Today, I will discuss the laws relating to registration in Bangladesh. For clarification, I will not cover birth, death, marriage, divorce or voter registration. Rather I will deal with mainly document registration. Before going into the details, here is the basics-
Principal laws for registration in Bangladesh are-
Other laws relevant to registration are-
- Transfer of Property Act 1882;
- Stamp Act 1899;
- State Acquisition and Tenancy Act, 1950;
- Power of Attorney Act 2012; and
- Power of Attorney Rules 2015.
It is not possible to cover the laws relating to registration in details in one post. So, I will discuss the basic idea, supported by relevant section and rules.
I must highlight the fact that the practices of the Sub Registry Office might be different from the law. Here I will only discuss legal aspects of registration, not practical aspects.
In this post “the Act” will refer to the Registration Act 1908 and “the Rules” will refer to Registration Rules 2014.
What documents must be registered?
Section 17 and 17A of the Act provide a list of documents which must be registered (mostly).
Section 17 of the Act:
17. Documents of which registration is compulsory
17. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, this Act came or comes into force, namely:-
(a) instruments of gift of immoveable property;
(aa) declaration of heba under the Muslim Personal Law (Shariat)
(aaa) declaration of gift under the Hindu, Christian and Buddhist Personal Law;
(b) other non-testamentary instruments 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, to or in immoveable property;
Explanation − In the case of an assignment of a mortgage the consideration for the deed of assignment shall be deemed to be the value for registration.
(c) Non-testamentary instruments (other than the acknowledgement of a receipt or payment made in respect of any transaction to which an instrument registered under clause (b) relates) which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and instrument of mortgage referred to in section 59 of the Transfer of Property Act, 1882;
(d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary 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, to or in immoveable property;
(f) instrument of partition of immovable property effected by persons upon inheritance according to their respective personal laws;
(g) instrument of sale in pursuance of an order of the Court under section 96 of the State Acquisition and Tenancy Act, 1950]:
Provided that the Government may, by order published in the official Gazette, exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty taka.
(2) Nothing in clauses (b) and (c) of sub-section (1) applies to-
(i) any composition deed; or
(ii) any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consist in whole or in part of immoveable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immoveable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immoveable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest to or in immoveable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or
(vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immoveable property other than that which is the subject-matter of the suit or proceeding; or
(vii) any grant of immoveable property by the Government; or
(viii) any instrument of partition made by a Revenue-officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists’ Loans Act, 1884, the Bangladesh Krishi Bank Order, 1973 or under any other law for the time being in force relating to the advancement of loans for agricultural purposes, or any instrument under which a loan is granted by a co-operative society for any such purpose, or any instrument made for securing the repayment of a loan so granted; or
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-officer; or
(xiii) any counter-part of a lease, where the lease corresponding thereto has itself been registered.
(3) Authorities to adopt a son, executed after the first day of January 1872, and not conferred by a will, shall also be registered.
17A. Registration of contract for sale, etc.
(1) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, a contract for sale of any immovable
property shall be in writing, executed by the parties thereto and registered.
(2) A contract for sale referred to in sub-section (1) shall be presented for registration within thirty days from the date of execution of the contract and the provisions regarding registration of instruments shall apply.
As you can see, Section 17 (1), 17 (3) and 17A of the Act provide the list of documents which must be registered. Section 17(2) provide the list of the documents, registration of which is optional.
Can I registered any other documents which is not mentioned in clause 17?
Yes, Section 18 of the Act allows registration of any documents. It states any document not required to be registered under section 17 may also be registered under the Act.
Legal effect of non-registration
Document, registration of which is mandatory, if not registered, does not have any effect. An unregistered deed will not pass any title [Pabitra Ranjan Roy vs Proshanta Talukdar and other 14 MLR (2009) 69]. Section 49 of the Act deals with the effect of non-registration.
49. No document required to be registered under this Act or under any earlier law providing for or relating to registration of documents shall-
(a) operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immoveable property, or
(b) confer any power to adopt,
unless it has been registered.
Time of registration
Part IV (Section 23-27) of the Act deals with time for presenting the documents for registration. A documents should be submitted with the Registrar within three months from the date of its execution. However, in certain circumstances, Registrar may pardon any delay.
23. Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within three months from the date of its execution:
Provided that a copy of a decree or order may be presented within three months from the day on which the decree or order was made, or, where it is appealable, within three months from the day on which it becomes final.
24. Where there are several persons executing a document at different times, such document may be presented for registration and re-registration within four months from the date of each execution.
25. (1) If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in Bangladesh is not presented for registration till after the expiration of the time hereinbefore prescribed in that behalf, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration-fee, such document shall be accepted for registration.
(2) Any application for such direction may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.
It should be noted here that Registrar’s decision to extend time cannot be challenged in court. [Nabadwip Chandra Karmakar vs Madhu Sudan, 7 DLR (1955), 235]
If a document is executed by any party outside Bangladesh, the Registrar may accept the document for registration if the documents is presented for registration within four months of after its arrival in Bangladesh. Here relevant section is Section 26.
