Indian Registration Act

[Cites 168, Cited by 0]

Law Commission Report

Indian Registration Act

C(")._1'_~Il-'*'I DENTIAL

LAW COMMISSION
OF INDIA

THIRTY-FOURTH REPORT

INDIAN REGISTRATION ACT, 1908

SEPTEMBER 1967

GOVERNMENT OF INDIA Q MINISTRY OF LAW

CHAIRMAN,

Shri P. Govinda Menon, LAW COMMISs10N,
Minister of Law, 5, _]or Bagh, New Delhi-----3.
New Delhi. December 15;, I967.

MY DEAR MINISTER,

I have great pleasure in forwarding herewith the 34th
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 up, 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) 83rd meeting of the Commission on 22nd ':0 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.

(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--]aw was
studied afresh, and the views of State Governments, High
Courts, Ofﬁcers 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

Mulla (Ig63)=Mu11a, The Indian Registration Act (I963).

REPORT ON THE INDIAN REGISTRATION ACT, 1908

CONTENTS
5 UB]'ECT--1'I/IATTER PAGE
Genesis of the 'Report . . . . . . . . 1
'Scope of the Report . . . . . . . . 7 1
Comments :considered . . . . . . . I 1
aExemption__for Government . . . . . . 1
Short title . . . . . . . . . . I
-Clause I (2) . . . . . . . . . . 2
'Clause 2 (1) " addition " . . . . . . . . 2
Clause 2 (2) . . . . . . . . . . 2
Clause 2 (3) . . . . . . . . . . 3
-Clause 2 (5) . . . . . . . . . . 4
-Cllmae 2 (6) . . . . . . . . . . 4
'Clause 2 (7) . . . . . . . . . . 5
(a) Standing timber . . . . . . . . 5
(la) Fruit and juice . . . . . . . . 7
8

:L.'.1a11sr.~ 2 (B)----

Existing '°°"°--''. .. - ,.
I2 (GA)---Deﬁn1t|on of India n . . . . . . 9

-Clause 2 {9}-

"Lease " . . _. . . . . |.. . . :0
Clause 2 (10)-
f 5" Minor " . . . . . .. « 4 . . A 1;
-Clause 2-

" Movable property" . ! . . . . . . J.

_{OmiLtcc1 in 6th Report) [ :2

(Vi)

SUBIHCT-MATTER "G"
Clause 2 (1 t)-
"Pnucribed." (Nut) . . . . - - - - » *3
Clam: 2 (I2)---
" Representative" . . . . . . - - - 33
Clause 2--

NEW points . . .' . . . . . . . I5
Clause 3 (1)01)-.

Inatrumamts requiring registration under any law for their validity :5
Clause 3 (1)02)-
Non--testarnentary instruments generally . . . . . 16
Clause 3 (I) (c)---

Leases . . . . . . . . . 17
Clause 3 (I)(d)-

Assignments of decrees . . . . . . . 13
Clause 3 (1)-

Hxplanations . . IS

Omission of section 17 (I)(c) . . . . IS
Clause 3 (1)-

Ncw points . . . . . . 19
clause 3 (2) (a) . . . . . . . 19
clause 3 (2)05) . . . . 19
Clause 3 (z)(::}--

Point regarding receipts extinguishing mortgage 20
Clause 3 (2)61)-

Exemptton for oounterpatt of alease . 22
Clause 3 (axe) and clause 3, (t)?E.xp1. (ii) 26

Clause :|(:a)Cf)-ﬂ

ucct'ee,1,'pla.int, etc.,'_pf [which cnpica are to he sent under
cIausc'j42 . . . .

DEW

Mi)

.4...

SUBIBC1'-MATTER PAUE
Clause 3 (3)---

Adopliﬂﬂ . . . . . . . 23

Deeds of adoption . . . . . . . . 3°
Claus: 3-

(New points)--

Wills . . . . . .. . 3!
Clause 4 . . . . - - - 31
Clausc 5-

Documcnts in other lang-uagcs - . 0 - - 32
Clauses 5 to 7--

Suggestcd standard form to be signcd by thc cxccutant 33
Clause 6-

Point for photostat copies . . . . . 33
Clause 7(1)---- 34
Clause 7 (2) and (3)-

Description of property . . . .. . . c 34
Clause 7 £4)-

Copies of maps to accompany documcnts . , . . 35
Clams: 3 ('-0--

Time for presenting documents . . . . . . 3?'
Clause 8 (2)

Period of wills . . 38
Clause 9--

Documcnts executed byfsevcral pcrsons in different times . 38
Clause 10-

Fin-: for delay in presentation . . 39
Clause 11-

Documents executed outside India ' ' o 4':

Clause I2 (1)-

Place of prssentation . . . . . . . . 41

SUBJECT-NIATTER

Other pOin1S--

Verbal changes .

Conclusion . x . . ' . . . .
EH':-_ct of proposed change " . , , _

Analysis . . . . . . .
-Clause I2 (2)-----

Place of presentation of will or authority to adopt

Clause 12 (3)-
Residual Provision for place of registration _

Clause 12 (4)-

Definition of " notice" contd. . _ _
Clause 13 . - - . . .
Clause 14. . . . . . .
'Clause 15 (:2) (1') - - . . .

Clause 15 (6) - - - .
Clause 15 (6)

Clause 16 . . . . . . .
Clause 16 (1)(c)

-Clause 16(2) and (3)

Clause 16 (4) - - -
Clause 17 .

Clause 18 (1)

Proviso . . .

'Clause 18(2) and (3) - - - o .

Clause 18 (4)--

Return of documents for non-appearance .
Clause 19(1)) . . - - - . .
Clause 19 (C) '. . . . . .

Clause 19-

New point . . . .

PAGE

5'0

. 58
59

60
61
61
61
. 61

(ix)

Sun}I:cr--MA-rrnk Pam;
Clause 20 (I) (a) and (15) (ii) . . . . . . ., 64
Reading over document and proof of [attestation . . . 6;
Clause 20 (2) . . . . . . . . . 68
Registration on admission of execution . . . . .. 68
Clause 20 (3) . . . . . . . . . 69
Clause 2I(1)-- . . . . . . . . . 69 '
Pro:<:dure on denial oﬂexecution . . . . . . 69
Clause 21 (2) . . . . . . - . - 72
Clause 22(1) . . . . . . . . .. 72
"Clause 22(2) . . . - - - - 72
Clause 22(3) . . . . . . . . . 73
Clause 22(4) . . . . . . . . . 73
Clause 22(5) . . . . . . . . . 73
Clause 22(6)(b) - - - ~ - - - - - '.73
Clauses 2x and 22 . . . . . . . . 74

(Omission or alteration of
sections 7: to 76).

Clause 23 . . . . . . . . . . 74
Clause 24. . . . . . . - 75
Clause 25 . . . . . . . . . . - 75
Clause 26 . . . . . . . . . . . 76
Clauses 27-23 . . . . . . . . . . 77
Clause 29(1) . . . . - - - - - - 7?
Clause 29(2) - - ° ' - - * v - - 7?
Clause 30 . . . . . . . . 77
Clause 32 . . . . ~ - - - - - 77
Clause 33 . . . . . . . . . . - 77
Clauses 34-35 . . . . . . . . . . 78
Clauses 36(I)(3) and (4') - - - - - « - - 73
Clause 35-

Nﬁw r o s In m an - n a u

(X)

Sunjncr-MA'rran PAGE

Clans: 37 . . . . . . . . . . 78
Clause 38 . . . . . . . . . . 79
Clauses 39 and 40 . . . . . . . . . 79
Clams: 41(1) . . . . . . . . . . 8:
Clause 41(2) . . . . . . . . . . 81
Claus: 41--'

New point . . . . . . . . . . 3:.
Clause 42(1) . . . . . . . . . . 8:
Clause 42(1) and security bonds . . . . . Sﬁ
Clause 42(2) . . . . . . . . . . Sfi
Clause 42(3) . . . . . . . . . . 86
Claus: 42(4)

(New) . . . . . . . . . . . 87
Clause 42-

New point . . . . . . .. . S8
Clause 43 . . . . . . . . . . 83
Claus: 44(1) . . . . . . . . . . 89
Clause 44(2) . . . . . . . . . . 9)
Clause 45 . . . . . . . . . . 90
Clause 46 . . . . . . . . . . 9:-
Clausc 46-

New point . . . . . . . . . . 9:
Clause 47(1) . . . . . . . . . . 9:
Clause 47(2) . . . . . . . . . . 91
Clause 48

(New) . . . . . . . . . . . 91
Clause 48(3) . . . . . 93
Clause 49(1) . . . . . . . . . . 93
Clans: 49(2) . . . . . . . . . . 93

Clause 50 . . . . . .. . . . . 93

(Ki)

SUBJECT-NIATTER PAGE

Clause 51(1) . . . . . . . . . . 93
Clause 51(2) . . . . . . . . . . 93
Clauses 52 to 54 . . . . . . . . . 93
Clause 55 . . . . . . . . . . 93
Clause 56 . . . . . . . . - . 94
Clause 57 . - . . . . . . . . 94
Clause 58 . . . . . . . . . . 94
Clause 59 . . . . . . . . . . 94
Chase I50 . . . . . . . . . . 94
Clause 61 . . . . . . . . . . 94
Clauses 62, 63 . . . . . . - . - - 95
Clause 64 . . . . . . . . . . 95
Clause 65(1) . . . . . . . . . . 95
Clause 65(2) - . - - - - - - - - 97
Clause 65(3) . . . . . . . . . . 97
Clause 65(4) . . . . . . . . . . 97
Clause 66 . . . . . . . . . . 97
Clause 67 . . . . . . . . . . 93
Clause 63 . . . . . . . . . . 93
Clause 69 . . . . . . . . . . 99
Clause 70-

New point regarding
licensmg of document

writers . . . . . . . . . 99
Clause 7o(c) . . . . . . - - . . I00
Clause 71 . . - - - - - - - - 100
Clause 72 . . . . . . . . . . mo
Clause 73 . . . . . . . . . . mo
Claus: 74 . . . . .. . . . . . I01
Clause 75 . . . . . . . . . . 10:
Clause 76(1) . . . . . . . . . . ma:

Clause 76(2) (c) and (I1) . . . . . . . . I02

(xii)

SUBJECT-.N[AT'I'ER

Clause 76(2)(h)--

New point . . .. . . . . . .. .

Clause '76(2)(i) . . . . .. . '< .
Clause 76(2)-
Other points . . . . . . . - --

Clause 76(2)-
New point regarding

document writers . . . . . . . .
Clause 77-
Exemption for Government . . ' . . . .

Clause 78 . . . . .

Omitted Sections . .

Omitted section 1-,-(1)(c) . . - » ~ . . .
Omitted section I7(z)(iij . . . . . . . .
Omitted section I7(2)(m') . . . . -

Omitted -section 23A . . .

Omitted section 70 . . . . . . . .
Omitted sections 72 and 7

Amendments in the Code

of Civil Procedure . . . . . . . .
Suggested new provisions . . . . . . . '
Enquiring as to title . . .

Registration of documents
opposed to public policy . . . . . . .

Copying by" photography . . . . .
Transfer of proceedings

Remission of fees . .

Registration by Panchayats .

Later suggestions---

(0 Section 30(2)

(ii) Section 2(1J--deﬁ11ition
of "addition" ,

i ...............

PAGE

I02

I02-

102
103
m3
103
I04-
105
ms
106

106

m6
[07

-1.37

':07
1:08
1:03
1 O8

108

11')

III

(xiii)

SUBJECT-MATTER

PAGE

(iii) Section 34--and foreigners .

(£11) Section 67A(New)

Recommended changes

Appendix .

Draft amendments to the

existing Act .

APPENDIX

III
III

114'.

114.

IIS

Report on the Indian Registration Act, 1908

1. The circumstances leading to the preparation of this Gcncsis Of
Report may be brieﬂy stated. The Law Commission had 'he R°P°"
submitted to the Government of India a Report1 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 Scope of
our study beyond and behind the Sixth Report, as, without the R°P°"
such study, it was not possible to appreciate many of the
points 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
"comments" were grouped clause-wise, and we have fol-
lowed that course in this Report, except in the later por-
tions3 of this Report where it was impracticable to do so.

3. We now proceed to examine in detail, clause by clause, Comments
the comments received?' on the earlier Report, and to in-considered
«dicate our recommendation thereon.

A suggestion has been made for exempting the Govern~ Exemption
ment from the operation of the Act. This will be considered for Govern-
lateri. 'mm

A suggestion has been made that the title of the Act Shorttitle
should be changed to the "Registration of Documents" Act.
We do not accept the suggestion. It is true, that the object

I. 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.

Glailse 1(2)

Clause 2(1)
---"addition"

Clause 2(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 change'.

Existing section 1(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
in the Sixth Report. The reason given for the deletion of
this proviso in the earlier Reporta, was:---

"We are of the opinion that there is no reason why
State Government 'should be given the power to ex-
clude 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-ﬂung, 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 iorce in this objection, and we recommend
that the existing proviso should be retained'.

(a) Deﬁnition of "addition" proposed in the Sixth Re-
port may be accepted', so far as the change regarding
married women is concerned?

(1)) 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 made.

(No comments have been received on the deﬁnition of
"addition" as proposed in the Sixth Report).

The earlier Report had proposed a new deﬁni1:ion---
"affect immovable property"". A suggestion has been made
to add the word "intends"' in the proposed deﬁnition in

I. Any recommendations for making minor changes are subie-ct to the
view expressed in this Report as to whether the Act should be re-enacted
O!' DOC.

2. Sixth Report, page 8, paragraph 2.0.

3. See Sukrfti Bale v. Hemant Kumar, A.I.R. I957 Assam I53, pagraraph
6, as to the proviso.

4. Sixth Report, page 9.

5. See section 2(1), as proposed to be amended.
6. Sixth Report, page 9.

7. Sixth Report, page 40.

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 isl, that semi-illite-
rate document-writers in the villages draft documents very
badly, (so that the intention of the party is not reﬂe-cted in
the document). In such a case, the word "purports" may
not be adequate and the addition of the word "intends"
would ensure that the intentiions of the parties are taken
into account. This argument cannot be accepted. The pro-
posed deﬁnition is merely a formal one; the earlier Report"
explained that the object of the deﬁnition was to avoid re-
peating in every section the long clause "which 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 diiﬁcult to determine, 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 "aﬁect immovable property" is required. It will be
more appropriate to retain the describing words in existing
sections 17 (1) (b) , 18 (a), etc. The deﬁnition need not,
therefore, be added.

The deﬁnition of "book" in section 2(2) is, at present,
inclusive only. Clause 2 (3)----deﬁnition of "hoo1<"--proposes
the addition" of the words "means 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 the 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.

2. Sixth Report, page 73.

3. Sixth Report, page 40, clause 2(3).

4. As explained in Sixth Report, page 73.

Clause 2(3)

Clause 2(5)

Clause 2(6)

change proposed by the Sixth Report is to he 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 section1 dealing
with register books. The change may be dropped.

Clause 2(5), corresponding to existing section 2(5),
deﬁned "endorsement". A suggestion has been made, that
the deﬁnition should cover an entry in writing made by
the registering officer on a sealed cover deposited under the
Act, as the registering authority has to make an endorse-
ment on covers 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(1) in the Sixth
Reportwunder 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)~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 Report', 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.e..
signed. sealed and delivered by the executant.

The deﬁnition is important for the sections dealing with
presentation of documents for regisirati0n--f0r 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

. Existing section 51.

. Existing section 81.

. See section 2(5), as proposed to be amended.
. Sixth Report, page 73.

-F-uatur-u

execution,'-3 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 a document presented.
for registration, means execution by a person who has
understood the contents thereof'.

Regarding clause 2(7)-----deﬁnition of "immovable pro~-chum gm
perty"----corr'esponding to existing section 2(6), several points
have been made, 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 timbe7'----Under the existing sectionlﬁtanding
standing timber, growing crops and grass are excluded "Nb"
from "immovable property". Under the proposed pro-
vision, they are to pee 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 conﬂict 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-
ber. It 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 "immovable 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 unqualiﬁed

r. of. the discussion in Mulla, (I963), Page :48, 13th line and page I49.

2. See also the review of case-law in Kisknu V. Moron', (I963), 65 Born.
L.R. 578, 582, 584,--holding that --"execuu'on" in section 3; zonﬂgteg.
knowledge of contents.

3. To be Carried out only if the-whole Act is re-enacted.

4. Sixth Report, page 9, paragraph 21(3), text corresponding to foot-
notes I and 2.

6".

exception; it should be classified as movable and immov-
able according to permanency and continued growth for
3 P€1'i0d. stability of the tree, prejudice to the soil, etc.
This, 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 Proprietary, 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 susitenance
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 observed":

'(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".

* * is $-

'Therefore, "standing timber" 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 stil1 standin-L It
not, it is still a tree because, unlike timber, it wi'_'. con-
tinue to draw sustenance from the soil.

'(31) 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 "standing
timber". But the amount of nourishment it takes, it it
is felled at a reasonably early date, is so negligible: that

l 1'. Shantabai v. State of Bombay, (I959) S-C.R- 265; A-I-R. I958 S.C'.

532, 537, paragraph 33-
2_ Paragraphs 29 to 31 in A.I.R.

it can be ignored ror all practical purposes and rnough,
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 commonsense. It grew empiri-
rally 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 lViulla's Transfer of Property Act, (4th 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
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".

'The change proposed in the earlier Report is not,
therefore, necessary now, and can be dropped.'-9

(b) Fruit and Juice ._-fhc earlier Report proposed
to exclude, from "immovable property", "fruit upon and
juice in trees whether in existence or to grow in
future". The reason given was3 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
noted', thatcven 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 Baijnazh V. Ramadhan, A.I.R. 1963 All, 2I4(F B).

1.. Mulls (1963), deals with the matter at pages 6-7.

3. Sixth Report, page 9, paragraph 21(3).

4. cf. Sixth Report, page 74, top, note relating to draft section 2(7).

Fruit 21: ll
Juice

Machinery

grow in future would automatically create a right in the
land itself, as the land would provide further nuurirnent
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 held1 that
fruits to grow in future are also movable property. It
has also been heldg 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.3

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 Report' 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".

(cl Machinery---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 attach-
ed to the earth is sold without the land and is treated
as immovable property. The purchaser has to pay stamp

I. Rafa Dem" v. Muhammad Yczkub, I.L.R. 47 All 738; A.I.R. 1925 Al;-«

411 (Mango crops).
2.g'anoo V. Hucha, (Bengal), (1 868) r2W.R. 366; cited in Mulla, (r953_),._
page 1 .

. Mulla, (1963), deals with the subiect at page 16.

. Sixth Report, page 9.

. Raja Dem" x. Yakub, I.L.R. 47 A11. 738; A.l.R. 1925 All. 4rr.
. See section 29), a proposed to be amended.

. Sixth Report, page 9, paragraph 2I(B).

"~IU\lII-JILL-D

duty on the machinery as well as on the land, to get.
the document registered. To avoid this hardship, this.
clariﬁcation was proposed. Now, divergent comments
have been received on this change. On the one hand,
it has been suggested, that the proposal to treat 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
in the earth, etc. On the other hand, it has been sug-
gested in some comments, that the words "when dealt.
with apart from land", 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 "permanently fastened,.
etc.". '

We may, by Way of example, refer to the case 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. It 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-
pefty may better be retained in view" of its affirmative
va ue.

The diﬁnition of "India" was retained in the Sixth Clause 2(3)-
Report. But our view is, that the deﬁnition should be --EXisting

omitted? The deﬁnition is derogatory to the provisions of Csggaifggni

tion of
1. Mulls, (1963), page 6, text corresponding to footnotes (h), (i), (j). "India"
2. Cf.Khan Chand V. N'ur Mahamrrzad, A.I.R. 1966 L31-1_ 24;

AL &1!€ipaeict4:i;as not discussed in Molzammad Ibrahim v. N.C.F.T.C.,

4:_ See also discussion relating to clause 3, and relating to omitted section
I7C2)(u)-
5. See section 2(6A), as proposed to be omitted.

the Constitution. The expression "India", 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 "territories to which this Act extends".

The existing deﬁnition of "lease" in section 2(7) says,
that it includes a counterpart, lcabuliyat, an' Lindertaking
to cultiva-te 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 fo11ows:---

' "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". We are not how-
ever in favour of this change particularly if the whole
Act is not to be re--enacted.

(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 Council' 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 reaﬁirined the View expressed by the
Privy Council.

(iii) The existing deﬁnition includes not only a
counterpart. but also a Kabuliyat, an undertaking to
cultivate or occupy and an agreement to lease. The

Clause 299)
--"leasc' '

1'. Mulls, (1963), page 8.

2. Sixth Report, page 10, paragraph 2I(c).

3. Sixth Report, page 10, paragraph zI(c').
(PC4). Hemanza KumcI'i's case (1919), 46 LA. 240; l.L.R. 47 Cal. 485.

5. T'rt"rJem'bai v. Lilabaz', (1959) S.C.R. 833; A.I.R. i959 S.C. 620 (also
stance the meaning of "Counterpart". See page 624 i the A.I.'R.).

11.

deﬁnition proposed in the earlier Report includes only
"counterpart". A comment has been received to the
effect that "counterpart" should not be included, be-
cause the "counterpart" which is to be executed by the
tenant in favour of the lessor does not involve any trans-
fer of property. While this Inay 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 proposed' 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 "Kabuliyat", 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-
ﬁcally, because these docurnents~namely, (i) a Kabuliyat
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 Knbuliyat'.

The result of the above discussion is, that the only point
on which we recommend a change in existing section 2(7)
is omission of agreement to lease".

Clause 2(10), following existing section 2(8), deﬁnes "3_l;-1}-'S€_ ="',3'7'
"minor" as a person who, according to the pB7'S0na,1 low to ' Mm '
which he is subject, has not attained majority. A suggestion

I. Sixth Report, page 43, clause 3(2)(d), and reasons at page 13, para-
graph 42.

2. See discussion regarding clause 3(z)(d).

_ 3. The earlier Report gives no specific reasons for this omis-
SIOIL.
. See discussion relating to counterpart.

