REG 079 Execution and Admission of Execution — Law of Registration Notes for Judiciary

Execution and Admission of Execution: The Act of the Party and the Statement to the Officer, and How Narrow the Enquiry Under Section 34 Really Is

Execution is the act of the party: signing the instrument with the intention of giving effect to it. Admission of execution is a statement made to the registering officer afterwards, that he did so. The two are separated by everything, and the separation does a great deal of work in this Act. Execution brings the document into existence; admission lets the officer register it. Section 34 confines the officer's enquiry to whether the document was executed and who the executant is; Section 35 acts on the answer; and where execution is denied, Section 35(3) leaves the officer no discretion at all.

The two acts side by side, and the narrowness of the enquiry that connects them

1. Execution

The Registration Act does not define execution, and did not need to. Execution is the signing of an instrument by a person with the intention of giving effect to it as his act. It is complete when he signs, and it requires nothing from anyone else: not the other party, not the consideration, not the registering officer.

Signature or mark. A signature, or a mark by an illiterate executant, or a signature by another in his presence and by his direction where the law allows, all constitute execution.
The intention matters. A person who signs a blank paper, or signs by way of witness, or signs a draft for approval, has not executed the instrument, and that is a question of fact.
Several executants may execute on different dates. Section 24 provides for a document executed by several persons at different times, and allows presentation within four months from each date of execution.
Execution by an agent is execution by the principal, where the agent acts within an authority that extends to the act.
A lease must be executed by both parties, by the third paragraph of Section 107 of the Transfer of Property Act; a sale deed by the vendor alone.
Execution is the starting point for time. The four months under Section 23 run from it, and Section 47 dates the operation of the registered document back to it.

2. The Enquiry Under Section 34

Section 34, Registration Act, 1908, in substance

34(1). Subject to the provisions contained in this Part and in sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the persons executing such document, or their representatives, assigns or agents authorised as aforesaid, appear before the registering officer within the time allowed for presentation under sections 23, 24, 25 and 26.

Proviso. Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section 25, the document may be registered.

34(3). The registering officer shall thereupon (a) enquire whether or not such document was executed by the persons by whom it purports to have been executed; (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and (c) satisfy himself as to the right of such person to appear, where he appears as a representative, assign or agent.

1. Clause (a) is about the fact of execution, and nothing else. The officer asks whether this document was executed by the person who purports to have executed it.

2. Clause (b) is about identity. The officer satisfies himself that the person before him is who he says he is, and the identifying witnesses exist for this purpose.

3. Clause (c) is about entitlement to appear, where the person appearing is a representative, an assign or an agent.

4. That is the whole of the enquiry. The officer does not ask whether the executant owned the property, whether he had capacity, whether the price was paid, whether the transaction is lawful, or whether the recitals are true. He has no machinery to do so and no power to do so.

5. The proviso deals with delay in appearance, which is a different thing from delay in presentation under Section 25, and the two fines may both be payable.

3. Admission Under Section 35

Section 35, Registration Act, 1908, in substance

35(1)(a). If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be 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 shall register the document as directed in sections 58 to 61.

35(1)(b). If any person by whom the document purports to be executed is dead, and his representative or assign appears and admits the execution, the officer shall register the document as aforesaid.

35(3)(a). If any person by whom the document purports to be executed denies its execution, or (b) is a minor, an idiot or a lunatic, or (c) is dead and his representative or assign denies execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead.

An admission is a statement of fact made to the officer, that the person executed the document.
It may be made by the executant, or by his representative, assign or authorised agent, in the cases the sections allow.
It is recorded by the endorsement under Section 58(1)(a): the signature and addition of every person admitting execution.
The endorsement is dated and signed by the officer under Section 59, and the certificate under Section 60(2) is admissible to prove that the endorsed facts occurred.
A denial compels refusal, and Section 35(3) gives the officer no discretion whatever.
The refusal is partial. The officer refuses as to the person denying, and may register as to the others, which is a point often missed.

4. The Two Compared

	Execution	Admission of execution
What it is	The act of the party: signing animo executandi	A statement made to the registering officer, Section 35
When	Whenever the party chooses	At registration, after presentation and the enquiry under Section 34
Before whom	Nobody in particular	The registering officer
What it produces	The instrument, as the act of the party	The endorsement under Section 58(1)(a), dated and signed under Section 59
Is it essential?	Yes. Without it there is no document at all	Yes for registration: Section 35(3) obliges the officer to refuse if execution is denied
What it proves	Nothing by itself; it must be proved in court	That the person appeared, was identified, and said he executed the document
What it does not prove	Not applicable	The truth of the contents, the payment of the price, or the capacity of the executant
Who may do it	The executant, or another in his presence and by his direction	The executant, or his representative, assign or authorised agent, Sections 34 and 35
Effect of absence	There is no document	Refusal to register, and the machinery of Sections 36 to 39 and 73 to 77
Relation to Section 47	The date from which the registered document operates	No effect on the date of operation

