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2016 (1) TMI 1524 - HC - Indian LawsValidity of registration affected by the 2nd respondent - sale deed speaks only about the registered power deed which did not authorise the 5th respondent to act as an executant on behalf of respondent Nos. 3 and 4 being the alleged Principal - locus standi of petitioner to challenge the registration of the sale deed executed by respondent No. 5 in favor of respondent No. 6 - Maintainability of the Writ Petition - Indian Evidence Act - Power of Attorney - Registration Act - Standing Order No. 533. Locus standi of petitioner to challenge the registration of the sale deed executed by respondent No. 5 in favor of respondent No. 6 - HELD THAT - In the case on hand the petitioner merely stepped into the shoes of M/s. Indian Bank. Similarly the fact that there was a suit filed by the mortgagors/borrowers cannot be a ground to non-suit the petitioner from seeking the relief before this Court. Maintainability of the Writ Petition - HELD THAT - There is no necessity for the petitioner to file a civil suit. Similarly the issue involved before the Apex Court in S.L.P.(Crl) No. 838 of 2015 dated 27.2.2015 is totally different. The Law is quite settled that an issue which is not consciously considered and decided would not partake the character of a binding decision. The mere fact an application for impleadment has been filed in a suit by a third party also for the aforesaid reasons would not dis-entitle the petitioner from filing the writ petition more so when the official respondents herein are not parties in the said proceedings In any case these issues cannot be raised by the petitioner in the said suit being at best it only becomes a party defendant. Furthermore even as per the submissions of the learned counsel for respondents the application filed for impleadment has been returned. Indian Evidence Act - HELD THAT - When once the record of the 2nd respondent pertaining to a document registered becomes a public document coupled with the presumption attached to it then in a given case the writ petition would be maintainable especially when only legal issues are to be determined by this Court. After all the object of registration as held by the Privy Council in Jambu Parshad v. Mohd. Aftab Ali Khan 1914 (11) TMI 1 - THE PRIVY COUNCIL is to prevent commission of frauds. Such a challenge to an official action is certainly maintainable before this Court without warranting any finding on the inter se dispute between the private parties. Therefore this Court is unable to countenance the submissions made by the learned counsels for the respondents in this regard. Power of Attorney - HELD THAT - A valid power is a fundamental requisite to execute the document. In the case on hand even according to respondent No. 5 there was some mistake in the earlier power deed. As narrated earlier though it is alleged in the counter affidavit filed that there was a subsequent unregistered deed there is no explanation for mentioning only earlier power deed dated 23.8.2006 in the sale deed dated 5.7.2007 which admittedly did not authorise a sale by the agent. What is to be seen in this case is that before respondent No. 2 only the power deed dated 23.8.2006 must have been available. It was the only document mentioned in the sale deed. Even as per the counter affidavit filed by respondent No. 2 it was not verified. This would certainly go to the root of the matter - this Court holds that there is no power deed at all in the eye of law for the purpose of executing the sale on behalf of respondents No. 3 and 4 by respondent No. 5 in favour of respondent No. 6 and hence non-verification of the power deed would vitiate official act of respondent No. 2. Registration Act - HELD THAT - Sections 32 33 and 34 of the Registration Act 1908 are to be read in consonance with each other. The enquiry in such a case need not be exhaustive but only in the realm of a verification or check up. In other words what the registering authority is required to do so is to verify the power deed that authorises an executant to sign the sale deed on behalf of the principal. What is required is only a cursory glance or look on the relevant documents. That is the object of the appearance of the parties before the Registering Officer. If one see Section 35 of the Act it provides for a procedure for admission or denial of execution. The Registering Officer has to satisfy that the persons are personally known to him and they are the persons they represent themselves to be apart from admitting the execution of document. When the presentation on the face of it is unauthorised it can never be any registration giving an iota of recognition through the official act. Rule 22 of the Registration Rules under Chapter VII deals with presentation and examination of documents - The source being a power deed such an examination would not be construed as one of title. It is only to check as to whether the document which forms the basis of execution of the sale deed