notary attested power of attorney – Saji Koduvath Associates

Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed

Should it necessarily be a Registered One? No

Saji Koduvath, Advocate, Kottayam.

Introduction

Sec. 33 of the Registration Act will NOT be attracted if the the power of attorney himself executes the document; and Sec. 33 will be attracted only when the document is “executed” by one (including a power of attorney) and “presented” through another holding “power of attorney”.

Power of Attorney Concepts in Law

In State of Rajasthan v. Basant Nehata, 2005-12 SCC 77, our Apex Court made clear the Concepts on a Power of Attorney. They are the following –

It is governed by Chapter X of the Contract Act. It is also governed by the the Powers-of-Attorney Act.
A power of attorney is, as is well known, a document of convenience.
By a power of attorney, an agent is formally appointed to act for the principal.
It is an authority upon another person; but, subject to the limitations contained in the said deed.
The agent derives a right to use the principal’s name. The donee (agent) only acts in place of the donor .
All acts, deeds and things done by done by the agent shall be read as if done by the donor.
Except in cases where power of attorney is coupled with interest, it is revocable.
The agent cannot use the power of attorney for his own benefit.
He acts in a fiduciary capacity.
Any act of infidelity or breach of trust is a matter between the donor and the donee.

State of Rajasthan v. Basant Nehata, 2005-12 SCC 77, laid down as under”

“A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.”

Document can be “Presented” by Purchaser or Donee also

It is noteworthy that the document can be presented by the purchaser/vendee or donee also, as Sec. 32 directs that the document can be presented by “some person executing or claiming under the same“.

Section 33 of the Registration Act lays down that the Power-of-Attorney recognisable for purposes of Section 32 is ‘a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides’ (if the principal at the time of executing the power-of-attorney resides in any part of India).

Nevertheless, the expression ‘person executing’ in Section 32 is the person who actually signs or marks the document.
If the document itself is signed by the agent (a power of attorney holder), he is entitled to present the deed for registration (without a Power of Attorney executed before and authenticated by the Registrar or Sub-Registrar).
In other words, ‘a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar’ is required in the following circumstance-
- that is, the owner of the property (or his power of attorney) himself signs the deed and a power of attorney is given to another, for registering the deed.

Presumption on PoA authenticated by a Notary, or any Court, etc.

Section 85 of the Indian Evidence Act, 1872 gives ‘presumption’ on a power of attorney as given under:

85. Presumption as to powers-of-attorney.—The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.

Rajni Tandon v. Dulal Ranjan Ghosh Dastidar

The Supreme Court elucidated the matter in Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2009) 14 SCC 782 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 someone 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.
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 under Section 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.”

The Apex Court upheld the view in the following decisions, placed by the appellants:

Motilal v. Ganga Bai [AIR 1915 Nag 18],
Gopeswar Pyne v. Hem Chandra Bose [AIR 1920 Cal 316],
Mt. Aisha Bibi v. Chhajju Mal & Ors. [AIR 1924 All 148],
Sultan Ahmad Khan v. Sirajul Haque [AIR 1938 All 170],
Ram Gopal v. L. Mohan Lal [AIR 1960 Punj 226]
Sami (Goswami) Malti Vahuji Maharaj v. Purushottam Lal Poddar [AIR 1984 Cal 297].

The Apex Court observed that the interpretation of Section 32 and 33 in the following decisions was not the correct legal position.

D. Sardar Singh v. Seth Pissumal Harbhagwandas Bankers [AIR 1958 AP 107]
Abdus Samad vs. Majitan Bibi [AIR 1961 Cal 540].

The Supreme Court decision in Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2009) 14 SCC 782, is followed in the cases below:

Beladevi Vs. Ramjanak, 2019-4 CGLJ 105;
C. P. Ashok Kumar Vs. Sub Registrar Thrithala, 2018-4 KerLT 1186;
Matadin Surajmal Rajoria Vs. Ramdwar Mahavir Pande, 2018-5 AIRBomR 739;
Dr. Ashok Mishra Vs. Ram Niwas, 2018-10 ADJ 297, 2019-142 RD 394;
Asset. Reconstruction Company (India) Limited Vs. The Inspector General Of Registration, AIR 2016 Mad 123;
Budhi Singh Vs. Ashok Kumar, 2016-2 CIVCC 80, 2015-3 HLR 1899;
International Asset Reconstruction Company Pvt Ltd Vs. State of Punjab, AIR 2013 P&H 216;
Raji Maheshkumar Vs. State of Gujarat, AIR 2013 Guj 9.
Sardar Paramjeet Singh v. Prabhat Kumar Shrivastav, (1996) MPLJ 339, (Madhya Pradesh).

