Allahabad High Court
Ravindra Kumar vs State Of U.P. And 2 Others on 19 May, 2020
Equivalent citations: AIR 2020 ALLAHABAD 119, AIRONLINE 2020 ALL 968
Bench: Abhinava Upadhya, Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 12.02.2020 Delivered on 19.05.2020 Court No. - 37 Case :- WRIT - C No. - 46666 of 2013 Petitioner :- Ravindra Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Parul Srivastava,Anupam Kulshreshtha,Namit Srivastava,Shashi Nandan Counsel for Respondent :- C.S.C. Hon'ble Abhinava Upadhya,J.
Hon'ble Shamim Ahmed,J.
(Delivered by Hon'ble Shamim Ahmed, J.) Heard Shri Shashi Nandan, learned Senior Advocate assisted by Shri Anupam Kulshrestha, learned counsel for the petitioner and learned Standing Counsel for the respondents.
Learned counsel for the petitioner submits that he does not want to press the prayer no.1 of the writ petition and confined his relief in respect of prayer nos. 2 to 5 only.
Learned counsel for the petitioner argued that one Shri Rakesh Chandra Sharma and his wife Smt. Kunti Sharma had purchased plot nos.26 and 27 measuring area 324 Sq. meters in Khasra Nos. 86/3, 86/2, 83, 84/2, 87/2 situated in village Navada, District Bareilly by registered sale deed dated 14.02.1989 and thereafter, their names were recorded in the revenue records. Thereafter, the aforesaid couple on 14.03.2004 executed a power of attorney in favour of the petitioner in respect of the said property. It is also submitted that in the aforesaid power of attorney, the signatures of the persons were attested by a notary/ advocate whose registration number and all the details were mentioned in the seal on the stamp paper. Thereafter, petitioner on 29.07.2013 presented three sale deeds to be registered in the office of the Sub Registrar Ist, Bareilly (respondent no.3) in respect of the same property, which was bequeathed upon the petitioner through the Power of Attorney dated 14.03.2004 by Shri Rakesh Chandra Sharma and Smt. Kunti Sharma. It was further argued that the first sale deed was in respect of area 108.693 square meters, second sale deed was in respect of area 108.3 Sq. meters and the third sale-deed was in respect of the area 107.02 sq meters and the total area of the above sale-deed is 324 sq. meters, for which area, the petitioner has been given Power of Attorney by the aforesaid couples.
Learned counsel for the petitioner further submits that on the presentation of the aforesaid sale-deed before the respondent No.3 to register them under the Registration Act, 1908 (hereinafter referred to as the Act), the respondent No.3 in an illegal manner and exceeding his jurisdiction has rejected the registration of all the aforesaid three sale-deeds vide order dated 13.08.2013, copy of the order is filed as Annexure No.4 to the writ petition. He further submits that the respondent no.3 has illegally rejected registration of the three sale-deed mainly on five points, the first point is in respect of power of attorney is attested by notary and in the notary, serial number and year is not mentioned. Regarding point no.2, it was mentioned that Khasra number and area and boundaries of the property is not mentioned, only plot nos. 26 and 27 is mentioned, the third point raised in the impugned order is in respect of the stamp duty paid in respect of the Power of Attorney, which is not paid by the executors Shri Rakesh Chandra Sharma and Smt.Kunti Sharma and in the fourth point, it is mentioned that Section 4 of the Power of Attorney Act is not applied in the case of petitioner and in the fifth point, it is mentioned that the Power of Attorney should be registered as per order dated 03.07.2013 of the Directorate General Registration, which is mentioned as Bahi No.1 and there is no evidence that the Power of Attorney is executed by Shri Rakesh Chandra Sharma and his wife and the Power of Attorney is not registered as the same is governed under Section 17 of the Registration Act.
Learned counsel for the petitioner submits that all the points taken in the impugned order are illegal, arbitrary and without application of mind and the respondent No.3 has exceeded his jurisdiction while passing the impugned order dated 13.08.2013 and the same is against the provisions of the Act.
