REGISTRATION
OF SALE DEED: PRESENCE OF PURCHASER NOT NECESSARY
Many people may not have probably
heard of the fact that there is no necessity of a purchaser to present himself
before Sub- Registrar for seeking registration of a document/sale deed and even
in his absence there is no embargo in registering the document such as sale
deed. The hon’ble Supreme Court has set at rest any ambiguity or ambivalence in
this regard while pronouncing judgment on 24th January, 2020 in a matter
captioned as H.P.Puttaswamy Versus
Thimmamma & Ors., bearing Civil Appeal No. 3975 of 2010.
The transactions in immoveable properties or any interest
created in immoveable property for a period of one year or above shall be
liable to be registered compulsorily u/s 17 of the Registration Act, 1908( In
short “the Act”) is not in dispute. As regards procedure, though, when the
registration of document can be stated to be completed and further, whether the
presence of purchaser in respect of a sale deed before the sub-Registrar, at
the time of the registration of the document is a must or not is now settled.
The section 17 of the Act contains the details as regards the
instrument does not crave fir registration.
Be that as it may, to put in perspective, in the aforesaid case,
before the court of first instance, it was held that the purchaser of the
property was not present before the Sub-Registrar and therefore, the sale deed,
so registered cannot be treated as genuine. The 1st Appellate court had
accepted the reasoning of trial court and the matter was raised in 2nd
appeal u/s 100 of Code of Civil Procedure by the aggrieved party, before
hon’ble High Court of Karnataka. The High court had set aside the orders passed
by the court below and held that sale deed dated 21st April, 1981 to
be valid relying on Sections 32, 34 and 36 of the Registration Act, 1908 read
with Rule 41 and 71, Karnataka Registration Rule 1965. The High Court had observed
and held as under:
A combined reading of the
above sections of the Registration Act and the Rules mentioned above makes it
clear that the presence of the purchaser is not required when the document is
presented for registration before the Sub Registrar. It is further held that:
“The Trial Court has failed to take note of the aforesaid provision
of law of the Registration Act and has erred in holding that merely because the
defendant was not present the sale deed in his favour cannot be taken as valid
in law. The said conclusion reached is contrary to the above mentioned
provisions of the Registration Act and the Rules. As such, the said finding
cannot be sustained in law.
Once, the sale deed in favour of the defendant is held to be
valid in law and the said sale deed being executed earlier in point of time by
the vendor, the question of the said vendor retaining any interest in the suit
property will not arise and, as such, he could not have once again sold the
very same property on a later date i.e. 28.5.1981 in favour of the plaintiff.
Therefore, the substantial question of law raised is answered in the negative.”
To be noted that, the Section 32 of the
Registration Act, 1908 entails presentation of the document to be registered at
the proper registration office by following categories of persons:
32. Persons to present
documents for registration.—Except in the cases mentioned in [Sections 31, 88 and 89], every
document to be registered under this Act, whether such registration be
compulsory or optional, shall be presented at the proper registration office,
(a) by some person
executing or claiming under the same, or, in the case of a copy of a decree or
order, claiming under the decree or order, or
(b) by the representative or assign of such a
person, or
(c) by the agent of such a
person, representative or assign, duly authorized by power of attorney executed
and authenticated in manner hereinafter mentioned.”
There is evidence to the
effect that purchaser had not come to the office of the Sub Registrar at the
time of execution of the sale deed. But as per law as it stood at the material
point of time, there was no necessity of presence of purchaser at the
Registration Office during the registration of sale deed. The execution of deed
and that aspect has not been disputed. The deed in question does not fall
within Sections 31, 88 and 89 of the Registration Act 1908. Section 32 of the
said Act does not require presence of both parties to a deed of sale when the
same is presented for registration.
The Section 31 of the Act mandates
that the document is to be presented for registration in appropriate office,
authorized to receive such a document. Similarly, Section 88 of the Act
provides that it shall not be necessary that following person shall appear
before the Registrar in person or by Authorised Agent:
(a) any Government Servant
(b) any Administrative
General, Official Trustee or Official Assignee or
(c) The Sheriff , Receiver
or Registrar of a High Court, or
(d) The holder of the time
being of such other public office as may be specified in a notification in the Official
Gazette issued in that behalf by the State Government shall appear in person.
As per Section 88(3) upon
satisfaction of the Registrar, in a manner provided in the sub-section, the document
can still be registered.
The Section 89 of the
Registration Act 1908 encapsulates the provision that sale certificate in
auction or certificate issued by any public Authorities shall be sent to the
Registrar Office, for registration and the same shall be registered.
The hon’ble Supreme Court
has held in the above reference as under:
“As per law as it stood at
the material point of time, there was no necessity of presence of purchaser at
the Registration Office during the registration of sale deed. The deed was
executed by Vendor and that aspect has not been disputed. The deed in question
does not fall within Sections 31, 88 and 89 of the Registration Act. Section 32
of the said Act does not require presence of both parties to a deed of sale
when the same is presented for registration”.
The hon’ble Supreme Court
has thus held after analyzing the relevant provisions of the Act that the high
court had rightly dismissed the appeal, in as much as, as per the provision of Registration
Act, there is no need or compulsion of the purchaser to present himself before
the Sub-Registrar for executing the sale deed or for registration of documents.
REMARK
It is therefore crystal clear
that as per the trap of Registration Act, 1908, a purchaser to a sale deed is
not mandated to be present in person for seeking registration of sale deed and
so long as the document is in order and no dispute emanates there from, the
physical presence of a purchaser is not necessary. Of course, with a view to
ward off any ambiguity , the parties present themselves before Registrar for
seeking to register a document, but the same is not a dicta nor procedure necessarily
entails that. The parties remain present conventionally and with a view to
avoid any dispute or prospective dispute, though, as illustrate, the purchaser
is not required to be present before the Registrar’s office as per the mandate
of law.
Anil K Khaware
Founder & Sr
Associate
Societylawandjustice.com
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