«Dissertation Zur Erlangung des akademischen Grades Doctor rerum agriculturarum (Dr. rer. agr) eingereicht an der Landwirtschaftlich-Gärtnerischen ...»
When ever anyone who is the owner of the immovable property wants to transfer such property to some other body through a gift or sale, this must be undertaken legally, when it would be registered before a sub-registrar in the same district or tehsil where such property is situated. This oral transfer of property sometimes makes problems in the process of transferring land to the next generation, if the share is not specified for the shareholders in the Sub-registrar is the governmental person authorized for the confirmation of transfer at district or tehsil level.
Administrative structure and the various official posts will be explained in the next section.
inheritance. In addition, there is also a rule of benami, through which a person can transfer his property to any unknown person or more than one person. If legally two or more persons have the right to transfer immovable property, it is not allowed for one person to transfer that property without asking for consent from the others. The other owners can challenge such sale, but according to Section 53 of this act, sometimes a person fraudulently represents his authorization to transfer certain immovable property. Similarly, in the case of common property, problems sometimes occur when only one co-owner sells or transfers his share.
According to law, any person who is authorized to hold his share and is competent to contract or sell his/her own immovable property can transfer his/her property in exchange for money or a parallel land. In the case of common property, one co-owner cannot sell any part of it without the consent of the other partners, but if the land has been transferred legally, then the owner is free with regard to all his actions and rights.
Sale is a transfer of ownership from the owner to the purchaser and must be legalized through a registered sale deal before the sub-registrar. Any immovable property, whose value is more than Rs.100, must be transferred through a registered sale deal.
Sale of a property will be completed by:
1. Statement before the registrar
2. Delivery of possession to the buyer
5.2.1 Rights of Landowners
A landowner has the following rights:
1. To keep the land by himself throughout his life.
2. To sell the land to another one, but for this, he has to reveal all the characteristics of the land and all other necessary details to the buyer. If the property is held by more than one person, then it is necessary for every person to agree to the sale, otherwise the seller can sell only his part. However, if the property is in the form of the shared house and is not divided, then the seller can still sell, but in this case, the buyer cannot claim his share if he is not the part of this family. If there is any issue in court related to the property, that property can be sold, but the buyer cannot use it without the final decision of court. In addition, he is also bound to answer all the questions of the buyer and hand over the complete documents to the buyer.
3. To transfer and to distribute the land and even to gift his land according to Islamic rules and regulations at his will.
5.2.2 Process for Land Purchaser
The land purchaser has also some rights:
1. He has all those rights as the landowner after payment for land to the seller, but first he has to perform his duties to check all the documents thoroughly.
2. It is the responsibility of the purchaser to make sure that the person who is selling the land is authorized to do thist or not, and for this purpose, the only authority is the patwari who holds all the records of the land.
3. Similarly, for the transfer of land, both the land holder and land purchaser must go to the patwari for documentation. The patwari gives the record of land to any owner of land situated in his halqa/ jurisdiction and also enters any "mutation" of agricultural land. Through this mutation, the buyer becomes the owner of the agricultural land, and old owner transfer the property to the new owner.
5.3 The Registration of Property Act, 1908
As explained in the previous section, for the sale and purchase of property, it is necessary to register the documents; this act deals with this process of the registration of property, whether moveable or immovable. The act was brought into force on the first day of January 1909 and was amended six times, four times before partition during the era of British India and twice after the independence of Pakistan. The amendments during the time of the combined subcontinent were mainly for the structure of the registration department, and after independence, these amendments redefined documentation relating to priority and compulsory registration.
The first time that these terms of priority and compulsory registration was used in British India was in 1864, when the first complete enactment as to the registration of documents was passed, and all previously applied systems of unregistered documentation were abolished.
Under this new system, a clear definition of the optionally registered documents was available, which were not compulsory to register. The same definition is applied in this act in Section 18. According to Section 17 of this act, documents for which the registration is compulsory are: property whether moveable or immovable, immovable property given as a gift27 to someone, immovable property of the value of one hundred rupees and upwards, which can create or assign any right, title or interest, presently or in the future.
