Circular regarding registration of Confirmation Deed or Declaration Deed- Dated 22/12/2011
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Sub:- Regarding registration of Confirmation Deed or Declaration Deed
Kra.ka.4/Pra.kra. 617/2011/3008 Office of Inspector General of Registration and Controller of Stamps Maharashtra State, Pune-1
Date:-22/12/2011
Circular
Preface:-
Section 17 of the Registration Act, 1908 includes the list of documents of which registration is mandatory. Moreover, sections 23, 24 and 25 of the aforesaid Act stipulate the time limit for the presentation of documents for registration. Accordingly, any instrument other will can be presented for registration within 4 months of the execution and thereafter for 4 months it can be presented for registration with the prescribed penalty. As per section 32A of the aforesaid Act, it is mandatory to affix/obtain photographs and thumb impressions of both the parties on the instruments concerning transfer of immovable property. Section 49 discusses the consequence of non-registration of documents for which registration is compulsory.
If the documents executed by the parties in fulfilment of the inter-se transactions are duly registered from the time of execution, information about such transaction would be available to the public and malpractices like two sales in the same property transactions would not occur; keeping this object in view, the Registration Act, 1908 and the above referred provisions thereof have been enacted.
Despite these statutory provisions, this office has observed that in some parts of the state, instruments concerning transfer of immovable property are retained without paying the due stamp duty and without registering the same within the time limit prescribed under the Registration Act. Thereafter, if required the said instrument is presented to the Stamp Collector for payment of deficit stamp duty and then the stamp duty as per the assessment prevailing on the date of execution is paid with penalty and annexing this instrument, a new instrument is presented for registration as Confirmation Deed or Declaration Deed or under similar title.
Sections 23, 24 and 25 of the Registration Act, 1908 lay down that,-
Section 23. Time for presenting documents:- Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution.
Provided 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 applicable (appealable) within four months from the day on which it becomes final.
Section 24. Documents executed by several persons at different times:- Where there are several persons executing a document at different times, such document may be presented for registration and re-registration within four months from the date of each execution.
Section 25. Provision where delay in presentation is unavoidable:-
(1) If owing to urgent necessity or unavoidable accident, any document executed or copy of a decree or order made in India is not presented for registration till after the expiration of the time hereinbefore prescribed in that behalf, the Registrar in cases where the delay in presentation does not exceed four months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration fee, such document shall be accepted for registration.
(2) Any application for such direction may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.
It is prima-facie observed that following irregularities occur due to registration of Confirmation Deed or Declaration Deed:-
- Circular No. kra.ka.12/Mu/Pra.kra 822/98/1954, dated 30/12/1998 issued by the office of the Inspector General of Registration directs that while assessing the Sale Deed, unregistered agreements for sale should not be taken into consideration. This direction is being violated.
- The instrument enclosed as annexure is beyond the period prescribed under the Registration Act when it is presented for registration; yet, it is brought on the record of the Registration office and the benefits under section 49 and other provisions of the Registration Act are obtained by pretending that the same is registered.
- The instrument which is enclosed as Annexure, is not brought on the record of Registration office as the same is not registered at the appropriate time. Hence, other parties do not get any information about that transaction; moreover mutations are not entered in the Property Card. It has been observed that the original owner misuses this fact and sells the said property/agrees to sell it to some other person and after registering that Sale Deed/Agreement, a Confirmation Deed/Declaration Deed with the original instrument annexed thereto is registered. In this manner, transfer of one property to several persons takes palace. As a result, the extent of disputes over immovable property has escalated. This practice is not in the public interest.
- In the case of unilateral Declaration Deed, section 32A of the Registration Act, 1908 is violated as the photographs and thumb impressions of the parties involved in the purchase and sale transaction are not affixed to the instrument.
- Hon’ble Supreme Court in the case of Ulokchand Harnath v/s Gokulbhai Mulchand (ILR 21 Bom. 724) has observed that-
“If the two documents are essentially distinct, being separately stamped and executed to effect different objects, the Registrar has no power to register them as one, even if the party presenting them for registration styles one of them to be the annexure of the other especially where the registration of the document styled the annexure or appendix is barred by limitation.”
Such instruments are being registered contrary to the said judgment.
Taking into consideration all these cumulative factors, all Sub-Registrars in the state are directed as follows:-
“If any document of which registration is compulsory, but the same has not been presented for registration within the prescribed period, is enclosed as annexure with any Confirmation Deed or Declaration Deed etc, such instrument should not be accepted for registration. However, in such cases the concerned parties after paying the stamp duty as per the prevailing market valuation can execute the instrument of Sale Deed and present the same for registration and if the said Sale Deed complies with other legal provisions there would not be any objection against its registration.
Sd/-
(B.S. Chokkalingam)
Inspector General of Registration and Controller of Stamps Maharashtra State, Pune
To,
All Sub-Registrars (Through the concerned Joint District Registrars)
C.C:-
- All Deputy Inspector Generals of Registration and Deputy Controllers of Stamp.
- Sub-Registrar and Administrative Officer, Mumbai City/Suburb.
- All Joint District Registrars
- All Desk Officers, office of Inspector General of Registration, Pune.
Issued
Sd/-
For Inspector General of Registration and Controller of Stamps Maharashtra State, Pune
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[(c) Translated by Adv. Prakash Manohar Chalke]