Category: Public policy

I alluded to Gandhi’s comment re: price controls here. 

I’m publishing most of his 3 November 1947 speech.

==THE MATTER OF FOOD (PRICE) CONTROL==

[Due to inflation and shortages of food, farmers and traders had been hoarding food and prices had shot up. The Nehru government responded foolishly with price controls. Gandhi objected]

In view of the fact that Dr. Rajendra Prasad has called a meeting of the Premiers or their representatives and others to help and advise him in the matter of food control, I feel that I should devote this evening to that very important question. Nothing that I have heard during these days has moved me from the stand I have taken from the beginning that the control should be entirely removed at the earliest moment possible, certainly not later than six months hence. Not a day passes but letters and wires come to me, some from important persons, declaring emphatically that both the controls should be removed. I propose to omit the other, i. e., cloth control for the time being.

Control gives rise to fraud, suppression of truth, intensification of the black market and to artificial scarcity. Above all it unmans the people and deprives them of initiative, it undoes the teaching of self-help they have been learning for a generation. It makes them spoon-fed. This is a tragedy next only, if indeed not equal, to the fratricide on a vast scale and the insane exchange of population resulting in unnecessary deaths, starvation and want of proper residence and clothing the more poignant for the coming inclement weather. The second is certainly more spectacular. We dare not forget the first because it is not spectacular.

This food control is one of the vicious legacies of the last World War. Control then was probably inevitable because a very large quantity of cereals and other food-stuff were exported outside. This unnatural export was bound to create a man made scarcity and lead to rationing in spite of its many drawbacks. Now there need be no export which we can avoid if we wish to. We would help the starving parts of the world, if we do not expect outside help for India in the way of food. I have seen during my lifetime covering two generations several God sent famines, but have no recollection of an occasion when rationing was even thought of.

Today, thank God, the monsoons have not failed us. There is, therefore, no real scarcity of food. There are enough cereals, pulses and oil-seeds in the villages of India. The artificial control of prices, the growers do not, cannot, understand. They, therefore, refuse willingly to part with their stock at a price much lower than they command in the open market. This naked fact needs no demonstration. It does not require statistics or desk-work civilians buried in their red-tape files to produce elaborate reports and essays to prove that there is scarcity. It is to be hoped that no one will frighten us by trotting out before us the bogey of over-population.

Our ministers are of the people, from the people. Let them not arrogate to themselves greater knowledge than those experienced men who do not happen to occupy ministerial chairs—but who hold the view strongly that the sooner the control is removed the better. A physician writes to say that the food control has made it impossible for those who depend upon rationed food to procure eatable cereals and pulses and therefore, he says, the people needlessly suffer from ailments caused by rotten stuff.

In the place of controlled food, the Government can easily run the very stores for selling good grain which they will buy in the open market. [Sanjeev: this, of course, was a bad idea, but we can perhaps excuse Gandhi’s ignorance of economics] They will thus bring about automatic regulation of prices and set free the hoarded cereals, pulses and oil-seeds. Will they not trust the grain dealers and growers? Democracy will break under the strain of apron strings. It can exist only on trust. If the people die because they will not labour or because they will defraud one another, it will be a welcome deliverance. The rest will then learn not to repeat the sin of being lazy, idle or cruelly selfish.

https://www.jstor.org/stable/4395460

This is a crucial analysis of India’s land records system which argues that India should adopt the South Australian Torrens system of land records. It was published in EPW on 14 October 1989. I’ve OCRd and publishing here since this is such an important issue of public interest. [Word version]

==

The present records-of-rights in land in India are fiscal in nature. The person shown on the records as responsi­ble for paying land-revenue for a particular piece of land is presumed to be the proprietor of that land unless it is proved otherwise. Thus title to land is only incidental. This paper argues why it is necessary to change over to a system of registration of title to land and discusses, on the basis of a review of the arrangements prevailing in a number of other countries, how such a system can be introduced in India.

I

Introduction

The Scope

THIS study deals with the question whether guaranteeing of title to land should be in­troduced in India and if so, what should be the manner in which further proceedings in this regard should be undertaken. Reasons why such a study has become necessary will be explained at the appropriate place later. For the present, it will suffice to say that if such a system is introduced, it would not only help those who have to deal with land by way of purchase or sale or other modes of transfer, but also reduce a vast amount of work in the courts, facilitate management of records-of-rights in land and implemen­tation of land reforms, improve the work­ing of offices concerned in some form or the other with title to land and, in the end, ^–benefit private individuals as well as the administration.

Methodology

The present is a preliminary study, intend­ed to focus attention on the problem and to record the possible ways of exploring the solution. As the final study would take some time, it seems appropriate to present a study which will outline the problem and the pos­sible solutions, indicating also some of the important materials that should prove useful for a fuller study.

Facets of the Subject

When the study was initiated, a hazy idea had already been formed that, looking to the importance of the subject of title to land and keeping in view the legislative and other legal framework on the subject as well as scien­tific developments in the direction of modern methods of recording and retriev­ing data, there would be a number of facets to the subject. Further reflection and research have borne out this hypothesis. When one examines the question of title to land, one finds that a transaction concern­ing land has the following facets (besides many others, not material for the present purpose):

• The administrative one, for example, the preparation and maintenance of records-of-rights in land (particularly, records of agricultural lands).
• The legal aspects relevant to records-of-rights in land, connected with (a) above.

This primarily consists of laws made by the states.

(a) The scientific aspects, namely, how far one can make the maintenance of records-of-rights in land more systematic and comprehensive and, what is most important, of practical use to the citizens, by assuring title to land.

(b) The constitutional aspect.

(c) The connected legislative proposals.

II

The Problem

Importance of Records-of-Rights in Land

It is accepted on all hands that records-of-rights in land have an important part to play in the functioning of the economy. Land is not only the most important economic asset in an agricultural economy, it is an essential resource because without land there can be no state, no habitation and no ground-work for carrying on human ac­tivities. Land is a mother resource giving rise to various other things of economic value. Even in urban societies, it is regarded as the most valuable resource from the economic point of ^–view. This makes it obvious that rights to land should be recorded efficient­ly, should be capable of being transferred smoothly and should lend themselves to verification in a definitive manner.

Law of Evidence

Our law of evidence, particularly in sec­tions 32 and 35 of the Evidence Act, goes out of its way to attach special importance to the evidentiary value of public records under the Indian Evidence Act, 1872. It en­visages a special procedure for the inspec­tion of public documents and gives a special status to the right of inspection of public documents and of obtaining certified copies thereof. Underlying all these special provi­sions of the evidence law is the assumption that public registers and other documents would be accurate. This assumption has so many branches; the legal system assumes that public records are prepared carefully after a verification of the facts; that they are maintained accurately by reflecting changes, whenever those changes take place; and that, in general, they are faithful to the external world and to the transactions and events therein, which they seek to preserve for posterity. It is undeniable that these presumptions fall to the ground if the records are not properly revised from time to time. After all, a public record of a private transaction is the written reflection of something which took place between private parties. Juristic theory labels such private transactions as “acts in the law”, while it calls the public records themselves as “acts of the sovereign”. The two are inter-linked and should harmonise with each other. If that desideratum is not fulfilled, then the very justifiability of statutory provisions df the law of evidence concerning public records falls to the ground.

Domesday Book

In this contact, it will be of interest to refer to a historic event which took place in England in the’11th century. William the Conqueror, unquestionably one of the ablest monarchs ever to have ruled over the British Isles, commissioned the “Domesday” survey in 1085 which was completed 1086. This survey recorded the names of proprietors, the area and tenure of their lands, with the quantity of arable, meadow pasture and woodlands, the number of tenants and villeins of every holding of land throughout most of his kingdom with a meticulous precision.’ The fearful nickname of Domesday was a reference to the Last Judg­ment which the citizens of the 11th century England believed to be imminent, and against which no possible appeal lay. A contemporary official document gave this explanation: “For, as the sentence of that strict and terrible last account cannot be evaded . . . so, when a dispute arises in this realm concerning facts which are there writ­ten down and an appeal is made to the book itself, the evidence it gives cannot be set at naught!’

The essence of the matter described in the contemporary comment regarding the Domesday book, quoted above, is that when a dispute arises concerning written down facts and an appeal is made to the book itself, the evidence that the book gives can­not be stretched at naught.

