Mercy Xavier v. Union of India and others

**WP(C).No. 24360 of 2018** ## **PETITIONER** **DR.MRS.MERCY XAVIER, AGED 81 YEARS, W/O.LATE XVIER, RETIRED DISTRICT MEDICAL OFFICER, GOVERNMENT SERVICE, MALAPPURAM, NOW RESIDING AT ANJIPARAMBIL HOUSE, GANDHI NAGAR, KALOOR P.O., COCHIN-682 017.** **BY ADV.SRI.FRANKLIN CHELLATH** ## **RESPONDENTS:** **1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI-110 001.** **2. SUB REGISTRAR,** **PATTOM, THIRUVANANTHAPURAM-695 001.** **3. STATE OF KERALA,** - **REPRESENTED BY SECRETARY TO REGISTRATION DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM-695 001.** **4. EVA BENNY ABRAHAM, ADHAR CARD NO.7595 8048 7094, PAN CARD NO.ABFPE015PC, W/O.SONU MAMMEN ABRAHAM, AGED 36 YEARS, OFFICER, BSNL TRIVANDRUM, PATTOM BARANCH, RESIDING AT SANKEERTHANAM, C-15/3, MYTHRI NAGAR, VALIYAVILA, THIRUMALA P.O., PIN-695 006.** **R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA R2 & R3 BY GOVERNMENT PLEADER SMT. A.C. VIDHYA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 24360 of 2018 (T)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXT.P1: TRUE COPY OF LEGAL HEIR SHIP CERTIFICATE DATED 05.04.2017 OF THE LATE K.E.XAVIER ISSUED BY TAHSILDAR KANAYANRUR. EXT.P2: POWER OF ATTORNEY 6.3.2018 EXECUTED BY SEEMA ELIZABETH ANOTNY, NOW A US CITIZEN, 16522, WESTWEGO TRAIL, CYPRESS, TEXAS-77429 IN FAVOUR OF PETITIONER. EXT.P2(A): ENDORSEMENT MADE BY REVENUE DIVISIONAL OFFICER OVER THE POWER OF ATTORNEY FORT KOCHI DATED 07.07.2018. EXT.P3: OVERSEA CITIZEN OF INDIA CARD IN THE NAME OF SEEMA ANTONY TO SHOW THAT HER PLACE OF BIRTH IS IN INDIA (TWO SHEETS) DATED 11.04.2014.** ## **RESPONDENTS EXHIBITS NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/24.7.18** ## **ALEXANDER THOMAS, J. ======================== W.P.(C)No.24360 of 2018** **=========================** Dated this the 23[rd] day of July, 2018 ## **JUDGMENT** It is stated that the petitioner and her deceased husband, K.E.Xavier, who are Indian citizens had purchased jointly a Flat No.3A (formerly A2), on the 3[rd] floor of a multi storeyed building known as “Samariyas Centre” under Survey No.2215 of Pattom Madathuvilakam Village in Thiruvananthapuram Taluk under document No.3511/2002 of Pattom Sub-Registry, Thiruvananthapuram. After the death of her husband, the petitioner and her two children, viz., Jose K.Xavier and Seema Antony intended to dispose of that residential flat to contesting respondent No.4, who is an Indian citizen. The petitioner had obtained Legal Heirship Certificate from the Tahsildar, Kanayannur as per Ext.P-1. That the petitioner's daughter Seema Antony was earlier an Indian citizen by birth and is now an American citizen after her marriage and she has executed Ext.P-2 power of attorney dated 06.03.2018 in favour of the petitioner, in order to convey her rights for the said flat. Thereafter, petitioner's daughter Seema Antony had also forwarded Overseas Citizen of India card (OCI card) showing that her place of birth is India. The petitioner W.P.(C)No.24360 of 2018 2 and her son Jose K.Xavier will be appearing before the Registrar personally at the time of registration of the sale deed so as to convey the rights of the petitioner, her daughter and her son to the beneficiary of the said sale deed etc. 2. It is further averred that now it has been informed from the office of the 2[nd] respondent-SRO, Pattom, Thiruvananthapuram that the petitioner's daughter will have to affix her passport size photograph and finger prints to the sale deed to be executed, in view of Sec.32A of the Registration Act, 1908 and also the provisions under the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulation, 2000 etc. The petitioner would contend that the said insistence by the 2[nd] respondent-SRO is against the dictum laid down by this Court in the case in _**Ayisha Beebee v. State of Kerala**_ reported in _**2010 (3) KLT 273**_ . In the light of these aspects, the petitioner has preferred the instant Writ Petition (Civil) with the following prayers: “a) To issue a writ of mandamus directing 2[nd] respondent to facilitate the conveyance of ownership over the flat 3A (Formerly A2) of multi storeyed building known as Samariyas Centre at Survey No.2215 of Pattom Madathuvikam Village in Thiruvananthapuram Taluk, covered under document No.3511 of 2002 of W.P.