As is apparent from the plain language of the abovementioned
Circular, the Registering Authority is required to examine the contents of
the General Power of Attorney to ascertain the nature of the document.
Clearly, parties cannot be permitted to register a General Power of
Attorney as a camouflage for sale of immovable property. Thus, it is
important to ascertain whether the Document sought to be registered
purports to create any interest in the property in favour of the person
appointed as a constituted attorney.
13. In the present case, the Power of Attorney is executed by the
petitioners in favour of their close relative (daughter -in-law and wife);
the same is not for any consideration; and does not create any interest in
the said property.
14. In view of the above, the decision of the Sub-Registrar and the
District Magistrate to decline the petitioners’ request for registration of
the General Power of Attorney, is unsustainable.
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 9445/2017
HARMOHINI SARNA Vs GOVT OF NCT OF DELHI
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
Dated: 28.01.2019
1. The petitioner has filed the present petition, inter alia, impugning
an order dated 24.01.2017 passed by the Sub-Registrar, Vikas Sadan,
DDA whereby the request of the petitioners for registering a Power of
Attorney in favour of Ms Anjali Sarna (wife of petitioner no.2 and the
daughter-in-law of petitioner no.1) was rejected. The petitioners also
impugn an order dated 19.07.2017 passed by the District Magistrate and
Registrar, whereby the petitioners’ appeal under Section 72 of the
Registration Act, 1908, preferred against the impugned order dated
24.01.2017, was rejected.
2. Admittedly, petitioner no.1 and petitioner no.2 are related
inasmuch as petitioner no.1 is a mother of petitioner no.2. Both the
petitioners are desirous for executing a General Power of Attorney
constituting Mrs Anjali Sarna (wife of petitioner no.2) as an attorney for
doing certain acts in respect of the property bearing no. 15-C, Victoria
Tower, 15th Floor in Raisana Residency, Sector-59, Village Ullahwas,
Tehsil – Sohna, District Gurugram, Haryana (hereafter ‘the said
property’).
3. By the impugned order dated 24.01.2017, the concerned Sub-
Registrar declined to register the Power of Attorney on the ground that
the said property was situated outside the jurisdiction of the concerned
Sub-Registrar.
4. Aggrieved by the said order, the petitioner filed an appeal under
Section 72 of the Registration Act, 1908 pointing out that the petitioners
were resident in Delhi and, therefore, were entitled to execute a Power of
Attorney in Delhi appointing Mrs Anjali Sarna (who is a blood relative)
as their constituted attorney. The petitioners also referred to Section 33
of the Registration Act, 1908 and contended that the a power of attorney
can be registered by the principal who, at the time of executing the
power of attorney, is residing in any part of India.
5. However, said appeal was also rejected by an order dated
19.07.2017. According to the appellate authority, only a Special Power
of Attorney could be registered in terms of the Minutes of the Meeting of
the Deputy Commissioners/Additional District Magistrates, Sub
Divisional Magistrates and Sub Registrars held on 13.06.2005; and it
was not permissible to register a General Power of Attorney.
6. The relevant extract of the Minutes of the said Meeting held on
13.06.2005 are set out below:-
“5. Registration of Special Power of Attorney:
Deputy Commissioner (South) sought clarification as to
whether Special Power of Attorney in case of blood
relation and spouse can be registered for authorizing the
attorney to sale the property located outside Delhi.
Divisional Commissioner clarified that only Special
Power of Attorney should be registered in respect of
properties located outside Delhi and in no case General
Power of Attorney should be registered. Necessary
order/clarification in this regard will be issued.”
7. The import of the aforesaid Minutes is not to register the General
Power of Attorney which, in fact, amount to transfer of title of the
property. There is no bar in a person constituting an agency. There is no
prohibition for registering a General Power of Attorney, which is not for
any consideration and does not purport to create any interest in the
property in favour of the constituted attorney.
8. At this stage, it is relevant to refer to Section 33 of the
Registration Act, 1908, which reads as under:
“33. Power-of-attorney recognizable for purposes of
section 32. – (1) For the purposes of section 32, the
following powers-of-attorney shall alone be recognised,
namely:-
(a) If the principal at the time of executing the powerof-
attorney resides in any part of (India) in which this Act
is for the time being in force, a power-of-attorney executed
before and authenticated by the Registrar or Sub-registrar
within whose district of sub-district the principal resides;
(b) If the principal at the time aforesaid (resides in any
part of India in which this Act is not in force), a power-ofattorney
executed before and authenticated by any
Magistrate;
(c) If the principal at the time aforesaid does not resides
in (India), a power-of-attorney executed before and
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 purposes of
executing any such power-of-attorney as is mentioned in
clause (a) (b) of this section, namely:-
(i) persons who by reason of bodily infirmity are
unable without risk or serous 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
Court.
