Kerala High Court
M/S Powerlink Builders Pvt. Ltd vs State Of Kerala on 12 March, 2025
Author: T.R. Ravi
Bench: T.R.Ravi
2025:KER:21145
WP(C) NO. 17197 OF 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 12TH DAY OF MARCH 2025 / 21ST PHALGUNA, 1946
WP(C) NO. 17197 OF 2023
PETITIONER:
M/S POWERLINK BUILDERS PVT. LTD
REPRESENTED BY ITS MANAGING DIRECTOR, SRI.PRADEEP
P., AGED 62 YEARS, S/O.LATE PRABHAKARA MENON, G-3,
AISWARYA, JAWAHAR NAGAR, KOWDIAR PO,
THIRUVANANTHAPURAM, PIN - 695003.
BY ADVS.
PIRAPPANCODE V.S.SUDHIR
AKASH S.
GIRISH KUMAR M S
DEVIKA JAYARAJ
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, DEPARTMENT OF
REGISTRATION, SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695001.
2 INSPECTOR GENERAL OF REGISTRATION,
DEPARTMENT OF REGISTRATION, VANCHIYOOR
THIRUVANANTHAPURAM, PIN - 695035.
3 THE SUB REGISTRAR
SASTHAMANGALAM, THIRUVANANTHAPURAM,
PIN - 695010.
2025:KER:21145
WP(C) NO. 17197 OF 2023
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4 ADDL.R4. HILARY FELSON
S/O.FRANCIS, RESIDING AT HILARY HOUSE,
KESTON TOWERS, A-5, KOWDIAR,
THIRUVANANTHAPURAM - 695 003 [IS IMPLEADED AS PER
ORDER DATED 24.10.2024 IN I.A.1/2024 IN
WP(C)17197/2023].
BY ADVS.
P.P.BIJU
SAFNA P.S.
SMT. DEEPA NARAYANAN. SR. GP.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:21145
WP(C) NO. 17197 OF 2023
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T.R. RAVI, J.
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W.P.(C) No.17197 of 2023
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Dated this the 12th day of March, 2025
JUDGMENT
The writ petition has been filed praying for a direction to respondents 2 and 3 to register the sale deed presented by the petitioner, on the strength of Ext.P2 power of attorney, without insisting on the affixture of the passport size photograph and the fingerprint of the person who had executed the aforesaid power of attorney in favour of the petitioner and for a declaration that in terms of Section 32A of the Registration Act, the passport size photograph and fingerprint of the person executing the document on the strength of the power of attorney alone are required to be affixed in the sale deed.
2. The petitioner is a builder who is holding Ext.P2 power of attorney executed by the owner of the properties. Ext.P2 has been executed as required under 2025:KER:21145 WP(C) NO. 17197 OF 2023 4 Ext.P1 Joint Development Agreement entered into between the petitioner and the owner of the property. The case of the petitioner is that the power of attorney is an irrevocable general power of attorney coupled with interest and the effect of such a power of attorney is that the power holder becomes the owner of the extent of land over which he has such interest. It is hence contended that a sale deed executed with respect to the undivided share in the land, upto such extent over which he has interest under the power of attorney, does not require the fingerprint and the photograph of the owner of the property. There are inter se disputes between the petitioner and the owner regarding their obligations under the agreements entered into between them. It is not necessary to go into such disputes in this writ petition since the only question is the effect of Section 32A of the Registration Act. Sections 32 and 32A of the Registration Act read thus:-
"S.32. Persons to present documents for registration.
- Except in the cases mentioned in sections 31, 88 2025:KER:21145 WP(C) NO. 17197 OF 2023 5 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 assignee of such a person, or
(c) by the agent of such a person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.
S.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."
3. The question whether the photograph and fingerprint of the owner has to be affixed has come up before 2025:KER:21145 WP(C) NO. 17197 OF 2023 6 this Court in several earlier proceedings. In W.P.(C) No.27975 of 2014, a learned Single Judge of this Court in the judgment dated 27.11.2015 held that the very provision under Section 32A has been inserted to ensure that the documents are registered by proper buyers and proper sellers. As regards the proviso to Section 32A, the Court held that it takes care of a totally different situation than the main part and deals with transfer of ownership of immovable property. The Court held that a power of attorney holder, who is executing the document is not the buyer or the seller and hence incorporating a provision in the statute to show the identity of the buyer and the seller in the registered instrument cannot be termed either arbitrary or unreasonable. The Court further held that the incorporation of the provision is made consciously to avoid fraudulent transfers and benami transactions. In Joseph George v. State of Kerala and Others [2017 (4) KHC 948] another learned Judge of this Court took a similar view and held that even if an instrument 2025:KER:21145 WP(C) NO. 17197 OF 2023 7 is presented through a power of attorney holder, such power of attorney holder is bound to comply with S.32A of the Act. In W.P.(C) No.18650 of 2007 another learned Single Judge had also reiterated the position while dealing with Rule 30A of the Registration Rules which again states that the Registering Officer shall not accept any document for registration unless it is affixed with the passport size photograph and the impression/impressions of the left thumb or any of the fingers in the absence of left thumb of every person presenting the document at the proper registration office. In Jobins Jose v. State of Kerala and Others [W.P.(C) No.38062 of 2024], I had occasion to consider a contention whether a registered sale deed through a power of attorney holder can be registered without insisting for any thumb impression of the principal. After referring to the decisions in Joseph George (Supra) and other cases this Court had taken a view that the requirements of Section 32A has to be complied with even when the executant of the document holder is the power of 2025:KER:21145 WP(C) NO. 17197 OF 2023 8 attorney holder.
