Stamp Duty

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*Everything you wanted to know about Stamp Duty*

Q. 1. What is the bombay stamp Act,1958?
The Bombay Stamp Act, 1958 comes into force on 16th February, 1959 and is applicable in the State of Maharashtra. This Act is intended to levy Stamp duty on certain types of documents executed in the State or brought from outside for acting upon the same in the State. The various instruments/documents are broadly covered under different 62 articles listed in Schedule-I appended to the Act. The rates at which stamp duty is levied on these documents are mentioned in Schedule –I. The Bombay Stamp Act, levies Stamp duty on documents/instruments by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded. The stamp duty is payable on instrument and not on the transactions.

Q. 2. What is Stamp Duty ?
It is a type of tax which is paid for the transaction performed by way of document or instrument under the provisions of Bombay Stamp Act, 1958 and Indian Stamp Act, 1899.

Q. 3. Whether Stamp duty is payable on transactions or on instruments?
It is payable on instruments and not on transactions. The definition of the term instrument is very wide.

Q. 4. What is instrument ?
Instrument means any document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded.

Q. 5. What is document ?
As defined in Evidence Act, document means only matter expressed or described upon substance by means of letters, figures or marks or by more than any of those means intended to be used or which may used for the purpose of recording that matter.

Q. 6. Why Stamp Duty has to paid on document/instrument ?
The payment of proper Stamp duty on instruments bestows legality on them. Such instruments get evidentiary value and are admitted in evidence in Court of law. The instruments which are not properly stamped are not admitted in evidence .

Q. 7. Which provisions/ Articles of Indian Stamp Act, 1899 attracts Stamp duty in the state of Maharashtra ?
The following Articles of The Indian Stamp Act, 1899 attract Stamp duty in the state of Maharashtra

Article No.	Description of instrument.
13	Bill of Exchange
14	Bill of Lading
27	Debenture
37	Letter of Credit
47	Policy of Insurance
49	Promissory Note
52	Proxy
53	Receipt
62	Transfer

Q. 8. What is meant by execution of instruments?
Execution means putting signatures on the instruments by the person/persons executing the instruments.

Q. 9. How Stamp Duty is calculated.?
Broadly the 62 articles of Schedule I are grouped in three categories.
Category i) Articles whose amount of Stamp duty is fixed irrespective of the value mentioned in the document / instrument. ( Viz. Administration Bond, Adoption deed, Affidavit, Divorce, Appointment in execution of power , Apprenticeship deed, Article of clerkship, Award, Cancellation deed, Charter party, Duplicate, Copy of Extracts, Entry of Memorandum of Marriage, Indemnity Bond, Letter of license, Memorandum of Association of a company, Notarial Act, Power of attorney, etc.)

Category ii) Articles where depending upon the value mentioned in the document, the amount of stamp duty is varied. (Viz. Agreement relating to deposit of title deeds, pawn, pledge or hypothecation, Clearance List, Lease , Article of association, Mortgage deed, Security Bond, etc.)

Category iii) Articles which attracts Stamp duty on the consideration mentioned in the document or True Market Value, whichever is higher. ( Viz. Conveyance, Agreement for sale, Gift, Exchange,Partnership Deed,Partition, Development Agreement, Transfer, Trust, etc.)

For category I and II types of instruments the Stamp duty payable can be ascertained by referring to the Schedule I; but to ascertain the Stamp duty on the instruments mentioned in Category III, the expertise in valuation is required. The True Market Value is determined as per the provision of the Bombay Stamp ( Determination of True market value of the property ) Rules, 1995.

Q. 10. What point of time of Stamp Duty payable. ?
The Section 17 & 18 of the Act states the time of payment stamp duty. Generally all the instruments executed in the state shall be stamped before or at the time of execution or immediately thereafter or on the next working day following the day of execution. Similarly, the instruments which is executed out of the state and within three months from its receipt in the state, shall be stamped.

Q. 11. How is Stamp Duty payable?
Stamp Duty can be paid by
1. Using Stamp paper
2. Using adhesive stamps
3. Franking

Q. 12. Who is liable to pay Stamp Duty ?
As per the provisions of Section 30 the onus of payment of Stamp duty in the absence of an agreement to the contrary, shall be borne by the executing in the manner provided their with respect of certain kinds of documents viz. Mortgage deed, release, security bond, settlement, bond etc. in the case of conveyance, the grantee and lease the lessee shall pay the stamp duty in the case of exchange of property, both the parties in equal share shall pay stamp duty. In case of partition, the parties thereto in proportion to their respective shares should pay stamp duty.