In reply to the objection raised regarding point no.1 in the impugned order, learned counsel for the petitioner submits that the objection is illegal and baseless as the registration number of Advocate/Notary is given as 3132/2000 in the seal on the stamp paper in the Power of Attorney. In respect of point no.2, it is submitted that the said objection is also illegal in the Power of Attorney dated 14.03.2004, the details of the registered sale-deed dated 14.02.1989, through which the property was purchased by the executor of the Power of Attorney was duly registered before the Sub Registrar, Bareilly mentioning the details of the property including Khasra number, area etc. The third point raised by respondent No.3 in the impugned order is also illegal, baseless as the stamp was purchased by the petitioner, who is vendee in the aforesaid sale-deed, hence as per the law, the stamp can be purchased by the vendor or by the vendee.
In reply to the objection raised regarding fourth point in the impugned order by the respondent no.3 regarding Section 4 of the Power of Attorney Act, 1882, learned counsel for the petitioner submits that the original instrument creating the Power of Attorney has been submitted before respondent no.3 and the petitioner had followed the procedure prescribed under Section 4 of the Power of Attorney Act, 1882 and there is no illegality done by the petitioner.
Learned counsel for the petitioner further submits that as per the objection raised regarding point no.5 in the impugned order, it is submitted that as far as registration of documents of moveable or immovable property is concerned, it has to be dealt in accordance with the provisions of Sections 17 and 18 of the Act and as per Section 17 of the Act, there exists no such condition of registration of Power of Attorney, therefore, the objection raised by respondent no.3 is illegal and baseless.
Learned counsel for the petitioner further argued that the registration of the Power of Attorney is not mandatory as per Section 17 and his case is falling under section 18 of the Act, were in registration of the Power of Attorney is not mandatory and submitted that the reference of order dated 03.07.2013 of Directorate General Registration is against the provision of Registration Act and hence requirement for registering of Power of Attorney in view of order dated 03.07.2013 is per se illegal and the same is without jurisdiction and the grounds taken are baseless and illegal, this order is not applicable in the case of petitioner and respondent no.3 be directed to forthwith registered the three sale deed dated 29.07.2013.
Learned Senior Advocate Shri Shashi Nandan further argued that in the present case when the executor of the Power-of-attorney has no objection nor he has made any allegation against the petitioner regarding fraud or misrepresentation of fact or cheating, then the respondent no.3 must have no objection for registration of the three sale deed presented by the petitioner and has drawn our attention regarding applicability of Sections 32 and 33 of the Act. He further submitted that it is not mandatory that the Power-of-attorney can only be authenticated document when it is registered document and it is also not necessary that the actual executant of the Power-of-attorney should present the document for registration, once he has executed the Power-of-attorney in favour of the petitioner, he is legally competent to execute the sale deed and present the same for registration, unless the allegation of fraud is made against the petitioner.
In counter affidavit, learned Standing Counsel who represents the respondents submits that the impugned order dated 13.08.2013 was rightly passed by the respondent No.3 and there is no illegality in the order impugned and was passed as per the provision of Section 4 of the Power of Attorney Act and Sections 17, 32 and 33 of the Act.
In rejoinder affidavit, learned counsel for the petitioner denied the averments made in the counter affidavit.
We have heard learned counsel for the parties and perused the record, it is not disputed that the Power of Attorney dated 14.03.2004 is an unregistered document on the basis of which, the vendee has executed three sale-deeds dated 29.07.2013 and presented for registration before respondent no.3 in respect of the same property mentioned in the Power of Attorney. The ground of rejection taken in the impugned order was carefully examined by us and we find that point no.1 taken in the impugned order was in respect of the Power of Attorney is notarized and is attested by the Notary but serial number and year are not mentioned, whereas from perusal of the documents i.e. Power of Attorney, which is filed as Annexure No.2 to the writ petition, we find that the signatures on the documents was duly attested by the Notary/Advocate, whose registration number is given as 3132/2000 in the seal on the stamp paper in the power-of-attorney, which clearly shows the serial number and year exist in the document which does not create any doubt. The signature of the parties were duly attested, therefore, the objection regarding point no.1 in the impugned order have no force in our opinion.