Explanation.- In this sub-section “India” mean India, as
defined in clause 28 of section 3 of the General Clauses
Act, 1897 (10 of 1897).
(2) In the case of every such person the Registrar of
Sub-registrar or Magistrate, as the case may be, if satisfied
that the power-of-attorney has been voluntarily executed
by the person purporting to be the principal, may atleast
the same without requiring his personal attendance at the
office or Court aforesaid.
(3) To obtain evidence as to the voluntary nature of the
execution, the Registrar or Sub-Registrar or Magistrate
may either himself go to the house of the person
purporting to be the principal, or to the jail in which he is
confined, and examine him or issue a commission for his
examination.
(4) Any power-of-attorney mentioned in this section
may be proved by the production of it without further
proof when it purports on the fact of it to have been
executed before and authenticated by the person or court
hereinbefore mentioned in that behalf.”
9. It is apparent from the provisions of clause (a) of sub-section (1)
of Section 33 that the principal can register a Power of Attorney at a
place where he resides. Plainly, administrative decisions cannot by any
stretch be read to override the provisions of a statute (in this case, the
Registration Act, 1908).
10. The learned counsel for the parties had also drawn the attention of
this Court to a Circular dated 12.11.2014 (which was issued subsequent
to the meeting held on 13.06.2005). Paragraph 10 of the said Circular
also clarifies that the Power of Attorney should be executed in the office
of the Sub-Registrar in whose jurisdiction the executants/principal
resides irrespective of existence/or place of immovable property.
11. Paragraph 10 of the said Circular is set out below:-
“10) CLARIFICATION REGARDING POWER OF
ATTORNEY
(I) JURISDICTION FOR REGISTRATION OF
POPWER OF ATTORNEY
A power of attorney may be executed in the office
of Sub-Registrar in whose jurisdiction the
executants / principal resides irrespective of
existence / or place of immovable property
(ii) GPA IN NATURE OF SALE
a) The Sub Registrars should look into the contents
of the document presented for registration in order
to ascertain the nature of document and stamp duty
chargeable on the same. It has been noticed that
people are presenting the documents which contain
the contents of a Conveyance but, in order to evade
the stamp duty payable, the document is prepared
under the title of “General Power of Attorney”.
b) Such kind of practices can be stopped when the
Sub Registrars look into the nature and contents of
the document and stamp duty should be' levied
accordingly. If the document presented for
registration is titled as “General Power of Attorney”
but its contents contains 'the following clauses then
the same shall be deemed to be in the nature of
Conveyance and the Sub Registrar shall refer It to
the concerned Collector of Stamps for-adjudication
of adequate stamp duty payable on it (these are
some, of the indicative clauses and not the
exhaustive fist off actors)
(a) The consideration has been paid for execution of
the Power of Attorney.
(b) The Power of Attorney presented is Irrevocable
in nature.
(c)The POA empower Attorney to sell, gift,
exchange or permanently alienate the immovable
property & the consideration received thereof is
receivable in the name of the executants.
(d) The possession of the property has been
transferred to the Attorney through General Power
of Attorney.”
12. As is apparent from the plain language of the abovementioned
Circular, the Registering Authority is required to examine the contents of
the General Power of Attorney to ascertain the nature of the document.
Clearly, parties cannot be permitted to register a General Power of
Attorney as a camouflage for sale of immovable property. Thus, it is
important to ascertain whether the Document sought to be registered
purports to create any interest in the property in favour of the person
appointed as a constituted attorney.
13. In the present case, the Power of Attorney is executed by the
petitioners in favour of their close relative (daughter -in-law and wife);
the same is not for any consideration; and does not create any interest in
the said property.
14. In view of the above, the decision of the Sub-Registrar and the
District Magistrate to decline the petitioners’ request for registration of
the General Power of Attorney, is unsustainable. The petition is allowed
and the respondent is directed to register the Power of Attorney dated
24.01.2017 (a copy of which is annexed at page 21 of the present appeal)
within a period of two weeks from today subject to the petitioners
complying with all other formalities.