Amar Nath v. Gian Chand

Sec. 33 of the Registration Act states that the ‘power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar’ is necessary for presenting the document for registration ‘if the principal at the time of executing the power-of-attorney resides in any part of India’.

“24. The words “executed and authenticated in manner hereinafter mentioned” in Section 32(c) would mean the procedure specified in Section 33. This is clear from the opening words of Section 33 which reads “for the purposes of Section 32, the following power of attorney shall alone be recognised”. Section 32 refers to documents presented for registration by a holder of “power of attorney” in clause (c) and it therefore follows that the procedure specified under Section 33 would be attracted where a document is presented by a person holding “powers of attorney” of the persons mentioned in clause (a) of Section 32.
25. The aforesaid position makes it explicitly clear that Section 32 of the Act requires the documents sought to be registered, to be presented, inter alia by the person executing it. In other words, the said expression requires presence of the actual person executing the document. The basic principle underlying this provision of the Act is to get before the Sub-Registrar the actual executant who, in fact, executes the document in question. In fact, the ratio of the decision in Ram Gopal [AIR 1960 Punj 226] has laid down a similar proposition on the conjoint reading of Section 32 and Section 33 of the Act and after referring to all the judgments noted hereinbefore. Same view has been expressed earlier by the Bombay High Court in Ratilal Nathubhai v. Rasiklal Maganlal [AIR 1950 Bom 326].
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 holds a power of attorney which authorises him to execute a document as agent for someone 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.”
Note: Amar Nath v. Gian Chand, Mad LJ 2022-2 69, 2022-2 SCALE 521, 2022-2 RCR(Civil) 96 is referred to in the split verdivt in Manik Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37.

Provisions of the Registration Act.

Sections 17, 32 and 33 of the Registration Act are the relevant provisions. They read as under:

“Section 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.

Section 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;
[(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.”

“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 recognisable for purposes of section 32.— (1) For the purposes of section 32, the following powers-of-attorney shall alone be recognised, 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.

Adjudication as to Proper Stamp by Revenue Authorities

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.

Kerala High Court, relying on Manoharan v. Velu, it was held in Anitha Rajan v. Revenue Divisional Officer, AIR 2010 Ker 153, 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.

See Blog: (CLICK): No Adjudication Needed If Power of Attorney is Sufficiently Stamped

Document Executed out of India – can be registered

A document executed outside India can be registered in India. Sec. 23 of the Registration Act allows it.

Note – Power of attorney is not a compulsorily registrable document.

Time Limit for Registration of Documents (executed within India)– Four Months

Time limit for registration of documents before a Sub-Registrar is four months under section 23 of the Registration Act, 1908. Time is calculated from the date of execution (signature) of the deed.

23. Time for presenting documents. Subject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:
Provided that a copy a of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final.

Registration of Documents executed out of India – Four Months from Receipt in India

The period of four months for registration (stated above) will be counted from the date of receipt of that document in India, as per Sec. 26 of the Registration Act.

Sec. 23A, 24, 25 and 26 of the Registration Act are relevant. They read as under:
23A. Re-registration of certain documents. Notwithstanding anything to the contrary contained in this Act, if in any case a document requiring registration has been accepted for registration by a Registrar or Sub-Registrar from a person not duly empowered to present the same, and has been registered, any person claiming under such document may, within four months form his first becoming aware that the registration of such document is invalid, present such document or cause the same to be presented, in accordance with the provisions of Part VI for re-registration in the office of the Registrar of the district in which the document was originally registered; and upon the Registrar being satisfied that the document was so accepted for registration from a person not duly empowered to present the same, he shall proceed to the re-registration of the document as if it has not been previously registered, and as if such presentation for re-registration was a presentation for registration made within the time allowed therefore under Part IV, and all the provisions of this Act, as to registration of documents, shall apply to such re-registration; and such document, if duly re-registered in accordance with the provisions of this section, shall be deemed to have been duly registered for all purposes from the date of its original registration
24. Documents executed by several persons at different times. Where there are several persons executing a document at different times, such document may be presented for registration and re-registration within four months from the date of each execution.
25. Provision where delay in presentation is unavoidable. (1) If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in India is not presented for registration till after the expiration of the time hereinbefore prescribed in that behalf, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration-fee, such document shall be accepted for registration.
(2) Any application for such direction may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.
“26. Documents executed out of India. When a document purporting to have been executed by all or any of the parties out of India is not presented for registration till after the expiration of the time hereinbefore prescribed in that behalf, the registering officer, if satisfied—
(a) that the instrument was so executed, and
(b) that it has been presented for registration within four months after its arrival in India,
may, on payment of the proper registration-fee accept such document for registration.”