III

The Indian Situation

The ideal situation, however, is unfor­tunately not true of the Indian law as to title to land, as also of the factual position con­cerning records-of-rights in land and their accuracy.

Legal Framework

As regards the Indian law as to title to land, the statute law of India as in force at present, broadly speaking, does not profess to provide for a state certification of title to land under the aegis of a public authority. No doubt, regarding agricultural land, the record-of-rights in land and similar documents, by virtue of provisions in the land-laws of various states, create a struc­ture, at least in theory, of permanent records of transactions concerning such land. But the entries in such records are not conclusive even though they may be relevant in a court of law, and may be given a presumptive status by land-laws. As late as August 1989, it was affirmed by the Supreme Court of India as follows: “It is firmly established that the revenue records are not documents of title…”.² Thus, whatever be the entry in the records-of-rights in land, it would be per­missible to challenge it in the appropriate court or tribunal. This position arises because property legislation and legislation relating to registration of documents were never framed in India with the objective of providing a state guarantee of title to land.

Transfer of Property Act

Documents concerning transfer of im­movable property by way of sale, lease, mort­gage or exchange are drafted in India against the background of Transfer of Property Act, 1882, or its principles. This Act, while pro­viding for the consequences and machinery of transfer, does not envisage that the docu­ment of title shall originate from a public authority. For example, if the transaction is one of sale of immovable property, section 55(1Xb) of the Act imposes an obligation on the seller to produce the documents of title for the inspection of the prospective pur­chaser. But these documents of title are not certified by the state; they are private documents constituting links in the chain of transactions that took place from time to time, prior to the transaction now propos­ed to be entered into.

Registration Act

The Indian Registration Act, 1908, pro­vides for the registration of documents but not for the registration of titles. Registration of documents in India is compulsory in some cases and voluntary in others. It is compulsory where some provision either in the Transfer of Property Act (for example, section 54 in the case of an outright sale of an immovable property) or some provision in the Registration Act (for example, section 17 dealing with various transactions concerning immovable property) provides for compulsory registration. In all other cases, unless provided by a Special law, registration of a document is optional, par­ticularly in the case of wills. The register­ing officer is not supposed to concern himself with the validity of the document.

Conveyancing in India

Partly because of the fact that there is no state guarantee of title to land and partly because of the fact that even such statutory provisions and general principles regarding the effect of a conveyance as are well established are not taken note of by the con­veyancer, conveyancing in India is not satisfactory. Of course, this study is not con­cerned with general improvement in con­veyancing. But the traditional system of con­veyancing and registration in India con­templates that each private person who wishes to undertake or enter into a transac­tion concerning immovable property must investigate the title in the property himself. He may investigate it to the best of his ability and yet some defect may remain. The reason is that while the successive links as investi­gated and as leading to the present transac­tion may have been satisfactorily investigated as they stand, it is possible that some of the intermediate documents might themselves be defective because of external factors (forgery, want of consent, incompetence by reason of age, etc) and other causes. Sometimes, there may be undiscovered wills. Apart from this, what is more important is that the source from which all the intermediate documents are derived may itself be weak. It is elemen­tary that no successive transaction can ride higher than the original and ultimate source.

Present Status of Records-of-Rights in Land

As regards the present status of records-of-rights in land, studies in all the states are going on to ascertain the same, and it will take some more time to prepare the detailed status reports. The preliminary investiga­tions, however, have revealed that in all parts of the country, records relating to land are in a very bad shape. Agricultural land in many areas is still recorded in the name of a person who died long ago and whose legal successors are now the owners but their names are not entered in the records. A similar highly unsatisfactory feature exists in respect of the situation of transfer of lands by act of parties. Land may go on being transferred, without quick consequen­tial mutations in the record, so that the record as it exists and continues to exist to­day hardly reflects the present day reality regarding ownership of the land. Millions of cases of mutation and measurement are pending in the country. Apart from this, there are many more other cases in which the government, the public bodies and the private persons in whose names the lands stand in the records-of-rights in land are not in possession of those lands. On the other hand, the names of the persons who possess those lands do not exist in the records-of-rights in land. Such disharmony between the record and the reality not only destroys the utility of the record—which thus becomes a negative defect—but also misleads any per‑ son who has to deal with the land. This is obviously unfortunate because of the impor­tance of land economically, socially and emotionally. No wonder, this unhappy situa­tion has led to incessant litigation and the clogging of the judicial machinery in the country.

IV

The Possible Remedies

The magnitude and complexity of this problem as it exists in India today was prevailing almost all over the world at one time or the other. A member of the Royal Commission, appointed in 1846 to suggest an effective system for the registration of deeds, etc, pointed out in his proposals sub­mitted to the commission that “the pur­chaser of a railway share finds the title to it already posted up to the day, and not left sixty years in arrear as the title to land is” (emphasis added). In many countries the position has been improved by a reform of the law of property. ‘No possible remedies have been thought of. The first is a change from a system of registration of deeds to a system of registration of title to land—commonly known as the Torrens system. This system regards registration of title to land under the authority of government as necessary whereby the official certificate of title will always show the state of the title to land and the person in whom the title is vested. The second is the practice of arrang­ing for the title insurance.

The Torrens System

The Torrens system, as stated above, is in­tended to secure, by an official determina­tion, registration of title to land. A pro­ceeding under such a system simplifies title and eliminates questions which no longer affect it. Stated in another way, the purpose of this system is “to secure by decree of court a title to land impregnable against attack, to make a permanent and complete record of the exact status of the title, with all liens, encumbrances and claims against it, and to protect the registered owner against all claims or demands not noted on the book for the registration of titles!”

Title Insurance

Title insurance as a private measure is, of course, a possible alternative. Such in­surance, which offers a guarantee for title, is normally issued by title companies which maintain elaborate records to keep current information on all the property under their surveyance. For such insurance, the premium is based on the expenses of maintaining the records. When the property is transferred again, a new policy must be issued and a new premium has to be paid. Briefly speaking, title insurance is a contract guaranteeing the purchaser of real estate against loss from un­discovered defects in the title to the proper­ty that has been purchased. Such loss may stem from (i) unmarketability of the property because of defect in the title or (ii) from costs incurred to cure defects of the title.⁵

It is to be remembered that real estate transactions are complex and technical. A small legal error may cause a defect in the title and impair its marketability. Some of the important circumstances giving rise to such a defect are forgeries, invalid or un‑discovered wills, defective probate pro­ceedings, and transfers of property by persons who would not have full legal capacity to contract.

A title insurance policy excludes any loss which stems from a defect recorded in the public records. It covers only losses from un­discovered defects. Moreover, it covers only losses caused by defects in the title that have already occurred, but are not known when the policy is issued.⁶

Present Remedies as between Buyer and Seller in India

In the absence of title insurance and the Torrens system, the defective title of a seller of land in India primarily gives rise to a civil remedy available as between the parties, but does not give any real satisfaction to the buyer. D F Mulla, in his commentary on the Transfer of Property Act (7th edition, 1985), states in brief, at page 309, the available remedies to the buyer in these terms:

Non-disclosure.—If before he has accepted the conveyance, the buyer discovers a material defect which has not been disclosed, he may claim damages or rescind the con­tract for misrepresentation. He may also resist a suit for specific performance. The duty of disclosure merges in the conveyance, but if the buyer has accepted the conveyance, he has a remedy in damages on the covenant for title, The fact that the buyer knew of the defect in the title of the seller prior to the purchase does not prevent him from suing for damages for breach of the covenant. Again, as non-disclosure of a material defect is a fraud, he may sue to set aside the sale and claim damages.

V

The Torrens System in Australia

Genesis of the Torrens System

The Torrens system originated in the state of South Australia and the person to whom the credit for this goes was Sir Robert Torrens. He was dissatisfied with the English system of lengthy conveyancing and investi­gation of land titles. The father of the Torrens system himself states that he had been painfully drawn to the grievous injury and injustice inflicted under the English Law of Real Property by the misery and ruin which fell upon a relation and dear friend who was drawn into the “Maelstroom of the Court of Chancery” and had “resolved some day to strike a blow at that iniquitous institution:’’

Connection with the Shipping Law

While serving in the customs, he had become familiar with the law of shipping and had conceived the idea that his purpose might be achieved by applying to land the principles which regulate the transfer of shipping. He worked out a scheme, based on the-English Merchant Shipping Act, for the registration of title to land as distin­guished from a registration of a mere deed.