26. When a document purporting to have been executed by all or any of the parties out of Bangladesh is not presented for registration will after the expiration of the time hereinbefore prescribed in that behalf, the registering officer, if satisfied-
(a) that the instrument was so executed, and
(b) that it has been presented for registration within four months after its arrival in Bangladesh,
may, on payment of the proper registration fee, accept such document for registration.
The only exception to the above rules is will. According to Section 27 of the Act, a will may at any time be presented for registration or deposited in manner hereinafter provided. Please see Section 40, 41, 42 for more.
Place of registration
Government has established Sub Registry Office in various parts of the country. These Sub Registry Office have specific local jurisdiction set by the government. A document should be presented for registration in the Sub Registry Office within which jurisdiction the whole or major portion of the property to which such document relates is situated. Document void when no portion of property transferred situates within jurisdiction of Sub Registrar. [Shefali Rani and others vs Makhan Chandra Das and others, 50 DLR (1998) 349].
If the major portion of such property is not situated within the jurisdiction of one Sub Registry Office, the document maybe presented for registration in any Sub Registry Office within which jurisdiction part of the property is situated.
28. (1) Save as in this Part otherwise provided, every document mentioned in section 17, sub-section (1), clause (a), (b), (c), (d) and (e), section 17, sub-section (2), and section 18, in so far as such documents affects immoveable property shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or major portion of the property to which such document relates is situate.
Provided that where the major portion of such property is not situate within one sub-district the document shall be presented for registration in the office of the Sub-Registrar within whose sub-district any portion of such property is situate.
(2) Notwithstanding anything contained in sub-section (1),-
(a) after a document is registered, no party thereto shall be entitled to question the validity of its registration on the ground that the property which purported to give jurisdiction to the Sub-Registrar to register it either did not exist or was fictitious or insignificant or was not intended to be conveyed; and
(b) a document the registration of which is secured by the inclusion of a non-existent, fictitious or insignificant portion or item shall not in any manner affect the rights of a person who was not a party thereto and acquired rights in the property without notice of the transaction to which such document relates.
Whom can present a document for registration?
A document can be presented for registration by
- the executant or the receiver of a document; or
- the representative or assignee of the above stated person; or
- the agent of such person, representative or assign, duly authorized by power-of-attorney.
Section 32 is the relevant section.
32. Except in the cases mentioned in section 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented,-
(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 person, or
(c) by the agent of such person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.
33. (1) For the purposes of section 32, the following powers-of-attorney shall alone be recognized, namely:-
(a) if the principal at the time of executing the power-of-attorney resides in any part of Bangladesh in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;
(b) if the principal at the time aforesaid resides in any other part of Bangladesh, a power-of-attorney executed before and authenticated by any Magistrate;
(c) if the principal at the time aforesaid does not reside in Bangladesh a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Bangladesh Consul or Vice-Consul or representative of the Government:
Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely:-
(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;
(ii) persons who are in jail under civil or criminal process; and
(iii) persons exempt by law from personal appearance in Court.
(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.
(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf.
It should be noted here that the power of attorney must be prepared in the prescribed form as mentioned in Rule 6 and 7 of the Power of Attorney Rules 2015.
Precondition of registration
There are some preconditions for registration of document. Before registering any documents, the Sub Registrar will make sure that the document fulfill those precondition.
These Preconditions are mentioned in Rule 20 and 21 of the Rules.
20. On the presentation of a document for registration the registering officer shall satisfy himself –
(a) that it has been presented at the proper office (sections 28 and 29);
(b) that it is duly stamped or is exempt from, or does not require stamp duty;
(c) that if it is written in a language which he does not understand and which in not commonly used in the district as prescribed in rule18, it is accompanied by a translation into a language commonly used in the district and also by a true copy (section 19);
(d) that it contains no unattested interlineation, blank, erasure or alteration which in his opinion requires to be attested or to be entered in a duly attested note or “Kaifiyat” at the end of the document (section 20);
(e) that if the document is non-testamentary and relates to immovable property it contains a description of such property sufficient to identify the same as laid down in section 21 or in the rule made under section 22;
(f) that if the document is non-testamentary and contains a map or plan, it is accompanied by as many true copies of the map or plan as are equal to the number of copies of the document required to be forwarded under sections 65 [section 21(4)];
(g) that if the document is one other than a will it has been presented within the time prescribed by sections 17A and section 23 to 26;
(h) that the document has been presented by some person entitled to present it (section 32 or section 40);
(i) that the instrument of any transfer contains the particulars necessary to convey the intention of the parties, complete description of the properties to be transferred and nature of transaction [section 22A(1)];
(j) that the recent passport size photographs of both the parties have been pasted on the instrument and the parties have put their signatures and left thumb impressions across their photographs in the instruments. [section 52A (2)];
(k) that in the case where the instrument is executed by the constituent attorney on behalf of the parties, the attorney has put his signature and left thumb impression across his photograph in the instrument;
(l) that the instrument has been presented in the format prescribed by under sub-section (3) of section 22A (Form No. 40 in Appendix I);
(m) that the seller has submitted the latest khatian of the property prepared under the State Acquisition and Tenancy Act, 1950, in the name of the seller, if he is owner of the property otherwise than by inheritance [section 52A(a)];
(n) that the seller has submitted the latest khatian of the property prepared under the State Acquisition and Tenancy Act, 1950, in the name of the seller or his predecessor, if he is owner of the property by inheritance [section 52A(b)];
(o) that the seller has submitted an affidavit affirming that he has lawful title to and possession in the property and the property has not been transferred earlier in any manner and not vested to the Government [section 52A(g)]; and
(p) that in the case of a sale deed the following particulars have been included in and attached with, as the case may be –
(i) nature of the property,
(ii) price of the property,
(iii) map of the property together with the axes and boundaries, and
(iv) description of the ownership of the property for last 25(twenty five) years. [section 52A(c), section 52A(d), section 52A(e) and section 52A(f)].
