Tandon Vs. Dulal Ranjan Ghosh Dastidar & ANR.  INSC 1324 (29 July
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 4671 OF
2004 Rajni Tandon .....Appellant Versus Dulal Ranjan Ghosh Dastidar & Anr.
Mukundakam Sharma, J.
The present Civil Appeal raises questions relating to
interpretation of Section 32 and 33 of the Registration Act, 1908 (hereinafter
referred to as "the Act").
The dispute pertains to a Flat situated on the ground floor of a
building commonly known as "Nilachal" at Tollygunge, Calcutta
(hereinafter referred to as the said premises). The appellant by virtue of a
Registered Deed of Conveyance dated 28.02.1990 purchased the said premises from
1 one Sri Nandlal Tantia (also referred to as Shri N. L. Tantia), Karta of M/s
R. L. Tantia & Sons (HUF). The said Deed of Conveyance was executed by the
constituted attorney of Shri N. L. Tantia, Shri Indra Kumar Halani, on the
basis of a Power of Attorney). It is pertinent of mention herein that the said
premises was purchased by Shri Nandlal Tantia in his capacity as a Karta of M/s
R. L. Tantia and sons (HUF) in August 1978. Mrs. Ava Rani Ghosh Dastidar
(Predecessor in interest of Respondent No. 1 herein) was allowed to stay free
of charge in the said premises from October, 1978 as a personal gesture of Shri
Nandlal Tantia as a licensee only. Sri N. L. Tantia, Karta of M/s R. L. Tantia
& Sons intimated the Society about their ownership in the said premises and
asked them to send all future correspondence and maintenance bills in their
name. They also informed the society that Mrs. Abha Rani Ghosh Dastidar was
temporarily staying in the said premises as a licensee.
It is the case of the Appellant that all records / documents,
conveyance deed, corporation records, maintenance bills of the "Nilachal
Housing Society" in which the said premises was located, resolution of the
"Nilachal Housing Society" under the West Bengal Apartment Owners Act
giving the detailed list of flat owners, show N. L. Tantia / R. L. Tantia and
Sons as the owner of the said premises.
Mrs. Ava Rani Ghosh Dastidar served a notice in the year 1982 on
the Society as to why maintenance bills etc. were not made out in her name.
Rani Ghosh Dastidar thereafter filed Civil Suit No. 322 of 1982 against the
Society asking them to include her name as the owner and send all
correspondence, maintenance bills etc to her. The President and Secretary of
the Housing Society filed a reply in this Suit stating that Mrs. Ava Rani
Ghosh, Dastidar could not be recognized as a owner in absence of any document
to prove her ownership. She was asked to submit better documents proving her
M/s. R. L. Tantia & Sons (HUF) served a notice dated 20.04.1983
to Mrs. Ava Rani Ghosh Dastidar revoking the licence granted and asking for
vacant possession of the flat. When Smt. Ava Rani Ghosh Dastidar refused to
vacate the flat, Mr. Nandalal Tantia filed Suit No. 174 of 1983 for eviction
The Appellant herein after coming to know that a Suit for Eviction
filed by his Predecessor in interest was pending moved an Application for
impleadment as a party. This application for impleadment filed by the Appellant
was rejected. The Title Suit No. 174 of 1983 filed by the erstwhile owner Mr.
Nandlal Tantia was dismissed on 29.01.1991 for 3 default due to the fact that
Sri. N. L. Tantia having sold the property to the Appellant was not interested
in pursuing the matter.
The Appellant after being refused to be made a party in Suit for
Eviction filed a fresh Suit in May 1990 for Eviction, Possession and Damages
for unauthorized occupation of the property against the Respondents. This Suit
was numbered as Title Suit No. 24 of 1991.
