REG 080 Presentation and Appearance — Law of Registration Notes for Judiciary

Presentation and Appearance: Section 32 Against Sections 34 to 39, and Why the Person Who Presents Need Not Be the Person Who Appears

Presentation and appearance are two different acts, at two different stages, governed by two different groups of sections, and they are frequently done by different people. Presentation is handing the document in at the proper office, and Section 32 says who may do it: a person executing or claiming under the document, his representative or assign, or an agent holding an authenticated power. Appearance is standing before the officer to admit execution, and Sections 34 and 35 require the persons executing the document to do that. So a purchaser may present a sale deed he never executed, but he cannot admit execution for the vendor. Sections 36 to 39 exist precisely because the two can come apart.

The two acts, who may do each, and the machinery for compelling appearance

1. Presentation

Section 32, Registration Act, 1908

32. Persons to present documents for registration. Except in the cases mentioned in sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office:

(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or

(b) by the representative or assign of such a person, or

(c) by the agent of such a person, representative or assign, duly authorised by power of attorney executed and authenticated in manner hereinafter mentioned.

The class is wider than the executants. A person claiming under the document may present it, and in practice the purchaser very often does.
A representative or assign may present. A representative is ordinarily the legal representative of a deceased person; an assign is a person to whom the interest has been assigned.
An agent may present, but only on an authenticated power. Section 33 prescribes the modes of authentication exhaustively, by the words "shall alone be recognised".
The exceptions are Sections 31, 88 and 89. Section 31 allows the officer to attend at a private residence; Section 88 exempts certain officers of Government and others from personal appearance; Section 89 provides for copies of court sale certificates and loan orders sent to the office.
Time and place are separate requirements. Presentation must be at the proper office under Sections 28 to 31, and within the time allowed by Sections 23 to 26.
The particulars are endorsed. Under Section 52(1)(a), the day, hour and place of presentation, and the signature of the person presenting, are endorsed on every document.

2. Appearance

Sections 34 and 35, Registration Act, 1908, in substance

34(1). No document shall be registered 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. 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 the 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; and (c) satisfy himself as to the right of such person to appear where he appears as a representative, assign or agent.

35(1)(a). If all the persons executing the document appear personally and are personally known to the officer, or he is otherwise satisfied of their identity, and they all admit the execution, the officer shall register the document.

The persons who must appear are the persons executing, or their representatives, assigns or authorised agents.
A person claiming under the document cannot admit execution for the executant. He may present, but only the executant can say that he signed.
Appearance must be within the time allowed for presentation, and the proviso to Section 34 condones a delay in appearing of up to four months on a fine.
That fine is separate from the fine under Section 25 for delay in presentation, and both may be payable.
Identity is established by the identifying witnesses, whose signatures and additions are endorsed under Section 58(1)(b) where they are examined.

3. The Two Compared

	Presentation	Appearance
The provision	Section 32, with Sections 28 to 31 on place and Sections 23 to 26 on time	Sections 34 and 35, with Sections 36 to 39 on enforcing it
What it is	Handing the document in at the proper office	Standing before the officer to admit execution
Who may do it	A person executing or claiming under the document, his representative or assign, or an agent with an authenticated power	The persons executing the document, or their representatives, assigns or authorised agents
So a purchaser may	Present the sale deed, though he did not execute it	Not admit execution for the vendor; only the vendor can do that
When	Within four months of execution, Section 23; Section 24 for several executants	Within the time allowed for presentation; delay of up to four months condoned on a fine under the proviso to Section 34
Where	The proper office under Sections 28 to 31; or at a private residence under Section 31	The same, or at the residence or jail of a person unable to appear, Section 38
The record made	The day, hour and place of presentation, endorsed under Section 52(1)(a)	The signature and addition of every person admitting execution, endorsed under Section 58(1)(a)
If it is defective	Presentation by a person not competent is a want of jurisdiction, which Section 87 does not cure	Non appearance leads to refusal; the officer may summon under Section 36 and issue process under Section 37
The remedy	Appeal to the Registrar under Section 72, within thirty days	Depends on the ground: Section 72 if the executant simply did not appear, Section 73 if he appeared and denied execution

4. Why Defective Presentation Is So Serious

⚠ Presentation by an incompetent person is a want of jurisdiction

Section 32 is not a matter of form. Where a document is presented by a person who is not competent to present it, the registering officer has no jurisdiction to register it, and the registration has long been treated as a nullity rather than a curable irregularity. Section 87, which saves an act done in good faith from a defect in the officer's appointment or in the procedure he followed, does not cure a want of jurisdiction. The commonest instance is presentation by an agent holding a power of attorney that was never authenticated under Section 33, because the parties assumed that registering the power was enough. It was not: registration and authentication are different acts, and Section 32(c) requires the second.