Q. 13. What is meant by adjudication of instruments? Which authority is to be approached for adjudication of instruments ? What is the amount of fees required to be paid for adjudication? What documents are to be enclosed while submitting application for adjudication ?
Section 31, of Bombay Stamp Act, 1958 deals with the adjudication of the instruments. Adjudication means determining the chargeability of stamps duty on instruments. The authority to be approached is the Collector of Stamps appointed in each District. Application for adjudication should be accompanied by ¸ true copy or an abstract of the instrument and also with such affidavit or other evidence as may be necessary to prove that all facts affecting the chargeability of the instrument have been truly setforth in the instrument along with the proof of payment of Rs. 50/- as adjudication fee. Adjudication can be done both for signed as well as unsigned documents.

Q. 14. How to pay Stamp Duty ?
The Document which is chargeable with Stamp duty can be prepared on the non-judicial Stamp paper of appropriate value. Unexecuted document can be got franked with special adhesive Stamps by Franking Machine intended for stamping such documents, by tendering required amount in the office of collector of Stamps whereever this facility is available. When documents is lodged for adjudication, on receiving intimation as to the amount of Stamp duty payable by tendering appropriate amount equal to the amount of Stamp duty and penalty if any, the Collector of Stamp shall certify the document as to the payment of proper duty.

Q. 15. What is the validity of Stamps ?
As per the provisions of Section 52-B, the stamps which are purchased and not used within six months shall be rendered invalid thereafter. The stamps purchased and not used for intended purpose are entitled for refund after deduction of certain charges, if lodged for refund within six months from the date of purchase and on fulfilling the conditions stipulated in Chapter V of the Bombay Stamp Act, 1958.

Q. 16. What are the consequences of not paying Stamp duty?
The documents if not duly stamped, shall not be admissible in evidence in the court of law. As per the provision of Section 59, any person who, with the intention to evade the Stamp duty, executes or signs any instruments chargeable with stamp duty, without the same being duly stamped, shall on conviction, be punished with rigorous imprisonment for ¸ term which shall not be less than one month but which may be extended upto six months and fine upto Rs. Five Thousand. The Section 67 and 68 empowers the authorities to enter upon any premises and to inspect and impound/seize the documents which are not duly stamped and burden is casted upon every public officer to assist the authorities in detection of evasion. The documents impounded for want of proper duty, attracts penalty @ 2 % per month from the date of execution of such document.Miscellaneous

Q. 17. In whose name the stamps are required to be purchased ?
The stamps are required to be purchased in the name of one of executors to the instrument.

Q. 18. What happens if the instrument is executed on stamps which does not bear the name of one of the executors.?
Such instruments are not admitted in evidence, for any purpose. These instruments are also treated as not properly stamped. These instruments are liable to be impounded and sent to the Collector of Stamps for recovery of proper stamp duty.

Q. 19. What are the rates of Stamp duty on instruments relating to transfer of immovable property.
The rates of stamp duty on instruments relating to transfer of immovable property vary from place to place. The rates are specified in Article 25 of Schedule 1 appended to the Bombay Stamp Act, 1958. However, Article 25(d) which deals with the instruments of transfer of residential premises in ¸ Co-operative Housing Society or where the provisions of Maharashtra Ownership Flats Act 1963 and the Maharashtra Apartment Ownership Act, 1970 apply, provides for levy of concessional rates of Stamp duty. In areas, where the provisions of the aforesaid Acts apply, residential premises upto ¸ market value of Rs. 1,00,000/- attract such concessional rates. Instruments relating to the transfer of residential premises of market value of more than Rs. 1,00,000/- attract normal rates of stamp duty for values over and above Rs. 1,00,000/- as applicable in that area. Such normal rates are 8 %, 6%, 3 %, 5 %. Etc. depending on where the property is situated.

Q. 20. Whether any penalty is levied in cases referred to the Collector by the Sub-Registrar for determination of true market value of the property where the Collector comes to the conclusion that the true market value of the property was not stated in the instrument ?
In addition to recovery of deficit Stamp duty in such cases, the concerned party is required to pay penalty of Rs. 250/- plus 15 % interest for each year or part of the year on the deficit amount from the date of presentation of instrument before the Sub-Registrar.

Q. 21. What remedy is available to the parties, in case they do not agree with the true market value of the property as determined by Collector of the District ?
The parties can go in appeal to the Chief Controlling Revenue Authority, Maharashtra State, Pune. under section 32 B of Bombay Stamp Act, 1958.

Q. 22. Is the chargeability of stamp duty determined by the Collector of stamps in adjudication final ? Can ¸ person go in an appeal against the order passed by the Collector of Stamps ? Is there any time limit for filing the appeal ?
The chargeability of stamp duty on the instrument as determined by the Collector of Stamps is not final. The person affected by the order of the Collector of Stamps can go in appeal to the Chief Controlling Revenue Authority, Maharashtra State, Pune as provided in section 53 of the Bombay Stamp Act, 1958, limit prescribed for the filing of an appeal is within 60 days.