. See Mulls, (1963), page 10.

. See Ruitoznji, Registration Act, (I939), page I7, footnote 2.
. See amandment proposed to section 2(7)

-.)O\Ln-ii

Clause 2-
"movable
roperty"
omitted in
Sixth
Report)
Clause 2(1 1)

-- prescri-
bed" (New)
Clause 2(12)

.._. qprE_
Beliltative"

has been made, that there heed 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 secti.o.:~.
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, 1375 (9 of 1875)? That Act does
not contain the whole law of majority. In the first place,
it does not affect the capacity of any person to act in respect
of marriage, dower, divorce, 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.

The deﬁnition of "movable property" should be retained,
though omitted in the Sixth Reportl. Certain additions
may be made therein, as already recommendedi.

The deﬁnition of "prescribed", added by the Sixth
Report, may, if the word "prescribed" is used in the subs-
tantive" sections, he added".

Existing section 2(1) deﬁnes a "representative" as includ-
ing the guardian of a minor and the committee or other
legal curator of a lunatic or idiot. Proposed clause 2(12)
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 minor, or if the minor is
an adopted son, any near relation in the adoptive or natural
family, or, if the minor is a widow, any near-r 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 Report5. A will or authority for adoption can be
presented for registration after the death of the testator or
the donor of the authority. Difﬁculties, however, arise when

I. See discussion under clause 2(7) above.

2. See discussion under clause 2(7) above.

3. This change is thus conditional to the use of the

"prescribed".
4. See section 2(9A), as proposed to be inserted.
5. Sixth Report, page to, paragraph 2r(cl).

expr essio-rr

the donor of the authority is a minor and thus incapable
«of presenting the deed of authority to adopt. S1II11131"1}".
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 registrahon.
Since the improper presentation of a document W35 a Padl-
cal defect rendering the document void, the Report had
enlarged the scope of the present deﬁnition to get over thls
diﬁiculty. (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 the 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 diﬂicult to determine who is a
near relation and who is not.

(b) Secondly, it has been pointed out, that the
win lening of the deﬁnition will involve a 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 be 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 the dissenting note of Dr. Sen Guptal. His view
was, that to allow representation to 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. If at all any
amendment 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 do-facto
guardian may present a document for registrai ion. The
majority report", had rejected this suggestion because
(it the Muslim Law did not recognise a do factg 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 11 of the Hindu Minority and Guardian-
ship Act, 1956' had now provided that such a guardian

1. Sixth Report, page 97.
2. Sixth Report, page 11, top.

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 Sllggestion
regarding de facto guardian. The absence ofapower 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 act by the guardian also.
Another comment suggests an a1ternative----namely.
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;

01'

(ii) retaining the existing section;

OI'

(iii) extending the change proposed ':0 luna-
tics and idiots;

01'

(iv) adopting a substituted provision, for
authorising a de focto 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, I956--Section 8 at seq
there would not be any strong necessity for .2 clari-
ﬁcation on the subject. Therefore, the best course
would be to retain the existing section.

[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 4(5)
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 Cl=*11S¢2_--

been made in the comments. Thus, a suggestion has been N""'P°'"'-"
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, "document" and "instrument" are inter-changeable'.
Not many controversies seem to have arisen on these
expressions, except that there is some conflict of decisions
about letters? A decree, it has been held, is not an instru-
ment".

Even as regards letters, the more recent cases" appear
to regard "letters" as falling within "instruments" it 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 (a) linstrlh
earlier Report proposed a wider provision in its place. to mu?'-'fl 'E'
the effect, that instruments which under any law require regitgltrgtion
registration for giving validity to the transaction effected under any
thereby should be registered. The reason for this change5'*"".f°' . .
Was, that it was proposed to substitute a clause which was the" Vahduy
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 Vvords "for giving validity to the transaction
effected thereby' would lead to a good deal of controversy

I. See j"aha1-ma! v. Tej Ram, (1893) I.L.R. 17, Born. 235, 267.
2. See Mull-a, (1963), page 39,
3. Kalawati. v, ShriKri5hna, A.I.R. I944 Oudh, 49, 53 (F.B.}.

4. See_?agarmad.han V. Official Asrignee, A.I.R. 1931 Mad. I24,
127, 128.

5. cf. Sixth Report, page 12 paragraph 25, and page 74.

'Claus e 3(1)
(b)--Non-
testamentary
instruments
generally

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 17(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, the conse-
quences of non-registration will depend on the terms of the
statute. As regards trusts, see the undermentioned cases}

where these observations occur:--

"Section 5, Trust Act, provides its own sanction
for non-re istration viz. invalidit 2-'"'.
I 5

The proposed Change may, therefore, be dropped.

Another comment received is to the cﬁect that the
following proviso should be added to clause 3(1) (a) 42--

"Prooided that where o. transactio-n can he validly
effected orally or by mere delivery Of possession of
property, instruments recording the terms of such
transaction shalt 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 provision5. No change is recommended, as to this
point."

Clause 3(1)(b), corresponds to existing section 1'?'(l)(b),
and deals with non-testamentary instruments affecting
immovable property of the value of one hundred rupees
and upwards. The minimum limit of one hundred rupees
has been retained, as in the existing section. Comments
have been received to the effect, that in the present con-

1. Govfnd Ram}. Medan Go,-pal, 721-A 76, A.I.R. I945 P.C. 66};-

2 As to Wakfs, sec Mulla, Msharncdan Law, (1961), page 165,
paragraph I87-

3. As to registration required under sections 54, 59, 107 and 123 of the

Transfer of Property Act 1882, see Mulls, Registration Act, (1963), pages
I72-I73, and section 49 of the Registration Act as it now stands.

4. See also article 113' Mr. V.B. Raiu (as he then was} "Amendments to
Registration Act". A.I.R. I953 Iournal 68, 69-

5. See for example, Mulla, (1963),
(3') page 34, "Declare",
(ii) page 49, Acknowledgement,
{iii} pages 40, 42. (Mortgage by deposit of little deeds).

(in) page 53, "Recitals".
(o) page 54, "Admission".

6. See also Ram Razzair v. Parmcmo:-zd,l.I..R. 1946 Lab. 63; A.I.R.

I946 I-'.C. 51.

text of high prices this limit is ridiculously low, and to
give practical relief it should be raised to five hundred
rupees. (One comment suggests its raising to two hundred
rupees).

The existing provision was Considered in the earlier
Report', 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
the present, for the reasons given above.

Clause 3(1)(b)----substitute the words "affect immovable
_p1ope1'ty". This change has to be dropped?

Following existing' section 17{i)(d). clause 3(1)(c) Clause 3(1)
requires registration of leases from year to year, etc., sub- (¢)1ea3=S
ject to the existing proviso" Whereunder 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 eases, compulsory registration of such leases
should be providedfor.

Though 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 11, 12, paragraph 26.

2. See above, discussion relating to clause 2(2).

3. Sixth Report, page 14, paragraph 31
3--109 M of Law.

Clause 3(1)
(d)--AssIsn-
merits of
decrees

Clause 3(1)
--.-Expiansv
tions

Omissioﬂ of
section
1 7(r)(c)

117, were also considered. Moreover, a drastic provision re-
quiring all agricultural leases to be registered would mean
that even such leases from month to month or for a year or
less than a year should also be registered,-«which would be
an extreme position to take. Hence no change is suggested
on this point.

We do not also think it neecssary to increase the limit
of Rs. 50 in section 17(1), proviso.

Departing from existing section 17(1) (e), clause
3(1)(d) provides that assignment of "executable decrees or
orders" need not be registered. A few comments have been
received to the effect, that the existin provision should
be retained. Now, the reason for this c ange, as stated in
the earlier Report', was, that, in the case of executable
decrees o-r orders, the transferee has, under Order 21,
rule 16. Civil Procedure Code, to satisfy the court about
the assignment; the further requirement of registration
Was, therefore, unnecessary, as, even if the assignment is
registered, the court has to inquire into its validity. We
feel, however, that every case of assignment may not go to
court, and even if it goes to court, registration of the assign-
ment may supply good evidence. The proposed change
should, therefore, be dropped.

Clause 3(1) Ea:pia'natio'ns.--The First Explanation to
clause 3(1) is new." It may create difficulties, and should
he dropped. E'xisﬁng'secti0n 17(1)(c) was proposed" to be
omitted.

Clause 3 (1)---Omis-sion of existing section 17 (1) (42).-

-Existing section 17 (1) (C) has been omitted in the ﬁth Re-

port". Its omission was linked up with the proposed exten-
sion of the Transfer of Property Act to whole of India.
Extension of the Transfer of Property Act may, however,
take long time. The omitted provision should, therefore,
be restored. C

The Sixth Report, as an alternative, suggested a. redraft
of section 17(1) (:3), to make it clear that it does not apply
to receipts in respect of transactions already registered.
This is also not necessary, as there is no real conflict of
decisions?

Existing section 1'? (1) (c) may, therefore,

_ _ be restored,
as 'it is.

1. Sixth Report, page 15, paragraph 32.

;. Sixth Report, page 74,- bottom. See Mulla (1963), page 37 for
conflict.

3. Sixth Report, page 13, paragraph 29-30.
4- Sixth Report, page I4, paragraph 30.

5. See Chomroo Soﬁa: v. Stephen, A.I.R. 1947 Pat. 3oo, 3.31, 30;, para.
graphs 8-9 (Reviews Casc--Iav.). '

A suggestion has been made that a deed, lists of parti-
tion relating to immovable property should be registered.
This cannot be accepted. It is true, that in practice ques-
tions very often arise 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 difficulty in applying the principles, yet the
principles are well-establishectl-2 If the document is the
sole evidence of the partition, it is registrable; otherwise it
is not.3

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 now settled by a. Supreme Court
decision, answering the question in the affirmative."

A few points regarding partition have been already dis-
cussed?'

Clause 3(2) (a).--Regarding clause 3(2) (0.) which fol-
lows existing section 17(2) (iii), a suggestion has been re-
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 nature5 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 changes" _made by Sixth
Report are not necessary, and may be dropped.

1. See the Privy Council case of Bageshwari Ciian-an v. jagai-mash Kuar1'
5_9 _I.A._ I30; A.I.R. 1932 RC, 55, 66; I.L.R. 11 Pat. 272, adverting to the
distinction between a more recital of fact and something, which itself creattis
a title. This was a decision on the word "Declared".

2. See also Mulls, (1963), pages 34-35.

3- See, for example, the decisions collected in Paﬂchapagej V, Kappa,
Sendai-am, /i.I.R. 1957 Madras 472., 477 to 481, paragraph I4 er. .i'e.;r., see:
also Mulla, (1963), page 49.

4. Nam' Bai' 1:. Gin: Ba:' (1959) S.C.R. 479; A.I.R. 1958 SC. 706.

5. See discussion under clause 3(I)(a).

5- M""'r1Jf 'r'- Berfiﬂgi (I903) W.N. 153; (1908) 2 Ch. 493.

7- For details see Jowitt, Dictionary of English law, (1919), Vol. 1,

page 580. ' '
8. Sixth Report, page 17, paragraph 37.

Clause 3_-( 1)

New pOl.nts

Clause 3(2}(a)

C1ausc3(2)(b)

Clause 3(2)
(c)-Pyuint

Under existing section 17(2)(xi), any endorsement
on a mortgage-deed acknowledging the payment of

gxdngui, jug the whole or any part of the mortgage-money, and

mortgage.

any other receipt for payment of money due under a mort-
gage, when the receipt does not purport to extinguish the
mortgage, is exempt from compulsory registration. Pro-
posed clause 3 (2) (c) omits the words "when the receipt
does not purport to extinguish the mortgage". The result
of this change would be, that even a receipt extinguishing
a mortgage---(:r rather, "purporting" to do so--would be
exempt from compulsory registration. The reason for this
change, as explained in the earlier Report', was, that a
mortgagee may while receiving the last payment due on
the mortgage or any sum lesser than the mortga e of debt,
issue a receipt acknowledging the discharge of t le debt in
full by such receipt. "There is no reason why the receipt
should become cornpulsorily registrable merely because it
also states the fact that by the payment recited therein
in the debt is ﬁnally extinguished". A person having
notice of the registered mortgage (it was stated) would
naturally inquire whether it is extinguished or not. More-
over, it is not the receipt which discharges the security, but
the fact of the discharge of the debt. Hence it was consi-
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
to be shown as mortgaged even after it is extinguished by
acknowledgment of receipt on the deed, and the sugges-
tion has been made that the existing provision should be
retained without change. So far as the reasoning on
which this particular comment is based is concerned, it
may be pointed out that even now, in the absence of a re-
ceipt which purports to extinguish the mortgage, the pos-
sibility of the property continuing to be shown as mort-
gaged would be there.

The matter, however, is not so simple as it seems, and
it seems desirable to state the history of the section and
the interpretation placed on it by courts. As explained by
Mullag, this provision was inserted for the first time in the
Act of 1877 by the Amending Act 7 of 1886, and the objects
of the amendment was negative, namely, to supersede the
decisions to the effect that a mere receipt for payment of
money under a mortgage reuired registration even though
it did not extinguish the mortgages interest in the mort-
gaged property**. Thus, the main purpose of the amend-
ment of 1866 was to remove such receipts from compulsory
registration.

I. Sixth Report, page 18, paragraph 41.

2. Mulla, (1963), pages 96-97.
3. fowan Ali v. Hasa M'aZ'_. (I886) I.L.R. 9 All. 108, II4 (F.B.)

However, in the actual working of the provision, consi-
derable case-law has arisen, which shows the diﬁiculties
felt in its application'.

Three classes of receipts have come up for consideration
before the courts.

(i) A receipt, bare and simple, Without any reference
to extinction of the mortgage. This does not at present,
require registration, and the proposed clause preserve that
position. This is what may be called a "bare receipt".

(ii) A document in which a usufructary mortgagee
recites that his claim has been discharged out of the
usufruct and returns possession to the mortgagor. This
also does not require registration", as it is only a recital
of a completed transaction.

(iii) A receipt which on the face of it acknowledges the
payment of the amount on account of extinction of the
mortgage. This at present requires registration, but under
the proposed provision, it will not.

The ﬁrst kind of case presents no difficulty'.

As regards the second class of cases, registration should
not be complusory, and it is mainly this kind of cases which
was referred to in the earlier Report5.

So far as the third class is concerned, registration is
at present compulsory under section 1'?(1)(c)°.

The real test is the extinction of the mortgage, and this
test is embodied in apparently clear words in the existig
section. But, in View of the confusing case-law that has
gathered? round the existing provision it is desirable to re-
emphasise this test. and, with such re--ernphasis, retention
of the existing provision would not be contrary to the recom-
mendation made in the body of the earlier Report.

Two other points arise, though they have not been
considered in the ealier Report. The first is about extinc-
tion oi-a port of the mortgage. Such a receipt should be
cornpulsorily registrable; but there is some conflict of case
law" on the point, a- clariﬁcation is desirable. The second

. cf. Mulls (1963), pages 97, too.

. cf. Muua, (1963), page 97.

. cf. the case in Mulla (1963) page 99, footnote "(tr)".

. sf. Vevﬂazyyar' v. Venkayasubhayya, (I881) I.L.R. 3 Madras 53

'F"WN>-I

' 5- Sixth Report, page 13, paragraph 4:, 7th line in the paragraph,

6. See discussion in Tozaram v. Harris}: Chandra, A.I.R. 1937 N-sgpu
4.02, 405. (Vivian Bose L).

7. See, particularly, Mulla (1963), page 93.
3. Mulls, (I963), page roo

Clause 3(2)
(d)--Exem--
ption for
counterpart
of a lease

point is , whether the words "when the receipt does 1101:
purport", etc., are to be read with "any endorsement" also.
There is some conﬁict on this point also and the opinion ex-
pressed by Mullal, that the last lvords of the clause apply
also to an endorsement, appears to be correct and should
be codiﬁed.

We recommend? that in the light of the above discus-
sion, the existing section be suitably re-drafted.

Clause 3(2) (d) proposes a provision to the effect, that
where a lease is registered, its counterpart is exempt from
registration. This was proposed for reasons" which may be
thus Summarised. In areas to which the Transfer of Pro-
perty Act does not apply, a lease may have a counterpart.
If the lease is registered, there is no reason why the counter-
part should also be registered. The proposed adoption"
of the deﬁnition of "lease" from section 105 of the Transfer
of Property Act would not (it was stated) make any diﬁe-
rence, because the Report did not propose extension of the
procedure of executing a lease (as contained in section 107
of the Transfer of Property Act) to all leases.

This recommendation was subject to the dissenting
note of Dr. Sen Gupta5. Since some comments have ex-
pressed agreement with his views, we shall first discuss
his points. His objection was, that since the deﬁnition
of "lease" in the Transfer of Property Act had been adopted,
and since, under that Act, a lease must be executed
by both parties, there cannot be a counterpart to
such a lease, though there may be a duplicate copy, and
the proposed clause should be dropped. In his view, by the
force of the deﬁnition of "lease" as proposed in the Sixth
Report the deﬁnition in the Transfer of Property Act must
be deemed to be incorporated in the Registration Act, and
the fact that the Transfer of Property Act does not apply
would be absolutely immaterial.

Now, the existing Act (or the proposed Bill) (in the Sixth
Report) does not anywhere say that a lease must be execut-
ed in a particular manner. The nature of the document to
be regarded as a lease is the only topic on which a borrow-
ing is made from the Transfer of Property Act. If a docu-
ment falls within "lease" as known to the Transfer of Pro-
perty Act, (i.e., brieﬂy, a transfer of a right to enjoy immov-
able property for a certain time or for perpetuity in con-
sideration of price, money, etc., or other thing of value),

. Muila, (I963), page 93,

. See amendment proposed to section 17(2)(x:').
. cf. Sixth Report, pages 18-19, paragraph 42.
. See clause 2(9), in the Sixth Report,

5. Sixth Report, pages 95-96.

Jagujhll-1

then it becomes registrable. The further provision in sec-
tion 107 of the Transfer of Property Act, 1882.

(i) certain leases can be made only by registered
instruments;

(ii) other leases can be made by registered instru-
ments or by oral agreement and delivery of possession;

(iii) where a lease is made by a registered instru-
me-nt, the instrument or, (if more instruments, than.
one, each instrument) should be executed by the
lessor and the lessee--does not become extended to all
areas to which the Registration Act applies.

Therefore, in other areas, it is still possible to enter into
a lease by virtue of an instrument not signed by both par-
ties. If, in such a case, the lease has been registered, the
counterpart should not require registration. It must also
be noted, that the deﬁnition of "lease" as proposed includes
a counterp-artl, and, therefore, in the absence of an exempt-
ing provision, counterparts would require registration.
Hence, theoretically the change proposed in the Sixth
Report is not objectionable;

There are, however, some practical consideration, to be
borne in mind. It would seem, that "counterpart" means a
duplicate? Strictly speaking, the counterparts are two
pieces of one entire parchment or paper on which the con-
tract is engrossed in duplicate, and the two parts together
constitute a contract by deed. But, in common parlance,
the document signed by the grantor is called the original,
and that signed by the party accepting the estate, is called
the counterpart. Now, it is true, that in the case of a lease
governed by the Transfer of Property Act, both the parties
have to sign the lease, so that, the need for a counterpart
does not arise. However, in cases not governed by the Trans-
fer of Property Act, it is possible to have counterparts of

eases.

The distinction between a "counterpart", on the one
hand, and a mere undertaking by the lessee, on the other
hand, would seem to lie in this,--that, in a "counterpart"
the text is the same as in the original, while in the
"undertaking", the text signed by the grantee or lessee
will be different from the text signed by the grantor or
lessor, being expressed in a form appropriate to convenants:
meant for signature by the lessee.

Theoretically, therefore, the proposal in the Sixth
Report cannot be objected to. It is, however, not possible

I. See clause 2(g).
2. See the extracts from Stroud and Iowett, infra.

to anticipate what practical complication: the new exemp-
tion might create. It should also be noted, that the exaet
meaning of the expression "counterpart" may n-ot be
easily ascertainablel, and there is a likelihood that the
proposed exemption may be construed as exempting many
other documents which are not counterparts.

Stroud" gives the following deﬁnition of "counts-rpart"----

"{2} The counterparts, or counterpanes, of an in-
denture, are the two pieces of one entire parchment (or
paper) on which the contract between the parties is
engrossed _in duplicate, the piece sealed by one party
being delivered to the other. The two parts put, or con-
sidered as put, together constitute the contract by
deed. In common parlance, however, the counterpart
or counterpane, sealed by the party from whom the
estate, &c., moves, is called the original and the coun-
terpart or counterpane, sealed by the party accepting
the estate &c., is called the counterpart. When both
counterparts, or counterpanes, are sealed and deliver-
ed by each party (which of late years has been fre-
quently done) they are commonly spoken of as "dupli-
cate originals" (2M. & G. 516, n.b.).

"(3) In the schedules to the Stamp Acts of 1'87!)
(33 and 34 Vic., c. 97) and 1891 (54 8: 55 Vic. c. 39)
"duplicate or counterpart" of an instrument is used
as distinguished from the "originals"."

Mullas in his commentary on the Stamp Act, gives this
deﬁnition of "counterpart"-

"Counterpcrrt--The counterparts of an indenture
are the two pieces of one parchment on which the deed
is engrossed in duplicate. The piece executed by one
party being delivered to the other so that each may
possess an example of the deed. The two pieces to-
gether constitute the deed hut generally the part exe-
cuted by the party who is the obligor, grantor, cr from
-whom the estate moves is called the original and the
other the counterpart. Under section 4, however, the
parties may determine for themselves which is the
original and which the counterpart or duplicate.

"The counterpart is as eﬁicacious as the original but
a counterpart stamped under this article would not
be admitted in evidence unless it were endorsed under
section 16 or unless the orig-'m.al were produced to show
that it was duly stamped".

