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2020 Supreme(Ker) 887
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Raja Vijayaraghavan V, J.
Amose – Petitioner
Versus
The Sub Registrar-Meenachil – Respondent
WP(C).No.17471 OF 2020(H)
Decided On : 22-12-2020
Advocate Appeared:
For the Petitioner: Sri.Liji.J.Vadakedom, Smt.Rexy Elizabeth Thomas, Sri.Rajeev Jyothish George, Advs.
For the Respondent: Sri Bimal K Nath, Sr. GP
Important points:
Article 44 (f) has two parts. The first part gives authorization to certain persons not being a relative, as mentioned in the Article, to sell immovable property. The second part provides for giving authority or power to a promoter or developer, by whatsoever name called, to make constructions or develop, sell or transfer, in any manner whatsoever, in immovable property situated in Kerala.
Headnote:
The Registration Act, 1908- Section 17 (g);;- Section 32;; The Registration Rules (Kerala)- Rule 191 (vii) - Power of attorney Stamp duty to be paid is the same duty as a conveyance for the fair value of the land or for the amount of the consideration whichever is higher, or the estimated cost as certified by a chartered engineer of proposed construction or development of such property has to be paid
Statement of facts:
The petitioner states that he is the power of attorney holder of a certain Manoj Mullackal Varkey and his wife, Smt Lovina Manoj Varkey. As the petitioner is employed and settled at Kuwait, the power of attorney was attested on 27.7.2020 at the Consular Office, Embassy of India, Kuwait- The respondent refused to register the power of attorney-Challenge:-
Finding of the court:
Article 44 (g) of the Act would be attracted and as the petitioner has affixed stamp in excess of Rs 600/-as required therein, no further amount is required to be remitted by way of stamp duty-The petitioner is entitled to succeed in this Writ petition
Result: Writ Petition Allowed
JUDGMENT :
The petitioner states that he is the power of attorney holder of a certain Manoj Mullackal Varkey and his wife, Smt Lovina Manoj Varkey. As the petitioner is employed and settled at Kuwait, the power of attorney was attested on 27.7.2020 at the Consular Office, Embassy of India, Kuwait.
2. It appears that Manoj and his wife are the owners of certain items of immovable property situated at Puliyannor Village, and they wanted to avail a property loan from the Federal Bank Ltd., for the purpose of constructing a building. On the strength of the Power of Attorney, the petitioner has been authorised to execute necessary loan documents with the bank for and on behalf of his principal; to enter into agreements/ contracts for purchase of immovable properties/flats in their name; to make payments or advance as may be required; to submit necessary applications before the revenue authorities or local bodies; to hypothecate or mortgage the immovable properties; to compromise or withdraw cases; grant leases of immovable properties and to prosecute litigations among other things.
3. As per Section 17 (g) of the Registration Act, 1908, a Power of attorney which creates 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 is compulsorily registrable. The petitioner presented the document before the respondent for registration. However by Exhibit P 2 communication, the respondent refused to register the power of attorney stating the following reasons:-
(a) The petitioner is not a person authorised under Section 32 of the Registration Act 1908 read with Rule 191 (vii) of the Registration Rules (Kerala).
(b) As Exhibit P1 authorises the petitioner to avail loan for carrying out construction activities, execute documents for the purpose of purchasing property, execute agreements, lease deeds, mortgage deeds etc., stamp duty needs to be paid in accordance with Article 5 (c) to the Schedule of the Stamp Act, 1959.
4. The respondent has filed a statement wherein it is stated that since the relationship between the petitioner and the power of attorney does not come within the exempted categories of relationships mentioned in Section 17 (1) (g), the document is compulsorily registrable. It is further stated that since the power-of-attorney is executed by the owner of the property and as it enables the agent to transfer by way of lease immovable property, the petitioner will have to pay stamp as per article 44 (f) of the Stamp Act.
5. I have heard Sri. Liji J Vadakedom, the learned counsel appearing for the petitioner and Sri Bimal K. Nath the learned senior Government Pleader.
6. Section 32 of the Registration Act, 1908 enumerates the persons who are entitled to present documents for registration. Section 33 provides for the Power-of-Attorney recognisable for the purpose of Section 32. It would be profitable to extract the statutory provisions.
32. Personsto 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 a person, or
(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.
33. Power-of-attorney recognisable for purposes of section 32.
(1) For the purposes of section 32,