The Registrar may also refuse to register a document, if proper registration fee, duty and tax is not paid. (Rule 21).
Refusal to register a document
Registration of a document may be refused if the above mentioned preconditions are not fulfilled. According to Section 71 of the Act, a Sub Registrar refusing to register a document will make an order of refusal and record his reasons for such order and endorse the words “registration refused” on the document. On application made by the person executing or claiming under the document, the Sub Registrar will give him/her a copy of the reasons so recorded.
Remedies for refusal
The refusal with grounds to registration have some remedies. Sections 72-77 of the Act deal with such remedy.
An appeal will be allowed against the refusal of the Sub Registrar to the Registrar within 30 days of such refusal. The Registrar may reverse or alter such order. If the Registrar directs the documents to be registered, the Sub Registrar, within thirty days after such direction, will register the documents in accordance with Sections 58, 59 and 60.
If the document is refused on the ground of denial of execution, an appeal shall lie to the Registrar within 30 days of the refusal. The Registrar shall, as soon as conveniently may be, enquire-
- whether the document has been executed;
- whether the requirements of the law for the time being in force have been complied with.
If answers of the both questions are yes, the Registrar will order the document to be registered.
If the Registrar refuses to allow the registration, an appeal lies to the civil court against the refusal.
Registration by commission
If a person intending to register a document is unable to appear before the Sub Registrar at the Registry Office, s/he may apply to the Sub Registrar’s office for commission. On such application, the Sub Register or his/her representative will visit the applicant’s desirous place and register the document.
Certain fees will be applicable for such commission.
Value of property
The value of the property mentioned in the document intending to be registered must be determined before registration. It is a very common practice to show a lower price for property to avoid stamp duty, tax and fees while registering a document.
Government has set out a rules for fixation of the lowest market price of property. At present the applicable rules is the Fixation of Lowest Market Price of Property Rules, 2010. Before applying for registration of any documents related to property, please enquire with the local Sub Registry Office for a list of the lowest market price of property.
Applicable stamp duty, tax and fees
While registering a document, applicable duty, fees and tax must be paid. If applicable duty, fees and tax must be paid, the registration will be refused by the Sub Registrar.
Some of the applicable duty, tax and fees are:
- Stamp duty (see Stamp Act, 1899);
- Registration fees (Section 78 of the Registration Act 78);
- Local government tax (Section 53 of Zela Porishod Act 2000, Section 100 of Local Government (Pourosova) Act 2009, Section 84 of the Local Government (City Corporation) Act 2009, Section 66 of the Local Government (Union Parishad) Act 2009);
- Cantonment board tax;
- Upzella immovable property transfer tax (Section 44 of the Upzella Parishod Act 1998);
- Income tax (Section 53H, 53HH, 53FF of the Income Tax Ordinance 1984);
- VAT; and
- Court fees.
Registration in the Chittagong Hill Tracks
The District of Khagrachari, Rangamati, and Bandarban have different rules for registration of deeds. The Registration Act 1908 and the Registration Rules 2014 are not applicable there. All kinds of registration of deeds in those area are regulated by the Chittagong Hill Tracts Regulation 1900. Rules no. 12-33 of the Regulation deal with registration of documents there.
Prescribe format for transfer deed and power of attorney
Form 40 of Appendix I of the Registration Rules 2014 contains a prescribed format of deed. If the format is not used for any transfer of property, the Sub Registrar may refuse to register the deed.
Power of Attorney Rules 2015 also contains some prescribed format for power of attorney.
Importance of latest khatian (Record of right) for land registration
Government amended the Registration Act 1908 and the Transfer of Property Act 1882 in 2004 with effect from July 1, 2005.
Pursuant to the amendment of the both Acts –
- Seller name must be included in the latest Khatian if s/he is the owner of the property by way of other than by inheritance; or
- the name of the seller or his/her predecessor must be included in the latest Khatian, if s/he is the owner of the property by inheritance.
Also the sale deed must include
- a brief description of the ownership of the property for last 25 (twenty-five) years
- nature of the property;
- price of the property;
- a map of the property together with the axes and boundaries;
Priority of documents
Section 48 of the Transfer of Property Act 1882 states that if a person creates rights by transfer at different times, the first ones should get priority. Transfer is this section means a complete transfer and does not include a mere transfer or an incomplete transfer by unregistered deed where registration is compulsory.
This section should be read with Section 48 of the Act.