Answer: No.

Is Notary Attested POA Sufficient for Registration? Yes.

Saji Koduvath, Advocate, Kottayam.

Introspection.

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’.

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”.

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“.

S. 33 Rgn. Act will NOT attract if PoA himself Executes the Document

It is so laid down by our Apex Court in Amar Nath v. Gian Chand, 2022-2 Mad LJ 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.”
• Note: In the split verdict in Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, BV Nagaratna, J., referred the earlier decision Amar Nath v. Gian Chand, Mad LJ 2022-2 69, 2022-2 SCALE 521, 2022-2 RCR(Civil) 96, analysing the same as under:
  • “This Court … held that a power of attorney holder, while executing a sale deed, need not produce the original document conferring power of attorney. That a sale would not be liable to be disturbed solely on the ground that the power of attorney forming the basis of such sale was not produced before the Sub-Registrar at the time of registration.”

Production of PoA Not Essential for Proving Sale Deed Executed through PoA

In Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, the sale of property under consideration was made on behalf of the seller to the buyer through the power of attorney.  The power of attorney was not produced before the Court. The High Court observed that the sale was not proved as the PoA was not produced. Refuting the observation of the High Court, BV Nagaratna, J., in the split-verdict, held as under:

• “18. … However, a registered deed has to be proved in accordance with Section 67 of the Evidence Act, 1872. Section 67 states that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Section 67 states that proof of signature and the genuineness of document proved by the proof of handwriting is proof of execution. Execution of a document means signing a document by consenting on it by a party. Section 67 does not prescribe any particular mode of proof. Mere registration of a document is not self-sufficient proof of its execution. It is only a prima facie proof of its execution particularly when no other evidence is available. Registration of a document is evidence of its execution by its executor. Certificate by registering officer under Section 60 of the Registration Act, 1908 is relevant for proving its execution. Proof by evidence afforded by the contents of the documents is of considerable value. In the instant case, what is sought to be proved is title by the sale deed and not the power of attorney as it is the sale deed which conveys title and the sale deed has been executed in accordance with the provisions of Registration Act, 1908, and proved in accordance with Section 67 of Evidence Act. It cannot be held that the sale made on behalf of the seller (original owner of the suit land) to the buyer through the power of attorney is vitiated as the power of attorney was not produced before the Court. This is because even in the absence of the production of the power of attorney, the contents of the sale deed and the execution of the power of attorney as well as the sale deed have been established by proving the sale deed in accordance with the law.”

Presumption on Power of Attorney Authenticated by a Notary Public, 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.”

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.

Presumption of Correctness Attached to a Registered Deed

In the split-verdict in Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, BV Nagaratna, J., held as under:

• “18. … The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.”

BV Nagaratna, J. referred the following decisions-

• Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 (a registered document is presumed to be valid).
• Chottey Lal v. The Collector of Moradabad,  AIR 1922 PC 279 (presumption of validity of a power of attorney which formed the basis of a registered deed; the sub-registrar being accepted the document for registration, it is prima-facie evidence that the conditions have been satisfied).
• Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386 (presumption of regularity of official acts of sub-registrar).
• Rattan Singh v. Nirmal Gill, AIR 2021 SC 899 (presumption of validity of a general power of attorney and consequently of the sale deed executed – especially of a 30-year old document).
• Prem Singh v. Birbal , (2006) 5 SCC 353 (when such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it).

Read Blog: No Adjudication If Power of Attorney is Sufficiently Stamped

Revocation of an irrevocable Power of Attorney

An irrevocable power of attorney can be revoked in the following circumstances –

• When violates the express or implied directions.
• Does detrimental acts that injure principal
• Goes beyond the power that amounts violation of the express or implied directions

If the power of attorney is a registered one, it is necessary to register the cancellation document (apart from informing the cancellation to the agent).

Rajni Tandon v. Dulal Ranjan Ghosh Dastidar

The Supreme Court has already 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).

End Notes:

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.”

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).

Foot Notes

Sec. 32 and 33 of the Registration Act

• “32. Persons to present documents for registration—
• Except in the cases mentioned in [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 person, or
  • (c) by the agent of such person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.
• 33. Power-of-attorney recognizable for purposes of Section 32 —
• (1) 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 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 the 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.”