IMPORTANT POINTS
However as and when the document is presented for registration under Section 34 of the Registration Act, the Registering Officer may enquire as to whether or not such document was executed by the persons by whom it purports to have been executed and also to satisfy himself as to the identity of the person appearing before him either in person or through a representative. He may also have to bear in mind Rule 67 and Rule 191 of the Registration Rules (Kerala) framed by the IG of Registration under Section 69 (2) of the Registration Act, 1908.

JUDGMENT :

A certain Ahmoo, the uncle of the petitioner, passed away while he was in Malaysia. Ahmoo was holding several items of properties in the State of Kerala in his name. To administer the above properties and if required to assign the same, the legal heirs of the aforesaid Ahmoo, executed a power of attorney authorising the petitioner to act for and on their behalf. The power of attorney was presented before the 1st respondent to have his opinion as to the duty, if any, with which it is chargeable. However, by Exhibit P6, the 1st respondent refused to adjudicate on the proper stamp holding that the last clause in the power of attorney is against the provisions of the Registration Manual and Section 201 of the Indian Contract Act.

2. The objectionable clause as noted by the 1st respondent is extracted below.

“And we hereby declare that the power conferred herein shall survive the death of the said attorney in which case our heirs or beneficiaries shall thereafter be vested with the powers conferred therein.”

3. I have heard Sri. Habeeb, the learned counsel appearing for the petitioner and Sri Bimal K. Nath, the learned Senior Government Pleader.

4. Under Section 2 (p) of the Stamp Act, 1959 "power-of-attorney" includes any instrument (not chargeable with a fee under the law relating to Court fees for the time being in force) empowering a specified person to act for and in the name of the person executing it. There is no dispute with respect to the fact that the power of attorney was produced before the 1st respondent, while he was acting in his capacity as the Officer authorised to adjudicate on the stamp. As the power of attorney was executed outside India, the same had to be presented before the competent authority to get it stamped.

5. Chapter III of the Stamp Act deals with adjudication of stamps. Section 31 is the relevant provision which reads as follows.

“S. 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 fifty rupees, 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 any 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.”

6. When the instrument is presented before the Collector to have his opinion as to the duty, if any, with which it is chargeable, and pays the fees the Collector is to determine the duty with which, in his judgment, the instrument is chargeable. For this purpose, the competent authority may require the presenter to furnish an abstract of the instrument and such other material in the form or affidavit or other evidence 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. This is for the purpose of adjudging on the stamp and nothing m