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2017 DIGILAW 995 (KER)

Joseph George v. State of Kerala

2017-07-06

A.MUHAMED MUSTAQUE

body2017
JUDGMENT 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. 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 which is recognised for the purpose of Section 32. Therefore, Section 33 has to be understood in the light of Section 32. Section 32A was brought in a Statute by way of stay amendment in the year 2001. It is true Statute as originally stood, there was no Section 32A. Section 32A in fact is part of Section 32. Therefore, Section 33 has to be understood in the light of Section 32. Section 32A was brought in a Statute by way of stay amendment in the year 2001. It is true Statute as originally stood, there was no Section 32A. Section 32A in fact is part of Section 32. Section 32A refers to persons who could present document for registration. The persons referred in Section 32A are the persons whom are referred in Section 32. Section 33 only speaks about the nature of power-of-attorney that can be recognised for Section 32. The substantive provision as far as the presentation of the instrument is controlled by Section 32. Matters required to be considered for presenting a document is Section 32. Therefore, Section 33 cannot have an independent existence, except with reference to Section 32. In that context, Section 32A assumes importance. Section 32A insists affixation of finger prints and photograph of the seller. The seller means in whose name the registration of the immovable property stands. The power-of-attorney is only an agent of such seller. Therefore, for the purpose of registration through power-of-attorney holder, the compliance of Section 32A cannot be ignored. Therefore, this point is answered holding that, even if instrument is presented through power-of-attorney holder, such power-of-attorney holder is bound to comply with Section 32A of the Act. 8. Insofar as next contention, that proviso is in the nature of exception and it cannot be a main part. I am of the view that this argument has to be rejected. The main part of Section 32 only speaks about the presentation of the document for registration and it should be affixed with the passport size photograph and finger prints of the person who presents the documents. Therefore, in normal circumstances, presenter's photograph and signature alone need to be affixed on the document. However, it carves out an exception in the matter of immovable property. It is specifically insisted that passport photographs and the finger prints of each buyer and seller should be affixed. Therefore, in the matter of immovable property, it further stipulated that finger prints of both buyer and seller should be affixed. This is more of qualifying the main part. Therefore, this Court is of the view that in the above circumstances, there was nothing wrong on the part of the registering authority insisting compliance of Section 32A. Therefore, these writ petitions must fail. 9. This is more of qualifying the main part. Therefore, this Court is of the view that in the above circumstances, there was nothing wrong on the part of the registering authority insisting compliance of Section 32A. Therefore, these writ petitions must fail. 9. The petitioner is bound to comply with the interim order passed by this Court. However, the petitioner is given three months time to comply with the same. If the petitioner has any practical difficulty in bringing the original seller, he shall file an affidavit before the registering authority and pray for sufficient time for production of the seller. The petitioner shall be given sufficient time to comply with the interim directions. The writ petitions are accordingly, dismissed.