . . . . .. . . . . . 60 Clause 16 (I)(¤) -···· · . . . 61 Clause 16 (2-) Bild (,3} - · - .... . 61 Clause I6 (4) · - · - · » · . . , 61 Clause 17 .......... 61 Clause IS (1) ·‘‘- . . .... 61 Provisn . . . » . · . .... 61 Clause 18 (2) and (3) . . . . . . . . 62 Clause 18 (4}- Rgtuyn of dccumcuts for HGH-appearance , , .5 _ 62 Clause IQ (6) . . . . . . . . . . 64 Clause IQ (e) ,, .... . . . . . 64 Clause 19- New point .......... 64 (ix) Sun11:c1·—Mmr·rm2 Pam; Clause 20 (1) fa) and (b) (iz`) ....... , 64 Reading over document and proof of [attestation . . . 64 Clause 20 (2) ......... 68 Registration on admission of execution ..... . 65 Clause 20 (3) ......... 69 Clause 21(1)— . . . . .... . 69 l Prosedure on denial ofjexecution . . . . . . 69 Clause 2I (2) . ........ 72 Clause 22 (1) . . . . . . . . .. 72 Clause 22(2) ...... . . . 72 Clause 22(3) ..... . . . . 73 CIBUSC 22(4] . • • • • • • • • Clause 22(5) . . . . . . . . . 73 Clause 22(6)(b) . . . ...... 73 Clauses 21 and 22 ....... . 74 (Omlssicm or alteration of sections 1I to 76). Clause 23 ..... , .... 74 Clause 24. .... · . ..... 75 Clause 25 ...... . ...- 75 Clause 26 . . . .... . . . . 76 Clauses 27-2B ......... . 77 Clause 29[I] .......... 77 Clause 29(2) . . . . ...,.. 77 Clause 30 .......... - 77 Clause 32 ........ ‘ . - 77 Clause 33 ...... . . . . . 77 Clauses 34-35 . . . . . ..... 78 Qiaugeg 36(:)(3) and (4) ........ 73 Clause 36- New point r . . . . . . . . . 78 (X) Suajncw-burma Pass Clause 37 .......... 78 Clause 3S .......... 19 Clauses 39 and 4D ......... 79 Clause pix} .......... B: Clause 4I(2) .......... SI Clause 41-‘ New palm. ......... . S2. Clause 42(1) ...... . . . . 32 Clause 42(I) and security bends . ..... S6 Clause 42(2) ..... . .... Sci Clause 42{3) . . . . . . . . . . 36 Claus: 4201) (New) . . . . . . . . . . . 87 Clause 42.-- New point . . . . ...... ERB Clause 43 ..... . . . . . SS Claus: 44[I) . . . . . . . . . . 89 Clause 44[Z) . . . . . . . . . . 90 Clause 45 . ..... . . . . 90 Clause 46 .......... 90 Claus: 46-- New point .... . ..... QI Clause 47(I) .......... 91 Clause 47(2j .......... QI Clause 4*3 (New) . . ..... . . . . 91 Clause 4‘é!·(3) .......... 93 Clause 49{I) .......,.. 93 Claus: 49(2) . . . . . . .... 9] Clause 50 . . . . . ..... 93 (Ki} SuB3zct·MArr1;1=. Pscu Clause 5r(r) .......... 93 Clause $I(2) .......... 93 Clauses 52 to 54 ......... 93 Clause 55 .......... 93 Clause 56 ........ . · 94 Clause 57 .......... 94 Clause 58 .......... 94 Clause 5; .......... 94 Clause 60 . . . ....... 94 Clause 6r .......... 94 Clauses 62, 63 ..... . .... 96 Clause 64 .......... 96 Clause 65(1) . . . . . . . . . . 96 Clause 65(z) .......... 97 Clause 65(3) ..... . . . . . 97 Clause 65(4) .......... 97 Clause 66 .......... 97 Clause 67 . . . . . . .... 95 Clause 63 .......... 98 Clause 69 .......... 99 Clause 70- blew point regarding hcensmg nf document writers . . . . . . . . . . 99 Clause 70(.·:) ........ . . IOO Clause 71 .......... me Clause 12 .......... m0 _ Clause 73 .......... mc Clause 74 ..... . ..... mr Clause 75 .......... IDI Clause ·76(1) .......... mr Clause 76(:) (e) and (Ia) ........ rez (xii} Suurscr-Mnrsn imno Clause 76(2}(h)— New point . . . ..... . .. . I·?2. Clause 76(2)(i) , . . . .. . ~... me Clause 76(2)- Other points ...... . . . IO2 Clause 76(z)-— New point regarding document writers ...,.... 102, Clause 77- Exemption for Government ..t.... mz Clause 78 .... . . . . . 103 Omitted Sections . . ..,.... 1¤3 Omitted section I’]\'(I)[C) ...,... , 103 Omitted section r7(z)(iij ........ IU4 Omitted section r7(2)(vi) . ....,.. IOS Omitted section 23A ..... 4 .... 105 Omitted section 10 ......... 106 Omittcd sections 72 and 7 ..... . . 106 Amendments in the Code of Civil Procedure ........ 106 Suggested new provisions . . , . . · . ‘ [Q7 Enquiring ss to title ......,.. ‘to7 Registration of documents · i opposed to public policy ..,..., ::07 Copying by‘ph¤¤¤gmphy ...,.,. ` . 10B Transfer of proceedings ........ 1108 Remission of fees ....... . . . 108 Registration by Panchsyats ....... 108 Later suggestions- ` (Q Section 30<2) . n ....... it-n (iz') Section 2(1)—deii11ition of "addition"` ......, ‘ _ l In (xiii) Suujncr-Mnrun PAGE (iii) Section 34-and foreigners .... . . III (iv) Section 67A(New) ....... III Recommended changes . . . . . . . . U4. Appendix ..... . . . . . . 114. Avrmnxx Draft amendments to the existing Act . . . . . . . . . . rr; Report on the Indian Registration Act, 1903 1. The circumstances leading to the preparation of this G¢¤¤¤i¤ 0f Report may be briefly stated. The Law Commission had ‘h° R°P°" submitted to the Government of India a Reportl on the Indian Registration Act, 1908. The Government of India. circulated that Report for comments to State Governments,. High Courts and other interested persons and bodies. As the comments received by the Government of India revealed disagreement with the recommendations made on the earlier Report on several points, the matter was referred to this Commission again, for giving its opinion in the light of those comments. That is the genesis of this Report. 2. In our consideration of the subject we had to carry $¤¤i¤¤ vi"' our study beyond and behind the Sixth Report, as, without '-h° R°P°’t such study, it was not possible to appreciate many of the p-oints which we had to- consider. Moreover, several of the comments raised points on which the Sixth Report had not suggested changes. It was for this reason that we had to make a de novo examination of the Act. We have, how- ever, been cautious in suggesting amendments of a radical nature, except where we felt that the matters were im- portant enough to justify their being raised by us. As a matter of form,' however, we have related our dis- cussion to the clauses in the Bill appended to the Sixth Report. This appeared to be a convenient course, as the "cornments" were- grouped clause-wise, and we have tol- lowed that course in this Report, except in the later por- tions? of this Report where it was impracticable to do so. 3. We now proceed to examine in detail, clause by clause, tgsmmsius the comments received* on the earlier Report, and to in- considered dicate our recommendation thereon. A suggestion has been made for exempting the Govcrn— jgxsmpsss ment from the operation of Act. This will be considered for Govern- latel-4_ ITICHI A suggestion has been made that the title of the Act Short tit1= should be changed to the "Registration of Documents" Act. We do not accept the suggestion. It is true, that the object r. Sixth Report (Registration Act). (July, 1957). 2. Portions dealing with omitted sections, suggested new provisions and later suggestions. 3. The clauses referred to are the clauses of the Bill appended to the Sixth Report. 4. See discussion under clause 77. 2-109 M of Law. 2 of the Act is registration of documents; see the preamble, long title and heading to Part III (before section 17). Re- gistration under the Act is different from "registration" under the Societies Registration Act, the Partnership Act, the Companies Act, etc. However, we do not see any need for any such purely verbal changei. Ghusc xw Existing section l(2), proviso, empowers the State Gov- ernment to exclude any districts or tracts of country from the operation of the Act. This was proposed to be deleted t in the Sixth Report. The reason given for the deletion of this proviso in the earlier Iieportz, was:- "We are of the opinion that there is no reason why State Government should be given the power to ex·— any areas from the operation of the Act." The- comments received, however, press for- its reten- tion. It would appear, (from these comments) that in backward tracts, or in far-Hung, snowbound areas, people may not be able to understand the effect of n-on-regist1‘a- tion, or may sometimes find it impossible to come for re- gistration in the harvest season. The proviso would be necessary to avoid hardship in such cases. There is some force in this objection, and we recommend that the existing proviso should be retained? ($**5*}*** 4*),, (a) Definition of "addition" proposed in the Sixth Re- " *‘dd"‘°" port may be acceptedt, so far as the change regarding married women is concerned? (b) Omission of "rank and title? was recommended in the earlier Report“, in view of the changed constitutional set up. But, as foreigners may also have occasion to get documents registered, we think that this change need not be mode. (No comments have been received on the definition of "addition" as proposed in the Sixth Report). Clause 20] The earlier Report had proposed a new definition-——— "alfect immovable pr0perty"". A suggestion has been made to add the word "intends” in the proposed definition in 1. Any recommendations for making minor changes are subiect to the view expressed in this Report as to whether the Act should be re-enacted O! (IOL 2. Sixth Report, page 8, paragraph zo. 3. See Sukmi Bolo v. Hamann Kumar, A.I.R. rg57 Assam 153,, pagraraph 6, as ro che proviso. 4. Sixth Report, page 9. 5. See section 2(I), as proposed to be amended. 6. Sixth Report, page 9. 7. Sixth Report, page 40. 3} clause 2 (2). If the suggestion is accepted, the proposed de- Finition would read- "A document is deemed to affect immovable pro- perty, if it intends, purports or operates to create, etc ...... ". The reason given for the suggestion isi, that semi-illite- rate document-writers in the villages draft documents very badly, (so that the intention of the party is not reflected in the document). In such a case, the word "purports" may not be adequate and addition of the word "intends" ’ would ensure that the intentions of the partis are taken into account. This argument cannot be accepted. The pro- posed deiinition is merely a formal one; the earlier Reportz explained that the object of the definition was to avoid re— peating in every section the long clause "wh.ich purport or operate ...... ". Further, what was the intention of a particular person at a particular time is not always easy to determine. An elaborate enquiry into what was or was not the intention of the parties may prove a. source of delay and uncertainty. It is true, that courts have- often to decide questions of in- tention. But, when the very validity of a document de- pends on such uncertain factors, it would not be wise to adopt that test. It must be noted, that the registration of a document is for all times, and where, for example, the- exe- cutant is dead, it will be fairly ditiicult to dete-rmine, after his death, what was his intention. What is recorded in the document can be interpreted; what is not recorded there create- a difficult problem of interpretation for the courts. We do not think that the proposed definition of the- ex- pression "affect immovable property" is required. It will be more appropriate to retain the describing words in existing sections 17 (1) (b), 18 (a), etc. '1`he dehnition need not, therefore, be added. The deiinition of "book" in section 2(2) is, at present, C*¤¤¤¢ Zta? inclusive only. Clause 2 (3)——definition of "hoo1<"—proposes the addition“ of the words “meons any of the register books to be kept by this Act and". This was proposed to be added to make the definition more explicit'. Regarding these added words, a comment has been received that they might limit the scope of the definition to such register books as are prescribed by the Act itself, and might thus leave out those prescribed by the State Government under the Act. It has, therefore, been suggested that after words "by the Act", the words “or under this Act" may be added. As there is a general power to make rules under clause 76(1) (which takes the place of existing section 69), therefore, if the 1:. Sixth Report page 73. z. Sixth Report, page 73. 3. Sixth Report, page 40, clause z(3). 4. As explained in Sixth Report, page 73. 4 change proposed by the Sixth Report is to be made, it would appear to be safer to accept the suggestion made in the comment also. We, however, think that it is not necessary to carry out the proposed change, because the expression “:register book" is not used in the body of the main section; dealing with register books. The change may be dropped. Clause zig) Clause 2(5), corresponding to existing section 2(5), defined “endorsement". A suggestion has been made, that the deiinition should cover an entry in writing made by the registering oflicer on a sealed cover deposited under the Act, as the registering authority has to make an endorse- ment on cover.; intended for deposit also. (This is not a comment on any change proposed by the Sixth Report, but a suggestion on the existing Act). We may refer, in this connection, to existing section 42, clause 43(I) in the Sixth which a will can be deposited with the Re- gistrar. Under existing section 43—clausc 44 in the Sixth Report-the Registrar has to note, on the sealed cover con- taining the will, certain particulars. If the suggested change is made, it would be useful for the purpose of all those sections where the word "endorsement" is used. For example, an incorrect "endorsement" is punishable under one of the provisionsz; the- proposed change will be useful for that provision. The suggestion should, therefore, be accepted? Clause 2(6) Clause 2(6)~definition of "execution" (new) defines it as "the act of voluntarily signing a document having under- stood the contents thereof". The object behind adding the definition, as explained in the earlier Reporti, was to make it clear that execution imports not merely signature, but signature after understanding the contents. Now one com- ment states, that the definition is not necessary, while an- other comment is to the effect that the definition is wide and would leave the doors open for litigation. Ordinarily, it is said, execution would mean "duly executed? i.€.. signed, sealed and delivered by the executant. The definition is important for the sections dealing with presentation of documents for regisiration—for example, section 32(a) and (c) and, more particularly, sections 34(3) and 35 dealing with proof of execution. For the present purpose. sealing and delivery have not much relevance. Hence the non-mention of those requirements may not cause much difficulty. What is sought to be stressed is,—mere proof of admission of signature should not amount to r. Existing section 51. 2. Existing section 81. 3. See section 2(5)» as proposed to bc amended. 4. Sixth Report, page 73. 5 ' r execution,*·2 and therefore, the proposed definition, has the beneficial object of preventing fraud? However, a small drafting change may be suggested, and the definition may be re-worded as follows:—— "execution", in relation to q document presented for registration, means execution by a person who has understood the contents thereof. Regarding clause 2(7)-—de1inition of "immovable pro—-cmu; sry) perty"—corresponding to existing section 2(G), several points have been and it will be convenient to deal them one by one with reference to the topics to which they relate. These are as follows:- (a) Standing timbe1‘——Under the existing section, standing standing timber, growing crops and grass are excluded ¤mb°' from "immovabl€ property". Under the proposed pro- vision, they are to be excluded "whether immediate severance is intended or not". The reason for this pro- posed clarification, as explained in the earlier Report", is, that there is a conflict of decisions as to whether standing timber, when it is not intended to be severed immediately, should be treated as movable or immov- able property. The Commission was of the view, that for the purposes of the Registration Act, standing tim- ber should not be regarded as immovable property, whether it is to be severed immediately or not. While the proposed amendment has been accepted in the comments received from some quarters, other comments have raised a number of objections thereto. One comment is, that "standing timber" is always to be cut and never allowed to stand, and therefore, the pro- posed addition is not necessary. To this, one may reply, ~ that in view of the coniiict of decisions, some clarifica- tion is desirable. Another comment is, that a period of three months from the date of sale may be fixed for . removal of the timber to constitute it as standing tim- i ber. lt is argued, that if there is no restriction regard- ing the period during which the timber is allowed to stand, it will be more in the nature of lease (and should be regarded as "immovablg property"). This can be answered by pointing out, that it would not be practi- cable to- impose any such hard and fast limit. Yet another suggestion is, that standing timber should not be classified as movable property by way of an unqualiiied r. rf, the discussion in Mulla, (1963), page 14S, 13th line and page 149. 2. See also the review of casc·l.aw in Kirkus; v. Maz-ori, (1963], 65 Born. L.R. 578, 582, 584,—holding that —-"execution" in section Q5 connotcs. knowledge of contents. 3. To be carried out only if thewholc Act is re-enacted. 4. Sixth Report, page 9, paragraph 21(B), text corresponding to foot- notes r and 2. 6. exception; it should be classified as movable and immov- able according to permanency and continued growth for a period, stability of the tree, prejudice to the soil, etc. Tl‘11S, however, does not appear to be a workable course, and would encumber the definition with complicated criteria. _ . It has, further, been suggested, that the new words “whether immediate severance is intended or not" should not be read with the words "standing timber" (but only with growing crops or grass). Standing tim-- ber (according to the suggestion) should be treated as movable property only if immediate severance is in·- tended. It may, however, be noted, that after the sub- mission of the earlier Report, the question of standing timber has come up for consideration before the Supreme Court} (The case related to the Madhya Pradesh Abolition of Proprietory, etc., Act, 1950, but the court had to discuss the interpretation of the words "immovable property" in relation to standing timber). The Supreme Court stressed the aspect of susatencnce by the soil. The Court pointed out that trees were immovable property, because they are attached to or rooted in the earth; but standing timber was not immov- able property. It was intended to be used as timber. The Supreme Court further observedfz ‘(29) Now, what is the difference between standing timber and a tree? It is clear that there must be a dis- tinction because the Transfer of Property Act draws one in the definitions of "immovable property" and "attach— ed to the earth"; and it seems to me that the distinction must lie in the difference between a tree and timber. It is to be noted that the exclusion is only of "standing timber" and not of "timber trees". _ * ¢l< * =h Therefore, "standing must be a tree that is in a state fit for these purposes and, further a tree ‘ that is meant to be converted into timber so shortly that it can already be looked upon as timber for all practical purposes even though it is stil] standinw- It not, it is still a tree because, unlike timber, it will con- tinue to draw sustenance from the soil. ‘(3l) Now, of course, a tree will continue to draw sustenance from the soil so long as it continues to stand and live; and that physical fact of life cannot be altered by giving it another name and calling it "statnding timber". But the amount of nourishment it takes, if it is felled at a reasonably early date, is so negligible that ;. Sluznmbrzi v. Snare of Bombay, {rose) S.C.R. 265; A.I.R. 19;:8 S.C. 53*-, 537, pawsraph 33- 2. Paragraphs ze to 31 in A.I.R. 7 it can be ignored ror all practical purposes and mough, theoretically, there is no distinction between one class of tree and another, if the drawing of nourishment from the soil is the basis of the rule, as I hold it to be, the law is grounded, not so much on logical abstraction as on sound and practical cornmonsensc. It grew empiri- cally from instance to instance and decision to decision until a recognisable and working pattern emerged; and , here, this is the shape it has tal~:en.’. The Court cited with approval the view expressed in MuIla’s Transfer of Property Act, (-ith edition pages 16 and 21) that "if the transfer includes the right to fell the trees for a term of years, so that the transferee derives a benefit from further growth, the transfer is treated as one of immovable property". The court fur- ther added. "Before a tree could be regarded as a stand- ing timber, it must be in such a state that, if cut, it could be used as timber; and when in that state, it must be cut reasonably early, The rule is probably o grounded on generations of experience in forestry and . commerce, and this part of the law might have grown out of that. The tree might Otherwise deteriorate, and its continuance in a forest after it has passed its prime might spoil the forest and eventually the timber market. But however that may be, the legal basis for the rule is. that trees that are not cut continue to draw nourish- ment from the soil, and that the benefit of this goes to . the grantee". ‘I‘he change proposed in the earlier Report is not, therefore, necessary now, and can be dropped}-2 (b) Fruit and Juice _The earlier Report proposed mein and to exclude, from "immovable property", "fruit upon and l“‘“ juice in trees whether in existence or to grow in iuture". The reason given vvas3 that in accordance with prevailing judicial opinion, it should be made clear that fruits upon and juice in trees should not be considered as immovable property whether they exist at the date of the contract or are to grow in future. It may be · notedt, thateven now, fruits upon and juice in trees are excluded from "immovable property", because of their inclusion in the expression "immovable property" in existing section 2(9). Thus, the only change is the addi- tion of the words "whether in existence or to grow in future,". Now, a comment has been made that a deed confer- ring right in respect of fruit upon and juice in trees to 1. See also Bmjndzh v. Ramadhan, A.I.R. 1963 All, 2I4(F B). r... Mulla (1963}, deals with the matter at pages 6-7. ;. Sixth Report, page 9, paragraph 2I{B). 4. cf. Sixth Report, page 74, top, note relating to draft section zf7), B grow in future would automatically create a right in the land itself, as the land would provide further nurzriment for their growth. Hence the added words, it is sug- gested, should be deleted. In reply to this, it may be pointed out., that it has been specifically heldl that fruits to grow in future are also movable property. It has also been held? that a lease of trees granted to em- power the lessee to take the juice of the tree is mova- ble property. While it is true that the fruits derive sustenance from the land, they have to be ultimately detached from the land in all cases. Hence the proposed clarification is useful? It has also been stated, that the words "grown in future" would not be appropriate for juice, because- juice does not "grow". But we found that it was not easy to devise a happier expression, and, therefore, no change in the wording proposed in the Sixth Report on this point is necessary. Regarding fruits, the earlier Reportt cited an Allahabad decision“. As pointed out in the Allahabad case, the earlier cases were decided under the old Act. Therefore, strictly speaking, there is no conflict of decision. How- ever, the change proposed in the Sixth Report is a good clarification. The clarification regarding fruit as well as juice should, however, be added in the definition of "movable property". Macmmty (c) M·:vchiner·g—The Commission had proposed in the earlier Report that "machinery" be excluded from the definition of "immovable property", in these Words:—— "machinery embodied in or attached to the earth when dealt with apart from the land". It was explained in the earlier Report"', that hard- ship is caused where machinery embodied in or atta.ch— ed to the earth is sold without the land and is treated as immovable property. The purchaser has to pay stamp 1. Raja Devi v. Muhammad Yakub, I.L.R. 47 All 738; A.I.R. 1925 Alg—— 411 (Mango crops). z. jkmoo v. Huche, (Bengal), {1868) rzW.R. 366; cited in Mulla, (1953),, page 16. ` 3. Mulla, (1963), deals with the subiect at page 16. 4. Sixth Report, page g. 5. Rojo Devi x. Yakub,. I.L.R. 47 All. 738; A.l.R. 1925 All. 4II. 6. See section 29), a proposed to be amended. 7. Sixth Report, page 9, paragraph 21(B). 9 . duty on the machinery as well as on the land, to get. the document registered. To avoid this hardship=, this. clariiication was proposed. Now, divergent comments _ have been received on this change. On the one hand, it has been suggested, that the proposal to tre-at such machinery as movable property will give chances to people to evade stamp duty and registration fee, by deliberately executing separate documents for land and for machinery, even though the machinery is embodied 4 in the earth, etc. On the other hand, it has been sug- in some comments, that the words "whsm dealt. _ with apart from Zcmd", should be deleted, thus making, all machinery movable property, even if sold with the land. There does not appear to be much force in the first objection. If machinery is dealt with separately, it should, on principle, be treated as movable property., In fact, even now the degree and object of annexation is an element to be taken into accountl. This is also- fairly clear from the words "permanent1y fastened,. etc.", ` We may, by way of example, refer to the ease of a flour mill. It can change hands and be removed, while, as has been pointed outz, a house cannot be removed. without demolition. The degree and object of annex- ation are the tests usually applied. If the machinery is dealt with separately, it stands to reason that it should be regarded as movable? This disposes of the second point also. No change in the proposed provision is re- commended. The proposed change be accepted. (d) Other points —A suggestion has been made that stock—in—trade or share may be excluded from "immovable property". No such clarification is neces- - sary? It may be added that the re-arrangement of items of "immovable property", and the omission of "mov- - able property", proposed in the earlier Report_ does not appear to be necessary. The definition of movable pro- perty may bette-r be retained in view of its afhrmative value. The diiinition of "India" was retained in the Sixth Clause z(S;· Report.5 But our view is, that the definition should be -E;=iSri¤s omitted. The definition is derogatory to the provisions of €§g%f’DC?¤i ————; —-——~——— tion of 1. Mulla, (1963), page 6, text corresponding to footnotes (11), (i), (jj, nllldlan 2. Cf.Khcm Chmid v. Nbr Muhamrrzod, A.I.R. 1966 Lah. 242. 3. This aspect was not discussed in Mohammad Ibrahim v. N.C.F.T.C., A.I.R. 1944 Mad 492. 4. See also discussion relating to clause 3, and relating to omitted section r7(z)(ii). 5. See section 2(6A), as proposed to be omitted. 10 the Constitution. The expression "lndia", occurring else- where in the Act, will, in our opinion, be construed in accordance with the extant clause. The fear that, if the de- finition is omitted, the definition in the General Clauses Act will apply, is not well-founded. It is also our view, that the expression "India" occurring in the various sections need not be replaced by "territ0ries to which this Act extends". I Egigssgig) The existing definition of "1ease" in section 2('?) says, that it includes a counterpart, lcubuliyut, an undertaking to cultivate or occupy, and an agreement to lease; instead of this, a new definition has been proposed in the earlier Re- port—clause 2 (9) —as followsr- ‘ "lease" has the same meaning as in the Transfer of Property Act, 1882, and includes a counterpart’_ The differences between the existing and the definition proposed in the Sixth Report may be analysed as follows: — (i) The existing definition is merely an inclusive one, while the proposed definition adopts the definition in the Transfer of Property Act. This has not provoked any comment. The expression "lease" in the Registration Act has been held to hear much the same meaning as in the Transfer of Property Act`, and that was also the reason for making the change? \Ve are not how- ever in favour of this change particularly if the whole Act is not to be re—cnacted. (ii) The existing definition expressly includes an agreement to lease. The Sixth Report proposed its omission, because, as explained in the earlier Report“, this had been interpreted by the Privy Cou.ncil* as con- fined to an agreement to lease which creates a present and immediate interest in the land i.e. one which effects ` an actual demise and operates as a lease. That being the position, it was considered unnecessary to retain the expression in the definition. This change also has not provoked any comment, and we may, further, note that after the Sixth Report was submitted, the Supreme Court” has also reaffirmed the view expressed by the Privy Co-uncil. (iii) The existing definition includes not only a counterpart, but also a Kubuliyct, an undertaking to cultivate or occupy and an agreement to lease. The r. Mulla, (1963), page 8. z. Sixth Report, page io, paragraph zi(c). 3, Sixth Report, page IO, paragraph z1(c`). Pcs). Hamann: Kumcz—i’s case (I9I9), 46 I.A. 240; ].L.R. 41 Cal. 485. L . . 5, T1-inenfbai v. Lilabai, (:959) S.C.R. 233; A.I.R. 1959 S.C, 620 (also mama the meaning of "Countcrpart". See page 624 i the A.I.`R.). 1I . definition proposed in the earlier Report includes only "cotmterpart". A comment has been received to the effect that "counterpa1·t" should not be included, be- cause the "countrpart" which is to be executed by the tenant in favour of the lessor does not involve any trans- fer of property. While this may be theoretically correct, one must also take into account the practical aspect, namely, that often landlords are in the habit of letting out immovable property merely on documents signed by the lessee alone. In areas to which or cases in which the Transfer of Property Act, 1882 applies, . this cannot happen, because section 107 of that Act (as amended in 1929) provides, that where a lease is made by registered instrument, the instrument must be exe- cuted by both the lessor and the lessee. But in other ; cases the document merely signed by the lessee can still be met with. It is, therefore, advisable to retain the inclusive part dealing with °‘counterpart”. An express provision was proposedl in the- earlier Report to the effect, that the "counterpart" need not be registered, where the lease corresponding thereto has been registered? The existing words referring to "Kobuliyut", and "under- taking to cultivate or occupy", were omitted in the draft proposed in the Sixth Report“. These transactions might, at first sight, appear to be covered. by "counterpart". But this is not strictly true'? It is safer to mention them speci- iically, because these documents—namely, (i) a Kcbuliyot or a rent deed in which a person assents in writing to pay rent in respect of the land rented to him, and (ii) an under- taking to cultivate or occupy—have figured often before the Courts? These should, therefore, be retained in the - absence of an express inclusive provision, a lease does not include a Kobu.liyo:t‘. The result of the above discussion is, that the only point F on which we recommend a change in existing section 2('?) is omission of agreement tg lease"'. Clause 2(l0), following existing section 2(8), defines Clgusq >* Q'} "rninor" as a person who, according to the personal low to " Mm ‘ which he is subject, has not attained majority. A suggestion 1. Sixth Report, page 4.3, clans: 3(e)(d), and reasons at page 18, para- graph 42. 2. See discussion regarding clause 3(z)(d). _ 3. The earlier Report gives no specific reasons for this omis- S!.O1II.. 4. See discussion relating to counterpart. 5. See Mulla, @963), page 10. 6. See Rustomji, Registration Act, (1939), page 17, footnote 2. 7. Sas amandment proposed to section 2(7) . 