Saji Mathew vs State Of Kerala
2021 Latest Caselaw 2714 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

          THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

   MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942

                  W.P.(C) No.25801 OF 2020(A)


PETITIONER/S:

             SAJI MATHEW
             AGED 57 YEARS
             S/O. MATHEW, PUTHUKUDIYIL HOUSE, THURUTHY P.O.
             VAZHAPPALLY VILLAGE, CHANGANASSERY TALUK,
             KOTTAYAM DISTRICT.

             BY ADVS.
             SRI.P.HARIDAS
             SRI.BIJU HARIHARAN
             SRI.R.B.BALACHANDRAN
             SRI.RENJI GEORGE CHERIAN
             SRI.P.C.SHIJIN
             SRI.RISHIKESH HARIDAS

RESPONDENT/S:

      1      STATE OF KERALA
             REPRESENTED BY THE PRINCIPAL SECRETARY,
             DEPARTMENT OF REVENUE, STATE SECRETARIAT,
             THIRUVANANTHAPURAM 695 001.

      2      SUB COLLECTOR AND REVENUE DIVISIONAL OFFICER,
             OFFICE OF THE SUB COLLECTOR AND REVENUE
             DIVISIONAL OFFICER, MINI CIVIL STATION, KOTTAYAM
             686 101.


OTHER PRESENT:

             SR.GP - SMT. AMMINIKUTTY

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No.25801 OF 2020(A)

                                      2

                               JUDGMENT

The petitioner, has filed this writ petition under Article 226 of

the Constitution of India, seeking a writ of certiorari to quash

Ext.P4 communication dated 13.11.2020 issued by the 2 nd

respondent Revenue Divisional Officer, whereby the petitioner was

informed, that he is not a person authorised to receive Power of

Attorney in terms of Section 17(1)(g) of the Registration (Kerala

Amendment) Act, 2012. The petitioner has also sought for a writ of

mandamus commanding the 2nd respondent Revenue Divisional

Officer to receive Ext.P1 Power of Attorney dated 27.08.2020 and

adjudicate the stamp duty payable on the same, receive the stamp

duty payable and stamp the same in accordance with Section 18 of

the Kerala Stamp Act, 1959.

2. On 24.11.2020, when this writ petition came up for

admission, the learned Government Pleader sought time to get

instructions.

3. Heard the learned counsel for the petitioner and the

learned Senior Government Pleader for respondents.

4. In the instant case, Ext.P1 power of attorney dated

27.08.2020 is one executed by Joseph Kaduthanam, S/o. Late

Pothen Thomas, in favour of the petitioner, which is executed W.P.(C) No.25801 OF 2020(A)

before the competent authority in Germany and attested by the

German Attesting Authority. The petitioner produced Ext.P1 power

of attorney before the 2nd respondent Sub Collector and Revenue

Divisional Officer, Kottayam, under section 18 of the Kerala Stamp

Act seeking to adjudicate the stamp duty payable and to impound

the same after receiving the value of stamp so adjudicated. Ext.P2

is the application made by the petitioner dated 30.10.2020 in that

regard. The request made in Ext.P2 stands rejected by Ext.P4

communication dated 13.11.2020 issued by the 2 nd respondent,

whereby the petitioner was informed that no action can be taken

pursuant to the request made by the petitioner in Ext.P2 on Ext.P1

power of attorney since the petitioner is not a person authorised to

receive power of attorney in terms of Clause (g) of sub-section (1)

of Section 17 of the Registration Act, 1908 as amended by the

Registration (Kerala Amendment) Act, 2012.

5. Section 17 of the Kerala Stamp Act, 1959 deals with

instruments executed in the State of Kerala. As per Section 17, all

instruments chargeable with duty and executed by any person in

the State of Kerala shall be stamped before or at the time of

execution. Section 18 of the Act deals with instruments executed

outside India. As per sub-section (1) of Section 18, every W.P.(C) No.25801 OF 2020(A)

instrument chargeable with duty executed only out of India may be

stamped within three months after it has been first received in the

State of Kerala. As per sub-section (2) of Section 18, where any

such instrument cannot, with reference to the description of stamp

prescribed therefor, be duly stamped by a private person, it may

be taken within the said period of three months to the Collector

who shall stamp the same, in such manner as the Government

may by rules prescribe, with a stamp of such value as the person

so taking such instrument may require and pay for.