1. Sea discussion above.
2. Stroud, Iudicial Dictionary (1952), Vol. 1, page 395.
3. Mulls, Stamp Act, (1950), page 199.

J owitt states1----

"Counte-rpart, the corresponding part or duplicate;
the key of a cipher. Whe-n the several parts of a deed
(as is almost invariably the case with the lease) are
interchangeably executed by the several parties, that
part or copy which is executed by the grantor is
usually called the original, and the rest are counter-
parts. If a lease- and counterpart differ, the ordinary
rule is that the lease prevails, but the rule may be
departed from if the mistake is clearly in the leasei'.
The lessee cannot Without agreement be made to pay
the costs of the counterpart".

Under section 2(16) (b) of the Indian Stamp Act, 1899,
a lease includes a Kabultyat, etc., but not a counterpart

of 3; lease. A counterpart is chargeable under article 25»,
of the Indian Stamp Act, 1899'.

It may be noted by the way, that the practice of only
one person (to. the tenant) executing a document, or the
landlord executing a document and the tenant also exe-
cuting a Kabuliyut, is not a rare one, as would appear
from the numerous cases relating to rent deeds?

Incidentally, if a change is made in the deﬁnition of
"lease", it will be necessary to make a consequential
change here, so as to exempt documents besides counter-
parts t.e. Kcbultyat, etc.

Another comment received is to the effect that since
"lease" as deﬁned includes counterpart, registration of a
lease will require registration of the counterpart also,
and, therefore, the provision exempting a counterpart is
inconsistent with the deﬁnition of lease. This may be
answered by pointing out, that it is for this very reason----

namely, to avoid double registration-----that the exemption
is introduced.

A point has further been made, that in areas where the
'I'ransfer of Property Act is not in force, it is necessary
that each counterpart should be registered, so as to provide
information about leases in those areas. This overlooks
the fact that the exemption is operative only where the
lease has itself been registered. If the lease has been

registered, it would itself provide, the necessary
information.

1:. Jowitt, Dictionary of English Law, (1959), Vol. 1, page 513.

2. Bur-chell V. Clark, (1876) 2C.P.D. 88; Matthew; v. Smallwood
(rgro) I Ch, 777.

3. Re Negus, (I895) I Ch. 73.
4. See Mulls & Pratt, Indian Stamp Act (1963), page 266.
5. See Mulla, Transfer of Property Act, (1966), page 658, under "Rent
notes", and page 675 under "By both the lessor and the lcassee".
6. See discussion relating to clause 2(9)

Clause 3(2)
(c) and
Cfausc 3(1)

Explanation
(ii)

A new point has been made in one of the comments,
suggesting the compulsory registration of documents re-
ferred to in existing section 17 (2) (V; and existing section
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-
gistered, and in particular, a document purporting or
opersting to eﬁect a contract for the sale of immovable
property does not require registration merely because it
recites payment of earnest money or purchase-money,
etc. Now, it is stated in one of the comments that trans-
actions in the nature of agreements to sell, re--sell and re-
purchase are entered into in the following circumstances.
An ante-dated agreement (it is stated) is used to avoid
stsrnp- duty on sales, by»-

(i) ﬁrst having a sale deed drawn up for a nomi-
nal amount;

(ii) then executing an unregistered agreement to
repurchase or sell; and

(iii) then executing a ﬁnal release of the agree-
ment to repurchase for a substantial consideration.
The real consideration for 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 the final docu-
ment as a "release" and by making use of the unregis-
tered document as a ground for the release. Such
documents should, it is said, he made (compulsorily)
registrable so that three beneﬁcial results would

21151183 ---

(a) frauds on the public, who may enter into
a contract for the purchase of property in respect
of which an agreement to sell already exists, may
be prevented;

(b) suits for speciﬁc relief would be "brought
down;

(:2) the revenue will beneﬁt.
These beneﬁts, it is stated, will more than compensate

for the additional expenditure to the registe-rinf public. It
2

has, therefore, been suggested, that clause 3 ) (e) and
clause 3(1), Explanation (ii), may accordingly be c1elet~
ed.

The earlier Report' 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 oi the same transaction. The matter, however,

1. Sixth Report, page 17, paragraph 38.

hears closer examination at length, and the following
points should be noted:--

(1) As would appear from the history of the provi-
sion', 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 of decisions holding
that such agreement created an interest in land and
would not fall within the genera1 exemption, a
speciﬁc provision exempting contracts for the sale of
immovable property was made, which is existing sec-
tion 17(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 repurchase 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 repurchase
can constitute t mortgage".

For these reasons, no change in the law is recom-
mended on this point.

Existing section 1'?(2)(vi) to 17(2)(xa), exempt from C1aru5e3£2)
registration decrees or orders of court (except in certain ('?.'D'="'°'3'
cases}, grants of immovable property made by the Gov- §fa$f,'iCe}:c"
ernment, instruments of partition and other orders passed copies are
by certain public servants. The Sixth Report proposed to to be sent
replace this provision by a general exemption in clause Egg: new
3(2) (f), and that general exemption, referred to any 42'
decree, etc., instrument, etc., certiﬁcate, etc., of which

copies are required to he sent to the Registering officer

I. See Mulls, (1963), pages 74-75.
1. See sections 40 and 54, Transfer of Property Act, 1882.
3. This is discussed in Mulls, (1963), pages 38-40.

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 1;he pre-
Eertitfirurpose, it is not necessary to examine them in
e an .

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 a 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 be 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 1'? (1) (b) and (c)
refers only to non-testamentary instruments and since a
decree or order is not said to be a non-testamentary 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.
It was sufficient 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 1'."(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 lat.er5.

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 3(3), following existing section 17(3). provides
Adoption that authorities to adopt a son, not conferred by a will and

I. As to the reasons for this change, see the Sixth Report, page 7, (Dis-
cussion, relating to section 89), page 3} (paragraph ror), pages 17 and I8,
(paragraphs 39-40), and regarding section 17(2), pages 75 and 80.

2. Sixth Report, page 17, paragraph 39.
3. The history of the provision is discussed in Mulls, {I961}
pages 83, 85.
4. See comments under clause 42(1).
5. To cut considered under clause 42(1).

executed after the ﬁrst day of January, 1872, 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. Sen Gupta's dissenting note.
His point of View Was, that under section 8 of the Hindu
Adoptions and Maintenance Act, 1956, a widow does no":
need the authority of anybody else to adopt. Hence the
provision in section 17(3) of Registration Act should be
deleted. The view taken by the majority of the Members
of the Law Commission" was, that the position did no':
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 ot 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 in.
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 11 (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, namely--

(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.

1. Sixth Report, page 96, bottom and page 97. t=:-n.
2. See Sixth Report, page 19, paragraph 1,;

Clause 3)
Deeds o3f(
adoption

(ii) Whether the sections in the Hindu Adoption,
etc., Act about the effect of adoption by a widow (sec-
tions 12 and 14) make the adopted person the son of the
widow's husband also. If not, then it is possible to
argue that the concept of adoption by the widow with
the husband's authority--under which the adopted son
becomes the son not only of the widow but also of the
deceased----sti11 survives.

Omission of an "authority to adopt" from the Registra--
tion Act may create problems in View of these doubtful
points, and it is advisable to retain the existing provisions,.
which, in any case, is harmless.

Authorities to adopt may, therefore, be retained.

Under Hindu Law, a Hindu widow cannot adopt to her-
self', though the position is different under French law in
respect of a widow domiciled in French India".

Mu1la's view" is, that under the Hindu Adoption Act
the adoptee (in effect) becomes the son or daughter not only
of the widow but of her deceased husband as well. The
same View has been taken in two recent decisions".

A suggestion has been made in one of the comments
that "since section 10(1) of the 1956 Act allows both a son
and a daughter to be adopted, the word "son" in clause 3(3)
of the Bill should be omitted. In effect, this amounts to the
addition of "daughter" to clause 3(3). As regards this
suggestion, we should point out, that Hindu Law (as amend-
ed by statute) does not contemplate the adoption of a
daughter (except in the case of Naikins, etc_, in Madras)".
Clause 3(3) is intended only for Hindu Law as unamended
by statute, and the suggested addition need not, therefore,
be made.

. Where an adoption should be made cornpulsoriljr regis-
trable was a point which had been considered in the ear-
lier Report'. But the View taken, was, that unless the
substantive law was altered by providing that registered'
instrument shall be required to effect an adoption, such a
provision could not be appropriately enacted in the Regis-
tration Act. It was also noted, that section 16 of the Hindu

I. See caselaw cited in Mulla, Hindu law, (1966), page 4',i9.

2. cf. Nat:-aja Pillai V. GS'. Subbaraya Chettiam, A.I.R. I950 P.C. 34.

3. Mulla, Hindu Law, (1966), pages 921 and 935.

4. Ankash Narnia v. 'fam: 1351', (I965) 67 Born. Law Reporter 864, 867
(K. K. Desai, and Palekar IL).

5. Subash Misir v. T_hagaz' Misir, A.I.R. 1967 A11. 144, I48, I5'o, para-
graphs 6 and 7 (S. N. S111gh].)

6. Mulla, Hindu Law, (1966), page 500, paragraph 480 (I) and page 504,
paragraph 487.

7. Sixth Report, page 19, paragraph 46.

Adoption, etc., Act, 1956 did not go so far, and merely creat-
ed a presumption of a valid adoption where the adoption
was evidenced by a registered deed. The Reportl did give
out a hint that "another step forward" could be taken to
provide that an adoption shall be made only by a registered
document. Since this hint has not so far been taken by the
Legislature the comments received to the eﬁect that adop-
tions should be made only under registered documents do
not justify a change in the previous proposals. (These
comments are based on the fact that the 1956 Act does not
provide any ceremonies for adoption, and the comments do
possess some force. But, for the reasons given above, a
change in the law is not proposed?)

Registration of wills is not at present, compulsory under §31auSe 3(3) M
section 17, but is optional under section T3 (e). Clause 3 ~_l"_'_l&',"i']1F,':""'3*
also follows the existing law in this respect by not requir-
ing registration of wills. A comment has, however, been
received to the effect, that it should be made compulsory,
to facilitate the administration of the Estate Duty Act, 1953,
apart from ensuring the genuineness of the will and so re--
ducing the number of suits for disputed succession. This
suggestion cannot be accepted. Efiicient administration of
the Estate Duty Act is not a matter germane to the scope
of the Registration Act. If that logic has to be adopted,
there may be many other documents connected with other
laws whose registration should be recommended. As re-
gards genuineness of the will, suﬁicient formalities have
been laid down, in the Succession Act in the form of attes-
tation etc. Moreover, by its very nature a will is a docu-

ment, which---
(i) may be executed in urgent circumstance:

' (ii) may be modiﬁed frequently; and

(iii) may contain many matters which the execut--
ant may like to keep secret.

I To make its registration compulsory would be to cause
inconvenience and hardship to the executant. Further,
there may not be one but several beneﬁciaries who are
concerned; they may not be aware that they are mentioned
in the will, and cannot, therefore, take any steps to insist
on its registration at the time of execution. If their rights
are to be affected because the will is not T€E'i_<:_tg-ygd for no
fault of their own, the position would become rather
unsatisfactory.

1. Sixth Report, page 20, paragraph 46.
46 2. The existing law is stated in Mulls, (1963), page :9, paragraph
3. cf. Mulla, (1963), pages 34 and 1o5_

Clause 4

Clause 5---
Documents
in other
languages

Clause 4 deals with optional registrationl. The existing
section----section 13(f)---speciﬁcally enumerates certain docu-
ments which may be registered, and then puts a residuary
item for other documents. The clause in the Sixth Report
Omilvs the Specific enumeration. In our opinion, this saving

of 1'I_1atter is not worthwhile. Existing section may be
returned. '

Clause 5, following existing section 19, provides that if
the document presented for registration be in a language
which the Registering Ofﬁcer does not understand and
which is not commonly used in the district, he shall "re-
fuse to register" the document unless it is accompanied by
a true translation into a language commonly used in the
district and also by a true copy. The following points have
been made in the comments received on this clause-:-----

(i) The expression "shall refuse to register" should
be clariﬁecl--whether it means "returned", "refused
from registration" or "referred to the Registrar";

(ii) The proper thing should be to refuse to "accept
the document for registration" rather than refuse "to
register" the document";

(iii) Regarding the expression "language which the
Registering Ofﬁcer does not understand", it has been
stated, that the linguistic capabilities of registering
officers diﬁer, and therefore, "English or a language
not commonly used in the district" would be better.
(All Registering Oﬂicers, it is said, are expected to
know English).

So far as the first two points are concerned the ques-
tion is whether there is any difference between refusal to
register" and "refuse to accept for registration". Sections
19, 20(1), 21(4), 22(2). 23 main paragraph, 25(1), 26 last line,
35(3) last line, 58(2), 71(1), 71 (2), 73 to '77 are some
of the existing provisions containing the various expres-
sions used regarding refusal. More particularly, one may
contrast existing section 20(1), relating to interlineation,
with existing section 35(3), last line, relating to denial of
execution. The former has been treated in the Act as a
ground for refusal to accept, while the latter has been treat-
ed as a ground for refusal to register.

But it is not certain that the two expressions necessarily
entail different consequences (with reference to the appli-
cability of sections 72, 76 and 7'? to the sections containing

I. See Sixth Report, page 20, paragraph 47, and page 75.

2. cf. existillg section 20, whereunderaif a document Contains inter-
lineations etc. not initialled, etc., the Registering Ofﬁcer may "refuse to accept
for registration" the document.

33.

these expressions)'. Hence, it is not necessary to change
the expression "refuse to register" into "refuse to accept
for registration".

It may be stated that the only High Court which makes
a distinction in this respect is the Bombay High Court, and
its decisions do not also appear to be uniform"-".

As regards point No. (iii). its acceptance would mean
narrowing down of the facilities for registration". If, for
example, in Uttar Pradesh, a document is presented for
registration in Bengali, and the Registering officer is a
Bengali or otherwise knows the language, then under ex-
isting section 19, he need not refuse to register it, but
under the change proposed by the comment, he would be
bound to refuse its registration. The existing provision
need not be disturbed, as it has not caused any difficulty.

Under clauses 5 to 7, a suggestion has been made to the Clauses 5 to
effect that along with the document to be registered. the 1--Suggested
executant should fill up and sign a standard form of ques- Standard
tionnaire, stating whether he has understood the document £'i'£;l':d'°b;'°
and whether he has voluntarily executed the document (11.3 .,xccu_
mentioning what is the consideration for the document, and tam
whether the possession has been transferred and so on.

This, however, appears to be a matter which can if consi-
ciered desirable he better dealt with by ad.ministrotive ins-
tructions to the Sub--Registrar,g to satisfy themselves about
the various salient points. To introduce a statutory provi-
sion requiring the enclosure of a formal document contain-
ifig -":mSwe1's to such questions would mean the addition of
one more formality which, in practice, is likely to remain
3 f0l"1'n31iW 0Y11ZY- Since the ﬁlling up of such questionnaire
would not dispense with the other provisions of the Act re-
garding inquiry as to execution, it would not serve a very
useiui purpose. No change need, therefore, be made.

Ciause 6 deals with the documents containing inter1inea-- Claus: 5_
tions, blanks, etc., and follows existing section 20. A sug- Points for
gestion has been made that a provision should be made for phqtosrat
preserving photostat copies of all documents which are "°1"'°5
registered. Such a provision has been made by the Bom-
bay Amendment Act of 1930, which authorises the copying
of documents by means of photostatﬁ. Consequential change
has been made by Bombay in section 69 by adding clause
(gggi ( See Bombay Act 35 of 1958), whereunder, a power is

I. See Mulla, (1963), pages 256, 262, I12 and 1:37.

2. See Kisau: Lr.vcmau V. Dafsukh iMoFzczrmm2d_, A_I_R_ 1939 Bgm, 354,
255 (Reviews cases). '

3. For the Madras view, .mc--
(a')Krz'shm;swarm' V. Nalla Gowrder, A.I.R. 1945 Mad. goo, 310, tg-
vcrseti on a-tothcr ground in Nallcz Goundezr v.Krz'shr2astvamz'A.I.R.
1945 Mad. 465.
(ii) Gangadara v. Sambarimz, A.I.R. 1913 Mad. I082.
4. Contrast Mulla, (1963), page 107.
5. See Mulla, (1963), pages 246 to 249.

4--1U9 M. of Law.

Clause 7(1)

Clause 7(2)
5! (3)-

description
of property

given to make rules regulating the procedure for transmit-
ting documents for being photographed, etc., etc. This will
be considered at the endl.

Clause 7(1) corresponds to existing section 21(1), and
needs no comments.

Existing section 21 (2) and (3) deals with the manner in
which houses and lands should be described in a document
relating to them. Clause 7(2) and (3) proposed certain
changes therein, for the reasons given in the earlier Re-
port'. Since there are several minute points of diﬁerencc
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 thereon, in the form of a
chart, as given below.
__ _ __ ___ _ CHART

Existing Change made by earlier Comments Rccomrnenda-.5011

section Report received on on t:on'Ime1'lts
earlier Report
I 2. 3 4

(1') Housesin (1') Houses and lands in (1') Some com-- General The
provision should

towns to Municipal areas to be merits suggest
be describ- described by area, boun- that names, be neither too
edon nor- dairies, mum'c:'pal town territorial divi- elaborate nor
th orother survey numbgw-,mum'cz'pal' sions, and di- too ::ketch};. If
side ofthe door number (if any) and mensions shou-- it is too elabo-
street to street or road they 1d be added. rate there may
which they abut (if any)---see clause Some com- be mistakes lea-
front, and 7(2) (Sixth Report, page ments stateth-1t ding to contro-
by their 75, bottom, says that no change is versics'. 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- (1') A via media
bets (ifthe ses) lands are covered, in the form of
houses are if situated in municipa- the Bombay
numbered) lines). Amendrnent' of
---section 21 1958 is recom-
(2) mended'. Un-
der that amend-
ment, in city
surveyed areas,
the Cadastral
number is to be
ment:.oned.

1. See discussion under "Suggested new provisions".
2. Sixth Report, page 75 and page 20, paragraph 48.

3. cf. Mulls, (1963), page 110.
. See Mulla, (1963), page I07.

'-ll-J3

. See section 21, as proposed to be amended.

(ii) Other
houses. (Le.
houses not
in xowns)
and lands ,
m be des-
srrfbtd by
ﬂleirnames
iii an)?
and as be-
ing in the
tenitcxrial
division in
which the)'
are situ-
ate and tag:
{hz:'gsu--
perﬁcial
mutants,
{ht roan?'
and other
properties
on which
the:-' abﬁuig
thzir ex-
isting 0:-
Uupancies.
and aiso,
when-ever
practicable,
113.? te§'er«
encﬁ I3 :1
GOVErﬂ--
men: map
or survey,
---'i. 2:
(33.

(iii) Siatt'. .
Gf_w'tr1'i--
men: may,
by rigle,
require
that 5-u:rus--
es {:14}: be-
ing nausea
in mums}
and lands,
be design-
beni. f_foz'
the purpo-
Strs of awe»
£5011 21} by
referent:
CG GO'h'eri'1--
man: map
(at suﬁrw----
scptian 22
{I}. The
abject of

such a rule

(ii) In mhzt plasma, hou-
ses and lands to be das»
«criivad :53.» area, £"m'.mdtJ1':'6_S,
.mra'e_1; number 61" psi-
maish qr ntm:r1%kc num-
her, if any aisca and
where pxaccicabla, by re-
ference ti? Gcwesnment
map or surveys.-clause
';:'_'3} {Thus name, t4::1.'ri~
mciai division, occupa-
cics and read am. am
omitted and H033 and
boundaries atfdai' as wctl
as survey number}.

{fie} _
mi. {Sm}: Repﬂrt, page
76 mp, says that at 18
unnecessary in Vie"-'_ at
the changes pmgmaed to
atctiﬁn 21).

(ii; Some com-
mi-Yits snggcsx
that_z1ams:s and
tcrrxtoriai divi-
sions he added.
0112 camrﬁem
says that no ,
change {<5 ne-
ceet-.as':v in c:xis'~
zéng sax,-mun.

men: staxes that
{he can}; change
I1eK'.~:=ss:-1:1.' <45
amgnd secréqn
22(1). Ir; thus
suggests, that
-----(3) the W0 5;

"not being §m11--

91:3 in _tcvwns"
be crnmcd;

{3} afitr "Gove-
emmem n":aI>"'_~
add, "or a Go»-
'.'¢:r:1meil'££ Gt

0:716".

{ff} Existiyzg p:~e--
visions, it wculd
app-sat, have
Caused no o'.ifﬁ-
cultja and may
he Tﬂfﬂffffd.

Section nit'; is :3mi:- (€121) £3»;-ya <:cm=.-- {iii} Sa3\'_ﬁ(1n 22[_;[j

shouid be r::~
rginenf. Adop-
mm of Bombay
1-'L€_:t fnﬁixf 'oeIoW}*]
Wag! met: the
abpect behind
thc<:.em;1r:ents:e-
ccivved also.

(to) Save as

Clause '-.P(4}--

Wonlﬁi be
to make
such d|es--
cription

mandatory».
It will be
an §'_x§;:p--
tiontoav)
below.

I-d

(iv) Failure to comply (iv) One com- (iv)BombayAm-

provided with clause 7(2)(-3) does mcnt suggests, cnciment Act
by tuie not disentitlc registra- that no change 195%', may be
under sec-- tion, if description suﬂi-- should be made adopted'. The
110" 12$} rzicnt. etc.--<:1ause 7(4), on this 'point. obligation to
--See {iii} proviso, [Sixth Report, give the statu-
ab0\'e,- page 76, top, is silent toty description
failure to about reasons for this will, then, be
ootnoly particular change, that mcmdatary---(ct)
with scc- is to say, why the saving i1tCity Surveyed
tion 21(2), regarding mic was on-i-- Area; and
(3) not to itted. But section 22(2) Lb) in cases where
discntitle was omitted, and that aruisis made as
the docu- seems to be the reason. per (iii) above.
merit to The result of the change

registra- proposed in Sixth Re-

tion, if port is, for tutai houses

description and lands, the existing

of the pro- mandatory provision to

petty is mention Government

suﬂicient map or survey {when so

to identify directed by the rule)-, is

the pro- omitted).

pcrty sec-

tion 22(2).

