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GPA EXECUTED BEFORE NOTARY IS IN-VALID FOR EXECUTING SALE DEED – GPA EXECUTED AND AUTHENTICATED BEFORE REGISTRAR OR SUB-REGISTRAR IS ONLY VALID


That Section 32 of the Registration act makes it imperative that every document to be registered shall be presented at the proper registration office by some person executing or claiming under the same or by the representative or assign of such person, agent, representative or assign duly authorised by power-of-attorney executed and authenticated in the manner provided by Section 33. In case a document is presented for registration by a person other than a party to it or his legal representative or assign or by a person who is not an agent authorised in the manner prescribed under Section 33 such presentation is wholly imperative and presentation of such a document is void. That the object of Sections 32 to 35 Is to avoid commission of frauds by means of registration under the Act by a person not duly authorised and it is the duty of the Court In India not to allow the imperative provisions of the Act to be defeated when it is proved that an agent who presented a document for registration had not been duly authorised in the manner prescribed by the Act to be presented. A Registrar has no jurisdiction to register a document unless he is moved to do so by a person who has executed it, or claims under it. or by the representative of such a person. That the object of the Legislature in enacting Section 32 is to prevent a mere outsider from presenting for registration a document with which he has no concern, and in which he has no interest. To allow all and sundry to present documents for registration would be to open a door to fraud and forgery and the Legislature, therefore. Intended to provide that the registration should be initiated by the document being presented for registration by a person "having a direct relation to the deed". If the presentation for registration was ab initio defective, in that it did not conform to the requirements of the provisions of the Indian Registration Act in that regard, then, such initial defect in presentation for registration affected the jurisdiction of the registering officer' to effect the registration of the document.

Further technical objection may be taken to such power of attorney. The Section 28 of the Registration Act, as is relevant in the context, provides that a document affecting immovable property shall be presented for registration in the office of a sub-registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.

CASE LAWS ON THE POINT

Justice Pratibha Bonnerjea, of Calcutta High Court in the case of Goswami Malti Vahuji Maharaj vs Purushottam Lal Poddar AIR 1984 Cal 297 Quotes following case laws:- In AIR 1928 Pat 304 (Elizabeth" May Toomey v. Bhupendra Nath Bose) a document was executed and registered under Sections 32 and 33 of the Registration Act on the strength of a Power of attorney which was challenged as invalid inter alia on the ground that in the Registrar's certificate on the document, the concerned power-of-attorney was described as a general power of attorney. It was contended that it did not authorise the agent Mr. Kennedy to admit execution or to present the same for registration. It was held at page 313:-- "The document purports to have been properly registered in accordance with the provisions of Sections 32 and 33, Registration Act. It was the duty of the Sub-Registrar to satisfy himself that the power-of-attorney gave Mr. Kennedy the necessary authority and it must he assumed until contrary is proved that he so satisfied himself' before he admitted the document for registration and signed the endorsement. I am certainly not prepared to find merely because the power-of- attorney is described as a general power in the Sub-Registrar's endorsement that it did not authorise Mr. Kennedy to admit execution or present the document for registration."

Justice Prabir Kumar Samanta, of Calcutta High Court in the case of Dulal Ranjan Ghosh Dastidar vs Rajani Tandon And Anr. 2004 (1) CHN 517 held “Section 32 of the said Act primarily stipulates that every document to be registered shall be presented at the proper Registration Office by some person executing the same. Section 33(1)(a) of the said Act provides that for the purpose of Section 32 i.e., for the purpose of presentation of a document for registration, only such Power of Attorney shall be recognised for such presentation which has been executed by the principal before and authenticated by the Registrar or Sub-Registrar within whose District or Sub-District the principal resides. Thus upon conjoint reading of Section 32 and Section 33(1)(a) of the said Act it appears that while Section 32 empowers the executants of a document to present the same for registration without any reservation, but requires the Power of Attorney to be executed before and authenticated by the Registrar or Sub-Registrar within whose District or Sub-District the principal resides for valid presentation for registration by the constituted attorney on behalf of the principal. ….. These two clauses read together make it clear that the agent, representative or assignee of the principal whether authorised or not to execute the document on behalf of the principal will be entitled to validly present the documents for registration only when such agent, representative or assignee has been duly authorised by Power of Attorney executed and authenticated in the manner provided under Section 33(1)(a). If that position is accepted, and it has to be accepted as such in view of the provisions contained therein, can it be said that only for the purpose of presentation of document for registration which has been executed by the principal himself such requirements would be necessary but for the purpose of execution of the document on behalf of the principal such requirements would not be necessary? Such interpretation would make the said provisions otiose, because by a Power of Attorney which is neither executed nor authenticated in the manner as provided under Section 33(1)(a) of said Act, an agent, representative or assignee of the principal who will not be entitled to validly present a document for registration would then be entitled not only to present for registration but also to execute the same on behalf of the principal. In other words each Clauses of Section 32 has its independent application and meaning and one has not the effect of substituted application over the other. Therefore, Section 32 read as a whole along with Section 33(1)(a) of the said Act would imply that whenever by a Power of Attorney a principal authorises his agent, representative or assignee to execute a document on his behalf, such Power of Attorney would be required to be authenticated in the manner provided under Section 33(1)(a) of the said Act.”