12 has been made, that there need not be any reference to personal law, and that for the purposes of this Act, mino- rity may be defined as in Indian Majority Act. Now, the significance of the definition would become apparent if we consider, by way of example, one provision wherein thr expression "minor" occurs. Thus, under existing section 35(3)(b)—-clause 21(2)(iii)—if a person by whom the docu- ment is executed, appears to be a minor, etc., registration has to be refused. Will anything be gained by referring to the Indian Majority Act, 1875 (9 of IBT5)? That Act does not contain the whole law of majority. In the Hrst place, it does not affect the capacity of any person to act in respect of marriage, dower, divo-rce, adoption and certain religious matters (section 2). In the second place, even as regards other matters, it applies only to persons domiciled in India (section 3, second para). Documents which come for regis- tration may relate to matters excluded from the Majority Act, or may have been executed by persons not domiciled in India. Therefore, the substitution of a reference to the Majority Act may not improve matters. Hence we do not suggest any change. i?',L:,J,l;bj;` The definition of "movab]e property" should be retained, propertyf though omitted in the Sixth Reportl. Certain additions é>;;:£¤d ¤¤ may o made therein, as already recommendedf. Report) _(E2“i: 2(U) The deiinition of "prescribed", added by the Sixth bcdR(§'c;1“;) Report, may, if the word "prescribed" is used in the subs- ‘ tantive" sections, be addedi'. E2?; ig?) Existing section 2(I) defines a “representative" as includ-- B,,mm€,.,·· ing the guardian of a minor and the committee or other legal curator of a lunatic or idiot. Proposed clause 2(l2) of the earlier Report redrafts the definition by making it more elaborate in the case of a minor It is defined as including, in the case of a minor, his guardian, or in his absence, any near relation of the m'ln0r, or if the ·min0·r is an adopted. son, any near relation in the adoptive or natural family, or, if the minor is a widow, any near relation in the family of the father or husband, being in each case a relation. not having any interest adverse to that of the minor. The reason for this change was thus explained in the earlier Report? A will or authority for adoption can be presented for registration after the death of the testator or the donor of the authority. Difliculties, however, arise when 1. See discussion under clause 2(7) above. z. See discussion under clause z(7) above. 3. This change is thus conditional to the use of the expression- "prcscribed". 4. See section 2(9A), as proposed to be inserted. 5, Sixth Report, page ro, paragraph 2r(d). l3 V the donor of the authority is a minor and thus incapable of presenting the deed of authority to adopt. Similarly, the widow of the donor might be a minor, In the case of a minor adopted son, it had been held that the natural father could validly present the document for registration. Since the improper presentation of a document was a radi- cal defect rendering the document void, the Report had enlarged the scope of the present definition to get over this difliculty. (The recommendation was subject to the dissent- ing note of Dr. Sen Gupta.) Now, this change has provoked numerous comments, and the points raised in the various comments can be con- veniently classified and collected as follows:- (a) The use of the expression "near relation" has been strongly criticised as vague and elastic. It has been suggested, that either degree of nearness of relationship should be specified, or a list of relations in the order of preference should be given. Courts, it is argued, might find it diiiicult to determine who is a neir relation and who is not. (b) Secondly, it has been pointed out, that the widening of the definition will involve s scrambling Over the properties of such minors. To permit any near rel itivc to represent a minor would take away the safe— guards of the rights of a minor. The proposed change, it has been also said, is fraught with grave consequences and may abused by designing relatives and would jeopardise the interests of minors. The retention of the existing provision, has, therefore, been pressed for. (c) Several comments have expressed agreement with thc dissenting note of Dr. Sen Guptal. His view was, that to allow representation t.o any relation was going too far. Practically, any relation may come for- ward and present the document, although the minor concerned is living with another relation who looks after all his affairs, Presentation of a document was a responsible act which bound the minor. It at all any am-endment was necessary it would, in his opinion, be enough to add to the definition a clause saying that where a minor has no legal guardian, any person who may, in the circumstances, be regarded as a de—facto guardian may present s document for registrat ion. The majority reporti had rejected this suggestion because (il the Muslim Law did not recognise a de facto guar- dian, and (ii) as regards the Hindu law, the nature of the acts of management from which a guardianship could be inferred had not been laid down clearly, and, further, section ll of the Hindu Minority and Guardian- ship Act, 1956 had now provided that such a guardian I. Sixrh Report, page 97. 2. Sixth Report, page 11, top. 14 would not be entitled to deal with the minor’s pro— perty. But, in Dr. Sen Gupta’5 opinion, this legal posi- tion need not come in the way of the suggestion regarding de facto guardian. The absence of apower to dispose of a property should not, he stated, affect the right of a guardian to present a document for regis- tration if that was expressly provided in this Act. That would be a special provision overriding the general law. (d) A small group of comments seems to be in favour of the proposed change, and in fact, even exten- sion of the proposed change to lunatics and idiots has been suggested. One comment suggests that it should apply to cases of failure to oct by the guardian also. Another comment suggests an alternative——name1y. that the Registration authority may, after preliminary inquiry, record a capable and desirable person as a person competent to present the document. In view of these comments, the choices now before us are (i) maintaining the change proposed in the 6th Report; or (ii) retaining the existing section; or (iii) extending the change proposed to luna- tics and idiots; or _ (iv) adopting a substituted provision, for authorising a de facto guardian to present the document, as suggested by Dr. Sen Gupta. The First course has to be abandoned, as there has been very strong opposition to the change proposed. There seems to be some force in the reasoning behind the comments. The need for defining a "near" relation would appear to be imperative. And, even after such definition, the possibility of abuse cannot be ruled out The third course should be rejected, on the same reasoning. The fourth course,—substitution of a de facto guardian,—is attractive. But, in practice, it may also lead to controversies as to who is a de facto guardian. Having regard to the fact that authorities to adopt will now be very rare after the passing of the Hindu Adoptions, etc. Act, l95B—Section 8 et seq———- there would not be any strong necessity for a clari- tication on the subject. Therefore, the best course would be to retain the existing section. 15 [If any change, however, is to be made, then, just as the case of absence of the guardian is proposed to be covered, the case of failure to act by the guardians should also be covered, because, as the section stands now, if the guardian omits to act for his own reasons, the case is left uncovered. In fact, the cases of the guardian not being in existence or being absent or refusing to act or for any cause being unable or unfit to act, should all be provided for. In such cases, the permission of the "court" as defined in section M5) _ read with section 4(4) of the Guardians and Wards Act. 1890, should suffice for acting as guardian for the limited purpose of presentation for registration and other functions under the Act-for example, under existing section 77. We are making this suggestion as an alternative, if the section is to be altered in any manner.] Some new points regarding the definition clause have 1(2,l=*¤¤¢%·· been made in the comments. Thus, a suggestion has been °wP°‘""’ made that the words *‘instrument" and "document" should be defined. There does not, however, appear to be any strong necessity for defining these expressions. Ordi- narily, "d0cument" and "instrument" are inter-changeable? Not many controversies seem to have arisen on these expressions, except that there ig, some conflict of decisions about letters? A decree. it has been held, is not an instru- ment". Even as regards letters, the more recent casesi appear to regard "letters" as falling within "instruments" if they contain the terms of the agreement, A definition of “instrument" does not, therefore, appear to be needed. Existing section 17(1) provides for the compulsory regis- Clause 3(1) tration of instruments of gifts of immovable property. The fa) l?¤S*¤*· earlier Report proposed a wider provision in its place. to m,`?';,?', "` the effect, that instruments which under any law réquire gcsistrgtion registration for giving validity to the transaction effected u¤d»=r ¤¤Y thereby should be registered. The reason for this change“l“W-,f°'l-d- was, that it was proposed to substitute a clause which was thm Va 4 uy wider in scope to include all documents which are required by the substantive law to be registered for giving validity to the transaction Comments have been received to the effect, that the words "for giving validity to the transaction effected thereby" would lead to a good deal of controversy 1. See jbharmal v. Tai Ram, {1893) I.L.R. 17, Born. 235, 261. 2.. See Melia, (1963), page 3,9. 3. Kalawari. v. ShriKr£rhna, A.I.R. 1944 Oudh, 49, 53 (EB.}, 4. Seejagannadhan V. Official Assignee, A.I.R. 1931 Mad. 124, 127, 128. 5. cf. Sixth Report, page 12 paragraph :.5, and page 74. 18 and vagueness. It has also been suggested, that the words "required to be registered’° will serve the purpose. We considered this question at some length. The proposed extension of existing section 1'?[1) to transactions required to be registered under (any other) law, is, in our opinion, not necessary. Where registration is required. under a statute other than the Registration Act itself, rhe conse- quences of non-registration will depend on the terms of the statute. As regards trusts, see the undermentioned cases} where these observations occur:- “‘Secti0n 5, Trust Act, provides its own sanction for non—registration, viz., invalidityz-"". The proposed change may, therefore, be dropped. Another comment received is to the clfect that the following proviso should be added to clause 3(1) (a) *2-— "Provided that where a transaction can be validly effected orally or by mere delivery of possession of property, instruments recording the terms of such transaction shall not be required to be registered? The suggestion seems to have been made in view of the fact, that very often courts have to deal with cases on which the transaction has been already effected and the document merely records it. There is, however, no defect in the law on this point, and the difficulties that have been experienced can be attributed to the problem of applying the provisions. No change is recommended, as to this point? €,g°f§§’,gP Clause 3(1)(b), corresponds to existing section l'?`(l)(b), ,,,,,;,,,,,,,,1;,,,; and deals with non-testamentary instruments affecting instruments immovable property of the value of one hundred rupees B°“°”“Y and upwards. The minimum limit oi one hundred rupees has been retained, as in the existing section. Comments have been received to the effect, that in the present con- 1. Gooimi Ram v. Medan Gopal, 721-A 76, A.I.R. 1945 P.C. 66,;,-4 2 As to Wakfs, see Mulla, Maharncdan Law, (196I), page 165, paragraph 187. 3. As to registration required under sections 54, 59, 107 and 123 of the Teasers; or Property Act issiz, me Mulls, Registration Act, (1065), vases 172-I73¤ and section 49 of the Registration Act as it now stands. 4. See also article by Mr. V.B. Raiu (as he then was) “Amcuclments to Registration Aot”. A.I,R. 1953 Iournal 6-S, 69- 5. See for example, Mulla, (I963), (i) page 34, "Declarc", {ii) page 49, Acknowledgement, {iii) pages 40, 42. (Mortgage by deposit of little deeds). (io) page 53, "ReciLals". (2:) page 54, "Admissio¤". 6_ Sei; also Rom Rattan V. P<1rJ¢2a.*1t2:·zd, l.l..R. 1946 Léll'1. 6]; A.l.R. I9.|6 P.C. 51. 1'T . text of high prices this limit is ridiculously low, and to give practical relief it should be raised to tive hundred rupees. (One comment suggests its raising to two hundred rupees). The existing provision was considered in the earlier Reportl, where (though there is no specific discussion as to increase of the limit), the view expressed was, that the time may come for removing the exemption in respect of instruments where the value is below one hundred rupees. If the exemption is removed, it would mean that even for a transaction of smaller value there should be documents — requiring both stamp duty and registration fees It was, however, observed, that this could not be effected without amending the Transfer of Property Act, under which a sale or mortgage does not require even a writing if the value is under one hundred rupees. Since the question whether the limit should be removed from the Act was one of policy and required careful consideration, the pro- vision in the Registration Act, it was stated, "may be retained for the present". In this position, a change in the existing limit need not be considered for the present. Another suggestion is, that transactions relating to immovable property like partition, release, sale, etc., for less than one hundred rupees, should be effected only by registered documents. This also cannot be considered for ‘ i the present, for the reasons given above. Clause 3(l)(b)——substitute the words "affect immovable _p1operty". This change has to be dropped? Following existing section 17(i)(d), clause 3(l)(c) Clause 3(1) requires registration of leases from year to year, etc., sub- (C) 1**** ject to the existing proviso the State Govern- ment can grant exemption from the operation of this clause in any district, etc. where the perzod of the lease does not exceed 5 years and the annual rent does not exceed Rs. 50. One comment suggests that the limit of Rs. 50 may be replaced by Rs. 100. Another comment suggests that, to avoid dis utes regarding genuineness or otherwise of agricultural leases, compulsory registration of such leases should be provideclfor. _ Tho-ugh these points were not specifically considered in the earlier Report, the trend of that Report“ was, that the proviso was an enabling provision for the benefit of agri- culturists, and should be retained to obviate the necessity of getting such leases registered. The commented pro- visions in the Transfer of Property Act, sections 107 and 1. Sixth Report, pages II, tz, paragraph 26. 2. See above, discussion relating to clause 2(z). 5. Sixth Report, page 14, paragraph 3I 3--109 M of Law. p 13 117, wer also consideued. Murenvar, a drastic provision :0- quiring all agricultural leases t0 be registered would mean that even such leases from month 1:0 month 01* for an year 01* less than a year should also be 1·0gistcred,—which would be an extreme position to take. Hence HO change is suggested 0n this pc:-int. We d0 not also think it neecssary tg increase the limit of Rs. 50 in section 1'?(1), proviso. Clause 3g1) Departing from existing section 17(1) (e), clause Cd)-A¤¤;S¤· 3(1)(d) provides that assignment of "0xccutabl0 decrees OI' gg‘,;S° 0rdcrs" need not bc- registered. A few comments have been received to the effect, that the existiniprcmion should be retained. Now, the reason for this c amgc, as stated in the earlier Raporti was, that, in the case of executable ‘ decrees 0-1- orders, the transferee has, under Order 21, rule 16. Civil Procedure Coda, to satisfy the court about the assignment; the further requirement 0f registration was, therefore, unnecessary, as, •a~v•.=:11 if the assignment is registered, the court has to inquire into its validity. We feel, however, that every case 0f assignment may not go tc court, and even if it goes t0 court, registration of the assign- ment may supply good evidence. The proposed change should, therefore, be dropped. CI¤“¤—‘= 3(U Clause 3(1) Expla·n<1ti0·ns.—The First Explanation to ;;£§p1“““’ clause 3(1) is new? It may create difficulties, and should be dropped. Existing‘s0cti0n 17[1)(c) was p1·0p0s0d“ t0 be omitted. gcgiggm °f Clause 3 (1)-—-Omissicm 0f existing section 17 {1) (.1-) .— Iqmgcy Existing section 17(1) (cz) has been omitted in the {ith R0- p0rt‘*. Its omission was linked up with the proposed exten- sion of the Transfer of Property Act t0 whole 0f India. Extension of the Transfer uf Property Act may, however, take long time. The omitted provision should, thazcfore, be restored. h The Sixth Report, as an alternative, suggested a redraft 0f section 1‘7(1) (c), to make it clear that it d0es 110t apply to receipts in respect 0f transactions already registered. This is also not necessary, as there is :10 real conflict 0f decisions.? Existing section 1'7 (1) (0) may, therefore, be ·res‘tc~·red, “ as at is- 1. Sixth Report, page 15, paragraph 32. g. Sixth Report, page 74,- bottom. See Mulla (1963), page 37 for ccnflxct. 3. Sixth Report, page 13, paragraph 29-30. 4. Sixth Report, page I4, paragraph 30. 5. See Chmmmu Saks; v. Szzphm, A.I.R. 1947 Pat. 300, 301, 302, para- graphs 8-9 (Reviews cas:—Iaw). K 19 A suggestion has been made that a deed, lists of parti- 9*** 350} tion relating to immovable property should be registered. r'"" p°"“’ This cannot be accepted. It is true, that in practice ques- tions very often a-rise whether a document is a deed of partition or whether it merely recites a partition already orally effected. The distinction between an acknowledg- ment of partition on the one hand and an instrument of partition on the other hand, is well known, and though there may be ditiiculty in applying the principles, yet the principles are If the document is the sole evidence of the partition, it is registrable; otherwise it is not? It is true that previously there was some conflict of decisions on the point whether an unregistered instrument of partition could be used to prove that the parties ceased to be joint. The matter is new settled by a Supreme Court decision, answering the question in the affirmative} A few points regarding p·artition have been already dis- cussed.5 Clause 3(2) (a).—Regarding clause 3(2) (ei) which fol- lows existing section 17 (2) (iii), a suggestion has been re- Cl¤¤s¤3(2)(n) ceived to the effect that "debenture" and "debenture stock" appeared to be different from each other and therefore, "debenture stock" should be added in the definition of the word "debenture~”. This appears to be unnecessary. Debenture stock is of the same nature6 as ordinary debentures, except that ins- tead of each bond securing a definite amount, the whole sum secured is treated as a single stock, and a certificate is issued to each holder declaring the holder to be entitled to a definite part of. the stock.? The verbal changes, however, made by Sixth Report are not necessary, and may be dropped. Clause 3(2)(b).—-The verbal chan es“ made b Sixth Report are not necessary, and may be éiropped. Y Cmuscswib) I. See thc Privy Council case of Bageshwari Charon v. jagarmzrh Kum-.:' 5Q LA, 130; A.I.R. 1932 P.C. 55, 66; I.L.R. II Pat. 272, adverring to the distinction between a mere recital of fact and something, which itself creates a ncle. This was a decision on the word "Declared". 2. See also Mulla, (1963), pages 34-35. .Sce_.foc1m , " j , $....3Jm, »..{R?‘I9§’J“M.fl‘F.s“$?§j°£§7“?§‘T§$‘] ,.'l.»f.;“;`1i'l§"’;Z.i"".;',.";;'.$‘_T’§.2 also Mulla, (1963), page 49. " 4. Mm Bar v. Gim Bai (I959) S.C.R. 479; A.l.R. 1958 S.C. 706. 5. See discussion under clause 3(1)(a). 6. Mm-my v. Berrnig, (1908) WIN. 153; (1908) 2 Ch. 493. 7. For details ree Jowin, Dictionary of English law, (1959), Vol. 1» page 580. ‘ ‘ 8. Sixth Report, page 17, paragraph 37. 20 C1¤¤¤¢ $(2} Under existing section 1'?(2)(xi), any endorsement m?m cm. a mortgage-deed acknowledging the payment of gxdnguaijng the whole 01 any part of the mortgage-nnoney, and mortgage. any other receipt for payment of money due under a mort- gage, when the receipt docs not purport to extinguish the mortgage, is exempt from compulsory registration. Pro- posed clause 3 (2) (c) omits the words "wh.vm the receipt docs not purport to extinguish the mortgage". The result of this change would be, that even a. receipt extinguishing an m0z*tgaga—<:x· rather, "pu1·p01~ting" to do s0—w0u1d be exempt from compulsory registration. The reason for this change, as explained in the earlier Rc-p01·t‘, was, that a mortgagee may whil receiving the last payment due 011 the mortgage cr sum lesser than the mortga me 0f debt, issue- a receipt acknowledging the discharge of tie debt in full by such receipt. ThEI`€ is I10 reason why the receipt should become compulscrily rcgistrabl merely because it also states the fact that by the payment recited therein in the debt is iinally E'Xfi1'1gUiShEd] , A person having notice of the registered mortgage (it was stated) would naturally inquhe whether it is extinguished 01 not. More- over, it is not the receipt which discharges the security, but 1,11 fact of the discharge of the debt. Hence it was cumi- dered unnecessary to require registration of receipts in such cases. This change has provoked the comment, that there- under, if a property is once mortgaged it would continue tu be shown as mortgaged even after it is extinguished by acknowledgment of receipt 01*1 the deed, and the sugges- tion has been made that the existing provision should be retained without change. S0 far as the reasoning 011 which this particular comment is based is concerned, it may be pointed out that even now, in the absence uf a re- ceipt which purports 1:0 extinguish the mortgage, the p0s- sibility of the property continuing tu be shown as mort- gaged would be there. The- matter, however, is nut so simple as it seems, and it seems desirable to state the history of the section and the interpretation placed 011 it by courts. As explained by Mulla.2, this provision was inserted for the first time in the Act of 1877 by the Amending Act 7 uf 1886, and the objects uf the amendment was negative, namely, to supersede the decisions to the effect that a mere receipt for payment of money under a mortgage rcuired registration even though it did not extinguish the mortgagés interest in the I1'101`t- gaged property? Thus, the main purpose of the amend- mc-nt of 1866 was to remove such receipts from compulsory registration. 1. Sixth Report, page 18, paragraph 41. 2. Mulla, (I963)1 pages 96-97. 3.} and suggesting the compulsory registration 01* documents re- gjftsgggégi ferred to in existing section 17 (2) (V) and existing section {mp 17 (2), Explanation, in certain cases. At present, a docu- ment which merely creates a right to obtain another document affecting immovable property is not to be re- gisbered, and in particular, a document purporting or operating to eiiect a contract for the sale of immovable property dues not require registration merely because it 1-ecites payment of earnest money or etc, Now, it is stated in ene ef the comments that trans- actions in the mature cf agreements to sell, re—seII and re- purchase are entered inte in the following circumstances. A11 ante-dated agreement (it is stated) is used tu avoid stamp duty cm sales, by——— (i) Bret having a sale deed drawn up for a nomi- nal amount; (ii) then executing an unregistered agreement to re-purchase or sel]; and (iii) then executing a fmal release of the agree- ment te repurchase for a substantial consideration. The real consideration fer the transaction (it is stated) is the sum total of the consideration expressed in the various deeds (sale and release) but payment of stamp duty is evaded by stamping th {ina?. docu- ment as a "‘re1ease" and by making use of the ·.1m·egis— tered document as a ground for the release. Such documents should, it is said, be made Qcompulsorily) registreble so that three beneficial results would ensuec-- (:1) frauds on the public, whe may enter inte a contract fer the purchase of property in respect of which an egrcemmit to sell already exists, may be prevented; (b) suits for specific relief would be `brought down; (c) the revenue wiil benefit. These benefits, it is stated, will more than compensate for the additional expenditure to the registerin public. It has, therefore, been suggested, that clause B?2) (e) and clause 3(I), Expienetien (ii), may accordingly be c1e1et— ed. The earlier Repcrti did consider the matter, briefly. It proposed no change-, because the view taken was that there was no need to have two registered documents in receipt ci the same transaction. The matter, however, x. Sixth Report, page x7, paragraph 33. 27 . bears closer examination at length, and the following points should be noted;- (1) As would appear from the history of the provi- sionl, the object of the present provision is to save a person from having to register two deeds in relation to the same subject matter. This was the reason for the general provision in existing section 17 (2) (v). But, since doubts arose as regards agreements to sell immovable property in view Dt decisions holding that such agreement created an interest in land and would not fall within the genera} exemption, a specific provision exempting contracts for the sale of immovable property was made, which is existing sec- tion 1‘7(2), Explanation. (ii) Since an agreement to sell merely gives a right to obtain another document relating to immov- able property, creates no interest and cannot be en- forced against a person who has no notice thereof“’, the question- of a fraud on the public has no import- ance for legal purposes. (iii) Moreover, the malpractice in question can- not justify an extreme provision removing the gen- eral exemption. Such a course would cause unneces- sary hardship. (iv) It is a moot point whether the last mention- ed release of the rights flowing under the agreement for rep-urchase does not itself require registration. {v) In any case, the question of fraud on the Stamp Act cannot be conclusive in a consideration of the Registration Law. (vi) We are not concerned here, it may be noted, with the question that very often arises, namely, whether a sale coupled with agreement to re-purchase can constitute a mortgage? For these reasons, no change in the law is recom- mended on this point. Existing section 1'?(2)(vi) to l'I(2)(xa), exempt from Claws $(2) registration decrees or orders of court (except in certain (E}T?°‘f°°¤ cases), grants of immovable property made hy the Gov- §}a:,$,jC°h°" ernment, instruments of partition and other orders passed copies are by certain public- servants. The Sixth Report proposed to t·> b¢ Sem replace this provision by a general exemption in clause “{f,; Mw 3(2) (f), and that general exemption, referred to any C 4g` decree, etc., instrument, etc., certificate, etc., of which copies are required to be sent to the Registering officer 1. See Mulla, (1963), pages 74-75. 1. See sections 40 and 54, Transfer of Property Act, 1882. 3. This is discussed in Mulla, (1963), pages 38-40. 28 under the clause corresponding to existing section 39 (clause 42). This change was linked up with the proposal to expand the scope of existing section 89, by the inclu- sion therein of a number of other documents. For the pre- sent purpose, it is not necessary to examine them in detaill. The only comment received on clause 3(2)(f) relates to decrees and orders. It suggests the addition of the words "exCept a decree Or Order expressed to be made on 3 com- promise and comprising immovable property other than that which is the subject-matter of the suit or proceeding" after "decree or order" in this clause. The words proposed to bc added in the comments are the same as those contained in existing section 17(2)(vi). This point was specifically discussed in the earlier Reporti, and that Re- port took the view that since section 17 (1) (b) and (c) reiers only to non-tstamentary instruments and since a decree or order is not said to be a nomtestamentary ins- trument, section 17 (2) (vi) was a “somewhat curious pro- vision“", Further, the Report took the view that it was unneces- sary to insist that a decree or order of a court relating to immovable property outside the suit should be registered. li. was sufticicnt if a copy of the decree or order is sent to the Sub-Registrar under clause 42 corresponding to existing section 89. It has been suggested that existing section lT(2)(vi) dealing with such compromise decrees should not be deleted? It is argued that this deletion will increase work in Registration offices, and also that unscrupulous persons will cheat the Government by starting a suit comprising small property and then by obtaining a compromise decree covering property of a greater value. All these points will be discussed later? It has also been suggested, that since registration of plaints and Schedules of property is nowhere provided for, they need not be exempted specifically. But we do not think that there is any harm if they are mentioned, if the scheme of clause 42 is maintained. Clause 3(3)_ Clause Ii(i3)_ following existing section l'?(3), provides Adoption that authorities to adopt a son, not conferred by a will and r. As to the reasons for this change, see the Sixth Report, page 7, (Dis- cussion, relating to section S9), page 37 (paragraph tor), pages T7 and Ig`, (paragraphs 39-4o), and regarding section 1*/(2), PBHES 75 and 80- 2. Sixth Report, page 17, paragraph 39. 3. The history of the provision is discussed in Mullen, (,19627] pages 83, 85- 4. See comments under clause 42(I). 5. To oc considered under clause 42(I). 29 executed after the first day of January, 1372, shall also be registered. The retention of this provision had been a mat- ter of some controversy when the earlier Report was pre- pared, and Dr, Sen Gupta had given a dissenting note on this pointl. Some of the comments have expressed agree- ment with the views of Dr. Sen Gupta. A few other points have also been made. We shall first take up Dr. Gupta’s dissenting note. His point of view was, that under section B of the Hindu Adoptions and Maintenance Act, 1956, a widow does no"; need the authority of anybody else tg adopt. Hence the provision in section 1'7(3) of Registration Act should be deleted. The view taken by the majority of the Members of the Law Commissiorf was, that the position did not appear to be clear having regard to the language of that Act, and, therefore, it was advisable to retain the provi- sion. But Dr. Sen Gupta thought that the provisions of the Act were quite clear. Now, section 8 of the Hindu Adop- tion, etc., Act authorises any female Hindu (subject to the provisions of the section) to take a son or daughter in adoption. Section 6 enumerates the requisites of a valid adoption, which may be summarised as-- (i) capacity and right to take in adoption; (ii) capacity to give in adoption; (iii) capacity to be taken in adoption; and (iv) compliance with other conditions laid down ir. the Chapter. These requisites are dealt with in sections 7 to 11. We- are not concerned at present with capacity to take and give in adoption or to be taken in adoption. (Sections 7, 8 and 10). That leaves only section ll (other conditions). Section 11 does not require the authority of anybody else. In fact, under section 12 of the Act, a person is adopted not as the child of both the parents, but as the child of each parent or of either of the parents. Section 4 expressly abrogates the texts or rules of Hindu Law on matters for which pro- vision is made in the Act. We went into this matter at some length. We share the doubts expressed in the Sixth Report, and think that the Sixth Report rightly adopted a cautious approach in the matter, The points on which we felt doubts were two, narnely— (1) Whether the Hindu Adoptions, etc._ Act abro- gates the rules of Hindu Law under which the hus- band’s authority to adopt is required in the case of an adoption by a widow (except in a few States). This doubt was expressed in the Sixth Report also. I. Sixth Report, page 96, bottom and page 97. Too. 2. See Sixth Report, page 19, paragraoh si ___& 30 (ii) Whether the sections in the Hindu Adoption,. etc., Act about the eitect of adoption by a widc·w (sec- tion; 12 and 14.) make the adopted person the scn of the F<>5f¤t preserving photostat copies of all documents which are ”°Y"°$ registered. Such a provision has been made by the Bom- bay Amendment Act of 1930, which authorises the copying of documents bY means of photostatb. Consequential change has been made by Bombay in section 69 by adding clause (ggg) ( See Bombay Act 35 of 1958), whereunder, a power is 1. Sec Mulla, [196].], pages 256, 262, 112 and 1o7. 