Clause 7'(4), following existing section 21(4)__. provides
that a non-testamentary document containing a map or
plan of any property comprised therein shall not be accept-
ed for registration unless accompanied by a true copy of
the map or plan etc. An amendment has been suggest-
ed' in one comment to the eﬁect, that a document regis-
trable in Book 3 containing a map, plan or other diagram
should be accompained by a copy of such map, plan or
diagram for being ﬁled in the Registration Office. Now,
Book 3, which is maintainedi under existing section 51{1),
is 21 "Register of wills and authorities to adopt". Cases
of maps, plans, or other diagrams referred to in such docu-
ments may not be many, and there is no need to make
the suggested change. [If this change is made, a .5-rimiiar

1. For examples of such rules, we Muila, (19633. pages 286,. 2913.
2. See Mulla, ([963), page I16.

3- See section 2:.-£2), -as proposed to be amended.

4. Suggestion of a State Governrncnt.

5. See existing section 51(1).

3'?

change should be mude 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"
corresponding 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
must be presented for registration within four months
from the date of its execution. Clause 8(1) reduces this
pesiod from four months to one month (except for cases 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. . . . . . . . ...should 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 we are
recommending a reduction in the amount of the fine".

This change has, however provoked various comments,
which can be classiﬁed as followszw

_(i) One set of comments presses for the retention
of the existing limit of four months. l'i'L'LlLlC:tl.(III'l., it
is stated, will work considerable hardship, as one
month's time is too short. Diﬂlculties peculiar to hilly
areas have also been emphasised in some of the com-
ments.

(ii) Another set of comments suggests that the
I'edL1etion should be to the extent of tWo months. It
is also stated. that agrlculturists (who are concerned
with manv transfers) require tiny: to collect the amount
of consideration.

(iii) Still another set of eon"-meets suggests an
increase of the limit to six months

The reasons for which the change was proposed
are not unconvincing. 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 section 51(3).
2. Clause 29.
3. Sixth Report, page 20, paragraph 49.

Clause 3(1)
----Time far
presenting
documents

Cléflse 8(3)"
period of
Wills

Clause 9--
documemg
executed by
several
persons in
different
times

appealable, 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. The 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. In most cases, the
expression "where it is appealable" and the expres.
sion "Where the appeal is preferred" will not give
different result.

Clause 8(2), following existing section 27, provides
that a will may be presented for deposit or rep,'istration
(it any time. A comment has been received to the effect
that persons taking under a will should be 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 suggestonl ".

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 diiiiculty.

Clause 9, corresponding to existing section 24, deals
with the cases where there are several persons executing
a document at different times. While maintaining the
main provision that the docrument should be presented for
registration within the speciﬁed period from the date of
each execution, the clause differs from the existing sec-
tion in two respects-

(i) the existing section mentions "re-registra-
tion" also, while it is omitted in the draft clause;

(ii) the period is reduced from four months to
one month.

The emission of "re-registration" was recom-
mended in the Sixth Reportg, as a consequential
change, presumably because the section dealing with
"re--registi-ation"---existing section 23A--had been re-
commended to be oinitteds. Comments, however,
nave been received to the effect that section 24 should

1. Sixth Report, page 2.1, paragraph 54.
2. Sixth Report, page 21, paragraph 5:.
3. Sixth Report, page 20, paragraph 50.

be retained as it is. It is also stated, that the' "re-
registration" referred to in existing section 23A 1s_for
curing defects due to presentation by unauthorised
person, while "re--reg'1stration" under section 24 is in
respect of a document which is already registered
once, where re-registration becomes necessary be-
cause oi". its being re--executed by a different 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-
cil case'-', three vendors, living at different places er-:e--
outed a deed at different times. Vendors No. 1 and 2
admitted its execution, and the deecl was registered.
Vendor No. 3 then came and denied execution, but still
the registration 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 legislan
tive sanction to the Privy Counci.l's pronouncement.
See also the following decisions"--*--"', upholding par-
tial registration. The reference to re--I'egistration
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
changedﬁ, the period under clause 9 should also not
be changed.

Existing section 25(1) provides that if, owing to urgent
necessity or unavoidable accident, any document, etc., is
not presented within the prescribed time, then the Regis-
trar, in cases where the delay does not exceed four
months, may direct that on payment of a ﬁne 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 ﬁne has been reduced to a lumpsurn not
exceeding Rs. 10 in addition to the registration fee.

The reason for this change was thus given in the
earlier Report?

"It 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- Mulls, (1963), page :23.

(P C2}. Mohammad Ewes v. Briﬂal, (1877) 41.23.. :66; I.L.R. I All. 465

3._?agd:'sh v. Sunder, A.I.R. I949 Pat. 393.

4. Raja Hazar-1' v. Bhagcuandas, A.I.R. I928 Nag. 239.

5. Norm: v. Subramania, A.I.R. 1913 Mad. 313, 325, 325,
6. Sea discussion relating to clause 3(1).

7- Sixth Report, page 21. paragraph 5:.

Clause 10-
ﬁne for
delay in
patesentation

be very high, as the fee for registration is in most States
an ad vnzioz-em 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 reason' 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 ﬁne -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 Rs. 20
or Rs. 25.

If 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 Government3 of Bombay provide that the ﬁne
imposed under sections 25 and 34 of the Act shall he of
the following amounts, na1'nely--~

(i) if the delay does not exceed one month--not
exceeding 2% 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-.

Prime facie, the object of the firm would be to encourage
parties to seek prompt registration; and on principle, the
imposition of a heavy ﬁne 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 comrnetnts.

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
provisionwten 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 votoa-em in many cases. Hence, its multiple
ff ﬁe Si'3EﬁEpTEr,(13agT£:",'ﬁa?a*g£zqW§£.' W' ' ' R' R "'"

2. See Bombay rule 4o,"MuI1a, (I963), page 332.

would be very high, and some rrzaxinium appears to be
needed. Having considered all aspects of the matter, we
recommendl, that the ﬁne should be ﬁve times the Regis-
tration fee, but n-ot exceeding Rs. 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
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 ﬁ1'.3l'. put up on the notice board
for a fortnight. We think that the addition of such pro~
visions would necessarily encumber the section.

Clause 11, following existing section 26, makes special
provision for documents executed outside India. it has
been suggested, that there should be no discrimination be-
tween documents executed in India or outside India, and
that the law should be uniform for both. Another com-
ment received is to the effect, that the period of four
months after arrival in India cilT,o~.ocd by existing Section
26 (b). clause 11 (b) is too long.

The comments overlook the fact, 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 are justifiable. No change is needed on
this point.

Existing section 28 provides that, subject to certain ex-
ceptions, every document mentioned in the speciﬁed
clause of section 17 or section 18, in so far as such dD(:u--
ment affects immovable property, shall be presented for
registration in the office of the Sub--Registrar within whose
sub-district the whole or some portion of the property to

I. See section 25. as proposed to be amend:-20"

Claus: 'J 1 --
Duciirncms
executed
it-utsidc
India

Clause 12(1)}
--~PlaC;' 01

gwescntzilioii

which such document relates is situate. The proposal
made on this point in the earlier Report, clause 12 (1),
read with clause 12 (4) is, that where the property is really
situated outside the jurisdiction of the Sub-Registrar, but
some non-existent, ﬁctitious, or insigniﬁcant property
(or property which is not intended to be conveyed) is in-
cluded in the deed to confer on the Sub-Registrar _jurisdic-
tion by virtue of its situation, then. the validity of the re-
gistration should not be questioned by the parties. (This
is not to affect the rights of third persons acquiring rights
in the property without notice of the transaction to which
the document relates). The reasons for which this change
was proposed will be discussed elaborately later; but, for
the present, it will suffice to say', that it was regarded in-
e(]L'i'.'ia'Dle and unjust that the very persons who were par-
ties to the transaction and secured registration by such a
cl:-v:'.cc should be allowed to impeach the registration as
'oefmg a fraud on_ the registration law3»". There are certain
fJi.i'lL;lL' '-.=er'oal changes also proposed in the section. But, the
above being the most important point, it may be taken up
at the beginning.

Numerous comments 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 point made is, that the document should be
presented to the Sub--Re-gistrar in whose jurisdiction :1
major portion of the property is situated, the reason given
being that registration raised a presumption of notice, and,
as such the registration of documents at any place will lead
to frauds. This comment, however, overlooks the fact that
the proposed change is very narrow, being conﬁned to a
provision that the parties shall not be allowed to challenge
the registration. Rights of third parties are not proposed
to be affected". The Clause does not give a go--bye to the
existing rule, for ordinary cases.

Another suggestion received is, that an Explanation
should he inserted below the section to lay down the

-minimum requirements by which a registering officer

should satisfy himself that the property is situate ir.-. his
jurisdiction. Such a provision would, however, cause un-
necessary delay in the registration proceedings, and can-
not he adopted.

Some of the comments have opposed the change in toto,
and it becomes necessary to examine in detail the reasons
Why the change was proposed in the Sixth Report-5. The

I. cf. Sixth Report, pages 21-25, paragraphs 55 to 57.
2. See particularly, Sixth Report, page 23 middle.

3. As to existing law, see Mulls, (1963), pages 126 to 128.
4. Sixth Report, clause 1z(4)(b).

,s- See Sixth Report. pages 21-25, paraoraphs 5s--s7-

reasons were these. Numerous decisions under the exist-
ing Act had held, that if the property 15 really outside the
jurisdiction of the Sub-Registrar, and some ﬁctitious pr?-
perty or non--existing. property alleged to be- within his
jurisdiction is included, or property (though _s1tua'_ced
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 aﬁect-
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(1) 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]:-

"13- (4) Notwithstanding any thing contain-
ed in sub--section (1) ,--

(a) after a document is registered, no
party thereto shall be entitled to question the

I. See these cases---

(6)1-Iarendra La! V. Harri Dasi' Debe, 41 LA. no ;I,L_R_ 1
972. ; A.I.R. I914 I'.C. 67 (Fictitious property"). 41 ca"

(6) Birwanath (aim reported as Mathura Dar) v. Chandr N ..
43 LA I27'; I.L_.R. 4.8 Cal'. 509 ;A.I.R. I921 P.C. 3 G('Insi:i?;"'f'ac:;'::.[
share of village Included without transfer of possession, and wish-
out any intention to transfer any interest therein), A

(c) Collector of Garakkpw V. Rem Szmdar, I.L,R. 56 All 468 ; A_I_]{
zssretﬁg ':2; "';::%:::}=:.';'3:::,':si"'d *== and to which

(:1) Venkarm-am Rao V. Sobh d ' A R ,
1'.L.R. 59 Med. 539; A-T-K Igfdﬁalgfc. GFPEIA Yar(dJ,of $3:-Id'As'ifu:aE»§ii
in a district in which the pumhaser neither resided not owned ,0-
petty, included, though the vendor's title was doubtful andpt-inc
purchaser made no attempt to take posgessiox-;)_ "

2. Decisions of th H'gh C. urt 11 d ' ,
C'ham'ra Narafn. I.L.Re. 19' Pat. 378 ?fI.c§. :;t:Q131'2t.R:on:_'na"dan hm" 7'

3- Sixth Report, as :23. paragraph 55 middle.

validity of its registration on the ground that
the property which purported to give juris-
diction to the Sulo--Registrar to register it
either did not exist or was ﬁctitious or insig-
niﬁcant or was not intended to be conveyed;

(b) a document, the registration of \-'.'l'1:ich
is secured by the inclusion of a non-existent,
fictitious or insigniﬁcant portion or item shall
not in any manner aﬁect the rights of a per-
son who was not a party thereto and acquired
rights in the property without notice of the
transaction to which such document relates".

The question may be asked whether it is likely that the
parties themselves would ever be allowed to challenge the
registration of the document. The following summary of
some illustrative cases will show the existing position on
this point:--

Case No. 1-----

The plaintiff was allowed to put forward the fraud of
his father (who had acted as his guardian) in including
one square yard of property situated in another district
without any intention to convey. The registration was
held to be void'.

Case No. 2-

A parcel of land which was never intended to form part
of the security, was inserted in the mortgage deed for
giving jurisdiction to the Suh--Registrar. This was held
to be a fraud on the law of registration, and hence it was
speciﬁcally held that the mortgagor could raise the plea of
Valid registration even though he was party to the fraud".

Case No. 3-----

Property which was in existence, but in which the pav:~
ties did not intend to transfer any in1.ercst,_ was included
for obtaining re-gistratio-n in the district where this piece
was situated. Registration was held to be invalid. The
proceedings in which this decision was given were between
the parties to 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 Ne-.ra~
you as the head and managing member of the joint Hindu
family of which the respondents were members".

r. I/erakczta Rama Raw v. Sub/2zmdczbz' Apps Run, 63 LA. I69; I.L.R. so
Mad. 530; A.I.R. I936 P.C. 91.

2. Rmnianandau .P:_-cmzd V. (J;':.2ndradz'p Narrzm I.L.R, Io Fat. 573; /\.J.R_
940, Fat. 504, sog (I-larrics C._T. and Manohar .LalI ].j.

3. f:'{S.'z~wa Nash P:-asad (also reported as MarFzuz'a Dal) V'. Cliarzdra A-'maz';,2.
(I/lrasdrzarz , 43 LA. L2,') 3 I.L.R. 48 Cal. 509,- A.I.R. 1921 RC. 3.'

Case No. 4--

Fictitious inclusion of an item of property, never in-
tended to be sold, it was stated, would amount to fraud.

"This View 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 fraud'.

Case No. 5-

lnsigniﬁcant item of no value and completely inaccessi--
ble, was included in the sale deed. It was incapable of
being utilised or enjoyed b the purchaser. This was held
to be a mere device to eva e the Registration Act, and the
registration was held. to he voiclg.

The decision can beregarded as one not between the
parties to 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 we-re raised in the appeal before
the Privy Council, and these were decided as follows:---

First, whether Indarjit was the lawful heir of
Raja K. The answer given was "yes".

Secondly, whether the pedigree was proved. This
was also answered in the af'ﬁrmative5.

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. Go;-te_Nath V. Rup Ram, A.I.R. [930-Xi-i. ';I86_, 790 righ-tlliztdﬂclﬁrg,

paragraphs be inning with the words "The third point . . . . . . . ." and ending
with the wor 5 "The question before us . . . . . . .." (Sulaiman and Kendal,
II.)-

3. Cwllcctor of Gorakhpur V. Ram Sunder Rafa]. I.L.R. 56 All. 468; A.I,R
1934 P.C. I57, 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 I64, left, bottom, in the
A.I..R.

5. See page 165, right, I2 lines, in the A.I.R.

Case No-_ 6-

There is one Madras easel, in which the principle adopt-
ed was that the Pers-On 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 No. 7-

We may also refer to the position in an earlier decision
of the Privy Council? There, nomexistent property was in-
cluded in the deed. This property was alleged to be 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 plaintiﬁ.
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
12(4)(b) go to that length. All that is provided is, that the
parties will not be entitled to challenge the validity of the
registration.

Dr. Sen Gupta's second point was, that if the Registrar
bond ﬁde 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 diﬁicult to prove when the matter comes before the

1932 Madras 311 .

I. Verskataswami V. Venlzara Subbayya, I.L.R. 55 Mad. 507 ;A.I.R .

2.. Harendm V. Haridasi Debi, 41 LA. 1105 l.L.R. 41 Cal. 972; A.I.R.

I914 P.C. 67.
3. See the dissenting note of Dr. Sen Gupta, Sixth Report, page
99-
4. See Sixth Report, page 24, paragraph 57(1).

in this way.

court. Now, it is true that in the body of the Report, 3'
suggestion was made somewhat on these linesl. But that
was only a "principle" to be given effect to, and if reference
is made to the 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 Registrar's belief.

Dr. Sen Gupta's third objection was, that there could
seldom be 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 12(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

eport, page 24. paragraph 57(3)-

Other pGlD'S
--verbal
cf -. an 33:5

existing section 28. would show that certain other

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 Report1 contemplated really was that
if the registering officer was prime facts 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 iurther stated, that it was not true (as
was assumed by the majority in the Sixth Report) that pro-
pertv within jurisdiction was included only for the purpose
or registration in the nearby office; 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 on 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 Dersonal
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
Cou1'ts."--4 The proposed change will render such defects
immaterial: so that resort to such oral evidence will be
obviated.

This finishes the main question under this clause. The
draft suggested in clause 12(1), when compared with the
verbal

I. See Sixth Report, page 24, paragraph 56, 3th line on the

page.
2. See Mulla. (I963), page 130.
3_ 9;;-n:I'1:z:;dm u, ('Ht-1J'z:f}'a, l'.L.l{. :9 Par. 571; A.[.R. I942IPu!. <04
4. See also (_,'h.:m_t'r' 2-. IIi':'sJ'n'kc.rf:, A.I.l{. I916 Calcutta 455.

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 affect 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.

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 conclusion
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 neutraiised and that too on sound moral principles.
Rights of third parties are perfectly' tafc. 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 Effectgf
effect of the proposed changes with reference to various proposed
situations. Change

Following categories of documents seem to have arisen Am]-mi,
in practice1:-- '
(i) property ﬁctious (cases in A.I.R. 1914 P.C.);
(ii) property not belonging to the vendor, ete., con-
veyed without intention to convey. (But fraudulent
intention must be proved. cf. Venlcato v. Vigoro-
bliadrulu, A.I.R. 1935 Mad. 26, right hand).
(iii) Property (even if belonging to the vendor,
etc.) professed to be conveyed without intention to con-
vey (cases in A.I.R. 1921 PC. 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; e.g.--
_ la) Where there is a mistake in registration, result-
mg in registration in a wrong district; (the View has

I. S;-9 aim the a'1a.lysis in Ch!zarabhaz' v. Dadr.zbhaz', A.I.R. 1935 Bor_n*-_
54, 62 (left-hand column).

5--109 M of Law.

Clause 12(2)
--Place of
presentation
of will or
authority to
adopt

Clause 12(3)
--Residual
provision
for place of
registration

been expressed that such a case can be dealt with by
re-registrationl under existing section 30);

(in) Where both parties bona fade believe that the
grantor has title to the property."

It must be borne in mind, that the "fraud" contemplated
by the case-law as to validity of registration is totally diile-r-
ent from merc failure to make out a good title. A part';
may fail to make out his title, but that is not the same thing
as fraud on registration."-4

It must also be noted, that the proposed change is con-
ﬁned to registration law. It will not affect the position re-
garding jurisdiction of courts, which will continue to be
determined by the existing principles, under which the
court can examine the reality of the transaction?

Clause 12(2), following existing section 40, mentions
"authority to adopt". This phrase, it is said, is no longer
necessary in view of the Hindu Adoptions, etc., Act, 1956.
The point has been already discussed under clause 3(3).
and, for the reasons stated thereﬁ, this phrase should be
retained.

Clause 12(3) combined existing scction 29(1) and 29(2).
As stated in the earlier Reportl, no change in principle was
recommended. A few verbal changes We're, however, made.
The comments received ﬁnd fault with one verbal change
on the ground that the rc--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(1). Every document not being a Clause 12(3). Every document. not
document referred to in section 28, being a document referred t c
or a copy of a decree 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--Registrar in whose Sub- for registration either in the ofﬁce
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

N 1. of. Sugmmml v. Mr. Uim-as Baa', I.I...R. 1940 Nag. 74: A.I.R. I940
ag. 13.

2. of. observations in Bislwarzazk (or Marimra) v. Chandra Narain
Chawdhry, A.I.R. I921 P.C. 8, 16 and PahIad1'Lalv. Larazm} I.L.R. 41 All.
22; A.I.R. 1919 A11. 450.

3. Of. Venkata V. Veerathadulu, A.I.R. 1935' Mad. 26, Right-hand.
4. See also Chaombhau v. Dadctbhai, A.I.R. 1935 Born 54.

5. See discussion in Nrmz'I.a1 Roy V. Sum'2t:' Bald, A.I.R. 1952 Cal. 529,
534 (PB. Mukherlea J.)

6. See discussion relating to Clause 3(3).
7. Sixth Report, page 25, paragraph 59.

_j___._j>.._:_..4--...--_--:~----

Existing section Clause

Registrar etc. at which all the or the original decree or order w1_2s
persons ere. desire the same to mode, as the case may be, 01' 111
be registered, the office of any other etc. (I351
same as in existing section)-
29(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-Clistrict the

original decree or order was made,

or, where th.e decree or order does

not aﬁect immovable property, in

the office of any other Sub-Regis-

trar, etc. at which all, etc., desire,

CEO.

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 ails-cts immovable
property. Under the proposed clause. they can be register-
ed elsewhere if the parties desire, while section 229(b) is (in
this respect) conﬁned to decrees, etch, aﬁecting 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 copy of a decree or order, may
be presented, etc."

[rest as in section 29(1)]

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
deliberately put a copy of the decree, etc._. in section 29 as
belng a document which does not 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 a new Clause I2(4:
l31"0V1s1on to the effect that, after a document is registered,
T10 _l3a1"*5Y Should be entitled to question the validity of the
reglstration, on the ground that the property did not exist

I. Vimzyok v. Parsczppa, A.I.R. I938 Bom. 212.

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 affected if they acquired the rights without notice
of the transaction to which the document related. This
change has been considered in detail already} it remains
now to consider only a few comments on matters of detail.
One comment is to the effect, that an exception should be
made in favour of a bond. tide purchaser purchasing under a
deed with out notice of inclusion of the ﬁctitious itern. Now,
clause» 12(4)(b) already makes an exception for persons hav-
ing no notice of the transaction, and that should suffice.
Another comment is to the effect that where a third
party is defrauded 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 "no

party thereto" the words "no party which presents a docu-

ment for registration" 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 her under clause 12(r-i)(a)
should not aﬁect the rights of third parties. As drafted in
the Sixth Report, however, the provision seems to be
slightly wider. It may, therefore, be re-drafted 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 "a person who acquires right in the property----without
notice of the transaction----to which the document relates",
etc. The meaning of the expression "notice" was discussed
before us in detail.

