Impounding a document
Certain documents
are compulsorily registerable under the Indian Registration Act 1908, which
are classified under Section 17 (1);
They are, the instruments of
gift, sale, all non-testamentary documents which operate to create, assign or
limit any right, title or interest in immovable property.
Certain
other documents which are not compulsorily registerable, though its
registration is optional, which are classified under Section 17(2) of
Registration Act 1908;
They are,
(i)
Shares in a Joint Stock Company, any debenture
issued by such company;
(ii)
Any transfer of immovable property of the value
below Rs.100/-
(iii)
Any Grant of immovable property by the Govt.
(iv)
Any order granting loan under the Land
Improvement Act 1871 or the Agriculturists Loan Act 1884;
(v)
Any order made under the Charitable Endowments
Act 1890, vesting any property in a Treasurer of Charitable Endowments.
(vi)
Any endorsement on a mortgage deed acknowledging
the payment of the mortgage money;
(vii)
Any ‘Certificate of Sale’ granted to the
purchaser of any property sold by public auction by a Civil Officer or Revenue
Officer.
The Consequences
of non-registration of documents which are compulsorily registerable:
Section 49 of
the Registration Act deals with ‘effect of non-registration.’
Sec.49: “No
document required by section 17 (or any provision of the Transfer of Property
Act 1882) to be registered shall –
(a) affect
any immovable property comprised therein; or
(b) confer
any power to adopt, or
(c) be
received as evidence of any transaction affecting such property or conferring
such power,
unless it has
been registered.
Provided that an unregistered document
affecting immovable property to be registered may be received as evidence of
any ‘collateral transaction’ not required to be affected by registered
instrument.
(Collateral transaction: An unregistered
sale deed cannot be received as evidence in a Court of law to prove the factum
of sale, but it can be accepted (for collateral purpose) to prove the factum of
possession of the purchaser in the immovable property purchased by him.)
Unregistered documents of the
category of Section 17(1), (which are compulsorily registerable) will be
inoperative so far as the immovable property in it is concerned.
Collateral means something other than
main transaction; and it is always independent to the main transaction.
Impounding
an instrument which is not duly stamped:
Section 33 of the
Indian Stamp Act 1899 deals with impounding of an instrument.
Sec.33 “Every
person having authority to receive evidence, before whom any instrument, chargeable,
in his opinion, with duty, is produced or comes in the performance of his
function, shall if it appears to him that such instrument is not duly stamped, impound
the same.”
Provided such
instrument which is not duly stamped may be produced before any Magistrate,
Judge of a Criminal Court to examine. (i.e. in criminal proceedings such
instruments shall not be impounded.)
Section 35
deals with the inadmissibility of the instrument not duly stamped;
Sec.35: “No
instrument chargeable with duty shall be admitted in evidence for any purpose
by any person having authority to receive evidence, unless such instrument is
duly stamped.
Provided it may
be admitted in evidence on payment of the duty with which the same is
chargeable together with a penalty of ‘ten times’ the amount of the proper duty
or deficient portion thereof.