Q. 23. Why do the authorities insist on disclosure of relevant facts and circumstances to be fully and truly set forth in the instrument ?
Section 28 of the Bombay Stamp Act, 1958 casts the duty on the executants to disclose and truly set forth relevant facts and circumstances in the instruments. This helps in finding out the types of transactions involved in the instruments which in turn helps in the determination of proper stamp duty payable on such instruments. Duty is not payable on the title or the heading given on the top of the instrument but on the recitals as stated in the instruments.

Q. 24. Can there be refund of Stamp duty in case if the Stamp paper is unused or multiliated?
Yes, Refund can be claimed v/s 47 of The Bombay Stamp Act 1958. However such claim can be made to the collector of Stampswithin a period of 6 months from the date of purchase of Stamps

Q. 25. What is meant by impounding of instruments ?
Every person having by law or consent of parties authority to receive evidence and every person in charge of ¸ public office before whom any instrument chargeable with stamp duty is produced or comes in the performance of his functions. Shall if it appears to him that instrument is not duly stamped, impound the same, irrespective whether the instrument is not valid in law. Such impounded document is required to be forwarded to the Collector of Stamps for recovery of deficit stamp duty in addition to penalty at the rate of 2 % per month .

Q. 26. As the cost of flat is required to be paid in installment as per agreement whether the stamp duty can be recovered in part at the time of payment of such installments instead of making full payment at the time of entering into the agreement ?
No. Stamp duty cannot be paid in settlements, Various chambers Associations have made suggestions and representations to the stamp authorities in this regard. However till date no effort is made by the Stamp authorities towards implementation of the same.

Q. 27. In case where the builder sells ¸ flat to an individual in ¸ building where the society is not formed and the document is not stamped and the individual resells the flat to another persons who pays the stamp duty. The builder confirms the said agreement and thereafter the society is formed. The purchaser becomes ¸ member of ¸ society. Whether the original purchaser in future will be liable to pay stamp duty and whether stamp duty can be charged on the flat and whether the first purchaser can be forced to pay the stamp duty by the Government or it will be have to be borne by the second purchaser again who is the present owner of the flat. ?
The original purchaser will be liable to pay stamp duty on the fair market value prevalent at the date of the document as determined by the Stamp authorities as stamp duty is paid on each transaction. However, the reply is subject to the confirmation of the Hon’ble Supreme court of India. In the question under consideration in my opinion person is responsible to pay stamp duty on only his own purchase transaction and hence the second purchase in my opinion will not be liable to pay the unpaid stamp duty of the first purchaser.

Q. 28. On what basis ( Carpet, Built-up or Super built-up ) are the rates fixed by the stamp authorities ?
For the purpose of determination of True Market Value, the Built-up area is taken into account.

Q. 29. Will stamp duty have to be paid if there is a ¸deed of family settlement and a flat is transferred amongst family members ?
Yes. As per the provisions of Bombay Stamp Act, Stamp duty will have to be paid on a deed of family settlement.

Q. 30. Will stamp duty have to be paid if the flat is gifted by a donor ?
Yes. Stamp duty will have to be paid if the flat is gifted by the donor.

Q. 31. Is the decree of final order of a civil court by which immovable property is transferred be liable to be stamped as a conveyance ?
Yes, After the amendment of Article 25 of the Bombay Stamp Act. The definition of conveyance has been widened, in view of the amendment decree or final order of the court by which immovable property is transferred is liable to be stamped as a conveyance.

Q. 32. In case of resale of the flat who has to pay the Stamp duty, the purchaser or the seller ?
The parties can themselves decide who shall pay the stamp duty. If nothing is mentioned in the agreement then as per section 30 of the Bombay Stamp Act, 1958 if the transaction relates to resale of flats then the stamp duty will have to be paid by the purchase.

Q. 33. Are orders made by the High court under section 394 of the Companies Act, 1956 in respect of amalgamation of companies be liable for payment of stamp duty as on a Conveyance ?
Yes, after the amendment made in 1993, the preview of Article 25(d) has been widened so as to bring orders made by the High Court under section 394 of the Companies Act, 1956. In respect of amalgamation of companies. Therefore stamp duty as on a Conveyance will have to be paid on such orders.

