Registration Act, 1908
Sections 17 & 18—Deed of power of attorney—Requirement of registration—A power of attorney is not a compulsory registrable document when it is duly notarized—It carries the presumption of being valid in view of Section 85 of the Evidence Act—Since, a power of attorney does not come within the ambit of Section 17 or clause (a) to (e) of Section 18, registration of a power of attorney is optional.
[Para 18]
Sections 17 & 18—Registration of a document is a solemn act of parties and recitals of a registered document are presumed to be valid unless such a presumption is rebutted by strong evidence to the contrary—A registered document carries with it, by virtue of it being registered, the presumption as to the authority of the person executing it.
[Para 26 & 28]
Section 32—Persons to present documents for registration—As per Section 32 of the Registration Act, every document to be registered under the Registration Act shall be presented at the proper registration office by some person executing or claiming under the same, or, by the agent of such a person, representative or assign, duly authorised by PoA executed and authenticated in the manner mentioned in Section 33(1)(c) of the Registration Act.
[Para 7]
Section 33(1)(c)—Power of attorney recognizable for purposes of Section 32 of the Registration Act—If the principal at the time of execution of the PoA does not reside in India, a PoA executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government shall be valid.
[Para 7]
Section 60—Certificate of registration—Statutory presumption—Only in a case where the execution of the power of attorney is as per Section 32 read with Section 33(1)(c) of the Act, there shall be statutory presumption under Section 60 and/or under the provisions of the Registration Act.
[Para 7]
Section 60—Certificate of registration—Statutory presumption—There may be a statutory presumption as per Section 60 of the Registration Act where all other requirements of execution of sale deed, required to be complied with under the Registration Act are complied with and genuineness of power of attorney on the basis of which the sale deed was executed is not doubted.
[Para 9]
Section 60—Statutory presumption—Invocation—Since requirements of execution of a sale deed are duly complied with, and there is no reason to doubt the recitals of sale deed which has been proved in accordance with law, it would follow that statutory presumption under Section 60 of the Registration Act could be invoked.
[Para 25]
Specific Reliefs Act, 1963
Section 34—Suit for declaration of title and recovery of khas possession of suit land filed on the basis of Power of Attorney (PoA)—Dismissal of suit by the trial court, confirmed by the first appellate court, decreed by the High Court in second appeal—Appeal—As the PoA is not produced on record; the executant of the PoA in favour of second plaintiff has not stepped into the witness box; there is a non-compliance of Section 33(1)(c) of the Registration Act; and the second plaintiff is claiming title on the basis of the PoA alleged to have been executed by the original owner which is not forthcoming and that first plaintiff is claiming the title on the basis of the sale deed executed by second plaintiff as a PoA holder of the original owner which is not forthcoming, the trial Court was justified and right in dismissing suit and refusing to pass a decree for a declaration of title in favour of plaintiffs and same was rightly confirmed by first appellate court—High Court has committed a serious error in decreeing the suit—Impugned judgment and order passed by the High Court decreeing the suit is hereby quashed and set aside and the judgment and decree passed by the trial Court, confirmed by the first appellate Court, is hereby restored—Appeal allowed. [View per Hon’ble Justice M.R. Shah]
[Para 10]
Section 34—Suit for declaration of title and recovery of khas possession of suit land filed on the basis of Power of Attorney (PoA)—Dismissal of suit by the trial court, confirmed by the first appellate court, decreed by the High Court in second appeal—Appeal—Second plaintiff, had the authority as per Section 32 (C) of the Registration Act to present a document for registration in his capacity as the attorney of original owner of the suit property—Sale deed was executed on the strength of the power of attorney which was executed in conformity with Section 33 (1) (c) of the Registration Act because power of attorney has been duly executed before the 1st Class Magistrate, Komilla, East Pakistan as noted from two sale deeds—First plaintiff has proved her right, title and interest in the land in question—No contra evidence produced by defendants so as to defeat the validity of sale deeds—When a sale deed is executed on the strength of deed of power of attorney, the non-production of the deed of power of attorney in the suit is not fatal to the case of the plaintiff—Trial Court and the First Appellate Court failed to treat the endorsement made by the District Sub-Registrar on the body of the sale deed, as evidence in respect of the authority of second plaintiff to execute the sale deed—At no point of time did the original owner dispute the execution of power of attorney in favour of second plaintiff—Prima-facie, the endorsement made on sale deed could be considered as determinative evidence of the conveyance of title to the suit property by its original owner, especially where the defendants have not set up a case to establish any independent title over the suit property—When such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it—Defendant has not rebutted the presumption of validity of sale deed—No reason found to disbelieve the recitals contained in registered sale deed merely on the ground that document conferring power of attorney in favour of second plaintiff was not produced before the trial court—High Court was right in holding that when a document has been duly registered, there is a presumption of correctness and it can be rebutted only by strong evidence to the contrary—As the absolute owner, second plaintiff sold the said land to first plaintiff—First plaintiff had every right to recover the said suit land, description of which has been provided in the Schedule (C) of the plaint by removing and demolishing all obstructions from the defendants—High Court was right in decreeing the suit—Appeal dismissed. [View per Hon’ble Justice B.V. Nagarathna]
[Paras 24 to 30]