6. In Thomas C. Kunjachan v. Revenue Divisional

Officer and another [2017 (4) KHC 335] a Division Bench of

this Court noticed that the normal rule regarding time of stamping

an instrument is specified in Section 17 of the Kerala Stamp Act. It is

to be stamped before or at the time of execution. Section 18 is an

exception in relation to instruments executed outside India. It

provides for stamping within three months of being first received

in India. However, Section 33 of the Act clearly provides that

where an instrument chargeable with duty is produced before a

person specified in charge of a public office, on which duty as

specified is not paid, then such person shall impound and send the

same to the Collector. The document having been impounded, W.P.(C) No.25801 OF 2020(A)

Section 34 of the Act provides that an instrument not duly

stamped cannot be admitted in evidence. But when comes to

Section 39 of the Act, which clearly authorises the Collector to

stamp the instrument impounded and once it is stamped with

penalty, the consequences under Section 41 of the Act would

follow and it becomes a valid instrument for all purposes

thereafter. Therefore, the Division Bench directed the Revenue

Divisional Officer, Kollam to impound the document as and when

presented before him and ensure payment of deficit duty and

penalty and immediately endorse the same and return the

document to the appellant so that further inconvenience is

avoided. Paragraphs 5 and 6 of the said decision read thus;

"5. We are indeed surprised that the Revenue Divisional Officer, who should have been aware of these provisions, being the Collector under the Act, has abdicated his duty. Instead of sticking to hyper technicalities, he could very well have indicated to the writ petitioner/appellant that the document being not duly stamped, was required to be impounded and could have asked him to remit the stamp deficit and pay the penalty. Once that was done, the instrument gets its validity again. But instead he chose to keep quiet and dragged the petitioner to the corridors of this Court. The only consequence is that time and money of everybody including this Court has been wasted.

6. However, in view of the aforesaid statutory scheme, we W.P.(C) No.25801 OF 2020(A)

would direct the first respondent/Revenue Divisional Officer, Kollam to impound the document as and when presented before him and ensure payment of deficit duty and penalty and immediately endorse the same and return the document to the appellant so that further inconvenience is avoided. The document so endorsed would then be a valid document for all practical purposes in terms of Section 41(2) of the Act, which provision was not brought to the attention of the learned Single Judge. We, therefore, are constrained to set aside the judgment of learned Single Judge and thus allow the appeal with the aforesaid directions."

7. Section 17 of the Registration Act, 1908 deals with

documents of which registration is compulsory. Clause (g) of sub-

section (1) of Section 17, inserted by the Registration (Kerala

Amendment) Act, 2012 reads thus;

"(g) Power of attorney creating any power or right of management, administration, development, transfer or any other transaction relating to immovable property of the value of one hundred rupees and upwards other than those executed in favour of father, mother, wife, husband, son, adopted son, daughter, adopted daughter, brother, sister, son-in-law or daughter-in-law of the executant."

8. Section 33 of the Registration Act deals with power of

attorney recognisable for the purpose of Section 32. Clause (c) of

sub-section (1) of Section 33 of the Act reads thus;

"(c) if the principal at the time aforesaid does not reside in India, a power of attorney executed before and W.P.(C) No.25801 OF 2020(A)

authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or vice-consul, or representative of the Central Government:

Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely:--

(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;

(ii) persons who are in jail under civil or criminal process; and

(iii) persons exempt by law from personal appearance in the court.

Explanation.- In this sub-section, "India" means India, as defined in clause (28) of section 3 of the General Clauses Act, 1897 (X of 1897)."