15. The parties are left to bear their own costs.
VIBHU BAKHRU, J
JANUARY 28, 2019
MK
Circular, the Registering Authority is required to examine the contents of
the General Power of Attorney to ascertain the nature of the document.
Clearly, parties cannot be permitted to register a General Power of
Attorney as a camouflage for sale of immovable property. Thus, it is
important to ascertain whether the Document sought to be registered
purports to create any interest in the property in favour of the person
appointed as a constituted attorney.
13. In the present case, the Power of Attorney is executed by the
petitioners in favour of their close relative (daughter -in-law and wife);
the same is not for any consideration; and does not create any interest in
the said property.
14. In view of the above, the decision of the Sub-Registrar and the
District Magistrate to decline the petitioners’ request for registration of
the General Power of Attorney, is unsustainable.
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 9445/2017
HARMOHINI SARNA Vs GOVT OF NCT OF DELHI
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
Dated: 28.01.2019
1. The petitioner has filed the present petition, inter alia, impugning
an order dated 24.01.2017 passed by the Sub-Registrar, Vikas Sadan,
DDA whereby the request of the petitioners for registering a Power of
Attorney in favour of Ms Anjali Sarna (wife of petitioner no.2 and the
daughter-in-law of petitioner no.1) was rejected. The petitioners also
impugn an order dated 19.07.2017 passed by the District Magistrate and
Registrar, whereby the petitioners’ appeal under Section 72 of the
Registration Act, 1908, preferred against the impugned order dated
24.01.2017, was rejected.
2. Admittedly, petitioner no.1 and petitioner no.2 are related
inasmuch as petitioner no.1 is a mother of petitioner no.2. Both the
petitioners are desirous for executing a General Power of Attorney
constituting Mrs Anjali Sarna (wife of petitioner no.2) as an attorney for
doing certain acts in respect of the property bearing no. 15-C, Victoria
Tower, 15th Floor in Raisana Residency, Sector-59, Village Ullahwas,
Tehsil – Sohna, District Gurugram, Haryana (hereafter ‘the said
property’).
3. By the impugned order dated 24.01.2017, the concerned Sub-
Registrar declined to register the Power of Attorney on the ground that
the said property was situated outside the jurisdiction of the concerned
Sub-Registrar.
4. Aggrieved by the said order, the petitioner filed an appeal under
Section 72 of the Registration Act, 1908 pointing out that the petitioners
were resident in Delhi and, therefore, were entitled to execute a Power of
Attorney in Delhi appointing Mrs Anjali Sarna (who is a blood relative)
as their constituted attorney. The petitioners also referred to Section 33
of the Registration Act, 1908 and contended that the a power of attorney
can be registered by the principal who, at the time of executing the
power of attorney, is residing in any part of India.
5. However, said appeal was also rejected by an order dated
19.07.2017. According to the appellate authority, only a Special Power
of Attorney could be registered in terms of the Minutes of the Meeting of
the Deputy Commissioners/Additional District Magistrates, Sub
Divisional Magistrates and Sub Registrars held on 13.06.2005; and it
was not permissible to register a General Power of Attorney.
6. The relevant extract of the Minutes of the said Meeting held on
13.06.2005 are set out below:-
“5. Registration of Special Power of Attorney:
Deputy Commissioner (South) sought clarification as to
whether Special Power of Attorney in case of blood
relation and spouse can be registered for authorizing the
attorney to sale the property located outside Delhi.
Divisional Commissioner clarified that only Special
Power of Attorney should be registered in respect of
properties located outside Delhi and in no case General
Power of Attorney should be registered. Necessary
order/clarification in this regard will be issued.”
7. The import of the aforesaid Minutes is not to register the General
Power of Attorney which, in fact, amount to transfer of title of the
property. There is no bar in a person constituting an agency. There is no
prohibition for registering a General Power of Attorney, which is not for
any consideration and does not purport to create any interest in the
property in favour of the constituted attorney.
8. At this stage, it is relevant to refer to Section 33 of the
Registration Act, 1908, which reads as under:
“33. Power-of-attorney recognizable for purposes of
section 32. – (1) For the purposes of section 32, the
following powers-of-attorney shall alone be recognised,
namely:-
(a) If the principal at the time of executing the powerof-
attorney resides in any part of (India) in which this Act
is for the time being in force, a power-of-attorney executed
before and authenticated by the Registrar or Sub-registrar
within whose district of sub-district the principal resides;
(b) If the principal at the time aforesaid (resides in any
part of India in which this Act is not in force), a power-ofattorney
executed before and authenticated by any
Magistrate;
(c) If the principal at the time aforesaid does not resides
in (India), a power-of-attorney executed before and
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 purposes of
executing any such power-of-attorney as is mentioned in
clause (a) (b) of this section, namely:-
(i) persons who by reason of bodily infirmity are
unable without risk or serous 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
Court.