From perusal of the Power of Attorney dated 14.03.2004, the detail of registered sale-deeds dated 14.02.1989 through which the property was purchased by the executor of Power-of-attorney who became owner of the plot nos.26 and 27 measuring area 324 sq. meters which was duly registered before the Sub Registrar, Bareilly at Zild No.2942, Page No.267, 268, Silsila No.5192, therefore, it could not be said that the executor of the Power of Attorney holder has not mentioned the correct description of the property. The objection regarding point no.2 in the impugned order has also no force in our opinion.
From perusal of the impugned order, the case of respondent itself in respect of point no.3 is that the stamp was purchased by the petitioner. In our opinion there is no force in the objection raised by respondent no.3 in the impugned order, the petitioner who is vendee in the sale deed and as per the Indian Stamp Act and Registration Act, the vendor or the vendee can purchased the stamp and persent the document for registration.
In respect of the objection raised regarding point no.4 in the impugned order, we have considered the arguments raised by the parties, and from perusal of the record, it is beyond doubt to say that the petitioner has not submitted the original instrument creating the Power of Attorney before respondent no.3, the petitioner has fairly submitted in para 14 of the writ petition that "whereas the petitioner has submitted the original instrument creating the power-of-attorney and the petitioner had followed the procedure prescribed as per the provision of Section 4 of the Power-of-attorney Act, 1882".
For adjudication of this point, Section 4 of the Power of Attorney Act, 1882 is quoted as under:-
"4. Deposit of original instruments, creating powers-of-attorney.-- (a) An instrument creating a power-of-attorney, its execution being verified by affidavit, statutory declaration or other sufficient evidence, may, with the affidavit or declaration, if any, be deposited in the High Court [or District Court] within the local limits of whose jurisdiction the instrument may be.
(b) A separate file of instruments so deposited shall be kept; and any person may search that file, and inspect every instrument so deposited, and a certified copy thereof shall be delivered out to him on request.
(c) A copy of an instrument so deposited may be presented at the office and may be stamped or marked as a certified copy, and, when so stamped or marked, shall become and be a certified copy.
(d) A certified copy of an instrument so deposited shall, without further proof, be sufficient evidence of the contents of the instrument and of the deposit thereof in the High Court [or District Court].
(e) The High Court may, from time to time, make rules for the purposes of this section, and prescribing, with the concurrence of the State Government, the fees to be taken under clauses (a), (b) and (c).
(g) This section applies to instruments creating powers-of-attorney executed either before or after this Act come into force."
Therefore, the objection regarding point no.4 in the impugned order has also no force in our opinion.
In respect of objection raised regarding point no.5 in the impugned order, we have no doubt that the Power of Attorney on the basis of which the petitioner wants to execute the three sale deeds are unregistered Power of Attorney and in our opinion there is no bar in the Act for execution of sale deed on the basis of unregistered power-of-attorney. The case of the petitioner falls under Section 18 of the Act and not under Section 17 of the Act and there is no hurdle that unregistered Power of Attorney holder cannot execute the sale-deed unless and until there is a case of fraud established against the executor and if no allegation of fraud is made the registration is held to be proper in the eye of law. Moreso, in the present case the Power-of-attorney holder was the executant of the document, he was also legally competent to present the document for registration. Object of Registration Act, 1908 is to prevent fraud and no allegation of fraud is made against the petitioner, therefore, he is entitled to present the document for registration as per law.
For adjudication of this point, Sections 17 and 18 of the Registration Act, 1908 are being quoted as under:-
"17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (l) applies to--
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v)[any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or
(vii) any grant of immovable property by [Government]; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or [(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.
(3) Authorities to adopt a son,executed after the 1st day of january ,1872 ,and not conferred by a will ,shall also be registered.
18. Documents of which registration is optional.--Any of the following documents may be registered under this Act, namely:--
(a) instruments (other than instruments of gift and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less then one hundred rupees, to or in immovable property;
(b) instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(c) leases of immovable property for any term not exceeding one year, and leases exempted under section 17;
1[(cc) instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;]
(d) instruments (other than wills) which purport or operate to create, declare, assign, limit or extinguish any right, title or interest to or in movable property;
(e) wills; and
(f) all other documents not required by section 17 to be registered."
