Is Non-Production Of Power Of Attorney Fatal To Title Suit? Supreme Court Split Verdict

Factual Background

The owner of a property was alleged to have taken a loan from his tenant. Thereafter he travelled to East Pakistan and allegedly executed a Power of Attorney in his tenant’s favour for repayment of loan amount by sale of the property. The tenant executed in his favour the sale deed and transferred the property to his wife. The tenant constructed a grocery shop in another part of the said property. It appears one Sarat Chandra Majumdar tried to dispossess the tenant. However, Majumdar’s claim was that he was in possession of the land for more than thirty years then. The tenant filed a civil suit for declaration of title over the suit land and recovery of ‘khas’ possession from the defendants. The suit was dismissed and it was held that the tenant was not entitled to the relief sought. Though ownership was claimed by the tenant on the basis of the sale deed executed in his favour on the basis of the PoA, the same was never produced before the Court. Challenging the order of the trial court an appeal was moved. The plaint was sought to be amended to the effect that the missing Power of Attorney was handed over to Majumdar and he never returned it. The first appellate court rejected the prayer to amend the plaint and upheld the judgment of the trial court. A second appeal was preferred before the Tripura High Court. Setting aside the concurrent findings of the courts below, the High Court allowed the second appeal by drawing a statutory presumption in respect of the existence of PoA by virtue of endorsement.

Decision rendered by Justice M.R. Shah

The appeal (filed by the original defendants) was allowed. The order passed by the Tripura High Court decreeing the suit was quashed and set aside and the judgment and decree passed by the trial court was restored.

Analysis by Justice M.R. Shah

Justice Shah noted that when the title was claimed on the basis of sale deeds which were executed pursuant to the execution of Power of Attorney by the original owner, the requirements under Section 33(1)(c) of the Registration Act, 1908 were required to be strictly complied with. It was considered that the Power of Attorney was executed in present day Bangladesh. As per Section 33(1)(c) of the Registration Act, if the principal at the time of execution of the Power of Attorney does not reside 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 shall be valid, which the Judge found was not satisfied. He further observed that only when the execution of the PoA is as per Section 32 read with Section 33(1)(c) of the Registration Act, there can be a statutory presumption under Section 60. He opined that the High Court had erred in drawing the statutory presumption, especially when there were concurrent findings recorded by the courts below on not fulfilling the conditions in Section 33(1)(c). He observed -

“In view of the above and for the reasons stated above and as the PoA is not produced on record; the executant of the PoA in favour of plaintiff No.2 has not stepped into the witness box; there is a non- compliance of Section 33(1)(c) of the Registration Act; and the plaintiff no.2 is claiming title on the basis of the PoA alleged to have been executed by the original owner which is not forthcoming and that plaintiff no.1 is claiming the title on the basis of the sale deed dated 29.09.1968 executed by plaintiff No.2 as a PoA holder of the original owner which is not forthcoming, I am of the opinion that the learned trial Court was justified and right in dismissing the suit and refusing to pass a decree for a declaration of title in favour of the plaintiffs.”

Decision rendered by Justice B.V. Nagarathna

The appeal was dismissed. The judgment of the Tripura High Court setting aside the orders of the courts below that dismissed the case of the original complainant was affirmed.

Analysis by Justice B.V. Nagarathna

Justice Nagarathna observed that under Section 17 Registration Act, the documents that need to be compulsorily registered are enumerated; and the registration for the ones not mentioned in the exhaustive list are optional as per Section 18. The judge noted that the power of attorney is not a compulsorily registrable document when it is duly notarized. It carries the presumption of being valid in view of Section 85 of the Evidence Act. She was of the opinion that what was sought to be proved was title by the sale deed and not the power of attorney as it is the sale deed which conveys title. She noted that even though the Power of Attorney was not produced, the contents of the sale deed and the execution of the Power of Attorney have been established by proving the sale deed in accordance with law. Upon perusal of the documents, Justice Nagarathna observed that there was indeed compliance of Section 33(1)(c) as the Power of Attorney was executed before the 1st Class Magistrate, Komilla, East Pakistan. According to her, the requirements of Section 32(C) were also met as the tenant had the authority under the provision to present a document for registration in his capacity as the attorney of the original owner of the property. Moreover, in her opinion, the non-production of the power of attorney in the suit is also not fatal to the tenant’s case. In this regard, she referred to Amar Nath v. Gian Chand and Anr., where the Apex Court had held that production of the original power of attorney is not an indispensable requirement to establish the validity of execution of a sale deed. Justice Nagarathna observed -

“...it has been authoritatively laid down by this Court that a registered document carries with it, by virtue of it being registered, the presumption as to the authority of the person executing it.”

She also took note of the fact that since the requirement of execution of a sale deed was met, the statutory presumption under Section 60 was correctly invoked by the High Court. Additionally, the original defendants had not led any evidence to rebut the presumption.

Case details

Manik Majumder And Ors. v. Dipak Kumar Saha (Dead) through Lrs. And Ors| CA 2965 of 2022 | 13 Jan 2023 |   

Citation : 2023 LiveLaw (SC) 29

For Appellant(s) Mr. Rajan K. Chourasia, AOR Mr. Pijush Kanti Roy, Adv. Mrs. Kakali Roy, Adv. Mr. Dinesh Kumar Bhati, Adv. Mr. Uday Prakash Yadav, Adv.

For Respondent(s) Mr. Hrishikesh Baruah, AOR

Headnotes

J. Shah

Registration Act, 1908; Section 33(1)(c) - if the principal at the time of execution of the PoA does not reside in India, a PoA executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government shall be valid - when title is claimed on the basis of the Power of Attorney executed by the original owner on the strength of which execution of sale deed is takes place, the conditions provided under Section 33(1)(c) of the Registration Act are required to be strictly complied with [Paragraph 6,7 ]

Registration Act, 1908; Section 60 - statutory presumption - only in a case where the execution of the Power of Attorney is as per Section 32 read with Section 33(1)(c) of the Registration Act, there shall be statutory presumption [Paragraph 7]

J. Nagarathna

Registration Act, 1908 - the inquiry contemplated under the Registration Act, cannot extend to question as to whether the person who executed the document in his capacity of the power of attorney holder of the principal, was indeed having a valid power of attorney or not to execute the document or not - production of the original power of attorney is not an indispensable requirement to establish the validity of execution of a sale deed [Paragraph 23]