First Torrens Legislation

On his appointment as Registrar-General of Deeds in 1853, he gained some insight into the details of conveyancing. In 1857, he was elected to the parliament of the colony of South Australia; and, in 1858, he introduced a private Bill on the subject of registration of title to land which was passed by a majority in spite of the opposition from the government. After his measure, namely, the Real Property Act, 1858, came into force on July 2, 1858, he abandoned his political career in South Australia and, as Registrar-General, devoted undivided attention to the practical details for the implementation of this Act which replaced the previous unwieldy system of conveyancing by a certificate guaranteed by the state and made the con­veyancing simple, quick and cheap.

Main Features of the Torrens System

The main features of the Torrens system are: (a) achievement of certainty of title to land; and (b) simplification of conveyancing relating to land. Certainty of title to land is achieved by certifying, or guaranteeing, by the state, the validity of title to land. Once the title to land of a person is registered by the state as above, the title of the registered proprietor is paramount, subject to certain specified exceptions. The purchaser of the land registered under the system need not go behind the certificate.

Basic Philosophy of the Torrens System

The basic philosophy of this system can be best understood, if one remembers that the traditional system of conveyancing and registration contemplates that each private person who wishes to undertake or enter into a transaction concerning the property must investigate the title to the property himself. The state does not come into the picture, ex­cept that it undertakes to register the tran­saction when recorded in writing. But, under the Torrens system, the state, in effect, guarantees title to land (with a few excep­tions). Without such certification of title to land, the potential buyer of property is pro­tected, only by a so-called ‘abstract’. The `abstract’ is really a legal history of the title to land. The attorney of the purchaser may examine an ‘abstract’ and give an opinion as to the validity of the title, but there is no guarantee that the attorney’s opinion is correct.

Fundamental Objective of the Torrens System

As stated earlier, the fundamental objec­tive of this system is to simplify the land-law and to provide for the certainty of title to land. The Preamble to the Real Property Act, 1858, passed by the South Australian legislature read as under:

Whereas the inhabitants of the province of South Australia are subjected to looses, heavy costs, and much perplexity by reason that the laws relating to the transfer and encumbrance of freehold and other interests in land are complex, cumbrous, and unsuited to the requirements of the said inhabitants, it is therefore expedient to amend the said laws.⁸

Torrens defined the objective of his pioneering South Australian Act to be the creation of ‘independent titles’ by cutting off “the necessity for retrospective investigation of title”.” As defined by the Judicial Com­mittee of the Privy Council, the objective of registration “is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author’s title, and to satisfy themselves of its validi­ty. That end is accomplished by providing that anyone who purchases, in bona fide and for value, from a registered proprietor, and enters his deed of transfer or mortgage on the register, shall thereby acquire’ an in­defeasible right, notwithstanding the infir­mity of his author’s title”.^1° The expla­natory leaflet published by the Her Majesty’s Land Registry says that registration of title to land “gives finality. It does away with the repeated, imperfect and costly examination of past title. It removes the possibility of bona fide mistakes as to the past title or the existing burdens affecting the land. It removes the ever-present possibility of fraud by duplication or suppression of deeds. It gives state-guaranteed safety and that positive security against adverse claims which the system of conveyancing by deeds can never giver ¹¹

Essential Working Features of the Torrens System

Taking the fundamental objective of the system as establishing a final and un­impeachable record-of-rights to all parcels of registered land and of all other valid in­terests therein, the essential working features of the system of registration of title to land may be thus enumerated:

• the unambiguous definition (a) of these parcels, which also form the units of the record, (b) of these rights and interests, and (c) of the persons (individual or cor­porate) entitled thereto;
• that title depends upon the act of registra­tion and not upon the documentary in­struments or judicial orders upon which it proceeds;
• that the working records are (a) kept up-to-date, (b) protectively duplicated and (c) regularly purged of obsolete matter;
• that control and preferably administration of both the land survey and the book­keeping operations are vested in organs of the central government of the country con­cerned, although its conduct in field and office should be territorially decentralised.¹²

Spread of the Torrens System in Australia

This system, first adopted in South Australia in 1858, spread to Queensland in 1861, New South Wales, Tasmania and Victoria in 1862 and Western Australia in 1874.¹³

Adoption of the Torrens System in New Zealand

In New Zealand, it became a part of the law in 1870 by the Land Transfer Act model­led on the Torrens system (replacing the Land Registry Act 1860 based on the Report of the English Royal Commission of 1857).’

Technological Reforms in Australia

Apart from adoption of the Torrens system, certain other reforms relevant to land have also been introduced or are under con­templation in certain states in Australia. For example, the New South Wales Land Titles Office, reputedly the largest centralised land registry in the world, leads the rest of Australia in the development of modern management methods and technical innova­tions in processing dealings with land and the storing and provision of land title infor­mation. This state is understood to be con­templating many other legislative and ad­ministrative reforms regarding conveyanc­ing. In particular, the total automation of the Torrens Register is being contemplated, which would mean that ultimately nearly 411 titles will be able to be remotely accessed by computer technology, though this is a long ­term aim. Facsimile transmission and automated land title system have already been introduced in New South Wales. Automated Land Title Systems

This system introduced computerisation of the Torrens Register of land titles in 1983. The advantages of this system are reported to include (i) immediate access to the Torrens Register through on-lines inquiry terminals;

• reduction of the time for registration of land dealings to a matter of days;
• immediate issue of certificates of title following registration of land sub-divisions;
• elimination of the out-of-file problem when documents are required for title sear­ches; and (v) concise printed title searches showing current title information which eliminate the need xo interpret or transcribe information from the register.

VI

Registration of Title to Land in England

After the introduction of the system of ^–registration of title to land in South Australia in 1858, it soon spread to other British posse-sions and to England itself.

The Beginning

In England, the system has been substan­tially brought into force in many areas, though according to some persons, the English system probably evolved from a parallel source, being based on a scheme recommended by a Royal Commission in 1857 as a result of which the Land Registry Act, 1862, was enacted as the first attempt to introduce registration of title to land as distinct from regittration of deeds. The registration of title to land was on a volun­tary basis and subject to conditions that (i) a’

marketable title should be shown; (ii) the boundaries of the land should be officially determined and defined as against adjoin­ing owners; and (iii) partial interests should be disclosed and registered. A later Royal Commission reported in 1870 that the insis­tence on the above conditions had resulted in “delay, expense and vexation far beyond what occurs in an ordinary sale” and recom­mended that the scheme proposed by the Royal Commission of 1857 should be adopted with judicial poweri” vested in the chief land registrar. The Land Transfer Act, 1875, continued the scheme on a voluntary basis but provided that only a good holding title was required for registration with an absolute title and possessory titles could also be registered.

The Maturity

The Land Transfer Act, 1897, introduced the principle of compulsory registration of title to land and provided for an insurance fund’^? out of which persons suffering loss by reason of a mistake in the register were to be indemnified. The law in England attained maturity in 1925 when the system of registration of title to land operating under various enactments was consolidated in the Land Registration Act, 1925, which is in force at present.

The Result

The result of this legislation, as regards registered land, is to produce on first registration a state-insured, but nevertheless private, record or entitlement to land, such record to be kept up-to-date in respect of subsequent transactions in accordance with the conveyancing procedures provided in the law.° The law confers, on registration, con­clusive title to land on the registered holder of land, subject to certain conditions as to rectification and correction.

Comparison with the Torrens System

Though it has been repeatedly said that “Torrens himself had pointed out that there was ‘a similarity amounting to identity’ between the South Australian and the English measure:’ ¹⁹ yet there are some dif­ferences between the English system and the Torrens system. Each has a common aim, but there are some advantages and dis­advantages inherent in each. The general points of comparison between the two systems may be briefly enumerated as under:²°

(i) In England, the system is applied sporadically. In countries adopting the Torrens system, it is operated unreservedly and whole-heartedly, so that familiarity with its practice is general.

(ii) Torrens titles are infinitely simpler than the English registered titles, though it is stated that the landowner is deprived of many powers of disposition.

(iii) English titles are freely rectifiable in cases of fraud, duress, adverse possession, illegality, mistake and so forth; but Torrens titles are so sacrosanct that even the highest courts have little jurisdiction over them.

(iv) The chief land registrar in England possesses wide judicial powers of a kind and extent undreamt of elsewhere, which he is not slow to use. It is not surprising therefore that fewer English cases come to the courts.