empowers the executant to do so or not. After all there is no dispute since the title and execution are not denied as the executant seeks registration based upon that document alone. When there is no valid execution the deed becomes void as there is no executant. Thus registration of such a deed also would become void. Standing Order No. 533 - HELD THAT - Much reliance has been made in the counter affidavit filed by respondent No. 2 on the Standing Order No. 533 of the Tamil Nadu Registration Manual. It is the stand of the said respondent that there is no need to verify the power deed prior to the Circular dated 29.10.2009 issued by the 1st respondent. Such a stand can never be accepted in the eye of law. A Circular is only a clarification. Standing Order No. 533 has to be seen with respect to the power deed as prescribed under Section 33 of the Registration Act. As the said Section is meant for authorisation for presentation alone and not for executing a sale deed no reliance can be placed upon the same. Even on a perusal of the said Standing Order No. 533 it is clear that it deals with the power deed as prescribed under Section 33 of the Act. Conclusion - i) The petitioner had the locus standi to challenge the registration of the sale deed as it had acquired rights through an assignment deed. ii) The writ petition was deemed maintainable as it addressed the legal validity of the registration process rather than factual disputes. iii) The power of attorney executed by respondents No. 3 and 4 was found to be invalid for authorizing the sale and the registration process conducted by respondent No. 2 was flawed due to a lack of proper verification. Petition allowed.
1. ISSUES PRESENTED and CONSIDERED
The core legal issues considered in this judgment are:
2. ISSUE-WISE DETAILED ANALYSIS Locus Standi: The Court examined whether the petitioner, having acquired rights through an assignment deed dated 7.12.2007, has the standing to challenge the registration of the sale deed. The Court emphasized that locus standi is concerned with the existence of a right, not its extent. The petitioner, stepping into the shoes of the Indian Bank, possesses the right to challenge the registration based on the assignment deed, thus affirming the petitioner's locus standi. Validity of the Sale Deed Registration: The Court scrutinized the validity of the sale deed dated 5.7.2007, executed by respondent No. 5 under a power of attorney that allegedly lacked the authority to sell the property. The registered power of attorney dated 23.8.2006 did not include the power to sell, and the unregistered power of attorney dated 7.6.2007, purportedly rectifying this omission, was not referenced in the sale deed. The Court concluded that the registration was void ab initio due to the lack of proper authorization, rendering the act of registration by respondent No. 2 invalid. Maintainability of the Writ Petition: The Court addressed the respondents' argument that the petitioner should have pursued a civil suit instead of a writ petition. It rejected this contention, stating that the petitioner is not seeking to resolve disputed facts but is challenging the registration process based on legal grounds. The Court held that the writ petition is maintainable as it concerns the legality of the registration process, not the underlying property dispute. Obligations of the Registering Authority: The Court analyzed the obligations of the registering authority under Sections 32, 33, and 34 of the Registration Act, 1908. It emphasized that the registering officer must verify the power of attorney to ensure the executant is duly authorized. The failure to verify the power of attorney in this case resulted in a lack of jurisdiction, rendering the registration void. Standing Order No. 533: The Court examined the relevance of Standing Order No. 533, which the respondents cited to justify the lack of verification of the power of attorney. The Court clarified that the Standing Order pertains to the presentation of documents for registration, not the execution of sale deeds, and thus does not absolve the registering authority of its duty to verify the power of attorney. 3. SIGNIFICANT HOLDINGS The Court held that the petitioner has the locus standi to challenge the registration of the sale deed due to the rights acquired through the assignment deed. It concluded that the registration of the sale deed was void ab initio due to the lack of proper authorization in the power of attorney. The writ petition was deemed maintainable as it addressed legal issues concerning the registration process, not the underlying property dispute. The Court emphasized the duty of the registering authority to verify the power of attorney and rejected the applicability of Standing Order No. 533 in this context. Core Principles Established:
The Court allowed the writ petition, setting aside the registration of the sale deed and granting liberty to the parties to pursue further legal remedies if necessary.
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