The following privy council case laws are quoted on the point By Justice Ratnam of Madras High Court Judgement in the case of Sekar Mudaliar And Etc vs Shajathi Bi And Anr. Reported in AIR 1987 Mad 239,

Mujibunnissa v. Abdul Rahim (1901) I.L.R. 23 A11. 233 (P.C.) : 288415 the Privy Council pointed out that the principle in that decision would apply to that case as well and that the principle is that a Registrar or a Sub Registrar has no jurisdiction to register a document, unless he is moved to do so by a person who has executed or claims under it or by the representative or assign duly authorised by a power of attorney executed and authenticated in manner prescribed in Section 33 of that Act. It was also further pointed out that the executants of a deed attending the Registrar or a Sub Registrar merely for the purpose of admitting the execution, cannot be treated for the purposes of Section 32 of Act III of 1877, as presenting the deed for registration and their assent to the registration will not be sufficient to give the Registrar jurisdiction. The object of Sections 32, 33, 34 and 35 of Act III of 1877 was pointed out to be to make it difficult for persons to commit frauds by means of registration under the Act. The Privy Council further pointed out the duty of the courts in this connection and stated that Courts ought not to allow the imperative provisions of the Act to be defeated when as in that case, it was proved that an agent who presented a document for registration had not been duly authorised in a manner prescribed by the Act to present it.

In Dottie Karan v. Lachmi Prasad A.I.R. 1931 P.C. 52 : 33 L.W. 566 : 589 A 58 : 60 M.L.J. 441, the validity for presentation of a document for regulation by a power of attorney agent, the power in whose favour contained an alteration in the date, came to be considered. The Privy Council pointed out that the date in the power of attorney was altered and the registration of the mortgage was not effected in accordance with the provisions of the Registration Act and that the deed was not properly registered, not being presented for registration by an authorised agent. It was also further laid down that such a defect was not one merely of procedure, but one of jurisdiction in the registering officer.

In a Single Bench decision of the Andhra Pradesh High Court reported in AIR 1958 Andh Pra 107, D. Sardar Singh v. Pissumal H. Bankers, it was held that where a person holding a power-of-attorney executes a sale-deed he cannot present it for registration unless he holds a power-or-attorney satisfying the requirements of Section 33.

In AIR 1927 Bom 487 (FB), Sitaram v. Dharma-sukhram, held that a person executing a document on behalf of himself and another under a power-of-attorney from the latter, which power does not comply with Section 33 or the Indian Registration Act is competent to appear before the Registrar to admit the execution of that document.

NOTARISED GPA WHERE ITS IS ACCEPTED

Jugraj Singh & Anr vs Jaswant Singh & Ors 1971 AIR 761, 1971 SCR (1) 38 The first power of attorney was not authenticated as required by s; 33 of the Indian Registration Act which in the case of an Indian residing abroad, requires that the document should be authenticated by a Notary Public. The document only bore the signature of a witness without anythingto show that he was a Notary Public. In any event there was no authentication by the Notary Public (if he was one) in the manner which the law would consider adequate. The second power of attorney however did show that it was executed before a proper Notary Public who complied with the laws of California and authenticated the document as required by that law, and was also duly authenticated in accordance with our laws. The only complaint was that the Notary Public did not say in his endorsement that V had been identified to his satisfaction. But that flows from the fact that he endorsed on the document that it had been subscribed and sworn before him. There is a presumption of regularity of official acts and he must have satisfied himself in the discharge of his duties that the person who was executing it was the proper person. This made the second power of attorney valid and effective both under s. 85 of the Indian Evidence Act and s. 33 of the Indian Registration Act.