2. See Kieran: LLZXJPIKZIJ V. Dczfsukh Jl»IoFzczrrtmc2d_. A.I.R. 1939 Hom. 354, 255 (Reviews cases). 3. For thc Madras View, .€f.’C··· (r`)Kr£sh1iasrvarr1¤' V. Nclla Gourrdcr, A.I.R. 1945 Mad. goo, 310. re- vzrsctl on smother ground in Mille: Gozmder v. Krz`shrzaswc:mz` A.I.R, 1945 Mad. 465. {ir') Gnngadam v. Sambm.-{mz, A.I.R. 1918 Mad. 1082. 4. Contrast Mulla, (1963), page 107. 5. See Mulla, (1963), pages 246 to 249. 4-109 M. of Law. 34 given to make rules regulating the procedure for transmit- ting documents for being photographed, etc., etc. This will be considered at the endl. Clause Tm Clause '7(1) corresponds to existing section Z!l(l), and ]'lE€dS H0 COIT1ITl€I'1t·S. Clause N2) Existing section 21 (2) and (3) deals with the manner in & (3)- which houses and lands should be described in a document d;E*°¤P¤i¤¤ relating to them. Clause 'i’(2) and (3) proposed certain ° pr°p°Iw changes therein, for the reasons, given in the earlier Re- porti. Since there are several minute points of diderencc between the existing section and the proposed clause, and since numerous points have been made in the comments received on the clause, it appears to be convenient to dis- cuss the existing section, the changes proposed by the earlier Report, the points made in the comments and the action which we recommend therevn, in the form of a chart, as given below. _-_ __-. .... -. Existing Change made by earlier Comments Recommendation section Report received on on KIOUTUTEUYS earlier Report I 2 3 4 (I') Hollsesin (nl`) Houses and lands in (i) Some com- General : The towns to Municzpal areas I0 be ments suggest p1*0Y1s1oI1sho|1ld be describ- described by urea, Bonn- that names, be neither too edon nor- daries, mum'c:'pal www territorial divi- elaborate nor th orother survey numbevsmunicipa! sions, and di- IDU sketchy. It` side ofthe doo1·number(tf¤r:y)and mensions shou- it is too elabo- street to street or road they ld be added. rate there may which they abut (if any)-sec clause Some com- be mistakes lea- front, and 7(z) (Sixth Report, page ments state that ding to contro- by their 75, bottom, says that no change is ve1‘si4:s’. If it is existing this has been redrafted needed in ex- too sketchy, - · and form- to make it more expli- isting provisions. there may be . _ er occu- cit). (Thus occupancy uncertainty . pancies, is omitted, areas and about identity . and by boundaries _ are added, of the property. their num- and (in addition to hou- (ri) A we medzrz be1·s(ifthe ses) lands are cornered, in the form of houses are if situated in mumcipa- the Bombay numbered) lines). Amendmenti of -·section 21 1958 is recom- (2) mended}. Un- der that amend- ment, in city surVe$'ed ateus, the Cadastral number is to be ment:.oned. 1. See discussion under "Suggestcd new provisions". 2. Sixth Report, page 75 and page zo, paragraph 46. 3. cf. Mulla, (1963), page IIO. 4. See Mulla, (1963], page 107. 5. See section zi, as proposed to be amended. 5 < s 2 3 4 (H] Dthcr {ii) Ii; mths; plasma, hou- (if} Snmc com- (ff} Exiszing pm-. hcuscaqm. sas and lands :0 be dev merits suggcs; visi¤n.s,i; wquk} houses 11::1 sriired {:g,·¤rrea,£—qvun:£;:r£es, thsat_z1¤1·u¢s and appsar, have in mwns) surrsgv number cr psi- tcrrnturiul divi- caused D0 diff:. and iands, maish<>r¤th#cr1%kc¤um· sims bu added. cujm and may IG bc d¢s— ber, if any 2EsG and Ont comment hc mrampd, mribcd by when pymicablc, by rf- says that xm ‘ zhcirmzmcs farcncc tc- Gwcmmcm change in, occupa- temitcvsiul cies and wad ctc. aw division in omitted and awa and which cbcyr bmmdarics adm? as well arc situ- as survey number), atc and by i}z:ks'L2— pc:5¤5a1 wnicmts, {hr rub and other pmpanics un which thc? abvuf, their :$~ isting cc- cupsncics aud also, whenever practicable, bja ¤2§’er·· cnet tc- :1 G· {5) after "G¤v¤=- mrs uf s¢c» cmmcm m;¤p’“’, tion 21} by add, "0r a G0- ritfetchcs V¢:r¤mcR£ Gt C6 Giwcrfi-- mh¤r". ‘ ment map Gr sur¥c&¤-—·— scpticn zz {aj. The Gbycct of such B rule ` 36 I 3 3 would be tu rnak¢ such das- cripticn mm·:d¢1mv5·.‘ It will bc 3.11 Qxigp- :iomc(iv) bdcw. i {iv) Save as (ic) Failure to comply (iv) One cum- (w)BcmbayAr¤— p1r0Vidcd with claus: 7(z)(3) docs mgm: suggests, cncimcnt Act by mk not dismantle rcgistm- mar no changc I9$B°, may bc under scc- nicm, if description sum- should bc made adcybrzdi The ‘ tion 22Qx} sham, ctc.—<:1ause 1(4), on this puim. obligation to —Sce (di) proviso, [Sixth Report, give the statu- ab 0vc,- page 76, tcp, is silent {Qty description failure to abou: reasons for this will, then, bc oqmply pauiculax change, thm mcmdkzzory-(4:) with suc- is to saygwhythc saving inCity Survcycd tion 2I(2}, negasding mic was nm- Area; and (3) nm w med. Bur section 22(2) Lb) in cases wher: discnrirlc was omitted, and xha: axulzis made as thc docu- scams I0 bc the reason. pct (iii] above. mam to The result of me change registrar- proposed in Sixth Rc- tion, if port is, for rural houses description and lands, the existing uf mc pro- mandatory provision to perry is mention Gcvemmcm sutlicicm map or survey {when so to identify directed by thc rule)-, is th: pro- arnirzed], pcrty Sac- iiun 22(z). Claus: @(4}- Clause 'I’(4), following existing section 21(4) : provides that a nun-testamcntary document containing a map or plan of any property comprised therein shall not be accept- , ed for registration unless accompanied by :1 true copy of the map or plan etc. An amendment has been suggest- +2d** in one comment to the aifect, that a document regis- trable in Book 3 containing a map, pian or other diagram should be accompainad by a copy ct such map, plan or diagram for being filed in the Registration Officp. Now, Buck 3, which is maintainedi under existing section 51{1), is a "Registar nf wills and authorities to adopt". Cases 0f maps, plans, or other diagrams ref&1f1"d to in such docu- ments may nut be many, and there is no need to mgxke the suggested change. [If this change is made, a mmzlar f -TF?>;i:xam;£:; of such rules, we Mulla., (r963`>, pages zxé, :96. 2. See Mulla, (:963), page [I6. 3- See section zziz), as proposed to bc amended. 4. Suggestion of a Stats Government. 5. See existing section 51(I). 37 change should be mode in relation to instruments to be entered in Book 4——i.e. practically all other documents not required to be registered], being in either case docu- ments which do not relate to immovable property. Con- sequential changes will then be necessary in the clause" correspondirig to exiting section 61]. It may be pointed out, that his will cover maps, plans or other diagrams even if they relate to movable property. Under existing section 23, a document other than a will Clriusr Bti) must be presented tor registration within four months " Y““‘§ M iron the date of its execution. Clause 8(1) reduces this pesiod from four months to one month (except for eases in the proviso relating to presentation of copy of a decree or order). The reasons for this change were thus stated in the Sixth Report":- "We consider that the period ......... hshould be reduced to one month. This would reduce the oppor- tunity to bring ante—dated deeds into existence. It is also desirable that registration should be prompt. No serious hardship is likely to be caused, as there is a power to excuse delay (section 25) and veg are recommending a reduction in the amount of the noe". This change has, however provoked various comments, which can be classified as follows:~ _(i) One set of comments presses for the retention of the existing limit of [our months. Hedricticin, it is stated, will work considerable hardship, as one months time is too short. Diiliculties peculiar- to hilly areas have also been emphasised in some of the com- ments. (ii) Another set of comments suggests that the reduction should be to the extent of two months. It is also stated. that agriculturists (who are concerned with manv transfers) require time to collect the amount of consideration. ` (iii) Still another set of comments suggests an increase oi the limit to six months The reasons for which the change was proposed are not uneonvincing. However. having regard to the comments summarised above it appears desirable to retain the existing period. The proviso to clause 8(1), following existing sec- tion 23, provides that a copy of a decree or order may be presented within four months from the day on which the decree or order was made, or where it is I. SEE SECLIUH jI<];J. 2. Clause zo. - 3. Sixth Report, page 20, paragraph 49. ` ‘ r . . 38 oppeolable, within four months from the day on which it becomes final. Regarding appealable cases, a com- ment received suggests the substitution of the words "where an appeal is preferred", for the words "where it is appealable". The object of this change is to avoid the necessity of the Registrar’s deciding whe- ther a particular case is appealable or not. Tlrie effect of this change would be, that even if the case is not really appealable, still, if the party in fact files an . appeal, the period would be extended. We are not in favour of the proposed change. ln most cases, the expression "whcre it is appealable"’ and the expres- sion "where the appeal is preferred" will not give - different result. C1e»}¤sc8{;·.)-- Clause M2.), following existing section 27, provides €v‘ii;“’**"* that a will may be presented for deposit or registration , at any ttm-2. A comment has been received to the effect that persons taking under a will should he compelled to present it for registration within a specific period after the death of the testator. A similar suggestion was also considered in the earlier Report, but rejected in these words—"We are not inclined to accept the suggest1.on*". Under existing section 32(1), a person claiming under a document can present it for registration. The benefi- ciary under a will may not always come to know quickly of the disposition in his favour, and the fixing -of a period running from the date of death may cause hardship. No change, therefore, should be made as the existing provi- sion has not caused any legal or administrative difficulty. Cl¤¤¤¤ 9- Clause 9, corresponding to existing Section 24, deals SQQQQQQ with the cases where there are several persons executing sewn] Y a document at different times. While maintaining the persons in main provision that the document should be presented for , ‘l‘ff°*“m registration within the specified period from the date· of mms each execution, clause differs from the existing sec- tion in two respects.- (i) the existing section mentions "re-regi.stra- ' tion" also, while it is omitted in the draft clause; (ii) the period is reduced from four months to one month. The omission of "re-registration" was recom- mended in the Sixth Reportz, as a change, presumably because the section dealing with "re-registration"—r-existing section 23A—had been re- commended to be omitteds. Comments, however, nave been received to the effect that section 24 should 1. Sixth Report, page 2.1, paragraph 54. 2. Sixth Report, page 2I, paragraph 5:. 3. Sixth Report, page 20, paragraph 50. 39 ·- be retained as it is. It is also stated, that the "re- registration" referred to in existing section 23A is for curing defects due to presentation by unauthorised person, while “re—registration" under section 24 is in resp·ect of a document which is already registered once, where re-registration becomes necessary be- cause oi its being re—executed by a oiierent party. The comment appears to be justified by case law. Section 24 has been interpreted as contemplating a partial registration of a deedl. Thus, in a Privy Coun- eil casez, three vendors, living at different places exe- cuted a de-ed at different times. Vendors No. 1 and 2 admitted its execution, and the deed was registered. Vendor No. 3 then came and denied execution, but still the registiation as regards No. .1 and 2 was held to remain valid. In fact, section 35 was amended after this decision, by inserting the words "as to the- person so defying appearing, or dead", thus giving legisla- tive sanction to thc Privy Counci.l’s pronouncement. See also the following decisions”—*—“, upholding par- tial registration. The reference to re—registration should, therefore be restored. As regards period, the change proposed, is linked up with the period for presentation allowed under clause 8 (1). If that is not changedb, the period under clause 9 should also not be changed. Existing section 25(l) provides that if, owing to urgent C, °__ necessity or unavoidable accident, any document, etc., is H,,;ui—grI not presented within the prescribed time, then the Regis- delay in trar, in cases where the delay does not exceed four ¤¤¤¤5¤¤¤=*i¤¤ months, may direct that on payment of a line not exceed- ing ten times the amount of the proper registration fee, such document shall be accepted for registration. Clause 10 of the Bill in the Sixth Report departed from this, in the following respects: —- (i) The line has been reduced to a lurnpsurn not exceeding Rs. 10 in addition to the registration fee. The reason for this change was thus given in the earlier Report?. "l.t is quite inequitable to levy a heavy penalty in res- pect o.f documents presented for registration after the pres— cribed time. A multiple of the registration fee will usually 1. Malls, [I963l, page 123. (P Cai Mohammad Bums v. Bri_;`l`al, (IS77) 4l.A. :66; I.L.R. 1 All. 465 3. jagdish v. Sander, A.I.R. 1949 Pa:. 393. 4. Raja Hazarf rr. Bhrtgwcmdas, A.I.R. IQZS Nag. 239. 5. Nzresa v. Submmania, A.I.R. IQTS Mad. 323, 325, 326. 6. See discussion relating to clause Bf:). 7. Sixth Report, page 2:, paragraph 52. 40 be very high, as the fee for registration is in most States an ad onzlorem fee.". (ii) The words "owing to urgent necessity or un- avoidable accident" have been replaced by the words "a proper cause being shown" for the reasoif that the existing wording is not happy and the words "owing to urgent necessity" are not appropriate. (iii) Instead of the words "the Registrar .... may direct", the words "the Registrar .... may extend the time" have been used. (iv) Certain other verbal changes have been made. Now, as regards the first point, the comments received suggest that the line proposed is too low and may not be conducive to expeditious presentation of documents; one comment suggests that the amount may be increased to a maximum of Rs. 50, while another suggests that the amount of fine should be three times the amount of the proper registration fee. Another comment suggests that it should be five times the amount of the registration fee. A few comments suggest that it should be at least Hs. 20 or Rs. 25. lf one has regard to the rules, one finds that in most States the amount of the fine is linked up with extent of the delay. For example, the rules made under the Act by the Governmenti ol Bombay provide that thc [inc imposed under sections 25 and 34 of the Act shall be of the following amounts, namely—— (i) if the delay does not exceed one month—not exceeding 22} times the proper registration fee; (ii) if the delay exceeds one month but does not exceed two months,-not exceeding five times the amount of the registration fee; and so on·. Prima facie, the object of the fine would be to encourage parties to seek prompt registration; and on principle, the imposition of a heavy line would not be justifiable. There— fore, the approach adopted in the Sixth Report, on this point, has much to commend itself. At the same time, we have to take into- account the trend of the comments. We discussed this matter at some length. On the one hand, the maximum amount of Rs. 10 proposed in the Sixth Report, may be too low. On the other hand, the existing provision—-·ten times the registration fee-—is extremely harsh. The Registration Rules of several States (which have been gone through by us) show, that the registra- tion fee is ad vclorem in many cases. Hence, its multiple { E4; s}`§5§{rQT;@£i-,`§aHg§@`§§T`”l`l " if l"" ;i_ See Bombay rule 4O,_.MUI]3, {IQV)1 Pig? 332- l 41 would bc very high, and some maximum appears to be needed. Having considered all aspects of the matter, we recommend}, that the fine should be five times the Regis- tration fee, but n-ot exceeding Bs. 200 (Rupees two hundred). As to the second point, it has been stated in the com- ments that it is desirable that the grounds on which exten- sion is to be granted should be given in the section itself. This would, in effect, mean restoration of the words "urgent necessity", etc. We think, that it would be better g to retain the existing language. · As regards the third and fourth points the verbal · changes as such do not seem to have provoked any com- ment. But it would be better to retain the existing langu- age. ` A fresh point made in one comment is. that it should be made explicit that the extension of time should be on application made within the time allowed, and the appli- cation should be accompanied with a copy of the document to be registered and the application should be open to the public on payment. It has also been suggested, that a list of cases in which time is allowed should be put up on the notice board, and that an application for extension should not be allowed unless it is First put up on the notice board for a fortnight. We think that the addition of such pro- visions would necessarily encumber the section. Clause ll, following existing section 25, makes special (Lame is- provision for documents executed outside India. it has D_$j“““l;“‘* been suggested, that there should be no discrimination be- tween documents executed in India or outside India, and in-tm that the law should be uniform for both. Another com- ment received is to the eiiect, that the period of four months after arrival in India allowed by existing Section ` 26 (b). clause ll (b) is too long. The comments overlook the tact, that in the case of documents executed outside India, there may be special ‘· reasons why they cannot be promptly registered. The parties may take time to settle down in India and to arrange their affairs. They may not be conversant with the local laws; they may not be familiar with the adminis- trative arrangements for registration, and so on. The special provisions ar justifiable. No change is needed on this point. 0 Existing section 28 provides that, subject to certain ex- C?l¤¤*¤ WU} captions, every document mentioned in the specified "P¥*"’* . M clause of section i'? or section 18, in so far as such docu-- "m"em°U`°u ment affects immovable property, shall be presented for registration in the office of the Sub-Registrar within whose sub-district thc whois or some portion of the property to I. See section 25. as proposed Lo be amended' 42 .·»~ which such document relates is situate. The proposal macfl on this point in the earlier Report, clause 12 (1), read with clause 12 (4) is, that where the property is re-ally situated outside the jurisdiction nf the Sub-Registrar, but some 1mm-existent, Hctitious, or insignificant property (cw property which is not intended to be conveyed) is in- eluded in the deed to confer 011 the Sub-Registrar jurisdic- Liun by virtue of its siteuanicn, than the validity of the re- gieumicn should not be qu-astioncd by the pczwiies, (This is not to affect the rights of third persons acquiring rights in the property without notice cf the transaction to which the document relates). The reasons for which this change was proposed will be discussed elaborately later; but, for ’ the p1·esc11t, it will suffice t0 sayl that it was regarded in- equraable and unjust that the very persons who were par- ties; tc the transacticn and s*€cL11‘ed I`EE; iS CI`é1tiUH by such at cl:·vi<;c should be :1110wed L0 impeach the registration us — bang A fraud 01; the registration lawzf. Tmrre are certain <;t.:u;;· ··.=<;~1·ba1 changes also proposed in the section. But, the above being the most important point, it may be- taken up at the beginning. Numerous comme-nts have been received on this point. While some comments expressly agree with the sug- gested amendment, others oppose it or suggest its modifi- cation. One puint made is, that the document should be presented t0 the Sub—Re·gist1·a1· in whose jurisdiction Q1 major portion 0f the property is situated, the reason given being that re-gistratiun raised a presumption of notice, and, as such the registration of documents at any place will lead to frauds. This comment, hc-wever, overlooks the fact that the proposed change is very narrow, being coniined tc a provision that the parties shall not be allowed t0 challenge the registration. Rights of third parties are not proposed to be- affected? The Clausc does not give 3 gc-bye to the existing rule, for ordinary cases. 1 Another suggestion received is, that an Explanation should be inserted below the section to lay down the ·min1mum requirements by which :1 registering officer +’ should satisfy himself that the property is situate ix; his jurisdiction. Such a provision would, however, cause un- necessary delay in the registration proceedings, and can- not be adapted. Some of the comments have opposed the change in tcm, and it becomes necessary to examine in detail the reasons Why the change was proposed in the Sixth P.‘ep0rt’·**. The 1. cf. Sixth Report, pages 2:-25. paragraphs 55 to 57. 2. See particularly, Sixth Report, page 23 middle. 3. As to existing law, see Mulla, (196]), pages 126 to 128. 4. Sixth Report, clause 1z(4)[b ). ,3. Sec Sixth Report, pages 21-25, parqraphs 55-—-57. +7 reasons were these. Numerous decisions under the exist- ing Act had held, that if the property is really outside the jurisdiction of the Sub-Registrar, and some fictitious pro- perty or nomexisting property alleged to be- within his jurisdiction is included, or property (though 'situatecl within his jurisdiction) is included without any intention of transferring it, then it is a fraud on the Registration law. There are several decisions of the Privy Council on the subject}-?. Now. the earlier Report did not question the correctness of these decisions; but the points which it had to consider was, whether such unsatisfactory consequences, should not be avoided in cases where the parties had resorted to such devices merely to· avoid going for registration to a distant place. "It is inequitable and unjust that the very persons who were parties to the transaction and secured registration by such a device should later be allowed to impeach the registration as being a fraud on the registra- tion law. As long as rights of third parties are not aitect- ed, no harm is likely to be caused by recognising registra- tion effected by a resort to such devices*'." This was the crucial argument advanced to support the change proposed. It has been embodied in clause 12 (4) , as follows- [after proposing in clause 12(l) the enactment of the general rule that the document should be present- ed before the Sub-Registrar within Whose area the whole or some part of the property is situate]:— "12. (4) Notwithstanding any thing contain- in sub-section (1) ,- (a) after a document is registered, no party thereto shall lie entitled to question the 1. See these cases-- (4::) Harendra Lal v. Hari Dus“ D b , 4 I_A_ ;[,L_ i 972 ; A.I.R. 1914 I’.C. 6*,: (lgidtitiohs propdi-E), R. Lu C3"` (6) Biwdnath (afro reported as M th D ) . CI nd ., is LA as rcs. is ca. 505* r f$I‘i.R.“ia`£ re? s'?rr~{EG;'£`i‘;3‘;r share of village included without transfer of possession and wah- out any intention to transfer any inrcresr therein). ’ ` (c) Collector of Gorckhpur v. Ram Sandor, I.L.R, 56 All 58 - A I iggnc PQEQ rg; éould not be enjoyed, dud ré whidh (d) Vcnkaruram Rao V. Sobhandari Ap R . l’.L.R._ $9_M§d. 5qo; A.I.R. 1936 P.C. 91 PEIA ysrcdjhf ight-i.t'iru§?gE in s district in which the purchaser oeirhcr resided nor ow;-wd U perry, included, though the veudei-’s title was doubrim gndpgleg purchaser made rm attempt to take pvssessionj. " 2. Decisions of the High Court a 11 ci ` R . Clmmdra Norm};. I.L.R. I9 Pat. 578 Edie 1;;, gdfmndan Hmm y' 3. Sixth Report, ps :2.3, paragraph 56 middle. 44 validity ui its registminiun on the ground that the property which purported to give juris- diction to the Sub·Rcgistrar t0 mgistcr it either did 110+, exist OT was Ectiticus or insig- nificant 01· was not intended t0 be conveyed; (b) a document, the registration pf which is seceurad by thc inclusion of a non-existant, fictitious or irusigniticant portion or iteem shall not in any manner Z-IHECJC the rights of a per- son who was not a pqrty thereto and acquired rights in the property without notice of thc transaction to which such document JTEIEUZES". - The question may be asked whether it is likely that the parties themselves would aver be allowed to challenge the registration of the document. The- following summary uf scme illustrative cases will show the existing position an ” this point:-— Case N0. I- The plaintiff was allowed to put forward the fraud uf his father (who had acted as his guardian) in including uma square yard uf property situated in an0t}1r district _ without amy intention to convey. The registration was held to be void!. Case N 0. 2-- A parcel of land which was never intended to fcmx part of the security, was inserted in the mortgage deed for giving jurisdiction tu the Sub—Re2gist1·z1r. This was held to be an fraud 011 the law ui registration, and hence it was specifically held that the mortgagor could raise the plea of valid registration even though he was party to the {mud? _ Case N0. 3-- Property which was in existence, but in which the pa•:— ties did not intend to transfer any m1m·¤st,_ was included "* for obtaining re-gistratic-n in the district where this piece was situated. Registration was held to be invalid. The proceedings in which this decision was given xvere between the partie-s 1:0 the document, because they were initiated by the mortgagee for a mortgage decree and sale of the property mortgaged under a mortgage.- deed by Udit Nara— yam as the head and managing member of the joint Hindu family mf which the- respondents ¤.vcx·e mcmbee1·s“. r_ Venkam Rama R.20 V. Srdbfflllldflbl- Appcz Ran, 63 LA. {E39; I.L.R. 5·3 Mad. 530; A.I.R. I936 P.C. 91. ;_ Rmrmmmdmz Pmmd v. Ch.2:·.·dradz`p Namzm I.L.R, IU Pat. 573; A.1.R_ §40, Pur. 504, 509 (Hamas C.], amd Manuhar Lal! ].3. 3, Bésima Nmh Prasad (also reported as MarFzu:·a Dm) v. Cfztzrzdm }\·'m¤;`;; (I/50:¢Jm2rz` , 48 LA. uf} 3 T.L.R. 48 Cal. 509; A.I.R. 1921 RC. s.' 45 _ Case No. 4-- ‘· Fictitious inclusion of an item of property, never in- tended to be sold, it was stated, would amount to fraud. This vie-w was expressed in a case where the validity of the document was challenged between the parties. On the facts, however, it was held that there was no fraudl. Case No. 5— r lnsigniiicant item of no value and completely inaccessi-- ` ble, was included in the sale deed. It was incapable of being utilised or enjoyed bg the purchaser. This was held to be a mere device to eva e the Registration Act, and the p registration was held. to be void?. ' The decision can beregarded as one not between the parties 1o the document, as will be shown by the following analysis of facts. Raja K., the owner of the impartible Majhau-li estate, died in .1911. His widow was taken as his heir. A Court of Wards was constituted for the widow, and the Court of Wards appointed the appellant as Manager of the Estate. There was, however, one Indarjit Who had a possible claim to the estate (as an agnate). He died in 1921, and his son B in 1922 sold some of the property to the respon- dent? Only three questions were raised in the appeal before the Privy Council, and these were decided as follows:-- First, whether lndarjit was the lawful heir of Raja K. The answer given was "yes"*, _ Secondly, whether the pedigree was proved. This · was also answered in the aiiirmatives. The third question was whether the registration was valid. This was answered in the negative. ‘ The appellant was not a successor-in-interest of lndarjit, and was, therefore, a third party vis-a-vis the document. It is obvious, that courts have in reality permitted the parties to challenge validity. Therefore, the assumption behind the earlier Report is substantiated by this position of the case law. _ I. o.,j»Q_zv¤r1i v. nip 12a»»,K.1.n. iggemnii-{ss, 790 dgstnnihialahnh, paragraphs beginning with the words “The third point ........ " and ending Wah the wor s "T11e question before us ....... ." (Sulaiman and Kendal, I W2. Cwllcctor of Gnrakhpur V. Ram Sander Elia], l.L.R. 56 Al]. 468; A.l.R 1934 P.C. 157, 165, righthand, 167, left-hand (P.C.). 3. See at page 158, left-hand in the A.I.R. 4. See page 159, left, read with page 164, left, bottom, in the A.I..R. 5. See page 165, right, I2 lines, in the A.I.R. · 46 Case No 6— There is one Madras casel, in which the principle adopt- ed was that the person alleging his own baseness should not be heard. But the authority of this Madras case is totally shaken by the Privy Council case of 1936, and, therefore, if it is intended to restore the principle behind the Madras case, legislative intervention is necessary. Case N0. 7—- We may also refer to the position in an earlier decision I of the Privy Council? There, non—existent property was in- cluded in the deed. This property was alleged to he situat- ed at 25, Gurudas Street in Calcutta, while all the other properties were outside Calcutta. It was held, that such a fictitious entry (in the Schedule) was a fraud on the regis- tration law, and the deed was not validly registered. It is not very clear whether the female defendant (respondent in the Privy Council) who challenged the registration was a successor-in-interest of the person who executed the mort- gage (of the property in dispute) in favour of the plaintiff. The object of the suit was to obtain a declaration that the female defendant acquired no right in the property by vir- tue of the purchase made by her. Apparently, the decision may be regarded as not being between the parties, We may now refer to the dissenting note (in the previ- ous Report) of Dr. Sen Gupta", as several comments have expressed agreement with his views. Dr. Sen Gupta’s first objection was, that the Act, which says that the Registrar should have jurisdiction only if some property affected by the document is within his jurisdiction, "would stultity itself" if it is said at the same time that the registration would be good if a document is registered without such jurisdiction. Now. the body of the Report does not suggest such an extreme course? Nor does clause l2(4)(b) go to that length. All that is provided is, that the parties will not be entitled to challenge the validity ofthe registration. Dr. Sen Gupta's second point was, that if the Registrar bono. jide believed that the property existed within his jurisdiction, then he could register it even if ultimately it turned out that the property was non-existent or fictitious. His objection was that the bona fide belief of the Registrar may be difficult to prove when the matter comes before the r. Vcnkataswomi v. Verikcm Subbayya, I.L.R. 55 Mad. $07 ;A.`{.R . I932 Madras 311. 2. Harcrndru v. Hdrz`dczs¤` Debi, 41 LA. IlOj l.L.R. 41 Cal. 972; A.I.R. :914 P.C. 67. 3. See the dissenting none of Dr. Sen Gupta, Sixth Report, page 99- 4. See Sixth Report, page 24, paragraph 57(I). 47 court. Now, it is true that in the body of the Report. 