(v) In England, the system is operated as a system of insurance of title to land in a sense in which it is not operated elsewhere.

(vi) Torrens titles are often governed by land-laws substantially different from those relating to unregistered property, while in England the substantive law of real property is substantially similar in both registered and unregistered conveyancing.

VII

Land Title Registration in Canada

General Picture

The Canadian system of registration of title to land, or rather the Canadian systems (because there are more than one), can be said to offer good material for comparison. The following systems appear to be mainly prevalent in Canada:²’

(a) A ‘home-grown’ system, as in British Columbia;

(h) system derived from the Torrens source, though against the background of the English common law relating to land;

• system derived from the original English system, against the background of the English common law relating to land;
• system combining the Torrens system with computerisation, against the back­ground of the English common law relating to land; and
• system of cadastral survey in conjunc­tion with deed registration, against the substantive law based on the Napoleonic Code.

Torrens System in British Columbia

In 1870, the Land Registry Ordinance was enacted in British Columbia and it was based on the English Report of the Real Pro­perty Commissioners in 1857, incorporating in it all the then useful principles of the Torrens system and, in particular, the prin­ciple of indefeasibility of titles to land. The Ordinance provided for the issue of an `absolute’ certificate when the registrar was satisfied that a prima facie title had been established. In reality, however, this was a provisional certificate and it was only after the owner had been registered for seven years that he could obtain a certificate of in­defeasible title to land which was ‘conclusive’ evidence of ownership. In 1898, an assurance fund for indefeasible titles was set up. Today, the/bulk of certificates of title issued in British Columbia are indefeasible and any outstanding (absolute) certificate can be con­verted forthwith to an indefeasible certificate and, even if it is not so converted, becomes indefeasible automatically on the registra­tion of a transfer. Because of its initial peculiar features, it has been described as a ‘home-grown’ model.

Torrens System in the Majority of Canadian Provinces

In the provinces of Alberta, Manitoba, Saskatchewan, and the Northwest Terri­tories, the traditional Torrens system is in force, though in Manitoba it is enforced only partly. In all these areas, the system of registration of title to land was introduced in 1885 and at that time the bulk of the land was government land available for disposi­tion and so the circumstances were much more like those in Australia than those in England. Hence the Australian model was closely followed.

System in Ontario

The system in Ontario, though adopting the principle of registration of title to land (and therefore falling within the Torrens model), was derived from the English Land Transfer Act of 1875. The first law was the Ontario Land Titles Act, 1885. It has been applied to all lands granted in the north of Ontario since 1887. The deed system con­tinued to flourish in southern Ontario and as regards pre-1885 grants of lands in northern Ontario. In this sense, the titles register operates side by side with the deeds register in Ontario which provides a good opportunity for comparative study. The whole of Toronto city seems to be governed by the title registration system.

In 1971, the Ontario Law Reform Com­mission made a comparative study and reached the conclusion unequivocally that “a land titles system (i e, registration of title) is superior to a registry system (i e, registra­tion of deeds) in almost every material respect in which comparison can be made at present. A land titles system is also the system that can best be adapted to fit the needs of the future, particularly when seen as a major component of an integrated land information system, or when considered on the basis of potential compatibility with electronic data storage and retrieval technology!’ ²² The commission recom­mended that a land titles system, substan­tially improved by the specific recommen­dations made in the report, should be the sole system for land registration in Ontario, and that all the parcels in specified areas should be converted at the same time.²³ It was also recommended that a computer system should be used, and the report con­tains a comparative cost analysis prepared by a firm of specialists.

Conversion of Deed Registration into Title Registration in Conjunction with Computerisation in Maritime Provinces

In the three maritime provinces of eastern Canada, namely, New Brunswick, Nova Scotia and Prince Edward Island, the deed registration is being converted into title registration in conjunction with com­puterisation, although the background of the substantive law is the English common law. The operation of the system has been thus described: “The project was begun in Prince Edward Island, the smallest of the three provinces. With only 40,000 parcels,

the meticulously kept but very old-fashioned deeds register simply cries aloud for registra­tion of title, which unquestionably would be an immense boon to landowners. An ad­mirable scheme of conversion has been devised, whereby the land parcels have been systematically identified and mapped; the owners are then ascertained from the pro­perty assessment record kept by the ministry of finance, and are issued with a preliminary certificate of title (which in due course can become a guaranteed title):’²⁴

System in Quebec

In Quebec: the French system of registra­tion of deed is in vogue. In France, the registration of deeds was nationally in­troduced for the first time by the law of March 23, 1855 (replaced by the law of January 4, 1955 which has been amended subsequently). The law makes transactions in land registrable. Non-registration does not invalidate the transaction as between the par­ties (or even against most third parties except in the case of unsecured creditors in bankruptcy). It only results in a loss of priority. The grantee, who has had a registered deed in his favour, takes precedence over the grantee who has not, if both the grants are of the same interest. Thus an innocent purchaser who registered his deed will take precedence over an earlier unregistered conveyance in the absence of conspiracy between himself and the vendor to defraud the earlier transferee.²⁵

Basic Principles of French Land-Law

Since the system in Quebec is based on the substantive law of France, a brief analysis of that law also may be usefully given here. The transfer of interests in land in France is based on the two principles that, first, the sale “is accomplished between the parties… as soon as there is agreement as to the thing and the price”,²⁶ which means that no subsequent conveyance is required to transfer ownership; and, secondly, that title as regards third parties is governed by priority of registration. Registration does not, however, cure any defect in title, and theoretically even a prudent purchaser is sub­ject to considerable risk, however well the register of registration is maintained. In the main, the security of the purchaser of land, and of the lender on mortgage, rests on the probity, knowledge, and skill of the notaire.²⁷

A Peculiar German-French Model in Alsace-Lorraine

France has a region commonly known as Alsace-Lorraine which was German from 1871 until 1919, when it reverted to France. While it was under German rule, Germany, which developed the cadastral records of its constituent states into full registration of title in 1872,²² provided, in 1884, for the renewal of the Napoleonic carinstre²⁹ in this region also. In 1891, registration of title to land was introduced by a law under which all land in areas where the cadastre had been revised was placed on the register in this region. The benefits from the registration of

title to land were soon felt, especially its favourable influence on land credit.

In 1899, the Burgerliches Gesetzbuch (German Imperial Civil Code) provided that from January 1, 1900, entry in the appro­priate register will be the sole admissible evidence of title to land throughout Germany. As the first registrations in Alsace-Lorraine, made under the law of 1891, did not entirely conform with the requirements of the Civil Code, the entries made under the law of 1899 were given only provisional status in the relevant registers, from which titles to land could be transferred to the im­perial land register (Reichsgrundbuch) if the prescribed conditions were satisfied. Thus, there arose three registers collectively known as the livres de bienfonds and in 1922, three years after Alsace-Lorraine returned to France, the distribution of these registers was as follows: Reichsgrundbuch, 376 communes in which titles to land were absolute; Livres fowlers provisoires, 151 communes in which title to land was provisional; and Livres de propriete, 1,180 communes in which evidence of title to land was only prima facie. Owing to the turmoil of the first world war, the registers and plans had largely become ob­solete. In 1924 (by which time the territory had come back to France), the difference in the legal effect between the three books was ended while conserving the administrative and technical features introduced under the German rule, and the security conferred by the Reichsgrundbuch (Imperial Land Register) was suppressed. Nevertheless, though registration in Alsace-Lorraine in law raises only a presumption of the validity of the rights registered, “the register remains the unique instrument of publicity and its custo­dian does review the substantive validity of documents presented for registration. The result is clearly midway between the contem­porary German and French systems of registration!’^3°

VIII

Title Insurance in the USA

Torrens System in the USA

In the United States, Illinois was the first state to enact, in 1895, a title registration statute which was based on the Torrens legislation. In all, 19 states in the United States enacted Torrens statutes between 1895 and 1917 and five states have since repealed them.³¹ Thus, resort to this system in the United States is by law permissible in fourteen states only, according to the posi­tion up to 1976. These states are: Colorado, Georgia, Illinois, Massachusetts, Minnesota, Nebraska, New York, North Carolina, North. Dakota, Ohio, Oregon, South Dakota, Virginia and Washington.

