No Adjudication Needed If Power of Attorney is Sufficiently Stamped

Saji Koduvath, Advocate, Kottayam.


It is sad, almost in all States in India, the authorities, especially that of Revenue Department, require people to ‘adjudicate’ documents executed outside India, even if it is clear that it is properly stamped. One among such documents is power of attorney.

Provisions of the Registration Act.

Section 31 of The Indian Stamp Act, 1899 speaks as under:

  • “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.”

If proper stamp duty Paid no Requirement of Adjudication

The Madras High Court, in Manoharan v. Velu, (1998) III M.L.J 272, held that a power of attorney executed on proper stamp need not be produced before the Collector for the purpose of certification or adjudication that the full duty with which it is chargeable has been paid. It was observed Manoharan v. Velu as under:

  • “5. This power document satisfies the definition ‘power of attorney’ as defined in Sub-sec.(21) of Sec.2 of the Act. It is not in dispute that this power document is engrossed on Indian Non-Judicial stamp paper of the value of Rs.5, which is the proper stamp duty, payable on that instrument. On these facts, the question that arises for consideration is whether the said power document should be  necessarily produced before the Collector to certify by endorsement on such instrument that the full duty with which it is chargeable has been paid or not. To decide this question, the court has to necessarily look into Secs.31 and 32 of the Act. Sec.32 of the Act starts with the following words’ “When an instrument brought to the Collector under Sec.31, is etc., etc. Therefore, if the provisions of Sec.32 of the Act have to be applied, then the instrument should have been necessarily produced under the provisions of Sec.31 of the Act before the Collector concerned. Sec.31 of the Act enable a person bringing to the Collector any instrument whether executed or not and whether previously stamped or not, to have his opinion as to the duty (if any) with which it is chargeable and thereupon the Collector on payment of a fee, shall determine the duty (if any) with which, in his judgment the instrument is chargeable. Sub-sec.(2) of Sec.31 of the Act deals with the power of the Collector to collect materials, in order to determine the stamp duty, if any, chargeable on the instrument produced before him.
  • Therefore, it is clear that only in a case where the opinion of the Collector is sought for regarding the payment of the proper stamp duty, the Collector gets the power to proceed in accordance with Sec.31 of the Act, Once the Collector gets the jurisdiction under Sec.31 of the Act in the manner I have stated above, then only Sec.32 of the Act gets attracted.
  • 6. Since in this case, the instrument has been charged with the proper stamp duty payable under the Act and since it has not been produced by the power of Attorney Agent of the deceased second plaintiff before the  Collector, the Collector does not get any jurisdiction at all to go into that question. The argument the learned counsel for the respondents that the requirement of producing such an instrument before the Collector is mandatory, (Where the instrument had been executed outside India) cannot be sustained. The Proviso to the main section of the Act cannot alter the scope of the very section itself. To attract clause (b) of the Proviso to Sub-sec.(3) of Sec.32 of the Act necessarily the document whether it is executed in India or outside India should have been produced before the Collector under Sec.31(1) of the Act. So long as the document was not produced before the Collector, under Sec.31(1) of the Act seeking his opinion on proper stamp duty chargeable, there is no question of relying upon or referring to the Proviso to Sub- sec.(3) of Sec.32 of the Act.”

Kerala High Court, quoting above portions from Manoharan v. Velu, it was held in Anitha Rajan v. Revenue Divisional OfficerAIR 2010 Ker153, that it was not necessary to produce the power of attorney, even if executed outside India, for adjudication if it was sufficiently stamped. The High Court definitely held further that the Village Officer, Nattika Village erred in directing the petitioner to produce the (sufficiently stamped) original power of attorney before the Revenue Divisional Officer for adjudication under sections 31 and 32 of the Kerala Stamp Act, 1959.

Read in this Cluster (Click on the Topic):

Book No. 1.   Handbook of a Civil Lawyer

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

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