Muhammed vs Inspector General Of ...
2021 Latest Caselaw 23566 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
           THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
                           WP(C) NO. 7863 OF 2021
PETITIONER:

             MUHAMMED
             AGED 68 YEARS
             S/O.KUNJIMUHHAMED, KATTIPARAMBIL VEEDU, VAILATHOOR
             P.O., THRISSUR DISTRICT, KERALA.
             BY ADVS.
             P.M.HABEEB
             SMT. SOUMYA FRANCIS


RESPONDENTS:

      1      INSPECTOR GENERAL OF REGISTRATIONS
             EX MAYOR R.BALAKRISHNAN NAIR ROAD, NEAR DISTRICT
             COURT, VANCHIYOOR, THIRUVANANTHAPURAM, KERALA-695
             035.
      2      SUB REGISTRAR,
             SUB REGISTRAR OFFICE, PANANTHARA, AANDATHODE,
             THRISSUR, KERALA-679 564.
             BY ADV GOVERNMENT PLEADER




             SRI. RAJEEV JYOTHISH GEORGE G.P.



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2021, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                   2



W.P.(C)No. 7863 of 2021




                          JUDGMENT

Dated this the 30th day of November, 2021.

The petitioner says that he is the power of attorney

holder of the original owners of the property involved in

this case and points out to Ext.P3 in substantiation. He

submits that the property in question was originally owned

by the father of the persons who have executed in Ext.P3

in his favour; and that consequent to his death, they

became its co-owners. He says that the original owner

was an Indian, though the persons mentioned in Ext.P3 all

are residing abroad, but asserts that this will not impede

the inheritance of the property in their favour, under the

applicable statutes and regulations.

2. The petitioner says that after the original owner

W.P.(C)No. 7863 of 2021

died and the land became vested in the persons

mentioned in Ext.P3, they executed the said power of

attorney in his favour, which is attested by the competent

Diplomatic Officer of India and which has been adjudicated

by the District Registrar, Thrissur, under Section 32 of the

Kerala Land Act, 1959, as per the orders of this Court. He

says that, therefore, he is now of fully competent to

present a Sale Deed with respect to the property in

question, but that this has been objected to by the Sub-

Registrar, by issuing Ext.P5.

3. The petitioner submits that Ext.P5 has been

issued by the Sub-Registrar citing three objections:

namely, that the persons mentioned in Ext.P3 are

foreigners and therefore, will have to obtain the clearance

of the Reserve Bank of India; that their thumb impressions

are not available on the documents sought to be

W.P.(C)No. 7863 of 2021

registered, under provisions of Section 32(A) of the

Registration Act; and finally, that Ext.P3 Power Attorney

has not been registered, though it is a compulsory

registerable document under Section 17(G) of the

Registration Act.

4. Sri.P.M.Habeeb - learned counsel for the

petitioner, submitted that every objection raised in Ext.P5

is untenable because, for one, the allegation that the

persons mentioned in Ext.P3 Power of Attorney are

foreigners would be no consequence at all, because the

land belonged to their father, who is concededly an Indian

and that the applicable law would not stop its inheritance

in their favour. As regards Section 32(A) of the

Registration Act is concerned, Sri.P.M.Habeeb submitted

that Ext.P3 - Power of Attorney has been executed

precisely for this purpose and that once the document is

W.P.(C)No. 7863 of 2021

presented by his client, then he would be authorized to a

fix his thumb impression on behalf of its owners. Finally,

as regards the registration of the Power of Attorney is

concerned, Sri.P.M.Habeeb submitted that it has been

attested by a competent Consular Officer of India and that

since it has been adjudicated by the District Registrar in

terms of the Kerala Stamp Act, 1959, the said objection

can also not hold good any further.

5. In response, Sri.Rajeev Jyothish Geroge - learned

Government Pleader, submitted that, apart from the

reasons in Ext.P5, a suspicion also now arises as to the

nature of Ext.P3 - Power of Attorney. He submitted that,

as is evident from its terms, it is shown to be irrevocable

in perpetually and that the petitioner has been recorded to

have given "valuable consideration" to the original owners

for executing the same. He submitted that, therefore,

W.P.(C)No. 7863 of 2021

Ext.P3 appears to be a conveyance on its own; and thus

prayed that the Sub Registrar may not be directed to

register any sale deed to be presented by the petitioner on

its strength.