5. Enforcing Appearance: Sections 36 to 39

Sections 36 to 39, Registration Act, 1908, in substance

36. Procedure where appearance of executant or witness is desired. If any person presenting any document or claiming under any document, which has been registered, desires the appearance of any person whose presence or testimony is necessary for the registration of such document, the registering officer may, in his discretion, call upon such officer or Court as the State Government directs to issue a summons requiring him to appear at the registration office.

37. Officer or Court to issue and cause service of summons. The officer or Court so called upon shall issue and cause to be served such summons as may be requisite; and the law for the time being in force as to summonses and their service shall apply.

38. Persons exempt from appearance at registration office. (1) A person who by reason of bodily infirmity is unable without risk or serious inconvenience to appear at the registration office; a person in jail under civil or criminal process; and persons exempt by law from personal appearance in court, shall not be required to appear at the registration office. (2) The registering officer shall either attend at the house of such person or at the jail, or issue a commission for his examination.

39. Law as to summonses, commissions and witnesses. The law in force for the time being as to summonses, commissions and compelling the attendance of witnesses, and as to their remuneration and penalties, shall, so far as may be, apply to any summons, commission or person under this Act.

1. Section 36 is the request. A person who has presented, or who claims under a registered document, may ask the officer to secure the appearance of someone whose presence or testimony is needed.

2. The officer has a discretion, and acts by calling on the officer or court the State Government has designated.

3. Section 37 is the machinery. That officer or court issues and serves the summons, applying the ordinary law of summonses.

4. Section 38 is the exemption, for a person unable to appear from bodily infirmity, a person in jail, and persons exempt by law from personal appearance in court.

5. The officer then goes to him, or issues a commission for his examination. Section 33's proviso does the same for authentication of a power of attorney.

6. Section 39 applies the general law as to summonses, commissions, compelling attendance, remuneration and penalties.

7. Section 31 is the companion provision on the other side: the officer may, on special cause being shown, attend at the private residence of any person desiring to present a document or deposit a will.

6. The Sequence in Practice

Stage	Who acts	Provision
The parties execute the deed	The executants	The general law; Section 23 runs from here
Duty is paid and the e-Stamp obtained	The parties	Section 17 of the Indian Stamp Act, 1899
The document is presented	A person executing or claiming under it, a representative or assign, or an authenticated agent	Section 32; endorsed under Section 52(1)(a)
The executants appear	The persons executing, or their representatives, assigns or authorised agents	Section 34(1)
The officer enquires	The registering officer	Section 34(3): execution, identity, right to appear
Execution is admitted	The executants	Section 35(1); endorsed under Section 58(1)(a)
Identifying witnesses are examined	The witnesses	Endorsed under Section 58(1)(b)
Endorsements are dated and signed	The registering officer	Section 59
The certificate is endorsed	The registering officer	Section 60
The document is copied and indexed	The office	Sections 51, 55 and 56

7. The Common Errors

Supposing that only an executant may present. A person claiming under the document may present it, by Section 32(a).
Supposing that a person who presents may admit execution. He may not, unless he is also an executant or a representative, assign or authorised agent of one.
Supposing that registering a power of attorney makes the agent competent to present. It does not; the power must be authenticated under Section 33.
Supposing that a defect in presentation is curable under Section 87. It is not: Section 87 cures a defect in appointment or procedure, not a want of jurisdiction.
Supposing that the fine under Section 25 covers delay in appearing. It does not; the proviso to Section 34 provides a separate fine, and both may be payable.
Supposing that a person in jail or unable to appear must nonetheless attend. Section 38 exempts him and requires the officer to attend on him or issue a commission.
Supposing that non appearance and denial of execution lead to the same remedy. They do not: Section 72 for the first, Section 73 for the second.

8. The Position Stated Shortly

1. Presentation is handing the document in; appearance is standing before the officer to admit execution.

2. Section 32 allows presentation by a person executing or claiming under the document, his representative or assign, or an agent holding a power authenticated under Section 33.

3. Sections 34 and 35 require the persons executing, or their representatives, assigns or authorised agents, to appear and admit execution.

4. A purchaser may therefore present a sale deed he did not execute, but cannot admit execution for the vendor.

5. Presentation must be at the proper office under Sections 28 to 31 and within four months under Section 23.

6. Appearance must be within the time allowed for presentation, and a delay of up to four months is condoned on a fine under the proviso to Section 34, separately from the fine under Section 25.

7. Presentation is endorsed under Section 52(1)(a); admission of execution under Section 58(1)(a).

8. Presentation by a person not competent under Section 32 is a want of jurisdiction, which Section 87 does not cure.

9. Sections 36 and 37 allow the officer to have a summons issued to secure the appearance of a person whose presence or testimony is necessary.

10. Section 38 exempts a person unable to appear from bodily infirmity, a person in jail, and persons exempt by law from personal appearance, and requires the officer to attend on him or issue a commission.

11. Section 39 applies the general law as to summonses, commissions and compelling attendance.

12. Non appearance is remedied by an appeal under Section 72; denial of execution by an application under Section 73.