In the impugned order, the respondent No.3 has not made out any allegation against the petitioner that the Power of Attorney was obtained by playing fraud or has obtained from Shri Rakesh Chandra Sharma and Smt. Kunti Sharma by suppression of material fact or by way of cheating and is trying to execute the sale-deed of the property in question with malafide intention. Nor any such complaint was ever made by Sri Rakesh Chandra Sharma and Smt. Kunti Sharma against the petitioner before respondent no.3. We are in agreement with the argument raised by Shir Shashi Nandan, Senior Advocate that the reference of order dated 03.07.2013 of Directorate General Registration given in the impugned order is not applicable in the case of the petitioner, in view of the provision contained under Section 18 of the Act. Therefore, the objection regarding point no.5 in the impugned order has also no force in our opinion.
We have considered all the five objections raised in the impugned order dated 13.08.2013 for not considering the registration of the documents presented by the petitioner and we are not satisfied with the finding given by the respondent no.3. Further, it is necessary to deal with the legal argument raised by Shri Shashi Nandan, Senior Advocate that when the executor of the Power-of-attorney has no objection nor he has made any allegation against the petitioner regarding fraud or misrepresentation of fact or cheating, then the respondent no.3 must have no objection for registration of the three sale deed presented by the petitioner and has drawn our attention regarding applicability of Sections 32 and 33 of the Act. He further submitted that it is not mandatory that the Power-of-attorney can only be authenticated document when it is registered document and it is also not necessary that the actual executant of the Power-of-attorney should present the document for registration, once he has executed the Power-of-attorney in favour of the petitioner, he is legally competent to execute the sale deed and present the same for registration, unless the allegation of fraud is made against the petitioner.
Section 32 deals with "Persons to present documents for registration" and Section 33 deals with "Power of Attorney recognizable for purposes of Section 32", which is in Part VI of the Registration Act, 1908, Section 32 and 33 of the Registration Act are quoted as under :-
"Section 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.
Section 32-A. 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.] Section 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 45 [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 46 [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 45 [India], a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, 47 [Indian] Consul or Vice-Consul, or representative 48 [***] 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. 49 [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.
From plain reading of Section 32 of the Act it speaks that who are those person to be legally entitled to present the instrument for registration before the proper registration office whether such registration be compulsory or optional. As per Section 32(c) of the Act, the agent, representatives or assigns of the persons mentioned in Section 32(a), can present the instrument for registration if they are duly authorized by the Power-of-attorney executed and authenticated.
It is also relevant to mention here that Section 32 refers to documents presented for registration by a holder of "Power-of-attorney" as per Section 32(c) and it therefore, follows that the procedure specified under Section 33 of the Act would be attracted where a document is presented by a person holding "Power of attorney" of the person as mentioned in Section 32(a) of the Act.
Therefore, from the above discussion and legal position, it is carved out that as per Section 32 of the Act, the documents required to be registered before the registering authority shall be presented by the person executing it, meaning thereby that the executor of the said document has to be present personally for registration of the said document before the registering officer i.e. Sub Registrar meaning thereby that the "Person executing" the document is the person who is the actual executor of the document, whose signature exist in the document, whether it is on behalf of the Power-of-attorney or personally presenting before the registering authority along with the documents for registration.
The document can be presented by the Principal who executes by means of agent. The Power-of-attorney holder can execute a document as agent for someone else and present the document for registration and get it registered. Whether the Power-of-attorney is a registered or unregistered document in both the case he is the actual executant of the documents and is entitled under Section 32(a) to present it for registration and get it registered.
In the facts of the present case, it is not disputed that the petitioner was given full authority by Rakesh Chandra Sharma and his wife Smt. Kunti Sharma under the unregistered Power-of-attorney dated 14.03.2004 to transfer the property and to execute the document before the authorities concerned. It is admitted fact that three sale deed which were presented before the respondent no.3 for registration by the petitioner in the name and on behalf of Rakesh Chandra Sharma and Smt. Kunti Sharma, therefore, for the purpose of registration of the said three sale deed as per Section 32(a) of the Registration Act, the petitioner is certainly the "person executing" the document and is the person to present the same for registration.