Respondent No. 2 alone contested the Suit. The said defendant
contended that Nandlal Tantia was not the owner of the Suit property and he had
no right title and interest therein and as such the Appellant did not acquire
any right, title and interest in the Suit premises by virtue of her purchase of
the same by a registered Deed of Conveyance dated 28.02.1990. The said
Respondent further made out a case for acquisition of title by adverse
possession upon contention that the said defendant has been occupying the Suit
premises along with his mother since 11.09.1978 as of right and adversely
against the rightful owner and after the death of his mother in the year 1983
he is in possession of the same adversely against the interest of any other
person. The Respondent No. 2 also urged that one Mr. Indra Kumar Halani
executed the said Sale Deed on behalf of Nandlal Tantia as his constituted
Attorney in favour of the appellant and 4 presented the same for registration.
It was therefore argued that registration of the Sale Deed was hit by
provisions of Section 33 (1) (a) of the Act as the power of attorney in favour
of Indra Kumar Halani was not executed before and authenticated by the
Registrar or Sub-Registrar within whose District or Sub-District said Nandalal
The Trial Court recorded a finding that the Power of Attorney
under which the Sale/Conveyance Deed was executed was not registered and the
same ought to have been registered as Mr. Indra Kumar Halani executed the said
Sale Deed on behalf of Nandalal Tantia as his constituted Attorney and
presented the same for registration. Hence, it was held to be in violation of
provisions of Section 32 and 33 of the Act.
it was also held that the Title in the said premises had not passed in favour
of the Appellant. The Trial Court accordingly dismissed the Suit as the
Appellant/Plaintiff did not acquire any right title and interest by virtue of
her purchase by the said deed of conveyance dated 28.02.1990.
In the appeal filed by the Appellant against the said decree of
dismissal of the suit, the first appellate court held that that the Respondent
failed to establish his case for acquisition of title in the suit premises by
adverse 5 possession. On the question of presentation of the said deed of
conveyance for registration by Indra Kumar Halani, the Court of Appeal held
that the same was properly registered as Indra Kumar Halani being the executant
of the same had presented the same for registration and as such the provision
of Section 33 (1) (a) of the Act were not applicable in the facts and
circumstances of this case and consequently decreed the Suit in favour of the
It may be mentioned herein that in the second appeal before the
High Court the Respondent did not assail the finding of the first appellate
court that they did not acquire right, title and interest in the suit premises
by way of adverse possession. Such findings therefore became final. During the
course of hearing, two substantial questions of law were raised in the
Whether the finding of the Court as regards the validity of the Sale Deed being
Exhibit 1 executed and presented by an Agent - Indra Kumar Halani on behalf of
the principal on the strength of a power of attorney (Exhibit - 10) is
sustainable in Law, when admittedly Exhibit 10 was not registered nor an
authenticated document in the manner prescribed in Section 33 of the Registration Act.
Whether the findings of the Appellate Court as to the validity of the
registration of the document (Exh. 1) done in good faith and on active
participation of the Registration by drawing inference from Section 87 of the Registration Act is 6 liable to be sustained in law when the question at
issue is not the defects in the procedure of the Registrar, but the lack of
jurisdiction and more so, when the findings recorded by the trial Court in this
regard were not reversed."
The High Court, after hearing arguments of the counsel appearing
for the parties, answered the question No. 1 as also question No. 2 in favour
of the Respondents - Defendants. So far as question No. 1 is concerned, it was
held that since the power of attorney (Exhibit 10) is, admittedly, not a
registered document and was simply notarized by a Notary, therefore Indra Kumar
Halani, was not authorized to execute and present the sale deed (Exhibit 1)
before the Sub-Registrar for registration. It was, therefore, held by the High
Court that no right and title had passed to the Plaintiff on the basis of the
aforesaid sale deed. Accordingly, the issue No. 1 was decided in favour of the
Respondents - Defendants. So far question No. 2 is concerned, upon a conjoint
reading of Section 32, Section 33 (1) (a) and Section 34 of the Act, the High
Court took the view that it was difficult to conclude that Indra Kumar Halani
became the executant by himself on the basis of the power of attorney which was
neither executed nor authenticated in the manner provided under Section 33 (1)
(a) of the Act so as to enable him to present the sale deed for registration in
compliance with the provisions of Section 32 (a) of the 7 Act. The second
appeal was accordingly allowed and the suit filed by the Appellant - Plaintiff
was dismissed vide its judgment and order dated 20.08.2003.
