IMPORTANT POINT
S.R.O. can act upon power of attorney only if it is registered in terms of provisions contained in Registration Act.

Alexander Thomas, J.—It is stated that the petitioner is permanently settled in the United States of America along with her parents and sister and that she has no immediate family members who are now residing in India and the closest relative is her father’s brother in whose favour she has executed Ext.P2 power of attorney dated 30.4.2018 authorising him to enter into transaction for sale of her property situated in Kerala. It is the case of the petitioner that she has executed Ext.P3 sale deed dated 15.6.2018 through her duly constituted power of attorney holder, who is her father’s brother, on the strength of Ext.P2 Power of Attorney dated 30.4.2018 executed duly before the Vice Consul of the Indian Consulate in the United States of America.

2. It is further stated that Ext.P3 sale deed was presented by the petitioner’s power of attorney for registration before the respondent-Sub Registrar, S.R.O., Udumbanchola, Idukki District. The respondent-S.R.O. has refused to register Ext.P3 sale deed as per the impugned Ext.P4 rejection memo dated 16.6.2018 on the ground that Ext.P2 power of attorney dated 30.4.2018 is not a registered document as required in Section 17(1)(g) of the Registration Act, 1908 (Central Act 16 of 1908). It is this order at Ext.P4 that is under challenge in this writ petition. The impugned Ext.P4 order reads as follows:—

3. The petitioner would contend that the above said stand taken by the respondent S.R.O. as reflected in the impugned Ext.P4 rejection memo dated 16.6.2018 by placing reliance on Section 17(1)(g) of the Registration Act, 1908 is misplaced and is without taking into consideration the vital and crucial provision contained in Section 33(1) (c) of the Registration Act, 1908. The petitioner would contend that Section 33(1)(c) of the Registration Act, 1908 mandates that for the purpose of Section 32 (which deals with persons to present documents for registration), 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 alone shall be recognized if the principal at the time aforesaid does not reside in India.

In the light of these aspects that the petitioner has filed this instant writ petition (civil) on 13.7.2018 with the following prayers:—

“(i) Call for the records leading to Exhibit-P4 letter issued by the respondent and quash the same by issuing a writ of certiorari or other appropriate writ or order;

(ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent to register Exhibit-P3 Sale Deed dated 15.6.2018 at Sub Registrar Office, Udumbanchola; And

(iii) Grant such other and further reliefs as this Hon’ble Court deems fit and proper in the circumstances of this case.”

4. Heard Smt. V.H. Jasmine, learned counsel appearing for the petitioner and Smt. A.C. Vidhya, learned Government Pleader appearing for the respondent-Sub Registrar.

5. Before dealing with the rival contentions, it will be pertinent to refer to some of the relevant provisions in the Registration Act, 1908 and the Kerala Stamp Act, 1959.

6. Section 17(1) of the Registration Act, 1908 as it stands now, provides as follows:—

“17. Documents of which registration is compulsory.—(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—

(a) instruments of gift of immovable property;

(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;

(c)