REG 082 Registrars Refusal and Sub Registrars Refusal — Law of Registration Notes for Judiciary

Refusal by the Sub Registrar and Refusal by the Registrar: Section 71 Against Section 76, and Why the Remedy Changes with the Officer

Part XII of the Act uses the word refusal for two different acts by two different officers, and the remedy that follows depends entirely on which of them refused. A Sub Registrar who refuses acts under Section 71, and his order opens the administrative route: an appeal to the Registrar under Section 72, or, where the ground was denial of execution, an application to the Registrar under Section 73. A Registrar who refuses acts under Section 76, and his order closes the administrative route and opens the judicial one: a suit under Section 77 within thirty days. The two are stages in one chain, not alternatives, and a party who takes the wrong one usually finds that his thirty days have gone.

The two refusals, the record each officer makes, and the remedy each one opens

1. Refusal by the Sub Registrar

Section 71, Registration Act, 1908

71. Reasons for refusal to register to be recorded. (1) Every Sub Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub district, shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words "registration refused" on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded.

(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.

One ground is excepted, and it is a narrow one. If the property is not in his sub district, the Sub Registrar need not go through Section 71 at all, because he has no jurisdiction to deal with the document and there is nothing to record.
Every other refusal must be recorded. Whatever the ground, whether want of stamp, want of proper presentation, non appearance of the executants, or denial of execution, the order is made and the reasons entered in Book No. 2.
The endorsement goes on the document itself. The words "registration refused" are written on it, which is what makes the refusal visible to every later registering officer.
The copy of the reasons is free. A person executing or claiming under the document is entitled to it without payment, and that copy is the material on which he frames his appeal or application.
Sub section (2) is the practical bite. Once the endorsement is on the document, no registering officer may accept it again until it is directed to be registered. A party cannot simply present the document afresh at another office and hope for a better answer.
Where the ground is denial of execution, Section 35(3) is the operative provision. Section 35(3)(a) requires the officer to refuse to register the document as to the person so denying, and Section 71 governs the recording of that refusal.

2. Refusal by the Registrar

Section 76, Registration Act, 1908

76. Order of refusal by Registrar. (1) Every Registrar refusing (a) to register a document except on the ground that the property to which it relates is not situate within his district or that the document ought to be registered in the office of a Sub Registrar, or (b) to direct the registration of a document under section 72 or section 75, shall make an order of refusal and record the reasons for such order in his Book No. 2, and, on application made by any person executing or claiming under the document, shall, without unnecessary delay, give him a copy of the reasons so recorded.

(2) No appeal lies from any order by a Registrar under this section or section 72.

The Registrar may refuse in two distinct capacities. He may refuse a document presented to him directly, under clause (a), or he may refuse to direct the registration of a document that came to him on a Section 72 appeal or a Section 73 enquiry, under clause (b).
Two grounds are excepted from clause (a), and both are jurisdictional: that the property is not in his district, and that the document ought to be registered in the office of a Sub Registrar.
Clause (b) is the important one for the chain. It is the Registrar's refusal under this clause that terminates the administrative route.
The copy of the reasons is again free, though Section 76(1) says "without unnecessary delay" and omits the words "without payment" used in Section 71(1).
Sub section (2) bars a further appeal, and nothing more. There is no second appeal from the Registrar to any higher revenue or registration authority. It does not touch the suit given by Section 77.

3. The Two Compared

	Sub Registrar	Registrar
The provision	Section 71, with Section 35(3) where execution is denied	Section 76, in both the capacities described in clauses (a) and (b)
When he refuses	On any ground except that the property is not in his sub district	On any ground except that the property is not in his district, or that the document ought to be registered by a Sub Registrar
Refusing to direct registration	Does not arise; he does not sit over anyone	Section 76(1)(b): refusing to direct registration under Section 72 or Section 75
The order	An order of refusal, reasons in Book No. 2, and "registration refused" endorsed on the document	An order of refusal, with reasons in Book No. 2
A copy of the reasons	Without payment and without unnecessary delay, Section 71(1)	Without unnecessary delay, Section 76(1)
The remedy	Appeal under Section 72, or application under Section 73, within thirty days	A suit under Section 77, within thirty days
To whom	The Registrar to whom he is subordinate	The Civil Court within whose original jurisdiction the registration office is situate
A further appeal	Section 72 is itself the appeal	None. Section 76(2) bars an appeal from any order under Section 76 or Section 72
If the challenge succeeds	The Registrar reverses or alters the order and directs registration, Sections 72(2) and 75	The court decrees that the document be registered, Section 77(1)
The effect of registration then	As if registered when first duly presented, Section 72(2)	The same, Section 75(2) applied to a decree by Section 77(2)

