Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943 WP(C) NO. 7863 OF 2021 PETITIONER: MUHAMMED AGED 68 YEARS S/O.KUNJIMUHHAMED, KATTIPARAMBIL VEEDU, VAILATHOOR P.O., THRISSUR DISTRICT, KERALA. BY ADVS. P.M.HABEEB SMT. SOUMYA FRANCIS RESPONDENTS: 1 INSPECTOR GENERAL OF REGISTRATIONS EX MAYOR R.BALAKRISHNAN NAIR ROAD, NEAR DISTRICT COURT, VANCHIYOOR, THIRUVANANTHAPURAM, KERALA-695 035. 2 SUB REGISTRAR, SUB REGISTRAR OFFICE, PANANTHARA, AANDATHODE, THRISSUR, KERALA-679 564. BY ADV GOVERNMENT PLEADER SRI. RAJEEV JYOTHISH GEORGE G.P. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 30th day of November, 2021. The petitioner says that he is the power of attorney holder of the original owners of the property involved in this case and points out to Ext.P3 in substantiation. He submits that the property in question was originally owned by the father of the persons who have executed in Ext.P3 in his favour; and that consequent to his death, they became its co-owners. He says that the original owner was an Indian, though the persons mentioned in Ext.P3 all are residing abroad, but asserts that this will not impede the inheritance of the property in their favour, under the applicable statutes and regulations.
2. The petitioner says that after the original owner
died and the land became vested in the persons mentioned in Ext.P3, they executed the said power of attorney in his favour, which is attested by the competent Diplomatic Officer of India and which has been adjudicated by the District Registrar, Thrissur, under Section 32 of the Kerala Land Act, 1959, as per the orders of this Court. He
says that, therefore, he is now of fully competent to present a Sale Deed with respect to the property in question, but that this has been objected to by the Sub- Registrar, by issuing Ext.P5.
3. The petitioner submits that Ext.P5 has been issued by the Sub-Registrar citing three objections:
namely, that the persons mentioned in Ext.P3 are foreigners and therefore, will have to obtain the clearance of the Reserve Bank of India; that their thumb impressions are not available on the documents sought to be registered, under provisions of Section 32(A) of the Registration Act; and finally, that Ext.P3 Power Attorney has not been registered, though it is a compulsory registerable document under Section 17(G) of the Registration Act.
4. Sri.P.M.Habeeb - learned counsel for the petitioner, submitted that every objection raised in Ext.P5
is untenable because, for one, the allegation that the persons mentioned in Ext.P3 Power of Attorney are foreigners would be no consequence at all, because the land belonged to their father, who is concededly an Indian and that the applicable law would not stop its inheritance in their favour. As regards Section 32(A) of the Registration Act is concerned, Sri.P.M.Habeeb submitted that Ext.P3 - Power of Attorney has been executed precisely for this purpose and that once the document is
presented by his client, then he would be authorized to a fix his thumb impression on behalf of its owners. Finally, as regards the registration of the Power of Attorney is concerned, Sri.P.M.Habeeb submitted that it has been attested by a competent Consular Officer of India and that since it has been adjudicated by the District Registrar in terms of the Kerala Stamp Act, 1959, the said objection can also not hold good any further.
5. In response, Sri.Rajeev Jyothish Geroge - learned
Government Pleader, submitted that, apart from the reasons in Ext.P5, a suspicion also now arises as to the nature of Ext.P3 - Power of Attorney. He submitted that, as is evident from its terms, it is shown to be irrevocable in perpetually and that the petitioner has been recorded to have given “valuable consideration” to the original owners
for executing the same. He submitted that, therefore, Ext.P3 appears to be a conveyance on its own; and thus prayed that the Sub Registrar may not be directed to register any sale deed to be presented by the petitioner on its strength.
6. I have considered the afore submissions and have also examine the various materials available on record.
7. I must say that I find substantial force in the
submissions of Sri.P.M.Habeeb because, as rightly stated by him, the first objection against Ext.P3, namely, that it is not registered, cannot hold because it has been admittedly attested by a competent Consular Officer of India in Malaysia and has also been, thereafter, adjudicated by the District Registrar as per the directions of this Court.
8. As far as the objections relating to the owners of the property is concerned, it is irrelevant that they are
foreigners, because the property was originally owned by their father, who was an Indian and the inheritance of which cannot be stopped, even going by the applicable laws. Further, the objections regarding clearance from the Reserve Bank of India would be applicable only if the proceeds of the sale with respect to the property, is to travel out side India, but there is nothing on record to
show that it is so. Of course, if there is any such remittance of money, the competent Authorities can take necessary action and put necessary measures in place.
9. Finally, on the question of Section 32(A) of the
Registration Act, it is clear that the Power of Attorney has been executed by the original owners solely for the purpose of enabling the petitioner to act on their behalf; and obviously, therefore, he would be entitled to do everything on their behalf which they are bound to do in law.
10. It is thus luculent that the hurdles presented
through Ext.P5 are no longer tenable; though I am aware that the learned Government Pleader has now raised certain suspicions regarding Ext.P3 - Power of Attorney itself. However, it is pertinent that in Ext.P5 there are no such objections raised, and am, therefore, of the view that this Court is not enjoined to consider them on its merits, at least at this stage. If, in future, any of the Authorities are to find Ext.P3 to be is suspicious, they will certainly be at liberty to take necessary action in terms; but as long as it is unimpeached, the consequences thereunder cannot be stopped.
Resultantly, I allow this writ petition and set aside Ext.P5, with consequential liberty being reserved to the petitioner to present the Ext.P2 - sale deed, on the strength of Ext.P3 - Power of Attorney, before the 2 nd respondent; in which event, the said Authority will register the same, subject to all other requirements and qualifications being satisfied, but de hors what is stated in Ext.P5, as expeditiously as is possible, but not later than one week from the date on which it is so presented. Needless to say, every other contention of the rival
parties are left open and if there is any violation with respect to transmission of the sale consideration, or with respect to the terms of Ext.P3, the competent Authority will be at liberty to take necessary action in terms of law, however, after following due procedure and after notifying the petitioner appropriately.
Needless to say that while computing the periods of limitation for the purpose of presentation and registration of the document, the time between when this writ petition
was filed and until a certified copy of the judgment is delivered, shall be excluded. I record that this is not opposed by the learned Government Pleader either. Sd/- DEVAN RAMACHANDRAN JUDGE Raj/30.11.2021. APPENDIX OF WP(C) 7863/2021 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE DEATH CERTIFICATE DATED 10.11.1967.
EXHIBIT P2 A TRUE COPY OF THE PARTITION DEED
NO.1090/44 SRO KOTAPPADY. *corrected
EXHIBIT P3 A TRUE COPY OF THE POWER OF ATTORNEYDATED 11.10.2019. EXHIBIT P4 A TRUE COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER IN THIS CONTEXT DATED 11.08.2020. EXHIBIT P5 A TRUE COPY OF THE COMMUNICATION DATED 28.01.2021. Ext.P2 is corrected by substituting the words “sale deed” instead of “partition deed” as per order dated 17/12/2021 in IA 1/2021. Sd/- Assistant Registrar