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Jurisdiction: India

Relevant Law/Statute: ?

Here in India a document may be notarized by a Notary Public, or it may be registered (if it falls under certain types ) by the District Registrar subject to payment of Stamp Duty as applicable. From my interaction with official agencies, I get the impression the two are not on par - a document registered with the District Registrar apparently ranks higher.

How is a notarized document different from a document registered with the District Registrar/sub-registrar?

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A registrar in India maintains public records of private transactions that serve as notice to the world of the existing of the private rights (mainly real property ownership, but also with respect to a few other things) established by documents that are filed with the registrar. Section 17 of the Indian Registration Act of 1908, which lists documents that must be registered, basically lists all documents which always affect title to real property. Section 18 of the Indian Registration Act of 1908, which lists documents for which registration is options enumerates the following kinds of documents:

(a) Instruments (other than instruments of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less then one hundred rupees, to or in immovable property;

(b) instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;

(c) leases of immovable property for any term not exceeding one year, and leases exempted under section 17;

1[(cc) 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 a value less than one hundred rupees, to or in immovable property;]

(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;

(e) wills; and

(f) all other documents not required by section 17 to be registered.

The registrar's duties are to preside over the registration office administratively, and to hear administrative appeals (under Section 72 of the Indian Registration Act of 1908) of the failure of front line sub-registrar's to do their jobs properly, for example, by refusing to register a valid document that is eligible to be registered. Sometimes, the registrar position is a second "hat" worn by someone whose primary job is to be a magistrate (i.e. junior judge).

In contrast, as relevant for these purposes, a notarization of a document is an official determination that the document was actually signed on a particular day in a particular location by the person whom the document claims to be signed by, by a person who also often drafts the documents in question, either for use in court, or for use in business transactions.

In India, as in civil law countries, and unlike the U.S., a notary must be a trained and experienced legally trained professional (i.e. a lawyer with at least 7 years experience), and their official status as a notary who can administer oaths and authenticate documents is incidental to their other roles.

Notarization is governed in India by the Notaries Act, 1952.

But since a notarized document is not automatically available to third-parties to inspect immediately upon being notarized, a notarized document is not a public record that is notice to the world upon being notarized. A conveyance of land, for example, is only complete when a document is "signed, sealed [i.e. notarized], and delivered [i.e. in India, filed with a registrar's office]", and is only effective, when it is registered.

A notarized but unrecorded deed would provide a basis for a lawsuit for specific performance compelling the seller to register the deed under Section 49 of the Registration Act, but doesn't actually convey real property.

As explained here:

Land ownership in India is presumptive: Currently, the Transfer of Property Act, 1882 provides that the right (or title) to an immovable property (or land) can be transferred or sold only by a registered document. Such documents are registered under the Registration Act, 1908. Therefore, in India, the registration of land or property refers to the registration of the transaction (or sale deed), and not the land title (Ministry of Rural Development, 2008). A registered sale deed is not a government guarantee of land ownership. This implies that even bona fide property transactions may not always guarantee ownership as an earlier transfer of the property could be challenged. During such transactions, the onus of checking past ownership records of a property is on the buyer, and not the registrar.

Further, since no one document guarantees ownership in India, land ownership is established through various documents. These include registered sale deeds, record of rights (document with details of the property), property tax receipts, and government survey documents. Therefore, land ownership in India, as determined by various documents, is presumptive in nature, and subject to challenge.

Cost of registering property is high; registration is not mandatory: While registering a property transaction, the buyer has to pay a registration fee along with stamp duty. Stamp duty rates across states vary between 4% and 10%. Note that stamp duties in other countries range between 1% and 4% (Planning Commission, 2009). In addition to stamp duty, registration fee is an additional 0.5% to 2%, on average. Since these rates are calculated on the cost of the property, in cases of high property values, it could end up being a fairly big amount. This raises the cost of property transactions, leading to people avoiding registering them.

Further, under the Registration Act, 1908, registration of property is not mandatory for all transactions. These include acquisition of land by the government, court orders, heirship partitions, and property leased for less than one year. Due to the high cost of registration, and registration not being mandatory, several property transfers do not get registered, and hence, records show outdated data.

Land records are poorly maintained and do not reflect the on-ground position: Land records consist of various types of information (such as property details, spatial details, past transactions, mortgage details) and are maintained across different departments at the district or village level. These departments work in silos, and the data across departments is not updated properly or in a timely manner (Ministry of Rural Development, 2008). Hence, discrepancies are often noted in land records. For example, a property transaction registered through a sale deed may not be simultaneously updated in the survey department that records spatial information (maps). In the past, surveys to update land records have not been undertaken or completed, and maps have not been used to establish actual property boundaries on the ground. Therefore, in several records, the property documents do not match the position on the ground.

Poor land records also affect future property transactions. It becomes difficult and cumbersome to access land records when data is spread across departments and has not been updated. One has to go back several years of documents, including manual records, to find any ownership claims on a piece of property. Such a process is inefficient and causes delays.

This reflects the difference of the role of a notary in the common law tradition, where the role of authenticating documents, and the role of maintaining a public record of official documents is separated between two kinds of officials.

In contrast, historically, at least, the role of a notary in the civil law tradition (e.g., in European Continental and Latin American legal systems) typically fused those responsibilities in a single individual who both authenticated documents and kept a copy of the document that is a public record. A civil law notary, like notaries in India, also frequently drafted the documents in question, something which a notary in the U.S. would do only if the notary was also separately credentialed as a lawyer.

Unlike U.S. practice, where anyone can record a notarized document, the practice in India is for documents to be recorded to either be presented personally by the person executing them to the registrar or to have the document presented by someone with a power of attorney authorizing them to do so that has the proper formalities, with this process of direct presentation of documents to a public official serving the authentication role that is served by notaries in the U.S. in real estate transactions and sometimes also in wills.

This subtle difference in roles of people involved in real property formalities between these two jurisdictions that share a common law tradition of property law probably reflects a historical shortage of notaries in parts of India that was not a serious problem in the U.S. (although the U.S. also has positions inferior to those of notaries that allow public officials in real property record recording offices to authenticate deeds and other real property instruments, but not to do the other things that notaries are allowed to do, like administer oaths for affidavits to be used in court cases).

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