Registration with Penalty – within Eight Months

After four months, document can be presented within another four months to the District Registrar.

The District Registrar may impose a penalty up to a maximum of ten times the registration fees and grant permission to Sub-Registrar to register the document (as per Sec. 25 – quoted above).

Registration After Eight Months

After eight months a document can be registered if impediments like court- injunction (Raj Kumar Dey v. Tarapada Dey, AIR 1987 SC 2195), bona fide delay in collecting stamps (Nestor Builders And Developers v. State Of Maharashtra,24 June, 2015, (S.C. Dharmadhikari, J.) etc.

In Unitech Ltd. v. Telangana State Industrial Infrastructure Corpn., 2021 SCC OnLine SC 99, it is held by our Apex Court as under:

“TSIIC and the State of Telangana have brought to our notice that the Development Agreement, on the basis of which Unitech has sought to avail its contractual remedy has not been registered or assessed to stamp duty. Under Article 3.1 of the Development Agreement, the obligation of paying registration fees and stamp duty is on Unitech. It is well-settled law that the Stamp Act is a fiscal measure enacted to secure the revenue for the State, and not to arm the opponent with a weapon of technicality. Unitech’s claim to compensatory payment cannot be defeated on the sole ground of the payment of stamp duty. The Development Agreement shall have to be impounded and be presented to the Chief Controlling Revenue Authority in the State of Telangana for assessment of stamp duty and to the competent authority for registration. The assessment shall be completed within thirty days. The appropriate stamp duty and registration charges liable to be paid in terms of the determination shall be paid by TSIIC and be deducted from the refund due and payable to Unitech under the terms of this order.”

End-words – There is no no meaning in ‘complaining’, as-per-law

From experience we see – when one points out the ‘law’ to the officers of the Registration Department in India, most of them get irritated. The reasons are evident; and the root-cause is known to everybody who approached a registration office for registration of a deed. The top executive machinery wink at their illegal deeds. If the registration proceedings are simplified, the illegalities will be stopped within a day. The stamp-duty for various documents are to be made reasonable also; and one should not be ‘compelled’ to make false statement as to ‘consideration’ in the documents. It is definite – the power-bodies will not do it. As in other fields, the rap has to begin from the ‘top’. (When the matters are clear to everybody – police, vigilance and even courts – mark, there is no no meaning in ‘complaining’, as-per-law!)

Should a Power of Attorney be Compulsorily Registered

Those Power of Attorneys that fall under clause (b) of Sec. 17(1) Registration Act alone requires registration. Sec. 17(1)(b) reads as under:

“(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”

Power of Attorney “coupled with interest”

A Power of Attorney that is “coupled with interest” requires registration.

E.g., if the power of attorney is issued by the owner after obtaining entire sale consideration from the holder of power of attorney, and if (in fact) it set-forth a “sale of property”, it falls under the category ‘power of attorney coupled with interest’. (See as to ‘General-Power-of-Attorney-sale’: Suraj Lamp and Industries P. Limited v. State of Haryana, (2012) 1 SCC 656).

Kerala Amendment to Sec. 17(1)(g)

Registration Act, Kerala Amendment, Sec. 17(1)(g), requires registration for development, transfer etc. relating to immovable property, except for exempted categories. (It is introduced because it is not a general rule that all power of attorneys for ‘transfer‘ must have been registered.) Sec. 17(1)(g) reads as under:

(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.
See: Cherryl Ann Joy v. Sub Registrar, Udumbanchola, Idukki District, ILR 2018-3 Ker 540.

But, in Lachchhiram v Imrati, 2017-2 RN 117, it is held that for registration of a deed, registered power of attorney is needed (relying on – obiter – Manjunath Anandappa Urf Shivappa Hanasi v. Tammanasa, (2003)10 SCC 390).

