Section 17 of the Registration Act, 19081 specifies the documents for which registration is compulsory. These primarily include instruments of gift of immovable property; other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of value of one hundred rupees and upwards, to or in immovable property; and leases of immovable property for a term exceeding one year. Section 182 of the Registration Act makes registration of the documents which are not required by Section 17 to be compulsorily registered, optional. Section 493 of the Registration Act provides the effect of non-registration of document required to be registered. A document which is compulsorily registerable, if not registered, will not affect the immovable property comprised therein in any manner. It will also not be received as evidence of any transaction affecting such property, except for two limited purposes. Firstly, as evidence of a contract in a suit for specific performance. Secondly as evidence of any collateral transaction which by itself is not required to be effected by registered instrument.
Period prescribed for registration
A question arises whether there is any time-limit for registering a document which is required to be compulsorily registered. In said regard, Section 234 of the Registration Act expressly provides that subject to provisions contained in Sections 245, 256 and 267, no document other than will shall be accepted for registration unless presented for that purpose for registration within four months from the date of execution. Section 25 however, provides that if, owing to urgent necessity or unavoidable accident any document executed in India is not presented for registration within four months, the authority concerned, in cases where delay in presentation does not exceed four months, may direct that on payment of a fine not exceeding ten times of the proper registration fee, such document shall be accepted for registration.
The cumulative effect of Sections 23 and 25 is that total period of eight months is available for registration, subject to fulfilment of condition that if the document is presented after four months of execution, the delay should be on account of urgent necessity or unavoidable accident.
Applying the maxims of equity viz. actus curiae neminem gravabit i.e., an act of the court shall prejudice no man or lex non cogit ad impossibilia i.e., law should not compel a man to do what he cannot possibly perform, it has been held that subsistence of order of injunction is to be excluded while reckoning eight months8. Time taken by the Collector of Stamps for adjudication can also be excluded9.
However, if no impediment exists in presenting a document for registration, a document is required to be presented within four months from the date of execution, which period on payment of fine and subject to satisfaction of conditions of Section 25 of the Registration Act can be extended for a further period of four months. Thus, the aggregate period available for registering the document is eight months only. Non-registration within such period attracts consequences specified under Section 49 of the Registration Act. Therefore, a document on being presented before the Court and an objection as to its admissibility being raised on the ground of non-registration, in cases where period of eight months from execution of the document has lapsed, it may not be open to the party relying on the document to seek registration thereof.
The per incuriam direction for registration in Unitech Limited
In a recent decision10 the Supreme Court considered the claim preferred by Unitech Limited, a developer for restitution/refund of advantage derived by the other party under a “development agreement” which could not be proceeded on account of failure of the other party to convey title. Said “development agreement” was executed in the year 2008 to “develop, design and construct” an integrated township project/multiservice aerospace park. Under the provisions of the development agreement the developer was required to pay the stamp duty and registration fee. The developer’s claim for restitution/refund was opposed on the ground that it was based on unregistered development agreement. Without discussing the provisions of the Registration Act and the embargo on registration of a document after lapse of eight months from the date of its execution, the Supreme Court directed as under:
- 60. TSIIC and the State of Telangana have brought to our notice that the development agreement, on the basis of which Unitech has sought to avail its contractual remedy has not been registered or assessed to stamp duty. Under Article 3.1 of the development agreement, the obligation of paying registration fees and stamp duty is on Unitech. It is well-settled law that the Stamp Act, 189911 is a fiscal measure enacted to secure the revenue for the State, and not to arm the opponent with a weapon of technicality. Unitech’s claim to compensatory payment cannot be defeated on the sole ground of the payment of stamp duty. The development agreement shall have to be impounded and be presented to the Chief Controlling Revenue Authority in the State of Telangana for assessment of stamp duty and to the competent authority for registration. The assessment shall be completed within thirty days. The appropriate stamp duty and registration charges liable to be paid in terms of the determination shall be paid by TSIIC and be deducted from the refund due and payable to Unitech under the terms of this order.
The above direction allowing registration of the development agreement executed in the year 2008 in the year 2021, appears to be contrary to the provisions of the Registration Act and likely to cause confusion.
Non-registration and insufficient stamping: Distinct implications
The Court has treated the procedure for registration of an unregistered document relied upon before a court, akin to the procedure applicable to an insufficiently stamped document. In case of an insufficiently stamped document, the relevant legislations expressly provide for procedure for impounding and payment of deficit stamp duty and penalty on insufficiently stamped document. For such impounding and assessment of deficit duty and penalty, no time limitation (similar to S. 23 and 25 of the Registration Act), is prescribed.
Pertinently, the Stamp Act is a fiscal legislation with an object to collect revenue in the form of stamp duty on specified transactions. In order to protect the revenue, it provides for exclusion of proof of any transaction covered by a document which is not duly stamped till stamp duty is levied and paid. Thus, no time limitation is prescribed for impounding the insufficiently stamped documents and for collection of duty/penalty thereon. On the other hand, the Registration Act seeks to protect public and prevent fraud by conservation of evidence, assurance of title and publicity of document. Permitting registration of a document any time even belatedly may be counterproductive and would defeat the said objective.
Though the direction for belated registration appears to qualify as per incuriam, a clear statement of law by Supreme Court would resolve potential confusion.
† Advocate, Ramanashree Chambers, Bangalore.