Kerala High Court

Inspector General Of ... vs Muhammed on 16 February, 2022

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                     &
                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
        Wednesday, the 16th day of February 2022 / 27th Magha, 1943

                            WA NO. 203 OF 2022

  AGAINST JUDGMENT DATED 30.11.2021 IN WP(C) NO.7863/2021 OF THIS COURT.

                                     ----

APPELLANTS/RESPONDENTS IN W.P.(C):

  1. INSPECTOR GENERAL OF REGISTRATIONS, EX. MAYOR R. BALAKRISHNAN NAIR
     ROAD, NEAR DISTRICT COURT, VANCHIYOOR, THIRUVANANTHAPURAM, KERALA -
     695035.
  2. SUB REGISTRAR, SUB REGISTRAR OFFICE, PANANTHARA, AANDATHODE,
     THRISSUR, KERALA - 679564.

BY SENIOR GOVERNMENT PLEADER SRI.TEKCHAND

RESPONDENT/PETITIONER IN W.P(C):

     MUHAMMED,S/O.KUNJIMUHHAMMED, KATTIPARAMBIL VEEDU, VAILATHOOR P.O,
     THRISSUR DISTRICT, KERALA - 679563.

BY ADVS.M/S. RAJIT & P.M.HABEEB

     Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to issue an interim order staying the operation and implementation of the
judgment of the learned Single Judge dated 30.11.2021 in W.P.(C)
No.7863/2021, pending disposal of the above Writ Appeal.
     This Writ Appeal coming on for admission on 16/02/2022 upon perusing
the appeal memorandum, the court on the same day passed the following:

                                                                      P.T.O.
 EXT.P2:A TRUE COPY OF THE PARTITION DEED NO.1090/44/ SRO

KOTTAPPADY *CORRECTED.

EXT.P3:A TRUE COPY OF THE POWER OF ATTORNEY DATED 11.10.2019.
              S. MANIKUMAR, CJ & SHAJI P.CHALY, J
           -------------------------------------------------------
                           W.A No.203 of 2022
          ---------------------------------------------------------
                  Dated this the 16th day of February, 2022

                                      ORDER

S. Manikumar, CJ Being aggrieved by the directions issued in W.P.(C) No.7863 of 2021,

dated 30th November, 2021 directing the Sub Registrar, Sub Registrar

Office, Pananthara, Thrissur - appellant No.2, to register Exhibit P2 sale

deed, instant writ appeal is filed.

2. On the grounds inter alia Mr.Tek Chand - learned Senior

Government Pleader, submitted that Exhibit P3 power of attorney dated

11.10.2019 is opposed to the statutory provisions of section 17(1)(g) of the

Registration Act, 1908, which reads thus:

"17(1)(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.

3. According to the learned Senior Government Pleader, Exhibit P3

has to be compulsorily registered under section 17(1)(g) of the

Registration Act, 1908, which, in the case on the hand, not done.

Admittedly, Exhibit P3, power of attorney, has been executed not in favour

of petitioner etc. mentioned in section 17(1)(g) of the Registration Act,

1908.

4. Further, the contention of the learned Senior Government Pleader

is that as per section 17(1) (f) of the Registration Act, 1908, which states

that, instruments purporting or operating to effect a contract for the sale

of immovable property of the value of one hundred rupees and upwards,

is also lacking.

5. To substantiate his contentions, reliance is also placed on the

judgments of this Court in Cherryl Ann Joy v. Sub Registrar,

Udumbanchola [ 2018 (4) KHC 542 and Joseph George v. State of

Kerala and Others [ 2017 (4) KHC 948].

6. In support of the above contentions, learned Senior

Government Pleader also invited the attention of this Court to sections

32, 32A, 33 and 49 of the Registration Act, 1980, which read thus:

"32. Persons to present documents for registration.-- Except in the cases mentioned in 1[sections 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration- office,--

(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or

(b) by the representative or assign of such a person, or

(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.

32A. Compulsory affixing of photograph, etc.--Every person presenting any document at the proper registration office under section 32 shall affix his passport size photograph and fingerprints to the document:

Provided that where such document relates to the transfer of ownership of immovable property, the passport size photograph and fingerprints of each buyer and seller of such property mentioned in the document shall also be affixed to the document.]

33. Power-of-attorney recognizable for purposes of section 32.--

(l) For the purposes of section 32, the following powers-of-attorney shall alone be recognized, namely:--

(a) if the principal at the time of executing the power-of-attorney resides in

any part of [India] in which this Act is for the time being in force, a power- of-attorney executed before and authenticated by the Registrar or Sub- Registrar within whose district or sub-district the principal resides;

(b) if the principal at the time aforesaid resides in any part of India in which this Act is not in force], a power-of-attorney executed before and authenticated by any Magistrate;

(c) if the principal at the time aforesaid does not reside in India], a power- of-attorney executed before and 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

Court.

[Explanation.--In this sub-section "India" means India, as defined in clause (28) of section 3 of the General Clauses Act, 1897 (10 of 1897).]

(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-

attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid.

(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.

(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf.

49. Effect of non-registration of documents required to be registered.--No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a

contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.] "

7. That apart, learned Senior Government Pleader further submitted

that as per section 31 of the Kerala Stamp Act,1959, adjudication as to

proper stamp duty is done by the Collector, as defined under section 2(c)

of the Stamp Act, which reads thus:

"31.Adjudication as to proper stamp.--(1) When any instrument, whether executed or not and whether previously stamped or not, is brought to the Collector, and the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, and pays a fee of such amount (not

exceeding five rupees and not less than [fifty naye paise]) as the Collector may in each case direct, the Collector shall determine the duty (if any) with which, in his judgment the instrument is chargeable.

(2) For this purpose the Collector may require to be furnished with an abstract of the instrument, and also with such affidavit or other evidence as he may deem necessary to prove that all the facts and circumstances affecting the chargeability of the instrument with duty, or the amount of the duty with which it is chargeable, are fully and truly set forth therein, and may refuse to proceed upon any such application until such abstract and evidence have been furnished accordingly:

Provided that--

(a) no evidence furnished in pursuance of this section shall be used against any person in any civil proceeding, except in an enquiry as to the duty with which the instrument to which it relates is chargeable; and

(b) every person by whom any such evidence is furnished, shall, on payment of the full duty with which the instrument to which it relates, is chargeable, be relieved from any penalty which he may have incurred under this Act by reason of the omission to state truly in such instrument any of the facts or circumstances aforesaid."

8. As per Section 2(c) of the Stamp Act,1908, 'Collector' means the

Chief Officer in charge of the Revenue Administration of a District and

includes any officer whom the Government may, by notification in the

gazette, appoint in this behalf.

9. Material on record also discloses that Exhibit P3 power of

attorney dated 11.10.2019 is stated to have been presented before the

District Registrar (General), Thrissur for the purpose of assessing the

stamp duty as per section 31 of the Kerala Stamp Act.

10. From the details furnished, one thing is clear that Exhibit P3

power of attorney dated 11.10.2019 has not been registered in terms of

section 17(1)(g) of the Registration Act, 1908. Therefore, the matter

requires to be considered and adjudicated, especially due to the fact that