Q. 34. In whose name should the stamp paper be purchased. ? Can the client execute the document on ¸ stamp paper purchased by an Advocate ?
As per section 34 of the Bombay Stamp Act, 1958 the stamp papers should be in the name of one of the parties who has signed the documents. Therefore the stamp paper should be purchased in the name of one of the parties who would be signing the instruments. If the stamp paper has been purchased in the name of an Advocate, C.A., etc than such instrument shall be treated as an instrument not duly stamped and shall be inadmissible in evidence.

Q. 35. What are the different types of documents?
As of today there are 62 kinds of documents each one signifying a separate kind of deed. These are as follows: (numbers in italics indicate the serial no. of support documents required from the support document list furnished below; absence of number indicates that no support documents are required).

1. Acknowledgement
2. Administration Bond
3. Adoption Deed
4. Affidavit
5. Memorandum of an Agreement.
6. Agreement relating to deposit of Title deeds, pawn, pledge or hypothecation
7. Appointment in execution of power
8. Appriasal or Valuation
9. Apprenticeship Deed
10. Articles of Association of a company
11. Articles of clerkship
12. Award
13. Bond
14. Bottomory Bond
15. Cancellation
16. Certificate of sale
17. Certificate or other document
18. Charter Party
19. Clearance List (purchase or sale of Government Securities)
20. Clearance List (purchase or sale of cotton)
21. Clearance List (purchase or sale of bullion)
22. Clearance List (purchase or sale of oil seeds)
23. Clearance List (purchase or sale of yarn)
24. Composition Deed
25. Conveyance ( 1,2,3,4,5,6)
26. Copy or Extract
27. Counterpart or Duplicate
28. Customs Bond or Excise Bond.
29. Delivery Order
30. Divorce
31. Entry or memorandum of marriage.
32. Exchange of property (1,2,3,4,5,6)
33. Further charge
34. Gift (1,2,3,4,5,6)
35. Indemnity Bond
36. Lease (1,2,3,4,5,6)
37. Letter of allotment of shares
38. Letter of license
39. Memorandum of association of a company
40. Mortgage Deed (1,2,3,5,6)
41. Mortgage of crop
42. Notarial Act
43. Note or Memorandum
44. Note of protest by master of ship
45. Order for the payment of money
46. Partition (4,5,6)
47. Partnership
48. Power of Attorney
49. Protest of Bill or Note
50. Protest of the master of ship
51. Reconveyance of mortgaged property
52. Release (1,2,3,4,5,6)
53. Respondentia Bond
54. Security Bond or Mortgage Deed (1,2,3,5,6)
55. Settlement (1,2,3,4,5,6)
56. Share Warrants
57. Shipping Order
58. Surrender of Lease (1,2,3,4,5,6)
59. Transfer (1,2,3,4,5,6)
60. Transfer of Lease (1,2,3,4,5,6)
61. Trust (1,2,3,4,5,6)
62. Warrant of goods.
Documents can also be classified as Testamentary and Non Testamentary depending upon the time when they come into force. E.g. Will is of testamentary type because it doesn’t come into force immediately whereas a sale deed is a non-testamentary document since it has immediate effect.On the same lines, some documents have to be compulsorily registered e.g. a sale or lease deed while registration for some is optional e.g. affidavit.

Q. 36. What are the different support documents generally required to be submitted for registration?
For registration purpose, some of the above documents should be accompanied by one or more support documents. The list of support documents is as follows:
1. Income Tax clearance certificate under 230 A-1 (ITC) Act 1961.
2. Income Tax certificate 269 UL (37I) Act 1961.
3. Permission under Urban Land Ceiling Act 1976 , section 26.
4. Bombay Stamp Act 1958, section 32 A.
5. Bombay Stamp Act 1958, section 33.
6. Registration Act 1908 sections 25 and 34.

Source : Department of Registration and Stamps, Government of Maharashtra.
http://igr.maharashtra.gov.in

*Everything you wanted to know about Registration*

Q.1. What is Registration ?
Registration means recording of the contents of a document with a Registering Officer and preservation of copies of the original document.

Q.2. Why documents are registered ?
The documents are registered for the purpose of conservation of evidence, assurance of title, publicity of documents and prevention of fraud. Also, registration helps an intending purchaser to know if the title deeds of a particular property have been deposited with any person or a financial institution for the purpose of obtaining an advance against the security of that property.

Q.3. Which documents require to be compulsorily registered ?
Section 17 of the Registration Act, 1908 lays down different categories of documents for which registration is compulsory. The documents relating to the following transactions of immovable properties are required to be compulsorily registered;

(a) Instruments of gift of immovable property

(b) Lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent.

(c) Instruments which create or extinguish any right or title to or in an immovable property of a value of more than one hundred rupees.
Under section 2(6) of the Registration Act, 1908 the term “ Immovable property” includes: “Land, buildings, hereditary allowances, rights to ways, lights, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to any thing which is attached to the earth, but not standing timber, growing crops nor grass.”

