Supreme Court: While considering the instant appeal revolving around the validity of a registered Irrevocable General Power of Attorney, the Division Bench of Sanjay Kumar and K.V. Viswanathan, JJ., took note of the contradiction on the issue that whether a power-of-attorney holder, who signs a sale deed on behalf of the principal, would become the ‘executant’ and thus be covered by Section 32(a) of the Registration Act, 1908 (the Act) and need not fulfil the requirements of Sections 32(c) and 33 of the Act.
It was observed that Supreme Court’s interpretation of the afore-stated issue in Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2009) 14 SCC 782, deviated from the statutory scheme under Part VI of the Act. Therefore, the issue was referred to a Larger Bench for a conclusive resolution of the conflict.
Background:
The appeals revolved around the validity of a registered Irrevocable General Power of Attorney dated 15-10-1990 allegedly executed by RS and his wife GB, in favour of their tenant GRK, and, which in turn opened the issue of the validity of the three registered sale deeds dated 16-11-1990, 18-07-1991 and 16-08-1991 respectively executed by the tenant GRK, the power-of-attorney holder, in favour of his wife, GS.
RS denied the execution of such General Power of Attorney and in that context the Trial Court framed an issue as to ‘whether RS had appointed GRK as his General Power of Attorney and whether the sale deeds executed by GRK in favour of GS as a General Power of Attorney were valid’.
Thereafter, the very admissibility of the General Power of Attorney dated 15-10-1990 and the three sale deeds executed by the power-of-attorney holder was called in question before the Trial Court and four additional issues were framed. One of the additional issues was whether the alleged General Power of Attorney dated 15-10-1990 was authenticated by the Registrar, as required under Sections 32, 33, 34 and 35 of the Registration Act, 1908 (‘the Act’). Another additional issue was as to whether the Registrar had recognized GRK, the alleged power-of-attorney holder, at the time of execution of the three sale deeds, as required under Section 34(3)(c) of the Act read with Rule 53 of the Rules framed thereunder.
Court’s Assessment:
While perusing the issues, the Court took note of Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2009) 14 SCC 782, wherein the Supreme Court held that when a document is executed by an agent for a principal in terms of a power of attorney and the same agent signs, appears and presents the said document or admits its execution before the registering officer, it would not be a presentation falling under Section 32(c) of the Act and there would be no necessity for ‘authentication’ of the power of attorney, as required by Section 33(1)(a) of the Act.
The Court took note of statutory scheme under Part VI of the Registration Act titled, ‘Of presenting documents for registration’ and comprises Sections 32 to 39. The Court stated that Section 32 details the persons competent to present a document for registration before the registering authority. As per Section 33 of the Act, the power of attorney recognizable for the ‘purposes of Section 32’ has to fulfil the requirements set out therein to validate it and, in consequence, the presentation of the document by such power-of-attorney holder for registration.
Further, Section 34(3)(a) of the Act casts a duty on the registering officer to enquire whether or not the document presented for registration was executed by the person(s) by whom it purports to have been executed; satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear. Finally, Section 35 of the Act speaks of the registering officer satisfying himself as to the competence and identity of the person(s) presenting the document for registration.
However, the Supreme Court in Rajni Tandon (supra) had opined that if the power-of-attorney holder is authorized to execute a document (for e.g., a sale deed), he would then become the ‘executant’ of the sale deed and can directly present it for registration under Section 32(a) of the Act, and it would not be necessary to apply the tests prescribed under the Act apropos powers-of-attorney.
Taking note of the dictum laid down in Rajni Tandon (supra) and statutory scheme under Part VI of the Act, the Division Bench in the instant case expressed its difficulty to subscribe to the view taken in Rajni Tandon (supra).
The Court observed that a power-of-attorney holder executes a document, not in his own name but in the name of his principal, and signs it on behalf of the principal by virtue of the authority conferred upon him by the power of attorney. He does not, thereby, become the ‘executant’ of the sale deed as the said sale deed would invariably be executed in the name of the principal, who would be shown therein as represented by the power-of-attorney holder. “The power-of-attorney holder, therefore, does not become the ‘executant’ referred to in Section 32(a) of the Act but would still remain the agent and, by virtue of being authorized by the power of attorney, he merely executes and signs it on that principal’s behalf”.
Generally, a power of attorney not only authorizes the power-of-attorney holder to execute documents of transfer, i.e., sale deeds, on behalf of the principal, but further authorizes them to present such sale deeds for registration before the registering officer. Therefore, a power-of-attorney holder, having signed the document as an agent of the principal pursuant to the authority conferred on him by the power of attorney, then presents it for registration, having been specifically authorized to do so by the power of attorney, and not because he is the ‘executant’ of the document in terms of Section 32(a) of the Act.
The Division Bench pointed out that a contrary interpretation as done in Rajni Tandon (supra), will lead to incongruous situation where “a notarized power-of-attorney holder who executes a sale deed, would become its ‘executant’ in terms of Section 32(a) of the Act and would be entitled to get the sale deed registered without further ado but, (…) if that notarized power-of-attorney holder then executes a power-of-attorney, even if registered, in favour of any person to merely present the sale deed executed by him for registration, then that registered power-of-attorney holder has to pass the tests set out in Sections 32(c), 33, 34 and 35 of the Act!”
The Court further pointed out that the Bench in Rajni Tandon (supra) did not note that Section 34(3) of the Act requires the registering officer to conduct a detailed enquiry as to whether the document presented for registration was executed by the persons by whom it ‘purports to have been executed’ and also satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document. Furthermore, Section 35(2) of the Act posits a duty upon the registering officer to satisfy himself that the persons appearing before him are the persons ‘they represent themselves to be’.
Considering the facts of the case, the Court pointed out that elevating GRK, the power-of-attorney holder to the status of ‘the executant’ of the sale deeds in question, would be contrary to the recitals in the sale deeds themselves, as the sale deeds name the principals, as the executants and not the power-of-attorney holder, who allegedly represented them and signed the sale deeds on their behalf.
By merely signing a document on behalf of the principal, a power-of-attorney holder does not lose his status as an agent of that principal and become the ‘executant’ in his own right. Such an agent would, therefore, continue to be covered by Section 32(c) of the Act as he would then present the signed document for registration only as an agent and must necessarily satisfy the requirements of Sections 32(c), 33. 34 and 35 of the Act and the rules framed in that context. However, Rajni Tandon (supra) holds to the contrary and declares that a power-of-attorney holder who signs a sale deed on behalf of the principal would become the ‘executant’ thereof and would be covered by Section 32(a) of the Act, whereby he/she need not fulfil the requirements of Sections 32(c) and 33 of the Act.
With the afore-stated assessment and expressing disagreement with the ratio in Rajni Tandon (supra), the Court therefore opined that the issue requires to be addressed and conclusively settled by a Larger Bench. Therefore, the Court directed the Registry to obtain necessary orders from the Chief Justice as to the expeditious listing of these appeals before an appropriate Bench.
[G. Kalawathi Bai v. G. Shashikala, 2025 SCC OnLine SC 1437, decided on 15-7-5025]
Advocates who appeared in this case:
For Petitioner(s) Mr. V Giri, Sr. Adv. Mr. D. Abhinav Rao, AOR Mr. Nihaar Dharmadikari, Adv. Mr. Abhisek Das, Adv. Ms. Megha Shaw, Adv. Mr. Raghav Bherwani, Adv.
For Respondent(s) Mr. Sumit Teterrwal, AOR
