MyNation KnowledgeBase

Landmark Judgments and Articles on Law

Register to Download

U/S.40 of Registration Act who is entitled to present wills and authorities to adopt

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 1303/2013

BACHITA BARUAH ….. Petitioner
Through:Mr.Rahul Shukla, Advocate

Versus

GOVT OF NCT OF DELHI & ANR ….. Respondents
Through:Mr.Nitin Saluja for Mr.Najmi Waziri,Standing Counsel, Govt. of NCT of Delhi.

CORAM:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE V.K. JAIN

ORDER
27.02.2013

1. To streamline the procedure adopted by Registering Officials while discharging their duties, Inspector General of Registration issued executive instructions dated 13.8.1976. Instructions No.34 and 42 of the aforesaid instructions reads as under:-

“34. Parties entitled to present for registration: If the document is not open to any of the objections set-
forth in paragraph 29, the registering officer, before finally accepting it for registration, shall satisfy himself that the person presenting it has legal authority to do so. The persons who may present a document for registration are the following-

a) In the case of a Will, the testator, and after his death, any person claiming under it as executor or otherwise;

b) In the case of an authority to adopt, the donor, and after his death, the done or the adopted son;

c) In the case of a copy of a decree or order, any person claiming under the decree or order;

d) In any other case, any person executing or claiming under the document.

e) The representative, assign, or agent of the any of the foregoing persons.”

“42. Registering officer not concerned with validity of document:

Registering officers should bear in mind that they are in no way concerned with the validity of documents brought to them for registration, and that it would be wrong for them to refuse to register on any such ground as the following e.g., that the executants was dealing with the property not belonging to him, or that the instrument infringed the right of third persons not parties to the transaction, or the transaction was fraudulent or opposed to public policy. These and similar matters are for decision, if necessary, by competent courts of law and registering officers, as such, have nothing to do with them. If the document is presented in a proper manner by competent persons at the proper office within the time allowed by law, and if the registering officer is satisfied that the alleged executants is the person he represents himself to be, and if such person admits execution, the registering officer is bound to register the document without regard to its possible effect.”

2. The petitioner is seeking quashing or, in the alternative, re-
examination of the above quoted instruction No.42, inter alia, on the ground that the said instruction is contrary to Sections 23 and 24 of the Indian Contract Act, besides being contradicting to Instruction No.34 extracted above by us.

3. Sections 23, 24 and 25 of the Indian Registration Act prescribed the time for presenting documents for registration. The time prescribed under Section 23 is four months from the date of execution of the documents unless the case is covered by Sections 24 and 25 or 26. A copy of a decree or order, however, can be presented for registration within four months from the date on which it was made or where it is appealable within four months from the date on which it became final.

4. Section 32 of The Registration Act, 1908, specifies the persons who are competent to present a document for registration and the said Section reads as under:-

Section 32 – Persons to present documents for registration Except in the cases mentioned in 1[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 authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.
5. Section 33 of the said Act specifies the Power of Attorney which are recognizable for the purpose of presenting the documents for registration and reads as under:-

“Section 33. Power- of- attorney recognizable for purposes of section 32.-
(1) For the purposes of section 32, the following powers- of- attorney shall alone be recognized, namely:–
(a) if the principal at the time of executing the power- of- attorney resides in any part of 2[ India] in which this Act is for the time being in force, a power- of- attorney executed before and authenticated by the Registrar or Sub- Registrar within whose district or sub- district the principal resides;
(b) if the principal at the time aforesaid 3[ resides in any part of India in which this Act is not in force], a power- of- attorney executed before and authenticated by any Magistrate;
(c) if the principal at the time aforesaid does not reside in 2[ India], a power- of- attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, 4[ Indian] Consul or Vice- Consul, or representative 5[ of the Central Government”

6. Section 34 of the Registration Act provides that no document shall be registered unless the persons executing such document, or their representatives, assigns or agents authorized as aforesaid, appear before the Registering Officer within the time allowed for presentation under Sections 23,24, 25 and 26. In cases where owing to urgent necessity or unavoidable accident all such persons do not so appear within the stipulated time, the Registering Officer may accept the document for registration on payment of the specified fine, provided the delay in appearing before him does not exceed four months.
7. Sections 40 and 41 of The Registration Act deal with the registration of the Wills and authorities to adopt, which reads as under:-

“Section 40. Persons entitled to present wills and authorities to adopt.-

(1) The testator, or after his death any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub- Registrar for registration. (2) The donor, or after his death the donee, of any authority to adopt, or the adoptive son, may present it to any Registrar or Sub- Registrar for registration.
Section 41. Registration of wills and authorities to adopt.-
(1) A will or an authority to adopt, presented for registration by the testator or donor, may be registered in the same manner as any other document.
(2) A will or authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer is satisfied–
(a) that the will or authority was executed by the testator or donor, as the case may be;
(b) that the testator or donor is dead; and
(c) that the person presenting the will or authority is under section 40, entitled to present the same.”