A comment' has been received to the effect that this may
lead to difficulties in interpretation; the term "notice" is
not defined in the 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 "notice" in the Transfer of Property
Act has not been borrowed in the Registration Act, in @153
deﬁnition clause. Therefore, the answer to the <l'if'5t1°ﬂ

I. See discussion relating to clause 12(1).

-2.. See also discussion relating to clause 12(1)-
3. Sixth Report, page 46, clause 1z(4l(?Jl

4. Comment of a High Court.

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 )1 -2 the word "notice" in the draft proposed in the Sixth
lie;-iort, and the controversy thus avoided.

We felt, that if the expression "notice" 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 deﬁnition in the Indian Trusts
Act is shorter than that in the Transfer of Property Act,
but it is less elaborate, and is not coInprehensivc5.

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 Transier oi 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-
ly first, 7-egisi.:"ntuLo.'t as notice, and secondly, constructive
notice to the agent. It also mentions actual possession spe-
ciﬁcally. 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 case5-5. As to the position in the Punjab,
the undermentioned cases may be seen?-"-9.

I. See Mulla, Transfer of Property Act, (1966), page 37, and sge the
Privy Council decision in 'I'z'Iakdhar£ La! v.Kkedan Lat, 47 LA. 239,- 1 1; R
48 Cal. 1; A.I.R. I92I P.C. II2. ' '

2. Section 3, Transfer of Property Act, 1832.
3- cf. Law Commission': Report on the Indian Trusts Act, (17:11 Report),
page 5, paragraph II.
4. The Indian Trust Ac t, 1882 (2 of 1882).
3. Sec Mulla, Transfer of Property Act, (1966), page 37,

6. T1'laIadkarz'LaI v. Kkeefa': 1411,47 LA. 239; I.L.R. 48 Cal. 1' A I R
1921 P.C. I12. ' ' ' '

7. Gcpal Smgh V. Tfzczkizr Sirzgh, A.I.R. 1935 Lab. 3I3, 314 (Wills).
8. D./I. College v. Um;-ac Sfngfi, A.I.R. 1935 Lab. 410.
9. Ghulcmz Fatima V. Gopal Devi, A.I.R. 1940 Lab. 269.

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 o;E Property
Act.

Sections 198 and 199 of the Law of Property Act, 1925,
(15 Geo. 5 c. 20) read as follows:--

Registration "198. (1) The registration of any instrument or matter

under the under the provisions of the Land Charges Act, 1925, or any

Land Char' enactment which it replaces, in any register kept at the

$25 t0A§;' land registry or elsewhere, shall be deemed to constitute

noﬁée 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 oi: registra-
tion or other prescribed date and so long as the registration
continues in force.

(2) This section operates without': prejglfdicehto thie pro-
visions of this Act respecting the ma. ing o rt er a vances
by a mortgagee, and applies only to instruments and
matterg required or authorised to be registered under the
Land harges Act, 1925-.

Restrictions 199. (1) A purchaser' shall not be prejudicially affected

011 _ Cons- by notice of----
tructive
B0ti<== (i) any instrument or matter capable of 7'egist'ra.tion
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-

(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) Paragraph (ii) of the last sub-section shall not
exempt a purchaser fro-m 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, mediate-ly or immediately; and
such liability or obligation may be enforced in the same

1. For deﬁnition of purchases sea section 2o5(I)(xxi).

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 notice'.

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 "knowledge" 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 Report in this con-
text says, "The 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 a third party,
i.e. a person who acquires rights otherwise than under the
document, and is not a party to the document.

We, therefore, recommend' that the saving contem-
plated by clause 12 (4) (b) of the Sixth Report should appear
in a redrafted form, as follows:--

"Nothing in this sub--section shall aﬁect 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".

1. Lewin, Trusts, (1950), page 754.

2. See Lewin, Trusts, (I950), pages 725-726.

3. Sixth Report, page 23,, paragraph 56, lines 34-4o.
4. See section 29, as proposed to be amended.

Ciause 13

One comment makes the point that a question of burden
of proof will arise in the event ot a conilict between the
transferees, and therefore suggests that an Explanation be
added which should cast the burden of proof on the parties
who have gone out of their way to secure registration by
inclusion of non-existent, etc., property. It appears un-
necessary to encumber the clause with this additional pro-
vision, Whose purpose or eifect is not very precise.

Clause 13, departing from existing section 30(2), gives
power to every Registrar to register a document without
regard to the situation in any part of India of the property,
if sufficient cause is shown for doing 30. (Under the exist-
ing section, the power is given only to Registrars in Presi-
dency towns, but irrespective of the existence of a suffi-
cient cause). While this major change1 has not provoked
any comment, one comment received suggests that the Re-
gistrar should record his reasons for acting under this sec-
tion. This does not appear to be necessary.

Incidentally, we may mention here that, independently
of the comments on 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-
pective of situation of the property. We have already sub-
mitted a separate Report on the Subject2.

Our views are as fo1lows:--

(1') The existing section 30 (2) may be extended to
Delhi, as already recommended by us3.

(ii) The Sixth Report 4 proposes its extenstlon to all
Registrars i.e. in substance to all district headquarters.
This is not necessary, as there may not be a big concen-
tration of people from several parts of India, or a cos-
mopolitan population, at every district headquarters.

(iii) The requirement of "sufficient cause" added
by the Sixth Report5 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 pre~
pared- On the one hand, there was a suggestion that the
sub--section be deleted", the reason given being that there
was no justiﬁcation for giving a wider jurisdiction to the
Registrar in Presidency Towns.

I. As to reason for this change, see Sixth Report, page 25, para,
graph 60.
2. Thirty--First Report of the Law Commission, [Indian Rcgisnarion
Act----section 30{2)--extcnsion to the Registrar of Delhi]. (Ma)-* 1967)_
3. Thirty--FirsI: Report of the Law Commission, (May, 1:967).
4. Sixth Report, page 25, paragraph 6o, and page 46, cl-ause 13.
5. Sixth Report, page 46, clause 13.
U6. No. 51 in File No. F.3(4){55--L,C. II (at the end} (A Sub--Registrar
in .I'--. .

Most of the suggestions were, however, for extending the
section. Thus, there was a suggestion to extend it to
Delhi'. Another suggestion was to extend it to the Regis-
trar of AInba1a"'. This suggestion pointed out, that atter
partition there was no Registrar in the Punjab W_h0 Could
exercise the powers under section 30(2) with which pre-
viously the Registrar of Lahore was invested, and that hard-
ships were experienced in the absence of such a provision.

There were suggestions to extend the section to all Cor-
poration" towns. One of the Members of the Law Commis-
sion seems to have suggested its extension to "any Registrar
of a district in 01' outside a State including a Registrar of
a capital town in a State"".

One suggestion made in the Memorandum submitted on
behalf of the All India Registering Officers' Conferent:e5
(held at Patna on December 24, 1955) was to the effect, that
section 30(2) may be amended so as to empower the Regis-
trars of all capital towns of the Union and the States, in
addition to such other towns as the Government of India
may notify in the Official Gazette, to register any document
referred to in section 28 without regard to situation in any
part of India of the property. T ne reason given was, that
capital towns have generally a mixed population of inhabit-
ants from every part of the country.

Another suggestion to the same effect was of the Assam
Registering Oiﬁcers Association" and of the Madhya Pradesh
Registering Oﬁicers Association'-'.

One suggestion to extend the section -to all Registrars
was in these terms":----

"In View of the Union of States under the Constitu-
tion of India, section 10 and 30 may be amended to take
in District Registrars other than the District Registrars
in Presidency towns".

There was even a suggestion to extend the section to
"the Sub-Registrars"?

1. S. No. 78, File No. 3(4),'55-L.C. II (Delhi Administration).

2.. S. No. 9, File No. 3(4),!55-L.C. II (Government of Punjab).

3. Suggestion of U.P. Sub-Registrars Association {contained in File

No. F.3(4){55 LC' 11 at page I after the printed Report).

4. S. No. 33, File No. F3{4),l55-L.C. II.

5. S. No. 19, Enclosure, File No. F.3(4)f55-L.C. II.

6. S. No. 25, File No. 3(4.)f55-L.C. II.

7. S. N0. 12, File No. F.3(4)f66-L.C. II.

8. S. No. 70, File No. F. 3(4)f55-L_.C. II (Advoate Gene.-3]

?i' a State), being copy of the orignal in file No. F.3(5),I'55-l,.C.

19. S. No. 73: File No. F3(4),'35-LC. II {suggestion of an Advo.
cate_.

H Finally, we may note the suggestion made to empower
the Sub-Registrars at District headquarters, i.e., the Dis-

trict Sub--Registrars1".

Clause 14 _ Clause 14. modiﬁed? existing section 31 slightlyi, by mak-
ing certain verbal changes. Our views as to these verbal

changes are as fo1lows:~«

(i) The substitution of "ordinarily" for 'in ordinary
cases' 15 not necessary.

(ii) The mention of "presentation" in section 31 is
not necessary. Though presentation is the initial step
and the proviso to section 31 also deals with presenta-
tion, the body of section 31 need not be disturbed. As
section 32 is subject to section 31, no practical difﬁculty
is likely to arise by reason of the existing language.

The changes suggested may be therefore dropped.

ﬁliﬁ" '5 Regarding persons who may present documents for legis-
' tration, clause 15(a)(i) embodies existing sections 32 and 40
with certain modiﬁcations, the reasons for which have been
given in the earlier Reporti These changes have not pro-
voked comments. But a few new points have been raised
in the comments. Thus, it has been suggested that a person
who is authorised to sign a document on behalf of another
should also have the power, to get the document registered.
The law on the subject is, however, fairly clear, namely,
that an agent who executes a document under a power of
attorney may present it for registration, and the power of
attorney does not require5 authentication under existing

section 33.

The comment refers to an Andhra Pradesh case" to the
contrary. The decision is based on certain observations of
the Privy Council in Puran C'hand's ease' to the eﬁect, that
"executing" means "person who by valid execution enters
into an obligation under the instrument". But those obser-
vations should be taken in the context in which they were

made. No change is necessary.

1. S. No. 6, File No, F. 3{4),'55-LC II (Assam Registering Oﬂicers
Ass0Ciation---earlier suggestion).

2. Sixth Report, page 46, clause 14.

For reasons, we Sixth Report, page 25, paragraph 61 and page
77 (Notes).

4. See Sixth Report, pages 25-26, paragraph 62.

5. See cases -cited in Mu11a,(1963) page 137, fooL--note (I).

6. Senior Singh v. Pissue Mal H. Bankers, A.I.R. 1958 Andhra Pradesh
my; (1957) 2 Andhra W R. 342.

7. Puma Glnamfs case, A.1.R. 19:3 I'.C. 38.

The following analysis will shew the various situations
eovered by the existing provisions»-
(E) agent autharised to signw-agent can present it-1
without the necessity of authentication under section
33;
(ii) agent authorised to signwprincipal can also
present? it;
(iii) agent authorised to presentwagent can present
if the power of attorney falls within section 33;

(iv) agent authorised to present~--»even then the
principal can, presumably, present the document;

(v} one agent authorised to sign and another agent
auﬁéerised to pr-esent-the Eatt-er agent can also pre-
sent .

The Sixth Report made certain verbal changes in exist
ing section 320;-}. These are not necessary, and may be
dmppeci.

Clause 15(1)) provides, that 3 will may be presented for Clause 15(9)

registration by the testatar, or after his death, by any per--
son claiming as executor or otherwise "thereunder". The
existing section 49(1) is in a slightly different form, and
provides, that the testator, or, after his death, any person
claiming as executor, etc. "under a will" may present it,
etc. =»

One comment states, that the word "thereunder" in the
propctsed clause imposes an unnecessary restriction. This
does not appear to be correct; this word is merely in re-
placement of "under a will".

Another c.a:>mment suggests, that the presentation of at
will by the agent of the executant should be permitted.
This clariﬁcation appears to be necessary in the Scheme:
adopted in the em in the 'Sixth Report, whereunder a
diehotarny has been inwodueed bet;ween--

(i) documents other than W531 or authorities to
adopt (on the one hand}, and (ii) wills and authorities
to adopt (an the other hand}. Ezazisting section 32
speaks of documents generally, and its operation in
relaticm to wills and auihorities to adopt is excluded
only in this extent, that during we donefs life time'
the persons claiming thereunder, etc, or the donee of
the autherity, etc, cannot present 1't"=. Presentation by

1. Muiia (1963), page :37.
2. M11113 (1963), page 1'37.
3. Farm; Chard': case, Muiia {I963}, page I44, top.

4. S' Mulla (1953) page: Seam' the passagefrom the I-'r'v Co :-
cil's case ﬁt' Vexrkatappayjva V. Fgenkatcylganga, A.I.R. 192; RC. £23. in

Clause 15 tel

Clause 1 6

agents and representatives of the testator or donor is not
excluded} 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 difficulties,
scheme of section 32 should be restored.

Clause 15(cJ, which corresponds to existing section =iO(2),
deals with presentation of authorities to adopt. I-ﬁlers also
a comment has been received that presentation by agents
should be perniittedﬁ 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 (I3) .3 As
regards authorities to adopt, as they are to- be retains-d,* re-
ferences to such authorities in clause l5(c) should also be
retained.

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 India," and

(ii) cases where he does not reside in India."

the existing

In the former case, the power of attorney has to be pre-
sented before and authenticated by the Registrar or E-ub--
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 suﬁice. It has also been suggested, that authentica-
ting gefore a Notary Public or any court or Judge may be
ad e .

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 diﬂiculty, we
were ﬁrst 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-

I. See Mulla (1963), page 159.

2,. As to present law, see Mulls (1963), pages 158-159.

3. See discussion as to clause is (17).

4. Sec discussion relating to clause 3 (3).

5. Section 33 (i)(a).

6 Section 33 (I) (0).

7, See section 33, as proposed to be an-ie=ide-.1 (regarding notarie-33.

ed under section 8(1)(a) of the Notaries Act1 to authen-
ticate the exercution of documents.

Clause 16(1) (c).----needs no comments".

Clause 16(2) and (3),-----Clause 16(2) and (3) corresponds Claus'? 16(2)
to existing section 33(2) and (3), with verbal changes". "mi (33
Consequential changes on the addition of nozarées' 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 "executed
before and authenticated by" the person etc. mentioned be-
fore. Thus, to obtain the benefit of this provision, two
things are required:--

Clause 1 6(1)
(C)

(i) execution before the authority concerned; and

(ii) authentication by that authority.

Now, in the case of persons who are ill or are in jail or
are exempt from personal appearance, the proviso to exist-
ing section 33(1)--clause 16(1), proviso----provides, that such
persons need 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 of
attorney before the authority concerned." In such cases.
therefore, the condition of execution before the authorities
concerned would not be fulﬁlled. To bring them within
the beneﬁcial provision in clause 16(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 117(1) makes a small verbal change in section C1""5"7

52 (1) (a) (b). It is not necessary.'

In prescribing the time-limit for the appearance of Clause _.-.8
parties, clause 18(1), proviso. departing from existing sec:- U)=P'°'"3°
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 ﬁne 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

I. Notaries Act, 1952 (53 of 1952).

2. See Sixth Report, page 26, paragraph 64.

3. Sea Sixth Report, page 26, paragraph 64.

4. See discussion under clause I6 (I).

5. See Mulls (1963), page 142, cases in foot--note (I).

6. Discussed in the Sixth Report, page 32, paragraph So and page 77
and page 2o.

Clause 18(2)
and {3}

Clause 18(4)-
Return of
documents
for non-up-»
pearance

noted in the earlier Report} (though no detailed reasons.
have been given). Since clause 10(1) allows extension mg to
four _nonths,2 the comments suggest that here also, for {mi-
f01'm1tY.. the period of four months should be maintained.

' As regards reduction of the ﬁne, it has been S1Jg'§,:'E'SlCd
in the comments that the maximum fine should he ﬁve
times the amount of the proper registration fee.

The other verbal changes made in by clause 18 (1), pro-
viso are not, in our view, necessary.

There is no objection to having a uniform period. The
period of four months should be retained. As regards the
amount of ﬁne, the clause should follow the decision under
clause 10 corresponding to existing section 253. We recom-
mend' an amendment of section 34 accordingly.

One important point regarding clause 18(1) should be
noted. Appearance of the party is required Within the time
required for presentation, under the relevant section".
Existing section 34 (1), in this connection, does not refer to
section 27 relating to wills. Clause 16(1), however, refers
inter alto. to clause 8, which would take in clause 8(2) re-
lating to wills. Since a will can be presented at any time".
clause 8(2) should be excluded from the sections referred
to in clause 18(1).

Clause 18(2) and (3) corresponds to existing section 3~i(2)
and (4), with verbal charges? which do not appear to be
necessary.

When the e-xecu-tant who presents the document does
not appear within the time prescribed or extended, the
Registering Oﬁicer, it is provided by clause 18 (4) , should
make an entry to that effect on the document, and return
it without registration to the party who presented it. This
is at new provision recommended by the Sixth Report,
where the reasons were thus statedls: -

"Provision will also have to be made, for cases
Where the executants do not appear within the speciﬁed
period. We suggest that in such a case the Registrar
should make an entry to that effect on the document
and return it without registration to the party who
presented it".

. Sixth Report, page 26, paragraph 65.
. See clause 10(1).
Sue discussion regarding clause 10.

U1-P~'~_3JN-t

. Section 34 (1), read with section 23.

. See section 23, which excludes wills, and section 2'7.
. cf. Sixth Report, page 77 (Notes).

. See Sixth Report, page 26, paragraph 65.

. See Section 34, as proposed to be amended (reg,-aiding the maximum).

Clause 18(4) embodies this recommendation, and as re»
gards the period, in_ addition to the period allowed for
appearance, it permits two months thereafter. This provi--
sion has provoked numerous comments, which can he classr-
ﬁed as follows:----

(i) One point made is that it conflicts with clause
21 (1) (iv), under which, if the executant does not
appear within the time allowed for appearance, the
Suh--Registrar has to -refer the document to the Regis-
trar.

(ii) Another point is, that return of documents to
one of the executcmts without consent of the claimants
may cause loss and hardship to the claimant.

(iii) A third point, is, that the extra period of two
months after the already extended time-limit for pre-
sentation or appearance is unnecessary.

(iv) Another point is, that this provision will de:--
prive the Government of the fee leviable for return of
the documents after one month of the date of refusal
due to non-appearance of the party. Moreover, it may
entail expenses to Government by way of postal
charges to be incurred in returning the document by
post.

(V) It is also pointed out, that it is not clear how
the Sub-Registrar is expected to deal with the docu-
ment if the executant appears within the further period
of two months thereafter and how the period will be
calculated.

(Vi) A major objection is, that the claimant (who
is not the executant) will be deprived of his right to
establish his claim before the registering ofﬁcer. This-
is because the document will be returned to- the "party"
under the clause.

There is no doubt that the proposed provision-
makes a change in the existing low. At present], while-
existing section 34(1) requires the executant to appear
Within the time allowed for presentation, and section
34 (3) contemplates an inquiry as to execution, it does
not provide that the document must be returned to the.
executant. It leaves open the cla1'mant's right at least
to ask the Sub-Registrar to ﬁnish the inquiry as to
execution. It is oniy if the ercecutent denies execution
that the registration is refused under existing section
35 (3) (a).

In any 0359, clause 2] (1) (iv) also deals with the

same situation", (unless it is regarded as limited to

1. The cscisting position is discussed in Mulls-(1963). page 131.
c[auS9;.CiC;Jl)snL%:,en2éim(I) broadly corresponds to exsting seciion 35 (3), but wig

Clause 19(5)

-Clause 19(c)

Clause 19-
Ncw point

Clause 2Q([)
(49 and (5)

"t'.§:.;.ng

over docu-
ment and
proof of at-
testation.

cases where the executant has not presented the docu-
ment himself) , and there appears to be some conflict
between clause 18 (4) and clause 21(1) (iv).

For these reasons,

we consider that clause 18 (4)
should be dropped.

Clause l9(b) corresponds to section 34 (3) (b), with ver-
bal changes as per re-arrangements which were proposed
by the Sixth Report.

In clause 19 ('0), the words "is right" should be replaced
by "his right", to correct the misprint.

Clause 19 (c), corresponding to existing section 41 (2),
deals with inquiry in the case of will or authority to adopt.
Regarding authority to adopt, a suggestion has been made
for adding the words "and before coming. into force of the
Hindu Adoptions, etc., Act, 1956". But, if clause 3(3) re-
lating to authority to adopt is retained', the reference to
such authority in clause 19 (C) should also be retained.

Incidentally, the opening lines of clause 19 speaks of the
persons executing the document, but the situation in sub-
clause (c) is one of death of the testator or donor. Hence,
clause 19 (c) may appropriately he made into a separate
subsection.

A new point regarding clauses 19-20 (dealing with 111--
quiry before registration) had been made in one comment.
It is stated, that the "representative or assign" of an execu-
tant can present a doc-umﬂnt for r 'g'istration through agent
under clause 19, and that admission of execution under
clause 20 should also be "made through agent in case of
such representative or assign. We are not sure whether
the assumption about clause 19 is correct, However, it
seems desirable that such agents should also be brought
Within the purview of clauses .19 and 20 (existing sections
34 and 35); and, for that purpose, perhaps the phraseotogy
of existing section 34 (1)------"a.gents authorised as (more-
satd," may be regarded as more clear when read with exist-
ing section 32 (c). That phraseology may be restoreai, Ln
plac.§'o;E the words in clause 19, opening lines, "duly autho-
rise '.

While dealing with the procedure on an enquiry bcrore
registration for obtaining proof of execution, clause 20(1)
(3) and (13) (ii) introduce certain new provisions not found
in existing sections 34 (3) and 35(1). The ﬁrst addition is
the requirement; to the effect that the registering oﬂicer
shall read over the document and explain its contents to

_ SEC discussion as ECI clause 3 (3).

the executants or the representatives, assigns or agents. as
the case may be. The second addition is the requirement
that he- should inquire whether or not the document was
attested according to law by the persons by Whom it pur-
ports to have been attested (where such attestation is re-
quired by law).