5. What an Admission Is Worth

An admission before the officer is evidence of	It is not evidence of
That the person appeared before the officer on the endorsed date	That the recitals in the document are true
That he was identified, or was personally known to the officer	That the consideration recited was paid, unless it was paid in the officer's presence and endorsed under Section 58(1)(c)
That he admitted having executed the document	That he had title to what he purported to convey
That the admission was recorded and endorsed as Section 58 requires	That he had capacity, acted freely, or had authority

An admission is not conclusive proof, but it operates strongly. A person who later denies execution must explain why he appeared, was identified, and admitted it.
It may operate as an estoppel against the person who made it.
The officer's satisfaction as to identity is not conclusive of identity. Where impersonation is proved, the endorsement records only that somebody appeared and said he was the executant, which is why Section 82 makes false personation before a registering officer an offence.
Section 69 of the Bharatiya Sakshya Adhiniyam, 2023 is the related provision in the law of evidence: the admission of a party to an attested document of its execution by himself is sufficient proof of its execution as against him.

6. When Execution Is Denied

1. The officer must refuse under Section 35(3)(a), as to the person denying. He has no discretion.

2. He records the reasons under Section 71, and on application gives a copy of the reasons under Section 71(2).

3. The remedy is an application to the Registrar under Section 73, within thirty days of the order of refusal, by any person claiming under the document.

4. The Registrar enquires under Section 74 whether the document was executed, and whether the requirements of the law have been complied with.

5. He has the powers of a civil court as to summoning and examining witnesses, under Section 75(3).

6. If satisfied, he orders registration under Section 75(1), and if the document is presented within thirty days of that order, the registration takes effect as if the document had been registered when it was first duly presented, by Section 75(2).

7. If he refuses, he records his reasons under Section 76, and a suit lies under Section 77 within thirty days.

8. None of this decides title. The Registrar's enquiry is confined to the fact of execution, and a decree in a Section 77 suit concludes nothing about ownership.

⚠ The route depends on the ground of refusal

It is important to take the right route. Where the Sub Registrar refuses on the ground that a person denies execution, the remedy is an application under Section 73, followed by a suit under Section 77. Where he refuses on any other ground, such as defective description under Sections 21 and 22, presentation by a person not competent under Section 32, presentation out of time, or non payment of the fee, the remedy is an appeal to the Registrar under Section 72. Both periods are thirty days and both are strictly applied. Where the Registrar then refuses, in either line of cases, a suit under Section 77 lies within thirty days: the section applies in terms to a refusal under section 72 or section 76. What Section 76(2) bars is a further appeal, not a suit.

7. Special Cases

The situation	The provision	What happens
The executant is dead and his representative or assign appears and admits execution	Section 35(1)(b)	The officer registers the document
The executant is dead and his representative denies execution	Section 35(3)(c)	The officer refuses as to that person
The executant is a minor, an idiot or a lunatic	Section 35(3)(b)	The officer refuses as to that person
The executant is exempted from personal appearance, or is in jail, or is unable to appear from bodily infirmity	Section 38, with Section 33 proviso	The officer may attend at his residence or the jail, or issue a commission under Section 33
The executant does not appear though the document was validly presented	Sections 36 and 37	The officer may summon him, and may issue process to compel attendance
A will is presented after the testator's death	Section 41(2)	The officer must be satisfied of execution, of the death, and of the presentant's entitlement
Money is paid in the officer's presence	Section 58(1)(c)	The fact is endorsed, and the endorsement is evidence of the payment

8. The Position Stated Shortly

1. Execution is the act of the party: signing with the intention of giving effect to the instrument. It requires nothing from the office.

2. Admission of execution is a statement made to the registering officer that the executant did so.

3. Section 34 confines the officer's enquiry to whether the document was executed, the identity of the person appearing, and his right to appear.

4. The officer does not enquire into title, capacity, consideration or legality, and has no power to.

5. Under Section 35(1) the officer registers where all the executants appear and admit execution, or where a representative of a deceased executant does so.

6. Under Section 35(3) he must refuse as to any person who denies execution, or who is a minor, an idiot or a lunatic, or whose representative denies it.

7. The admission is recorded by the endorsement under Section 58(1)(a), dated and signed under Section 59, and proved by the certificate under Section 60(2).

8. An admission proves appearance, identification and the statement of execution; it proves nothing about the contents, the consideration or the capacity.

9. A denial of execution leads to an application to the Registrar under Section 73 within thirty days, an enquiry under Section 74, an order under Section 75 with relation back under Section 75(2), and a suit under Section 77 on refusal.

10. A refusal on any other ground leads to an appeal to the Registrar under Section 72.

11. Where the Registrar refuses, in either line of cases, a suit lies under Section 77 within thirty days; Section 76(2) bars a further appeal, not a suit.

12. Neither route decides title.