4. The counsel for the petitioner relied on the decision of Hon'ble High Court of Delhi in Ramesh Chand Vs. Suresh Chand and Another (R.F.A.No.358/2000) to submit that there is a difference when it comes to a power of attorney which is irrevocable since there is an interest transferred in favour of the attorney holder. It is submitted that under the power of attorney, the attorney becomes the executant not only as an agent but also in his capacity as a deemed owner. It is submitted that irrevocable power of attorney will hold good even after the death of the principal and hence Section 32A cannot be applied in the case of irrevocable power of attorney. In effect the argument is that an exception is to be carved out on Section 32A with respect to an irrevocable power of attorney.
5. I do not think such a procedure can be followed while interpreting a statutory provision. The petitioner has not challenged Section 32A in the writ petition.
2025:KER:21145 WP(C) NO. 17197 OF 2023 9 The prayer is only with regard to the proviso to Section 32A. The petitioner seeks to read down the section so as to make it applicable only in cases where the document is not executed by a power of attorney holder under an irrevocable power of attorney. It is settled law that unless there is an ambiguity in a statutory provision, no interpretative process to restrict its application is permissible. Section 32A does not have any ambiguity. The Section very clearly says about the requirement of affixing the photograph and thumb impression when it comes to transfer of immovable property. I do not find any reason to take a different view than what has already been taken in the decisions aforesaid.
The writ petition fails and is dismissed.
Sd/-
T.R.RAVI JUDGE mpm 2025:KER:21145 WP(C) NO. 17197 OF 2023 10 APPENDIX OF WP(C) 17197/2023 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE JOINT DEVELOPMENT AGREEMENT DATED 10.07.2014 EXECUTED BY THE PETITIONER AND THE 4TH RESPONDENT. Exhibit P2 TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE HILLARY FELSON IN FAVOUR OF THE PETITIONER DATED 23.07.2014. Exhibit P3 TRUE COPY OF THE SUPPLEMENTARY JOINT DEVELOPMENT AGREEMENT DATED 23.10.2020 EXECUTED BETWEEN THE 4TH RESPONDENT AND THE PETITIONER.
Exhibit P4 TRUE COPY OF THE AGREEMENT FOR SALE DATED 03.10.2022, EXECUTED BY THE PETITIONER, IN HIS CAPACITY AS THE PROMOTER AND POWER OF ATTORNEY HOLDER OF THE SELLER IN FAVOUR OF ONE MR.DILIP KUMAR P. Exhibit P5 TRUE COPY OF THE CIRCULAR NO.10030/E2/07/TAXES DATED 08.05.2007. Exhibit P6 TRUE COPY OF THE ORDER DATED 18.11.2022 IN A.R.162/2022 OF THIS HONOURABLE COURT. Exhibit P7 TRUE COPY OF THE ORDER DATED 08.02.2023 IN CMA ARB.NO.325/2022 OF THE ADDITIONAL DISTRICT COURT-V, THIRUVANANTHAPURAM. Exhibit P8 TRUE COPY OF THE ORDER DATED 28.02.2023 OF THE K-RERA IN COMPLAINT NO.217/2022. Exhibit P9 TRUE COPY OF THE INTERIM APPLICATION DATED 20.07.2023 IN ARBITRATION CASE NO.162/2022.
2025:KER:21145 WP(C) NO. 17197 OF 2023 11 Exhibit P10 TRUE COPY OF THE AWARD DATED 07.08.2023 PASSED BY THE ARBITRATOR IN ARB.CASE NO.162/2022.
Exhibit P11 TRUE COPY OF THE CASE STATUS, PERTAINING TO C.S.NO.87/2023 NOW PENDING BEFORE THE LEARNED COMMERCIAL COURT-2, THIRUVANANTHAPURAM.
Exhibit P12 TRUE COPY OF THE NOTICE DATED 26.06.2024 ISSUED BY THE 4TH RESPONDENT.
Exhibit P13 TRUE COPY OF THE REPLY DATED 27.06.2024 SENT BY THE PETITIONER TO EXT.P12 NOTICE. Exhibit P14 TRUE COPY OF THE LETTER DATED 27.06.2024 ADDRESSED TO THE 3RD RESPONDENT.
Exhibit P15 TRUE COPY OF THE JUDGMENT DATED 11.07.2019 OF THIS HON'BLE COURT IN W.P. (C)NO.9212/2019.