Being aggrieved by the aforesaid decision, the Appellant -
Plaintiff preferred the present appeal.
Leave was granted by this Court and the Respondent Nos. 2(a) and
2(b) entered appearance. The preparation of the paper books was dispensed with
and it was directed that the case be heard on the basis of the SLP paper books.
On an application being filed by the appellant-plaintiff herein, it was ordered
that the appeal would be listed during the summer vacation, 2009 before this
Court. Consequently, the appeal was listed for hearing before us on 19th May
Learned Counsel for the Appellant - Plaintiff argued the case at
length before us. However, none appeared for the Respondents - Defendant when
the matter was heard.
It was submitted by the learned counsel appearing for the
Appellant - Plaintiff that in this case what is applicable is Section 32 (a) of
the Act and the provisions of Section 33 (1) (c) of the Act would have no 8
application. It was further submitted by him that it is not necessary that a
power of attorney to execute document, is capable of being recognized only when
it is mandatorily registered and authenticated under Section 33 (1) (c) of the
Act. It was next submitted that pursuant to the power of attorney executed by
Nandlal Tantia in favour of Indra Kumar Halani authorizing him (Indra Kumar
Halani) to execute the sale deed, he duly executed and presented the said sale
deed for registration before the Sub - Registrar and the said registration was done
by the Sub-Registrar. In support of his submission he relied upon decisions
rendered by various High Courts, viz., Motilal v. Ganga Bai [AIR 1915 Nagpur
18], Gopeswar Pyne v. Hem Chandra Bose & Ors. [AIR 1920 Calcutta 316], Mt.
Aisha Bibi v. Chhajju Mal & Ors. [AIR 1924 Allahabad 148], Sultan Ahmad
Khan v. Sirajul Haque and Ors [AIR 1938 ALL 170], Ram Gopal v. L. Mohan Lal
& Ors. [AIR 1960 Punjab 226] and Sami Malti Vahuji Maharaj v. Purushottam
Lal Poddar [AIR 1984 Calcutta 297]. These decisions support the stand taken by
the Appellant - Plaintiff before us.
However, our attention was also drawn to decisions in which the
courts had taken a contrary view. Reference in this regard may be made to the
decisions, viz., D. Sardar Singh v. Seth Pissumal Harbhagwandas 9 Bankers [AIR
1958 Andhra Pradesh 107] and Abdus Samad vs. Majitan Bibi & Anr. [AIR 1961
18.In view of the aforesaid situation, the issue that falls for
our consideration is whether a person who executes a document under the terms
of the power of attorney, is, in so far as the registration office is
concerned, the actual executant of the document and is entitled under Section
32 (a) to present it for registration and get it registered.
Part VI of the Act deals with `Presentation of Documents for
Registration'. Sections 32 and 33 of the Act which are in Part VI deal with
`persons to present documents for registration' and `power-of- attorney
recognisable for purposes of Section 32' respectively. Section 32 and 33 of the
Act are referred to hereunder:
32. Persons to present documents for registration.- Except in the cases
mentioned in Sections 31, 88 and 89, every document to be registered under this
Act, whether such registration be compulsory or optional, shall be presented at
the proper registration-office:
some person executing or claiming under the same, or, in the case of a copy of
a decree or order, claiming under the decree or order, or (b) by the
representative or assign of such person, or 10 (c) by the agent of such person,
representative or assign, duly authorized by power-of-attorney executed and
authenticated in manner hereinafter mentioned".