Explaining the reasons for this addition, the earlier
Reportl states, that it is common knowledge that a person
relying on a document required by law to be attested is
often called upon to prove due attestation after a long lapse
of time. In many cases the attestants would not be alive,
and if none of them is alive the burden is cast on the person
relying on the document to prove due attestation. A plea of
want of attestation is bound to be successful in such circum-
stances under the existing law. To avoid such difficulty, it
was suggested that at the stage of registration there should
be an inquiry as to due attestation, and it was also sug-
gested that registration should raise a presumption of due
attestation and registration. To carry out this suggestion,
a speciﬁc provision was suggested to the effect that the re-
gistering oﬂicer should read over and explain to the execu-
tant the nature of the document before inquiring of him

whether it was executed, and admission of execution'

should be endorsed only after the document has been read
over and explained. It was also observed, that such a pro-
vision would embody the existing practice. A Provision, it
was added, should be made that where attestation was
required by law, a-t least one attesting witness should be
examined at the time of registration.

This. recommendation was subject to the dissenting note
of Dr. Sen Gupta". In his view, these amendments required
too much of the Sub-Registrar. Reading over might make
the burden of the Stub-Registrar excessive. Many documents
are exceedingly prolix, and the Registrar would have to
read the whole of it including the Schedules which may run
to ﬁfty pages. Where the executants are literate, no ques-
tion oi reading over will arise. In other cases, he stated,
there must be an endorsement or solemn afﬁrrnation by a
person who has read over and explained the document and
that should be sufﬁcient. At the most, the Registrar can
state the nature of the document whether it was a mortgage
or a deed or partition or conveyance and ask Whether such
a document has been executed. Again, regarding attesta-
tion, in his opinion, that was a function which could not be
expected to be duly performed by the Sub-Registrar in
many cases. Whether a particular attestation is a proper
a-nd legal attestation is a question which ought to be left
to the court to decide when the matter came up before it, if
there are the required number of witnesses signing as such,
the Registrar may proceed on the basis that there has been
a proper attestation, without deciding Whether that is a

1. Sixth Reportfpages 26-27, paragraph 66.
2. Sixth Report, page IOI.
ti----109 M of Law.

proper attestation. The details, namely, whether the
witnesses signed after the executant and whether the exe-
cutant saw the witnessess signing, etc., need not be deter-
mined by the registering oﬁicer. Even if the Registrar
accepted the attestation under the proposed section, it
would not shut out the question of attestation if the matter
came before the court. "It is true that where a document
has been registered there will be a presumption that if the
document requires attestation, it has been attested; but
only a presumption. . . ." This further burden on the Regis-
trar Would in his view, serve no useful purpose. Moreover
the question whether a document is legally attested is one
which may have to be determined not upon the statement
of the attesting witness alone but on the examination of
the witnessess to the circunistances of execution. He,
therefore, thought that this amendment Should not be
made. A proposal that attesting witness should be required
to sign a proper attestation clause, a standard form of
which may be set out in the Act, he said, might probably
receive his su-pport; a declaration or a solemn afﬁrmation
in the attestation clause signed by the witness ought to
suffice for registration, without any necessity of dragging
him before the Sub-Registrar.

Many of the comments received on this clause express
agreement with Dr. Sen Gupta's views. Registering offi-
cers, it is said, are heavily over-worked and busy persons,
and to read over the documents to the applicant would talié
much of their time. As regards attestation, it is stated that
the proof of attestation sought to be established will lead
to diiﬁculties, because--

(a) there will be extra work for the registering
officer;

(b) he will have to know all the classes of docu-
ments required to be attested;

(d) parties will have to undergo hardship in get-
ting attesting witnesses and bring them to the regis-
tering oﬂice;

(e) a professional class of attesting witnesses may
come into being.

This is the tone of the majority of the comments. Very
few comments have expressed agreement with the pro-
posed amendment regarding attestation, as saving the
time of the court and expenses to the honest litigant.

A few subsidiary suggestions have also been made.
One is to the effect that the executant should attest that
the attestators have attested the execution of the docu-
ment. Another comment is to the effect that the regis-
tering officer should enquire of the executant whether the

atte-stors attested the document executed by him and then
make an endorsement to that effect. A third one is to the
effect that the provision regarding reading over may be
conﬁned to cases where the parties are illiterate and fore-
}En to the executant. A fourth one is to the effect that
instead of "reading over", the Registrar should "explain"
the contents of the documents to the executant or their
representatives, assigns or agents as the case may be.

We have carefully considered the proposed clause and
the comments received thereon. The clause was proposed
with the beneﬁcial and laudable object of ensuring the
minimum of disputes as to execution. But the comments
reveal that there might be practical diiﬁculties in the
achievement of this object. As regards reading over, the
time and labour involved may not suﬁiciently compensate
for the likely beneﬁts. All documents will not come to the
court. Even if they come to the court, the registration does
not dispense with proof of execution.

In this connection, the Rules on the subject were also
gone through by us1--"3.

It was felt, that While it may be desirable to have some
sort of provision to ensure that the person alleged to have
executed a document really understands the nature of
the document, it may not be practicable to insert a rigid
provision in the Act, as it may induce an interested party
to challenge the validity of registration later on ﬂimsy
grounds. Provisions in the Rules are for guidance of
registering ofﬁcers, and are adequate.

The change regarding 'reading oqer the document
should, therefore, be dropped.

The subsidiary suggestion to "explain the contents"
has not found favour with us. It is somewhat vague, and
may create complications.

As regards inquiry into attestation, the ditﬁculties
pointed out in the comments are numerous and real.
Though not many documents are required to be attested,
and, therefore, the proposed provision would not come
into play often, yet, when it does come into play, it will
require extra work and application. of mind on behalf of
the registering ofﬁcer. If the work is done hurriedly. the
proposed presumption of due execution and attestation3,

I. e.g._, Rule 128, Punjab Rules.
2.. See also Rule 59, Madras Rules, which runs as follows :-

" Adocument executed by a person who is unable torcad shall he read
out and if necessary, explained to him. A document written in a
language not understood by the executing party shall, in the like
manner be interpreted to him. When a party to be examined is
dumb, recourse must be had to the means by which he makes
himself understood".

3. Sixth Report, page :7, top.

Clause
2o(2}--
Registration
on admis-
sion of exe-
cution

may even be a source of mischief, because illiterate per-
sons and pardanashin ladies will ﬁnd it difficult to displace
the presumption. There is a possibility, that the provision
will not be followed in its true spirit, particularly where
the registering officer has not much legal experience or
knowledge. It may sometimes be difficult also to produce
the attesting witness. For these reasons, the requirement
to inquire about attestation should also be dropped. Here
again, the subsidiary suggestions that the attesting wit-
ness should sign some kind of clause in the endorsement.
or that the executant should attest that the attesting wit-
nesses have attested the execution, have not much to
commend themselves.

Clause 20(2) (registration where execution admitted),
departs from existing section 35(1), and requires that lhere
should be proof of attestation. The Exploitation requires
that at least one aftesting witness must be called for prov-
ing due execution. (There is also a verbal change, that
registration is "as to the person admitting execution").

These provisions are consequential on the scheme re-
garding attested documents'. If that scheme is dropped,
these provisions will also have to be removed. The com-
ments on these provisions reiterate the practical difﬁculty
of securing attendance of attesting witnesses. It is point-
ed out, that an attesting witness has no interest in the
transaction. He may deliberately not appear before the
Registration in time, and it is unfair that merely because
he does not appear, the registration should be vvithhelclg.

A few new points have also been made in the com-
ments. One is, that (in the case of a will or authority to
adopt), where the testator or donor is dead and the docu-
ment is presented by some other person, the registering
officer should add a certiﬁcate as to his satisfaction of such
execution by the testator or donor. Now. existing section
4(2) (a)--clause 19 (c)----already requires that the register-
ing oﬂicer should satisfy himself that the will or the autho-
rity to adopt was executed by the testator or the donor.
There is no necessity to add the further formality that he
should make an endorsem.en1: to that effect. (As to endorse-
ment required under the existing law, see existing section
58~--clause 26}. It may also be noted, that where consi-
dered necessary, the endorsement can be provided for in
the rules3.

One comment suggests a proviso or an explanation to
the effect that a person presenting a document may. at
any stage before the registration number is assigned to

1. See discussion relating to clause 2o(I)(a) and (b)(:'i}.
2. Under clause 21 (I){'zJ), in such a case the maLter has to he referred
'[0 the Registrar.

3. cf. Madras, rule 71 (2.). Mulla (1963), page 316.

the document, withdraw it from registration. The absence
of such a provision does not appear to have caused 01117'
practical difficulty. Hence no change in needed.

Clause 20(3) widens the scope of the registering; (if.-
cer's power to examine witnesses'. So far as the SUh-RC-
gistrar is concerned existing section 35(2) is confined '£0
his examining any one present in his oflice. But existéng
section 75 (4) relating to the Registrar gives him power to
enforce the attendance of any person as if he were a Civil
Court. The clause widens section 35(2) on the lines of
section 75(4).

This change has not provoked any comment. But a
new point has been made in a comment, to the eﬁect that
there should be power to order the production of docu-
ments or records. This may be accepted. We also think
that the registering of'ﬁcer's power should be conﬁned to
a witness within his jurisdiction. We recommendi neces-
sary amendment.

We have conﬁned the amendment to the Sub--Registrar.
So far as the Registrar's power under section 75(4) is con-
cerned, we do not think it necessary to disturb its wording.

There are several changes introduced by clause 21(1)
(which corresponds to existing section 35(3) dealing with
the procedure on denial of execution). We shall_'how--
ever, consider only the change that have provoked com-
ments. First, where the executant denies execution or
is dead Or minor etc., existing section 35(3) provides that
the registering officer shall refuse to register the document
as to the person so denying or dead etc. (From such re-
i'L:sal there an "'application" to the Registrar under sec-
tion 73). Instead of this provision. clause 21(1) proposes
that the Sub-Registrar shall refer the document to the
registrar. Secondly, this procedure of reference is to be
made applicable to two more cases, namely,---

(i) where the executant does not appear before
the registering" ofﬁcer within the time allowed for ap-
pearance; or

(ii) where the attestation of the document is not
proved, and attestation is necessary in law for the
validity of the document.

Coming to the reasons for these changes,
we may state that so far as the substitution of
the reference procedure is concerned, the earlier Report"
states that the clause provides for a reference to the Re-

I. Sixth Report, page 78 (Notes).
2. See section 35 (2), as proposed to be amended.
3. Sixth Repoit, page 78, notes under clauses 21 and 22.

Clause 20:3)

Clause
21(1)..-
Procedure
on denial of
cxecution

gistrar instead of making an 'order of refusal. In the body
pg the Reportl, the reason ls more elaborately explained
US I--

"We are of the opinion that the procedure for ap-
peal in case of refusal by the Sub--Registrar should
be replaced by a simpler procedure. We consider that
there is_ no need to provide for an order of refusal by
the registering officer and then an appeal or applica-
tion to the superior officer against that order. It would
be conducive to expedition and simplicity, if instead
of refusing to register any document and driving the
parties to an appeal or application, the Sub-Registrar
l'11I'I1SElf refers the matter to the Registrar to whom
he is subordinate".

The R€'I30l."t contemplates that the Registrar would then
follow the procedure under existing section 74, and if he
refuses to register, a suit can be ﬁled under section 7?

As regards non-appearance or non-attestation, the
change regarding non-appearance as such is not dealt with
under this clause elaborately in the earlier Report, but
the change regarding attestation is consequential on the
scheme proposed in that Report--see clause 2U(1)(b](ii)
and (2)--to ensure the attestation is inquired into at the
time of registration. The intention was to treat proof of
attestation, or rather non-proof of it, in the same manner
as denial of execution?

The addition of categories of non-appearance and non-
attestation was subject to the dissenting note of Dr. Sen
Gupta'. His argument was, that under the existing law
if the executant does not appear the document may still
be registered under certain circumstances. Of course, the
executant has to be called upon to appear and admit the
execution; but it will be unfair to a person claiming under
the document to refuse registration merely because the
executant does not appear. It was still more unfair in
his opinion, that because the attesting witnesses do not
appear, there should be a reference to the registrar. The
attesting witness has no interest in the transaction and
may fail or refuse to appear. The parties should not
suffer on this account. The provision, in his opinion, seem-
ed to mix up the authentication of the execution of the
document, which was the proper function of registration,
with a decision about its validity. He also pointed out,
that it was not clear that if the executant did not appear
within the time, a further time for his appearance would
be given.

1. Sixth Report, page 34, paragraph 92.
7.. cf. Sixth Report, page 27, second suh-paragraph last line.
3. Sixth R-CPU": P339 103-

Many of the comments received express agreement with
Dr. Sen Gupta's views. It is said, that if the executant
does not appear, it' is unfair to the claimant under the
document to refuse registration. It has also been pointed
out, that clause 21(1)(v) providing for reference in the
case of non-proof of attestation, conflicts with clause 20(1)
(a) and (b) (ii). It is further pointed out, that appear-
ance before the Registrar might involve expenditure which
the party may not be in a position to afford.

A major and detailed objection is, that under the pre-
sent procedure a party" goes to the Registrar only if he is
dissatisﬁed with the Sub--Registrar's order refusing regis-
tration. Under the proposed procedure, however, a re-
ference will invariably be made in every case, and this
will result in unnecessary increase in correspondence and
expenditure in the Registration office and also be a source
of avoidable inconvenience to the parties. It has, there-
fore, been suggested that existing section 35 (3) should be
restored with consequential verbal changes in place of pro-
posed clauses 21 and 22. It is contended, that the exist-
ing clauses have not caused hardship, and are comprehen-
sive and should be retained.

Besides these major points, a number of other points
have been made in the comments. Several verbal changes
have also been suggested. These are not being noted in
detail, because the major changes themselves seem to
require reconsideration in the view of the numerous com-
ments objecting to them. The reference procedure was
proposed to be substituted by the Sixth Report, because it
was to be considered that a single step should take the
place of the double proceedings of refusal by the Sub-
Registrar and appeal to the Registrar. It would, however,
appear from the comments received on the Sixth Report,
that the existing double procedure has not caused much
inconvenience in practice, and the proposed new proce-
dure has not been welcomed. In this state of affairs, in
view of the strong opposition to the proposed change, the
only course left is to retain the provisions of existing sec-
tion 35 (3) and sections 71 to 76. (Sections 72 and 73 were
omitted in the Bill', because these sections relating to
appeal etc. were proposed to be replaced by reference.
Section 76(1) (a) was omitted in view of the change pro-
posed by clause 13 in existing section 302, and its omission
has nothing to do with the scheme of reference. Certain
changes made in sections 71, 74, 75 and 76, in so far as
they are consequential on the scheme of reference, have
to be removed.)

Regarding non-appearing parties, the position has been
considered by us. The Sub-Registrar should, we think,

I. Sixth Report, page 34, paragraph 92, and page 78.
2. Sixth Report, page 78.

Clause 21(2)

Clause 22(1)

Clause 22(2)

refuse registration as regards the non--appearing parties.
The contrary view taken in a Lahore case' may lead to
fraud. We were, at first inclined to recommend an express
provision to that effect, by adding the case of non-appear-
ance to the existing section. Later, however, we decided
not to recommend a change, in the absence oi" any serious
practical difficulty.

The present position regarding non-appearance of one
of the parties is dealt with elaborately by Mulia3-'"'.

Clause 21 (2) contains detailed provisions for a refer-
ence by the Sub--Registrar to the Registrar under clause
21(1). It clause 21(1) is to be dropped and the existing
provision for appeal under section 71 is to be re-taineol4,
the consequential changes will have to he made in this
sub-clause also.

If the sub-clause is to be maintained along with the
procedure for reference as envisaged in the Sixth Report,
a number of small points made in the comments received
on this sub--c1ause may have to be considered. But, in
view of our recommendation under clause 21(1), we are
not encumbering this Report with those points.

Clause 22 (1) deals with the case where the Sub-Regis-
trar has made a reference to the Registrar. If clause SL1 is
modiﬁed", this will also have to be suitably altered.

Apart from this, there is no other change suggested in
the comments.

Clause 22 (2),..corresponding to existing section 75(1),
provides", that the Registrar before whom a document
comes for enquiry for the purposes of registration, shall
order the document to be registered, if certain conditions
are fulﬁlled.

A comment suggests a re--dra£t--~which applies to the
existing section a1so~to replace the latter half by the words
"when the document was initially presented before him,
register it and in cases under section 21, order the docu~
ment to be registered". The main object of this comInen1:
seems to be to cover the cases where the document comes
to the Registrar otherwise than on appeal (or reference
under the scheme of the Sixth Report). In such a case he
has himself to register it; he has not to pass an o-rder

I. See Mu1|a,(1963), page 151-.
2.. See Mul1a,(I963), page 150, footnote (5), and pages 151, 152,
I55.

3. See also Snkhdeo v. Rodhika Singh, .A.I.R. I950 Pet. 77, 79 and
Raghzwir V.Kau1eSar, I.L.R. 23 Pat. 719; A.I.R. 1945 Pat. 140.
4. See discussion under clause 21(1).
5. See discussion relating to clause 21 (I).
6. For reasons, sec Sixth Report, page 68.

setting aside the Sulo--Registrar's order. But, as the exist-
ing language has caused no difficulty, we do not think
that this change is necessary.

Clause 22 (3) provides that if the Registrar directs re-
gistration, he should also direct the parties to appear for
registration before the Sub-Registrar. This corresponds
to section 75(2) with two changes. One is the change
consequential on the reference procedure. The other is
that while the existing section seems to cover the case
or the Registrar passing order on a document presented to
himself, this case does not seem to be covered in the draft
clause. Apparently, the earlier Report did not intend any
deliberate change in this respect, and that case should be
odded, though no comments have been made on this point.

A fresh point made in the comments is, that where the
case is one of reference, the Registrar should-

(a) forward-
(i} the document;
(ii) copy of his order; and

(13) also direct the parties to appear before the
Sub--Registrar on a speciﬁed -day for registration, fail-
ing which registration should be refused.

In case the reference procedure is to be replacedl, this
change may not be necessary, because sending of the docu-
ment to the Sub-Registrar by the Registrar can happen
only if, as proposed in clause 21 (2) (cl), the document in
original is to be forwarded to the Registrar by the Sub-
Registrar. -

Clause 22 (4) corresponds to existing section '75 (3) with-
out changes, and no comments have been received.

Clause 22 (5) incorporates a part of existing section
75(4), the other part being incorporated in clause 20(3) 3.

Clause 22(6) (b), dealing with the order of refusal by
the Registrar, departs from existing section 76(1) in that
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 change (regard-
ing non--p1-oof of attestation) is consequential on the
changed scheme embodied in clause 21(1) (V). As that
changed scheme is replaced by the existing one", clause
22 (5) (b) will also have to be replaced by existing section
76(1). The former----spec1ﬁc enutneration----is not neces.
sary, and may be dropped.

I. See discussion relating to clause 21.
2. See discussion as to clause 20 (3).
3. Sea discussion relating to clause 21 (2).

Clause 22(3)

Clause 22 (4)

Clause 22(5)

Clause 22(6)
(bl

Clauses 21
and 22
(Omission
or altera-
tion of sec-
tions 6i to
76)

Clause 23

Clauses 21 and 22, dealing with refusal of registration,
lay down the procedure where refusal is on the ground
enumerated in the clause. This scheme of speciﬁc enume-
ration is a departure from existing sections 71(1) an.d
72(1) read with section 76 (1). The existing sections do not
enumerate the grounds. All cases of "refusal to register"
or "refusal to admit a document to registration" are covers-
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 they 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 sec-
tion 25 also, the prevailing View is3--" that there is no
difference (in relation to the applicability of sections 76

and 77) between "refusing to register" and "refusing to

accept for registration".

We have already suggested? the retention of the exist-
ing provisions in sections 71 to '76.

The points noted above support that conclusion.

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. Daulat Ram, A.I.R. 1944 Lah. 349, 350.

2. Abdul Rahman 6: Co. v. Lakmickand, I.L.R. 40 Bom.4o, 69;
A.I.R. 1925 Born. 34, 36 (Refusal under section 21 for want of suﬂicient

description).
3. Gmzgadara v. Smbasiva C1916') I.L.R. 40 Mad. 759 (F.B.).
4. Manektal v.Ka.smrbkm.', I.L.R. 53 Born. 644 3 I.L.R. I929 Bom-
365-
5. See discussion relating to clauses 21 (2) and 22(1).

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
adoptedt.

A few other points have, however, been raised. One is,
that the time of thirty days allowed by clause 23(1) 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. It 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 if 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,
12(2) of the Limitation Act does not in terms apply to
suits under this section'. Though a plaint in a suit under
section 7'7 of the Registration Act is not required to be
accompanied by a copy of the order, yet, in practice, it
will be diﬂicult 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,
he allowed. We recommend an amendment accordingly".

section

Clause 24 mentions "authorities to adopt", and the re-
tention of these authorities will depend on whether clause
I3 (3) is to be retained".

Clause 25 provides that (besides a document admitted
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 oﬂicer receiving a copy of decree, etc.,

I.
7
2. See section 77 (2), as proposed to be amended.
3. See Mulla (1963), page 263, and cases in foot-note (J) there.
4. See Mulla (1963), page 264, foot-note Cr).
5. See section 77 (I), as proposed to be amended.
6
7.

:0: reasons, see Sixth Report, page 34, paragraph 95, and page

. See discussion relating to clause 3(3).
Sixth Report, page 79, note on clause 25.

Clause 24

Clause 2.5

Clause 2 5

"r ti

under_that'c1ause shall prepare a memorandum in the
prescribed form. Under clause 36(1), which Was adopted
by Clause 42(3). a copy of the mcm0I'andum had to be sent
to all Sub--Registrars within whose sub--districts any part
oi the property is situated.

It 'has been suggested. that copying of the memoran.
durn is not necessary. (From the comments received on
other clauses', it would appear that the exsting practice
is only to file the memoranda). It has also been suggested.
that Copylng of the mernoranda will mean mere dup1icaL
tv.:~.n_of work. Since, at present, these lhcmoranda also
are indexed, this change can be safely dropped."