2* suggestion was made somewhat on these linesl. But that was only a "principle" to be given effect to, and if reference is made to t.he actual draft in clause 12(1) read with clause 12 (4) (a), it will be found that validity is not made to- depend on the Registrafs belief. Dr. Sen Gupta’s third objection was, that there could seldom bc any honest reason for not registering a document where it ought to be registered. As against this, it may be pointed out that ordinarily the parties are the best judges of their convenience, and if they select- a particular place, it may not always be a dishonest device. Dr, Sen Gupta’s next objection was, that it would be difficult to prove an intention to defraud a third party. But under clause 12 such intention does not come in the picture,. and this objection, thus, loses its force. Next, Dr. Sen Gupta did agree with the principle that the parties should not be entitled to impeach the registra- tion. He described it as "understandable". But, he point- ed out, that the parties did not always deal with one an- other at an arm’s length, and the purchaser may have per- haps taken the document in good faith upon the represen- tation of the vendor (that the property did exist and be- longed to him) without further inquiry. In his view, it could not be laid down as a general proposition that parties who were not dealing at an arrn’s length, should not be allowed to challenge the transaction on account of defect of jurisdiction in any case. This objection can be answered by pointing out, that the protection given by the proposed clause is only as regards the validity of the registration. and does not cure any fraudulent representation as to title or the nature of the property which might have been made by either party. The normal consequences of such fraud would ensue notwithstanding the proposed change. In some of decisions, validity of the registration and validity of the document have been mixed up. But the two are really separate issues. The proposed changes cure a defect in the validity of the document, only to the extent to which such defect is due to invalidity of registration. Dr. Sen Gupta suggested that the proper way to attain the object sought would be to alter the "first proviso",. [perhaps this refers to clause l2(4)] by providing that. after the document is registered, the party thereto on whose ~ representation the non-existent or fictitious property had - been included shall not be permitted to challenge the vali- dity of the registration. But, as already pointed out above, right of the party to challenge the document by reason of fraud. etc., is not prejudiced by the amendment proposed in the previous Report, and, therefore, it need not be limited in this way. apart, pass 24, paragraph 57(3)- 48 Dr. Sen Gupta also stated, that scrutiny of all properties by the Registrar might indefinitely delay registration. But the Sixth Report did not contemplate such scrutiny. All that the body of the Reportl contemplated really was that if the registering officer was primo. jects satisfied regard- ing his jurisdiction, the registration will not be invalidated. Further, the actual clause provides only that the parties will not be allowed to impeach it. Dr. Sen Gupta further stated, that it was not true (us was assumed by the majority in the Sixth Report) that pro- " pertv within jurisdiction was included only for the purpose of registration in the nearby oliice; he added, that in many cases it was included not for convenience of registration but to create jurisdiction of the Original side of the High Court. This device should not, in his opinion, receive encouragement from the legislature. Now, if one has re- gard to the actual judicial decisions, many of them are not concerned with the Original side jurisdiction, and further, it was not that the framers of the Sixth Report wished to encourage fraudulent devices to confer jurisdiction on the High Courts. Their suggestion was mainly based gn the principle, that a person alleging his own bascness ought not to be heard. This is a principle well—recognised in the jurisprudence of every country, and applied almost daily by the courts Where its relevancy is established. There is no reason why it should not be given prooer consideration under this subject also. We might state here one more reason for the proposed clarification. At present, there is a conflict of decisions“ on the question whether, where registration of a mortgage deed is void in the situation under consideration. a personal covenant in the mortgage deed can be sued upon. This con- flict will be resolved by the proposed change. One other aspect of the proposed change may be referred to. At present, when the validity of registration is to be attacked on the ground of the defect in question, oral evi- dence for that purpose is admissible by virtue of section 92. first proviso. in the Evidence Act, as interpreted by the Courts."—“ The proposed change will render such defects immaterial; so that resort to such oral evidence will be obviated. Om Sims This finishes the main question under this clause. The _‘_,;rb€] draft suggested in clause 12(1), when compared with the cfaangcs existing section 28. would show that certain other verbal I. See Sixth Report, page 24, paragraph 56, Sth line on thc pagl'2. z. See Mulla, [196]], page 13o. 3. '?;z·u;1·1ez:rd1n v. C`!zq::·z;fra, l`.L.l{. ro Pat. 57t; A.[.R. 194:a Pin. {O4 .4. See also Chant? z-. Il'•·nIiEkc.¤f.·, A.I.l{. role Calcutta 465. 49 changes were also proposed. Thus, the existing section mentions the various clauses of sections 17 and 18, while the draft merely refers to "this Chapter". Secondly, the existing section uses the words "in so far as such document affects immovable property", while the draft speaks of a document "so far as it purports to allcct immovable pro- perty". In the draft clause, there is also an elaboration to deal with cases where a document refers to more than one item. The comments received suggest (in substance) the retention of the existing language. I We think that it would be better to {retain the present wording, in view of the objections received. In conclusion, it may be noted that the possibility that rgumiusgon * the proposed change may encourage fraud has to be balanc- ed against the principle that the law should not allow parties to back out of a transaction merely because there is a tech- nical defect in registration of which the parties were, or at least one party was, fully aware. A shady deal is not in- tended to be protected. Only a technical flaw is proposed to be neutralised and that too on sound moral principles. Rights of third parties are perfectly safc. On the whole, therefore. the proposed clause will lead to less injustice than the position resulting from the existing section. To make the discussion concrete, we may note here the Effcctgf effect of the proposed changes with reference to various proposed situations. ¤h¤¤B¤ Following categories of documents seem to have 31`BCU Analysis in practical:- ` (i) property fictious (cases in A.l.R. 1914 BC.); 3 (ii) property not belonging to the vendor, etc., con- ‘ veyed without intention to convey. (But fraudulent intention must be proved. cf. Venlcoto v. Veero- blmdrulu, A.l.R. 1935 Mad. 26, right hand). i (iii) Property (even if belonging to the vendor, etc.) professed to be conveyed without intention to con- vey (cases in A.I.R. 1921 P.C, and 1934 P.C.); (iv) Property not capable of enjoyment (case in A.I.R. 1936 P.C.). The proposed change will cover these situations; No. (ii), which is not frequent, will also be covered, if there is no intention to convey. The proposed change will not affect the position in cases where there is no fraud; 2.9.- U (a) Where there is a mistake in registration, result- ing in registration in a wrong district; (the view has 1. Su alan the a‘ia.lysis in Chlzoia.?Jl;az` v. Drzdabhaz`, A.I.R. 1935 S4, 62 (left-hand column). 5—1U9 M of Law. ‘ 50 been expressed that such a case can be dealt with by re-registrationi under existing section 30); (b) Where both parties bonu fide believe that the grantor has title to the property? It must be borne in mind, that the "fraud" contemplated by the ease-law as to validity of registration is totally differ- ent from mere failure to make out a good title. A party may fail to make out his title, but that is not the same thing as fraud on registration?-" _ It must also be noted, that the proposed change is con- fined to registration low. It will not affect the position te- garding jurisdiction of courts, which will continue to be _ determined by the existing principles, under which the court can examine the reality of the transactions. Ciausc 12(=) Clause 12(2), following existing section 40, mentions Tglggfagn "auth0rity to adopt". This phrase, it is said, is no longer gf wm O,. necessary in view of the Hindu Adoptions, etc., Act, 1956. authority to The point has been already discussed under clause 3(3). ¤d<>Pf and, for the reasons stated there'-'•, this phrase should be retained. Clause ;2(3) Clause 12(I3) combined existing section 29(l) and 29(2). —Re¤{d¤=·—‘l As stated in the earlier Report’, no change in principle was "‘“"S'°“ recommended. A few verbal changes were, however, made. for place of . . registration The comments received lind fault with one verbal change on the ground that the re—casting has really made a change in substance. The following comparative chart may be use- ful for understanding the change made. Existing Section Clause 29(I). Every document not being a Clause I2{3). Every document. nor document referred to in section 28, being a document referred t o or a copy of a docrec or order, may sub-section (1), and a copy of a be presented etc. either in the office decree or order, may be presented of the Sub—Regist1·ar in whose Sub- for registration either in the ofhcc district the document was executed, of the Sub-Registrar in whose sub- or in the office of any other Sub- district the document was executed 1. of. Sugommzl v. Air. l'fmrczo Boi, I.I...R. 1940 Nag. 74; A.I.R. 1940 Nag. 13. 2.0f. observations in Bimotzazaziz (or Mathura) v. Chandra Nam:`:; Chowdhry, A.I.R. 1921 P.C. 8, 16 and Pnhladf Lol v. Lorentz`. IrL.R. 41 All. 22; A.f.R. 1919 AI1. 450. 3. of. Venkatd V. Vcerathadula, A.I.R. 1935 Mad. 26, Right-hand. 4. See also Chaambhaa v. Daderbhai, A.I.R. 1935 Bom 54. 5. Sas discussion in Nant Lol Roy v. Samir! Bala, A.l.R. 1952 Cal. 529, 534 (BB. Mukherjee J.) 6. See discussion relating to clause 3(3). 7. Sixth Report, page 25, paragraph 59. bl Existing section Clause Registrar etc. at which all the or the original decree or order wes persons etc. desire the Same to made, as the case may bc, or H1 be registered. the office of any other etc. (rest same as in existing sect10¤)· z9(2). A copy of a decree or order may be presented for the registra- tion in the office of the Sub- Registrar in whose sub-district the original decree or order was made, or, where the decree or order does ‘ not affect immovable property, in the office of any other Sub-Regis- trar, etc. at which all, etc., desire, ctc. It would thus be- seen, that existing section 29(1} seems to exclude from its scope copies of decrees or orders, because section 29(2) deals with them specifically. The draft clause, however, makes such copies registrable with the Sub-Regis trar in whose sub-district the original decree or order was made or with any other Sub-Registrar where the parties desire, etc. Thus, a change of substance may ensue in rela- tion to a copy of decree or order which affects immovable property. Under the proposed clause, they can be register- ed elsewhere if the parties desire, while section 29(b) is (in this respect) confined to decrees, etc., affecting immovable property. It may be noted, that section 29, before its amendment by Act 32 of 1940, was not divided into sub-sections. It ran as follows:- . "Every document other than a document referred to in section 28, and a cop? of a decree or order, may be presented, etc." [rest as in section 29(l)] i This gave rise to the question whether a copy of a decree or order was to be dealt with under section 29 or section 28._ The Bombay High Court held} that it was to be dealt with under section 29, and that the Legislature had deltberately put a copy of the decree, etc., in section 29 as bemg 6 docutncnt which does Hot fall within section 28. After this decision, the section was clarified as it stands now. The existing language should be restored. in clause 12(4)(a) proposed by the Sixth Report is gr new Clause r2(4: provision to the effect that, after a document is registered, no party. should be entitled to question the validity of the registration, on the ground that the property did not exist r. Virmyak v. Parmppu, A.I.R. I93S Born. 212. q 52 or was fictitious or insignificant or not intended to be con- veyed. Under clause 12(4)(b), rights of third parties were not to be atlected if they acquired the rights without rwnice uf the transaction to which the document related. This change has been considered in detail already} It remains now to consider only :1 few comments on matters of detail. One comment is to the effect, that an exception should be made in favour of s bonu fide purchaser under a deed with out notice of inclusion of the fictitious item. Now, clause 12(4)(b) already makes an exception for persons hav- ing no notice of the transaction, and that should suiice. Another comment is to the effect that where a third _ party is dcfrauded or his rights defeated the registration should be invalid as against such party. But clause 12(4)(b) already meets this point by making the document inoperative against the third party. It has also been suggested that instead of the words "n0 party thereto" the words "no party which presents a docu- ment for I‘EgiStI'E.tl.O1"l.” should be substituted. But the clause need not be so narrowed down?. Certain matters of detail pertaining to clause 12(4)(b) have been considered at length by us. The object of clause 12(4)(b) was to ensure that the bar under clause 12(4)(a) should not aiect the rights of third parties. As drafted in the Sixth Report, however, the provision seems to be slightly wider. It may, therefore, be rc-dmfted to ensure that it does not go beyond what is absolutely necessary to secure its object, namely, that the provision in clause 12(4)(a) shall not affect the rights of third parties. The draft suggested in the Sixth Report* uses the for- mula "s person who acquires right in the p1*operty——without notice of the tmnssction——to which the document relates", _. etc. The meaning of the expression "notice" was discussed before us in detail. A c0mment‘ has been received to the effect that this may lead to difficulties in interpretation; the term "notice" is - not defmed in thc General Clauses Act or in the Registra- tion Act, and, it is stated, that the real value of notice might be for the purposes of the Transfer of Property Act. It is pointed out, that under that Act registration would itself amount to notice, and that the provision in question may defeat itself. The definition of "n0tice.~" in the Transfer of Propc1"'¤Y Act has not been borrowed in the Registration Act, in she definition clause. Therefore, the answer to 1.11 question 1. See discussion relating to clause I2(I). 2. See also discussion relating to clause 12(1). 3. Sixth Reporc, page 46, clause 12C4`lCbY*· 4. Comment of a High Coun. 53 . whether registration amounts to notice would depend on the facts of each case. Nevertheless, being aware of the controversy which existed on the general question as to how far registration amounted to notice before the amend- ment of the Transfer of Property Act in 1929*, we gave anxious consideration to this comment. We also considered the question whether the word "actual" could be inserted bei ni e the word "noiice" in the draft proposed in the Sixth lieport, and the controversy thus avoided. We felt, that if the expression “no-tice" has at all to be used, it may be better to define it as in section 3 of the Transfer of Poperty Act? omitting the portion in that Act relating to registration. The deiinition in the Indian Trusts ` Act is shorter than that in the Transfer of Property Act, but it is less elaborate, and is not comprehensive? The definition of "notice" in section 3 of the Indian Trusts Act*, is as follows:- "A person is said to have notice of a fact either when he actually knows that fact, or when, but for wilful abstention from inquiry or gross negligence, he would have known it, or when information of the fact is given to or obtained by his agent, under the circum- stances mentioned in the Indian Contract Act, 1872, sec- tion 229". The definition of "notice" in the Transfer of Property Act, 1882, section 3, which is very lengthy, includes not only actual notice and imputed notice (notice of an agent) and constructive notice (wilful absention from an inquiry or gross negligence), but makes two further additions, name- i ly first, v·egist.:‘·nt·Lo:t os notice, and secondly, constructive notice to the agent. It also mentions actual possession spe- cilically. As regards the effect of registration as notice, according to the decision of the Privy Council, (before the · Amendment of 1929), the question of notice was not one of law but of fact, to be determined according to the circum- stances of each cases-"’. As to the position in the Punjab, the undermentioned cases may be seen?-*-9. _ 1. See Mulla, Transfer of Property Act, (1966), page 37, and 5;,, the Privy Council decision in ’Ii'Iakdhar£ La! v.Khcdan Lal, 47 LA. 239; ]_]_f_R 48 Cal. 1; A.I.R. IQZI P.C. 112. 2. Section 3, Transfer of Property Act, 1882. 3. cf, Law Commissionh Report on the Indian Trusts Act, (1711-1 Repo;-1), Pass 5, Paragraph 11- 4. The Indian Trust Ac t, 1832 (2 of ISB2). 5. Sec Mulla, Transfer of Property Act, (1966), page 37. 6. TiIakdhc:rz`LczI v. Khectct Lal,47 LA. 239; l.L.R. 48 Cal. Ij A_I.R_ 1921 P.C. II2. 7. Gopal Sirtg!1 v. Thczkcr Singh, AIR. 1935 Lab. 313, 314 (Wills), 8. D./I. College V. Umrao Singin, A.l.R. 1935 Lah, 4IO_ o. G/mins: Fatima v. Gopal Devi, A.I.R. 1940 Lab. 26;. $4 Illustration 3 to section 27 (b) of the (old) Specific Relief Act, may also be see-n. We also considered the sections in the Law of Property Act. Sections 198 and 199 of the Law of Property Act, 1925, (15 Geo. 5 c. 20) read as follo-ws:- Registration ‘“198. (1) The registration of any instrument or matter under uic under the provisions of the Land Charges Act, 1925, or any _ gd CE; enactment which it replaces, in any register kept at the ,925, to bg land registry or elsewhere, shall be deemed to constitute notice actual notice of such instrument or matter, and of the fact of such registration, to all persons and for all purposes con— nected with the land affected, as from the date of registra- - tion or other prescribed date and so long as the registration continues in force-. (2) This section operates without prejudice to the pro- visions of this Act respecting the making of further advances by a mortgagee, and applies only to instruments and matters required or authorised to be registered under the Land Charges Act, 1925. Restrictions 199. (1) A purchaserl shall not be prejudicially affected °¤ _ Com- by notice of-- 'tructivc ¤¤*i°¤ (i) any instrument or matter capable Of regtSt·ro.t·Zon under the provisions of the Land Charges Act, 1925, or any enactment which it replaces, which is void or not enforceable as against him under that Act or enact- ment, by reason of the non-registration thereof; (ii) any other instrument or matter or any fact or thing unless—— 4 (a) it is within his knowledge, or would have come to his knowledge if such inquiries and ins- pections had been made as ought reasonably to have been made by him; or ' (b) in the same transaction with respect to which a question of notice to the purchaser arises, it has come to the knowledge of his counsel, as such, or of his solicitor or other agent, as such, or would have come to the knowledge of his solicitor or other agent, as such, if such inquiries and ins- pections had been made as ought reasonably to have been made by the solicitor or other agent. (2) Pa·ragraph (ii) of the last sub—secti0n shall not exempt a purchaser from any liability under, or any obliga- tion to perform or observe, any covenant, condition, pro- vision, or restriction contained in any instrument under which his title is derived, mediately or immediately; and such liability or obligation may be enforced in the same 1. For definition of purchases sez section 2o5(1)(xxi). 55 manner and to the same extent as if that paragraph had not been enacted. (3) A purchaser shall not by reason of anything in this section be affected by notice in any case where he would not have been so affected if this section had not been en- acted. (4) This section applies to purchases made either before or after the commencement of this Act". The provisions of sections 198 and 199 modify the doctrine of noticcl. Section 199 of the Law of Property Act, is designed to restrict and not to extend the doctrine of notice. Its object * is to remedy the evil consequences of such a doctrine, as illustrated in one case where a solicitor had come to- know of a certain fact in a previous transaction, and this created the impression that the solicitor had actually remembered about what he had come to know and this "know1edge" of the solicitor was again imputed to the clientz, in a subse- quent transaction. The need for clause 12(4) (b) was also discussed at some length before us. The illustration given in the Sixth Repo-rt in this con- text says, "'I"he owner may give an unregistered sale-deed to A and later give another ante-dated sale-deed to B and have it registered in an office far away by including in it .... ", etc°‘. We have taken note of the illustration. We think that some kind of provision is needed to avoid mis- understanding of the scope of clause 12 (4) (a). The main object of clause 12 (4) (b) is to emphasise that the registration of the document under the circumstances mentioned in clause 12 (4) (a) should not bind ri third party, i.e. a person who acquires rights otherwise than under the document, and is not a party to the document. We, therefore, recommendt that the saving contem- plated by clause 12 (4) (b) of the Sixth Report should ap-pear in a redrafted form, as fo-1lows:— "Nothing in this sub—section shall affect a person, who, not being a party to the document and not claim- ing under the document, acquires rights in the pro- perty in good faith". Whirl Lewin, Trusts, (1950), pageiiaa. - M z. See Lewin, Trusts, (r95o), pages 725-726. 3. Sixth Report, page 23, paragraph 56, lines 34-4o. 4. See section 29, as proposed to be amended. One comment makes the point that at question of burden of proof will arise in that avant of a ctmtiict between the traiasfarees, and therefore suggests that an Explanation be added which should cast the burden of proof cm the parties who have gona 0-ut of their Way to secure registration by inclusion of non-existent, ctc., property. It appears un- necessary to ancumber the clause with this additional pr0— vision, whose purpose or affect is not very precise. Céause I3 Clause 13, departing from existing section SM2}, gives. power to every Registrar to register a docu-mem without regard to the situation in any part ui India of the property, if sugiicient cause is shown for doing so. (Under the exist- ‘ img section, the power is given only to Registrars in Presi- dency towns, but irrespective of the existence of a sufii- cient cause). While this major changel has not provoked any COIIIITIEHT, one comment received suggests that thc Ra- = gistrar should trecord his reasons for acting under this sac- tion. This doas not appear to be necessary. Incidentally, we may mention here that, independently of the comments OH the Sixth Report, we have received suggestions to the effect that the Registrar in Delhi should have power to register a document executed in Delhi, irres- pactiv of situation of the property. We- have already sub- mitted a separate Report cm the subjactz. Our views are as folluwsr- (1) The existing section 30 (2) may be extended Lu Delhi, as already rece-mma-ndad by us? (ii) The Sixth Report " proposes its extension tu all Registrars i.e. in substance 1:0 all district headquarters. This is not necessary, as there may not be at big ccmcan— tration pf people from several parts of India, or a eos.- mopclitan population, at every district headquarters. ’ (iii) The requirement of "sufficie11t cause? added by the Sixth Rep01·t5 may be deleted, as it is not neces- sary to hedge in the section with any such restriction. _ It would be of interest to refer here to the various sug- gestions which were made to the Law Commissions with reference to section 30(2), before the earlier Report was pt·e~ pared- On the one hand, there was a suggestion that the sub-section be de·1atcd°, the reason given being that there was no justitication for giving a wider jurisdiction to the Registrar in Presidency Towns. 1. As :0 reason for this change, see Sixth Report, pagc 25, pam. graph 6::. 2. 'I`hirty—First Report of thc Law Commission, [Indian Rtcgistracicn Act-——sccti01‘1 30{2)—c2> registration by the testator, or after his death, by any por- son claiming as executor or otherwise "thcrounder". The existing section @(1) ig in a slightly dine-rent form, and provides, that the to-stator, or, after his death, any person claiming as executor, ctc. "unde;·r a will" may present it, atc. =» Ono comment states, that the word "therounder’·` in the: proposed clause imposes on unnecessary restriction. This docs not appear to be correct; this word is merely tin ro-— placement of "und<2r a w·i1I". Another oom111em suggests, that the presentation of :1 will by the agent of the- executnt should be permitted. This clarification appears to be necessary in the Scheme: — adopted in the Bill in tho Sixth Report, whoreunder as dichotomy has been introduced botweon—- {li documents other than will or authorities to adopt (on the ono hand], and (ii) wills and authorities to adopt {on the other hand}. Existixxg section 32 speaks; of documents generally, and its operation in relation to wills and authorities to adopt is excluded only to this extant, that during the donofs life- time; the person:-;·. claiming thereunder, etc., or the dome of the authority, atc., cannot present itk Frosontation by 1. Malia {LQ63), page 137. 2. Mulla (1963], page r37. 3. Psmm Ch¤md’: cose, Mum {:963}, page 144, ¢:<>p~ .SMl11 Sqn' :11 fr zh?' C — cw. 2... iff ¤`3..£..S..§§§%yE”€f’ ?....;.L.I“*`§..._..'i.§’€??%. .3*; p?¤F*Z5. "“" _ ’ 60 agents and representatives of the testator or donor is not excluded.1 Therefore in clause 15 (b), the case of the testator’s representative or agent should be covered, and the case of the claimants representative, assign or agent should also be covered. We think that to avoid dilficulties, the existing scheme of section 32 should be restored. Cl¤‘¤‘5·‘= I5 (Cl Clause l5(c), which corresponds to existing section =tO(2), deals with presentation of authorities to adopt. Here also _ e comment has been received that presentation bg: agents should be permitted.? Really speaking, if this provision is to be retained in the form proposed in Sixth Report, more elaborate change will be necessary as in clause 15 (b) .3 As regards authorities to adopt, as they are to- be retained} re- ‘ ferences to such authorities in clause l5(c) should also be retained. clause i6 Clause 15 [dealing with powers of attorney which may be recognised) follows existing section 33 (with small ver- bal alterations). Accordingly, it makes a distinction between— (i) cases where the executant resides in Indi.a," and (ii) cases where he does not reside in India? In the former case, the power of attorney has to be pre- sented betore and authenticated by the Registrar or Suh— Registrar within whose district, etc., the principal resides. In the latter case, it can be authenticated by any Magistrate Now, a comment has been received to the effect, that the distinction between the- two cases should be abolished, and that in the former case also authentication by a Magistrate should suifice. It has also been suggested, that authentica- .. tion before a Notary Public or any court or Judge may be added. As regards Magistrates, it appears to be unnecessary to include them in the first case. As regards Notaries, we con- ` sider that while in big cities the notaries may be responsi- ble persons, in small cities they may not be responsible persons, and they may not be competent to check frauds, in respect of powers-of-attorney. In view of this diiificulty, we were iirst hesitant to add notaries. But, ultimately we decid- ed to add them. We recommend' an amendment of existing section 33 accordingly. It may be added, that notaries are empower- 1. See Mulla (1963), page 159. 2,. As to present law, see Mulla (1963), pages 158-159. 3. Sec discussion as to clause I5 (lr). 4. Soc discussion relating to clause 3 (3). 5. Section 33 (1)(u). 6 Section 33 (I) (0). 7, See section 33, as proposed T0 be ameidecl (regarding notariesl. 61 . ed under section 8(1)(a) of the Notaries Actl to authen- ticate the exercution of documents. Clause 16(1) (c).-—needs no comments? ?g“""’ *60} Clause 16(2) and (3),-Clause l5(2) and (3) corresponds Claim 16(2J to existing section 33(2) and (3), with verbal changes? am (3) Consequential changes on the addition of notorées‘ will be necessary in clause 16(2) and (3). Clause 16(4), following existing section 33(4), provides that a power of attorney may be proved by its production - without further proof, if it purports to have been "executecl before and authenticated by" the person mentioned be- fore. Thus, to obtain the beneiit of this provision, two things are required:- ` (i) execution before the authority concerned; and (ii) authentication by that authority. Now, in the case of persons who are ill or ai in jail or are exempt from personal appearance, the proviso to exist-- ing section 33(l)—clause lEi(1), proviso——pr0vides, that such persons Deed not attend for executing the powers—of-attor-- Hey before the authorities concerned. This has been inter-- preted as meaning that they need not execute the power ot attorney before the authority con-cerned.” In such cases, therefore, the condition of execution before the authorities: concerned would not be fulfilled. To bring them within the benelicial provision in clause lti(2)_ it has been suggested that the words "or voluntarily executed by the principal and authenticated as aforesaid, as the case may `be" may be add-- ed at the end. We do not think that any such change is required. ` Clause 1’?(1) makes a small verbal change in section C1““‘*° 17 52 (1) (a) (b). It is not necessary! In prescribing the time-limit for the appearance of Clause _r3 I parties, clause lB(l), proviso, departing from existing sec:-U)=1'—‘*`°V*S° tion 34( 1), provides that the Registrar may extend the time for appearance on proper cause being shown, by a period not exceeding two months (instead of four months as in the existing section). The amount of {ine which the Registrar can impose is also reduced to a lump sum of Rs. 10. Other verbal changes are also made. This reduction of period is 1. Notaries Acc, 1952 (53 of 1952). z. See Sixth Report, page 26, paragraph 64. 3. Sea Sixth Report, page 26, paragraph 64. 4. See discussion under clause 16 (1). 5- $66 M¤ll¤ 0963), page 142. cases in foot-note {1). 6. Discussed in the Sixth Report, page 32, paragraph So and page T7 and page zo. E2 mated in the earlier Report,] (though no detailed reasons have been gwen). Smce clause 10(U allows extension up to four pcnths,2 the; comments suggest that here also, for uni.- fcrmxty, the permd of four months should be maixataincd. _ As regards reduction of the fine, it has been sugg=1·stod ng the comments that the maximum fine should be five umcs the amount 0f the proper registration fee. The other verbal changes made in by clause 18 (1}, pru- viso are mnt, in our view, necessary. 'I'hcm is 110 objection to having a uniform period. The period of four months should be retained. As 1·cg‘a1·ds the amount of Hue, the- clause should follow the decision under clause 10 corresponding t0 existing section 25**. We recom- mend* an amendment of section 34 accordingly. One- important point regarding clause 18(1) should ln noted. Appearance of the party is required within the time required for presentation, under the relevant seacti0n". Existing section 34 (1), in this connection, docs not refer to section 27 relating to wills. Clause ]6(1), however, refers inter calm to clause 8, which would take; in clause 8(2) re- lating to wills. Since a will can be presented at any timdn clause 8(2) should be excluded from the sections referred to in clause 18 (1). 