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2024 DIGILAW 1485 (KER)

Thankamma Manoharan v. State Of Kerala

2024-11-14

KAUSER EDAPPAGATH

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JUDGMENT : Kauser Edappagath, J. The petitioner is a Parkinson's Plus Syndrome-Multi System Atrophy affected patient whose both hands are stiff and always remain folded inside and is unable to hold anything with her hands. She owns immovable properties in Tripunithura. She wanted to execute and register a Will and a Power of Attorney at her private residence. Accordingly, she prepared Ext.P3 Power of Attorney and Ext.P4 Will and submitted them before the respondent for registering the same at her private residence. She has also paid the requisite registration fee, as evidenced by Exts.P5 and P6. The respondent came to the residence of the petitioner to register Exts.P3 and P4. However, he refused to admit the documents and register the same for the reason that she was unable to fix the signature or mark in Exts.P3 and P4. This writ petition has been filed to direct the respondent to admit and register Exts.P3 and P4 documents, in accordance with law. 2. The respondent has filed a statement. He has also produced the report prepared and sent by him to the District Registrar as per Rule 52 of the Registration Rules stating reasons for not registering the documents as Annexure R1(a). 3. I have heard Sri.M.S.Unnikrishnan, the learned counsel appearing for the petitioner and Sri.B.Syamanthak, the learned Government Pleader. 4. In ordinary cases, the acceptance for registration of documents or deposit of Wills shall be made only at the Registration Office. But in the case of persons referred to in the proviso to Sections 31, 33(1) and 38, the Registering Officer may attend at a private residence for the purpose of accepting or recording the admission of execution of a document or for accepting for deposit a sealed cover containing a Will or for attesting a power-of-attorney or accepting an application for cancellation of a power-of-attorney. Section 31 of the Act, 1908 which deals with registration or acceptance for deposit of documents at private residence reads thus: “31. Registration or acceptance for deposit at private residence – In ordinary cases the registration or deposit of documents under this Act, shall be made only at the office of the officer authorised to accept the same for registration or deposit. Registration or acceptance for deposit at private residence – In ordinary cases the registration or deposit of documents under this Act, shall be made only at the office of the officer authorised to accept the same for registration or deposit. Provided that such officer may, on special cause being shown attend at the residence of any person desiring to present a document for registration or to deposit a will, and accept for registration or deposit such document or will.” Going by the provisions of Section 31, Registering Officer may, on special cause being shown, attend at the residence of any person desiring to present a document or to deposit a Will for registration and accept such document or Will for the purpose of registration. Rule 50 of the Registration Rules (Kerala) provides that the Registering Officer shall obtain in his deposition book a statement from the party concerned justifying the urgency or reason for going to the residence of the executant of the document for receiving the document for registration and a copy of that statement shall be attached to the report of private attendance. It is for the Registering Officer to make a decision whether there are sufficient reasons for going to the residence of any person to present a document for registration. Once the Registering Officer is satisfied that there is special cause for attending the residence of a person, he is justified in going to the residence to receive the document for registration. Whether there are sufficient reasons for going to the residence of a person is a matter which has to be left to the subjective satisfaction of the registering officer. 5. Section 38 of the Act, 1908 exempts certain categories of persons from appearing at the registration office. It reads thus: "1. (a) A person who by reason of bodily infirmity is unable without risk or serious inconvenience to appear at the Registration Office, or (b) a person in jail under civil or criminal process, or (c) persons exempt by law from personal appearance in court, and who would but for the provision next hereinafter contained be required to appear in person at the Registration Office, shall not be required so to appear. (2) In the case of every such person the Registering Officer shall either himself go to the house of such person, or to the jail in which he is confined, and examine him or issue a commission for his examination." Sub-section (2) of Section 38 enjoins upon the Sub-Registrar to go himself to the house of a person referred to in sub-section (1) or to issue a commission for his examination. Going by Section 38 of the Act, 1908, a person who by reason of bodily infirmity is unable without risk or serious inconvenience to appear at the registration office is exempted from appearing at the registration office for registration and in the case of such a person, the Registering Officer shall either himself go to the house of such person and examine him or issue a commission for his examination. A similar provision is provided in the proviso to Section 33(1) of the Act, 1908 regarding the execution of power-of-attorney. Rule 48 of the Registration Rules (Kerala) provides that in the case of persons referred to in the proviso to Sections 31, 33(1) and 38 of the Act, 1908, the Registering Officer may attend at a private residence for the purpose of accepting or recording the admission of execution of a document. 6. In the statement filed by the respondent, he had stated that when he visited the petitioner's residence, she was seated in a wheelchair with a person holding her, and she had tremors in her hands, arms, legs, jaws and head with impaired balance and coordination. It is further stated that, when he asked the name of the petitioner, she could not understand the question at first and responded in a low murmuring voice due to her illness. It is also stated that when she was asked to sign the documents, she could not affix her signature, and when her companion holding her hands tried to put her signature on a trial paper, she forgot her signature. But the above-said reasons given by the respondent for not registering Exts.P3 and P4 do not find place as such in Annexure R1(a) report. But the above-said reasons given by the respondent for not registering Exts.P3 and P4 do not find place as such in Annexure R1(a) report. The only reason shown in Annexure R1(a) report, which is prepared and forwarded by the respondent under Rule 52 of the Registration Rules (Kerala) to the District Registrar, is that when he visited the residence of the petitioner, the health condition of the petitioner deteriorated and hence he returned without registering the document. 7. The learned Counsel for the petitioner submitted that the petitioner executed the Will after fully knowing its contents and she was in a sound disposing state of mind at the time when the respondent visited her residence for registration of the Will and the Power of Attorney. Admittedly, the petitioner is suffering from Parkinson's disease. She is 72 years old. The possibility that on the day when the respondent visited the residence of the petitioner, she could not understand the question put by the respondent properly and she could not sign the document on account of her illness and old age cannot be ruled out. Hence, I am of the view that one more opportunity can be given to the petitioner. In the counter statement, the respondent has stated that he is ready to register Exts.P3 and P4 documents when the executant is fit to execute the same. For the reasons stated above, this writ petition is disposed of as follows: (i) The respondent is directed to attend the private residence of the petitioner within two weeks from the date of receipt of a copy of this judgment, after giving prior intimation to the petitioner. (ii) The respondent shall conduct a fresh enquiry as contemplated under the Registration Rules (Kerala), 1958. (iii) After conducting such an enquiry, if the respondent is convinced that the Will is to be registered, he shall do so in accordance with the Act, 1908 and Registration Rules (Kerala), 1958.