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit

Jojy George Koduvath, Kottayam.

Introduction

Civil Procedure Code (CPC) and Civil Rules of Practice (CRP) are the important procedural laws in the Civil field. CRP is formulated by each High Court in the respective State, under Art. 227 of the Constitution. There is subtle difference between the CPC and CRP with regard to the provisions as to signing pleadings through an agent. Though CPC does not specifically requires ‘permission of the court’, CRP requires it apparently.

“Any person duly authorised” Can sign Pleadings, under Order VI, Rule 14

The ‘signing of pleadings’ is governed by Order VI Rule 14 CPC. As per this rule, Pleading is not ‘required to be signed or verified’ by “a party” itself. It reads as under:

14. Pleading to be signed.- Every pleading shall be signed by the party and his pleader (if any):
Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.

Under Order VI Rule 14, production of a power of attorney or written authorisation is not compulsory; but, it must be shown, to the satisfaction of the court, that the agent has sufficient authority to represent. Even an oral authorisation will be sufficient.

CRP Requires Permission

But, CRP in various States manifest that the permission must be obtained from the Court where any agent, other than an advocate, appears on behalf of a party. For example, Rule 22 of the Kerala CRP reads as under:

“22. Party appearing by agent.
(1) When a party appears by an agent other than a pleader, the agent shall, before making any appearance or application, or doing any act before the Court, file in Court the power of attorney, or other written authority thereunto authorising him or a properly authenticated copy thereof: or, in the case of an agent carrying on a trade or business on behalf of a party without a written authority, an affidavit stating the residence of his principal, the trade or business carried on by the agent on his behalf and the connection of the same with the subject-matter of the suit, and that no other agent is expressly authorised to make such appearance, or application or do such act.
(2) The Judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party; and until the said permission is granted, no appearance, application or act of the agent shall be recognised by the Court.

“23. Signing or verification by agent –
If any proceeding which under any provision of law or these rules, is required to be signed or verified by a party, is signed or verified by any other person on his behalf, a written authority in this behalf signed by the party, except in the case of persons under disability, shall be filed in Court, with an affidavit by such person verifying the signature of the party, and stating the reasons for the inability of the party to sign or verify the proceeding.”

Rule 22 requires Power of Attorney and Permission only when the agent appointed is authorised to “appear” in court .

The first limb of Rule 23 is not attracted with respect to signing pleadings inasmuch as Order VI Rule 14 CPC does not require signing and verifying by the party (the first limb of Rule 23 reads: “if any proceeding which under any provision of law or these rules, is required to be signed or verified by a party”).

CRP requires PoA and Permission only when agent is authorised to “appear”

In Janab Syed Kazim Sahab v. Janab Sayeed Bakaram Sahab: (1990 (1) An. WR 256), the AP High Court observed as under:

“From the provisions made in rule 32 (corresponding to Rule 22 of Kerala Rules) it is manifest that the rule envisages permission to be obtained from the Court in a case where any agent, other than an advocate, appears on behalf of a party. It is not in dispute that the GPA has been annexed under Item 11 of the list of documents, to the plaint. Further an advocate – not the power of attorney holder – appeared for the 2nd plaintiff to act or argue on his behalf. Therefore, Rule 32 has no place. Consequently permission from the Court is not postulated under such circumstances.”

It is pointed out by the AP High Court (DB) in Natubhai Chotabhai Patel v. Patnam Shakuntala: 2012-4 ALD 553: 2013 (4) ALT 24, (i) that this Rule is introduced to discourage the parties to appoint an agent, other than the legal practitioners, to ‘represent’ them in Courts; (ii) that the filing of a PoA or an affidavit was not mandatory if the authorisation was only to sign pleadings and/or to give evidence as a witness; and (iii) that this Rule applies only when the authorisation includes advancing arguments by the duly authorised agent “instead of an advocate”. (It is referred to in Aruna Sagar v. Shrushti Infrastructure Corporation, 2016-2 ALD 403; 2016-5 ALT 133.)