Explanation.- In this sub-section “India” mean India, as
defined in clause 28 of section 3 of the General Clauses
Act, 1897 (10 of 1897).
(2) In the case of every such person the Registrar of
Sub-registrar or Magistrate, as the case may be, if satisfied
that the power-of-attorney has been voluntarily executed
by the person purporting to be the principal, may atleast
the same without requiring his personal attendance at the
office or Court aforesaid.
(3) To obtain evidence as to the voluntary nature of the
execution, the Registrar or Sub-Registrar or Magistrate
may either himself go to the house of the person
purporting to be the principal, or to the jail in which he is
confined, and examine him or issue a commission for his
examination.
(4) Any power-of-attorney mentioned in this section
may be proved by the production of it without further
proof when it purports on the fact of it to have been
executed before and authenticated by the person or court
hereinbefore mentioned in that behalf.”
9. It is apparent from the provisions of clause (a) of sub-section (1)
of Section 33 that the principal can register a Power of Attorney at a
place where he resides. Plainly, administrative decisions cannot by any
stretch be read to override the provisions of a statute (in this case, the
Registration Act, 1908).
10. The learned counsel for the parties had also drawn the attention of
this Court to a Circular dated 12.11.2014 (which was issued subsequent
to the meeting held on 13.06.2005). Paragraph 10 of the said Circular
also clarifies that the Power of Attorney should be executed in the office
of the Sub-Registrar in whose jurisdiction the executants/principal
resides irrespective of existence/or place of immovable property.
11. Paragraph 10 of the said Circular is set out below:-
“10) CLARIFICATION REGARDING POWER OF
ATTORNEY
(I) JURISDICTION FOR REGISTRATION OF
POPWER OF ATTORNEY
A power of attorney may be executed in the office
of Sub-Registrar in whose jurisdiction the
executants / principal resides irrespective of
existence / or place of immovable property
(ii) GPA IN NATURE OF SALE
a) The Sub Registrars should look into the contents
of the document presented for registration in order
to ascertain the nature of document and stamp duty
chargeable on the same. It has been noticed that
people are presenting the documents which contain
the contents of a Conveyance but, in order to evade
the stamp duty payable, the document is prepared
under the title of “General Power of Attorney”.
b) Such kind of practices can be stopped when the
Sub Registrars look into the nature and contents of
the document and stamp duty should be' levied
accordingly. If the document presented for
registration is titled as “General Power of Attorney”
but its contents contains 'the following clauses then
the same shall be deemed to be in the nature of
Conveyance and the Sub Registrar shall refer It to
the concerned Collector of Stamps for-adjudication
of adequate stamp duty payable on it (these are
some, of the indicative clauses and not the
exhaustive fist off actors)
(a) The consideration has been paid for execution of
the Power of Attorney.
(b) The Power of Attorney presented is Irrevocable
in nature.
(c)The POA empower Attorney to sell, gift,
exchange or permanently alienate the immovable
property & the consideration received thereof is
receivable in the name of the executants.
(d) The possession of the property has been
transferred to the Attorney through General Power
of Attorney.”
12. As is apparent from the plain language of the abovementioned
Circular, the Registering Authority is required to examine the contents of
the General Power of Attorney to ascertain the nature of the document.
Clearly, parties cannot be permitted to register a General Power of
Attorney as a camouflage for sale of immovable property. Thus, it is
important to ascertain whether the Document sought to be registered
purports to create any interest in the property in favour of the person
appointed as a constituted attorney.
13. In the present case, the Power of Attorney is executed by the
petitioners in favour of their close relative (daughter -in-law and wife);
the same is not for any consideration; and does not create any interest in
the said property.
14. In view of the above, the decision of the Sub-Registrar and the
District Magistrate to decline the petitioners’ request for registration of
the General Power of Attorney, is unsustainable. The petition is allowed
and the respondent is directed to register the Power of Attorney dated
24.01.2017 (a copy of which is annexed at page 21 of the present appeal)
within a period of two weeks from today subject to the petitioners
complying with all other formalities.
15. The parties are left to bear their own costs.
VIBHU BAKHRU, J
JANUARY 28, 2019
MK
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