Exhibit P16 TRUE COPY OF THE PLAINT IN O.S.NO.209/2024 ON THE FILE OF THE SUB COURT, THIRUVANANTHAPURAM, WITHOUT ITS ENCLOSURES.
Exhibit P16(a) TRUE COPY OF THE ORDER DATED 07.09.2024 OF THE ADDITIONAL SUB COURT-II, THIRUVANANTHAPURAM IN I.A.NO.01/2024 IN O.S.NO.213/2024.
Exhibit P17 TRUE COPY OF THE O.S.NO.197/2024 FILED BY THE 4TH RESPONDENT BEFORE THE SUB COURT, THIRUVANANTHAPURAM.
Exhibit P18 TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL NO.3642-3646 OF 2018 DATED 29.08.2024.
2025:KER:21145 WP(C) NO. 17197 OF 2023 12 Exhibit P19 TRUE COPY OF THE JUDGMENT DATED 29.07.2009 OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO.4671/2004.
Exhibit P20 TRUE COPY OF THE DECISION OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO.5797 OF 2009 REPORTED IN 2022 LIVE LAW (SC) 98. Exhibit P21 TRUE COPY OF THE SALE DEED DATED 20.07.2024 EXECUTED BY THE APPLICANT IN FAVOUR OF FEROZ KHAN A.N. AND ZEENA FEROZ, WITH RESPECT TO FLAT NO.4A.
Exhibit P22 TRUE COPY OF THE ENDORSEMENT EVIDENCING PAYMENT OF THE STAMP DUTY AMOUNTING TO RS.2,80,200/-, CONTAINED IN 1ST PAGE OF THE SALE DEED.
Exhibit P23 TRUE COPY OF THE AGREEMENT FOR SALE EXECUTED BETWEEN THE PETITIONER AND MRS.SUVARNALATHA CHANDRASENAN ON 27.06.2022.
Exhibit P24 TRUE COPY OF THE AGREEMENT FOR SALE EXECUTED BETWEEN THE PETITIONER AND MR.THOMAS SKARIA ON 08.11.2022.
Exhibit P25 TRUE COPY OF THE SALE DEED EXECUTED AND REGISTERED BY ME ON 17.04.2024 IN FAVOUR OF SRI.A. VENU KUMAR AND SMT.RUBI VENU KUMAR.
EXHIBIT P26 TRUE COPY OF THE JUDGMENT DATED 09.04.2012 OF THE HON'BLE HIGH COURT OF DELHI IN RFA 358/2000.
EXHIBIT P27 TRUE COPY OF THE DECISION IN SETH LOON KARAN SETHIYA VS IVAN E. JOHN AND ORS, DOWNLOADED FROM INDIAN KANOON, -
HTTP://INDIANKANOON.ORG/DOC/198881/, 2025:KER:21145 WP(C) NO. 17197 OF 2023 13 WHICH IS EQUIVALENT CITATION IN AIR 1969 S.C.73.
EXHIBIT P28 TRUE COPY OF THE JUDGMENT DATED 09.11.2022 OF THE HON'BLE SUPREME COURT IN SLP(C) NO.6354-6356 OF 2020.
EXHIBIT P29 TRUE COPY OF THE AGREEMENT FOR SALE DATED 04.01.2022 EXECUTED BY THE PETITIONER AND THE 4TH RESPONDENT.
EXHIBIT P30 TRUE COPY OF THE JUDGMENT DATED 26.02.2024 OF THE BOMBAY HIGH COURT IN SECOND APPEAL (STAMP) NO.21842 OF 2023. RESPONDENTS' EXHIBITS EXHIBIT R3(A) INSTRUCTIONS HAVING NO.10030/E2/07 DATED 08.05.2007 ISSUED BY GOVERNMENT OF KERALA.
EXHIBIT R4(A) TRUE COPY OF THE ORDER IN IA 1/2023 IN CS 87/2023 DATED 22.05.2024 PASSED BY THE SECOND ADDITIONAL COMMERCIAL COURT, THIRUVANANTHAPURAM.
EXHIBIT R4(B) TRUE COPY OF THE NOTICE DATED 26.06.2024 SENT BY THE 4TH RESPONDENT TO THE PETITIONER.
EXHIBIT R4(C) TRUE COPY OF THE REPLY DATED 27.06.2024 SENT BY THE PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT R4(D) TRUE COPY OF THE MEMORANDUM OF PLAINT DATED 24.08.2024 TO THE IN OS NO.197/2024 OF SUBORDINATE JUDGE'S COURT, THIRUVANANTHAPURAM.
2025:KER:21145 WP(C) NO. 17197 OF 2023 14 EXHIBIT P4(E) TRUE COPY OF THE JUDGMENT DATED 02.08.2024 IN WP(C) NO.17197/2023 PASSED BY THIS HON'BLE COURT.
EXHIBIT P4(F) TRUE COPY OF THE COMPLAINT NO.82/2024 FILED BY KIRAN C L BEFORE THE RERA, THIRUVANANTHAPURAM.