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2014 DIGILAW 1981 (RAJ)

Jai Kumar v. Hanuman

2014-12-03

ARUN BHANSALI

body2014
ORDER : ” This writ petition is directed against the order dated 23.11.2011 passed by the trial court, whereby on an objection raised by the defendant, the power of attorney sought to be exhibited by the petitioner has been held to be inadmissible by the trial court. 2. The facts in brief may be noticed thus : the petitioner-plaintiff Jai Kumar through his power of attorney holder brother Yogesh Chandra filed a suit for declaration and permanent injunction against the respondent-defendant. When during the course of statement by the power of attorney holder Yogesh Chandra as PW-1, the power of attorney given by the plaintiff ' Jai Kumar was sought to be exhibited, an objection was raised that the power of attorney was neither registered nor the same bear requisite stamp duty and therefore, the same was inadmissible in evidence. 3. In reply, it was contended that the document was not required to be registered and as the power of attorney was executed at Qatar before the Indian Embassy and requisite fee amounting to 75 Qatari Riyals was paid, the same was sufficient in terms of Sections 32 & 33 of the Indian Registration Act, 1908 (' the Act” ). 4. After hearing the parties, the trial court came to the conclusion that the power of attorney was required to be compulsorily registered under Section 17(1)(g) of the Act and as the same was not registered, under Section 49 of the Act, the same was inadmissible. 5. It is submitted by learned counsel for the petitioner that the trial court committed grave error in law in holding the power of attorney as inadmissible, inasmuch as, same was not compulsorily registerable in terms of Section 17(1)(g) of the Act and therefore, the order impugned deserves to be quashed and set-aside. 6. Learned counsel for the respondents submitted that the order passed by the trial court does not call for any interference. It was submitted that the power of attorney was compulsorily registerable and as the same was not registered, under Section 49 of the Act the trial court rightly held the same as inadmissible. It was further submitted that in any case the power of attorney did not bear the requisite stamp duty and therefore, under Section 39 of the Rajasthan Stamp Act, 1998 (' Stamp Act” ), the document was inadmissible. 7. It was further submitted that in any case the power of attorney did not bear the requisite stamp duty and therefore, under Section 39 of the Rajasthan Stamp Act, 1998 (' Stamp Act” ), the document was inadmissible. 7. I have considered the rival submissions made by learned counsel for the parties. 8. The provisions of Section 17(1)(g) of the Act of 1908 reads as under:- ' 17. Documents of which registration is compulsory.- (1)- 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 :- (g) ' irrevocable power of attorney relating to transfer of immovable property in any way;' 9. A bare look at the said provision reveals that the power of attorney relating to transfer of immovable property should be ' irrevocable” for the same to be liable for compulsory registration. 10. I have perused the power of attorney Annex.-P/1, the power of attorney nowhere indicates that the same was irrevocable. The requirement of applicability for provision of Section 17(1)(g) of the Act i.e. the power of attorney must be irrevocable, not being present in the document, it cannot be said that the same was compulsorily registerable. 11. The trial court without considering the said aspect has presumed the power of attorney as irrevocable, which presumption on face of it is incorrect and as such, the said finding cannot be sustained. 12. So far as the objection raised by learned counsel for the respondent regarding deficient stamp duty is concerned, the submission has substance. 13. The document and the receipt along with the document, does not indicate payment of any stamp duty on the said power of attorney. The amount of 75 Qatar Riyals said to have been paid by the plaintiff-Jai Kumar cannot be said to be a payment of stamp duty. 14. 13. The document and the receipt along with the document, does not indicate payment of any stamp duty on the said power of attorney. The amount of 75 Qatar Riyals said to have been paid by the plaintiff-Jai Kumar cannot be said to be a payment of stamp duty. 14. Even otherwise, under the provisions of Section 20 of the Stamp Act, even if a stamp duty has been paid in another State and the document is brought within Rajasthan, the document is chargeable with the difference of duty, in case the duty to be paid is higher and the duty should have been already paid on the document ' in India” . 15. In that view of the matter, even if, any payment has been made by the petitioner at Qatar, which though cannot be termed as payment of stamp duty, still the same is of no evil as Power of Attorney is liable to payment of Stamp Duty under Article 44 of the Schedule attached to the Stamp Act. 16. The document was, therefore, liable to be dealt with by the trial court under Section 39 read with Sections 37 & 42 of the Stamp Act. 17. Consequently, the writ petition is partly allowed. The order dated 23.11.2011 passed by the trial court is set aside. The trial court is directed to deal with the document i.e. Power of Attorney dated 7.5.2003 as per provisions of Sections 37, 39 & 42 of the Stamp Act for determination and payment of deficient Stamp Duty. Petition partly allowed