Working of the Torrens System in the USA

It is not easy to identify with reasonable precision the number of states, in the United States, which at present follow the Torrens system. “Only in three states has there been any measure of success, and that only on a limited scale”.³² All the Torrens Acts in the United States provide for the judicial deter­mination of title to land before initial registration.” “Judicial determination, however, greatly increased the time and cost of first registration and in effect this require­ment dealt the Torrens system the mortal blow from which it has never been able to recover in the United States”³⁴ There is also a great deal of opposition to this system from the “vested-interest groups—notably title insurance companies, professional abstractors and some attorneys—who thrive on and would perpetuate the confusion which current recording systems create”.³⁵

Title Insurance Companies

Title to land in the United States has to be traced back to the original state grant or patent. A local firm could build up a valuable stock-in-trade of investigating titles. Hence, in many cities there grew up ‘abstract companies’, specialising in the searching of titles to land. These companies later pro­ceeded even to insure title to land, thus star­ting the title insurance business, which is a peculiar feature of the American conveyan­cing. There are approximately 160 title insurance corporations in the United States, the first having been established in 1870. Of these, about 125 are ‘local companies’ in the sense that they confine their title insurance to one state, and most of them maintain what they call ‘title plants’, which are simply registers of title to land operated by private enterprise. The remaining companies, which engage in multi-state business, do not invest in title plants except in the locality of their home office, but issue policies upon the basis of the opinions of approved attorneys.³⁶ The title plants are compiled and kept up-to-date by expert staff whom the companies employ to abstract each day the necessary details from the official records, thus enabl­ing the company to insure a title to land if their register indicates that it is sound. In effect, the title plant duplicates the public record (or what the public record could be, if it were organised as efficiently as the title plant), and yet a further copy of the records may be made when another company sets up in competition in the same area. Somebody must pay not merely for the of­ficial record (which alone makes private title plants possible), but also for each ad­ditional set of records, though one set, pro­perly organised, would be adequate. The somebody who pays is the prospective landowner.³⁷

Indictment of American Jurisprudence

There has been a lot of criticism, in the United States itself, of the system of title in­surance. A note in the Yale Law Journal says: “It is terrible indictment of our boasted jurisprudence if it is incapable of inventing or enduring any improvement on the system which has enabled title guaranty companies and abstract companies all over our land, and often several in the same city, to put by millions in surplus, after paying immense dividends, salaries and clerical expenses, all extorted as a tax on land titles and transfers, for what has been somewhat sarcastically put as insuring against everything but loss:’³⁸

Attempts at Standardisation of Conveyancing

In 1958, the Section of Real Property, Probate and Trust Law of the American Bar Association conducted a survey on con­veyancing problems which resulted in the preparation of a model law known as the Model Marketable Title Act.³⁹ This act has been adopted, with modifications, by thirteen states.” At the end of a very critical analysis of the Marketable Titles Act, Professor Barnett observed: “While keeping titles far more reliable, a Torrens system can eliminate the trementhius waste and ineffi­ciency of the recording acts. It is a baffling fact that the United States is rapidly becom­ing virtually the only country in the world whose land title system is not founded upon Torrens-type principles. The writer finds it incredible that a system which seems to work quite well almost everywhere else cannot be satisfactorily adapted to the United States. If all the brainpower expended by law pro­fessors and by the property-law sections of local, state, and national bar associations on marketable title acts were expended instead on devising a model Torrens act, surely a satisfactory adaptation could be found”.

IX

Some Afro-Asian Models

Worldwide Adoption of the Torrens System

According to the Encyclopaedia Britannica, more than 50 countries in the world have adopted the Torrens system.’ It is not as if the Torrens system of registration of title to land is in force only in the west or westernised countries. There has been con­siderable progress in the introduction of such system in many countries in Asia and Africa. Without meaning to be exhaustive, it may be mentioned that the following countries are understood to belong to the traditional Torrens group:⁴³ Fiji, Sarawak, Federation of Malaya, Brunei, Kenya, Uganda, Trinidad-Tobago, Jamaica, New Hebrides, British Honduras, Belgian Congo, Ivory Coast, French Guinea, Senegal, French Sudan, Morocco, Minis and Syria.

Recently, the system has been introduced in Singapore (Singapore Land Title Ordinance, 1956), Malaysia (Malaysia National Land Code, 1965) and Kenya (Kenya Registered Land Act, 1963).

Registration of Title to Land in Singapore

In Singapore, the change from registration of deeds to registration of title to land took place in 1956. The Singapore Land Titles Ordinance, 1956, was drafted by Baalman, a well known expert on the Torrens system.” Although the machinery provided in the Or­dinance for registration is believed not to be adequate, it may be useful to mention the main features of the Singapore scheme. It provides three ways for bringing titles to land into the register. Firstly, in accordance with the usual Torrens provisions, new state grants are automatically registered on their issue, though unlike Australia, the grant itself is not used as the register, but is replaced by a register of the same size and content and a duplicate is issued as a certificate of title to land. Secondly, there is provision for a voluntary application for the registration of title to land, though this is not much in use. Thirdly, the registrar can select and direct the bringing of land already granted, on to the register. The amendments made to this Ordinance in 1970 provided for compulsory registration of title to land where planning permission to develop or sub-divide un­registered land is granted.

Registration of Title to Land in Malaysia

Before the enactment of the Malaysia National Land Code, 1965, there were two quite different systems of conveyancing in vogue in this country. Privately executed deeds were the basis of title to land in the states of Penang and Malaca while nine Malay states employed a system based on registration of title to land on Torrens lines. The Malaysian National Code, 1965, esta­blished a uniform system of conveyancing. Under the provisions of this Code, registra­tion confers an indefeasible title to land except in certain circumstances though there is no provision for indemnity.”

Registration of Title to Land in Kenya

The registration of title to land, as distinct from the registration merely of a deed, has been introduced in Kenya since 1963. The Registered Land Act of Kenya passed in that year is intended to provide registration of title to land. The nomenclature of the act the ‘Registered Land Act’ indicates that it is intended to serve as substantive law as well as the law of registration. This “is a very solid piece of substantive law which cannot be dismissed as ‘procedure’ or ‘adjectival’ by those who claim that registration does not alter the law but merely simplifies procedure!”⁴⁷

Some Important Provisions

Certificates of title to land are to be issued in respect of land, both government and private land. An elaborate section specifies how registration is to be effected. Provision is made for the cancellation of an obsolete entry and also for opening new editions of the register at any time so as to show only the subsisting entries. Survey and registra­tion are (so far as concerns identification) interdependent. No change can be made by one without the knowledge and co-operation of the other. The registry map is an integral part of the system of registration. The final control of the map is vested in the chief land registrar because an alteration of the map must result in an alteration of the register. There is provision for a full dress fixing of boundaries. After this is done, the plan as filed is conclusive evidence of the precise position of the boundaries. Land must be officially sub-divided before a part of it is sold. Easements, restrictive agreements, profits—a prendre and licences have also been dealt with in this Act. The Act also con­tains detailed provisions as to various `dispositions=a word which, as defined, covers any act by a proprietor affecting his interest. It is distinct from ‘transmission’ which is defined as meaning something which occurs automatically and involuntari­ly on the happening of an event. In due course, all lands in Kenya will be registered and hence all the substantive law necessary to regulate the position inter se of the par­ties to an instrument has been included in the Act. Registered land can be dealt with only in accordance with the Act and ‘on the register’.

Effect of Registration

Section 26(a) of the Act deals with the interest conferred by registration and says that the registration of a person as the pro­prietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. Thus, it is the register which proves title to land, thereby providing the essential difference between the registra­tion of title to land and the registration of deed. Section 28 provides that the rights of a proprietor, whether acquired on first registration or whether acquired sub­sequently for valuable consideration or by an order of the court, shall be rights not liable to be defeated except as provided in this Act, and shall be held by the proprietor free from all other interests and claims what­soever. This means that the title to land is indefeasible, subject to certain qualifica­tions. Exceptions to indefeasibility for certain situations are given in section 30. Section 39 which deals with protection of persons dealing in registered land says that no person dealing or proposing to deal for valuable consideration with a proprietor shall be required or in any way concerned to inquire or ascertain the circumstances in which such proprietor or any previous pro­prietor was registered. This makes it very clear that the purchaser for value is con­cerned only with what appears on the register and is not concerned to go behind the register. Section 144 entitles any person who suffers damage by reason of recti­fication, or a mistake or omission which cannot be rectified, or by any error in the register, to be indemnified by the government out of funds provided by the legislature unless he contributes to the damage by his fraud or negligence or is a volunteer from such a person.

