Sunny Sebastiane vs The State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY ,THE 20TH DAY OF AUGUST 2018 / 29TH SRAVANA, 1940** ## **WP(C).No. 27697 of 2018** ## **PETITIONER/S:** **SUNNY SEBASTIANE AGED 60 YEARS, S/O.SEBASTIANE, PARAYANIKUZHIYIL HOUSE, ATHIRAMPUZHA P O,KOTTAYAM DISTRICT-686562** ## **BY ADV. SREEKUMAR CHELUR** ## **RESPONDENT/S:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REP BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF**| ||**REGISTRATION, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM. 695001.**| |**2**|**THE DISTRICT REGISTRAR**| ||**OFFICE OF THE DISTRICT REGISTRAR, THRISSUR 680581.**| |**3**|**THE SUB REGISTRAR**| ||**CHELAKARA SUB REGISTRY OFFICE, CHELAKKARA P.O.,**| ||**THRISSUR 680586.**| ||**BY SR.GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J. ------------------------------------------W.P.(C)No.27697 of 2018 --------------------------------------------Dated this the 20[th] day of August, 2018** ## **JUDGMENT** According to the petitioner one Smt.Rose Thomas, who is permanently settled in the United Kingdom, has executed Ext.P1 power of attorney dated 05.02.2018 whereby the petitioner has been appointed as her power of attorney holder and the said power of attorney has been executed in the presence of the Indian Consular, Assistant Consular Office, High Commissioner of India at London and petitioner has also been authorised to enter into transactions for sale of property of the said Smt.Rose Thomas. That Ext.P1 power of attorney was sent for adjudication, on which Ext.P2 order dated 23.4.2018 was passed by the notified Collector (RDO) and further steps have been taken thereon as per Exts.P3 to P5, etc. According to the petitioner, based on the authorisation of the said principal, the petitioner had presented a sale deed for registration on the strength of Ext.P1 power of attorney, before the 3[rd] respondent Sub Registrar, SRO, Chelakara but that the 3[rd] respondent has refused to register the said sale deed on the ground that Ext.P2 power of attorney is not registered. Thereupon the petitioner has submitted a request before the District Registrar pointing W.P.(C)No.27697 of 2018 ..3.. out his grievances regarding the said refusal on the part of the 3[rd] respondent SRO. The petitioner would contend that the stand of respondents 2 and 3 that Ext.P1 power of attorney requires registration for the purpose of acting upon it for registration of a sale deed, in view of provisions contained in Section 17(1)(g) of the Registration Act, 1908 is untenable and has been made without considering the impact of the specific provision contained in Section 33(1)(c) of the Registration Act which recognizes the power of attorney executed as in the present case. It is in the light of these factual averments that the petitioner has filed this writ petition (civil) with the following prayers:- _(i) Call for the records leading to Ext. P7 and may be pleased to issue a writ of certiorari to quash the same._ _(ii) Issue a writ of Mandamus or any other appropriate writ, order or direction commanding the respondents 2 and 3 to permit the petitioner to execute the sale deed on the strength of Ext. P1 and have the same registered within stipulated time limits, in the interest of justice._ _And_ _iii) To pass any such or further orders as the petitioner may seek and this Hon'ble Court deem fit to grant._ 2. Heard Sri.Sreekumar Chelur, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government W.P.(C)No.27697 of 2018 ..4.. Pleader appearing for the respondents. 3. The main contention raised by the petitioner is that the stand of respondents 2 and 3 that Ext.P1 power of attorney which has been executed before the Indian Consulate concerned requires registration in view of Section 17 (1) (g), is not tenable in view of the mandatory provisions contained in Section 33(1)(c). The issue in this regard is no longer _res integra_ and is covered in favour of the respondents by virtue of the dictum laid down by this Court in the judgment dated 18.7.2018 in W.P.(C)No.23710 of 2018 in the case, ## **Cherryl Ann Joy v. Sub Registrar, S.R.O., Udumbanchola** reported in **ILR 2018 (3) Ker. 540** . Paragraphs 14 and 19 of the said reported judgment read as follows:- “ _14. This Court is of the view that the above said contention advanced on behalf of the petitioner is not tenable and that the contention made by the learned Government Pleader on behalf of the respondent, merits acceptance. A mere perusal of the above said provisions more particularly those contained in Sections 32, 33 and Section 17(1) of the Registration Act will make it clear that the scenario covered by Section 33(1)(c) 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 Section 33(1) does not make any distinction as to the purpose for which the power of attorney conceived therein is executed. Whereas the specific provision contained in clause (g)_ W.P.