The Division Bench of the AP High Court held in Secretary to Government of India, Ministry of Defence, New Delhi vs. Indira Devi, AIR 2003 AP 329, as under:

“In order to make sure that the party authorised the agent to represent him in the matter, an affidavit is necessary. But in cases of authorising an agent to sign the pleadings while authorising a legal practitioner to appear on his behalf, it is sufficient if the Court is satisfied that he was authorised to sign and in such a case, the filing of an affidavit is not mandatory, therefore, the defect can be cured at a later stage also by convincing the Court that the agent was duly authorised by the respective party in that matter. But if an agent is authorised to undertake the signing of pleadings, adducing of evidence and advancing of arguments, the agent shall be permitted in writing and the party has to file an affidavit that he has duly authorised the agent to represent him instead of an Advocate.” (Quoted in Ruhina Khan Vs. Abdur Rahman Khan, 2019 AIR AP 117.)

The Madras High Court observed in K. Santhanam v. S. Kavitha: 2011-1 CTC 286; 2011-1 LW 66; 2011-3 MLJ 34, as under:

“16. Thus, it is seen that while Order III, enables the holder of a power of attorney to appear, apply and act on behalf of a party to a suit, as his recognised agent, Order VI, Rule 14 (pleading to be signed), enables any person duly authorised by a party to sign the pleading if the party pleading is, by reason of absence or for other good cause, unable to sign the pleading. Thus, it appears from Order VI, Rule 14, that even in the absence of a power of attorney, a party to a suit is entitled to have the pleading signed on his behalf, by any person duly authorised by him to sign. This inference is inevitable on account of the difference in the expressions used in Order III, Rule 2, vis-a-vis Order VI, Rule 14. While Order III, Rule 2, uses the expressions “recognised agents” and “persons holding powers of attorney”, Order VI, Rule 14, uses the phrase “any person duly authorised by him“. Rule 15(1) of the Order VI (verification of pleadings), goes one step further and empowers “some other person” to verify the pleadings, if it is proved to the satisfaction of the Court that he is acquainted with the facts of the case.”

Scope of O. VI R. 14 is not to be curtailed by unduly reading of CR P into it.

The Kerala High Court (KT Thomas, J., as he then was) dealt with this matter in Narayanan Nair v. John Kurien [1988 (1) Ker. LT 673]. He observed as under:

“The said rule (Rule 23) need not be imported to a case where plaint or written statement can be signed, as sanctioned by the substantive law, by any other person duly authorised by the party concerned. Order VI Rule 14 permits such a course to be adopted in making the pleadings. The scope of Order VI Rule 14 is not to be curtailed or restricted by unduly reading of Civil Rules of Practice into it. Nor could the sanction offered by the substantive law be stultified by resort to the rules framed under such law. The proviso in Rule 14 (of Order VI) does not insist on production or even creation of a power of attorney or written authorisation. There is nothing in the said provision suggesting that a written authorisation is indispensable for the proper compliance thereof. Case law seems to be very much in support of the view that even oral authorisation would be sufficient to constitute due authorisation. (Vide Bengal Jute Mills Vs. Jewraj Heeralal, AIR 1943 Cal. 13; Subbiah Pillai Vs. Sankarapandiam Pillai, AIR 1948 Mad. 369; Sarju Prasad Vs. Badri Prasad, AIR 1939 Nag. 242; and Netram Vs. Bhagwan, AIR 1941 Nag. 159). Those decisions were referred to and discussed in detail by a Division Bench of the Bombay High Court in All India Reporter Ltd. Vs. Ramachandra (AIR 1961 Bom. 292). The Bombay High Court, in concurrence with the preponderant view held that oral authorisation is good enough to constitute a valid authorisation under Order VI Rule 14 of the Code. In Iyakku Mathoo Vs. Julius (AIR 1962 Ker. 19) absence of a written authority was considered to be a defect in constituting due authorisation, but the said decision can be distinguished on facts since the suit was instituted on behalf of a plaintiff residing abroad permanently. Raman Nayar, J (as he then was) has observed in the said decision that in such cases the proviso to Order VI Rule 14 does not apply. The upshot of the discussion is that there is compliance with the requirements in Order VI Rule 14 of the Code if there is satisfactory material to show that the signatory in the plaint had the authority of the plaintiff to sign the plaint on behalf of the plaintiff and such authority need not necessarily be in writing.”

In Ruhina Khan v. Abdur Rahman Khan (AIR 2019 AP 117) the AP High Court referring various earlier decisions including the Kerala decision stated above, observed as under:

“As long as the said GPA holder is able to demonstrate that he had the authority to sign such pleadings on behalf of his principals, sufficient compliance with Rule 33 (corresponding to Rule 23 of Kerala Rules) of the Civil Rules of Practice is made out.”

