Saji Mathew v. State of Kerala and Sub Collector & Revenue Divisional Officer, Kottayam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942** ## **W.P.(C) No.25801 OF 2020(A)** ## **PETITIONER/S:** **SAJI MATHEW AGED 57 YEARS S/O. MATHEW, PUTHUKUDIYIL HOUSE, THURUTHY P.O. VAZHAPPALLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT.** **BY ADVS. SRI.P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, STATE SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2 SUB COLLECTOR AND REVENUE DIVISIONAL OFFICER, OFFICE OF THE SUB COLLECTOR AND REVENUE DIVISIONAL OFFICER, MINI CIVIL STATION, KOTTAYAM 686 101.** ## **OTHER PRESENT:** ## **SR.GP - SMT. AMMINIKUTTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.25801 OF 2020(A) 2 ## **JUDGMENT** The petitioner, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 communication dated 13.11.2020 issued by the 2[nd] respondent Revenue Divisional Officer, whereby the petitioner was informed, that he is not a person authorised to receive Power of Attorney in terms of Section 17(1)(g) of the Registration (Kerala Amendment) Act, 2012. The petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent Revenue Divisional Officer to receive Ext.P1 Power of Attorney dated 27.08.2020 and adjudicate the stamp duty payable on the same, receive the stamp duty payable and stamp the same in accordance with Section 18 of the Kerala Stamp Act, 1959. 2. On 24.11.2020, when this writ petition came up for admission, the learned Government Pleader sought time to get instructions. 3. Heard the learned counsel for the petitioner and the learned Senior Government Pleader for respondents. 4. In the instant case, Ext.P1 power of attorney dated 27.08.2020 is one executed by Joseph Kaduthanam, S/o. Late Pothen Thomas, in favour of the petitioner, which is executed W.P.(C) No.25801 OF 2020(A) 3 before the competent authority in Germany and attested by the German Attesting Authority. The petitioner produced Ext.P1 power of attorney before the 2[nd] respondent Sub Collector and Revenue Divisional Officer, Kottayam, under section 18 of the Kerala Stamp Act seeking to adjudicate the stamp duty payable and to impound the same after receiving the value of stamp so adjudicated. Ext.P2 is the application made by the petitioner dated 30.10.2020 in that regard. The request made in Ext.P2 stands rejected by Ext.P4 communication dated 13.11.2020 issued by the 2[nd] respondent, whereby the petitioner was informed that no action can be taken pursuant to the request made by the petitioner in Ext.P2 on Ext.P1 power of attorney since the petitioner is not a person authorised to receive power of attorney in terms of Clause (g) of sub-section (1) of Section 17 of the Registration Act, 1908 as amended by the Registration (Kerala Amendment) Act, 2012. 5. Section 17 of the Kerala Stamp Act, 1959 deals with instruments executed in the State of Kerala. As per Section 17, all instruments chargeable with duty and executed by any person in the State of Kerala shall be stamped before or at the time of execution. Section 18 of the Act deals with instruments executed outside India. As per sub-section (1) of Section 18, every W.P.(C) No.25801 OF 2020(A) 4 instrument chargeable with duty executed only out of India may be stamped within three months after it has been first received in the State of Kerala. As per sub-section (2) of Section 18, where any such instrument cannot, with reference to the description of stamp prescribed therefor, be duly stamped by a private person, it may be taken within the said period of three months to the Collector who shall stamp the same, in such manner as the Government may by rules prescribe, with a stamp of such value as the person so taking such instrument may require and pay for. 6. In **Thomas C. Kunjachan v. Revenue Divisional Officer and another [2017 (4) KHC 335]** a Division Bench of this Court noticed that the normal rule regarding time of stamping an instrument is specified in Section 17 of the Kerala Stamp Act. It is to be stamped before or at the time of execution. Section 18 is an exception in relation to instruments executed outside India. It provides for stamping within three months of being first received in India. However, Section 33 of the Act clearly provides that where an instrument chargeable with duty is produced before a person specified in charge of a public office, on which duty as specified is not paid, then such person shall impound and send the same to the Collector. The document having been impounded, W.P.(C) No.25801 OF 2020(A) 5 Section 34 of the Act provides that an instrument not duly stamped cannot be admitted in evidence. But when comes to Section 39 of the Act, which clearly authorises the Collector to stamp the instrument impounded and once it is stamped with penalty, the consequences under Section 41 of the Act would follow and it becomes a valid instrument for all purposes thereafter. Therefore, the Division Bench directed the Revenue Divisional Officer, Kollam to impound the document as and when presented before him and ensure payment of deficit duty and penalty and immediately endorse the same and return the document to the appellant so that further inconvenience is avoided. Paragraphs 5 and 6 of the said decision read thus; “5. We are indeed surprised that the Revenue Divisional Officer, who should have been aware of these provisions, being the Collector under the Act, has abdicated his duty. Instead of sticking to hyper technicalities, he could very well have indicated to the writ petitioner/appellant that the document being not duly stamped, was required to be impounded and could have asked him to remit the stamp deficit and pay the penalty. Once that was done, the instrument gets its validity again. But instead he chose to keep quiet and dragged the petitioner to the corridors of this Court. The only consequence is that time and money of everybody including this Court has been wasted. 6. However, in view of the aforesaid statutory scheme, we W.P.(C) No.25801 OF 2020(A) 6 would direct the first respondent/Revenue Divisional Officer, Kollam to impound the document as and when presented before him and ensure payment of deficit duty and penalty and immediately endorse the same and return the document to the appellant so that further inconvenience is avoided. The document so endorsed would then be a valid document for all practical purposes in terms of Section 41(2) of the Act, which provision was not brought to the attention of the learned Single Judge. We, therefore, are constrained to set aside the judgment of learned Single Judge and thus allow the appeal with the aforesaid directions.” 