Q.4. Whose document has to be registered ?
Section 28 of the Registration Act, 1908 states that all documents of which registration is compulsory if it relates to an immovable property as well as a few documents of which registration is optional should normally be presented for registration in the office of Sub-Registrar within whose sub-district the whole or some portion of the property to which the document relates is situated.

Q.5. Is it possible to register a document at a person’s private residence?
Under Sections 31 of the Act, a provision has been made authorising the Registering Officer, on special cause being shown ( for instance if the person is physically handicapped ) to attend at the residence of any person desiring to present a document for registration and accept for registration such a document or a “Will”, provided Registering Officer is satisfied about the special cause shown is sufficient.

Q.6. What procedure is followed at the time of lodging a document for registration ?
For registration of any instrument, the original document which should be typed/printed on one side only along with two photocopies of the original have to be submitted to the Registering Officer. The copies are required to be photocopied only on one side of the paper and there has to be a butter paper between the two photocopies papers. This is done so as to prevent the typed matter from getting spoilt. The registration procedure also requires the presence of two witnesses and the payment of the appropriate registration fees. On completion of the procedure, a receipt bearing a distinct serial number is issued. The following requirements are completing the registration are usually stated on the receipt:

(a) Market Value of the property;

(b) Income-Tax clearance, i.e. NOC. under Section 269 YL (3) issued by the Appropriate Authority constituted under Chapter XX-C of the Income Tax Act, 1961 if the same is applicable;

(c) Certificate under section 230-A of the Income Tax Act, 1961 granted to the Transferor by the assessing officer of the Transferor
d) Urban Land Ceiling declarations of the transferor/s and the transferee/s.

Q.7. What are the fees for registration of a document ?
The State Government has been empowered to fix the fees for registration of the document. The registration fees at present fixed for registering documents relating to property transactions are approximately 1 % of the consideration of the document but subject to a maximum limit of Rs. 20,000/- The registration fee for the following immovable property transactions is leviable on the market value of property on which stamp duty is charged. The transactions are as under :

(i) Conveyance,

(ii) Exchange,

(iii) Gift,

(iv) Partition,

(v) Transfer of Lease by way of Assignment,

(vi) Sale,

(vii) Settlement,

(viii) Power of Attorney given for consideration and

(ix) Authorising the attorney to sell the property.

In the case of lease, the amount of registration fees will be dependent either on the premium or on the sum payable under the lease or period/periods of lease.

Q.8. Who can present the document for registration ?
Section 32 of the Registration Act, 1908 deals with the provisions relating to the presenting of documents for registration by a person. Subject to certain exceptions, every document which is to be registered under the provisions of the Act should be presented at the proper registration office by: (a) the concerned person himself/herself, or (b) the representative or the agent of such a person duly authorised in manner as is stated in Section 33 of the Registration Act, 1908.

Q.9. What should be the language of the document ?
The language of a document presented for registration should be in a language commonly used in the district existing in the State. Under section 19 of the Act, the Registering Officer is empowered to refuse to register a document if it is presented for registration in a language which is not commonly used in the district unless the document is accompanied by a true translation into a language commonly used in the district and also by a true copy.

Q.10. Is a description of an immovable property, which is the subject matter of the document to be registered necessary to be set out in the Schedule attached to the agreement? Is it necessary to annexe maps or plans of the immovable property ?
Section 21 of the Act deals with the provisions relating to the description of an immovable property alongwith maps or plans. It is always necessary, with a view to identify the property involved in a document, that the description of the property is mentioned in a separate schedule, preferable with maps or plans, so as to enable the Registering Authority to make notes in the books to be preserved. The description should mentioned the area of the property, the number of the property, the boundaries of the property, the streets on which it is situated, along with the name of the village, Taluka, district. The city Survey Number, with Hissa Number if any, should also be mentioned. It is the discretion of the registering officer to refuse to accept a document if the description of the immovable property is not sufficient to identify the property correctly.

Q.11. Is the Registration of a document relating to the transfer of a property in a unregistered society compulsory ?
Yes, in such circumstances it is advisable to register such a type of a document. However, for further details in a various situations of transfer, please refer to the chart in Annexure XII in page 90 of this book dealing with various situations wherein registration of a document is compulsory or optional.

Q.12. What are those documents, of which registration is optional ?
Section 18 of the Act lays down the instruments of which registration is optional. Some of these instruments are listed as under :-

(a) Instruments ( other than instruments of gifts and wills) relating to the transfer of an immovable property, the value of which is less than one hundred rupees.

(b) Instruments acknowledging the receipt or payment of any consideration.