8. Since the aforesaid statutory provisions make it obligatory for the Registering Officer to satisfy himself with respect to the legal competence of the person presenting the document for registration, Instruction No.34 directs the Registering Officers to discharge the said obligation by specifying himself with respect to such competence. The aforesaid Instruction does not, in any manner, authorize the Registering Officer to go into validity of the transaction sought to be evidenced by execution of the document presented for registration. Once the Registering Officer is satisfied that the person presenting the document for registration is competent to do so in terms of the provisions of the Act and the aforesaid Instructions, he is not required by virtue of the said  instructions to examine as to whether the person executing the document in respect of a property was owner of that property or not and whether the transaction subject-matter of the document presented to him for registration was fraudulent or oppose to public policy or not. Therefore, it cannot be said that Instruction No.42 is, in any manner, contrary to Instruction No.34 issued by Inspector General of Registration on 13.8.1976.

9. Section 23 of the Indian Contract Act 1872 declares certain considerations or objects of the agreements to be unlawful and declares the agreements, of which the object or consideration is unlawful to be void. The said Section reads as under:-

“Section 23 – What considerations and objects are lawful and what not.- The consideration or object of an agreement is lawful, unless- it is forbidden by law 1[ ; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another or; the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
Section 24 of the Indian Contract Act provides that if any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void.

10. Instruction No.42 cautions the Registering Officer that he is not required to examine the validity of the documents which are presented to him for registration and, therefore, he would not be entitled to refuse registration of a document on the ground that the property subject-matter of the document did not belong to the executant or that the document in question would infringe the rights of a third party which is not party to the transaction evidenced by the instrument. We see nothing illegal or objectionable in the aforesaid Instruction given to the Registering Officer. So long as the document is presented by a person possessing legal competence to present such a document and it is presented within the time stipulated in the Registration Act, this is not the function of the Registering Officer to examine the validity or otherwise of the transaction to which the document brought for registration relates. Similarly, this is none of the duty of the Registering Officer to examine any possible infringement of the right of a third party on account of execution of the document presented to him for registration. If any person is aggrieved on account of execution of such a document, he is required to avail the legal remedy available to him in this regard, by approaching the court of competent jurisdiction but, the Registration Act does not mandate the Registering Officer to undertake such an inquiry or to examine the claim/protest, if any lodged by a third party with him. Primarily, the Registering Officer is required to satisfy himself with respect to the identity of the person presenting the document for registration, legal competence of such a person to present the document for registration and the time prescribed in the Act for presenting the document for the purpose of registration. Asking the Registering Officer to undertake a function, which the Registration Act does not require him to undertake, would be beyond the statutory duties of a Registering Officer.

11. The question as to whether a particular transaction is void in terms of Section 23/24 of the Indian Contract Act or not, cannot be gone into by the Registering Officer. Neither the Registration Act requires him to examine such an issue nor does he possess the requisite competence to undertake such an exercise. Any person seeking to challenge a contract on account of its being void in terms of Section 23/24 of the Indian Contract Act is required to establish such a claim in a court of competent jurisdiction and the Registering Officer is certainly not the proper forum for this purpose. We, therefore, cannot accept the contention that Instruction No.42 is contrary to the provisions of Section 23/24 of the Indian Contract Act.

For the reasons stated hereinabove, we find no merit in the petition and the same is, hereby, dismissed. There shall be no order as to costs.

CHIEF JUSTICE

V.K. JAIN, J

FEBRUARY 27, 2013

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 MyNation KnowledgeBase
eXTReMe Tracker
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please CLICK HERE to read Group Rules, If You agree then JOIN HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DVACT), Divorce, Maintenance, Alimony, Child Custody, HMA24, 125 CrPc, 307, 313, 376, 377, 406, 420, 506, 509 etc

Web Design BangladeshWeb Design BangladeshMymensingh