Law in Narayanan Nair v. John Kurien is OVERLOOKED in certain subsequent decisions

Without adverting to, or simply avoiding, the law discussed in the Kerala decision, Narayanan Nair v. John Kurien, 1988 (1) KLT 673, and the AP decision in Janab Syed Kazim Sahab v. Janab Sayeed Bakaram Sahab, (1990 (1) An. WR 256), and various other similar earlier decisions, the Kerala High Court opined in the following subsequent decisions that the Power of Attorney should be produced in the court (except in the case of persons under disability), and court-permission should be obtained, as provided in the rule 22 of the CRP; and a written authority of the party (principal) and affidavit verifying the signature as provided in the rule 23, should be filed in court – where pleadings are signed or verified by ‘any other person’.

KR Sooraj Vs. Southern Railway, 2020-6 KHC 343
Madhusoodhanan Vs. Rajesh R Nair: LAWS (KER) 2017-6-328 (allowed to cure defect by filing required petition to grant permission)
Focal Image India Pvt Ltd. Vs. Focal Image Ltd.: LAWS (KER) 2016-8-190: 2016 SCC OnLine Ker 29043. (Went-on even to hold that the institution of a plaint by an unauthorised agent is an inherent and incurable defect which would vitiate the institution of the plaint and a defective plaint, liable to be rejected in limini, could not be allowed to be made valid and perfect by a subsequent act.)
Rajan Vs. Padmavathy Gopalan Nair: 2011-4 Ker LJ 193, 2011-4 KHC 383 (Distinguished Narayanan Nair v. John Kurien observing that an affidavit had been filed by the principal, in that case to the effect that he had authorised his agent)

Procedural defects and irregularities – Curable

Our Apex Court held in Uday Shanker Triyar Vs. Ram Kalewar Prasad Singh, 2006-1 SCC 75, that filing appeal without a vakalatnama or other authority was curable defect. It is observed in Para 16 and 17 as under:

“16. An analogous provision is to be found in Order VI, Rule 14, CPC, which requires that every pleading shall be signed by the party and his pleader, if any. Here again, it has always been recognised that if a plaint is not signed by the plaintiff or his duly authorised agent due to any bona fide error, the defect can be permitted to be rectified either by the Trial Court at any time before judgment, or even by the Appellate Court by permitting appropriate amendment, when such defect comes to its notice during hearing.
17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognised exceptions to this principle are:
       (i) where the statute prescribing the procedure, also prescribes specifically the consequence of noncompliance;
       (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
       (iii) where the non-compliance or violation is proved to be deliberate or mischievous;
       (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the Court;
       (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.”

Quoting the afore-stated passage from Uday Shanker Triyar v. Ram Kalewar Prasad Singh, the Madras High Court observed in K. Santhanam v. S. Kavitha: 2011-1 CTC 286; 2011-1 LW 66; 2011-3 MLJ 34, that non-compliance with the Civil Rules of Practice (Rule 22 and 23) is a curable defect and an error of procedure is merely an irregularity; that it cannot result in rejection of the suit; and that even without a power of attorney, a party to the suit is entitled to have the pleading signed through another if that another person had been duly authorised. This view is taken in the following decisions also:

Bilasraika Sponge Iron Pvt. v. Devi Trading Company: 2011-5 ALD 327; 2011-4 ALT 297 – (Agent did not seek leave of the Court)
Nethra Chits (P) Ltd., v. B. Ramachandra Reddy, 2006 (4) ALT 190, (Foreman of the Company did not obtain permission of the Court.)
M/s. Gold Medal v. Smt. Ameena Begum 2004-5 ALT 542 (Suit instituted on a defective power of attorney; and corrected subsequently)
Kamal Silk Mills v. Kuncham Mohana Rao: 2002 (1) ALD 722 (DB), (Contentions under Rule 32 cannot be raised at the stage of execution)
Abu Taher v. Abdul Majeed: 1995 (1) ALT 57 (Did not obtain permission from the Court)
P.J. Joseph v. Suhara Beevi Hussain: AIR 2000 Ker 60 – There was a power of attorney in favour of the husband of the plaintiff. Husband filed suit on that basis. The defendant contended that the husband was not specifically authorized by the power of attorney to institute the suit. The plaintiff applied to the trial Court for permission to sign the plaint. The High court observed that even if there was any defect, the plaintiff could sign the plaint, as signing of the plaint was only a procedural matter. Sections 99 and 99A of the CPC referred to)

