Saji Koduvath, Advocate, Kottayam.

Introduction.

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 Officer, AIR 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.

Use of Adhesive Stamps in Power of Attorney

Rule 13 of the Indian Stamp Rules, 1925, provides for using adhesive stamp in the case of Power of Attorney. Similar provisions are in the State Stamp Rules also.

• It may be noted that the law requires that document must have been stamped before it had been executed (or signed).

Read in this Cluster (Click on the Topic):

Book No. 1.   Handbook of a Civil Lawyer

• Civil Procedure & CPC
• Civil Rights and Jurisdiction of Civil Courts
• Pleadings Should be Specific; Why?
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• Interrogatories: When Court Allows, When Rejects?
• Can a Party to Suit Examine Opposite Party, as of Right?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Power of attorney
• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit
• Stamp Act
• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Title and Possession
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Civil Procedure – General
• ‘Mutation’ by Revenue Authorities will not Confer ‘Title’
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Notary-Attested Documents: Presumption, Rebuttable
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Evidence Act – General
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• Sec. 65B
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Documents
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• Contract Act
• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Easement
• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

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

• General Features
• Bye Laws Fundamental
• Effect of Registration of Societies and Incorporation of Clubs
• Societies and Branches
• Vesting of Property in Societies and Clubs
• Juristic Personality of Societies and Clubs
• Incidents of Trust in Clubs and Societies
• Legal Personality of Trustees and Office Bearers
• Suits By or Against Societies, Clubs and Companies
• Court’s Jurisdiction to Interfere in the Internal Affairs
• How to Sue Societies, Clubs and Companies
• Amendment of Bye laws of Societies and Clubs
• Dissolution of Societies and Clubs
• Rights & Liabilities of Members of Clubs and Societies
• Management – Powers of General Body and Governing Body
• Expulsion of Members & Removal of Office-Bearers
• Election & Challenge in Societies and Clubs
• Court Interference in Election Process
• Individual Membership Rights in Societies & Clubs
• State-Interference in Affairs of Societies & Clubs
• Law on Meetings: An Overview

Book No. 4: Common Law of TRUSTS in India

• General Principles
• What is Trust in Indian Law?
• Public & Private Trusts in India.
• Public Trusts and Indian Trusts Act – An Overview
• Incidents of Trust in Clubs and Societies
• Public Trusts and (State) Endowments/Trusts Acts
• Trust is ‘An Obligation’; Not a Legal Entity
• Dedication and Vesting
• Dedication of Property in Public Trusts
• Vesting of Property in Trusts
• Indian Law Does Not Accept Salmond, as to Dual Ownership
• Trustees and Management
• Trustees and Administration of Public Trusts
• Alienation of Public Trust Property
• Extinction, Discharge, Revocation, etc. of Public Trusts
• Breach of Trust
• Breach of Trust and Removal of Trustees
• Suits by or against Trusts
• Suits By or Against Trusts and Trustees
• Remedies Under Sec. 92 CPC
• Law on Religious Trusts & Trustees
• Philosophy of Idol Worship
• Is an Idol a Perpetual Minor?
• Hindu Temples & Law of Trusts
• Law of Mutts and Other Hindu Endowments
• Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Shebaits & Mahants and Law of Trustees
• Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
• Parsi Women Excommunication, Unconstitutional.
• General
• State & Court – Protectors of All Charities
• Business by Charitable Trusts & Institutions