The only purpose of registering any document is to prevent fraud or misrepresentation and in the present case there is no allegation of fraud is made by the executor of Power-of-attorney namely Rakesh Chandra Sharma and Smt. Kunti Sharma against the petitioner. Therefore, the respondent no.3 is under obligation as per Section 32 of the Registration Act was only to satisfy himself that the documents was executed by the person by whom it is signed and could not see whether it is registered or unregistered Power-of-attorney if compliance of Section 4 of the Power-of-attorney Act is made, the Sub Registrar upon being so satisfied and upon being presented with the documents to be registered had to proceed with the registration of the said document.
This issue was also considered by the Calcutta High Court in the case of Goswami Malti Vahuji Maharaj Vs. Purushottam Lal Poddar, AIR 1984 Cal 297 and was pleased to observe in paragraph no. 13 of the judgment as under:-
"13. It is, therefore, clear that the presumption arising out of registration of a document can be rebutted by the party challenging its validity by adducing positive evidence proving the invalidity of the power-of-attorney or some other infirmity. The facts of the present case are that none of the co-owners had executed the partition deed personally. On behalf of both the co-sharers, their respective constituted attorneys executed the document. It has been repeatedly held by the Courts in India, including our Court, that where a person holds a power-of-attorney authorising him to execute the document on behalf of his principal and he executes the document, he is treated as the executant of the document for the purpose of registration. He is entitled to admit execution and to present the document for registration under Section 32(a) of the Act as the executant without production of any power-of-attorney as required under Section 33 of the Act."
The same view was taken by the Punjab and Haryana High Court in the case of Ram Gopal Vs. L. Mohan Lal and Others, AIR 1960 P & H 226, and was pleased to observe in paragraph nos.11 and 12 of the judgment as under:-
"11. In my view, however, on the facts of the present case this question does not at all arise for consideration. The sale deed has actually been executed by Dalip Singh himself as mukhtar-i-am of Smt. Surat Piari and not by Smt. Surat Piari herself, with the result that this sale deed was in actual fact presented to the Sub-Registrar by the executant himself and by an agent of the executant duly authorised by a power of attorney to present the document as contemplated by S. 32 of the Registration Act.
12. This vital aspect of the matter seems to have been completely lost sight of by the Court below. Section 32 of the Registration Act requires the document sought to be registered, to be presented, inter alia by "some person executing" it; this expression, in my view, means the person actually and in fact executing the document and it does not refer to the principal who may be considered to be executing the document by means of an agent. The basic principle underlying these provisions of the Registration Act is to get before the Sub-registrar the actual executant who in fact executes the document in question."
The Hon'ble Apex Court in the case of Rajni Tandaon Vs. Dulal Ranjan Gosh Dastidar and Another, 2009 (14) SCC 782, was pleased to consider most of the judgment of the High Court regarding similar issue and was pleased to observe that the object of registration is designed to guard against fraud by obtaining a contemporaneus publication and an unimpeachable record of each document. The instant case is one where no allegation of fraud has been raised. In view thereof the duty cast on the registering officer under Section 32 of the Act was only to satisfy himself that the document was executed by the person by whom it purports to have been signed. The registrar upon being so satisfied and upon being presented with a document to be registered had to proceed with the registration of the same reliance is placed in paragraph nos. 26, 27, 28, 29, 30, 31, 32 and 34 of the above judgment, which are quoted as under:-
"26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the "person executing" the document. The expression "person executing" used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, "person executing" as used in Section 32 (a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person hold a power of attorney which authorises him to execute a document as agent for some one else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under Section 32(a) to present it for registration and get it registered.
27. In view of the aforesaid legal position, we are of the considered view that the law laid down by the Andhra Pradesh High Court in D. Sardar Singh v. Seth Pissumal Harbhagwandas Bankers [AIR 1958 Andhra Pradesh 107] and the decision of Calcutta High Court in Abdus Samad v. Majitan Bibi & Anr. [AIR 1961 Calcutta 540] with regard to the interpretation of Section 32 and 33 of the Act is not the correct legal position.