Ss. 99, 152 and 153 CPC: Unimportant Error – Not be Stretched Too Far

Sections 99, 152 and 153 of the Civil Procedure Code make it clear that an error or irregularity that does not affect the merits of the case or the jurisdiction of the court is not material so as to warrant dismissal. It embodies the settled policy of our law that mistakes in any proceedings in the suit, which cause no prejudice, should not defeat substantive justice.

“99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
Provided that nothing in this section shall apply to non-joinder of a necessary party.”
“152. Amendment of judgments, decrees or orders.: Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.”
“153. General power to amend. The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

In P.J. Joseph v. Suhara Beevi Hussain, AIR 2000 Ker 60, it was held that the expression “any error, defect or irregularity in any proceeding in the suit” in Sec. 99 includes the signing and verification of the plaint.

In Gold Medal v. Ameena Begum, 2004 (5) AndLT 542, it is held that the defect of the institution of the suit through a power of attorney is only a curable irregularity in view of Section 99 of the Code of Civil Procedure and definitely does not touch the jurisdiction of the Court.

It is held by the Himachal Pradesh High Court (AIR 1957 HP 16) that irregularity in signing Vakalathnama is only a formal defect. The omission to explain the non-production of a document before tendering secondary evidence is only a mere irregularity. (59 IC 461)

S. 33 Rgn. Act will NOT attract if Power of Attorney himself Executes the Document

Sec. 32(a) of the Registration Act refers to documents presented for registration by a holder of “power of attorney”. The procedure specified under Sec. 33 would be attracted where a document is presented by a person holding “power of attorney”. If power of attorney himself executes the document, Sec. 33 would not be attracted.

It is so laid down in Manik Majumder v. Dipak Kumar Saha, Mad LJ 2022-2 69, 2022-2 SCALE 521, 2022-2 RCR(Civil) 96 in the following words-

“24. The words “executed and authenticated in manner hereinafter mentioned” in Section 32(c) would mean the procedure specified in Section 33. This is clear from the opening words of Section 33 which reads “for the purposes of Section 32, the following power of attorney shall alone be recognised”. Section 32 refers to documents presented for registration by a holder of “power of attorney” in clause (c) and it therefore follows that the procedure specified under Section 33 would be attracted where a document is presented by a person holding “powers of attorney” of the persons mentioned in clause (a) of Section 32.
25. The aforesaid position makes it explicitly clear that Section 32 of the Act requires the documents sought to be registered, to be presented, inter alia by the person executing it. In other words, the said expression requires presence of the actual person executing the document. The basic principle underlying this provision of the Act is to get before the Sub-Registrar the actual executant who, in fact, executes the document in question. In fact, the ratio of the decision in Ram Gopal [AIR 1960 Punj 226] has laid down a similar proposition on the conjoint reading of Section 32 and Section 33 of the Act and after referring to all the judgments noted hereinbefore. Same view has been expressed earlier by the Bombay High Court in Ratilal Nathubhai v. Rasiklal Maganlal [AIR 1950 Bom 326].
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 holds a power of attorney which authorises him to execute a document as agent for someone 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.”

See Blog: If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted

Power of Attorney is to be construed strictly by Court

In Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, AIR 2022 SC 1640; 2022-7 SCC 90, it is held that ordinarily, a Power of Attorney is to be construed strictly by Court.

Conclusion:

Re: Rule 22 of the CRP: PoA or written authority of the principal (or affidavit) and court-permission (as provided in Rule 22 of the CRP) are required if only the agent is one “other than a pleader” and authorised to “appear” in court (to act or argue – 1990 (1) An. WR 256 ). Therefore, a PoA or written authority and permission are not needed to prosecute the case by “appearance through” an advocate.

Re: Rule 23 of the CRP: And, no written authority and affidavit (as provided in Rule 23 of the CRP) are needed when an agent places pleadings signed by the agent himself – if he can demonstrate that he had the authority to sign, as provided in Order VI Rule 14 CPC (because, the scope of Order VI Rule 14 is not to be curtailed or restricted by unduly reading of Civil Rules of Practice into it).

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