11; may be noted, that the words relating to "memc:'an--
dum" in clause 25 can refer tow

(i) rnernoranda ﬁled where an original document
has been reg1st_ered----clause 36(3);

(ii) rnemoranda ﬁled where a copy has been re-
ceived------clause 42(3).

In the former case, the memorandum is to be sen'-. 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, t.he further
provision of copying out the rnernorandum is unnecesssrgr
in relation to them, in clause 25.

In the second case. only the copies are received by the
Registration office. Since clause 42(3), earlier half, pro-
vides that the copy shall be ﬁled in Book No. 1, in relation
to them also, the copying out of the lvlernnranda unde:
clause 25 is unnecessary.

While dealing with endorsement on documents admit-
ted to registration, clause 26 provides that on every copy
sent to registering ofﬁcer (under clause 4'2~--existing sec-
tion 89) the particulars mentioned in the section shall be
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 will
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 (23 -, clause 36 (3).

Clauses 27-28 seem to make only consequential changes Clauses 37.
as to section references, in existing sections 59-80. 28

Regarding clause 29(1) (corresponding to existing sec- Clause 29(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 4 and in the indices con-
cerned. On this point,- the clause does not seem to depart
iron') existing section 61(1). This comment is apparently
linked up with the similar comment on clause '?(4)----e:-<-
isting section 21 (4)«---and the course to be adopted will
depend1 on the decision on clause 7(4).

Following existing section 61(2), clause 29(2) deals with ClauSt:29(z)

return of the document on registration. A comment has
been received to the eﬁect, that when the presentant has
no interest leit 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.

lause 30(1) makes no change in existing. section 52. Clause-,3o

Regarding clause 30(2), 21 point has been raised that the
reference therein to clause 65 is perhaps a mistake in clause
42. But it is not so. Clause 65(1), (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 officer to send a request to an officer or court
for issue oi summons. A pointphas been made in one com-
ment, that since clause 20(3) widens the powers of regis-
tering oﬁicers 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
oiiicer should himself have the power to issue the summons.
This is covered by clause 20 (3)'-'.

Clause 33 is linked up with clause 32. and. following clause 33
existing section 37, states that an 0i'l'icer or court required
by a registering oﬁ-lcer to issue a summons shall do so on
receipt of the fee. Existing section 3'? uses the expression
"peoirs fee payable in such cases" while clause 33 simply
says "fee payable", etc. One comment Suggests the sub-

I. See discussion as to clause 7 (4).
2. See discussion as to clause 20 (3).

Clauses 34-
35

Clause 36(1)
(3) and (4)

Clause 36---
New point

Clause 37

stitution of "process fee". The expression used in clause-
33 is better and may be adopted if the whole Act is re-
enactedl.

Clauses 34-35 make no change in existing sections.

Clause 36(1), dealing with the procedure where a docu-
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 sending a memo--
ranclum), 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 comments, 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 ac pied,
and necessary change made in clause 36(1) 36(3) and 36H}
(d)3, by removing the requirement of copying.

A new point relating to caluse 36 has been made in
connection with Cantonments. It is stated, that section
287(2) of the Cantonments Act, 1924 (2 of 1924} 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 eﬁect that a Sub--Registrar. on register-
ing a non-testamentary document relating to immovable

property situate in any Cantonment, shall forward a me---

morandum of the document to the authority approved to
administer such Cantonments. The suggested provision-
would be a duplication 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 lawa.

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. But
one comment suggests. that the words "unless it has been
registered" may be placed at the beginning, to make it

I. To be carried only if Whole Act is icdraftcd.
2. See also discussion relating to clause 25.

3. See the list in Mulla (1963), pages 284-285.
4. See Sixth Report, page 3o, paragraphs 75-76.

clear that it governs all the clauses. This Change may be
carried out only if the whole Act is re-enacted'.

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(1) (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
changes. No comments have been received on this clause.

Clauses 39 and 40 correspond to existing sections 48 and
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 the 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 48) because the unregistered documents are "ex
hypothesi perfectly good and effective instruments". More-
over, the giving of such priority was wrong on principle.
The prior document or oral document transfers a right to
the transferee, and the transfer-or 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 got. The existing section. in his opi-
nion, Jeft 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 ﬁr:-;t
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.

1. To be carried out only if the whole Act is to be re-enacted.

2. See discussion as to clause 3 (I)(a),

. See Mulla (1963), pages 174 and 182.

. Sixth Report, page 29, paragraph 74 and page 31, paragraph 77.
. Sixth Report, pages 103 and Io4.

4
5

Clause 38'

Clauses 39-
and 40

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, however, 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
compnlsority registrable, the first Registration Act which
gave them priority over unregistered document, was the
Act of 187?. Before tliis Act, a ifiocument compulsorily re-
gistrable had no priority, so that there were cases in which
persons committed fraud by ﬁrst executing a sale deed for,
say Rs. 50 (optionally regisstrablc) and then executing a
fraudulent sale deed of the same property for, say
Rs. 101 (compulsorily registrahle). The document, though
registered, had no priority over an unregistered document
under the old Act, as it was compulsnrity registrahle. The
result, was that the deed for Rs. 50 held the ﬁeld.

This was not all. The document for Rs. 50 was actually
executed later, but was ante-dated.' It thus defeated the
deed of Rs. lUl. It was to prevent such mal--practices in
respect of documents compulsorily registrable that register-
ed documents were given pI'iO'['i'Cy over unregistered docu-
ments."*--"

The deietion of these sections. sections 48 and 50. might
therefore revive the very malpractice to remedy which the
1877 Act ﬁrst introduced the comprehensive provisions now
found in section 50. That is to sa.V.. 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--dotcd. 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 course 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 type 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. Sea Mulls (1963), page zor, under the heading " Regulations".

,1. See cases cited in Mulla (19631. pages 203-204.

3. See the statement of Ohiects and Reasons to the Bill which became the
1872 Act, cited in Mulls (19631, pace 2o4.

.1. Section so of the 1366 Act (Mulls, page rgql may be contrasted with
section 50, 1877 Act (Mulls, page 200 i.

(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,
while clause 39 deals with competition between a registered
document and an o-ral agreement or declaration.

The second__proViscf_,iI1 clause 39 (added by the Sixth Re-
port to save section 27'(b),. Speciﬁc" Relief Act, 187?), is not
necessary. The existing position is fairly clear} The
SECD_I1d':§;l'0ViSO may be dropped. (The existing proviso '

irelatinyto equitable mortgages VW3.Sj necessary for special

reasons)? . .~. "_

In clause 40, the saving regarding section 53A, Transfer
of Property Act is not necessary, and may be dropped.

Clause 41(1) corresponds to existing section 87, which Clause 41(1)
deals with defects in the appointment or" procedure of the
registering officer. . M T

Clause 41(2) is a new provision, to the effect that any Clause 41(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 in 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
oﬂicer assented to registration or admitted execution. Sub-
ject to these changes, the provision in clause 41 (2) is a use-
ful one, and we recommend' its adoption in a suitable form.

. See Mulla. (1963), pages 169 and 227.
. See Malia (1963), page 163.

I
2
3. Sixth Report, page 36, paragraph 99 and page so.
4

. The existing law is discussed in Mulls (1963) page I34, under section
32. l
5. See section 87, as proposed to be amended.

7-109 M of Law.

Clause 41-
New point

Clause42.(1 )

Regarding clause 41, a new point has been raised to the
eifect 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 281. The proposed
change might appear harmless at the ﬁrst sight. But there
is one risk, namely, in the district where the property is
actually situate, the transfer registered by inadvertence 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 trattsferiinder sections3,edeﬁHitio'ﬁ"
of notice, Explanation 1, Transfer of Property Act. No
change is theref-ere, recommended. as to this point.

Clause 42(1) deals with Copies of orders, etc., to be sent
by the court or oﬂicer. 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-
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
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 memorandaof
appeal.'

{This recommendation was subject to the dissenting note
of Dr. Sen Gupta)"

I. 3322 the cases cited in Muﬂa- (1963), page 126, under section 28, imder
the heading "Registration void if no part", etc.

2. Sixth Report, page 17, paragraph 39 _; page 18, paragraph 40 ; page 37
paragraphs I01 to I03 ; page 7 (under section 39); page 75 ; and page 30
(Notes).

3.SixI:h Report, page' 37, paragraph ma.

4- Sixth Report, Page 37. paragraph 103-

5. Sixth Report, pag I05.

I. The Iollowing chart will show-how the clause-widens
the scope_ of the existing section. ; - -

Existing seotiou $9. _ _ _ Clause 42(1)

(1) Loan under the Land Improvement (a)I.2oim under 'ﬁle Land Im-
Loans Act, 1883. _-- royerncnt Loans Act or the
. p i lculnlrists' Loans Act,
, 1884 (12 of I884)'.

-(g) Certiﬁcate of sale of imisnovahlec 0-_-' Sec (h) below.
party under Civil Procedure C e.

(3) Loan under the Agriculturists' Loans See (:3) above.
Act, 1384. -

(4) Certiﬁcate of stile by Revenue-Ofﬁcer, See (It) below.
granted to the purchaser of i1nn_3ov- s
able property sold by public auction.

(6) Partition 5;'): a-- Reoanue
0 car 5 ' '

_ (c) Vestirlzg Order under the
Charitable' Em'-_'owments Act,
1890, etc;

{J} Grant of intntovable property
" i by or on behalf of the Govern-
., men: ;

(e)_Decree or order of" a court
including one uphoiding pos-
session of defendant under
section 43A of T. P. Act;

(f) Security bond executed infauour
' of a court or public offzcer ;

' '(g)Gan1pos1'n'z_Jn deed accepted by a
. court in msoltztmcy ;

See (2) and (4) above . . , . (h) Certiﬁcate ofsahe grctnteti to the
V purchaser by a civil court or
Z other pubiic offioer.

II. Plaint or merrtoraznditm ofappeol in which immov-
able property is in controversy, ' i s

As numerous Comments raising multifarious points
have been received, it would be convenient if they are
classiﬁed and the pointsinade therein divided,-as follows:--

(1) One.line of criticism " is; that the proposed
amendment will throw'enormo1is work one courts and
registering offices, without =anyr substantial advantage
or beneﬁt 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 .proc.ess[of.sending out copies
involves immense trouble and expenditure, and will
encumber the record of the .- registering Officers. A

Bil

plain: 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 madethe point that
since the ﬁling of a plaint does 'not affect title, its re-
cording' under the c1ause"'wil1 have no use except to
.show't'hat a;suit.has been filed-.- If it is only to give
notice to any party that there is a pending suit, it is, in

' his view, su' erﬂuous, because the doctrine of his pen-

dens is not ependent on notice. Moreover, he pointed
out, a memorandum of appeal does not con.tain'any
description of immovable property, and conveys (to its
reader) nothing 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 1aid.doWn. 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 that thesubsequent words "affecting, etc." do
not apply to "decree or order".

(iv) An r-alternative 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 compul»
soriljrjregistrable"under existing section 17(1)(b). The
decision in Btshnath Sahu v. Prayag Din,' 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." -

(vi) It has;_a1so been suggested, that these changes
may be replaced by a simple provision requiring copies
of _ordei-.. _of courts directing attachment of immovable
property to be registered. .

(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 l7(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 I05. _
2. Bishnath Sahu v. Prayag Din, A.I.'R., I958'All. 820.

3. As to existing law, 7566 Mulla, (1963), page 94.

a compromise and comprising immovable property other
than that which is the subject matter of the suit or pro-
ceeding" it has been suggested, in one Q; 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 re'gis-
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 17(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 dith-
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--theuincrease in work. Even the
existing sketchy provisions are not promptly complied with,
as would appear from one o£_the comments. In this state
of affairs, to add to theburden on the courts and public oﬁi-

_ 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.¢'tionjsf are in relation to
plaints and memorandum of appeal; but the diﬂiculties apply
even to decrees, because the-number, of decrees, etc., affect-
ing immovable property which are being daily passed by
courts must_be'considerably 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 1'? (2). (As regards
section 17(2)(vi) relating to decrees other than compromise
decrees aﬁecting 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

justification, yet the retention of\ section 89 will itself-

necessitate. the retention of section ' 17(2)(vi)--appearing
as clause 42(1) (e)«---in clause 3(2) ).

It does not appear necessary to provide for the compul-
*sory registration of attachment. Attachments are effected
by an elaborate procedure, which itself is intended to
secure suﬁicient 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. * '

Clause 42 (1)
and security
is Duds

Clause 42(2)

Clause 42(3) '

As to security bonds, _the assumption that ._they are

compulsorily registrable under existing section 17('l)(b) ~

need not be examined. There is some conﬂict of decisions
0n'the p01Ii'C, ﬁbted in Mulial and reviewed in the
cas.es.2-"'-4 ' -

We think that it is desirable to exempt a security bond
executed in favour of a court or a public officer in. his
oﬂicial capacity for the due fulﬁlment of a condition
imposed by a decree or order of the court or public oﬂicer.

We recommend accordingly?

Clause 42(2), dealing with piaint and memorandum of
appeal, will have to be dropped.'

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) T the provisions of clause 35 shall apply to such
memorandum.

The object o-If provision" was to state what ste s '

should be taken byithe Registering Oﬂicer on receiving t e
documents, etc. The words requiring preparation of a
memolrcmdu.-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 oiﬁcer in
whose sub--district the property is situate will get a copy
of the document and ﬁle 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
is to apply the procedure under clause 38 --section 64 --'that

I. See Mulls,-(1963), page 94.

2. Bishnath Sahu v. Prayag Din, A.I.R. 1958 All. 820 (D.B.).

3. B. Rama Bhqtt v. Kadanda Rama Bhart, A.I.R. I963 Mysore
332 (D.B.) (Reviews case-haw).
I )4.Kc:5e#taIf v. Ajoymdu, A.I.R. 1956 Cal. 375 (D.B.) (Reviews case»
IW .
5. See section I7 (2) (via) (new), as proposed to be inserted.
6. See discussion under clause 42 (I).
1. Sixth _Repor!, page 59, clause 42 C3) ","11'8ln31 em'?-
8. As to ﬁling, see existing section 89 (xi (2), etc., last 6 words.
9. See Sixth Report, page 31.

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 Rules' 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 ¢1,,u5e4,(4)
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 same effect as if the document had been registered
under this Act. The reason for this change was thus ex-
planned3---

'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 registration'.

Now, this change has provoked two comments. One is,
that between the words "under" and "this section", the
Words "sub-section (1)" 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. The other
comment states that the ﬁling of copies under this section
should have the effect only of notice "under the Transfer of
Property Act and should not have the same effect as a re-
gistration. -

Now, the 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(1), is the main "Register of
Non-testamentary documents" relating to immovable pro-

~ party. One of the objects of registration is tobring into

I. Rule 88 of the Madhya Pradcshllulcs _(cited in the suggestion) provides
that only the copies 8: niemoranda mentioned in the rule shall be ﬁled in Book I
or Book 4. Rule 89 relates to "Supplementary Book 1'-' being a separate ﬁle
book for copies mentioned in rule 88 (6) to (g). Rule 90 relates to " Additional
Books I and 4." for spam: 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.

Clause 4_2- -
New point

Clause 43

I 88
being a statutory record under ofﬁcial machinery of trans-
actions of value, and the ﬁ1tng'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 therein'. Since these
are not documents "required by section 17 to be register-
ed," section 49 may also not be attracted.

A certiﬁcate of sale also may not he an "instrument"
requiring registration? T'herefore, 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 cons-
tructive notice).

7 The need for this provision was, therefore, considered at
length by us. Documents. ﬁled under existing section 89 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 the proposed new provision. The doubt
raised in the Sixth Report" on the subject relates to a srnall
area', namely, sale certiﬁcates.

.. (So far as section 3 of the Transfer of Broperty Act is
concerned, that applies only where the documents are com-
pulsorily registrable). .

Clause 42 (4) may, therefore-, be dropped.

It has been suggested in one of the comments that since
under rule 11(E) (2) of the Evacuee Interest (Separation)
Rules, 195-1, 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 etfect that an oﬁicer 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 (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--applicaton of section 50, see Mulla, (1963), page 279 and
2.80, footnote (j). '

2.6; . Mulla. (1963), pages I05 and 2o7, and also case at page 280 foot
-note 1. ' _
3. Sixth Report, page 38, paragraph 104.
4. See'Mul1a. (1963),'p-ages 279 and 280.

his death." This chan"e appears to be apart of the scheme
proposed regarding dgeposit of-will-1. Many wills, it was
stated, were accumula-ting in the Registration oflices untiL
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 reference 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 (1) --existing section 45 (1),------and delivered to
the nominee under clause 46(1), last_ portion, (Other
changes are--not relevant fora; consideration of clause 43).
Thus, nomination is compulsory under the proposed pro-
VIS10n. .

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, astaga-inst 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-
tained", the proposed provision need notzbe disturbed. Even
otherwise, we do not see any objection to a provision en-
ablifig nomination. But We think that it should be con-
ﬁned 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-
gery.

We recommend an arnendfnent of the section according-
ly". - i

Clause 44(1) embodies existing section 43(1) dealing
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, paragraph .72 and page 31.
2. See clauses 46 and 48. .; -.'-

3. See section 42, as proposed to.'be amended.

Claus: 44(1)

'CI-ause 44(2)
Clause 45

-Clause 46

the cover. For the latter action, the word "endorse" is
more appropriate; It is, however, unnecessary to make such
a minor and verbal change.

Clause 44(2) 'makes no change in section 43 (2).
Clause 45 corresponds to existing section 44.

Clause 46 proiqoses the following changes in existing
section 45 (proceiedings on death of person- depositing
wi11]--- '

(1) Under the existing section, after death, on
application made to the registering officer. the latter
has t_o_open'_ 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-
deposit is gnﬁtted, for the reason' that it has been re-

' placed by 3 provision for delivery of the will to '=:he
;notn'mee ojfjthe testatorﬁ the nomination being under

-(ii) Under the existing section, if the will remains

in itcontinues so indeﬁnitely; while. unc'[er

clause 4-6' 2), if no steps are taken.-for withdrawing the

-will {by t testator) or for delivery of the

deposited wi1].~'to the nominee, then the Registrar has

to fbllow the procedure for. the destritction of the will
as given intclaqse 48. = - _

Now, dneipoint ihade in the comments received, is, that
at the" time of th'es.,,a.p§plication under clause 46(1), the
nominee of the tesﬁatczr would rarely accompany the appli-
cant. Hence the provision for delivering to nominee would
-never come into play. Another comment suggests that the
procedure of no:nina_tion_.-A under clause 43(2) should be
deleted .'and_-corxsequentially the provision for delivery 'to
the nominee should also be deleted and existing position
as in section 45 res',t01';ed., A third point is that provision for
retgﬂr;-n of wills at lying in deposit should also be
1118 . 'I ." gg ' --

_ If the 'provision for nomination is retained', then the pro-
vision for delivery to the nominee has also to be retained
'The ossible 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 i _
(ii) the appli__oe.tion'"rnay:.be made but the copying
expenses not tpa_id;_ or -~
:. sirth Report, put: 28, paragraph 72.

2. See clause 43 (1.) as to nomination; .
3_ 353 the discussion iiﬂtfer dlause 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 end his nominee, thereafter
opening the will, further notice to the executor and
beneﬁciaries under the opened will, and (if no steps
taken for registration of the will) ultimate destruction
of the Will. i

As the scheme of destruction of wills is to be altered1,
-clause 46(2), will also require changes. Our proposal for
voluntary nomination" 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 at present, that is not a matter which
can be dealt with in a new Act.

One suggestion regarding clause 45 is that the Registrar
on appli_cation or sun motu should open the sealed cover
on being satisﬁed of the testatoi-'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 ﬁle it. "But opening sno motu may
be risky. Opening on application is already covered. Hence
no such change is needed".

Clause 47 (1) corresponds to existing section 46(1).
The reference to section 294, Indian Succession Act, 1925
may be substituted' (as proposed in the Sixth Report),
in 'place of reference to the old Act.

Clause 47(2), which follows existing section 46 (2),
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-

ense 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, who-rounder wills deposit-
ed with the Registrar are to be disposed of by destruction
(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 1st
July, every third year to the depositor and his nominee,

1. See discussion relating to clause 43. '

'3. Su discussion relating to clause 43 (2).

See section 43, as proposed to-be amended.
See amendment proposed to section 46.

. The matter can be -left to rules. See Bihar Rule 87, Mulls, (1963),
Page 345-

3
4
5

Clause 46-
New point

Clause 47(1)

Clause 47(2)

Clause 43
(New)

inquiring about the dcpositor's 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 ofﬁcer not below the rank of a subord1~
nate jud e. He has then to give notice to the executor
and bene ciaries 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 Destru'ction of Records Act, 191?. This procedure is
a part of the proposed new scheme dealing with u_ril.Ls1.
It was stated in the Sixth Report" that it had been pointed
out that numerous sealed covers containing wills" had
accumulated (in registrar's' oiﬁces), 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 {or 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 Registrar's
work and also the work' of the subordinate judge. When-
ever the probafe'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
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 Officer", the "Registrar" may be
substituted.

It has also been suggested, that a notice should be issued
on the 1st July of every year in respect of any sealed cm:er
which remains unclaimed for more than 10 years on that

._ date.

There appears to be some substance in thelobjections
based on the 'ground of increase of work and expenditure.
Though the proposed provision, would be a useful one,

I. Sixth Report, page 28, bottom, paragraph 72.
i 2. Sixth Report, page, 28, middle.

its implementation ma [perhaps ..be impracticable. The
provision is, thus, like y to prove _i_ncon_ven1ent, and has;
for that reason, to be dropped. . - n -

Ciause 48(3). deals with._.-'r;.ht actual procedure for the
destruction of wills. Since the whole clause has to _oe
droppedl, the detailed comments on clause 48(3) need
not be considered. ' -- ' . _

Clause 49(1) embodies existing section 3(1) relating to
the appointment of the Inspector General of Registration.
Anew point ha-sheen made in a comment to the effect that
Munsii Magistrates in the Taluka 'and District Magistrates
should be given powers for supervision over the day to
day Work of sub-Registrars and Registra-rs respectively.
We consider that this rnatter"dep_ends on the administra-
tive pattern adopted in each State, and a general amend-
ment for the whole country is,unne_cessary.

