Right to property had been a Fundamental Right enshrined in the Indian constitution but after its amendment, it forms a constitutional right only. Property laws differ from state to state, the transfer of property falls under the concurrent list through there are exceptions to the same. Exceptions being agricultural land, registration of deeds and the documents. The documents required for the same are covered simultaneously in the Transfer of Property Act, 1882.
Section 17 of the Transfer of Property Act, 1882 defines all kinds of documents for which registration is mandatory. The following are such documents:
- Instruments of gift of immovable property
- Instruments which create or extinguish any right or title to or in an immovable property of a value of more than Rs. 100/-
- Non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interests
- Lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent.
- Non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.
This Act provides that non document other than a will shall be accepted for registration unless presented within four months of the date of execution. In computing the period of four month, the day on which the document is executed is excluded. It is not essential for the registration of a document that it should be dated. If the document does not bear the date of execution, oral evidence is admissible to prove the date. In a case where the defendant executes a sale deed in favor of the plaintiff but he refuses to get registered, two remedies are available to the plaintiff-one is to apply for compulsory registration of the document and in case the prayer is refused, it is open to him to bring a suit.
A certified copy of a document, when its original is lost or cannot be produced, cannot be registered under the Registration Act, 1908 though copies of the decrees or orders of court for which special provisions are made in the Act can be so registered. There is no provision in the Registration Act or the Stamp Act which says that if the document when presented is insufficiently stamped, the presentation shall be no presentation. On the contrary, the procedure provided is wholly inconsistent with the idea, because what the procedure requires is that the registering officer to whom the document is presented, receives it and make his entry accordingly: he impounds it and sends it to the collector, the collector takes the necessary steps to compel payment of the proper stamp duty and the penalty, he then returns the documents to the registering officer, who shall proceed with the matter. The effect is that the presentation is a good presentation, though the actual registration is delayed. If a document is presented for registration after the prescribed time as stipulated and is registered, the registration is void. The act of accepting a document for registration after the expiration of the period mentioned in the Act and registering the same is not a ‘mere defect of procedure’ within the meaning of section. The registering officer acts without authority when he registers document not presented within the prescribed period.
The documents on which stamp duty is required to be paid are:
- Purchase of a Flat
- Purchase of an Apartment in a Building (Commercial / Residential)
- Purchase of a Plot of Land
- Purchase License of Land /Apartment (Lease / Freehold)
- Development Agreement
- Will / Bequest Deed
- Transfer Deed
- Power of Attorney
- Lease Agreement
- Gift Deed of Property
- Construction Agreement
- Rent Agreement
- Sale/ Purchase Agreement
- Agreement to Sell
- Deed of Mortgage of Property
- Relinquishment Deed
- Surrender Deed in Cooperative Housing Society
- Mortgage Deed
The documents Relating to Intellectual Property are:
- Patent and High Technology Agreements
- Licensing and Franchise
- Consulting and Know-How Agreements
- Joint Development Agreements
- Mass Market Licenses like Shrink Wrap and use based licenses
- Licensing of Software and Source Code Escrow Agreements, Motion Pictures
- multimedia use, photographs etc.
- Software Development Agreements
- Agreement for Sale of Technical Know-How
- license of use of copyright
- Agreements relating to protection of designs/ trademarks/ patents/ and know how
The Banking Documents required are:
- Bank Guarantee
- Loan agreements / lease deeds
- Overdraft agreements
The documents for Export / Import are:
- Letter of Credit
- Documents for obtaining EXIM Finance
- Agency Agreement Documents relating to Labor Laws and Service Laws.
The documents relating to Insurance, documents relating to Public Interest Litigation, Environmental Issues etc., documents Relating to Private Equity Form of Funding:
- Business Plan
- Term Sheet
- Warranties and Indemnities
- Disclosure Letter
- Shareholders’ / Investors’ Rights/ Subscription Agreement
The documents relating to cyber law are:
- Internet agreements
- Software agreements
The above documents form essential documents in their own field which are required for the buying of a property under the Transfer of Property Act, 1882.
This article is authored by Kosha Doshai, student of B.A. LL.B (Hons) at Symbiosis Law School, Pune.
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