Effect on Indian Transfer of Property Act

The Transfer of Property Act, 1882, of India, which was hitherto applicable in Kenya, ceases to apply in Kenya to land registered under this act.

X

Concluding Remarks

Point for Consideration

In the above chapters, a brief picture has been given of the extent to which and the manner in which the Torrens system has been adopted, with or without modifica­tions, in some of the countries outside India. For obvious reasons, the preceding discus­sion does not cover all countries and even as regards countries covered, it is not meant to be comprehensive. The objective has been to give a broad picture of the manner in which the system is worked in some of the countries, so that a decision can be taken as to whether India should go in for the system of registration of title to land.

Importance of Land

In coming to a decision on the above point, what needs to be emphasised at the outset is the importance of land as an economic commodity. What strikes one is the tremendous developments that have taken place in other countries and the absence of any effort made in India in this matter. Theoretically, one might expect that more attention would have been paid to this aspect. But it is somewhat surprising that no attention seems to have been paid to this question. It may be worthwhile to note here the dictum of a Nigerian chief about land:

I conceive that land belongs to a vast family of which many are dead, few are living, and countless members are still unborn.”

Need for Registration of Title to Land

The need for registration of title to land has arisen because the existing law is no longer able to cope with the new conditions, where land has become scarce, where well-defined boundaries have become imperative, where credit is required on the security of the land and where, in fact, individual pro­prietary rights have become very important because land has acquired a negotiable value. The absence of such registration comes in the way of supply of capital for development and is responsible for the excessive cost of credit to agriculture and therefore its slow growth. It renders title to land so insecure that it is highly unsafe to buy land without heavy expense for legal ad­vice. Lastly, it generates a great deal of litigation.

Desirability of Good Title in Land

The arguments for a system of registra­tion of title to land are very strong. With the increasing pressure on land caused by the increasing population, the importance of cer­tainty of title to land will increase. One cannot say whether the move towards urbanisation will continue in. India or whether it will be checked by some factors that may suddenly emerge on the economic scene. In any case, with land changing hands more frequently than before, with more and more land pass­ing into the hands of companies and corporations, and with more and more securities being created on land, the desirability of good title in land must grow in importance. To recapitulate, the follow­ing are, in brief, the ‘defects in the system of conveyancing by deeds’ and the ‘advan­tages of the system of registration of title to land’.

Defects in the System of Conveyancing by Deeds

It is no longer true to say that ownership of land is registered in the memory of the community or its elders. Rather, society is getting more and more impersonalised and the system of mere registration of deeds may not be adequate for the needs of the present day India. There ‘is a fundamental defect in a system of conveyancing by deeds which does not stem from lack of publicity but rather from the very nature of a deed. A deed does not in itself prove title; it is merely a record of an isolated transaction. If pro­perly drawn, it shows that a particular trans­action took place, but it does not prove that the parties were legally entitled to carry out the transaction and consequently it does not prove the transaction valid. It may not be consistent with a previously registered trans­action or even with actual fact. It is obvious that the mere copying of a deed by the registry without any critical examination does nothing to remedy any deficiency in the deed. It follows therefore that investigation of its validity and effect will still be necessary before any further transaction can be safely conducted on the strength of it. The services of a conveyancer, of somebody skilled in this sort of investigation, will be required. This investigation will be facilitated by a register of deeds to a greater or lesser extent depen­ding on the manner in which it is kept, and particularly on the way in which it is index­ed. But, however well it is indexed, a deeds register will not show matters which affect a title but are not the subject of a deed. An example is succession on death, which gives title by operation of law and not by act of the parties.’

Advantages of the System of Registration of Title to Land

On the other hand, the Torrens system or registration of title to land remedies the defects of registration of deeds; it enables title to land to be ascertained as a fact `instead of leaving it to be wrought out as an inference’. “A register of title is an authoritative record, kept in a public office, of the rights to clearly defined units of land as vested for the time being in some par­ticular person or body, and of the limita­tions, if any, to which these rights are sub­ject. With certain unavoidable exceptions… all the material particulars affecting the title to the land are fully revealed merely by a perusal of the register which is maintained and warranted by the state. The register is at all times the final authority and the state accepts responsibility for the validity of transactions, which are effected by making an entry in the register, and only by this means. A simple procedure with simple forms is provided for the purpose. Dealing in land becomes… as quick, cheap and cer­tain as dealing in goods; indeed registration of title offers a system of conveyancing which is complete in itself and, insofar as it dispenses with the need for investigation of title, it dispenses with the need for the skilled conveyancer”. In short, “security, simplicity, accuracy, expedition, cheapness, suitability to its circumstances and com­pleteness of record”⁵I are the main advan­tages of this system. It also reduces greatly litigation over land.

Registration of Title to Land— An Aid to Government

The preparation and maintenance of records-of-rights in land got low priority in all the seven five-year plans of the states when they decided their programmes of development. It was forgotten that the maintenance of an up-to-date records-of-rights in land was a “social and economic service, part of the administrative infrastruc­ture so necessary for the developing of an increasingly complex economy”.⁵² It is an admitted fact that the .”administration of every public service and every branch of national activity connected with land is greatly assisted in the execution of its work by the existence of an up-to-date and unimpeachable map and record of landed property throughout the country”.⁵³ To give just one example, the major bottle-neck in all land acquisition proceedings in the coun­try is the absence of an up-to-date and authentic records-of-rights in land. The delay in acquisition proceedings, on this account, sometimes leads to enormous cost overruns and time overruns of various developmental projects, big and small. Thus, registration of title to land is not only ad­vantageous to the individual citizens, it is also a valuable aid to the government in execution of its several projects.

XI

Proposal and Suggestion

A Broad Proposal

It is not proposed at this stage to make any final or even detailed recommendations. But tentatively it would seem that the time has come for a gradual, phased and well-planned change-over to the system of registration of title to land in India.

Taking the `Torrens system’ to be a generic term denoting any system of registration of title to land as distinct from registration of deeds, it can be said that this system is in force in most of the countries today. In 1951, these countries were divided into groups which “indicate broadly the registration law upon which the various statutes (in force in those countries at that time) have been founded or are most closely connected with”. They are: The English Group; the Torrens Group; the German Group; the Swiss Group; and the Ottoman GrCoup.⁵⁴ As laws in all the countries, in this respect, are being amended from time to time, the distinction between these groups might have become in­distinct by now. It will be interesting to note that as far back as 1905, it Was said that “adaptations and modifications of the Australian system are also known as ‘Tor-rens system’. Thus, there is now an English Torrens system, a Canadian Torrens system and an American Torrens system”.⁵⁵

Rightly or wrongly, it is believed by some that the system of registration of title to land introduced in England in 1862 “was based on the system which Sir Robert Torrens had invented in Australia”.⁵⁶

Thus, the models available are so many and there will be time enough to make a selection out of them, having regard to the system of land rights in India, the legislative framework now existing, the administrative considerations and other relevant factors. But it is proper that the matter be pursued.

Broadly speaking, though it will be desirable to study the Australian, Canadian, American, English and German models, of the available models, two will need some­what detailed study, namely, the model adopted in some of the Australian states and the model adopted in Kenya. The Australian model has a freshness of its own and some of the Australian states offer the additional advantage that they have already tried com­puterisation. Although registration of title to land does not necessarily require that the records must be computerised, yet computeri­sation will be an additional advantage in its own right. Ultimately, all records-of-rights in land will have to be computerised. The Kenyan model has the advantage that it seeks to give two in one. It contains in one enact­ment not merely provisions regarding registration of title to land but also the substantive law of land. Of course, without a detailed analysis of the actual legislation adopted in the two models, it is not desirable to offer detailed proposals in the matter.

Thus, the Australian model and the Kenyan model, both as adopting the Torrens system, along with such additional features as may be found in each model and other models, should be examined in detail with a view to ultimate adoption in India. Of course, constitutional aspects also (arising out of the question of legislative competence as between the union and the states) will have to be examined carefully. And if the matter is ultimately found to be within the competence of the states (as pertaining to land) or within the concurrent list (as per­taining to registration or evidence), then the appropriate course will have to be followed.