131,msE Iggy Clause 18(2) and (3) corresponds to existing section 3—}(2) ¤¤d {B) and (4), with verbal charges? which d0 1101: appear t0 be necessary. Clause 1$l(4j- When the G-Xecu-tant who presents the document docs Rvwrn <·f not appear within the time prescribed ¤1· extended, the ?;"°;“(;';j:“__ Registering Ofiicar, it is provided by clause 18 (4) , should pcgranca P ma-ka an entry to that affect tm the document, and return it without registratio-n to the party who presented it. This is cx. new provision recommended by the Sixth Report, where the reasons were thus statedg: - "Pmvisi _ '75(Ll), the other part being incorporated in clause 20(3) 2. Clause 22 (6) (b), dealing with the order of refusal by Clause 2205) the Registrar, departs from existing section 7S(1) in that (bl it specifically enumerates the cases in which the Registrar refuses registration and, further, in doing so, it mentions non—proof of attestation also. This latter chan-ge (regard- ing non-proof of attestation) is consequential on the changed scheme embodied in clause 2l (1) (v). As that changed scheme is replaced by the existing one“, clause 22 (6) (b) will also have to be replaced by existing section '?6(l). The former——specific enumeration-—is not neces- sary, and may be dropped. 1:. Sec discussion relaiihg tor clauseizr. it- Kikg 2. See discussion as to clause zo (3). 3. Sea discussion relating to clause 21 (2). 74 Clausen; Clauses 21 and 22, dealing with refusal of registration, eggiigm lay down the procedure where refusal is on the ground Dr Elm? enumerated in the clause. This scheme of specific enume- {ig;] Dfw;- ration is a departure from existing sections 71 (1) an.d tions 6; to 72(1) read with section 76 (1), The existing sections do not 76} enumerate the grounds. All cases of "refusal to register"' or "refusal to admit a document to registration." are covezr- ed (at present) ,-—- (i) So far as the Sub—Registrar is concerned, by sections 71 and 72; and (ii) so far as the Registrar is concerned, by sec- · tion 76. A query arises whether the proposed specific enumera- tion leaves out some other grounds. It has been pointed - out that (for example), that refusal of registration under clauses 5 and 7 (language not being understood by the Sub—Registrar, or interlineations of insufficiency of des- cription), would not be covered by clauses 21 and 22, because the-y are not mentioned there. There seems to be some- force in this objection. Cases under clauses 6 and 7 are not enumerated in clauses 21 and 22. In this respect-, existing section 72 is much wider, because it coveres all grounds of refusal to admit a docu.- ment for registration, except denial of execution. It may be useful to add he-re, that "refusal to admit" a document for registration would appear to include cases of refusal to "accept for registration"’-2. It may also be noted, that as regards refusal under sece- tion 25 also, the prevailing view isi-* that there is no difference (in relation to the applicability of sections 76 and 77) between "refusing to re,ister" and "refusing to ' accept for registration? We have already suggestedi the retention of the exist- ing provisions in sections 71 to 76. » The points noted above support that conclusion. Clause zg Clause 23 corresponds to existing section 77, and deals with the suit to be filed in case of order of refusal by the Registrar. One change proposed by the earlier Report is the addition of a proviso, which seeks to save any other 1. Mumhi v. Daular Ram, A.I.R. 1944 Lah. 349, 35o. 2. Abdul Rahman Sc Co. v. Lakmichand, I.L.R. 40 Bom.40, 69; A,I.R, IQ2$ Bom. 34, 36 (Refusal under section 2I for want of suiiicient description). 3. Gmzgadara v. Smbasiva [1916) I.L.R. 40 Mad. 759 (RB.), 4. Mamzkial v.Kas:urbha£, I.L.R. 53 Bom. 644 ; I.L.R. rgzg Bom- 365. 5. See discussion relating to clauses 21 (2) and zz (1). 75 .7 ~ remedies to which a person may be entitled on the basis of an unregistered documentl. This change has been agreed to in a comment received on this clause. It may be adopted!. A few other points have, however, been raised. One is, that the time of thirty days allowed by clause 23(l) for the suit should be counted from the date of the commu- nication of the order to the applicant, and not from the .date of the making of the order, as at present. Another suggestion is to the effect, that in computing the period, the time requisite for obtaining a copy of the order should be excluded. The First suggestion relates to the starting point. The present position seems to be that the starting point for counting the period of thirty days under section 77 is the date of the order, if the order was made in the presence of the party concerned. If the order was made in his absence, the starting point is, again, the date of the order, if notice of the date- of the hearing of the application was given to the party; but it no such notice was given, then the starting point is the date of communication of the order? The present position is, thus, clear and just, and no provision is needed. As regards the time spent on obtaining copies, section. l2(2) of the Limitation Act does not in terms apply to suits under this section‘*. Though a plaint in a suit under section 77 of the Registration Act is not required to be accompanied by a copy of the order, yet, in practice, it will be difficult to frame such a suit without knowing what the actual order was. Hence the obtaining of a copy is a practical necessity. Having regard to the very short period of limitation, (30 days), this concession should we think, be allowed. We recommend an amendment accordingly? Clause 24 mentions “autl1orities to adopt", and the re- Cmm 24 tention of these authorities will depend on whether clause $3 (3) is to be retained? Clause 25 provides that (besides a document admitted Clause 25 to registration) every memorandum of document received shall be copied in the appropriate book. This is an addi- tion to existing section 52 (1) (c). The earlier Report? ·stated that memoranda were included in view of the changes introduced in clause 42. Clause 42(3) proposed that a registering officer receiving a copy of decree, etc., I. ger reasons, scc Sixth Rcport, page 34, paragraph 95, and page 7. . z. See section 77 (2), as proposed to bc amended. 3. See Mulla (1963), page 263, and cases in foot-note (J) there. 4. Sec Mulla (1963), page 264, foot-note (r). 5. See section 17 (1), as proposed to be amended. 6. Sec discussion relating to clause 3(3). 7. Sixth Report, page 79, note on clause 25. 'rti undenthat clause shall prepare a memorandum in the prescribed torm. Under clause 3G(1), which was adopted by clause 42(B), a copy of the memorandum had to be sent to all Sub·Registrars within whose sub-districts any oart ot the property is situated. ` It has been suggested. that copying of the memoran- dum is not necessary. (From the comments received on other clausesl, it would ap-pear that the existing practice is only to file the memoranda). It has also been suggested. that copying of the memoranda will mean mere duplica¥ _ tion of u·orl<. Since, at present, these memoranda also arc indexed, this change can be safely dropped?-3 lt may be noted, that the words relating to "memo1·an» dum" in clause 25 can refer to——— ' (i) _memoranda tiled where an original document has been registercd——clause 36(3); (ii) memoranda filed where a copy has been re- ceived--clause 42(S). In the former case, the memorandum is to be sent to other Sub-Registrars concerned, because the property is situated in different sub-districts. Since the Sub—Reg.is- trars are required to file it* in Book No. 1, the further provision of copying out the memorandum is unnecessary in relation to them, in clause 25. In the second case, only the copies are received by the Registration oiiice. Since clause 42(I3), earlier half, pro- vides that the copy shall be filed in Book No. 1, in relation to them also, the copying out of the Memoranda und: clause 25 is unnecessary. Clause as While dealing with endorsement on documents admit- ted to registration, clause 26 provides that on every copy - sent to registering ofiicer (under clause 42~—existing sec- tion 89) the particulars mentioned in the section shall bc endorsed. Those particulars include the signature and "addition" of the executant and of all persons examined under the Act and payment of money, etc. This is a new provision; not found in existing section 58 (which is con- fined to endorsement on original documents registered). The comments received state that the endorsement tvill not be possible in the case of such. copies. This objection seems to be correct. The change may be dropped. 1. See discussion relating to clause 36. 2. This point is linked up with clause 36 and clause 64. 3. See also discussion relating to clause 42 (3), 4, Existing section 65 (2} ; clause 36 (3). TT Clauses 27-28 seem to make only consequential changes cgiwm 27.. as to section references, in existing sections 59-EU. zs Regarding clause 2Q(l) (corresponding to existing sec- C1aus=r29(1) tion 61)—copying of endorsement. etc.—a suggestion has been made, that a provision should be made enabling the filing of maps, plans, or diagrams accompanying documents registered in books Nos. 3 and -1 and in the indices con- cerned. On this point,- the clause does not seem to depart from existing section Gltl). This comment is apparently linked up with the similar comment on clause 'i'(·1)-—ex— * isting section 21 (4)-—and the course to be adopted will clependi on the decision on clause '?(4). Following existing section 6l(2}, clause 29(2) deals with classmate) _ return of the document on registration. A comment has been received to the effect, that when the presentant has no interest left in the deed, he does not care to take it back, and the document; remains lying until its destruc- tion after two years and therefore a provision that the docu- ment should be returned to the presentant or his agent should be inserted. The existing provision does not, how- ever, seem to require any change. The matter can be man- aged without elaborate statutory provisions. Clause 3U(1} makes no change in existing- section 52.C1auseg,e Regarding clause 3U(2), a point has been raised that the reference therein to clause 65 is perhaps s mistake in clause 42. But it is not so. Clause 65(l), (2) and (3) refers to copies, and the mention of copies in connection with that clause is intelligible) Clause 32, following existing section 36, empowers the Clause 32 registering gfiiccr to send a request to an officer or court - for issue of summons. A pointhas been made in one com- ment, that since clause 2U(3) widens the powers of regis- tering officers in relation to issue of summons, this provi- sion may not be necessary. There may, however, be Cases · where the registering officer may prefer to get the sum- mons issued through the court. Hence no change is neces- sary. Another comment is to the effect that the registering oliicer should himself have the power to issue the summons. This is covered by clause 20 (B)? Clause 33 is linked up with clause 32, and, following Clause 33 existing section 37, states that an oilicer or court required by a registering orlicer to issue a summons shall do so on receipt of the fee. Existing section 37 uses the expression “peon’s fee payable in such cases" while clause 3.3 simply says "fee payable", ctc. One comment suggests the sub- I. See discussion as to clause 7 (4). g. See discussion as ro clause 20 (3). 78 stitution of "process fee". The expression used in clause 33 is better and may be adopted if the whole Act is re- enacted? geuses 34*- Clauses 34-35 make no change in existing sections. (gauge 36(U Clause 36(1), dealing with the procedure where a docu- (3} ¤¤d(4) ment relates to lands in several sub-districts, adds one new provision to existing section 64_ in that, besides pro- viding that in such a case the Sub-Registrar should inform all other Sub-Registrars concerned (by scnding a memo- - randum), it also provides that the memorandum shall be copied in Book No. 1. (Under the existing section, the memorandum is only filed in Book No. 1). This change has provoked several co-mments, which state that since _ the memorandum is filed in Book No. 1, the further pro- vision for copying is unnecessary. It is also pointed out that making out copies will mean duplication of work, be- cause indexes of such memoranda are prepared just like the indexes of registered documents. There is some sub- stance in these points. These comments may be acqepterd, and necessary change made in clause 36(1) 36(I3) and 3B(~l} (d)2, by removing the requirement of copying. game 36.. A new point relating to caluse 36 has been made in New point connection with Cantonments. It js stated, that Section 287(2) of the Cantonments Act, 1924 (2 of 192*4} requires that when any document relating to any immovable pro- perty is registered with Cantonment, the Registrar or the Sub-Registrar shall send intimation to the Cantonments Board or other prescribed authority; it has therefore been- suggested that a provision may be inserted in the Regis- tration Act to the effect that a Sub-Registrar. on register- ing a nomtestamentary document relating to immovable ' property situate in any Cantonment, shall forward s me-- morandum of the document to the authority approved to administer such Cantonments. The suggested provision- would be a dup·lication of what is, in substance, contained already in the Cantonments Act, and does not appear to be necessary. It may be noted that besides the Canton- ments Acts, there are many other Central Acts containing provisions of interest to registration law? Cl*“S"’ 37 Clause 37 proposed certain changes in existing section 49, for reasons explained in the earlier Report? The com- ments received express agreement with this change. Bat one comment suggests. that the words "unless it has been registered" may be placed at the beginning, to make it 1. To be carried only if whole Act in iedrafted. 2. Sea also discussion relating to clause 25. 3. See the ust in Mulla (1963), pages 2.84-285. 4. See Sixth Report, page 3+:, paragraphs 75-76. 79 clear that it governs all the clauses. This change may be carried out only if the whole Act is re-enactedl. Having regard to our recommendation? under clause 3(1)(a), existing section 49 may, as regards documents require to be registered under any other law, be kept as it is. Omission of existing section 49(l) (c) and proviso was proposed in Sixth Report, but this may revive old controversies'. They should, therefore, be retained. Clause 38 corresponds to existing section 47, without C1**‘·‘“’ 33 changes. No comments have been received on this clause. Clauses 39 and 4U correspond to existing sections 48 and gfluzés 39 50 with certain changes which are explained in the earlier Report? (The details of those changes are not relevant for the present purpose). Dr. Sen Gupta had, however, in his dissenting note*, expressed the view that the existing sec- tions should be omitted altogether. He pointed out, that ever since these sections were brought on the statute book, successive amendments had restricted their scope. and now there was a very tenuous survival of tho original section. When the original section was enacted, registration was optional and not (as provided in section 17 of the Act) com- pulsory, Now section 17 was proposed to be expanded so as to include all documents concerning immovable property. There was therefore, no justification for providing for prio- rity of registered documents over unregistered ones (exist- ing section 43) because the unregistered documents are "ex hypothesi perfectly good and effective instruments". lVlore— over, the giving of such priority was wrong on principle. The prior document or oral document transfers a right to the transferee, and the transferor should have no right to transfer the same by any subsequent document. By mak- ing a subsequent document, he is simply transferring some- thing which he has not The existing section. in his opi- nion, left open the door to fraud. A person may transfer a small property bona fide to another on receipt of proper consideration. deferring only delivery of possession by con- sent or for convenience. Under existing section 50——clause 40—even the delivery of possession would be no protection, so that a new registered document may be got executed for the same purpose in favour of somebody else. There was no provision in the law even for reimbursement to the First transferee for the expenses incurred by him. Lastly, in his opinion, when virtually every document of importance is compulsorily registrable, no real advantage would be gained by retaining these sections. x. To be carried out only if the whole Act is to be re-enacted. 2. See discussion as to clause 3 (r)(a), 3. See Mulla (1963), pages 174 and 182. 4. Sixth RCpDTC, page 29, paragraph 74 and page 31, p&J.1’8.g'['Z.pl’1 77. 5. Sixth Report, pages 103 and 1o4. 80 Several comments received on these clauses have ex- pressed the view that the sections should be deleted altogether, that they encourage fraud, that they are unneces- sary and redundant, and expressed agreement with Dr. Sen Gupta’s views. One comment, agrees with the amendment proposed by the Law Commission, while one comment suggests the specific mention of section 53A of the Transfer of Property Act in clause- 39, second proviso. It would appear} that the provisions for giving priority to a registered document over an unregistered one were ( first introduced at a, time when registration of the docu- ments concerned was optional. As regards documents ` compulsorily registrable, the first Registration Act which gave them priority over unregistered document, was the Act of lt}'?'?. Before this Act, a document coinpulsorily re- gistrablg had no priority, so that there were cases in which - , persons committed fraud by 1'irst executing a sale deed for, say Rs. 50 (optionally registrablc) and then executing a fraudulent sale deed of the same property for, say Rs. 101 (compulsorily registrable). The document, though registered, had no priority over an unregistered document ,_ under the old Act, as it was eompulsorily rcgistrable. The result, was that the deed for Rs. 50 held the field. . `{ This was not all. The document for Rs. 50 was actually Z` executed later, but was ante-dated? It thus defeated the deed of Rs. 101. It was to prevent such mal-practices in respect of documents compulsorily registrable that register- ed documents were given priority over unregistered docu- rnents.’*—‘* The deletion of these sections sections 48 and 50. might therefore revive the very malpractice to remedy which the 1877 Act first introduced the comprehensive provisions new found in section 50. That is to say, the transferee under a document for more than Rs. 100 (registered) may be - defrauded by a subsequent transfer for less than Rs. 100 (unregistered) which is ante-dated. It is true, as pointed out by Dr. Sen Gupta, that retention of the section can lead to fraud in the converse case, namely, a document - for less than Rs. 100 (unregistered) can be defeated by a document for more than Rs. 100 (registered). Thus, either cours is likely to leave open one kind of fraud. It is not easv to say which is the more frequent and serious type of fraud. We consider, however. that the sections should be retained, because-- ` (i) fraud of the typ-e contemplated by the 1877 Act , cannot be ruled out until the limit of Rs. 100 is remov- ed: . (ii) retention of the section would encourage peo- ple to seek reeistration to ensure priority and thus pro- mote the habit of registering documents: 1. See Mulla (1963), page zor, under the heading " Regulations". 1. See csser- cited in Mulla (196;). pages zog-zo4. 3. .S`ee the statement of Objects and Reasons to the Bill which became the "‘·-- IRY2 Act, cited in Mulla (1o63l, paee 1o4. .i. Section so ofthe rR66 Act (Mulls, page req) may be contrasted with section 50, 1877 Act {Muna, page 200 i. 31 .. (iii) where the section is likely to cause hardship, ._ the Legislature has intervened to provide relief—as in · section 53A Transfer of Property Act. (This is in rela- tion to existing section 50). ` `. The existing sections, therefore, need not be removed. As regar is the suggestion to mention section 53A, Transfer of Property Act, in clause 39, that appears to be unneces- sary, because section 54A. is confined to cases of writing, whiig clause 39 deals with competition between a registered document and an o-ral agreement or declaration. The second__pro`viso_,in clause 39 (added by the Sixth Re- port to save section 27`(b),. Specific Relief Act, 187T), is not necessary. The existing position is fairly clear} The · secondiproviso may be dropped. (The existing- proviso · irelatingrto .equitabie mortgages was necessary for special reasons).; __ ‘ _i _ - _ In clause 40, the saving regarding section 53A, Transfer of Property Act is not necessary, and may be dropped. - _ Clause 41(l) corresponds to existing section 87, which Clause 4iCU deals with defects in the appointment or procedure of the registering officer. . V ( Clause 41(2) is a new provision, ito the effect that any Clause 4I(2) defect in or the want of authority of a person to present a document shall not, by itself render invalid ..the registra- tion of the document or the transaction effected by it. Rea- sons for this change were explained tn the Sixth Report?-* , the main point being that once registration is effected, the executant or any other party (whether present or not) should not be allowed to go behind the registration. This change itself has not provoked any comment; but two comments suggest the deletion of the words "or the transaction effect- ed by it" in clause 41(2), because the only question with which the sub-clause is concerned is validity of the regis- tration. The comment may be accepted. _ It is also our view, that the provision in clause 41(2) should be confined to parties who before the registering ohicer assented to registration or admitted execution. Sub- ject to these changes. the provision in clause 41 (2) is a usc- ful one, and we recommend' its adoption in a suitable form. 1. See Mulla (r963), pages 169 and 227. 2. See Malia ([963), page 163. ` 3. Sixth Report, page 36, paragraph 99 and page B0. 4. The existing law is discussed in Mulla (1963) page :34, under section 3:. ( 5. Sec section B7, as proposed to be amended. 7-109 M of Law. ' 82 Clam 4*- Regarding clause 41, a new point has been raised to the Nm p°m effect that if a registering officer, by inadvertence, admits a document affecting immovable property in a place over "" which he has no jurisdiction, the defect should be curable. The existing law seems to be that if no part of the pro- perty is situate within the sub-district where it is register- ed, the registration is void under section 28*. The proposed change might appear harmless at th first sight. But there is one risk, namely, in the district where the property is ‘ actually situate, the transfer registered by in another district would not be recorded or traceable in the . registration records, so that persons subsequently intending to take a transfer of that property might actually have no * notice of the first transfer, and may yet be burdened with constructive notice of the transferdunder section-3,idéiih`ition" of notice, Explanation 1, Transfer of Property Act. No change is the_re{·sre, recommended, as to this point. Cl°“’°4‘U> Clause 42(1) deals with copies of orders, etc., to be sent by the court or ofhcer. The clause expands the category of orders to be so sent. The reasons for this change were explained in the Sixth Report at various places? The object was, that registration under the Act should operate as a complete and effective notice concerning title. All docu- w . ments affecting; title to immovable property must be brought within the purview of the Registration- Act. Either the document should be registered under the Act, or a memo- _ randum thereof filed under sections 65 and 66 under Book No. 1 and under section 89. Bringing in all documents under section 89 would not put the parties to any additional J expenditure, since they are not required to be registered. - Copies of all decrees or orders of court affecting immovable property were also proposed to be sent to the Registrar,° and so were copies of even plaints and memoranda (of __ appeal! {This recommendation was subject to the dissenting note of Dr. Sen Gupta.)” 1. See the cases cited in Mulla. (1963,), page 126, under section 28, tmdef the heading " Registration void if no part", etc. 2. Sixth Report, page I'}', paragraph 39 ; page 18, paragraph 40 3 PRQE 37 paragraphs to: to 103 ; page 7 (under section B9); page 75 ; and page So (Notes). 3.Sixth Report, page 37, paragraph 102. 4. Sixth Report, page 37, paragraph ID]. n 5. Sixth Report, pag 105. 83 Z I. The following chart will show-how the clause-widens the scope of the existing section. ; - · _ Existing section 89_ _ _ _ Clause 42(1') ` (I) Loan underthc Land Improvement (a) I.x>a.¤ under Hue Land Im- Loans Act, 1883. _— roverncnt Loans Act or the _ . , 4 Xgnctnlnu-ists’ Loans Act, - _ ‘_ , 1884 (tz of t884)‘. l (aj Certificate of sale of itnmovsstsagucs Sec (Iz) below. _ _ pcrty under Civil Procedure C c. (3) Loan under the Agricniturists’ Loans See (a) above. . Act, 1884. - “ 4 A (4) Ccrtiticste of sale by Revenue-Ofliccr, See (lt) below. ·_ granted to the purchaser of itnmov- . able property sold by public auction. . _ - (6) Partition by or- Revenue - Offca 5 ` ’ n (c) Vestirzg Order under the ` ' ` Charitable Endowments Act, P 1390, etc; _ (d} Grant of immovable property —~ ~ by or on behalf of the Govern- , _ ._ mem ; ' (¢)_Decree or order of at court ‘ including cme upholding pos- session of defendant under ` section 43A of T. P. Act; ‘ ~ - _ (f) Security bondexectatedinfaooztr _ .. ‘ of 0 court or public ofncer ; ( L' . . 'T : ·· r (g} Gampositxbn dud accepted by a . court in rlmvolrvency ; Soc (2) and (4) above . . , . fh) Gernjicate ofscle granted to the a _purch¤ser by 0 civil court or - _ ‘ In rtherpublicvfficer. II. Plaint or mentorunditm ofjoppeql in which immov- able property is in controversy ` i e As numerous comments raising multifarious points have been received, it would be convenient if they are classified and the pointsrnade therein divided,-as follows:- (1) Oneline of criticism " is; that the proposed amendment will throwenormous work on courts and registering offices, without any substantial advantage or benent to the public. It would, it is stated, serve no useful purpose, and increase ministerial work. (ii) Regarding plaints and memoranda of appeal, it is pointed out, that the .processfoI.sending out copies involves immense trouble and expenditure, and will encumber the record of the.- registering oiiicers. A _ _ __f Bil plai-nt or memorandum of appeal is only a preliminary stage of the proceedings, and its transmission to th.e re- gistering officer will be meaningless. Dr. Sen Gupta had also in his dissenting note,1 madegthe point that since the tiling of a plaint does "not affect title, its re- cording under the clause"‘wi1l have no use except to -·j showthat alsuitahas been filed.- If it is only to give J notice to any party that there is a pending suit, it is, in ‘ his view, superfluous, because the doctrine of lis pen- dens is not ependent on notice. Moreover, he pointed out, a memorandum of appeal does not containany description of- immovable property, and conveys (to its *€¤d¤¤‘l Mthins with respect to the property which is the subject matter of the appeal. , (iii) Besides--these objections, a few points of detail have been also made in the comments. Thus, one com- ment says that courts and officers fail to sendcopies for years, and that, therefore, a time limit of four months should be laiddown. Another comment suggests, that the words “and" after the words "specified in this sub- section" may be deleted, so as to remove the misunder- standing théf thesubsequent words "affecting, et<:." do not apply to "decre_e or order". (iv) An ralternative suggestion is that if copies of decrees passed after adjudication are sent to the Regis _ tration Department, the purpose will be served. This - was also Dr. Sen-Gup·ta’s suggestion} (V)-Regarding security bonds referred to in clause 42(`1)(f), it has been po-inted out that they are co1npul» sorilyjregistrableunder existing section 17(1)(b). The decision in Bishnath Saha v. Prayag Dia,' is cited in support of this, and it is argued that the original is re- gistrable compuisorily, a copy need not be sent under _ this clause? - V (vi) It hasgalso been suggested, that these changes may be- replaced by a simple provision requiring copies of _order.,of courts directing attachment of immovable property to be registered. . _ -_ t _ (vii) Linked up with these changes is the deletion of the relevant portions of existing section 17(2), list- ing various documents as exempt from registration. These are, section.;:l7(2)(vi) and section 1’?(2)(vii), (viii), (ix), (x), (xi) and (xii). As regards section 17(2)(vi) (exemptingifrom registration)·"any decree or order of ~ court except a decree or order expressed to be made on 1. Sixth Report, page 105. _ 2. Bishrmth Sahu it. Prayag Din, A.I.R._ 1958‘All. Szo. 3. As to existing law, sae Mulla, [1963), page 94. - 85 _,, a compromise and comprising immovable property other -. T than that which is the subject matter of the suit or pro- ceeding" it has been suggested, in one of the comments, that it should not be deleted. Clause 42{1) (c) provides that a copy of a decree or order of a court (affecting immovable property) is to be transmitted to the regis- tering officer. But an apprehension has been expressed that unscrupulous persons might cheat the Government of the revenue byistarting a suit on the basis of an insignificant item and then obtaining a compromise decree by including therein property of much greater - value. Therefore, section 1’?(2)(vi) should be restored (so that such compromise decrees will continue to be registrable). _ l , The object with which the Law Commission, in its ear- lier Report, proposed the Changes was the beneficial one of making the registration law more useful by bringing these documents on -the registration records under the proposed procedure. But the comments have pointed out the diffi- culties. We have to balance, on the one hand, the benefit likely to result and on the other hand, the inconvenience likely to be caused and- the nincrease in work. Even the existing sketchy provisions are not promptly complied with, as would appear from one ofthe comments. In this state ‘ of affairs, to add to the burden on the courts and public oin- _ cers is likely to mean the addition of a duty which will not be fulfilled in practice, and the provision might thus remain nugatory. The more specific _obje.ctions are in relation to plaints and memorandum of appeal; but the difficulties apply even to decrees, because the-number of decrees, etc., affect- ing immovable property which are being daily passed by courts mustbenconsiderably large. The proposed changes in existing section 89 will, therefore, have to be dropped. Consequential changes will, therefore, be necessary to retain the omitted portions of section 17 (2). (As regards _ section 17(2)(vi) relating to decrees other than compromise ' decrees affecting immovable property, a specific objection has been made to its deletion from clause 3(2). Though the apprehension thatthe people will file suits to cheat the Government of its revenue may not possess a strong i justification, yet the retention ofi section 89 will itself- necessitote. the retention of section ‘ 17(2)(vi)—appearing as clause 42fI) (e)-—in clause $(2) ). It does not appear necessary to provide for the compul- rsory registration of attachment. Attachments are effected by an elaborate procedure, which itself is intended to secure sufficient publicity. i · Imposition of a time limit for sending copies under existing section 89 is a good suggestion; but·if the time limit is not adhered to, doubts will arise. It cannot, there- . fore, be accepted. · ` v S6 - gg“*° 42 Q1} As to security bonds, the assumption that ._they are bDnd§°°'"***' compulsorily registrable under existing section 17 (`l)(b) — need not be examined. There is some coniiict of decisions on the point, noted in Mullal and reviewed in the - cas_es.i-"-“ ` - We think that it is desirable. to exempt c security bond executed tn fcwvur of cx. court or a public officer in his ojicicl capacity for the due fulfilment of ri condition imposed by a decree or order of the court or public ojicer. We accordingly? , Cl“““° 4*) Clause 42(2), dealing with plaint and memorandum of l appeal, will have to be dropped? C1ause42(3)' Clause 42{3), which is described in Sixth Report"' as a " new provision, provides that the registering officer receiving a copy of the decree, order, instrument, etc., under the clause shall- - (i) file its in Book No. 1; and (ii) prepare a memorandum in the prescribed form; and (iii) 9 the provisions of clause 36 shall apply to such memorandum. The object of provisionii was to state what stelps should be taken by,the Registering Oiiicer on receiving t e documents, etc, Th_ words requiring preparation of a memolrcmd»u-m in the prescribed form and the consequential incorporation of clause 36 have been objected to in the comments, on the ground that every registering officer in whose sub—district the property is situate will get a copy _ of the document and gile the same. Since the documents received under this section (exist- ing section 89) are to be filed in Book No. 1, the preparation of the memorandum, appears to be unnecessary. If the pro- ' perty is situated in several sub—districts and the intention e is to apply the procedure under clause 38 —section 64 -that 1. See Mulla,-(1963), page 94. l _— 2. Bishnath Sahu v. Prayag Din, A.I.R. 1958 All. 820 (D.B.). 