BHATORI VS RAM PIARI 1996 AIR 2754 = 1996 ( 4 ) Suppl. SCR 180 = 1996 (11 ) SCC 655 = 1996 ( 7 ) JT 210 = 1996 ( 5 ) SCALE 752 POWER OF ATTORNEY HOLDER ALIENATING THE LANDS IN THE NAME OF HIS WIFE DEFRAUDING THE LAND OWNER – FRAUD UNRAVELS EVERYTHING 1996 SC

LINK :- http://www.scribd.com/doc/98082473/POWER-OF-ATTORNEY-HOLDER-ALIENATING-THE-LANDS-IN-THE-NAME-OF-HIS-WIFE-DEFRAUDING-THE-LAND-OWNER-%E2%80%93-FRAUD-UNRAVELS-EVERYTHING-1996-SC

WHEN AGENT WANTS TO SELL PROPERTY BASED ON POWER OF ATTORNEY IT SHOULD HAVE BEEN EXECUTED AND AUTHENTICATED AS DISCLOSED SECTION 33 REGISTRATION ACT 2009 SC
RAJNI TANDON VS DULAL RANJAN GHOSH DASTIDAR & ANR 2009 (11 ) SCR 686 = 2009 (14 ) SCC 782 = 2009 (11 ) JT 666 = 2009 (10 ) SCALE 402

LINK :- http://www.scribd.com/doc/98082405/When-Agent-Wants-to-Sell-Property-Based-on-Power-of-Attorney-It-Should-Have-Been-Executed-and-Authenticated-as-Disclosed-Section-33-Registration-Act-2


Clause (a) of Section 32 specifies that a document can be presented for registration (i) by the person executing the document; (ii) any person claiming under the document presented for registration and (iii) in the case the said document is a copy of a decree or order, any person claiming under the decree or order.

Clause (b) and (c) deal with cases where the document is presented not by any person mentioned in (i), (ii) and (iii) of sub clause (a) but by their agent, representative or assign.

This is so because the use of the words "such person" in clause (b) and (c) can be understood to mean only persons as referred to in (i), (ii) and (iii) above. In so far as clause (c) of Section 32 is concerned, the agents, representative or assigns of the persons referred to in (i), (ii) and (iii) can present the said document for registration only if they are duly authorized by power-of-attorney and executed and authenticated. The words "executed and authenticated in Section 32 (c) would mean the procedure specified in Section 33.


The object of registration is designed to guard against fraud by obtaining a contemporaneous publication and an unimpeachable record of each document. The instant case is one where no allegation of fraud was raised. In view thereof the duty cast on the Registering Officer under Section 32 of the Act was only to satisfy himself that the document was executed by the person by whom it purports to have been signed. The Registrar upon being so satisfied and upon being presented with a document to be registered had to proceed with the registration of the same. ……………….. Where a deed is executed by an agent for a principal and the same agent signs, appears and presents the deed or admits execution before the Registering Officer, that is not a case of presentation under Section 32 (c) of the Act. The provisions of Section 33 will come into play only in cases where presentation is in terms of Section 32 (c) of the Act. In other words, only in cases where the person signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33 (1) (a) of the Act.


Case Law Reference:

AIR 1915 Nagpur 18 referred to Para 16
AIR 1920 Calcutta 316 referred to Para 16
AIR 1924 Allahabad 148 referred to Para 16
AIR 1938 ALL 170 referred to Para 16
AIR 1960 Punjab 226 referred to Para 16
AIR 1984 Calcutta 297 referred to Para 16
AIR 1958 A.P. 107 referred to Para 17
AIR 1961 Calcutta 540 referred to Para 17
(2006) 9 SCC 591 relied on Para 20
AIR 1950 Bombay 326 referred to Para 23


CONCLUSION:- When a person residing in india where the registration act applies, if he executes GPA to sell his property, in order to have legality it should be executed before Registrar or Subregistrar of the place where he resides. Without such valid GPA, notary GPA is not valid.


2 comments:

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