28. In the facts of the present case, it is quite clear that Indra Kumar Halani, was given the full authority by Nandalal Tantia under the power of attorney to transfer the suit property and to execute the necessary document. It is an accepted position that the said document had been executed by Indra Kumar Halani in the name and on the behalf of Nandalal Tantia thereof. Therefore, for the purposes of registration office under Section 32 (a) of the Act Indra Kumar Halani is clearly the "person executing" the document. Therefore, it follows that the said sale deed which was executed and authenticated by Indra Kumar Halani could be presented for registration by him. We are of the considered view that Indra Kumar Halani acted in the aforesaid manner mandated under Section 32 (a) of the Act.
29. The object of registration is designed to guard against fraud by obtaining a contemporaneous publication and an unimpeachable record of each document. The instant case is one where no allegation of fraud has been raised. In view thereof the duty cast on the Registering Officer underSection 32 of the Act was only to satisfy himself that the document was executed by the person by whom it purports to have been signed. The Registrar upon being so satisfied and upon being presented with a document to be registered had to proceed with the registration of the same.
30. The High Court held that since the power of attorney was not registered document, Indra Kumar Halani, was not authorized to execute and present the sale deed before the Sub-Registrar for registration. It was, therefore, held by the High Court that no right and title had passed to the Plaintiff on the basis of the aforesaid sale deed.
31. The High Court also held that upon a conjoint reading ofSection 32, Section 33 (1) (a) and Section 34 of the Act, it was difficult to conclude that Indra Kumar Halani became the executant by himself on the basis of the power of attorney which was neither executed nor authenticated in the manner provided under Section 33 (1) (a) of the Act so as to enable him to present the sale deed for registration in compliance with the provisions of Section 32 (a) of the Act.
32. We do not agree with the said findings of the High Court.
33. Where a deed is executed by an agent for a principal and the same agent signs, appears and presents the deed or admits execution before the Registering Officer, that is not a case of presentation underSection 32 (c) of the Act. As mentioned earlier the provisions of Section 33 will come into play only in cases where presentation is in terms of Section 32 (c) of the Act. In other words, only in cases where the person(s) signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33 (1) (a) of the Act.
34. In the instant case, Indra Kumar Halani executed the document on behalf of Shri N. L. Tantia under the terms of this power of attorney. He then presented it for registration at the Registration Office and it was registered. The plea taken by the Respondents that in order to enable him to present the document it was necessary that he should hold a power of attorney authenticated before the Sub-Registrar under the provisions of Section 33 is thus not supported by the language of Section 32. The provisions of Section 33 therefore only apply where the person presenting a document is the general attorney of the person executing it, and not where it is presented for registration by the actual executant, even though he may have executed it as agent for some one else. In this case, the presentation is by the actual executant himself and is hence is entitled under Section 32 (a) to present it for registration and to get it registered.
In view of the legal position and discussion made above, it is not a case of the respondents that the executor of the sale-deed is not present and there is any allegation of fraud against the petitioner, therefore, the grounds taken in the impugned order in rejecting the registration of three sale-deeds, prima faice, as per the record appears to be illegal and without application of mind and the respondent no.3 has not considered the provisions contained under Section 4 of the Power of Attorney Act, 1882 and Sections 17, 18, 32 and 33 of the Indian Registration Act, 1908.
In view of the above, the impugned order dated 13.08.2013 passed by respondent no.3 is hereby quashed and the writ petition is allowed. The matter is remanded back to the respondent no.3 to pass an appropriate order for the registration of three sale-deed dated 29.07.2013 afresh in the light of the discussions made above and the law laid down by the Hon'ble Apex Court in the case of Rajni Tandon (supra) preferably within a period of two months from the date of production of certified copy of this order before him.
No order as to costs.
Order Date :- 19.05.2020 SFH/P.S. Parihar (Shamim Ahmed,J.) (Abhinava Upadhya,J.)