Land Title Assurance Fund

As under this system a bona fide purchaser of land is to be indemnified for the loss incurred by him on account of registration of title to land, it may be argued that this system will put a considerable financial burden on the state which the state governments cannot afford to accept at pre­sent and therefore it is not advisable to go in for this system. In this connection, it may be pointed out that an assurance fund was established in South Australia, under the provisions of the first Torrens legislation of 1858, by imposing a levy of 0.2 per cent on the value of the land brought under that Act. In England also, an insurance fund was established, to meet claims for indemnity, when compulsory registration of title to land was introduced there in 1897. That fund was built up by annual allocation to it of a pro­portion of the receipts from the land registration fees. So, an assurance fund can be established in India also on these lines while introducing this system.

The experiences of other countries, however, show that when operated com­petently and efficiently, there are only few cases of indemnification. About the working of this system in Australia, it was said in 1927: “The highest tribute that could be paid to the success of the Torrens system is the infrequency of claims on the Assurance Fund”.” The latest figures from New South Wales are that up to 1939, slightly less than £ A 21,000 had been paid out of the fund. After that three payments are reported to have been made (as acts of grace and not as a result of court action): £A 108 in 1942, £A 61 in 1949 and $A 12,800 [in (?)], the last being the cost of paying out a mortgage given after title acquired by forgery.” In 1951, it was reported that many such funds had been closed because of their ‘indecent solvency’ and it was provided for the pay­ment of compensation, if any, from the general revenue of the state.

Similarly, it is reported that in England also claims against the fund, which amounted to more than half a million pounds in 1930, were few and small and therefore in 1936 it was surrendered to the Treasury, except £ 1,00,000, with the proviso that should more than £ 1,00,000 be required the deficiency would be made good out of the Consolidated Fund. It is further reported that between July 1, 1958, and March 31, 1972 (nearly 14 years), £ 49,351 were paid on 294 claims, set against a current annual revenue of about £ 12 millions. As men­tioned elsewhere in this study, this fund was abolished in England also in 1971.

Thus, the fear of financial liability on this score need not come in the way of introduc­ing this system in India. Of course, an initial contribution by the state to this fund will have to be made because an assurance fund solely dependent on the contributions made to it on registration will obviously be very vulnerable, before it has had time to build up.

Land Title Corporation

Another argument that may be advanced against the introduction of this system in India is that the registration of title to land and its maintenance will put a heavy admini­strative burden on the state and in the pre­sent set-up the existing machinery will not be able to cope with the task. It may, perhaps, increase the amount of work of the present staff to some extent at the time of initial registration of title to land and also demand more competent staff. As regards the increase in work, if non-revenue work being done at present by the revenue staff is taken away from them, then there may not be any difficulty at all. If this is not done, then some more staff may have to be recruited. As far as the question of com­petence of the staff is concerned, the con­cerned staff can be trained for this work. However, if the state governments show reluctance to undertake this responsibility, either on account of fear of financial liabili­ty or on account of administrative reasons, a separate autonomous statutory corpora­tion may be envisaged for the purpose. It may be called the ‘Land Title Corporation’ or the ‘Land Title Assurance or Guarantee Corporation’. In fact, in terms of efficiency and accountability, a separate organisation like the corporation may, perhaps, be preferable.

The corporation will have to be provided with some initial capital to start with but in course of time it should prove financially viable. If American title insurance com­panies can make huge profits, out of this business, there is no reason why the ‘Land Title Corporation’ should not succeed.

This corporation can organise its infor­mation system on modern lines right from the very beginning using computers where information storage and retrieval can be fast and efficient. All the developed countries use computers in one way or the other to keep track of their records-of-rights in land. New South Wales in Australia has introduced automated land title system. Computers are being used extensively by title insurance companies also in the United States of America. However, most of the countries have adopted a land information system in which records-of,-rights in land are a part of this system. Since many agencies use this system, the cost for any one of them is greatly reduced. This system is in operation in Sweden and Holland and is being developed in other countries. At present, Sweden is considered to be the best exam­ple of having fully computer managed land information system (known as the Swedish Land Data Bank System) for the basic registration and use of real property and land information for the country as a whole. In Israel and Malaysia also land records are being automated. Thus, in the sphere of computerisation also it may be advisable to study in detail the part being played by computerisation in registration of title to land and the experiments that are being con­ducted in this field in other countries. If Ontario has carried out the recommendation of the Ontario Law Reform Commission regarding the introduction of computerisation along with the conversion to the land title system, it will provide most instructive experience in the computerisation of registration of title to land against the background of English common law. Along with economic feasibility and other con­siderations will have to be studied the aspects of legality of computerisation.

A Concrete Suggestion

Except in the north-eastern states of Arunachal Pradesh, Meghalaya, Mizoram and Nagaland, some hilly areas of the state of Manipur, some union territories, and a few pockets of some other states, survey and settlement operations have been conducted all over the country at least once, if not twice. Under the present system of survey and settlement operations in India, the most important part of the work of a settlement officer is the determination of the pro­prietary rights in land, with appeal from his decision to the court. At law, an entry in the records-of-rights in land, with regards to proprietorship of land, as determined by the Settlement Officer, is prima facie evidence of ownership of land; in practice, It confers a large measure of security so long as its validity is not challenged in the court of law. So, the question of ownership of land is more or less settled for most of our land as far as the question of presump­tive titles to land is concerned.

But, in most of the states the surveys had been conducted long back. After the last preceding surveys, vast changes have taken place in the ownership and possession of land on account of land transfers by way of inheritance, sales, gifts, mortgages, leases, etc, and as a result of land acquisitions and implementation of various land reform measures. The total number of sub-divisions which require to be measured, mapped and brought on record run into millions. The result is that in most of the states the field and village maps have become unserviceable because there is a great divergence between the records-of-rights in land and the true position on the ground.

So, a concrete suggestion that can be made at present is that the revisional surveys should be undertaken all over the country on a priority basis as a ‘plan scheme’ with Central assistance. There should be wholesale revision of all pre-1950 surveys. It is during these revisional surveys that the system of registration of title to land may be introduc­ed. The revisional surveys would facilitate the conversion of the present presumptive titles to land into conclusive titles.

To begin with, however, the scheme of conversion of the present presumptive titles to land into conclusive titles may be intro­duced on a pilot basis, in a district or two in each state, in areas where revisional surveys have been completed very recently, because the conversion may not be difficult there. The present records-of-rights in land may be brought up-to-date and then used as the basis for introducing registration of title to land. The existing rights, as recorded at the time of revisional survey and updated by recording of mutations from time to time, may be recognised and confirmed after following the existing procedure laid down for the final publication of the survey and settlement records, with the modification suggested below.

According to the present rules regarding the final publication of the records-of-rights in land, prepared during the survey and settlement operations, the concerned parties are given copiei of the draft records-of-rights in land, to be finally published, and all records are kept open to the public for inspection at a specified convenient place for a period of one month to enable the parties to file objections, if any. During this period the objections are disposed of and the draft

records-of-rights in land are corrected, wherever necessary. On the conclusion of the period of inspection, the draft records-of-rights in land thus corrected are finally published.

In the case of conversion of the present presumptive titles to land into conclusive titles, the draft records-of-rights in land, prepared for final publication, may be kept open for public inspection for three months or even more during which period the ob­jections may be dealt with. In undisputed and straightforward cases, the conclusiveness of the title to land may be recorded straight­away. This will be the first registration which will establish with certainty and finality the titles to land. All subsequent titles will flow out of these titles. The contested cases will go to the civil court for adjudication. The lands in such cases will get conclusive titles by a judgment in rem of the court after any period provided for appeal. This is what was done in Germany also when they introduced compulsory registration of title to land in 1900 and prepared their Grundbuch (register of title) on the basis of the then existing cadastral records.

The above-mentioned procedure of con­verting presumptive titles to land into con­clusive titles may also be followed in areas where revisional surveys are undertaken. At the time of final publication of the records-of-rights in land, prepared during the revisional surveys, the uncontested presumptive titles may be converted into conclusive titles; the contested ones will go to the civil court for adjudication.

In sum, in both the cases, that is, in areas where revisional surveys have been com­pleted very recently and in areas where revi-sional surveys have to be undertaken, the registration of title to land may begin with the undisputed presumptive titles. These titles may be converted into conclusive titles straightaway. The decision about the conclu­siveness of the disputed titles will have to be left to the civil court. In this way, the con­version of the present presumptive titles into conclusive titles will be smooth and orderly.