7. Section 17 of the Registration Act, 1908 deals with documents of which registration is compulsory. Clause (g) of subsection (1) of Section 17, inserted by the Registration (Kerala Amendment) Act, 2012 reads thus; “(g) Power of attorney creating any power or right of management, administration, development, transfer or any other transaction relating to immovable property of the value of one hundred rupees and upwards other than those executed in favour of father, mother, wife, husband, son, adopted son, daughter, adopted daughter, brother, sister, son-in-law or daughter-in-law of the executant.” 8. Section 33 of the Registration Act deals with power of attorney recognisable for the purpose of Section 32. Clause (c) of sub-section (1) of Section 33 of the Act reads thus; “(c) if the principal at the time aforesaid does not reside in India, a power of attorney executed before and W.P.(C) No.25801 OF 2020(A) 7 authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or vice-consul, or representative of the Central Government: Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely:-- (i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend; (ii) persons who are in jail under civil or criminal process; and (iii) persons exempt by law from personal appearance in the court. Explanation.- In this sub-section, "India" means India, as defined in clause (28) of section 3 of the General Clauses Act, 1897 (X of 1897).” 9. In **Cherryl Ann Joy v. Sub Registrar,** **Udumbanchola [2018 (4) KHC 542]** this Court held that a mere perusal of the provisions under the Registration Act, more particularly those contained in Sections 32, 33 and sub-section (1) of Section 17, will make it clear that the scenario covered by clause (c) of sub-section (1) of Section 33 deals with the situation of all types of powers of attorney which have been executed by an executant, who is not residing in India, in the manner stipulated therein. Clause (c) of sub-section (1) of Section 33 does not make any distinction as to the purpose for which the power of attorney W.P.(C) No.25801 OF 2020(A) 8 conceived therein is executed. Whereas the specific provision contained in clause (g) of sub-section (1) of Section 17 deals only with those specific types of powers of attorney which create power or right of management, administration, development, transfer or any other transaction relating to immovable property of the value of Rs.100/- and upwards other than those executed in favour of the exempted categories therein. Therefore, the specific scenario covered by clause (g) of sub-section (1) of Section 17, deals with special cases of the powers of attorney as envisaged therein. Hence the said specific provision contained in clause (g) of subsection (1) of Section 17 would have overriding effect over the one covered by clause (c) of sub-section (1) of Section 33. So long as the power of attorney conceived in clause (c) of sub-section (1) of Section 33 is not one which is creating power, right of management, administration, development, transfer or any other transaction relating to immovable property of the value of Rs.100/and above, other than those exempted categories mentioned therein, the executant can take the benefit of clause (c) of subsection (1) of Section 33 if such a power of attorney has been duly executed and authenticated in the manner stipulated in clause (c) of sub-section (1) of Section 33 which would confer competence to W.P.(C) No.25801 OF 2020(A) 9 the power of attorney to present the documents for registration under Section 32. 10. In **Cherryl Ann Joy,** on the facts of the case, this Court noticed that, the relationship between the petitioner and her power of attorney as per Ext.P2 will not come within the exempted categories of relationships mentioned in clause (g) of sub-section (1) of Section 17 as the latter is the former's father's brother. So the petitioner will have to comply with the requirement of registration of her power of attorney as per clause (g) of subsection (1) of Section 17 and she cannot claim the benefit of clause (c) of sub-section (1) of Section 33. Therefore, the stand taken by the respondent Sub Registrar in Ext.P4 letter is lawful and tenable and is not liable to be interdicted. The respondent Sub Registrar can act upon Ext.P2 power of attorney only if it is registered in terms of the provisions contained in the Registration Act. 11. In view of the provisions under Section 18 of the Kerala Stamp Act and also the law laid down by the Division bench of this Court in **Thomas C. Kunjachan [2017 (4) KHC 335]** , the reasoning of the 2[nd] respondent in Ext.P4 communication for not considering Ext.P2 request made by the petitioner under Section W.P.(C) No.25801 OF 2020(A) 10 18 of the Kerala Stamp Act cannot be sustained in law. In view of the provisions under clause (g) of sub-section (1) of Section 17 of the Registration Act, Ext.P1 power of attorney is a document which requires compulsory registration. The question of registration of Ext.P1 power of attorney arises only after the 2[nd] respondent taking an appropriate decision on Ext.P2 request made by the petitioner, invoking his powers under Section 18 of the Kerala Stamp Act. 12. In such circumstances, this writ petition is disposed of by setting aside Ext.P4 communication dated 13.11.2020 issued by the 2[nd] respondent and directing the said respondent to consider and take an appropriate decision on Ext.P2 request made by the petitioner, in accordance with Section 18 of the Kerala Stamp Act, taking note of the law laid down by the Division Bench in **Thomas C. Kunjachan** , as expeditiously as possible, at any, within a period of two weeks from the date of receipt of a certified copy of this judgment, after affording the petitioner an opportunity of being heard. Sd/- ## **ANIL K. NARENDRAN** **JUDGE** **MIN** W.P.(C) No.25801 OF 2020(A) 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE POWER OF ATTORNEY DATED 27.8.2020.** **EXHIBIT P2 TRUE COPY OF THE APPLICATION BEFORE THE 2ND RESPONDENT SUMMITED BY THE PETITIONER DATED 30.10.2020.** **EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF EXT. P2 DATED 30.10.2020. EXHIBIT P4 TRUE COPY OF THE NOTICE OF THE 2ND RESPONDENT UNDER SECTION 17(1) (G) OF REGISTRATION (KERALA AMENDMENT) ACT, 2012 DATED 13.11.2020.**