Clause 49 (2) embodies section 3(2), and no cornments
have been received, on this clause.

Clause 59 '1-eproduces section 5, and no comments have
been' received on this clause. ' - .

Clause 51(1) corresponds to' existing 'section i'(1).

Clause 51 (2) embodies existing ~ section 7(2), with the
substitution in the proviso of, "reference" for "appeal".
This change is consequentia1__on. the changed procedure
under clauses 21' and 22, and if those clauses are alt'ered2,
the word "appeal"_ has to be restored-in this-clause also.

C lausc 48(3)

Clause 49(1)

Clause 49(2)

Clause 50.

Clause 51(1)

Clause 5I(z)

Clauses 5-2 to 54 correspond toiexisting sections 8, t1),'CI-antes 52

part, and 68, without changes. No comments have been
received on these clauses. .

Clause 55 deals with absence or iracancy in the oiﬁce of
the Registrar. It departs from existing section 10, by
omitting mention of "the Judge of the District Court".
Under section 10(1), later half, indafault of appointment
by the inspector General, the "Judge of the District
Court" acts as a Registrar. This provision does not apply
to Presidency towns, where, under section 10 (2), only a
person whom the Inspector ﬁeneital appoints is the Regis-
trar 'until the State Government -ﬁlls up the vacancy. The
provision authorising' the__Distri_ct Judge to act as a Re-
gistrar was proposed to the yfzmoved by the eariier Report"
on the ground that there was no reason why there should
be any difference in this respect between the areas 'dealt

I. See discussion relating to clause 48.
2. See discussion relating to clauses 21 and 22.
3. See Sixth Report, page II, 'paragraph 24.

to 5-:

Clause 55

Clause 56

Clause 57

Clause 58

Clause 59 _

Clause 60

Clause 51

with, by sub-sectidhs <1) and_ (2.); tie. the mufassil and
Presidency towns. The earlier 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 G_en.eral makes a default iniappointing a Regis-
trar immediately owing to pre-occupation. We think, that
there is some force in the comment, and restore the exist-
ing section. " ' - l- 4

.. Clause 56(co;rpsponding toiexisting se_ction 11) omitted
the excepting words,' i.e., the last 'eight Wordswhich run
'.'except those mentioned in sections 68 and 72".-'.'1'he clause
has provoked no c'o_n:iments.._ We', however, would like to
retain the existing section.

Clause 57 corresponds tdexisting 12. It has pro-
voked no comments. .

Clause 58, following eilisting section 13 (1), provides

- tha.t.'all appointments under sections 10, 11 and 12-clauses

55, 56 and 57----~shall be reported to the State Government

by the Inspector General. A point has been made in the .

comments received-on this provision, to the .-effect that
this clause should be deleted. The statutgry cliuty to sen-id
1-warts, it is serves nO._fpl1t'pOSE:: or ene t. Apxgoin :'-
ments are made «the Rules, and (it is stated)
ti;e_r~e.,is_.no point in the Inspector General's sending 3'
report toithe State Government. The section, however,
is harmless, and may beArét,uJ;ined. Section. 13 (2), which
was omitted in the Sixth Report, rnayalso be retained.
It was regarded as unnecessary in the Sixth Reportl, but

we'_&b not share that ' view.

Clause 59lcombines existing sections 14 and 16. It has
provoked no comments.

Clause 60 corresﬁoncis to existing section 15. It has pro-»
vol-red no comments. '

- s cLause"s1 deals' with the 'register books to be kept in
the" Registration offices. It -'departs .froxg1 existing sections
51 and '52 (2), oirthe following points:'--'i-

t (i) It' provides that "memoranda" prepared
under clause 42- or received under clause 36 shall be
enteredin '3Book_N'o. 1. This is' consequential on "a
similar provision in 'c1ause"'25, clause 36 and clause
42(3), latter half; "

(ii) It provides that copies of decrees, etc., re-
ceived under clause 42 shall be ﬁled in Book No. 1',

I. Sixth Report, edge 32 (notes).

(iii) If any of the books is in danger of being
destroyed or becoming illegible, it authorises the
--Registrar -'to 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 a
provision had been pmade 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,
52(2)};-egarding authentication of Books, with this
pmodiiica-tion, that it substitutes "State Government"
for "inspector General";

(v) The existing heading of Books No.---2"R=ecord
of reasons for refusal to register"---is changed into
"-'Record of reasons for referring a document to the
Registrar". Consequentially, in the offices 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
clause, 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 "Register of reasons for re-
ferring, etc.", Book No. 21-1 as _"Register of reasons, etc."
and Book No. 4 and Book No. 5 should he 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.
P_is to register of persons presexlting dcicuments, presenta-
tion is not on the same footing as registration. The change
is not needed. ' '

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 otitained 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
b_y the Registrar from the Regzister is allowed under sec-
tion 57_ (5) of the Act, and that is enough. Another point
inade is that the entering of memo;-anda in the Register,
IS not necessary. Another point made is that provision

1. Sixth Report, page 32, paragraph 79.
2. The clause is clause 61(5), in Sixth Report page 55.

Clauses 62
and 63

Clause 64

Clause 65(1)

should be made for keeping register Book No. 1 and Book
No. 4 in the form of" a ﬁle book ﬂour-the registration. of
documents of a'temporary- chumcter, which _are so pre-
pared s that piﬁinted copies-smay beﬁled in the Registration
office instead-of the document being copied by hand. . This
seems -to be-Ha-iuseful suggestion, and. may be accepted'.
Some safeguards Wilt-'-be necesssryto prevent tampering,
and the'safegI.1ards-e-can beiprovided.-for by rules. -

It may be noted, that . nine of the changes made by
clause 61 are consequentiajjion thechanges a proposed. by
other _ clauses. .-- Thus, co}">yin'g«'of memorsnda is linked up
with clauses 25, 36- (1) and 42 (3), latter half; and filing
of thehcopies is linked up with clause 42. Nomenclature
or Book No. 2 and Book 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. . '

Regarding _c1ause"61(5),"it' is a useful provision, and
We recommend its -adoption".

Other changes Emade by the. sixth Report or suggested
in the comments are not necessary.

Clauses 6_2 and B3. correspond to existing sections 53 and
54, and have provoked no comment. .

C1au_se,ﬁ4(]_) corresponds to 'existing section 55(1),

Under clause 64(2), corresponding to section 55(2), Index
I is to contain, besides the _na_mes,'etc,, of executants, s-tc.,
"every memorandum copied Li1i_'Book 1" etc. The entering
of particulars of _ ch memoranda is an 'addition to existing
section_55(2). This cliange..,was made b_ way of imple-
menting3 the "scheme recomrnended under existing section
89. the 4:opyin'g"of- the memorandum is to be dropped}

this also has to be dropped.' '

Clauses 64(2) 'to (6).,r.emb_ody existing sections 55(2) to
55(6), with certain 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 adoption."

Clause 65(l,),c;0rrespo_ndAs' to existing section 57(1).

. See section 51 (3A),' as iproposcd, to be "inserted.
. See section 51(5), as proposed, to be inserted.
. See Sixth Report, pageaaa, paragraph 82. '

. See discussion under clauses' 25 and 36.

. See discussion under clause 42.

. See section 5 5 (7), as proposed, to be inserted.

GNUK-P-b.)[¢I-I

=97

Clause 65(2), following existing section 57(2) pI'0V.=.CleS C-iause€5(2)

lthat copies of entries in Book 3 .(Re_gister of wills) and the
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~
mentsl-2 to the 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: 653

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 that this Book is not a secret document and
suggests that it should be open for inspection of the public.
We do not agree_ Book 4----which is "Miscellaneous Regis
ter"--contains document relating to movable propertya. 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)
65(4), which follows existing section 57(4), mention of Book
)5 may be added. As in clause 65(2), this change is not
made", then no change is required in clause E35 (4).

Clause 66, dealing with fees, gives the power to fix the Claus': 55
fees to the Central Government (Union Government). while
existing section 78 gives that power to the State Govern-
ment. Explaining the reason for this change, the earlier
'Report5 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 reg'istrat'ion fee was unduly
(high 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 differ from State to State, and, therefore, uniformity
cannot he 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-
tiﬁcate" should not (be very high. "because the debtor who

1. Comment of a State Government.

2. "Comment of an Inspector General of Registration.
3. See existing section 51(3). '
4. See discussion under clause 65(2).

5. Sixth Report, page 35, paragraph 9'6.

.'.8--.109 M of Law.

.4.'

Clause 67

Clause 68

would require it is already heavily burdened ﬁnancially.
Another comment makes the point, that a new sub-section-L

should be inserted to empower the State Government to:
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 behindlthe objection to the pro--
posed change, and recomrnentithatrthe power should remain
with the State Government (as. at present); Since admin--~
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-gs-rant' exemption, we may refer'
to the amendment made in I956 by the State of West Eienv
gal,' inserting section; 78(2) to the effect that the State Gov-
ernment, if it is of opinion that there are reasonable grounds'
for doing so, IT1aj5F'I1eII1'l'lZl'al'1'§1*?ﬂ?eS_-irl the whole or any part:
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 l:ie'usefuI'provision which can'
be added. We recommendz accordingly;

Clause 67 corresponds-rt'o' exi;'sting_'section 79. It has pro---
voked no comments.

Clause 68, following existing" section' 80, pmvides that'
the fee for registration shall be payable on the presenta---
tion of the document. The comments received on this'-
clause have pressed for the ihclusi'on'ofi'a provision to the
effect that if the registration fee could' not be realised in:
full (on presentation), the deﬁcit' 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 Boner ﬁiie reasons. We appreciate 'the-
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
belonging to another class carrying a 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 diﬁiculties 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 Iimit
for recovery, and will not' be worliable without' a tietailecf
procedure for calling upon the presentant or his assigns or
heirs, etc.-., to pay for the deﬁciency. In the absence of pre-

1. See Mulls, (1963), page 267," citing the West Bengal Ame-rc'-iruIt..
2. See: section 78., propﬁsed to be amended.' '

cise details of the provision desired, we cannot recommend
its adoption.

Clause 69, following existing section 81, prescribes the C1-W565!)
penalty for a registering officer or other employee W110
endorses, copies, etc., a document in a 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 03718?'
record, or any entry therein or the contents thereof".

The matter seems to be covered by the Indian Penal
Code}-2 though there is some controversy regarding acts of
officers." No change in the Registration Act appears to be
called for.

Clause 70 corresponds to existing section 82, The inser-- Clause 20-
tion of a new provision for the control of document writers Egegrﬁﬁln'
has been suggested in a few comments. The provision Iicﬁnsinggof
would, it has been suggested, be to the effect that, from a document
notiﬁed date no person shall write a document for another Wine"
person for presentation to a registering ofﬁcer except under
the rules under this Act. Contravention would be punish--
able with ﬁne 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 3 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.'-5-' 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
1960.7 See also a similar amendment by Rajasthan Act 17
of 1950 and Travancore Cochin Act 25 of 1952.7

We are, however, not inclined to introduce such a provi-
sion, as we are not sure whether it would be really
beneﬁcial.

I. Section :u;_i-cad with section 464, second clause, Indian Pcnal Code
forgery) and section 466, Indian Penal Code.

2. See section 29, Indian Penal Code also.

3. Ratan Lal, Law of Crimes. (1966), page 1248.
4. Millla 11963], page 272.

5. See Mulla, (1963), page 269.

. As to the validity of rules under the Bengal Act we Da'1m'u arc. Asm-
ci.:m'an v. Sum, A.I.R. 1963 Cal. :24.

7. Sn Muﬂa, (1963), page 245.

eclause 7o(c}

Clause 71

Clause 72

Clause 73

100

Clause 70 (C), following existing section 82,
punishes a person who "falsely 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 imaginary" in place of "per-
sonates another". The suggestion, apparently, is intended
to supersede the decision1 to the effect that there must be a
"331 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 a 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, 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 he a
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
purpose to be necessary.

Clause 72 corresponds to existing
provoked no comments.

section 84, and has

Regarding clause 73(1), which corresponds to existing
section 88, a comment has been made which relates only to
the typography of the draft. The words "to appear in per-
son . . . . . . .." should govern paragraphs (a), (b). (C) aricl (d).

1. Emp. V. Rcmgamma, ALR. 1935 Madras 913, 914.

2. See Ratanlal, Law of Crimes . (1961:). page 526. Other sections in the
indian Pena1C0de dealing wilh 11-npersonaiion are 140, 1:0, :71, 17: D and
.416.

3, cf. the Explanation to section 416, Indian Penal Code.
4. Su section 82, as proposed L0 be amended.

5. Sixth Report, pages 35-36, paragraph 97.

'6. 53¢ Mulla, (I963). Page 273-

,7, __-5'" segtiorl. 83, as proposed to be amended.

101

Clause 74, corresponding to existing section 85, pro-
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 are concerned, their destruction may not matter,
because the possession would have been delivered ordi-
narily at the time of the execution of the document.
will, however, is intended to speak only from a future
date, and its destruction might cause inconvenience to many'
persons. If the testator has not died in the mean-time
and has not made another will, then the will lying with
the registration oﬂice 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, be 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 be accepted'.

Clause 75 embodies existing section 68', which is a pro-
vision to the effect that a registering officer 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 eﬁect 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 case V had"
n.ot disputed the genuineness of the 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-
decisions3-'* 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 powers in
the Inspector General, while clause 76(1) vests it in the

I. See section 85, as proposed to be amended.

in ;.Kam.Faa.-iatrssm V. Venkacachalam, A.l.R. 1945 Madras '11, 12,
an .

3.SieWh 5}: .Pbl:Iz, 88)I.L.R.8B in
Also see (1380? 5" Calgtlttz :;5,(I44§1. om all 269" 271'

4. Sn Milla,(I963), Pag; zlio.

left'

Clause 74.

Clause 75

Clause 7ls(1:';:

Clause 76(2)
(9) and (la)

Clause 76(2)
Uz)--New

point

C_lase 76(2)
(1)

Clause 76(2)
other points

Clause 76(2)
New point
regarding
domment
writers;

Clause 77--
Exemption
for Govern-
men:

102

State Government. The change is in accordance with re-
cent practice, and may be adoptied'.

Clause 76(2)(e) [corresponding to existing section (39
(l)(g)] and clause 76(2)(h) [new] propose certain :han-
ges which appear to be consequential on the add:.tions
made by clauses 61(2)(b) and 64(7). In brief, they deal
with the "manner" of copying and authentication of cer-
tain books and "manner" of recopying of certain indexes.
An objection has been raised that the word "manner of"
are not clear; we do not agree.

Regarding clause 76(2)(h), a new point has been raised
in one comment to the effect that, since clause 61(5) pro-
vides for re-copying of books which are in danger of being
destroyed, power to make rules regarding such rearopying
should also be added in clause 76. The suggestion may
be accepted'.

Clause 'i'6(2)(i) empowers the making of rules as to the
notice to be issued before destruction of documents. As
notice has been provided for", this new provision may also
be adopted'.

Other additions and changes proposed by the Sixth
Report under clause 76(2) appear to be unnecessary, and
may be dropped.

Regarding the rule-making power under clause 76(2),
a new point has been made to the effect that there should
be power with the State Government to make rules re-
gulating the profession of document writers. The desir-
ability of a provision for licensing document writers has
already been separately considered-".

Clause 77 exempts certain documents from registration
(see existing section 90). The question whether the Cen-
tral 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 ﬁnd 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 69, as proposed to be amended (relating to powez to make
rules).
)2. See section 69 (I), as proposed to be amended (relating to re--c0py--
mg .
3. Sn discussion relating to clause 74 (existing section 85).
Q. See section 69, as proposed 1o'bc amended (relating to notice before
destruction).
5.Sed discussion relating to clause 70-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 77, it is not clear if in the

Sixth Report 1, 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 "verhal_ Changes". The draft of

"the clause? speaks of "Sanads, Inams, title-deeds, grants
and other documents affecting immovable property mode

by Government". This wording is different from the word-
ing in existing section 90(1)(d). (There is some contro-

'versy3 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
'7'? also).

In any case, it is unnecessary to exempt all Government

«documents.

Provision suggested in one of the comments, to empower

the Central Government to exempt Government documents
jrom fees, is also unnecessary.

Clause 78 embodies existing section 91 with very minor Clause 78

'verbal changes, which need not be carried out as the whole

Act is n.ot to he re-enacted.

Certain sections were omitted from the existing Act in ommed

"the 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 17(1)(c) provides for the compulsory re- on irted

-gistration of non-testamentary instruments which acknow- 5'"--°''-l°" '7

ledge the receipts or payment of a; \ consideration on ~'

account of the creation, declaration, etc.. of any right, title
-or interest (in immovable property). This was omitted' in

-«document effecting the substantive transaction was 11;;

the Sixth Report. The reason for the omission of this clause
-was, that there was a confiict of decisions on the question
whether this clause came into operation only where the

1. Sixth Report, page 38, paragraph 105 and page 83.
2. Sixth Report, page 71, clause 77 [1] Id).

3. Sr: Mulls, (I963) , page 281,

4. Sinh Reports page :3, Paragraph 29.

Omitted
section [7
(21 re)

I'M?

registered, or' whether, even if that transaction was evi---
denced 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 Transfer" 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 long,
as the Transfer of Property Act is not made applicable: to
all States and Union Territories, this clause should be 11--
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 17(1)(c) does not apply
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, name-iy,_
instruments which acknowledge the receipt 01-'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-rdingly.'

Existing section 17(2)(ii) exempt from compulsory re-
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 reason' that section 82'
of the Companies Act, 1956 already lays down that a sham
in a company is movable property. Section 82 runs as fol-
1ows:--

"82. The shares or other interest of any member in
a company shall be movable property, transferable in'
the manner provided by the articles of the cornpanfy".

A comment has been made to the effect that ifthe shares'
contain any contract for the sale of immovable property
worth over Rs. 1,000, they should'need' registration. We do-*

1. Se: discussion in Mulla. (1963). page 60; afso Mulls, rage 99 trcfr-gr
"Recital l'10l received".

2. See also discussion relating to clause 3 (I).

3. Sixth Report. page 14. paragraph 30, latter half.

4. See sec'ion 1:: (ma), as prrposed to be anzrndcd...

5. Sixth Report, page 17, paragraph 35.

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 82, 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 1'7(2)(vi) saves from compulsory regis-
tration a decree or order of a court (excepting certain
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
i.lSlEfUl purpose. The matter has been considered separate-
y.

Existing section 23A, regarding re-registration of certain
documents accepted for registration from a person not duly
empowered to present the same, has been poposed to be
omitted by the earlier Report," 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 40'
not falling under that list.

and to include other persons
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 son
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-

Omitted
section 17'
(2) (vs

Omirt r c"
section 2391»

ever, recommend, that section 23A be retained as the sav--

ing provision which we propose," is narrower than that
proposed by the Sixth Report.

I. Sixth Report, page :7, paragraph 39.

2. S3: discussion relating to"cIause 42 (I).
3. Sixth Report, page 20, paragraph 50.

4. clause 41(2).

5. Sada:-sane Ran v. Seethammamma, (15333 Madras Weekly Notes 1148;.

1155 [Division Bench}. Set Mu]'la,(r§63),_3; get' .
6. See recorrnnendation regarding clause4I (2).

'Omitted
section 70

-Oinitted
Section 73,
and 73

Amendments
n n the Code
~01" Civil
Procedure

106

Existin sect'o 7 ,

Registratidgn to rlerrnitﬂthauyhorlies the Inspector General of
e dlfference betweer an ' f 1- '

Under existing S-Ectiﬁn 25 or section 34 and thy ame title?
_+h - . , '- e_'mou.1:r. o
eaelﬁgoiﬁgpigeéistratlon fee. Thls SECL1-'_)n_ was Omuted by the

, , in VIEW of the fact that in the clause- re
1 t t _ ._ 5' '

ﬁring this proposal? irtie jos E;e1S(:r91_niy£ «as We are modi-
Section 70 s a 3 0 etam existing

L Existing S€§'ti0ﬂs 72 and 73 provide for "application" to
he Registrar 1I1 respect of orders of the Sub-Registrar re-
Iusing registration. These sections were omitted hy the
earlier Report: in View of the scheme proposed in that He-
port substituting reference in place of appeal. As that
scheme is now 'to be abandoned,' sections 72 and 73 will
have to be retctmed.

Code of Civil Procedure

. Certain amendments were suggested by the earlier Re-
port in the Code of Civil Procedure, 1908. One was to the
effect that under Order 21, Rule 16, Code: of Civil Prc-ce~
dure, a provision "be added making it obligatory on the part
of the assignor of a decree to report the assignment to the
court after notice to the judgment-debtor, within three
months from the date of the assignment. This recommenda-
tion' was made while proposing modiﬁcation of section
17(1) (e) of the Registration Act so as to exclude executable
decrees or orders. The reasoning was, that under Order 21,
Rule 16, the assignment must be in Writing, and therefore
the further requirement 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 re-
quirement of registration [in section 17(1){e)] would further
'lose its force. As the change proposed by the earlier Re-
port in section 17(1) (e) is not to be maintained," this re-
commendation need not be carried out. (The comments
received on this recommendation state that a decree cannot
be executed an present unless the transfer is recognised by
the court after notice to the judgment--debtor, and therefore,
reporting by the assignor would serve no useful purpose.
Another comment states that the obligation should be on
the assignee, under the Code 0*' "ivil Procedure).

2:. Sixth Report, page 33, paragraph 90.

2. See iiscusshn relating to clause :0 and clause 18 (1) proviso.

3. Sixih Report, page 34. paragraph 92 and page 73, (mics); diSCl1-°sion-

Itlating to clauses 2-I and 22.
.5}: discussion relating to clauses 21 ( I) and 22.
5.. Sitth Report, page 15, paragraph 32.
6. See discussion relating to Claupe 3 (i) (cl).

107 . 5

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
I-.»;.:;.~.1ure, 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 42(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).

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