notice of a notification
Baskaran Kanakasabai
(Querist) 03 June 2010
This query is : Open
According to Transfer of Properties Act,1882:
"a person is said to have notice" of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I: Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:
PROVIDED that-
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder,
(2) the instrument of memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and
(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Does it mean that the buyer of a land shall be said to have notice of any instrument (pertaining to any transaction relating to immovable property) provided it is registered duly in the registers of the ROD?
If that is so, notification under 4(1) is never registered in India, then how the buyer of a notified land shall be said to have notice of such notification?
Therefore will it be reasonable to conclude that a buyer of a notified land can be said to have had notice of a notification under 4(1) only if such notification is registered before he buys it.
A very meaningful logical extension of what is said in our Transfer of Properties Act,1882 is laid down in the definition provided in sec 16. of the Hong Kong Land Title Ordinance which is as follows :
"Sec.16
Entry in Title register constitutes notice to all persons.
All persons are deemed to have notice of every entry in the Title Register."
If the logic applies to Hong Kong which has an area of over 1000 sq.km., and a population of over 70 lakhs, will it not apply (more so) for India which is 3000 times larger than Hong Kong in area and 150 times larger in terms of population.
