Rajni Tandon vs Dulal Ranjan Ghosh Dastidar & Anr

Rajni Tandon .....Appellant

Versus

Dulal Ranjan Ghosh Dastidar & Anr. ....Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. 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").

2. 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.

3. 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.

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4. 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.

Mrs. Ava 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 ownership.

5. 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 against her.

6. 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.

7. 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.

8. 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 Tantia resided.

9. 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.

Consequently, 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.

10.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 Appellant.

11.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

following manner:

"(a) 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.

(b) 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."

12.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.

13.Being aggrieved by the aforesaid decision, the Appellant - Plaintiff

preferred the present appeal.

14. 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 2009.

15.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.

16. 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.

17. 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 Calcutta 540].

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.

19.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:

"Section 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:

(a) by 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

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(c) by the agent of such person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned".

"Section 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 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-of-

attorney executed before and authenticated by any Magistrate;

(c) if 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:

Provided 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;

(ii) persons who are in jail under civil or criminal process; and

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(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.

(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 face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf.

20. 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.

21. 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.

22.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".

Section 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.

23. 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 some one 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

registered.

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25. 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.

Therefore, for the purposes of registration office under Section 32 (a) of the

Act Indra Kumar Halani is clearly the "person executing" the document.

Therefore, 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.

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27.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.

28.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.

29.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, only in cases 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.

30.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.

The plea 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 some one 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 registered.

31.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 whereunder a decree for eviction of

the respondents-defendant was passed. No order as to the costs.

.....................................J. [Dr. Mukundakam Sharma]

.......................................J. [Dr. B.S. Chauhan]

New Delhi, July 29, 2009

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