What the law says
The Indian Contract Act, 1872 governs agreements generally. Section 10 sets out what makes an agreement a contract, namely free consent of parties competent to contract, for a lawful consideration and a lawful object. Section 25 provides that an agreement without consideration is void, subject to the exceptions the section itself sets out, one of which is a written and registered promise made out of natural love and affection.
The Registration Act, 1908 decides what must be registered. Section 17 makes registration compulsory for instruments creating, declaring, assigning, limiting or extinguishing a right in immovable property of the value of one hundred rupees and upwards, and for gifts of immovable property. Section 49 provides that a document required to be registered but not registered cannot affect the property or be received as evidence of the transaction. Section 23 requires presentation within four months of execution, with a limited power to admit a document later on payment of a fine.
Stamp duty is a separate question from registration, and the two are often confused. In this State the Kerala Stamp Act, 1959 fixes the duty by the nature of the instrument. An instrument that is not sufficiently stamped is not admissible in evidence until the duty and the penalty are paid, which is a problem that surfaces at the worst possible moment, in the middle of a trial.
A will is governed by the Indian Succession Act, 1925. Section 63 requires it to be signed by the testator and attested by two or more witnesses, each of whom has seen the testator sign. Registration of a will is optional, not compulsory. Powers of attorney are governed by the Powers of Attorney Act, 1882, and a power authorising the sale of immovable property is ordinarily required to be registered.
What drafting actually involves
The work is mostly in settling what the parties have agreed before any language is chosen: who the parties are, what exactly is being transferred or promised, what is paid and when, what happens if a party does not perform, and how a dispute will be resolved. Ambiguity in any of these is what a later dispute is built on.
For a transaction in immovable property this also means checking the chain of title and the encumbrance certificate before the deed is drawn, confirming the schedule of property against the survey record, and identifying anyone whose consent is required but who is not a party to the document.
Once the instrument is settled, the duty is computed, the document is engrossed and executed, and it is presented for registration within the period the statute allows. Affidavits follow a different form and are sworn before an authority competent to administer an oath, and they are used in support of applications rather than to record a transaction.
What to bring to the first meeting
Tick these off as you gather them. The list stays ticked on this device, and the page prints cleanly if you would rather carry it on paper.
Where these matters are heard
Instruments affecting immovable property are presented for registration before the Sub Registrar within whose jurisdiction the property is situated. Wills may be registered but need not be. Where a document has been wrongly refused registration, the Registration Act, 1908 provides an appeal to the Registrar.
VERIFY WITH ADVOCATE — the Sub Registrar Offices covering Vanchiyoor and the surrounding villages, and the current stamp duty and registration fee rates for the common instruments.
Common questions
Does an agreement to sell have to be registered?+
An agreement to sell does not by itself create an interest in the property, so it does not fall within the compulsory registration requirement in Section 17 of the Registration Act, 1908 in the way a conveyance does. It is still ordinarily registered in practice, because an unregistered agreement limits what can later be done with it, and because Section 49 restricts the use of an unregistered document in evidence.
Is a will valid if it is not registered?+
Yes. Registration of a will is optional. What the Indian Succession Act, 1925 requires is the form in Section 63, that is signature by the testator and attestation by two or more witnesses who have seen the testator sign. Registration can make proof easier later, but its absence does not invalidate a will that satisfies Section 63.
The document was not stamped properly. Can it be fixed?+
Usually yes, by paying the deficit duty together with the penalty the Kerala Stamp Act, 1959 provides, after which the instrument becomes admissible. The difficulty is that the defect ordinarily comes to light when the document is tendered in evidence, at which point the payment has to be made before the case can proceed on it.
Can one document cover a whole family arrangement?+
A family arrangement can be recorded in a single instrument, and courts have long treated bona fide family settlements favourably because they avoid litigation. Whether it needs to be registered depends on what the document actually does. If it records rights that already existed it may not require registration, but if it creates or extinguishes rights in immovable property, Section 17 applies.