qwertyuiopafghjklzxcvbnmqwert yuiopasdfghjklzxcvbnmqwertyui opasdfghjklzxcvbnmqwertyuiopa LAW OF PROPERTY sdfghjklzxcvbnmqwertyuiopasdf PROJECT ghjklzxcvbnmqwertyuiopasdfghj OPERATION OF REGISTRATION AS NOTICE klzxcvbnmqwertyuiopasdfghjklz xcvbnmqwertyuiopasdfghjklzxcv DHATRI K.

S, Roll No. 590 bnmqwertyuiopasdfghjklzxcvbn mqwertyuiopasdfghjklzxcvbnmq wertyuiopasdfghjklzxcvbnmqwe rtyuiopasdfghjklzxcvbnmqwerty uiopasdfghjklzxcvbnmqwertyuio pasdfghjklzxcvbnmqwertyuiopas dfghjklzxcvbnmqwertyuiopasdfg hjklzxcvbnmqwertyuiopasdfghjk
1/23/2013

INTRODUCTION Registered:
As per Section 3 (Interpretation Clause) of The Transfer of Property Act, - Registered means registered in any part of the territories to which this Act extends under the law for the time being in force regulating the registration of documents. If a document has been registered under the law for the time being in force, it will be deemed to be registered for the purpose of this Act. If the document is not registered in accordance with the law for the time being in force, it shall not be effective for the purpose for which it is created, e.g., if the description is not sufficient to identify the property1 or if there is fraud on the law of registration2 or if the deed was not presented by the proper person3, the registration is void.

Notice:
As per Section three discussed above, A person is said to have notice of a fact when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. The object of notice is to control unconscionable transactions. For example, A contracts to sell his property to B, while the contract is still in force, he sells the property to C who has the notice of the contract. B may enforce the contract against C to the same extent as against A because C purchases the property with the knowledge that a contact for same of the property exists between A and B and that it would be unlawful for A to sell the same to C. Such a purchase by C is equally unlawful and unconscionable. The Clause divides notice into three sub-divisions: 1. Actual notice 2. Constructive notice

1 2 3

Baij Nath v. Sheo Sahay, (1891) 18 Cal 356. Harendra Lal v. Hari Dasi, (1914) 41 Cal 972. Mujiubunnissa v. Abdul Rahim, (1901) 23 All 233.

3. Imputed notice Actual Notice: Notice of a fact means knowledge, cognizance or awareness of the fact.4 Actual notice, to constitute a binding notice, must be definite information given by a person having an interest in the thing in respect of which information is given.5 Vague information, rumours, information received from strangers, information overheard or mere casual conversation do not suffice to constitute actual notice. Constructive Notice: Constructive notice is the equity which treats a man who ought to have known a fact as if he actually knows it. It is the knowledge which the court imputes to a party upon a presumption so strong that it cannot be allowed to be rebutted that the knowledge must have been communicated. Such a presumption can arise only when the part seeking the benefit of the doctrine has acted innocently. It cannot arise where the party seeking benefit of the doctrine has been guilty of fraud or secrecy in the transaction with constructive notice of which he seeks to affect a purchaser.6 The section refers to four classes of constructive notice: 1. Notice by reason of willful abstention from enquiry or search. 2. Notice by reason of gross negligence. 3. Notice by registration of instrument (Explanation I). 4. Notice by possession of immovable property (Explanation II). Imputed Notice: Where knowledge of a fact is acquired by an agent, the knowledge of fact is imputed to the principal whether the agent expressly communicates his knowledge to the principal or not. But
4 5 6

Gaur, H.S. 8 ed. P. 181. Oakley Bowden & Co. v. Indian Bank Ltd., Madras, 1964 AIR Mad 202, (204). Secretary of State v. Dattatraya (1901) 3 Bom. L.R. 923.

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no knowledge of the fact shall be imputed to the principal where the agent fraudulently conceals the fact from him. This rule is based on the maxim qui facit per alium facit, per se, - he who acts through another is deemed to act in person.

REGISTRATION AS NOTICE
The position as to the law regarding registration of an instrument operating as notice has not been uniform in our country. One school, led by the Allahabad and Bombay High Courts, had held that registration of a document amounts to notice.7 Other schools, led by Madras High Court held that registration is not notice because if the legislature had so desired, it would have said so.8 The opinion of Calcutta High Court fluctuated between these two opinions. In view of Calcutta High Court, registration was not notice in itself, the omission to search a register together with other fact amounting to gross negligence or willful abstention would attract the consequence flowing from notice.9 In Tilak Dhari Lal v. Khedanlal,10 the Privy Council examined the then existing decisions and held that notice could not in all cases be imputed from the mere fact that the document was registered. It would depend on the facts and circumstances of each case, upon the degree of care and caution which an ordinarily prudent man would necessarily take for the protection of his own interest by search into the registers kept under the Registration Act. Explanation I was added in the section by the Amendment Act XX of 1929 so as to nullify the effect of the decision of the Privy Council in Tilakdharilal v. Khedan Lal. Now where a document is required by law to be registered and has been registered, a person must, as a matter of law, be deemed to have notice of the facts of transfer. The object of the explanation is merely to safeguard the interests of a third party who has acquired a good title under a previous registered instrument. Registration under Explanation I will operate as notice, if the following conditions are fulfilled: 1. Transaction relating to immovable property is required by law to be registered and has been affected by a registered instrument. Suppose A registers a document which contains a promise by him to sell his housed to B. Subsequently he sells his house to C. An agreement to sell is not compulsorily registrable. So, here, it cannot said that C had
7 8 9

