Power-of-attorney holders are bound to comply with the conditions of Section 32A of the Registration Act for the registration of immovable property.

A. Muhamed Mustaque, J.

1. These writ petitions are filed by power-of-attorney holders who have presented instruments for registration conveying transfer of ownership of immovable property. The registering authority insisted for photographs and finger prints or seller of such property mentioned in the document as a pre-condition for registration in terms of Section 32A of Registration Act as amended in the State.

2. This Court in W. P. (C.) No. 15413/2007 on 20/06/2007 passed the following interim order.

"There would be a direction to the Registering Authority to provisionally register the documents presented by the petitioners by fixing the photographs of the owner of the property, the power-of-attorney who executes the sale deed and the buyer with the thumb impressions of the power-of-attorney and the buyer. The question as to whether the thumb impression of the owner of the property also should be affixed in the document, would be considered at the time of final hearing. If ultimately this Court decides that the thumb impression of the owner is also necessary, the petitioners would resubmit the document affixing the thumb impression of the owner of the property also.

Post along with the connected cases."

3. This Court also in W. P. (C) No. 19722/2007 passed the following interim order on 29/07/2008.

"There would be a direction to the Registering Authority to provisionally register the documents presented by the petitioners by fixing the photographs of the owner of the property, the power-of-attorney who executes the sale deed and the buyer with the thumb impressions of the power-of-attorney and the buyer. The question as to whether the thumb impression of the owner of the property also should be affixed in the document, would be considered at the time of final hearing. If ultimately this Court decides that the thumb impression of the owner is also necessary, the petitioners would resubmit the document affixing the thumb impression of the owner of the property also.

Post along with the connected cases."

4. Based on the above interim orders, instruments were registered.

5. A short issue that falls for consideration is whether instrument sought to be registered through power-of-attorney holder or donee need to comply with the conditions referred in proviso to Section 32A. The case of power-of-attorney holder, donee is that since they stepped into the shoes of original owner of the property, they need not comply with the conditions of Section 32A to the effect that finger prints and photograph of the seller should be affixed on the document. They rely upon Section 2 of Power of Attorney Act and submits that the power-of-attorney holder would step into the shoes of principal and all act done by the donee on behalf of the principal has to be considered as an 'act' done by the donee. Since there is no prescription in Section 33 of Registration Act directing affixation of photograph and finger print's of seller in such instrument, direction in Section 32A would not apply to this.

6. Alternatively, it is also argued that Section 32A even if it is considered would apply in the matter, the proviso will have to be ignored in the sense that the main substantive portion of Section 32A does not indicate any such condition. It is argued that since there is no stipulation in main part of Section 32A for affixation of photograph and finger prints of the seller on instrument, it cannot be brought in through a proviso. It is submitted that proviso cannot operate as a substantive provision unless, it is in nature of exception or qualifying the substantive provision. The petitioner is also relying upon the decision of Division Bench of this Court in 2017 (2) KHC 964 : 2017 (2) KLT 711 Cheerans structural Engineers & Contractors (M/s.), Palakkad v. Commercial Tax Officer (Works Contract) & others.

7. Insofar as the first point raised, I am of the view that this argument is misconceived. Section 33 only refers to the nature of the power-of-attorney w