(c) Lease of an immovable property for a term not exceeding one year.

(d) Instruments transferring any decree or order of a court where the subject matter of such decree or order is an immovable property, the value of which is less that one hundred rupees.

(e) Wills.

Q.13. Is the registration of a document compulsory under the provisions of the Maharashtra Ownership Flat Act, 1963 ?
Yes, registration is necessary under the provisions of this Act. Under Section 41(1) of the Maharashtra Ownership Flats ( Regulation of promotion of construction, sale, management and transfer) Act, 1963, it is laid down that notwithstanding the provisions of any other laws, the agreement in respect of flats to be sold by the owner/promoter/developer to the flat purchaser requires compulsorily to be registered under the Registration Act.

Q.14. Is registration necessary under the provisions of the Maharashtra Apartments’ Ownership Act, 1970 ?
Yes, registration is necessary under this Act. Under Section 13 of the Maharashtra Apartment Ownership Act, 1970 it is necessary on the part of the owner/owners to execute a declaration with regard to description of the land on which the building and improvements are to be located, including the number of storeys, basements, number of each apartment, area of each apartment, number of rooms and immediate common area etc. Alongwith a set of floor plans of the building showing the layout, location, and dimensions of the appurtenance and bearing the verify statement of an architect certifying that the same is an accurate copy of the floor plans of the building as filed with and approved by the local authority within whose jurisdiction the building is located.
Section 13(3) of the said Act requires that in all registration offices a book called Register of Declarations and Deeds of Apartments under The Maharashtra Apartment Ownership Act, 1970 and a relevant index, be in a particular form and should contain such particulars as the State Government may prescribe. Under Section 13(5) of the said Act, the sub-Registrar or Registrar must register the declaration along with floor plans of the building and the Deed of Apartments in a Register of Declarations and Deed of Apartments under the said Act and shall also enter the particulars prescribed in the index kept under sub-section (3). Any person acquiring any apartment or any apartment owner shall be deemed to have notice of the Declaration and of the Deed of Apartments as form the date of its registration under this section.

Q.15. Is registration of the agreement necessary if a person agrees to transfer his right, title or interest in a premises purchased from an owner/promoter/developer to another person before the society is formed?
Yes, it is advisable to get an agreement registered in these circumstances.

Q.16. Is the registration of an agreement to transfer a flat necessary after the registration of a co-operative society?
No. After registration of a co-operative society the purchasers of various premises become members and shareholders of such a society, and as such the members are thereby governed under the provisions of The Maharashtra Co-operative Societies Act, 1960.
Under Section 41 of the Maharashtra Co-Operative societies Act, 1960, the provisions of clause (b) and (c) of sub section (1) of Section 17 of the Registration Act, 1908 do not apply to any instrument relating to shares in a society although the assets of the society consist in whole or in part of immovable property. In a registered society, the member actually transfers his right in the shares held by him and consequently transfers the premises in his use, occupation and possession. Thus, it is not necessary to register such an agreement.

Q.17. What are the consequences of non-registration of a document which are compulsorily registrable ?
According to Section 49(c) of the Act, if a document of which registration is compulsory under Section 17 of Registration Act, has not been registered, it cannot be produced as an evidence in a court of law.

Q.18. What is the time frame prescribed for registration of a document ?
Under Section 23 of the Act, subject to certain exceptions, any document other than a will has to be presented for registration Within Four Months from the date of its execution. The term “execution” means signing of the agreement. Under the present rules and regulations, all agreements in respect of a transfer of a premise or an immovable property have to be duly stamped, under the provisions of the Bombay Stamp Act, 1958 before the document is presented for registration.

Q.19. What is the remedy, if document is not registered within a prescribed period of four months ?
As per the provisions of Section 25 of the Indian Registration Act, 1908 if a document is not presented for registration within the prescribed time period of four months, and if in such a case the delay in presentation of the document does not exceed a subsequent period of four months, then the parties to the agreement can apply to the Registrar, who may direct that on payment of a fine not exceeding ten times the proper registration fees, such a document should be admitted for registration.

Q.20. If the delay goes even beyond these additional four months, can the parties concerned make an application to condone the delay? And to whom should it be made ?
The Parties followed in such an event is that the parties to the document execute a Deed of Confirmation confirming that the main deed is valid and binding upon them. By way of such a deed the transferor/s also confirm/s that he/they hold/s no right, title and interest in the property and the same is being transferred to the transferee/s. A copy of the main deed is annexed to this Deed of Confirmation. This is the only manner in which the lapse in registration can be rectified.