The operation of settlement of conclusive titles to land will have to be progressive, ad­vancing plot by plot, village by village and district by district, gaining from the ex­perience in the operation. The greatest care will have to be taken to explain to the land­owners and others having interest in the land, well in advance, the objects and nature of the proposed measures and every effort will have to be made to secure the willing and active co-operation of all the interested parties at all stages in the operation, by con­ducting the procedings in situ, to make the title to land final and to reduce the litigation to the minimum. Methodical operation of this type would be welcomed by the general mass of landowners and other interested parties and they would extend all the required co-operation.

As regards the north-eastern states, hilly areas of the state of Manipur, and some union territories where rights in land are governed by the customary laws and where no survey and settlement operations have been conducted so far, the presumptive rights in land may be determined there dur­ing the first survey and settlement opera­tions. These presumptive titles may be allow­ed to ripen into conclusive titles after a period of thirty years or so.

XII

Quintessence of the System

The system of registration of title to land should prove attractive for a large number of landowners, both in big cities and towns as well as in rural areas, because a guaran­teed title to land will enable all dealings in land to be effected with security, expedition and cheapness. It should also prove attrac­tive for prospective buyers and credit agen­cies because the certificate of title to land will contain all the qualifications on con­clusiveness that may be material to the title or to the enjoyment of land, for example, succession caveats, restrictive covenants, pro­hibitory orders, rights of pre-emption, mor­tgages, leases, easements, etc. It will enhance the marketability of land. It will also make land a better store of value for inter-gene­rational transfer.

The present records-of-rights in land in India are fiscal in nature. The person shown on the records as responsible for paying land revenue for a particular piece of land is presumed to be the proprietor of that piece of land unless it is proved otherwise. Thus, title to land is only incidental and springs from the presumption that he who pays land revenue is the owner. With the abolition of land revenue in some states, it is feared by the landowners that this presumption has been taken away from them. The registra­tion of title to land will remove this problem and therefore it should be welcomed by the landowners in rural areas. In rural areas, it will also serve as an important document to get credit and other facilities because a registered proprietor or tenant will be able to borrow money quickly, easily and cheaply on the security of his landholding.

After the attainment of independence, large areas of government land, ceiling-surplus land and Bhoodan land have been distributed among the landless persons under various schemes in force from time to time on the condition that the allottees would not transfer those lands except under some stated conditions. However, as at the time of registration of sale-deeds the validity of the transactions is not examined, a large number of such allottees are reported to have transferred those lands and have become landless again. The introduction of this system will prevent such transfers because the title to land in all grants of land by the government will be registered in the register with all the stipulated restrictions. Again, laws in all the states provide that land­holdings of tribals are heritable but not transferable. In this case also, large-scale

transfers are taking place all over the coun­try. The registration of title to land will put an end to it because all the disabilities with regard to transferability of land will be men­tioned in the title register. So, the system should be welcomed by the government as a valuable administrative aid in the imple­mentation of all its land reform measures in general and protective legislation in particular.

With the introduction of this system, the records-of-rights in land will always remain up-to-date and will show the ground position correctly in this regard because under this system there will be no registration without mutation. Both will be done simultaneously and at the same time. This should be welcomed by all the concerned parties.

As continuous finality of title to land tends td reduce litigation, both civil and criminal, the system should be welcomed not only by the general public but even by the government and the public bodies because it will reduce a great deal of litigation bet­ween the state and the citizens, between the citizens and the public bodies as well as between the citizens themselves.

Lastly, the sanctity of the proprietary rights in land which is the corner-stone of social stability has been eroded to such an extent that the very concept of title to land has changed. Earlier, it used to be said that possession of land was considered nine points in law. Today, it is said that posses­sion has become eleven points in law. A state which recognises private ownership of land and allows free dealings in it is supposed to protect the rights of its citizens in their lands. Not to speak of protecting the rights of its citizens in their lands, the state is unable to protect even its own rights in its own lands which is evident from the large-scale en­croachment of government lands in all parts of the country and from the great deal of litigation before the various courts in which the title of the state to its lands is under at­tack. Not only the government land, even the village commons and lands belonging to public bodies have also been encroached upon. With the emergence of muscle power and the resultant feeling of insecurity among the small landowners in the rural areas, the registration of title to land will provide the necessary security not only to the small land­owners but even to the government and public bodies with regard to their lands. The quintessence of this system is security.

This is extracted from Noorani’s book: CONSTITUTIONAL QUESTIONS AND CITIZENS’ RIGHTS: An Omnibus Comprising Constitutional Questions in India and Citizens’ Rights, Judges and State Accountability

I’m noting down these extracts here since there are significant policy issues involved. HAS ANYONE IN THE NEHRU FAMILY PROFITED FROM HIS OFFICIAL WRITINGS? Here was a wealthy aristocrat who lived a life of luxury even as he seized the hard earned property of thousands of farmers. We are entitled to know whether his family profited unlawfully.

Copyright in Nehru’s State Papers 1

It is truly amazing—or, perhaps, not, in our feudal culture—that none of our historians has raised any question about the status, in law and morality, of documents composed by public servants, ministers or others, while in office. Do they form part of their private property to be taken away on demission of office; can they be used without restriction or kept under wraps arbitrarily, denying access to scholars; and, finally, can they be willed away to whomsoever they please or be inherited by their heirs if they die intestate? (One is not sure whether it is the copies or the originals that are taken away.) Even less clear are the rules relating to their memoirs. Two recent episodes reflect the pathetic state of things today.

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Copyright in the Selected Works of Jawaharlal Nehru vested in Indira Gandhi, as Volume 1 declared (1972). As chairman (sic) of the Jawaharlal Nehru Fund, she wrote in the foreword: ‘The official letters and memoranda will also (besides the ‘ephemeral’) not find place here.’⁶ Fortunately, the General Editor, S. Gopal, ignored this. Being a scholar, however, he did so with rectitude. Volume 19 in the second series (1996), for instance, records in the editorial note access to documents in her possession, referred to as ‘J.N. Collection’, adding: ‘We were also allowed by the Secretariats of the President and the Prime Minister and the Ministries of Home Affairs, External Affairs, the Press Information Bureau and the National Archives of India to use the material in their possession. Some classified material has necessarily been detected.’ ⁷ Gopal, thus, acted with impeccable propriety. Incidentally, after Indira Gandhi’s death, the copyright symbol is silent on the person in whom it vested. It says merely ‘All rights reserved’ and ‘enquiries regarding copyright to be addressed to the publishers’, that is, the Jawaharlal Nehru Memorial Fund. Does it vest in Sonia Gandhi or her children? The people are entitled to know.

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It must be mentioned that very many state papers Jawaharlal Nehru wrote as prime minister are still not in the ‘J.N. Collection’. They include notes to the foreign secretary on the Sino-Indian boundary, to several others on Kashmir and even comments on an Intelligence Bureau note on Internal Security. This collection is, apparently, in Sonia Gandhi’s possession. Hence, her permission to Ian Copland to consult the papers relating to the princes, which he wrote in his official capacity.

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Nehru’s Letters to Chief Ministers (1947–1964) was edited by G. Parthasarathi and published by the J.N. Memorial Fund. It very properly ‘approached the Government with a proposal to publish them,’ as Rajiv Gandhi recorded in his Foreword of 5 November 1985. He added: ‘The Government readily agreed.’ The copyright, the five volumes proclaim, vests in the Government of India. Thus in publishing both sets of Nehru’s writings, under different editors, propriety was maintained.⁸

But if this be the legal position in regard to the Letters to Chief Ministers, can it be otherwise in regard to other papers he wrote in his capacity as prime minister? Sonia Gandhi has no right to hold them in her possession at all, let alone decide whom to accord permission for access to them. Presumably, her power, in that event, will extend also to granting reproduction rights, with or without a fee. Nehru’s papers, written while in office in a public or official capacity, did not at all form part of his estate in law. They cannot be inherited by anyone, by will or otherwise. He had no testamentary power over those papers.

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In India, legislation is called for and, more, acquisition by law of state papers of all former ministers and prime ministers, particularly those who participated in the freedom movement; that is, papers written while they held office.

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The Constitution of India no longer treats the right to property as a fundamental right. All that Article 300-A says is that ‘no person shall be deprived of his property save by authority of law’. Acquisition of papers written by a person while in public office is not a case of deprivation of private property but of restoration to the state of property that belongs to it, legally and morally.