6. I have considered the afore submissions and

have also examine the various materials available on

record.

7. I must say that I find substantial force in the

submissions of Sri.P.M.Habeeb because, as rightly stated

by him, the first objection against Ext.P3, namely, that it is

not registered, cannot hold because it has been admittedly

attested by a competent Consular Officer of India in

Malaysia and has also been, thereafter, adjudicated by the

District Registrar as per the directions of this Court.

8. As far as the objections relating to the owners of

the property is concerned, it is irrelevant that they are

W.P.(C)No. 7863 of 2021

foreigners, because the property was originally owned by

their father, who was an Indian and the inheritance of

which cannot be stopped, even going by the applicable

laws. Further, the objections regarding clearance from the

Reserve Bank of India would be applicable only if the

proceeds of the sale with respect to the property, is to

travel out side India, but there is nothing on record to

show that it is so. Of course, if there is any such

remittance of money, the competent Authorities can take

necessary action and put necessary measures in place.

9. Finally, on the question of Section 32(A) of the

Registration Act, it is clear that the Power of Attorney has

been executed by the original owners solely for the

purpose of enabling the petitioner to act on their behalf;

and obviously, therefore, he would be entitled to do

everything on their behalf which they are bound to do in

W.P.(C)No. 7863 of 2021

law.

10. It is thus luculent that the hurdles presented

through Ext.P5 are no longer tenable; though I am aware

that the learned Government Pleader has now raised

certain suspicions regarding Ext.P3 - Power of Attorney

itself. However, it is pertinent that in Ext.P5 there are no

such objections raised, and am, therefore, of the view that

this Court is not enjoined to consider them on its merits, at

least at this stage. If, in future, any of the Authorities are

to find Ext.P3 to be is suspicious, they will certainly be at

liberty to take necessary action in terms; but as long as it

is unimpeached, the consequences thereunder cannot be

stopped.

Resultantly, I allow this writ petition and set aside

Ext.P5, with consequential liberty being reserved to the

petitioner to present the Ext.P2 - sale deed, on the

W.P.(C)No. 7863 of 2021

strength of Ext.P3 - Power of Attorney, before the 2 nd

respondent; in which event, the said Authority will register

the same, subject to all other requirements and

qualifications being satisfied, but de hors what is stated in

Ext.P5, as expeditiously as is possible, but not later than

one week from the date on which it is so presented.

Needless to say, every other contention of the rival

parties are left open and if there is any violation with

respect to transmission of the sale consideration, or with

respect to the terms of Ext.P3, the competent Authority

will be at liberty to take necessary action in terms of law,

however, after following due procedure and after notifying

the petitioner appropriately.

Needless to say that while computing the periods of

limitation for the purpose of presentation and registration

of the document, the time between when this writ petition

W.P.(C)No. 7863 of 2021

was filed and until a certified copy of the judgment is

delivered, shall be excluded.

I record that this is not opposed by the learned

Government Pleader either.

Sd/-

DEVAN RAMACHANDRAN JUDGE

Raj/30.11.2021.

W.P.(C)No. 7863 of 2021

APPENDIX OF WP(C) 7863/2021

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE DEATH CERTIFICATE DATED 10.11.1967.

EXHIBIT P2 A TRUE COPY OF THE PARTITION DEED

NO.1090/44 SRO KOTAPPADY. *corrected EXHIBIT P3 A TRUE COPY OF THE POWER OF ATTORNEY DATED 11.10.2019.

EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER IN THIS CONTEXT DATED 11.08.2020.

EXHIBIT P5 A TRUE COPY OF THE COMMUNICATION DATED 28.01.2021.

Ext.P2 is corrected by substituting the words "sale deed" instead of

"partition deed" as per order dated 17/12/2021 in IA 1/2021.

Sd/-

Assistant Registrar