(C)No.27697 of 2018 ..5.. _of Section 17(1) 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. In the light of these aspects this Court is inclined to hold that the specific scenario covered by clause (g) of Section 17(1), deals with special cases of the powers of attorney as envisaged therein. Hence the said specific provision contained in Section 17(1)(g) would have overriding effect over the one covered by Section 33(1)(c). In that regard it is also to be noted that so long as the power of attorney conceived in Section 33(1)(c) 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 Section 33(1)(c) if such a power of attorney has been duly executed and authenticated in the manner stipulated in Section 33(1)(c) which would confer competence to the power of attorney to present the documents for registration under Section 32. In the instant case, 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 Section 17(1)(g) 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 deed as per Section 17(1)(g) and she cannot claim the benefit of Section 33(1)(c). In the light of these aspects, it is only to be held that the stand taken by the respondentS.R.O. in the impugned Ext.P4 letter is lawful and tenable and is not liable to be interdicted. So the respondent-S.R.O. can act upon Ext.P2 power of attorney only if it is registered in terms of the provisions contained in the Registration Act._ W.P.(C)No.27697 of 2018 ..6.. _19. Accordingly, it is ordered that in case the petitioner's power of attorney presents Ext.P2 P/A deed for registration before the respondent-S.R.O., then the said official will register such document, if it is otherwise in order. It is further ordered that after securing registration of Ext.P2 P/A deed, it is for the petitioner's power of attorney to present Ext.P-3 sale deed for registration before the respondent-S.R.O. upon which, the said Officer will register the said document, if it is otherwise in order.”_ 4. In the instant case it is not in dispute that the petitioner and his principal are not related to each other as envisaged in any of the relationships envisaged in clause (g) of Section 17(1). Therefore it is only to be held that the stand of respondents 2 and 3 that Ext.P2 power of attorney would require registration for enabling its utilisation for the purpose of executing a sale deed on behalf of the principal, is correct. However this Court has also specifically ordered in the said judgment in **Cherryl Ann Joy's** case (supra) that in such cases the power of attorney holder could present a power of attorney which is duly executed before the Indian Consulate abroad, before the Sub Registrar's office concerned for registration of such power of attorney and after such registration, he may present the sale deed concerned for registration on the strength of such registered power of attorney. W.P.(C)No.27697 of 2018 ..7.. 5. Hence it is ordered that it is for the petitioner to proceed further for registration of the power of attorney and thereafter, for registration of the sale deed concerned, in accordance with the legal position enunciated in the judgment in _**Cherryl Ann Joy v. Sub Registrar, S.R.O., Udumbanchola**_ reported in **ILR 2018 (3) Ker. 540** . The petitioner may produce a photocopy of the above said reported judgment before the 3[rd] respondent-SRO for perusal. With these observations and directions this writ petition (civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** skj/sdk W.P.(C)No.27697 of 2018 ..8.. ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE POWER OF ATTORNEY**| |---|---| ||**EXECUTED IN THE NAME OF THE PETITIONER**| ||**DATED 05/02/2018**| |**EXHIBIT P2**|**TRUE COPY OF THE ORDER PASSED BY THE**| ||**RDO, KOTTAYAM DATED 23/04/2018**| |**EXHIBIT P3**|**TRUE COPY OF THE RECEIPT ISSUED BY THE**| ||**SUB TREASURY, KOTTAYAM DATED**| ||**18/06/2018**| |**EXHIBIT P4**|**TRUE COPY OF THE FURTHER RECEIPT**| ||**ISSUED BY THE SUB TREASURY, KOTTAYAM**| ||**DATED 18/06/2018**| |**EXHIBIT P5**|**TRUE COPY OF THE CERTIFICATE ISSUED BY**| ||**THE RDO KOTTAYAM DATED 06/04/2018**| |**EXHIBIT P6**|**TRUE COPY OF THE REQUEST OF THE**| ||**PETITIONER BEFORE THE 2ND RESPONDENT**| ||**DATED 05/05/2018**| |**EXHIBIT P7**|**TRUE COPY OF THE COMMUNICATION OF THE**| ||**2ND RESPONDENT DATED 08/05/2018**|