Q.21. Can a document relating to an immovable property in India be executed out of India ? If so, can it then be registered in India?
Yes, a document relating to an immovable property can be executed out of India and later it can be presented for registration in India. As per Section 26 of The Registration Act, 1908 if a document purporting to have been executed by all or any of the parties out of India is presented for registration within the prescribed time, the Registering Officer may, on payment of proper registration fee, accept such document for registration if he is satisfied that :

(a) the instrument was executed out of India.

(b) the instrument has been presented for registration within four months after its arrival in India.

Q.22. Does a Deed of Rectification rectifying the mistakes in the names of the parties, the figures, the description etc. In the duly registered main document require registration ?
If the main document/agreement is registered, then in that event it is always necessary to register the Deed of Rectification too.

Q.23. Is the Registering Officer empowered to make any enquiry about any person purporting to have executed the document ?
The Registering Officer is empowered under Section 34(3) of The Registration Act, to enquire whether or not such a document was executed by the person by whom it purports to have been executed. In order to satisfy himself, the Registering Officer may ask the person appearing before him to prove his identity. In the case of any person appearing as a representative or agent, the Registrar may ask for relevant documents which show that the has the right to appear on behalf of his Principal. After carrying out such an enquiry, the Registering Officer is entitled to refuse the registration of a document if he is not satisfied with his findings.

Q.24. What is the recourse available to a person wishing to register a document which has been refused by the Registrar ?
Where the refusal order/direction of the Registrar/Sub-Registrar is on the ground other than that of denial of execution, the appeal lies to the Registrar under Section 72 of the Act. On such a refusal to admit a document for registration, any person wishing to register the same should, within 30 days from the date of refusal, appeal to the Registrar to whom such Sub-Registrar is subordinate, in order to establish his right to have the document registered.In such an event, under Section 74 of the Act, the Registrar may enquire whether the document has been executed and whether the requirements of the law currently in force have been complied with on the part of the applicant or the person presenting the document for registration, as the case may be, so as to admit the document for registration. For the purpose of an enquiry, as per Section 74(4) of the Act, the Registrar is empowered to issue summons to enforce the attendance of witnesses and compel them to give evidence as if he were a Civil Court. As per Section 75(1) of the Act, if the Registrar finds that the document has been executed and that the said requirement had been complied with he can order for registration of the document. As per Section 77 of the Act, when the Registrar refuses to order the document to be registered, any person claiming under such a document or his representative, assignee or agent may within 30 days after making the order of refusal institute a suit in the proper Civil Court for a decree directing the document to be registered.

Q.25. What is the procedure on admitting a document to registration?
If all the persons executing the document appear personally before the officer and/or are personally known to him or if he is otherwise satisfied that they are the persons they represent themselves to be and if they all admit the execution of the document, the Registering Officer should register the document as required under Section 58 of the said Act.
He should endorse the following particulars, namely :

(a) The signature and admission of every person admitting the execution of the document in person or by his representative, assign or agent;

(b) The signature and admission of every person examined in reference to such a document;

(c) Any payment of money or delivery of goods made in the presence of the Registering Officer in reference to the execution of the document and any admission or receipt of consideration made in his presence in reference to such execution. If any person admitting the execution of a document refuses to endorse the same, the Registering Officer nevertheless is empowered to register such a document but he should endorse a note of such a refusal and as required under Section 59 of the Act, as he should affix the date and his signature to all endorsements made under Sections 52 and 58 of the Act which is relating to the same document.
After completion of all formalities related to registration, the Registering Officer shall endorse on the document a certificate containing the word “Registered” together with the number and page of the book in which the document has been copied. Later, the endorsements and certificate shall thereupon be copied into the margin of the Register book. The copy of maps on plans of any, shall be filed in Book No.1. The registration of the document is then deemed to be completed and the document is returned to the person who presented the same for registration or to such other person if any, who has been nominated in writing in that behalf on the receipt mentioned in Section 52 of the Act. However, such original documents are returned by post or by hand delivery only after the proper procedure for the preservation of the original document has been completed by the Registration Authorities.

Q. 26. What is a Power of Attorney ?
A Power of Attorney is a document which empowers a specific person to act on behalf of the person who is executing the same. It also includes any document by which a person is authorised to appear and act on behalf of a person who is executing the power of attorney. A power of attorney may also be given by a person to another to appear before any Court, Tribunal or Authority or before a Co-operative Society or any Body or Association.

Q. 27. Is the confirming parties Income Tax Clearance Certificate required while registering an agreement ?
No, the confirming parties Income Tax Clearance Certificate is not required while registering an agreement as held in the judgement delivered by the Bombay High Court in the Writ Petition No.734 of 1993 on 13.6.95 in the case of Freight Wings and Travels Pvt. Ltd. and others v/s. Sub Registrar of Mumbai and others.