3. B. Rama Bhqrr v. Kadandc Rama Bhart, A.I.R. 1963 Mysore 332 (D.B.) (Reviews case-law). 4.KGI6#fGIf v. Aj0y¢mdu,A.I.R. 1956 Cal. 315 (D.B.) (Reviews case-» law). 5. See section I7 {2) (via) (new), as proposed to be inserted. 6. Sec discussion under claus: 42 (1). g. Sixsh Report, page 59, clause 421,3) marginal entry. 8. As to tiling, see exisuns section B9 (1) (2), etc,, last 6 words. g, Sec Sixth Report, page S1. 87 _ also is unnecessary, because, asprovided by clause 42(1), every sub-Registrar concerned will get a copy. The Words in question may, therefore, be removed. A suggestion has been made that Rules 88 to 90 of the Madhya Pradesh Registration Ru1es* should be adopted throughout the country, as they make provisions as to how these documents are to be entered in Book No. 1 and how the books are to be bound as Supplementary Book No. 1 to . prevent injury to the binding. This aspect will be dealt with later“*. _ Clause 42(4), which is a new provision not found in Clause nm existing section 89, provides, that the Filing of the copies (New) under this clause shall, for the purposes of the Registration Act and of section 3 of the Transfer of Property Act, have the effect as if the document had been registered under this Act. The reason for this change was thus ex- plannedi-- ‘Sub-section (4) is intended to fill up the lacuna in the definition of "notice" in section-3 of the Transfer of Property Act and also to provide that the filing of a copy of a document under section 42 shall have the same effect as 1·eg,istration’. Now, this change has provoked two comments. One is, between the words "under" and "this section", the · words "sub-section (l)" should be interposed. That com- ment also makes the point that the appropriate remedy is amendment of section 3 of the Transfer of Property Act, and registration of mere claim to property made in a civil court is outside the scope of the Registration Act. Th other comment states that the filing of copies under this section should have the effect only of notice under the Transfer of V Property Act and should not have the same effect as a re- gistration. - ‘ Now, real question is, what should be the effect of the filing of copies under existing section 89. The existing Act does not contain any specific provision on the point. On principle, it should have the same effect as registration. It filing in Book No. 1 (expressly provided for by existing section 89)* supports this approach, Book No. 1, as des- cribed by existing section 51 (l), is the main "Register of Non-testamentary documents" relating to immovable pro- · perty. One of the objects of registration is to bring into 1. Rule 88 of the Madhya Pradcshkulcs (cited inthe suggestion) provides that only the copies 8: memoranda mentioned in the rule shall be tiled in Book I or Book 4. Rule 89 relates to “Supplemcntary Book 1¥’ being a separate file book for copies mentioned in rule 88 (6) to (g). Rule 90 relates to " Additional Books 1 and 4." for sparc copies. 2. See discussion relating to clause Gr (2), infra. 3. Sixth Report, page 81. 4. See Section 89 (1) S9 (2), etc., last 6 words. · ,_ V 88 being a statutory record under official machinery of trans- actions of value, and the j`iIirtg·of copies should have the same legal consequences. On this reasoning, the proposed general provision equating such filing with registration, is amply supportable. It is true, that the very nature of the documents of which copies are filed, is -such that they would not attract the provisions of section 50, which is confined to certain "instruments" and leases referred to thcreinl. Since these are not documents “required by section 17 to be register- ed," section 49 may also not be attracted. A certincate of sale also may not be an "instrument" requiring registration? Therefore, itgmay be that for prac- tical purposes, the only useful consequence of the pro- posed provision would be the attraction of section 3 of the Transfer of Property Act (registration to amount to C·Z>I‘tS- tructive notice). · -* The need for this provision was, therefore, considered at length by us. Documents. filed under existing section B9 are, by virtue of section 51 (2), filed in Book 1, and are referred to in section 51 (2) as "registered". It is not, therefore, necessary to insert th proposed new provision. The doubt raised in the Sixth Report“ on the subject relates to a small _ area‘*, namely, sale certificates. (So far as section 3 of the Transfer of Eroperty Act is concerned, that applies only where the documents are com- pulsorily registrable). . Clause 42 (4) may, therefore-, be dropped. . g*“’·° 4F'" It has been suggested in one of the comments that since °w pmm under rule 11 (E) (2) of the Evacuee Interest (Separation) Rules, 1951, a registering officer is required to file a copy of - the sale certificate under those rules in Book No. 1, a pro- vision should be added to the effect that an officer granting a certificate of- sale of immovable property under that rule shall send a copy of the certificate to the registering officer, etc., who shall file it in Book No. 1. This, however, appears to be a provision which can be more appropriately made in ' those rules. . Clause 43 Clause 43 (1) reproduces existing section 42, Clause 43 (2) is a new provision, to the effect that when a will is . deposited under existing section 42, the testator shall endorse on the cover the name and address of the person to whom the original document should be delivered after - 1:. As to non-applicatou of section 50, see Mulla, (1963), page 239 and 2.80, footnote ( j). ‘ z. gif. Muna. (1963), pages 1o5 and zo7, and also case at page zso fno: nom (3 . i . 3. Sixth Report, page 38, paragraph 104. 4. Sze—Mul1a. (1963),'pages 279 and 2So. 89 his deathy This chandge appears to be apart of the scheme proposed regarding eposit ofwilli. Many wills, it was stated, were accumulating in the Registration oflices untik the court summoned the wills, It might also happen that even when there is a will, the man’s estate may be dealt · with without re-ference to the will. To remedy this situ- ation, suitable amendments were proposed by the earlier . Report. One of these was the provision that the testator should endorse on the cover the name and address of the . person to whom the original 'document should be delivered. After death, the will is to be opened on an application under — clause 46 (I) —existing section 45 (1),-——and delivered to - the nominee under clause- 46(1), last, portions (Other changes are- not relevant fora; consideration of clause 43). Thus, nomination is compulsory under the proposed pro- ; vision. . Now, one comment on the clause is to the effect that this provision for endorsement is not necessary, while another comment points out that it will defeat the object of not dis- closing the name of any person connected with the will. After careful consideration, we reject these objections. Secrecy is one consideration that usually prevails in the ` case of wills; but, asagainst that, one must also balance the benefit that is likely to result from a provision for nomina- tion. With an endorsement, specifying the nominee,— as con- templated, it would be easy for the registering officer to deliver the will to the nominee. The present section (sec- tion 45} merely says that after opening the will it shall be copied in Book No. 3, and, thereafter, the original will shall · be again re-deposited. This is not. satisfactory. Even a person whom the testator wanted to know the contents of the will cannot (at present) get back the will. Hence, if the whole scheme regarding deposit of wills is to be main- ; tained2, the proposed provision need notbe disturbed. Even otherwise, we do not see any objection to a provision en- abling nomination. But We think that it should be con- nned to cases where the testator himself deposits the will, , so as to ensure that the agent, after taking charge of the will from the testator, does not add the nomination by for- E€“I`Y· _ = V 1 8We recommend an amendment of the section according- y . . . t . Clause 44(l) embodies existing section 43(I) dealing Claus: 44(I) with the procedure on deposit of wills. A comment suggests a verbal change to the effect that instead of the- words "shall note", the words "and shall endorse” be substituted. Really speaking, the clause? contemplates two kinds of action, noting in the book and noting- (endorsement) on 1. Sixth Report, page 28, paragi-imh.72 and page 81. - 2. See clauses 46 and 48. .; ·Q· . . 3. See section 42, as proposed to;bc Amended. , _ 9° the cover. For the latter action, the word "endorse" is more appropriate.] It is, however, unnecessary to make such a minor and verbal change. ‘ ’CI¤¤¤¤ 44(ZJ Clause 44(Z) makes no change in section 43 (2). Clause 45 Clause 45 corresponds to existing section 44. Gauss 46 Clause 46 proposes the following changes in existing sepifion 45 (proceedings on death of person- depositing wi —- · ` (i) Under the existing section, after death, on application made to the registering officer. the latter has toopen the cover and cause the contents to be copied in Book No. 3 and then re-deposit the original will. Under the clause, however, this provision for re- deppsit is pmitted, for the reason' that it has been re- .` jplaced by éprovision for delivery of the will to the nominee cjgthe testator?, the nomination being under clause 43 (Zhi _ (ii) Under the existing section, if the will remains ‘ in despositgj it continues so indefinitely; while, under ` V clause HE, if no steps are takenfor withdrawing the will {by t testator) or for delivery of the deposited willrto the nominee, then the Registrar has to fbllow the procedure for. the destruction of the will as given iisclaqse 48. i - _ · Now, dnejpoint made in the comments received, is, that at the time of thi=:g._,a.ppl.ication under clause 46(1), the nominee of the testator would rarely accompany the appli- cant. Hénce the provision for delivering to nominee would come into play. Another comment suggests that the procedure. of nomination. under clause 43(2) should he deleted Iandycorxsequentially the provision for delivery to the nominee should also be deleted and existing position as in section 45 restmtd., A third point is that provision for return of at lying in deposit should also be made. ‘· ` g1 ` » _ _ A "` l - pg If the provision for nomination is reta.ined”, then the pro- vision for delivery to the nominee has also to be retained The possible situations may be studied in detail. Assuming that t e testator has made the nomination, it may be that-- ` (i) no application may be made for opening the cover; or _ (ii) the application mayybe made but the copying expenses not tpaid;_ of r. Sixth Report, page 28, paragraph 72. 2. See clause 43 (2.) as to nomination, . g_ Su the discussion Linder é1ause` 43 (2). 91 ; ·(iii) the nominee may not be present with the applicant or may not be traceable. Under clause 46 (2), in all cases the procedure for disposal as laid down under clause 48 has to be followed, that is to say, giving of notice to the depositor a-nd his nominee, thereafter opening the will, further notice to the executor and beneiiciaries under the opened will, and (if no steps taken for registration of t. will) ultimate destruction of the Will. l As the scheme of destruction of wills is to be alteredi, clause 46(2), will also require changes. Our proposal for voluntary nominationz involves a consequential change, and we recommend' an amendment accordingly. The nomi- nee would usually have knowledge of the will, etc., and can be expected to be present at the time of opening. As re- garding wills lying ct present, that is not a matter which can be dealt with in a new Act. One suggestion regarding clause 45 is that the Registrar Claw 46- on appli_cation or suc motto should open the sealed cover N"' l’°"“ on being satisfied of the testator’s death and cause the con- tents of the will to be copied in Book No. 3 and deliver the will to the nominee of the testator or executor if no such person is forthcoming to tile it. "But opening sito moto, may be risky. Opening on application is already covered. Hence no such change is needed". Clause 47 (1) corresponds to existing section 46(1). C1aus<=47{r> The reference to section 294, Indian Succession Act, 1925 may be substitutcdi (as proposed in the Sixth Report), in place of reference to the old Act. Clause 47(2), which follows existing section 46 (2), Clausc4·;(z) provides that when a court orders production of a deposit- ed will,-the Registrar shall open it, cause it to be copied in Book No. 3 and make-a note, etc. Now, one comment suggests that the copying of the will should be at the ex- pvense of the person causing it to be produced in the court. e do not, however, consider a statutory provision to be .necessary”. . Clause 48 is a new provision, whereuncler wills deposit- cimws ed with the Registrar are to be disposed of by destruction (New) (if not registered before the Registrar according to the procedure given in the clause). Briefly, the procedure is that the registering officer has to give a notice on the lst July, every third year to the depositor and his nominee, 1. Sea discussion relating to clause 43. ` _ `:. Su discussion relating to clause 43 (2). 3 See section 43, as proposed to-bc amended. 4 See amendment proposed to section 46. 5. The matter can be left to rules. Sas Bihar Rule 87, Mulla, (1963), P¤S¤ 345- _' 92 inquiring about the depositors present address. If, after such notice or otherwise, the Registrar is satisfied that the testator had died, he has to open the cover in the pre- sence of a judicial oiiicer not below the rank of a subordi- nate jud e. He has then to give notice to the executor and beneilciaries that if they do not register the will with- in six months, it will be destroyed. Thereafter, the actual destruction is to be in accordance with the provisions of the Destruction of Records Act, 1917. This procedure is a part of the proposed ne-w scheme dealing with Willsl. It was stated in the Sixth Reportz that it had been pointed out that numerous sealed covers containing wills had _ accumulated (in registrars oiiices), no persons having come forward to claim them. The comments received on this clause object to it, on the ground that there is no need tor destruction of wills, ·> because the number of unopened and unclaimed wills cannot be large. It is pointed out, that giving of notices to depositors every year will increase the Registrars work and also the work of the subordinate judge. When- ever the probate`Court` calls for a will, the will can be sent in original. Sending of notices, it is stated, will also involve much additional expense on postage. Moreover, the sending of the notice will naturally leak out the fact that the testator had deposited a sealed will, and this may result in his being subjected to pressure to disclose the contents thereof, which will defeat the very purpose of depositing a sealed will. If the beneficiary is a minor and the nominee is his guardian with an adverse interest, then it is said, the nominee may not respond to the notice, so that the will may be destroyed under the proposed pro- vision, thus depriving the minor of his right. Therefore, it has been suggested, this clause should be deleted. Another set of comments favours this provision with E some modifications suggested. One suggestion is, that in- stead of a subordinate judge, a munsif should be substi· tuted. Anotheris a suggestion to the effect that references _ to nominee should be excluded, to maintain secrecy. A third comment is to the effect that in clause 48 (2), in- stead of "Registering Omfléfn, the "Registrar" may be substituted. It has also been suggested, that a notice should be issued on the lst July of every year in respect of any sealed cover wévhich remains unclaimed for more than 10 years on that a e. · There appears to be some substance in the objections based on the ground of increase or work and expenditure. Though the proposed provision, would be a useful one, I. Sixth Report, page 28, bottom, paragraph 72. » 2. Sirfh Report, page, 28, middle. 93 its- implementation maly (perhaps be impracticable. The provision is, thus, like y to prove inconvenient, and has, for that reason, to be dropped. . · - - Clause 48(3). deals withqtht actual procedure for the C'¤¤¤<* 41*6) . destruction of wills. Since the whole clause has to be droppedi, the detailed comments on clause -1-3(3) need not be considered. ` ·· ` . . Clause 49(l) embodies existing section 3(I) relating to Claim 490) the appointment of the Inspector General of Registration. Anew point ha-sheen made in a comment to the effect that Munsiii Magistrates in the '1‘aluka_and District (Magistrates · should be given powers for supervision over the day to ~ day work of sub-Registrars and Registrars respectively. We consider that this matter"dep_ends on the administra- tive pattern adopted in each State, and a general amend- _ ment for the whole country isjunnecessary. Clause 49(2) embodies section $(2), and no comments Clause 49(2) have been received, on this clause. Clause 50 reproduces section 5, and no comments have C1¤u¤·= s¤. beenreceived on this clause. · ‘ · . Clause 51 (1) corresponds t0* existing section 7 (1). Clause 51(1) Clause 51 (2) embodies existing · section 7(2), with the Clause sr(z> substitution in the proviso of, "re.terence" for "appeal". This change is consequentialnon the changed procedure under clauses 2l` and 22, and if those clauses are alt`ered2, the word "appeal"_ has to be r_cstored·in thisclause also. Clauses 5-2 to 54 correspond toexiating sections 69 (1),.Claus.es gz part, and 68, without changes. No comments have been f¤ 54 received on these clauses. . Clause 55 deals with absence or vacancy in the office of €·`i¤¤f¤¢ 55 the Registrar. ` It departs from existing section 10, by ` omitting mention of “the Judge of the District Court". Under section 1D(1), later half, indafault of appointment by the Inspector General, the "Judge of the District i Court" acts as a Registrar, This provision does not apply to Presidency towns, where, under section 10 (2), only a person whom the Inspector Ceneral appoints is the Regis- trar until the S-tate Government-`iills up the vacancy. The provision _authoriaing_ the_Distri_ct Judge to act as a Re- gistrar was proposed to be removedlby the earlier Pteport“ s on the ground that there was no reason why there should be any difference in this respect between the areas `dealt 2. $28 CllSCLlSSl.DI1 lféldlllllg EO ClBUlSCS 21 Bhd 22. - ` ` 3. SBB RCE).??!, [.7RgQ II, `p31‘Hg1"Hpll 24. . · 94 _ with by subsections (1) and (2) ,‘ Le., the mufassil and Presidency towns. The earner Report, therefore, recom- mended a uniform provision. . . - · Now, one comment suggests restoration of the- existing section, pointing out that occasions may arise when the Inspector General makes a default intappointing a Regis— trar immediately owing to pre-occupation. We think, that . there is some iorce in the comment, and restmc the exist- ing section. _‘ " * - 1- 4 C[”“’·° $6 _ Clause Bohcornssponding toiexisting section 11) omitted the excepting words, Le., the last Eight wordswhich run Vexcept those mentioxied in sections 68 and T2". ` The clause . has {provoked no c¤mments.._ We, however, would like to *. retain the existing section. __ C1““S° $7 Clause 57 corresponds toexisting section 12. It has pro- voked no comments. . C1°““ 5** Clause 58, following eitisting section 13 (1), provides - thatfall appointments under sections 10, 11 and 12-clauses 55, 55 and 57——shall be reported to the State Government by the Inspector General. A point has been made in the . comments receitreclon this prurision, to the effect that this clause should be deleted. diuty to senéd { . rworts, it is serves nokjpurposer or one t. Appoin P men-ts are made the Rules, and {it is stated) t,l;ere»js_,no point in the Inspector Genera1’s sending a` report tothe State Government. The section, however, is hsrrnless, and may berétugined. Section 13 (2), which was omitted in the Sixth Report, rnayalso be retained. It_was regarded as unnecessary in the Sixth Reportl, but , weldb not share that‘v’1*6w“. · ‘ - Clause S9 _ Clause 59 combines existing sections 14 and 16. It has provoked no comments. _ Claim 60 Clause 60 corresponds to estisting section 15. It has pro-» voiced no comments. __ , Q CT¤·¤¤= 61 ‘ i Clause "til deals with the register books to be kept in . the’ Registration offices. It·‘departs from existing sections 51 and 52 (2), onlthe following pointszié V (i) It' provides that "memoranda" prepared under clause 42 or received under clause 36 shall be entered in €Book_No. 1.__ __'I'hi5 is consequential on a similar provision in- clause *25, clause 36 and clause 4 42(3), latter half; " ’ (ii) It provides that copies of decrees, etc., re- cived under clause 42 shall be tiled in Book No. 1; x. Sixth Repodipdgc Ba (notes`;. 95 i. (iii) If any of the books is in danger of being destroyed or becoming illegible, it authorises the -Registrfar fto order re-copying of that book or portion thereof, and provides that the copies so prepared shall. be deemed to be the original. The reasons for this wasl-2, that a suggestion for the insertion of such at provision had been rnade and certain States (Bihar " and Bombay), had already amended the Act and the- necessity for such provision was obvious; ' ` {iv) It also incorporates the provision in section 5242) regarding authentication of hooks, with this modihca-tion, that it substitutes "State Government" for "l22spec1:or General"; " (v) The existing heading of Book, No.-—2"Recordl of reasons for refusal- to register"-gis changed into #*‘Record of reasons for referring a document to the- Registrar", Consequentially, in the oilices of Regis-- trars, Book No. 2A is headed "Record of reasons for refusing to register". This is consequential on the scheme of reference under clauses 21 and 22. Now, several comments have been received on this ` cla-use, which contain points relating both as to the exist- ing section and as to the changes proposed therein. Regarding clause 61 (1), which lists the Books and gives their nomenclature, it has been stated that the no- · menclature of the Registers is not clear. Proposed Book No. 2 should be described as "Re-gister of reasons for re-- ' ferring, etc.", Book No. 2A as _"Register of reasons, etc." and Book No. 4 and Book No. 5 should be described as "Re- _ gisters of miscellaneous documents". It is also suggested,. that a Register may be prescribed for recording the names of parties presenting documents for registration. We do not consider these verbal changes to be strongly needed. As to register of persons presenting ddcuments, presenta- ° tion is not on the same footing as registration. ` The change is not needed. i 1 Regarding clause 61 (2), which provides that in Book No. 1 shall be entered certain documents and also certain memoranda, it has been suggested that not only the docu- ment should be entered, but also the signatures of the executant and the witnesses obtained to enable the docu- ment to be treated as counterpart of the original and legally noted to be used in proof of the transaction. This does not appear to be necessary. The use of copies given by the Registrar from the Regis-ter is allowed under sec- tion 57 (5) of the Act, and that is enough. Another point made is that the entering of memoranda in the Register, · is not necessary. Another point made is that provision 2. The clause is clause 6r(5J, in Sixth Report page 65. _ 96 should be made for keeping register Book No. 1 and Book N o. 4 in the form of a file book for-the registration. of documents of altempomry- character, which are so pre- pared e that printed copiesimay beliled in the Registration office instead- of the document being copied by hand. . This seems -to be-_a-iuseiul suggestion, and may be ¤.ccepted*. Some safeguards willwbe necessaryto prevent tampering, and the safeguards- e-can bevprovided.-for by rules. - It may be noted, that . pine of the changes man by clause 61 are c0nsequentja.I`.j;on thechanges i proposed. by ' other _ clauses. .- Thus, cotiyingfof memoranda is linked up with clauses 25, 36 (1) and 42 (3), latter half; and- filing of thecopies is linked up with clause 42. Nomenclature of Book No. 2 and Boo-k No. 2A (as proposed) is linked up ¢ with clauses 21 and 22. If changes are made in any of those clauses, then consequential changes will be necess- ary in clause 61 also. . _ c Regarding clause"61(5),·'it"is a useful provision, and We recommend its adoption? Other changes made by the. Sixth Report or suggested in the comments are not nepessary. CI°“¤°¤ 62 Clauses 62 and B3. correspond to existing sections 53 and and 63 54, and have provoked no comment. . Clause 64 Clause,64(1) corresponds todexisting section 55(1), Under clause 6·1(2), corresponding to section 55(Z], Index I is to contain, besides the _names,‘etc,, of executants, etc., "every memorandum copied in `Book 1" etc. The entering ,. of particulars of spch memoranda is an addition to existing Section_55(2). This change__ was made by way of imple- mentinga the `schenie recommended under existing section B9. the espyisgsi. the memorandum is to be dropped} , this also has to be dropped} ‘ " “ Clauses 54(2)_ to (6).;embody existing sections 55(2) to 55(6), with pertain changes. The changes were consequen- tial on the-scheme proposedswith reference to existing sec- tion 39 and are not now ,required.” But clause 64 (7) sug- gested a useful provision and we recommend its adopiion.'*‘ Clause 6g;;; .¢ Clause 65(1) corresponds to existing section 57(1). _ 1. sa section 51 (3A),‘ as proposed, to be 'inserted. 1. Sec section 51‘(5), as proposed, to be inserted. , 3. See Sixth Report, pageU33, paragraph S2. - 4. Sec discussion under clauses 25 and 36. . I 5. See discussion under clause 42. 6. Sec section 5 5 (7), as proposed, to bc inserted. , =97 ` Clause 65(2), following existing section 57(2) provides ·L7i¤¤==¤€5£2) tthat copies of entries in Book 3 [Register of wills) and the 1 relative index will be given to the executants and, after ; their death (but not before), to any person applying for . such copies. A suggestion has been made in two com— T mentsl-” to thc effect that this should apply to Book 5- . Register of deposit of wills also. We are not inclined to accept the suggestion as in our opinion Book 5 stands on a — different footing from Book 3. ` , Clause 65(3), following existing section 57(3), provides Claus: 65(; · that copies of entries in Book 4 and in the relative index shall be given to the executant or claimant, etc. One com- ·ment states tha-t this Book is not a secret document and suggests that it should be open for inspection of ine public. ° We do not agree_ Book 4——which is "l\·'liscellaneous Regis ‘ ter"—contains document relating to movable property? A person registering such a document may not always wish a member of the public to see it. ` A suggestion has been made to the effect that in clause Claus-: 65(4) o5(4), which follows existing section 5'7(4), mention of Book B5 may be added. As in clause 65(2), this change is not I madet, then no change is required in clause E5 (4). Clause 66, dealing with fees, gives the power to fix the Cl‘*“S" 66 fees to the Central Government (Union Government). while existing section T8 gives that power to the State Govern- ` ment. Explaining the reason for this change, the earlier `Reportil stated that the existing provision had resulted in varying scales of fees. and that this was a matter in which there should be uniformity. The Report also noted, that there were complaints that the registration fee was unduly · thigh in some States, and observed that the fee should be commensurate with the expense of the Department. The comments received press for the retention of the , existing power of the State Governments, on the ground that administration of the Act is a concern of the State Government. It is also pointed out, that registration ex- penses ditfer from State to State, and, therefore, uniformity T cannot be insisted upon. The proposed change, it is also said, would restrict the discretion of the State Government in the matter of raising its revenues under this head. Besides this, a few new points have been made. One is to the effect that fees for the issue of an "encumbrance cer- tihcate" should not be very high, "because the debtor who 1. Comment of a State Government. 2. Comment of an Inspector General of Registration. 3. sea existing section srt;). ` 4. Sec discussion under clause 65(2). s. Sixth Report, page 35, paragraph 96. 