33. Power-of-attorney recognisable 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
power-of- 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 or sub-district the
the principal at the time aforesaid resides in any part of India in which this
Act is not in force, a power-of- attorney executed before and authenticated by
the principal at the time aforesaid 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:
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;
persons who are in jail under civil or criminal process; and 11 (iii) persons
exempt by law from personal appearance in Court.
(2) In the
case of every such person the Registrar or 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 attest the same
without requiring his personal attendance at the office or Court aforesaid.
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.
power-of-attorney mentioned in this section may be proved by the production of
it without further proof when it purports on the face of it to have been executed
before and authenticated by the person or Court hereinbefore mentioned in that
Section 32 deals with persons who are eligible to present
documents for Registration before the proper registration office. Section 32
specifies three categories of persons who can present documents for
Registration. The use of the word "or" between the Clauses of Section
32 demonstrates that the legislature intended the said Clauses to be read
disjunctively and not conjunctively. It is settled law that the use of the word
`or' is used to signify the disjunctive nature of a provision. In this regard
reference may be made to 12 the decision of this Court in State of Orissa v.
The State of Andhra Pradesh reported in (2006) 9 SCC 591.
Clause (a) of Section 32 specifies that a document can be
presented for registration by (i) by the person executing the document (ii) any
person claiming under the document presented for registration and (iii) in the
case the said document is a copy of a decree or order, any person claiming
under the decree or order.
Clause (b) and (c) deal with cases were the document is presented
not by any person mentioned in (i), (ii) and (iii) above but by their agent,
representative or assign. This is so because the use of the words "such
person" in Clause (b) and (c) can be understood to mean only persons as
referred to in (i), (ii) and (iii) above. It may also be mentioned herein that
the scope of Clause (b) and (c) in Section 32 may to an extent overlap one
another. However, we do not propose to deal with the same as it is not relevant
for determination of the issue before us. It is suffice to say that in so far
as Clause (c) of Section 32 is concerned the agents, representative or assigns
of the persons referred to in (i), (ii) and (iii) above can present the 13 said
document for registration only if they are duly authorized by power-of-
attorney executed and authenticated in manner hereinafter mentioned. The words
"executed and authenticated in manner hereinafter mentioned" in
Section 32 (c) would mean the procedure specified in Section 33. This is clear
from the opening words of Section 33 which reads "for the purposes of
Section 32, the following power-of-attorney shall alone be recognised".
32 refers to documents presented for registration by a holder of
"power-of-attorney" in Clause (c) and it therefore follows that the
procedure specified under Section 33 would be attracted where a document is
presented by a person holding a "powers-of-attorney" of the persons
mentioned in Clause (a) of Section 32.
The aforesaid position makes it explicitly clear that Section 32
of the Act requires the documents sought to be registered, to be presented,
inter alia by the person executing it. In other words, the said expression
requires presence of the actual person executing the document. The basic
principle underlying this provision of the Act is to get before the
Sub-Registrar the actual executant who, in fact, executes the document in
question. In fact, the ratio of the decision in Ram Gopal (supra) as reported
in AIR 1960 Punjab 226 has laid down a similar proposition on the conjoint
reading of 14 Section 32 and Section 33 of the Act and after referring to all
the judgments noted hereinbefore. Same view has been expressed earlier by the
Bombay High Court in Ratilal Nathubhai and Anr. v. Rasiklal Maganlal and Ors.,
AIR 1950 Bombay 326.
24.It is important to bear in mind that one of the categories of
persons who are eligible to present documents before the registration office in
terms of Section 32 of the Act is the "person executing" the
document. The expression "person executing" used in Section 32 of the
Act, can only refer to the person who actually signs or marks the document in
token of execution, whether for himself or on behalf of some other person.