4. Which Remedy Follows Which Refusal

The refusal	The ground	The remedy	Time
Sub Registrar	Any ground other than denial of execution	Appeal to the Registrar, Section 72	Thirty days from the order
Sub Registrar	Denial of execution by a person purporting to have executed	Application to the Registrar, Section 73	Thirty days from the order
Registrar, on a Section 72 appeal	He declines to reverse the Sub Registrar	Suit under Section 77	Thirty days from the order
Registrar, on a Section 73 application	He finds execution not proved, Section 76(1)(b) with Section 75	Suit under Section 77	Thirty days from the order
Registrar, on a document presented to him	Any ground within Section 76(1)(a)	Suit under Section 77	Thirty days from the order
Either officer	The property is outside his sub district or district	No order of refusal is made; present at the proper office, Sections 28 to 30	Subject to Sections 23 to 25

5. The Point Most Often Got Wrong

⚠ Section 76(2) bars a further appeal, not the suit

It is sometimes said that because Section 76(2) declares that no appeal lies from any order of a Registrar under Section 76 or Section 72, a party defeated on a Section 72 appeal is left only with a writ petition. That is not the position. Section 77(1) applies in terms to a refusal by the Registrar "under section 72 or section 76", and a suit therefore lies in both lines of cases. What Section 76(2) shuts out is a further appeal within the registration hierarchy, and nothing else. A writ under Article 226 may of course be available on the ordinary grounds, but it is not the party's only remedy, and a party who treats it as such will ordinarily find that the thirty days given by Section 77 have run out while he was drafting it.

6. What Both Refusals Have in Common

1. Both require a written order. Neither officer may simply decline to act; an order of refusal must be made.

2. Both require reasons in Book No. 2. Book No. 2 is the register of refusals, kept under Section 51(1).

3. Both give the party a copy of those reasons, on application, without unnecessary delay.

4. Both except a jurisdictional ground, where the property lies outside the officer's territory, because in that case there is nothing before him to refuse.

5. Both carry a thirty day period for the remedy, and in each case the period runs from the date of the order, not from the date the party learnt of it.

6. Both, if the challenge succeeds, lead to a registration that relates back to the date of first due presentation, so that the party is not prejudiced by the officer's error.

7. Neither officer sits in judgment on title. The enquiry is into execution and into compliance with the Act, not into whether the executant owned what he purported to transfer.

7. The Relation Back

Sections 72(2), 75(2) and 77(2), in substance

72(2). If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub Registrar shall obey the same and shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration.

75(2). Where the Registrar orders a document to be registered, the document shall, if duly presented within thirty days after the making of the order, be registered, and the registration shall take effect as if the document had been registered when it was first duly presented for registration.

77(2). Where a decree directing registration is passed, the document shall be registered if presented within thirty days after the decree, and the provisions of sections 75 and 76 shall, so far as may be, apply.

The thirty days recur. Thirty days to appeal or apply, thirty days to sue, thirty days to present after the order or decree. Each is independent, and each is fatal if missed.
The relation back is to the first due presentation, not to the date of execution, and not to the date of the order. That is a rule about the date of registration, which is distinct from the rule in Section 47 about the date from which the document operates.
The words "first duly presented" matter. If the original presentation was itself bad, because it was made by a person not competent under Section 32 or at the wrong office, there is no due presentation to relate back to.

8. The Position Stated Shortly

1. A Sub Registrar who refuses acts under Section 71; a Registrar who refuses acts under Section 76.

2. Each must make an order, record his reasons in Book No. 2, and give a copy of those reasons on application.

3. The Sub Registrar must also endorse the words "registration refused" on the document, and no officer may accept it again until registration is directed.

4. The Sub Registrar is excepted only where the property is not in his sub district; the Registrar, where it is not in his district or ought to be registered by a Sub Registrar.

5. A Sub Registrar's refusal opens the administrative route: Section 72 for every ground other than denial of execution, Section 73 where execution is denied.

6. A Registrar's refusal, whether of a document presented to him or of a direction to register under Section 72 or Section 75, opens the judicial route: a suit under Section 77.

7. Section 76(2) bars a further appeal from the Registrar. It does not bar the suit, which Section 77(1) gives against a refusal under Section 72 or Section 76 alike.

8. Every one of these remedies must be taken within thirty days of the order.

9. If the challenge succeeds, the document must be presented within thirty days of the order or decree, and registration then relates back to the date of first due presentation.

10. Relation back under Sections 72(2), 75(2) and 77(2) fixes the date of registration; Section 47 fixes the date from which the registered document operates.