18-.109 M of Law. - _ is · ‘ 98 would require it is already heavily burdened financially,. Another comment makes the point, that a new sub-section-. should be inserted to empower the State Government t¤¤ exempt any document from registration fee so as to avoid. amendment of the table of fees every time in such cases, We recognise the force behmdthe objection to the pro-- posed change, and recommend`that:the power should remain with the State Government {as at present); Sinee admire istration of the Act is a concern of the State Governments,. this appears to be unavoidable. As regards “encumbrance· . certificate", the matteris one to be dealt with by the rules. Regarding the power to>grant‘ exemption, we may refer to the amendment made in 1956 by the State of West Blen—e _ gal] inserting section 78 (2) to the effect that the State Gov-- ‘ t ernment, if it is of opinion that there are reasonable grounds ·` for doing so, mz-1y·nerr1itilan¤y·rfees in the whole or any partt of the State, either generally or-·for any class of cases and in respect of persons generally, or of any particular classes of persons. This appears to be·useful'provision which #C|11‘l‘ be added. We rccommendz accordingly; Clause 6;- Clause 67 corresponds-to· existingfseetion 79. It has pro-» voked no comments. Clause 68 Clause 68, following existingr section 80, provides that the fee for registration shall be payable on presenter- tion of the document.. The comments received on this clause have pressed for the inclusion ofi`a provision to the effect that if the registration fee could not be realised ini full (on presentation), the defi`cit‘ may be recovered like other revenues of the State. This provision_ it is stated, would be used only in cases of deficiency due to error of ' judgment or other Bona: fide reasons, we appreciate ther object behind this suggestion. But we are not sure if the insertion of such a provision would not create complica- tions. If, for example, the document is at the time of regis- * tration held to belong to one class carrying a particular fee, and that fee is levied[ andafterwards it is regarded as l belonging to another class carrying s larger fee, and the deficiency is made recoverable as arrears of land revenue- and the amount is demanded from the person who presented the document, then difficulties will arise, if that person does not accept the view taken by the Department, or if that person is dead and his heirs are called upon to pay and a long time has elapsed. The proposed provision will not be fair without an elaborate provision imposing a time limit for recovery, and will not' be workable without a detailed’ procedure for calling upon the presentant or his assigns or heirs, etc., to pay for the deficiency. In the absence of pre·— 1. Su Mulla, (:963}, page 267, citing the West Bengal Ame·rc*;run.. z. See section 78., proposed to be amended; ` 99 cise details of the provision desired, we cannot recommend its adoption. Clause 69, following existing section S1, prescribes the Clsusc 60 penalty for a registering oflicer or other employee who endorses, copies, etc., a document in e manner which he knows or believes to be "incorrect" intending, etc,, to cause injury to any person. One comment suggests that, in order to cover cases in which registration documents or records are fraudulently altered, destroyed or tampered with, the , following words may be added after ‘incorrect’:-— "or who alters, destroys or tampers with, wholly or partially, any document, register book, index or Uiher record, or any entry therein or the contents thereof". O The matter seems to be covered by the Indian Penal Code}-2 though there is some controversy regarding acts of ofncersf No change in the Registration Act appears to be called for. Clause T0 corresponds to existing section 82. The inser- Clause r·¤— tion of a new provision for the control of document writers Eg“‘;_£;‘“‘ has been suggested in a few comments. The provision Iiénsiuéicf would, it has been suggested, be to the effect that, from a document notified date no person shall write a document {gy angthe;~Wr1t¤rS person for presentation to a registering ofiicer except under the rules under this Act. Contravention would be punish— able with line which may extend to Rs. 200 and writing of a document by an authorised agent or pleader, etc., would be excepted from the proposed restriction. A similar pro- vision has been inserted in Madhya Pradesh, see section 62A inserted by Madhya Pradesh Act 8 of 1955. Bengal Act _ 5 of 1942 (Bengal Courts Act) has also inserted section 80G, authorising the Inspector-General to make rules on the subject?-”—* See also the power to make rules on the sub- ject provided by local amendment in Andhra Pradesh under section 69‘(1) (bb) inserted by Andhra Pradesh Act 5 of ' 1960.* See also a similar amendment by Rajasthan Act 17 of 1950 and Travancore Cochin Act 25 of 1952.* We are, however, not inclined to introduce such a provi- sion, as we are not sure whether it would be really beneficial. r. Section W5 read with section 464, second clause, Indian Pena] Code forgery) and section 466, Indian Penal Code. 2. S2: section 29, Indian Pena] Code also. 3. Ratan Lal, Law of crimes, (1966], page 1248. 4. Mulla :1963], page zqz. 5. Sac Mulla, (1963), page 269. 6. As to the validity of rules under the Bengal Act see Diiariu IIC. Arm- aiamm v. Smu, A.I.R. 1963 cal. 124. 7. Sra Muva, (1963), page 245. 100 Usiusc 700:} Qlause 70 io), following existing section 82, punishes a person who "fa1sely personates another" and in Such assumed character presents any document, etc. One Comment suggests the use of the phrase "personate some Other person. whether real or im¤.gi·ria’ry" in place of "per- sonates another'? The suggestion, apparently, is intended to supersede the decisionl to the effect that there must be a rent person in existence who is personated, so that the assumption of fictitious name would not constitute an offence under this section. It would appear, that on g similar pro- vision in the Indian Penal Code, section 205, there is some , conflict of decisions as to whether impersonation of an ima~ ginary person is an offence under this section.? There appears to be no harm in making it clear that the » offence is committed whether the individual personated is a real or an imaginary person? We recommend* an amend- ment to that effect. Clause 71 Clause T1, corresponding to existing section 83, deals with the sanction required for prosecution for offences under the Act. It makes one verbal change to make it clear that without such sanction a prosecution cannot be instituted. As explained in the earlier Report? this change was intend— ed to settle the conflict of decisions on the point whether private prosecutions could lie notwithstanding the langu- age of the existing section? This change has not provoked any comment. It may be adopted.? A fresh point has been made in one comment to the effect that there should be :1 further provision (on the lines of section 476 of the Crimi- nal Procedure Code) to the effect that any party can move the registering officer for taking action under the section. We do not, however, consider a statutory provision for the o purpose to be necessary. C1"“S° 72 Clause 72 corresponds to existing section 84, and has provoked no comments. · Clause 73 Regarding clause '?3(l)_ which corresponds to existing section 88, a comment has been made which relates only to the typography of the draft. The words "t0 appear in per- son ........ " should govern paragraphs (a), (b). (cl and (dl- 1. Emp. v. Rcmgamma, A.I.R. 1935 Madras 913, 914. 2, Sra Ratanlal, Law of Crimes , (IQSI), page 526. Other sections in the indian Penal Code dealing with impersonation are 140, 1:o, I7I, I7I D and .4:6. 3. rf. the Explanation to section 416, Indian Penal Code. .4. Su section 82, as proposed to bc amended. 5. Sixth Report, pages 35—36, paragraph 97. *6. Sra Mulla. (1963}. Pagc 273- ,7. .i5'u section 83, as proposed to be amended. 101 Clause 74, corresponding to existing section 85, pro- €1¤¤s¤1‘4· vides for the destruction of documents remaining un- claimed in a registration office for a period exceeding two years. Wills are, however, expressly excluded from this clause, as in the existing section. One comment sug- gests, that even for wills the period should be two years. The suggestion cannot be accepted. So far as other docu-- ments concerned, their destruction may not matter,. because the possession would have been delivered ordi- narily at the time of the execution of the document. A. will, however, is intended to speak only from a future • date, and its destruction might cause inconvenience to many ‘ persons. lf the testator has not died in the mean—time and has not made another will, then the will lying with the registration oiiice would be a subsisting will, and there- , fore, a valuable one. If, on the other hand, he has died, and has not made any other will_ the will would be his last testament and would, therefore, he still more valu- able. Hence no change should be made in this respect. The clause in the Sixth Report provided for the des*— truction of documents should be after notice. This change may he nzcceptedl. Clause 75 embodies existing section 68, which is a pro- C1a“*° 75 vision to the effect that a registering ofiicer is not liable to any suit, etc., for anything in good faith done or refused in his official capacity. Now one comment makes a fresh point that a provision should be inserted to the effect that a Registrar shall not be made a party to a suit under exist- ing section 77-—·clause 23-by reason of his refusing regis-- tration. It is stated, that this is necessary in view of the- decision in a recent Madras case? That decision, however, · does not seem to hold that the Registrar is a necessary party. All that it held was, that since in that cas V had n.ot disputed the genuineness of will before the Regis-- trar and it was the Registrar who had refused to register , the will because execution had not been proved, therefore- V was not a necessary party. In fact, there are earlier decisionsg-* which clearly hold that the Registrar is not- a necessary party. No change is, therefore, needed on this point. . Existing section 69 vests the rule-making power in Clause ·;n(;¤;; the Inspector General, while clause 'i’6(1) vests it in the 1. Sec section 85, as proposed to bc amended. - ham-;.Kanakanarn:m V. Vmkabdchclam, A.1.`R. 1945 Madras rr, 12, left- . Iz . . AIsO3SE§1(cISl£shp>£h;r Sv C§;;a};okp;§’(g£) I.L.R. S Bombay 269, 271,, 4. Sn M1l1E,{I963), Pa;; 2.50. 102 State Government. The change is in accordance with re- cent practice, and may be adopted`. Clause 76(2) Clause 76(2)(e) [correspondin to existin section G9 l*’>““"("> (l)(g)] ooo oioooo tetzino [neva?] propose og-rtoio sooo- ges which appear to be consequential on the addxtions made by clauses 6l(2)(b) and 64(7). In brief, they deal with the "mannr" of copying and authentication oi cer- tain books and "manner" of recopying of certain indexes. An objection has been raised that the word "mcmner of" are not clear; we do not agree. 35*f’§;3(2} Regarding clause 76(2)(h), a new point has been raised ,,,,;,1, in one comment to the effect that, since clause 5l(5) p1‘o— vides for re-copying of books which are in danger of being destroyed, power to make rules regarding such re-copying e should also be added in clause 76. The suggestion may be accepted? Gl¤5¤ 76(2) Clause 'i'5(2)(i) empowers the making of rules as to the (ll notice to be issued before destruction of documents. As notice has been provided for", this new provision may also be ttdoptech. Cl¤“S° 7¢C2} Other additions and changes proposed by the Sixth mh'" p°m” Report under clause 76(2) appear to be unnecessary, and may be dropped. glauss 7§(2} Regarding the rule-making power under clause 'Tti(2), mglgdlilfgnt a new point has been made to the effect that there should ,;],,;,1,,,,,.,, be power with the State Government to make rules re- writors, gulating the profession of document writers. The desir- ability of a provision for licensing document writers has already been separately considered? . Clause 77- Clause 77 exempts certain documents from registration §)‘;°:`£l;_5*j;1 (see existing section 90). The question whether the Cen- mmf * ` tra] Government should have power to exempt from com- - pulsory registration (all) documents to which the Govern- ment is a party has been considered by us. If such a change is made, documents in favour of Government will ind no reflection in the registration records. That, of course, may not be a fatal objection by itself, as in most cases the pos- session would have been transferred to Government, so 1. Su section 6;, as proposed to ba amended (relating to power to make rules). )2, Soo section 69 ( 1), as proposed to be amended (relating to i-e-oopy- lllgo 3, See discussion relating to clause 14 (existing section B5). o. soo section 69, as proposed 1o"b: amended (relating to notice before destruction). _;.Se¢ discussion relating to clause 7o-new point. 103 that persons intending to take the property can be expect- -·ed to inquire about the Governments title. The Govern- ment’s possession is usually- (i) overt, (ii) ;easily ascertainable, {iii) known to many persons, and (iv) exercised openly. With reference to clause T7, it is not clear if in the _ Sixth Report L, any change of substance in respect of docu- ments executed on behalf of the Government, was intend- ed with reference to section 90. The discussion in the Sixth Report speaks of "verbal changes". The draft of "the clauseg speaks of "Sanads, Inams, title-deeds, grants • and other documents affecting immovable property mode by Govern»ment". This wording is different from the word- ing in existing section 90(1)(d). (There is some contro- ·versy“ as to whether the existing words "other documents" in section 90 (1) (d) are to be construed ejusdem generis, but those words are retained in the Sixth Report, clause "Z'? also). In any case, it is unnecessary to exempt all Government ·d¤·cum.ents. Provision suggested in one of the comments, to empower the Central Government to exempt Government documents jfrom fees, is also unnecessary. Clause 78 embodies existing section 91 with very minor Clause 18 verbal changes, which seed not be carried out as the whole Act is n.0t to be re-enacted. ° Certain sections were omitted from the existing Act in omitted Mthe Bill annexed to the earlier Report. Since comments Sections- `have been received suggesting restoration of some of these sections, we may now consider them. Existing section 1'?(1)(c) provides for the compulsory re- On ined gistration of non-testamentary instruments which acknow- $¤¤‘¤.°*'* W ledge the receipts or payment of ar \ consideration on mw account of the creation, declaration, etc., of any right, title ·0r interest (in immovable property). This was omitted" in the Sixth Report. The reason for the omission of this clause was, that there was a conflict of decisions on the question whether this clause came into operation only where the -·docume2‘1t effecting the substantive transaction was rm? 1. Sixth Report, page 38, paragraph 105 and page 83. 2. Sixth Reporr, page 71, clause 77 { 1] fd). 3. Su Mulla, (1963] , page 2SI_ 4. Sixth Report, page 33, paragraph zg. ._ __ ¤_ TOT registered, or whether, even if that transaction was evi-- dcnced by a. registered instrument, the receipt of money thereunder required registration where payment was made on account of the creation, etc;, of. any such right, etc_ The: earlier Report recommended that the Transfer of Property Act should be exended to the whole of India, and that on that basis, this clause should be omitted. If the Trasnsfer of Property Act is extended to the whole of India, there would be no need to retain the clause, be-- cause most of the substantive transactions could in that event be effected by registered document. (_Most of the- cases under this clause relate to mortgages} A comment has been received to the eifect, that so lo11g_ as the Transfer of Property Act is not made applicable: to all States and Union Territories, this clause should be re-- tained. The comment may be accepted? The section may be retained. The alternative suggested in the Sixth Report} was, that. it should be made clear that section 1T(1)(c) does not appiy to a receipt in respect of a document already registered under existing section 1'?(1)(b). We have, however, decided,. that the reverse provision should be adopted, namely,. instruments which acknowledge the receipt or payment; of any consideration on account of the creation, etc, of any right, etc., to- or in immovable property should be compul-- sorily registrable, whether or not the document by ·which the right was created, etc., was registered. We think that this is desirable to ensure a comprehensive record. We- recommend an amendment acco-rdinglyf Omiitsd Existing section 17(2)(ii) exempt from compulsory 1e· *7 gistration any instrument relating to shares in a Joint Stock Company, notwithstanding that the assests of the company consist of immovable property. This was proposed to be omitted in the Sixth Report, for the reasoni that section 82 of the Companies Act, 1956 already lays down that a share in a company is movable property. Section 82 runs as fol- lows:- "82. The shares or other interest of any member irr a company shall be movable property, transferable in- the manner provided by the articles of the company". A comment has been made to the effect that ifthe shares rontain any contract for the sale of immovable property worth over Rs, .1,000, they should`need` registration. We dor 1. Su discussion in Mulla. (1963). page 6o; afso Mulla. rage ge tram ·*Rcci1a] not rcc•:ivcd". 2, Su also discussion relating To clause 3 (1). 3. Sixth Report, page I4. Iiaragraph 30, latter half. 4. See section IU (1l(r), as prrposed to be amended,. " i 5. Sixth Report, page ra, paragraph gg. 105 , not consider any such provision to be necessary. Another comment makes the point that even though the provision in the Registration Act has become redundant in view of section S2, Companies Act, it should be allowed to stand, since a statute which is intended to be a complete Code should show explicitly the nature of document requiring registration. We agree with the last comment. Section 17(2)(ii) should be retained, Existing section 17(2)(vi) saves from compulsory regis- Oml.“'*d _ tration a decree or order of a. court (excepting certain igiiglul ' decrees or orders made on compromise and comprising collateral immovable property). This has been proposed to be omitted by the earlier Reportl Restoration of this pro- vision has been suggested in the comments, as it serves a — psgful purpose. The matter has been considered separate- y. Existing section 23A, regarding re—registration gf certain Omitt rc documents accepted for registration from a person not duly =¤¤¤¤l¤¤ 2393 empowered to present the same, has been poposed to be omitted by the earlier Reportf for the reason that the Re- port itself proposed to provide‘* that irregularity or defect with respect to the presentant should not invalidate; the registration. A comment has been received pointing out that under the existing section the right to represent the document is confined. to the person claiming under the docu- ment and suggesting that the section should be widened so as to give the right to any person who would have been omitted to present the document in the first instance, under" existing Section 32. The comment seems to have been made with the object of codifying the view that the ex-- pression "claiming under such document" is intended to _ cover all persons enumerated in existing sections 32 and 4D` and to include other persons not falling under that list,. See the Madras case, where the facts were these. After the registration of a will had been held by the Privy Council to be invalid on the ground of its having been presented by ` unauthorised person, the will was presented again by a sont adopted under a power conferred by the document, The re·registration was held to be valid by the Madras High Court}" We do not consider it necessary to encumber the· section with the suggested elaborate provision. We, how- ever, recommend, that section 23`A be retained as the sav-- ing provision which We propose} is narrower than that proposed by the Sixth Report. r. Sixth Report, page 17, paragraph 39. z. Sz: discussion relating to"clausc 42 (1). 3. Sixth Report, page zo, paragraph 5o. 4. Clause 4r(2j•. s. Suda:-sane Rao v. Scerlmmmamma, (1S33’l Madras weekly Notes 1148;. ue5 [Division Bench`!. Sn Mu]`la,(1563), pa gate . 6. See recorrnnendation regarding clause4x (2). 106 lumémd Existin ‘ ·. same c . Q scctmn Tl}. authcms l · , H 7 R€g1StI`8.lSlOI`l {D I‘€lT1il1 fha diE91"&$1S(:;hl?9tE;',i;1;;€C;(;;j: Ogg Elndcr ex1st1ng section 25 ur section 34 and th; anlcuiisllii ·h€ PWPQF T€§1St}“Hii¤H f€@. This sccxiun was omitted bx; th, ca1jI1a1· R‘cp01·t,1 m view of the fact that in th clan E hung t0 *’m¤S—¤T¤¤sss 10 and l8(l)—thc csixasy 23. §“;f)POS€d_ 3 maximum 6116 Of HS. 10 011Iy. A5 we are yrgdi- nt}}?? proposal? It IS necessary to nctam existing Ol Elite . , _ scgicndyg, L EXISUHE $€§’U0HS 72 End 73 PFOVME for “app]icati0n" 1,0 and pj lhc_R€·g1st1·ar m respect of orders of the Sub-Registrar re- ' IUSIQQ registration. These sections were omitted by the carlmr Repcrtf in view 0f the scheme proposed in that Ba- port substituting reference in place- of appeal. As that scheme is now to bc s.band0ned,‘ sections 72 and 73 will • have to be retained. Code of Civil Procedure dflféfdgjugzts . Certain amendments were suggested by the earlier Rc- .,0; Civ;] port in the Code uf Civil Procedure, 1908. One was tu the Pmccduxc effect that under Order 21, Rule 16, Cnde; of Civil Prc·cc— dura, a provision be added making it obligatory on the part cf the assigncr of a decree to report the assignment tu thc-: court after notice to the judgment-debtor, within three months from the date of the assignment. This recommenda- ti0n‘ was made while proposing modification of section 17(1) (c) of the Registration Act so as to exclude executable decrees or orders. The reasoning was, that under Order 21, Rule 16, thc assignment mus': bc in writing, and therefc-re the further raqui-rement of registration was unnecessary. The addition of a provision for reporting of the assignment _ under Order 21, Rule 16 was suggested in order that the rc- quircmcnt of registration [in section 17(1)(c)] would Iurther lose its force. As the change proposed by the earlier Rc- pcrt in section 17{1) (e) is not tc be maintained? this ra- p cummcndaticn need not be carried out. (Thc comments received on this recommendation state that a decree cannot be executed an pvcsent unless the transfer is recognised by the court after- notice to the judgment-dcbtclr, and therefore, reporting by the assignnr would serve nc: useful purpose. Another comment states that the nbliszatinn should be- cm the assignee, under the Code 0** "ivil Procedure). 1. Sixth Rcpnn, page 33, paragraph 90. 2. See liscusslm relating to clause go and clause IS {1) proviso. 3,, Sixnh Report, page 34. paragraph 92 and page 7S, (rates), discussion- rslazing IO clauses ZI amd 22. .Su discussion relaxing no clauses 21 (1) and zz. 5.. Sitth Rcpvrt, page 15, paragraph 32. 6, See discussion relaxing tc clause 3 (i) (d). 107 _ E Another change recommended by the earlier Report was in relation to memoranda of appeal. In order to implement the scheme requiring Courts to send to the registering offi- cer copies of plaints and memoranda of appeal involving immovable property, the Sixth Report recommended} that appropriate rules should be inserted in the Code of Civil E·i.i;.;.-aure, requiring a schedule of property to be given in every memorandum of appeal relating to immovable pro- perty. This recommendation was linked up with the scheme embodied in clause =l2(2). As clause 42(2) is to be dropped," this recommendation need not be implemented. (The com- ments received on this recommendation oppose it. One comment makes the point, that a certified copy of the decree of the lower court must always accompany the memoran- dum of appeal and since the decree necessarily contains a schedule of property, there is no need to include the schedule in the memoranda of appeal. The comment need not be considered, if the recommendation is to be dropped). Suggested new provisions We may now consider comments which suggest addi- SUBEEWS {tions of provisions on certain matters not covered by the ;1§,‘;S*”’°V" existing Act or by the earlier Report. One comment suggests that the registering oliicer should E“q`:i{!ft_g see not only whether the deed is registrable, but also vshe- as t I ° there it is valid. It is pointed out, that in some of the for- mer Indian States, there were systems by which it was in- cumbent upon the person applying for registration to {ile a true Copy of title-deed. This lessened the chances of cheat- ing. Such a provision, it is said, would be based on pru- dence and expediency. Though the suggestion is an at trac- tive one, we are afraid that it is outside the scope of the Registration Act. ” It has been suggested, that there should be a provision R¢sl¤’·¤f¤¤i¤¤ -on the lines of section 22A (as inserted by Bombay Amend- l‘_LI‘3;‘°";,_ ment), empowering the State Government to declare by posed to notification that the registration of any document or class public fof documents is opposed to public policy; the result of such P°h°Y notification would be that the registering oiiicer has to re- fuse to register such documents. It would appeari that under the section as added in Bombay, a notification was issued in 1959 declaring that the registration of a document containing a declaration as to proprietorship of trade marks is opposed to public policy. We are not convinced about the need for such a provision for the whole of the country and would leave the matter to be dealt with by local amend- ment, if necessary. We may also add, that it may be diffi- cult to define what is opposed to "public policy? 1. Sixth Report, page 31. Paragraph 103. - 2. Su discussion relating to clause 42 fz). 3· See Mulla, (1963) pages my-118. 108 C¤t>!i¤2 br Another new provision suggested in one of the com- 1*110* ¤5f¤Ph ments je the one fm- the copying of documents by photo- graphy in areas to be notified by the State Government- Reference has been made in this connection to sections TDA. to 70E inserted by the Bombay Amendment. These sections. were inserted in 1930 as "Part XI-A. Copying of documents by means of photographs"} This is a useful suggestion, and may be accepted? Consequentially, it will be necessary to insert a provision in the rule-making section, section 69- clause 'l'5(2) in the Sixth Report authorising the Govern- ment to make rules to regulate the procedure for transmit- ting documents for being photographed and incidental mat- ‘ ters. The matter was dealt with by section 69(l)(gg}· in-· serted originally by local amendment in Bombay, and is now dealt with by section 69(1)(ggg) inserted by Bombay Act 35 oi 1958 (24th April 1958).** Clause 76 (Existing sec- = tion 69) may be amended accordingly? Tr¤¤Sf~‘{f of Another new provision suggested in the comments sis as p*`°°°°d‘°g“ to transfer of appeals and applications under existing sec- tions 72 and 73 from the tile of one Registrar to another, and the transfer of an inquiry under existing section 4l(2) from the file of Sub—Registrar to- another. It has been suggested,. that the insertion of such a provision may be conducive to efficient administration. We do not see any need for such a provision. The suggestion need not be accepted. Remission or A new provision for the remission of registration fees f°°S under an order of the State Government has been suggested, This point has already been dealts with. Registration One point dealt with by the earlier Report was that of bY[P¤“°°l“*· registration by Panchayats. A sug estion had been made Y"' by one Member (Dr. Sen Gupta) tluat power should be given to Pa-nchayats to register documents of a simple - nature and, if the experiment succeeded, to enlarge the power gradually. The view of the majority of the mem-- ers of the Commission” was, that Panchayats have no knowledge or experience of the procedure for registrar- · tion, and it would not be expedient or practicable to give them the power. Disagreeing with the majority, Dr. Sen Gupta had expressedl the view that he had made the sug- gestion for conferring this power in a limited n-umber of cases where the document related to land wholly within the jurisdiction of the Panchayats. Where registration I. so Mulla (1963), pascs 246-249- 2. See sections ·;oA et ug, as proposed to be osertcd. 3_ 3% A, I. R. Manual, Vol. 9, page 939. 4_ gee section 69, as proposed to be amended (relating to photographed copies). 5. See dig·;us·:’on relating to clause 66. = 6. Sixth Report, p¤Ee 8 s Paragraph 18, . . 7. Sixth Report, page g4. . 109 . was acceptable to beth the panties, the Executive Oflicer of the Panchyat, if authorised by the State Government, could register: the document. if the document *1ras not ad·· miiied. the presexmmt could refer it tc the Sub-Registrar. The advantages of this procedure (according to Dr. Sen Gupta) would be that it wcuid. provide the Pamchayat with a record oi eil transactions recorded in the office, it wouid simplify the process of registration, because the Paxncheyet was likeiy tc knew the executant personally. I5 would also lessen the chances of false ailegaticn mt denial of execm ’ tion, and pmssibly would add to the revenues of th ?H.Z“L- chayat. Certiikete of registration in simple cases, he added, did not require much expert knowledge or experience; the maintenaxnce of severe} registers, would be handled by the . Sub-Regietra1·s. The incxe-sed mst if any, would set off by me redumnzm of cost owing to reduction of work in the Sub-R€giStfHI' S office. Sub-Registrar, he observed, were sometimes sever: miles or more away without any railway communication. so that a long journey delayed the regis- trmiem cf document after exec-utinn. Must of the comments received on this topic agree with the views uf Cummisssum that Panchayats should not be vested with powers of mgistmticn. Pzsmcheyats, it is stated, are Likely to commit mistakes in these technical matters. It is also -p¤inted out, that having regard to the law stau- dard of educatieu in rum?. areas and Lack uf qualified w=c:·pIe, the power might be misuseét. A sma}1 group caf cnmmezmts, however, agree with D:. Sen Gupte; and the point is made that Fauxchayets szbcmlci graduadly be em couraged to shoulder responsibilities for registration of documents of an simple nature. There is also the sitemap tive suggestion, that penchayats with preps: and trained ‘ staf¥ can be m1thc>riseed to register deed; up to say Bs. 1,000. Another alternative suggest-ima is, that there should _ be se provision for optémzui zegistrativn by the Executive ·OfHce1·-e of notified Penchayate, and that copies of all docu- ments registered with the Panehayats could be sent to the Oiice of the Sub-Registrar for future use and pubiic 1·e· efecemxe. We have given careful and anxious consideration to the _ subject. Wefeel that cme hee tc: balance here the advant- ages put; forth by Dr. Sen Gupta against the injurious consequence that might follow if the scheme is adopted. It is true, that a limited number of Panchayats may be able to disc har.ge the proposed functions satisfactorily; but then, frdm the opposition which the scheme has re- cevied, we venture to my that their number may not be large enough te; justify e statutory provision. es regards conferring of power for tegistering documents of a limit- ed value, it may be pointed out that even in respect ef small documents, the questions that sense may be beyond. the _, 110 ( capacity of the Panchayats in general. Optional regii;tra~ tion as suggested may not prove to be of much legal value, if no sanctity 1S given to the record. We may also like to add that registration is not a mere formality; it is a process which- (i) affects immovable property, which will last for ever; U (ii) has permanent consequences by conferring, _ validity on the documents; (iii) is of importance not to one person but to all subsequent transferees; and 4 (iv) brings into being secondary evidence oi at valuable nature. These being the consequences, the process must be done- not merely carefully, but with some sort of meticulous- ness, neatness, uniformity and efficiency. As at present. advised, We do not suggest any change in the Law. We may also, in this connection, refer to the need for an efficient institution of Panchayat Secretaries, a topic which has been discussed in detail by the study-team one Nayaya Panchayatsl. When the general administratioii. of panchayats assumes a higher standard, it may be possible to reconsider the matter. The question is not really a legal one. It is more an administrative one, de- pendent on the capacity and resources of panchayats and their establishments. Later Suggestions ¢ Luc,. wg_ Apart from comments on the Sixth Report received by gestion?. the Ministry of Law and forwarded to us, we had to con- _ sider a number of other suggestions, that is to say, sug- gestions not by way of comments but made independent- lyi. We proceed to consider them section by section. C,) 5,,,,,,0,, (i) Section 30 (2)——A suggestion for extending section. go (2) 30 (2) of the Act to Delhi has been made. We have dealt. with this in a separate Beporti. _ The Andhra Pradesh Amendment Act of 1966* has deleted section 30 (2) and #-1. Sec Report of the study-team on Nyaya Panchayals (April, :962 Ministry of Lw), c 109, paragraph 3. 2. We shall refer to them as "Latcr suggeslions", as they were received after the comments on thc Sixth Report were forwarded to us for con- sidciaions. 3. Sas Thirty-firs: Report of thc Law Commission (Section go (2] of the Indian Registration act-Extersion to Delhi), (May, 1967). 4. S. No. 14. 111 section 67, in their application tm the State of Pm- desh. We a·ec0mmev2d‘ that suitable action should be taken to restore the application cri these sections tc: che State of Andhra Pradesh, as otherwise section 39 (2) would lose its practical utility in E-`mdhrar Pradesh, so that registration uf za document would be invalid in E2 part of India and valid in the rest. {ii} Sectémz, 2{I)·—Ij.