Lakshmandas v. Dasrat, (1882) 6 Bom. 168, Churaman v. Balli (1887) 9 All. 591. S. M. Mull v Madras Building Co., (1892) 15 Mad 286. Inderdavan v. Gobind (1896) 23 Cal 790. (1920) 47 I.A. 239.

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constructive notice of As agreement to sell the house to B simply because that agreement was registered. In Asharfi Devi v. Premchand11 it was held that since a will or a dedication to a deity is not compulsorily registrable, the registration of such an instrument does not operate as notice. 2. The instrument should be registered as prescribed by the Registration Act of 1908. Sometimes there are mistakes and particulars of the Registration are not correctly entered by the Registrar in the proper books. In such a case, the Registration may not suffice to bring the fact to the notice of the subsequent transferee. If the subsequent transferee makes due enquiries at the Regitrars office and on account of the earlier mistake he is not able to obtain notice of the interest concerned; constructive notice will not be attributed to him. But when he fails to make such inquiries, the mistake will not stand in the way of inferring constructive notice from the fact of registration. 3. The person affected with notice must have acquired his interest subsequent to the registration. Registration operates as notice only in those cases where the instrument is required by law to be registered. Where a document is not compulsorily registrable, its registration does not amount to constructive notice.12 Registration operates as notice to transferees subsequent to registration.13 Registration of a subsequent transaction is not a notice to a prior transferee. 14 It is evident from the expression, any person acquiring such property. It is, however, not a notice in rem.15 Time from which registration acts as a notice: Registration operates as notice from the date of registration if the instrument has been registered in the same registration sub-district in which the property is situated because any person seeking to acquire an interest in the property would inspect the register of that subdistrict when investigating title. Where immovable property is situated in more sub-districts
11 12 13 14 15

AIR (1971) All 457. Hira Chand v. Kashinath, (1942) 44 Bom. L.R. 227. Baba Ram Chandra v. Kondeo Jagna, (1939) 184 I.C. 797. Tilakdhari Lal v. Khedanlal, (1920) 47 I.A. 239. Paraganas Lawyers Clerks Association and Others v. State of W.B., AIR 1986 Cal 205.

than one and the document is registered in one of the sub-districts under Section 30(2) of the Registration Act, the registered deed shall act as notice from the date on which the memorandum of such registration has been received and filled under Section 66of the Registration Act by the sub-registrar of the sub-district in which the property is situated. The subsequent transferee cannot claim that the limitation would only run from the time of his obtaining the knowledge of the transaction. This is so even if one account of neglect on the part of the registration document, copies were not sent to the sub-Registrar within whose jurisdiction the property is situated. This view, however, does not appear to be sound. Neither is it feasible nor desirable for the subsequent transferee to go and find out whether it has already been sold or not, particularly when there is a lapse on the part of the officials. Section 64 of the Registration Act makes it obligatory for the sub-Registrar who registers document of transfer to make a memorandum thereof and send the same to the sub-Registrar of the subdistrict/s in which properties are located and sub-Registrar of these sub-districts are bound to file the memorandums in their books. Effect of Registration: If an instrument is registered in compliance with the provisions of Registration Act, a party cannot be heard saying that he searched the register but did not get any information regarding registration. He must take the consequence of his want for diligence. Proviso appended to Explanation I lays down certain rules regarding registration to operate as notice. Clause 1 of the proviso says that the Registration must be effected in the manner prescribed by the Registration Act, 1908 and the rules made thereunder. If registration is not valid it will not operate as notice. A registration may be invalid for various reasons the document was presented by a wrong person or it was not registered under the Registration Act, 1908. Clause 2 provides that instrument or memorandum must be correctly entered or filed in the books and Clause 3 provides that particulars regarding transaction must be correctly entered in the indexes kept by the sub-Registrar. Strict compliance with these rules is necessary. Where the document has been validly registered, it will operate as notice not only of the fact of registration but also of all material facts affecting the property which either appear on the

face of the deed or can be reasonably inferred from its contents.16 It is also notice of all documents referred to in the deed.17 But the fact that the deed was registered does not fix a person with the knowledge of its execution on that date.

16 17

Rajarani v. Krishnasami (1893) 16 Mad 301. Patman v. Harland, (1881) 17 Ch. D. 353.