Non-testamentary instruments involve the transferring or assigning any decree or order of a Court or any award when such a decree or order or award purports or operates to create, declare, assign, limit, or extinguish, whether in the present or in the future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. Any joint instrument share, notwithstanding that the assets consist in whole or in part of immovable property, also has to be registered, for example, tube wells. In the case of the transfer of property to an adopted son, the authority, executed after the first day of January, 1872, and not conferred by a will, shall also be registered. Similarly, in the case of the authorization of any attorney to sell any immovable property, the power of attorney has to be registered.
According to Section 18 of this act, some documents are optionally registerable; these are mainly parts of particular transactions, e.g., family arrangements and compromises, and sales agreements. Although sale agreements are a recital of part of purchase money to the purposed vendee, they do not need to be registered according to the Section 18 of the Registration Act,
1908. This is known as irregular sales or defective sales, and because of these sales, unauthorized persons can sell the land of others. Generally, these cases can be observed in the case of attorneys, where the actual owner of land is not interested in selling, but the attorney sells the land by using his power, which is executed to him under stamp act Section 2 and Subsection 21.
Similarly, in the case of family arrangement and compromises, if there are some agreements, then there is no need to register those writings; for example, if the joint family wants to separate their land, then partition is made, but this partition is not necessary to be registered according to Section 18 (2) clause ‘v’. The will of a deceased person is another document that is optionally registerable during the life the testator,28 but after his death, any person claiming to be an executor may present it to the registrar or sub-registrar office according to Section 32.
Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.
Testator is a person who makes or leaves a will.
Similarly, Section 50 of this act explains that certain registered documents relating to land take priority over unregistered documents. A person possessing a property under unregistered documents would be entitled to the rights under Section 53A of the transfer of the property act, 1882, if all the conditions of that section are fulfilled. According to Section 17 Subsection 2, any registered document, which does not have priority under this law, cannot be executed against an unregistered preferable document.
The administration structure under this act follows a specific hierarchy. The highest rank is inspector general of registration, who is appointed by the provincial government for the territory of such government. The inspector general may hold another office under the same government. From an administrative point of view, the provincial government can divide the province into divisions, districts, and sub-districts. This administrative structure is explained in Figure 1, where the "highest" part is the province and "lowest" part is the village. The long chain hierarchy within this administration is complex, so that in the case of intergenerational transfer of property, most landowners do not register their property and believe only in oral transfer as per Section 9 of the Transfer of Property Act, 1882.
The provincial government appoints registrars and sub-registrars at the level of the district and sub-district (tehsils). In the absence of the registrar from his duty, the inspector general of registration may appoint some other person in his place. A judge of the district court in his jurisdiction may perform the duty of the registrar at the local level in the temporary absence of the registrar or until a new appointment. Similarly, in the case of the absence of the subregistrar, a person who is appointed by the registrar can act as the present incubant, until the vacancy is filled. Some inspectors of registration are also appointed by the provincial government as the subordinators of the inspector general of registration at the district level.
These registrars and sub-registrars are responsible to register the properties situated in their jurisdiction. According to Section 72 and 73 of this act, the Registrar is also responsible for hearing appeals and applications preferred to him, against the refusal to register documents by the sub-registrars under him.
For the registration of an immoveable property, a landowner needs legal documentation known as a cadastral, prepared by the patwari according to the value of the land on the legal paper known as the stamp paper, which has the value of two percent of the total land value.
After the preparation of this stamp paper, the land owner takes this paper to the sub-registrar or registrar and pays him one percent of the land value, which the registration fee or charges.
The registrar checks all the documents and records and then finalizes the registration of the property. This not only is a long process, but also involves heavy costs, and because of this, most people avoid registering inherits property.
5.4 The Punjab Land Revenue Act, 1887 This act, which came into force in January 1889, is related to land revenue in the province of Punjab and extends to the whole of the province. According to this law, the agriculture year for the collection of revenue starts from first day of July, and the Board of Revenue is responsible for this activity. The administrative setup of Board of revenue is also grouped into divisions and districts as shown in Figure 5.1. The job descriptions of the various revenue officials according to this act are given in this Table 5.1, but this applied before 2001. In this new century, the power of the board of revenue is supported by local governance. This new hierarchy is shown in Figure 5.6.