9. In Cherryl Ann Joy v. Sub Registrar,

Udumbanchola [2018 (4) KHC 542] this Court held that a mere

perusal of the provisions under the Registration Act, more

particularly those contained in Sections 32, 33 and sub-section (1)

of Section 17, will make it clear that the scenario covered by

clause (c) of sub-section (1) of Section 33 deals with the situation

of all types of powers of attorney which have been executed by an

executant, who is not residing in India, in the manner stipulated

therein. Clause (c) of sub-section (1) of Section 33 does not make

any distinction as to the purpose for which the power of attorney W.P.(C) No.25801 OF 2020(A)

conceived therein is executed. Whereas the specific provision

contained in clause (g) of sub-section (1) of Section 17 deals only

with those specific types of powers of attorney which create power

or right of management, administration, development, transfer or

any other transaction relating to immovable property of the value

of Rs.100/- and upwards other than those executed in favour of

the exempted categories therein. Therefore, the specific scenario

covered by clause (g) of sub-section (1) of Section 17, deals with

special cases of the powers of attorney as envisaged therein.

Hence the said specific provision contained in clause (g) of sub-

section (1) of Section 17 would have overriding effect over the one

covered by clause (c) of sub-section (1) of Section 33. So long as

the power of attorney conceived in clause (c) of sub-section (1) of

Section 33 is not one which is creating power, right of

management, administration, development, transfer or any other

transaction relating to immovable property of the value of Rs.100/-

and above, other than those exempted categories mentioned

therein, the executant can take the benefit of clause (c) of sub-

section (1) of Section 33 if such a power of attorney has been duly

executed and authenticated in the manner stipulated in clause (c)

of sub-section (1) of Section 33 which would confer competence to W.P.(C) No.25801 OF 2020(A)

the power of attorney to present the documents for registration

under Section 32.

10. In Cherryl Ann Joy, on the facts of the case, this Court

noticed that, the relationship between the petitioner and her power

of attorney as per Ext.P2 will not come within the exempted

categories of relationships mentioned in clause (g) of sub-section

(1) of Section 17 as the latter is the former's father's brother. So

the petitioner will have to comply with the requirement of

registration of her power of attorney as per clause (g) of sub-

section (1) of Section 17 and she cannot claim the benefit of

clause (c) of sub-section (1) of Section 33. Therefore, the stand

taken by the respondent Sub Registrar in Ext.P4 letter is lawful

and tenable and is not liable to be interdicted. The respondent Sub

Registrar can act upon Ext.P2 power of attorney only if it is

registered in terms of the provisions contained in the Registration

Act.

11. In view of the provisions under Section 18 of the Kerala

Stamp Act and also the law laid down by the Division bench of this

Court in Thomas C. Kunjachan [2017 (4) KHC 335], the

reasoning of the 2nd respondent in Ext.P4 communication for not

considering Ext.P2 request made by the petitioner under Section W.P.(C) No.25801 OF 2020(A)

18 of the Kerala Stamp Act cannot be sustained in law. In view of

the provisions under clause (g) of sub-section (1) of Section 17 of

the Registration Act, Ext.P1 power of attorney is a document which

requires compulsory registration. The question of registration of

Ext.P1 power of attorney arises only after the 2 nd respondent

taking an appropriate decision on Ext.P2 request made by the

petitioner, invoking his powers under Section 18 of the Kerala

Stamp Act.

12. In such circumstances, this writ petition is disposed of

by setting aside Ext.P4 communication dated 13.11.2020 issued by

the 2nd respondent and directing the said respondent to consider

and take an appropriate decision on Ext.P2 request made by the

petitioner, in accordance with Section 18 of the Kerala Stamp Act,

taking note of the law laid down by the Division Bench in Thomas

C. Kunjachan, as expeditiously as possible, at any, within a period

of two weeks from the date of receipt of a certified copy of this

judgment, after affording the petitioner an opportunity of being

heard.

Sd/-

ANIL K. NARENDRAN JUDGE MIN W.P.(C) No.25801 OF 2020(A)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE POWER OF ATTORNEY DATED 27.8.2020.

EXHIBIT P2 TRUE COPY OF THE APPLICATION BEFORE THE 2ND RESPONDENT SUMMITED BY THE PETITIONER DATED 30.10.2020.

EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF EXT. P2 DATED 30.10.2020.

EXHIBIT P4                TRUE COPY OF THE NOTICE OF THE 2ND
                          RESPONDENT UNDER SECTION 17(1) (G) OF
                          REGISTRATION (KERALA AMENDMENT) ACT,
                          2012 DATED 13.11.2020.