Q. 28. In what circumstances income tax clearance certificate of the seller required while registering the document ?
Income Tax Clearance Certificate of the seller is required if the apparent consideration exceeds Rs. Five Lacs.

Q. 29. What other documents are required while registering a document ?
The parties should as far as possible :-

(a) Obtain an Income Tax Clearance Certificate of the seller for all properties above Rs. Five Lacs and the NOC from the Appropriate Authority if applicable (if the consideration exceeds Rs. Seventy Five Lacs for the city of Mumbai then the permission from the Appropriate Authority will be required).

(b) Get the documents adjudicated from the Collector of the Stamps and duly certified that the proper stamp duty has been paid.

(c) Comply with the formalities of Urban Land Ceiling and Registration Act, 1975 (if applicable) if the area exceeds 500 sq.mts.
If the above formalities are not complied then the original agreement will not be received by the parties after registration.

Q. 30. Where the registration of document is done ?
As per Section 28 and 29 of the Registration Act the document should be presented for registration at the office of the Sub-Registrar of Assurances within whose sub district the whole or some portion of the property to which such document relates is situated or in the office of the Sub-Registrar situated at Mumbai, Delhi, Madras or Calcutta.

Q. 31. Under what circumstances the registration of document is refused ?
The normal grounds for non-registration of document/s are :-

(a) Document is opposed to public policy.

(b) Parties have not complied with the formalities as laid by the Registration Act and by any reasons by which registering authority is not satisfied.

(c) The Survey No. Of the property is not mentioned in the document/s.

(d) The language in which the document is executed is not in the language that is normally prevalent in the area where the office of the registering authority is situated.

Q. 32. How is the title of the property verified ?
Normally the person purchasing the property has to ensure that the seller has a good and marketable title. In order to find out if the title of the seller is clear and marketable, one has to take search of the property. The search of the property has to be taken at the offices of the relevant Sub-Registrars, normally 30 years search has to be taken. The purchaser can also ask copies of the documents lodged with the office of the Sub-Registrar to the seller. The objections pertaining to the title of the property can be easily verified after taking the search, for example : if the party has mortgaged and registered the documents with the Sub Registrar of Assurances then it can be known only after taking the search of the property. After satisfying the title of the property the party should proceed with the transaction

Q. 33. What are the different types of fees ?
Various kinds of fees and their particulars as of date are listed below

(1) Registration fee: Charged as service fee and 1% of the market value of the property. Maximum limit on registration fee charged is Rs. 25000/-.

(2) Copy fee: levied at Re. 1 for 2 folios (1 folio = 100 words) for making a copy of the document.

(3) Postage fee: for dispatching the document to the executant by post.

(4) Search fee: charged for search of the document as per the applied by the party. The amount depends on no. of years on which search is to be taken Rs. 5 for first year and Rs. 2 per subsequent year.

(5) Fine : The executant is fined for lapses on his part in following cases

(A) As per section 25 of The Registration Act the executant is

fined if he does not present the document at the SRO within four months of date of execution .The time frames and fine amount are as

(i) Fine is 2.5 times of the registration a fee for the first month after the initial four-month period.
(ii) times the registration fee for second month.
(iii) 7.5 times the registration fee for third month.
(iv) 10 times the registration fee for fourth month.

(B) As per section 34 starts if the executant fails to register the document four months after the date of admission. The fine to time span relation remains same as prescribed in section 25.
* Fine charged is inclusive of the registration fee.
* Fine is not levied simultaneously under both 25 and 34 sections.

(6) Certified copies fee: fixed and charged for providing the applicant with a true copy of document.

(7) Index II fee : for giving a copy of Index II to the applicant

(8) Extra fee: charged towards recovery of partly paid registration fee.

(9) Comparing fee: fixed and applicable when two copies of printed document are to be manually compared for mismatches if any.

(10) Filing fee: levied for binding the document in the volume.

(11) Power of Attorney fee: separate format. Fixed at Rs.5 for general and Rs.3 for special.

(12) Attendance fee: Applicable if the SR has to personally visit the executant at his place of convenience for admission and identification.

(13) Will registration fee: fixed at Rs. 20 for registering the will at JDR office.

(14) Will opening fee: fixed at Rs.20 and levied for opening the sealed will envelope.

(15) Will withdrawal fee: Applicable if the applicant reverts already registered will, fixed Rs. 20.

(16) Dead stock fee sales fee: charged on dead stock sold at government offices.

(17) Travelling expenses: For court attendance of an official. Claimed in TA bills and paid by the client.

(18) Allowance : payable according to no. Of days of travel and place of travel.

(19) Marriage fee : Fixed for registering a marriage. Fixed Rs. 3.