(C)No.24360 of 2018 3 Pattom Registry, Trivandrum Sub Registry by petitioner and her son personally and daughter Seema Anthony represented by power of attorney holder through petitioner in favour of 4[th] respondent without further delay. - b) To issue such other orders that this Hon'ble Court may deem fit to grant in the circumstances of the case.” 2. Heard Sri.Franklin Chellath, learned counsel appearing for the petitioner and Smt.A.C.Vidhya, learned Government Pleader appearing for the respondents 1 and 3. 3. The petitioner's counsel would place reliance on the decision of this Court in _**Ayisha Beebee v. State of Kerala**_ reported in _**2010 (3) KLT 273**_ in order to advance the contention that the 2[nd] respondent insisted the petitioner's daughter that she should also affix her thumb impression in the sale deed, is illegal and _ultra vires_ etc. The learned Government Pleader would submit that the decision rendered by this Court in _**Ayisha Beebee v. State of Kerala**_ reported in _**2010 (3) KLT 273**_ has no application and facts of this case, as it only relates to the situations where persons of Indian origin, residing outside India, may transfer any immovable property in India, other than agricultural land/farm house/plantation property, by way of sale W.P.(C)No.24360 of 2018 4 to a person resident in India etc. On the other hand, the learned Government Pleader would place reliance on the provisions contained in Sec.32A of the Registration Act, 1908 as introduced thereto by way of the State amendment as per Amendment Act 48/ 2001 as well as the decision of this Court in _**Joseph George v. State of Kerala and others**_ reported in _**2017 (4) KHC 948**_ etc. 4. A reading of the decision of this Court in _**Ayisha Beebee v. State of Kerala**_ reported in _**2010 (3) KLT 273**_ would show that the main issues considered by this Court was in respect of the provisions contained in the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulation, 2000 more particularly as per Reg.2(c) and 4(b) thereof and it was held that persons of Indian origin, residing outside India, may transfer any immovable property in India, other than agricultural land/farm house/plantation property, by way of sale to a person resident in India. The said decision does not deal with the impact of Sec.32A of the Registration Act, 1908 as introduced by way of State amendment. Sec.32A of the Registration Act, 1908 as introduced by Sec.5 of the State W.P.(C)No.24360 of 2018 5 ## Amendment Act 48/2001 reads as follows: “ **32A. Compulsory affixing of photograph, etc** .- Every person presenting any document at the proper registration-office under Section 32 shall affix his passport size photograph and fingerprints to the document: Provided that where such document relates to the transfer of ownership of immovable property, the passport size photograph and fingerprints of each buyer and seller of such property mentioned in the document shall also be affixed to the document.” ## 5. This Court in the judgment in _**Joseph George v.**_ ## _**State of Kerala and others**_ reported in _**2017 (4) KHC 948**_ held in para.6 thereof are as follows: “6. 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. 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 W.P.(C)No.24360 of 2018 6 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.” 6. The abovesaid contention made by the petitioner that it is not open to the 2[nd] respondent-SRO to insist for the affixture of the fingerprint and passport size photograph of the executants of the sale deed etc. is bereft of any merit, in view of the specific provision contained in that regard in Sec.32A of the Registration Act, 1908. 7. It is for the executants of the proposed sale deed to comply with the requirements of law and to present it for registration, if so advised and upon such presentation, the 2[nd] respondent-SRO will register such a sale deed, if it is otherwise in order. With these observations and directions, the above Writ Petition (Civil) will finally stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** vgd/23.07.18