Srija Choudhury
in Civil Law
Asked November 30, 2014

challenging registered document

  • 2 Answers

Who can challenge a registered document like will, gift deed, release deed ? Under what circumstances a registered document can be challenged ?

Answers 2

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Suparna Sinha
Registration of a deed merely requires the person executing the deed (executant) or any person claiming under it (claimant) or his legal representative to present the document at the proper Registration Office.[1]The Registrar is not obligated to investigate the presence of possible foul play in the execution of the deed. Thus, registration of the deed is not proof of free consent. Consent is very crucial part of any contract. “Consent is said to be free when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake.”[2] When you register a deed, the Registrar only sees whether the executant executed the deed, whether the person presenting the deed is in fact who he claims to be and in case of a legal representative, whether such person has the authority to present it for registration.[3] He does not look into whether consent was free. A registered deed may be challenged on the following grounds: •Coercion- That the executant had been coerced into executing the deed through an act that is prohibited by the Indian Penal Code 1860 or a threat thereof.[4] For example, where someone threatens to hurt you or someone close to you if you do not execute a gift deed in their favour, you are said to be coerced into executing the deed. •Undue Influence- That the “relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other”[5] and such relation was used to manipulate the executant into executing the said deed. Imagine a scenario where a terminally ill mother is looked after by one of her sons, and that son manipulates her into leaving all her property solely to him. •Fraud- That the executant had been defrauded into executing the deed by: •Being led to believe as true, something which the person deceiving knows is false. •Actively concealing a material fact •Making a promise without intention to perform •Any other deception or any act statutorily declared as fraudulent.[6] •Misrepresentation- That the executant had given his consent on the basis of an innocent misrepresentation (without intent to deceive) of material facts by another party to the deed.[7] For example, B emphasizes his apartment’s proximity to an upcoming metro railway project while selling it to A. Later if the metro project does not get sanctioned, it wouldn’t amount to fraud because B honestly believed that the metro would be built shortly, but it would amount to misrepresentation. The above grounds are available only to that party to the deed whose consent was obtained by coercion, undue influence, fraud or misrepresentation, i.e., whose consent was not free.[8] No third party can challenge a registered deed on these grounds during the lifetime of such party.[9] In the executant’s absence, like in case of wills, any individual who stands to benefit from setting aside the deed (beneficiary) may challenge it in Court, on grounds of: •Lack of good title- That the transferor of the property was not the owner of it and had no right as such to transfer it. Property can be disposed of only by its actual owner.[10] Where A, a tenant, sells the tenanted premises to B, the sale is void for lack of a good title. •Lack of Contractual Capacity- That the deed had been executed by a person incompetent to contract, such as being a minor, or of unsound mind.[11] However in Murlidas vs. Haridas[12], registration was held to be conclusive evidence of the fact that the executant (testator, in case of will) was sane at the time of execution of the deed and had fully intended such deed to be considered his last will and testament. As is evident from the usual trend of judgments, Indian Courts hold registration in high esteem because of the inherent solemnity of the act, that is to say, registering a deed confers a certain degree of dignity to the transaction.[13]The burden of proof lies on the person challenging the registered deed. It is important to note that it is very difficult to establish the grounds of rejection of a registered deed. [1] Section 32, Indian Registration Act 1908 [2] Section 14, Indian Contract Act 1872 [3] Section 34, Indian Registration Act 1908 [4] Section 15, Indian Contract Act 1872 [5] Section 16(1), Indian Contract Act 1872 [6] Section 17, Indian Contract Act 1872 [7] Section 18, ICA 1872 [8] Section 14, Indian Contract Act 1872 [9] Savitri v. Kuradia , RSA-3497-1987 [2006] 6852 (8 September 2006) [10] Section 7, Transfer of Property Act 1882 [11] Section 11, Indian Contract Act 1872 [12] AIR 1921 Nagpur 34 [13] Savitri v. Kuradia, RSA-3497-1987 [2006] 6852
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Who can challenge a registered document, like a will? In India, a registered document (including a will) can be challenged by any person whose rights, title or interest in the subject matter of the document is affected by the document which is under challenge. For example, a son who is not mentioned in his father’s will, can still contest the will (Reason being: the interest of the son over his father’s property is affected by the will). It is governed by the principles of the Code of Civil Procedure, 1908 (CPC). As per the CPC, the impugned document is generally challenged by institution of a suit in the civil court of appropriate jurisdiction by presentation of a plaint. Suit contesting wills are commonly referred to as testamentary suit. Registration of the document does not affect the issue regarding who can challenge the document. Additionally in case of a will, as per Section 18 of the Registration Act, 1908 it is not even mandatory to register the same. Therefore the general rule on who can challenge a document is that, those persons whose rights, title or interest are directly affected by the document can challenge the document. However the CPC provides an exceptions where even though a person is not directly affected, he can challenge the suit. As per Section 91 of the CPC, in cases where the impugned document would result in public nuisance or other wrongful act which would affect the public, a suit for declaration and injunction or other relief can be instituted with the leave of the court by at least two or more person. In this case, it is not required that these two or more persons have themselves suffered any special damage as a consequence of the document.
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