€] i ?2iCiO?t of "m:Idi.té¤n’*’~Q1’e re- Ui§'__§§°£¤F* 2* ccmmemiz that nationality may be added in the definition gm O? T"' · of "adciiti0n". Although the expression “adciiti0rn" dues "—;r,u;{di{{;55·;" nut seem to cccur except in a few QIHCES3, this change is desirable to make the definition cc-mprehensiw·e, in view of the change which we proposed *.0 section 34**. {iii) Section 34——ms.d foreignerswln the suggestion of (555) sezzienr a State G0vernment5, several poirrts relating tc foreigners ,34 *i¤d_ $ selling property in India and taking away: this sale price in °’°°gn‘·" viciaiicn uf the Foreign Exchange Regulation Act have been made. We have considered these at same length. Having regard to the paramount importance of conserving foreign exchange, we v·ecc>mmen» .4. Sea belcw, under "Se¤ai¤;¤n 34 and f·:>reig¤crs". 5. S. Nu. 9. 6. See section 34, as proposed so be amended (regarding inquiry imc nazicnalitj}. 7. S. N0. 9. · S. See-- iii Malia (1953}, pages :45 and :52, {ii) Ruammii. Regimarinn. Act (193.9), pages x·;9-xsu. 9. S. N0, 13. -.Q 112 The as stated by the Government oi West ` Bengall, is this. The Registrar has, under section 66 (2), to send a copy of the document to every other Registrar owithin whose district any part of the property is situate. It may not be possible to send the copy on the very day of registration, and, to meet such contingency, the West Bengal Government has, by rules“, made a provision to the effect that a "short note" in the prescribed form may be sent by the Registrar to the other Registrars. This ` "short note" is intended to be a kind of ad interim infor- mation. It is stated, however, that the Registrars in the other States (with two exceptions) do not accept the ° "short note". They return the "short note", and press for sending the full copy. This problem has been brought by that Government to the notice of the Government of India, and a solution re- quested. The Government of West Bengal has referred to the absence of a specinc provision on the subject, though it has not suggested any particular amendment. We quote rule 78(1) of the West Bengal Registration Rules, 1962”:——- "T8(1) When a copy of a document is sent to the Registrar of another district under sub-section (1) of section 65, sub-section (2) of section 66 or section 57, ` no memorandum required for any Sub—Regisiry oiiice of that district nee-d be sent along with the copy. Th·e Registrar receiving the copy shall cause the required ‘ number of memoranda to be prepared in his own office and forward them to the Sub-Registrars subordinate to him. It the Registering Officer is unable to des- patch copies of documents on the day they are admitt- ed to registration a short note in Form No. EA, Appen- dix I, shall be sent on that day". 1. S. No. 13- 2 qu].; 15_ \,‘U.;·;; Bangal Registration Rules, 1;6z (referred to in S. j’No. 13 Q. 3. Taken from West Bengal Registration Manual (1966}, V0]. I, tpage S']. 115 Form BA in Appendix 1 to the West Bengal Registra- tion Rules, 1952 is as fo1lows‘:—— "FORM NO. GA FORM OF SHORT NOTE [See rule 73 (1)] Names of parties Short name of - the property Nature of affected or document I tauzi number Executants claimants where possible · and the I I thana. I I . I I I · ' I I I I I I I I I The matter was discussed by us at some length. It was felt, that the proper solution would. be to insert a provi- sion in the Act enabling sending out of "short notices" as in the West Bengal Rulesz, in cases where a copy of the document could not be sent as required by section 65(1), 66(2) or ti'?. (lt was felt unnecessary to cover copies re- quired to be sent by section 64, as section 64 is confined to Sub-Registrars in the same district). As it was not known whether there would be any practical difficulties in the implementation of such a provision, we felt some- what diftident in sugmting a change. On the other hand, however, the usefulness oi some such provision is obvious, as such a "short note" would prevent persons in the other States from being duped for absence of copy of the docu- ment (wher there had been a delay in sending the copy, as in the case of lengthy documents). We recommend a suitable provision on the subject? 1. Taken from West Bang R egistration Manual (1966), Vo!. 1, page 106. _ _ 2. Rule 78, West Bengal Registration Rules, 1962. ` 3. Sea section 67A, as proposed to be inserted. 9———·lO9 Mof Law. ` ‘ c __ 114 Recommended Changes Reeommcnd- The changes which have been recommended by the pre- °d °h°“8°S vious Report fall into the three categories:- (1) changes of substance; (ii) verbal changes; and (iii) changes in the arrangement of clauses. Some of the changes of substance will, according to our r recommendations, have to be dropped; If that is done, the question arises whether the need for revising the whole Act and re-enacting it will still remain. We feel, that if R the changes in substance are to be a few only, it would not be worthwhile to re·enact the whole Act. And ii? re- . enactment is to be avoided, we feel that changes of the second category—-—verbal changes—should be kept to the minimum; and that changes of the third categorywre- arrangement-should be avoided. Appendix On this assumption, we venture to annex to this Re- portl, a draft embodying, in the form of amendments to the existing Act, changes of substance and verbal changes that, we think, appear to be really needed, after a con- sideration of the earlier Report and the comments receiv- ed thereon and on the basis of our own views expressed in the preceding paragraphs. [ i -. 1. J. L. KAPUR—Choirman. 2. K. G. DATAR. `1 1 3. S. S. DULAT. Members. · 4. T. K. TOPE. 5. RAMA PRASAD MOOKERIEE. P. M. BAKSHI, Joint Secretary and Legislative Counsel. New DELHI; ,- The 30th September, 1967. 1. Su Appendix. 115 , r APPENDIX Draft amendments to the existing Act. t [This is a rough draft 0::15*]*. Existing Gist of the amendment Reference to the Page of the Bill section proposed discussion in this annexed to the Report on which Sixth Report ' the amendment is based • 1* 2 3 4 Section 2(I) In section 2 of the Indian (a') As to nation- (z`) As to nation- Registration Act, 1908, ality, see dis- ality, Sixth Re- (16 of1goS) (hereinafter cussion under p0It did not referred to ss the princi- “Lster Sugges- suggestachange. ‘ pe] Act) clause (1),- tions". (a) after the words (is') As to married "pIace of residence" (iz') As to mar- women, see insert the word "m- tied women, see Sixth Report, af¤m:Iity"; discussion r- page 40, clause lating to clause 2(I). For rea- (5) after the words 2(I). sons, see Sixth "then his n1other’s Report, page 9, name", insert the paragraph 2I(A), words "tmd in the case of a married". Section 2(5) In section 2, of the prin- See discussion Sixth Report die cipal Act in clause (5), relating to clau- not suggest this .. insert the following se 2<5). change. words at the end, na- mely— "cmd I0 an entry in writ- , ing made by the regis- tering ojicer on :2 sealed cover deposited under this Act". Section z(6A) In section 2 of the prin- See discussion re- This change was cipal Act, clause (6A) lating to clause not proposed in shall be omitted. z(S). the Sixth Re- port, page 42s clause z(B). Section :z(·7) In section 2 of the prin- See discussion Sixth Report, cipsl Act, in clause (7), relating to clsu- page 41. omit the words "and se 2(9). an agreement to lease", and, after the word, "kabuliyat" insert the ‘ word "and”. 1. In view of the nature of the materials which had to be examined the form of this Appendix is different in some respects from the form usualy adopted in the Law Commissions Reports. t 116 I 2 3 el. Section 2(9) In section 2 of the prin- See discussion Sixth Report, cipal Act, in clause (9), relating to page 41, clause for the words "fruit clause 2(7). z(7), deals with " upon andiuioe in trees" these inems by substitute the words- exclud-*319 them from the defini- ‘jfru:`t upon and jznlce in tion of “l1T11'l'lOV- , trees whether in exit- able p1ope11y". tense or to grow in For reasons - future, machinery cm- See Sixth Re- bedded in or attached port, page 9, to the earth, when paregrapli 21 U dealt with apart from (B). the Iaud". . Section 1 In section 2 of the prin- See discussion Sixth Report, (9A) (New) cipal Act, after clause relating to page 4I,. clause C9): the following clause clause z(1 1). 2(rr). For rea- shall be inserted, name- sons, see: Sixth ly: Report [Notes), P¤S€ 4- "(9A) ‘pre:crz`bed’ means 7 p·msm`bed by rules ‘ made under this Actl ". Section 17 In section 17 of the prin- Sea discussion Sixth Report had (1)(c) cipal Act,- relating to suggested— omitted sections. (f) in sub-section (1), (ij Omission of in clause (c), insert section 17(1) the following words (cj; at the end, namely: (iz`) in the alter- "wherher or not the ds- native, exclu- vument, nr any, by sion from sec- which the right, title tion r7(1)(c) of or interest was created, receipts in res- declored, mstpned, pect of regis- limited or extinguished, tered transac- tvm rrgz`ste1·ed". tions. For rea- sons, see Siitth Report, pages— ‘ 13-14, para- graph 29. Section 17 In section 17 (ii) in sub- See discussion Sixth Rcpor (2) (via) section (2), after clause relating to page S9, clause (vi), insert the following clause 42(I). 42(1)(f) adopted , clause, namely,-·— ` a different sche- me, whereunder "(via) a secrtrfty bond the COULTI or executed in favour of o public oiiicer court vrapublic rjicer was to send in his qmm! capacity a copy to the for the due fulnlment registering ofti- af a conditzim imposed cer within whose by tz decree or order of jurisdiction the the court or public nfs- immovable pro. cer". perry to which the bond applies _ . is situated ;_ This definition is to be inserted only if the expression “p1·escribod"’ is used in the ACL 1.17 . : 2 3 4 Sccticm IT(2) In section 1'70{ZM2. prim 5`ee Qiscussicm Sixth Ratpmt, (xi) cipa} Amin sub-section mlzung to page 43, cause (2.), for dma: (xi], sub- clause 3(2}{c) 3{2}(c}, is on smicute the following different lim:-s. clause, namely- For réamons, sec Sbzth Rc- "(>x.i}~ any audczscxgcag pcm, 5v:?: :8, can a mortgage- paragrap 4:, ackzxowicdging the- paymcut nf the whois ' or any part bf the mc¤:{gagc~m0¤cy, and my other rsmip: for payment of money du: under a mcrtgsgc, be- ¢ mi me endorsemm: ar ¤: sr seceép.: culzxkh me- reiba Mhadcdgu 1·e— CHI?! of Lbs ruciwy or vacfzes dzhvfmrge vfxhe >.·:argg·¤ge-debt, and wives not purport to extinguish the mum- gagc in whs}: ar in pam: i>r” Section uf;} In secticnzl ofthe- prin- See discussicm Sixth Repo-rt, cipal Acc, {0: sub—scc· relating tc; page 44 is on :50:1 (2), subsdcutc the clause ‘?[z), different lines. Yuiicwixg sub··s=&v·· cmmcnfmay, pcrhsgfss be re- zsiuc for anim rcpxzserntatism mn falling with- in the <:a:¤· { §01`}’ ca? "dip- lumatic or cumutar ·:>5£a· c::”. ‘¢ (£i:}· in me proviso, after the words "cr court" inserx thc Words “ca· Mica of she Nnzary Pub lic.", {b) in sub-section (:2), after the words *0; Magéstraxew me waged; "`s>:•~ xoxczry PuN{c" shall be in- scrtzd. (c) in sub»-svqziun {35. the fcliowmg words shall be {muted at the end, namely s- “¤¤d so m¢£sj'y}::2·n· sab, ?i4: mq;} gu Sv such house W :0 suck jun', and gw: queuzfmvs m swab { pem0n”. 3¢¤?¤¤ 34: pm- In section 34 cf the Sm discussism Sixth Rcpcsn wisc primzipal Act,-— relaxing tc page 49, clam: claus: I S {1), :8, suggests as proviso. maximum of TED mpcas. Qi) in sub-section (1}, in the proviso, fm: the words "tcn times the amount of the pru- pcr registration fee"; substitute thc wands *7Eve zimes the cm- mmsf nj the prow? vcgfitrutimi fee, bm not zxscedfazg 114;*865 mw ham-dned’i 121 I 2 3 4 (E0 after sub-section (3), As to nationa- Thie is e new insert the following lity,see dis- point not dealt sub-sectionl, namely,- cuseion under within the Sixth "Late1· Sngges· Report. tions". "(3A) The register ing o jfficer may, for the purpose of satisfying himself about the nationality , of the parties to the document, hold such inquiry as he may consider neces- sary, in order to ensure that the pro- ' visions of the Fo- reign Exchange Re- gulation Act, 1947, ( 7 of :947), have been and shall be complied with in relation to the con- sideration received or to be received for the transaction to which the document relates". _ _ Section In section 3 5 of the prin- Discussion te- Sixth Report, 35(2) cipal Act, for sub-sec- lating to clause page 50, and tion (2), substitute the 2o(3). reasons at page following sub-section, 7S (Notes) namely :— “(2) For the purpose oj any proceeding under this Act, o Sub-Regis- Nat shall have all the powers vested in a civil court under the Code - of Civil Procedure, rtw?. cs cf root). when trying a suit, in respect of the following matters, na- . wo ¤— (a) Surnmoning and en- forcing the attend ance of witnesses and examining them on oath ; _ (b) discovery and tn- spectiong (c) compelling the pro- duction of docu- ments; f d) reception o can- ( dence on a_;jl°iclcwltj, and (e) issuing commission for the examination of witnesses; and any proceeding of ex- isting section S4(3), 1. This is a new amendment not dee.1 iwith in the Sixth Report. 122 r 2 3 4 as to judicial pro- ceeding before the Registrar shall be deemed to be a jay dicial proceeding wc- thin the meaning of sections 193 and 228 of the Indian Penal Code, (45 of 1860). Provided that the po- wer under this sub- section shall not be ’ exercised in respect of a person not residingl or car- rying on business or personally work- < ing for gain within the local limits of the sub-district of the Sub-Reg:Lstrar"’. Section 42 Section 42 of the princi- See discussion Sixth Report, pal Act shall be re-num- relating to page 60, clause bered as sub-section clause 43(2), 43(2), runs on thereof, and after sub- where volunta- somewhut diffe- section (1), as so re- ry nomination rent lines, by numbered, insert the is rccornmcn- making nomi- following sub-section, ded, in case of nation com- namely :-·- a testator who pulsory. personally do- “(z) A testator who per- posits a will. sonally deposits a will may also endorse on the cover the name and address of the person to whom the original document should be de- livered after registra- tion thereof after his death". Section 45 In section 45 ofthe prin- See change pro- Sixth Report, cipal Act,to sub-section posed to exist- page 61, clause (2) add the following tlngsection 42, 46 (2),and clause proviso namely,- andthe dis- 48,8IB on some- cussion relating what different { “P‘rovided that where the to clause 46, lines. testator hos, under sub- where delivery section (2) of section to nominee is 42, endorsed on the recommended. cover the name and address of the person to whom the orzghrol document should be delivered after registrm tton thereof after his death, the Registrar shall, after such copy _ has been made, deliver the orihnal document to such person". r . of. Section z0(a), Code of Civil Procedure, 1908, .2. The proviso modiies Order 16, Rule 19, Code of Civil Procedure, rgO8 which would otherwise apply under the main paragraph of the section as proposed 123 I 2 3 4 Sectum 46(I} In section $5, in sub- See discussion Sec Sixth Re- secmu {1], orthe weeds relating tc rl, clause 47 and figure; "scctifrl1eI@ Sunecssinn (cecemmendatlun sectkm ef the Am, :865 0: section S: for eubstimting Indian Succes- c£ t1[¢ePr¤b¤.te and All- up·m·dete ze- sion Act, :925 mumgtzativu Ace, 18231**, ference)} is mfexred cu. Subsvtute the words and . Eguacs ";m:zwn 294 pf the Indus: Ssmr:.¤·mu Am 1925, (sa ¤f1;v2s). Secdw S¥·• In seclicm 5: of the pxin- See n discussimx Sixth Re urt ` (P!'¤P<>S¤d cipal A<::,~— relating to page 65. new sub- clause 61{2)(6) not make this SWTIUDSJ (lg} after sub~seccia>z; (3), and clause 42 change. insert che fnllnwzng (3}. The eac- uaw sub-sectiom, na— pzessicum "Sup- meh, :— pLemem:ary" ' and "Addi- "(3h) Rum made xm- :i:ma1" Bach der tk!} Act may owe their Q1"}- prwide fw the maxim- gin to the com- mwme of A»:l’d¤Jxim— mem received cl or Suppizmmtmy DH clause 42 Back 1 md Bunk 4 (3}, which t§.x¤· in tkefvrnc of cr Fife tee the Mad ya Back W miller MQ- Pradesh rgdcs ablcjcrm far rgzs- cngthe subsecc mzzlcv. of-- wmch use the expression {i) dcmmmzs of a "Addi:i¤:ml" temporary charac- and "Supplc·- ter; ur memes". ggulcs BS to 90, (ii) documents winch edhya Pm- *· are prmtzd mz clesh Registra- paper and 132 res- tum Rules). pact qf zvhieh en- tzrfrzg by hand Ewcémés :mrw6z`S— < sary; or {iii} aah; dc}:;-alms; ar cape: ¤ n me- da} daamcicr, which cameo: be cunverpéwtly em rzmi m me mum Book 1 cmd Beck 4. (3B) Suck S www may or Backs shall, for :22 gurpvw vf rkis Aer, e deemed ze fmm par: of Bm}: 1 or Boob 4, lu. xiv case may Be". As ta sectic:1 :94, Indian Succession Act, {925; sac Paxuck, Succession Act, [1955} P¤€¤ 577- - . .-. t 124 I 2 3 4 (6) insert the following See discussion See Sixth Report sub-section at the relating to page 65, clause end, namely :—- clause 6I (5). 61 (5). For See also Bihar reasons, see and Bombay Sixth Report, _ Amcndrnentsl page 32, para- to section 51, graph 79. reproduced in Mulla, (1963) pages 228-229. " (5) Ifin the opinion of the Registrar, any of the books mention- ed in sub-section (1) _ is gn danger of being destroyed or becoming illegible the Registrar may, by aevritten order, direct such book or portion thereof, as he thinks fit, to be recopied and ou- thenticated in such manner as may be prescribed, and the copy prepared and authenticated under such direction shall for all purposes of this Act and ofthe Indian Evidence Act, 1872, (1 of 1872} be deemed to be the original book or por- tion, and all re- ferences in this Act to the original book · shall be deemed to be to the book or portion so recopied and authenticated". _ Section 55(7) In section 55 0f the See discussion Sixth Report, (New) principa1Act, insertthe relating to page 66. following sub-section at clause 64 (7). For reasons, we the end, namely :— Sixth Report, page 32, para- graph 79 ard page B2(Notes). " (7) If in the opinion of ofthe Registran any of the indexes men- tioned in sub-section (1) is in danger of being destroyed or Becoming illegible 1. See Mulla {I963), pages 22S-229. 125 (.2. ‘ * I 1 3 4 wholly cr parxéalée, she Registrar may, by cz wrézzeu nrder, cE:1>·e.:: sud; fndzx or rziwz Lfzcrec , as EZ sfzinés fit, {0 be , rezcupizd in suc}: mmzncr as may be prescribed, and cup- {2: em prepared shall for the pwpmas of {Isis Ac: cmd af the ` Indian Evfdamsc Ans, :872 {1 cf xS7z} be dawned _ :0 be che ovigirxzl Exidax or pcvéicu, med 223 reference: ix em Ace :0 Ike ori- girzai index or pm'- :50:: sim!} bz deemed xv be Mfercnnes rn Lfw fndnxéx or pm·— fiom prcgamcd as :.{1'¤:·rs:sa{d" . Scction 673. After Scexiun 67 of the Sz: discussion (New) principal A·:c,imem;!1e unda: " Later lfcsllowiug seccicxz, mamc- Suggestions ". 5f Tl? “6;.·A (1] Where the rg- gimrring afjE'c¢r· is amebic to dasgmclz a copy of rz dam- nuem msder saab - · Sanding vf gr}¢>fs¢:zéw: shcrt nmiccs 65, su -.¢»:zi¤n (2} GI dccumznts of szctim·z 66 an- .-:ear· zion 67 (her2ix:a:_1';e-:· referred to cu ‘1f¤2 reqzrisiiv copy'] on His day ur: whfufr. the d2,gi2;Er2g pg-rximalars af me mzzmc of she: dau- 1:1.2:::, the names of the parties (incid- frsg the execusmns and cizzémuvzzsl, mad 4 description of the property q§`s*c£ed, I0 the Reiistmr _ tu . sufmrrs 1 e reqmsfse {. As to the expression "p:·escs·ibcd", sez sha dcfmiticm uf than cx- casmn (proposed). ~..w 125 , I 1 s 4 1 »-—•-nn-: cviry is :0 be san: under may of {kc secairms referred 60 in skis sub·secu}m. (2} The Registrar receiv- ing such wie shall . take action Ifwrecx as if it were the nc- qnfme copy gf the document, mi such s-hors mm: sian]'! Em .r <£¢a2¢m£ I0 és she requisite copy #:225} ska reqzzésine copy 5: rucaizw? 32;: she: Re- giscmr. (3) Wfsrn the rzqdsite crispy of rhs cfvcurfwrlf is received by the Regim-nr, an m- dbrxemcszz to the ejfec: tim: the scvpy cwmalr aha .s-hm: www sim!} be mania em the copy and an the short zmtc". S°¥·!?0u 69 In section 69 of the See discmsian Compare Sigh principal eww-- rvluning 20 Repcxgpagg qq: I clause 76*3} claus: 76. Pc: (ca) in sub-secuun (1},- masons, mg {E) for cha wurds Sixth Rapgp; " and shall hgvc pag; 3 , pm·3_ FGWBE from uma graph no time w make: rules cvnsistcm wma this Aer.", substitute the ’ w01.·ds“ and the Scan Gwcm~ ment may, by maificaziun in the Officiaf Gntzzwc, . make ·•·s:§cs"’. (ff) ufrcr ¤1¤¤=~¤£zs}, LG As cc ham- Sixth Re Q insert the follow- gphy, P me page -;.5 gm EHS MW ¤i¤¤3¤S> ` 1‘¤· 76 Q2} {Exam. namely 2- _ hung ¤¤“S¤g- badass only QM “(ggg) regularmg gcstcnt new s::c— cfthcsa amen 4. she procedure tions", * and ments, ggmgly for nwmmimz- me Bombay regarding M. wg dmnwmmzs Ame.¤dmem.° 1*. gf . Sixth Report, page 70, ciause 76- 2. ea accticm 70A, as pmpvscd. 3. Fvr the Bombay Amcmdnzcut, see Mulla {{963), page 44. 127 1 2 5 4 ur bein Fw- °°?`é";“€ Gf `éygrazphggcxsd ¤·1¤¤md1¤¤‘»=- the mini rmmbaiérrg, binding ami presmwzrinn " of the p?mg¤~— graphic pnjmrs and negatives the mama-or of fixfrzg the ‘· sigfécziufs as the and of .:2· Emgxia 0} jim, and Ike procedure gmmufly in me G‘cz·w-::— msn! Pfwfé }?¢·g:'s:ry". {gggg) regufxziing the {ri') As tau manner manner of ra- of rw-copying cupym in- the indexes we dances {Fas. I, clause 75§2)(h), II, H! and and discussion IV, »~.·z.sg>e·¤:cE·· relating there- z¤e:?y and p<>r~ 1:0. This is mans thereof, wmcqucmi¤l.* under secziarz S5- ~ fggggg) ragzdaririg Nee (Q3`) As to mim- mmzgser nf ra· nar of :z··c0p5r-· copyang and ing and auth·m~ czuxhcnzzcezzéwz xicarixm of rc· nf register gistc: banks, bask: or pw- mc., sea siicuss rium zéemvf, sian relating tc under mation clause 76{2)(e). 5:. This is consc- q·¤cmia2.* (iiij afccr claus: (ia), Sees discussion Sixth R xt, insczt Lbs: fallow- relaxing in page gn, glgzge ing ciausc, mmm chmsc 7¤S[2){fj 76 (2) (i} aug— il'-- _ and mmmmcm gesccd "(hh) ragulxmg the datimz fur issue similar provi- maqncr of of me pms· sion. absumg she cwibcd nmit:2 notice r2fer~ before dcsm1c· mf w ie: mm. suction S5 ’°. 1. See mama 55, as proposed to be amended. :·.. See section 5:, as pmpuscd w be amended. 128 1 2 3 4 (b) Omit sub-section (2). This is conse- quential on the change pro- posed in sec- tion 69 (1). Sections 70A After section jo of the See discussion This is it new to 7oE, principal Act, insert the relating to provision. Sixth (photo- following new sections, " Suggested new Report did g graphing namely :- provisions ", not propose this of docu- and the Bom- change. ments) bay Amendment, sections 70A et sec. " PART XI-A OF THE COPYING OF DOCUMENTS BY MEANS OF PHOTOGRAPHY. 70-A. APPZiotzti0:1 of this pa.¤·t.—This Part shall apply to the oreas only in respect o_f which a notification ts issued by the Store Government under Section 70-C. 70-B. Definitions.—-In this Part,— (1) " Government Photo Registry" means the office where docu- ments are photo- graphed under the provisions of this Port 5 (2) " Manager, Go- oernmen t Photo Registry ’ ' means the person in charge of the Government Photo Registry g (3) “ Photo Registrar " means any person appointed by the mts Government to perform the duties of Photo Registrar under this Port. 70-C. Documents may be photographed in areas notified by Government. 129 I 2 g 3 4 (I) The State Government may, by notification in _ the official Gazette, di- rect that in any district or sub-district specified tn the notification copies of documents admitted to registration under this Act shall be made by means o f photography. _ (2)O.¤t the issue of suck nottfication it shalt be translated into the language of the district and shall be posted in a conspicuous place ot the Registration ojffices _ ajfiected by the notifi- cation. 70-D. Application of Act to areas norihed under section 70-C.— In any district or sub- district in respect of which tt ttott]'ication has been issued under sec- tion 70.C, the provision - of this Act, shall, for the purposes of this Part, be subject to the follow- ing modifications, name- ly :- (i)[a) every document admitted to registra- tion under section 35 or section 41 shall be carefullv marked with an identifica- tion stamp and the serial number of the document on every P¤§¢- ‘ (b) It shall then lJetroms· · ntitted by the re- gistering ojiccr to the Manager, G0- vcmrnent Photo Re- gistry, who shall cause each side of each page of such document together with all stamps, en- dorsetttents, seals, signatures, thumb- impressions and certificates dppetlrirrg ' 10-109 Mci Law. _ •»— *. Whelt ·,>.|L, _ _- t s 130 ..a.......;.. ,r________________,_,_____ T 2 3 A _________ thereon to be photo- grapaed without sub- traction or altera- ' tion. He may for this purpose out or unite, without break- ing any seats, the tirreerd or ribbon wherewith the pages of the document, _ are seam together in ordor to separate the pages of the document, cmd, os soot: as the document has bam photogra- phed, he shall re- Mszd the document exactly as before and sf he hos cat the tkvedd or ribbon shall MG] it mud? the joint mth his seal ; Provided that before 1rar:.m•m`:st`orz of the document to the Go- ·oe-rrzmmt Photo- Registrrzr the Party presenting the devou- m6i1¢ may roqatro the regfsterzhg of- cor to have it copied by band under sec- tion 52 on payment of on additional copying fee. (G) There shall thm be prepared and pre- served the negative and at least one pho- tographic print, and to ouch such nega- tive and print the Photo-Regis- trar skull fix his !if7!G¢UTS and seat in when o the exact oorrerporrience of the copy to the onkiuol document, as od- mttted for registra- tion : Provided that when more than one such negative is recorded on one keith ofjilm and the hoto-Rc- géstrar has ojjtxed 131 "*‘· *’ - * 2 3 4 "‘•""“"*•¤¤¤_¤¤* ·i•¤•¤u¤u¤¤•¤i¤•¤•¤¤•w¢¤• his signature cmd sam? nz me md of muh {:::3:2: gf jiém cam'- jjwrg an me vmzmm prescribed by rules aramid in this fichdf, _ dw smc! cdrfespmr- dence af Ml copies me gud: Eeugck of Mm wiz}: dce vrigimzl dcmnmxx, me yvfacsu-Eegfurar rho!} `* Be deemed to Fame a.€H.rzd Iris .s·fgm¤2ur¢ and sea? IO muh $22:}: negative (pz suck Eerzgzh of f:{»2. Prwfded frxrnhzr that in case of dccumems cvrstdfvfrrg plasas csv nxzdps she rzzgnzfczs qf mf: pémss and maps may és pre- pared on Nfer ins- wad of an ji ws cmd wfzera size nsgatwes are swgrepared :12: Pfwxm egxstmrsbafi fx his xignmzare and seal separately m enc}: smh wxagazivn mm? prim if ::::1*1 _ _ plan cr vamp in rsfrcrs •. q;' fha exact curves- _ jscmfcrrcz gf tha {cpy ' ru size asrigirzcri wap or $·!.i¢.v and smwz nr bound xngscéw. Tu enc}: suck écvk #:2 Re- gfszrar cw .S`u§·R¤- ghhrar shui? 1-'WQHSF fi cam]-‘?¤a:e of me mm! awmécrs is mm mins, and the bam; mu.'! rims Am pm scrwd 1`rs che re- cards qi Hur 3:+2:- Rggnigsmr, ‘ I32 1 2 3 4 The i'l£?,§"¢IZl.U£S slmll be preserved irc such suitable place as the Irtspcctvv — Gcrzeml may direct; Provided than prints of plans or maps ccmmirrcd in docu- memts may citlzcr be Gvursd with the prints of such ehscunncnrs or filed A`2pcz.P'd£6ly {H. suc}: rrxcmrmr Us the Ins- pector-Gsrzcml may direc:. (2) All wards and cx- presjichs used zh this Act with re- ference cu the 1:mk— mg rf copies af documents by kcmcl or dw sruzrbrg or fling of C!OCHfH€-IHS ur memormrdum 2373 {walk! provided tmdér 5865011 I6 Shall, so far as may be neces- sary, be cmastruecf as rcfefrfzrg tg the peaking of such cup- 1zs by mmrxs nfphato- xrapizy or the erzzcr- irgv gr jilfug nf docu- mcrzti ur mer!mr0‘rt— _ dum in banks made up nf copies prepared by )‘.¢Z€¢Z11J` of Pham- 2~=N¤y· (3) Where this Par: app- lies, the sections memtzlmed below shall be deemed In be mcdzfed as fol- Iasvs ;.. (:1)]-Iz scctimx IQ thc words ‘ cmd also by cr. frm; .cupy’ shall bc . umizzcd 5 (5:) .SuI:—scc:ivrz (4) gf scccimz AI skccll be amisted ; {cj che wards ‘ac- curdfng to chg , ._,_,.,_;._._»-·-.»-».»—»»- »·‘¢?'_"'”"”`”"_""’1"_”' ' "'r"*___'_ I33 1 2 3 4 order qf iis ad- m£sm'pn‘ accur- ring in clause . {cj qf sub- sccrzlw (1*) of .r;·5tz`0!1 52 shelf! be cmiszed ; * {rl} mcriurz 53 skrzfl be omitted 5 fc)13: sub—.vectzbvz -» (1) cf seczfuu 60 the wards ' cmd {mg: ’ shall be amit- zed ; Cf) sub·:eczzb:z fr) {af section 6T skull bc amit- ted 5 fg) in sui?-semlm L of sectfmz 62,- f(z"j ar rh.: ward ° rrwr- xcribed ’ rlzc wcfd { c»1p~ M1" M..:!! bg szubstzm- fad _; and li {fi) for Hve wards and figures ‘ copy rc- fcrrgd to in secxwr: 19 ’ the wards jnfzctcgraphs of rhs origi- mz! ’ shall be Subszitsmzd. 70-E.(1) N0:!zz'ug· in th:} Part Shall apply I0 any rfccumcut which is prapzzred me a primed ur lichojrqpfred farm ur which in the upfufuu cf the r·egz'stcr£Hg jfkcfii fmt fr: tl fit andiziem to be pim- mgfaphzd. Y34 [ 2 3 4] C2) Nocwfzlurandzizg any thing ccmmfmad in this Pm-at, in the case of dF{_v_ ducmrzent efommrzmg as map, Nan or trade mark Zabel if the party prcsemzhg the circu- menz so desires, the r ?'*‘?§!;‘i$0T{?'2g qfficzf may accept true Cdpfes of Such map, plan or trade mark label and where 51%:}: true copzcs are 0*c‘cej>fed che map, piczn or trade mark {HB2! shall not be pfwzogrcphzd and such copies cherecf shall be jied in the appropriate l~nck". Section ·;r7(1) in section 77 of the See discussion Slxth I‘€CPO*it· Principal Act, (5) Lu relating F0 1938% 52*53 did Su‘o—section (ih add clause 23, noi recommend the following Expla- this change. nation, namely :-— " ExpJam1.·:z`c:z : In comm- ziug the period of athirty days refer- Tésd to Err thc Sub section, the time rcqmkite for obtczfn- ing a cow of ska order cjrefuso! shall be exC{t¢dec£". section 77 (2) (ii) to sob-section (2), Size discussion 51xth RHDOFI. add the following relating _ F0 P¤S° 53· proviso, namely ;- claus: 23 (2) ‘ proviso. "Pr0cided that _fcz¢`}z¢re 10jl!¢a.tm`torthe dis- mzlssai of cz sui: filed under this section shall not disemirle rz party to may crher remedy za which he may be emi'.rl’ed on the basis of the rmregfsxcred do- cumems". ‘~ ti rx S Reuumher section S of See discussion Sixih Report: but an 7 rh: principal Ac? as rclatins K0 9¤'·5° 6'2’· °!‘““‘ sub-section (1) thereof, clause 66, and 66_1s silcm OH and after sub-secci0¤(r) the Wes: Ben- this point. as so renumbered, in- gal Amcndmcm ser; the following sub- Act, I955-1 section, namely :— 135 I 2 4 ,_,_,_______,___.j_ "(2) The Stare Goo- emment, tf it tk of opinion that there are reasurtable grounds for doing so, may by order pub- Hth in the o_,j'ict`a! Gazette, remit in the whole or nny {mr: of the .':>`ttzte any fee or fees fn Yerpettt of any rrmrter or mat- ters £’1t!nne·r‘aIt*d in clauses (cz) to (i) of mb-sectirvz (I), either genemllv orfor any class in- classes of cases ctntt in respect ufpmorn generally or of tiny particular classes of persons". Section 82 In section Sz of the See discussion Sixth Report, principal Act, in clause relating to page 68, clause (cj, after the words clause 7o(c). 40 is silent Lon " pcrsonates at1other"_ this point. insert the words " whether the individual pzrsnnated is tz real or tm imaginary perstm”. Section Egfr) IIISCCHOHS3 ofthcpt·in— See discussion Sixth Report, cipal Act, in sub-sec- relating to page 68, tionft), for t11e words clause 71. bottom. " A prosecution e for any offence uncterthis Act coming to the knowledge of regis- tering olficer in his official capacity may be commenced " subs- titute the words " No prosecution for any offence under this Act shall be [commenced except ”. Section 85 In section 85, insert the See discussion Sixth Report, following words at the relating to page 7o, clause end, namely :-- clause 74-11:- 14, also provi- comrrtettdation des for notice, " after such notice at relating to des- mey be prescribzd”. truction after notice. r. See Mullet, ({963), page 267. for the West Bengal Amendment. 136 1 2 3 4 I Section R7 Rc-number section S1 of See discussion Sixrh Report, - the principal Act as relating to page 58, clause sub-section (1) thereof, clause 41(2). 4t(2] proposed and after SL1b··SCC[iOl’1 a widcr pro- Qt), as so rcuumbcrcd, vision. For insert thc following rcascms, see ;· sub-section, namely:- Sixth Rcport, page 36, para- "(2) A person. who graph 99, and has before the re- page 80. gfstering offfee1·ao’- mftted execution of a document or as- serzted to its regis- tration, sha!} not be allowed to question the vctlidity of irs regnhtrdttlon on the ground of any defect in, or the want, of authority of :2 per- son presenting the docummr". GMGIPND—T. S. Wing-·tog Law (43-1,G:‘—·22—9-I9_·’ t5’0o