Thus, "person executing" as used in Section 32 (a) of the Act
signifies the person actually executing the document and includes a principal
who executes by means of an agent. Where a person hold a power of attorney
which authorises him to execute a document as agent for someone else, and he
executes a document under the terms of the power of attorney, he is, so far as
the registration office is concerned, the actual executant of the document and
is entitled under Section 32 (a) to present it for registration and get it
In view of the aforesaid legal position, we are of the considered
view that the law laid down by the Andhra Pradesh High Court in D. Sardar Singh
v. Seth Pissumal Harbhagwandas Bankers [AIR 1958 Andhra Pradesh 107] and the
decision of Calcutta High Court in Abdus Samad v. Majitan Bibi & Anr. [AIR
1961 Calcutta 540] with regard to the interpretation of Section 32 and 33 of
the Act is not the correct legal position.
26.In the facts of the present case, it is quite clear that Indra
Kumar Halani, was given the full authority by Nandalal Tantia under the power
of attorney to transfer the suit property and to execute the necessary
document. It is an accepted position that the said document had been executed by
Indra Kumar Halani in the name and on the behalf of Nandalal Tantia thereof.
for the purposes of registration office under Section 32 (a) of the Act Indra
Kumar Halani is clearly the "person executing" the document.
it follows that the said sale deed which was executed and authenticated by
Indra Kumar Halani could be presented for registration by him. We are of the
considered view that Indra Kumar Halani acted in the aforesaid manner mandated
under Section 32 (a) of the Act.
The object of registration is designed to guard against fraud by
obtaining a contemporaneous publication and an unimpeachable record of each
document. The instant case is one where no allegation of fraud has been raised.
In view thereof the duty cast on the Registering Officer under Section 32 of
the Act was only to satisfy himself that the document was executed by the
person by whom it purports to have been signed. The Registrar upon being so
satisfied and upon being presented with a document to be registered had to
proceed with the registration of the same.
The High Court held that since the power of attorney was not
registered document, Indra Kumar Halani, was not authorized to execute and
present the sale deed before the Sub-Registrar for registration. It was,
therefore, held by the High Court that no right and title had passed to the
Plaintiff on the basis of the aforesaid sale deed. The High Court also held
that upon a conjoint reading of Section 32, Section 33 (1) (a) and Section 34
of the Act, it was difficult to conclude that Indra Kumar Halani became the
executant by himself on the basis of the power of attorney which was neither
executed nor authenticated in the manner provided under Section 33 (1) (a) of
the Act so as to enable him to present the sale deed for registration in 17
compliance with the provisions of Section 32 (a) of the Act. We do not agree
with the said findings of the High Court.
Where a deed is executed by an agent for a principal and the same
agent signs, appears and presents the deed or admits execution before the
Registering Officer, that is not a case of presentation under Section 32 (c) of
the Act. As mentioned earlier the provisions of Section 33 will come into play
only in cases where presentation is in terms of Section 32 (c) of the Act. In
other words, an only in case where the person(s) signing the document cannot
present the document before the registering officer and gives a power of
attorney to another to present the document that the provisions of Section 33
get attracted. It is only in such a case, that the said power of attorney has
to be necessarily executed and authenticated in the manner provided under
Section 33 (1) (a) of the Act.
In the instant case, Indra Kumar Halani executed the document on
behalf of Shri N. L. Tantia under the terms of this power of attorney. He then
presented it for registration at the Registration Office and it was registered.
taken by the Respondents that in order to enable him to present the document it
was necessary that he should hold a power of attorney 18 authenticated before
the Sub-Registrar under the provisions of Section 33 is thus not supported by
the language of Section 32. The provisions of Section 33 therefore only apply
where the person presenting a document is the general attorney of the person
executing it, and not where it is presented for registration by the actual
executant, even though he may have executed it as agent for someone else. In
this case, the presentation is by the actual executant himself and is hence is
entitled under Section 32 (a) to present it for registration and to get it
Accordingly, we allow the present appeal and set aside the judgment
and order passed by the High Court and restore the judgment and decree passed
by the first appellate court whereby and where under a decree for eviction of
the respondents-defendant was passed. No order as to the costs.
.....................................J. [Dr. Mukundakam Sharma]
Pages: 1 2 3