# ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED v. S. P. VELAYUTHAM & ORS

- **Citation:** [2022] 17 S.C.R. 637
- **Court:** Supreme Court of India
- **Decided:** 2022-05-04
- **Case number:** Civil Appeal Nos. 2752-2753 of 2022
- **Bench:** Hemant Gupta, V. Ramasubramanian
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/asset-reconstruction-company-india-limited-v-s-p-velayutham-ors-35574
- **Pages:** 31

## Headnote

Constitution of India - Art.226 - Jurisdiction under - Failure
of registering authority to perform its duties - The borrower
defaulted in repayment of the loan pursuant to which the Bank issued
a demand notice u/s 13(2) of the Securitisation Act - Bank which
already initiated proceedings under the Securitisation Act, assigned
the debt and the collateral security in favour of the appellant - By
deed of PoA, the power of sale is said to have been conferred upon
the agent, but this was un-registered - On the basis of deed of PoA,
which did not confer a power of sale, respondent sold the property
to his son A - The appellant filed a writ petition seeking a declaration
that the act of the sub-registrar in registering the sale deed was null
and void - Single Judge allowed the petition on the ground that
there was utter failure on the partof the Registering Authority to
follow the mandate of law as prescribed in Sections 32 to 35 of the
Registration Act, 1908 - Division Bench held that the appellant is
guilty of violating the order passed by Supreme Court in the
proceedings arising out of the order of the Sub-Divisional Magistrate
under Section 145 of the Cr.P.C- Whether the invocation of the writ
jurisdiction of the High Court by the appellant was right, especially
when civil suits at the instance of third parties are pending - Held:
If a party questions the very execution of a document or the right
and title of a person to execute a document and present it for
registration, his remedy will only be to go to the civil court - But
where a party questions only the failure of the Registering Authority
to perform his statutory duties in the course of the third step, it
cannot be said that the jurisdiction of the High Court under Article
226 stands completely ousted - When a High Court, in exercise of
its jurisdiction under Article 226 finds that there was utter failure
on the part of the Registering Authority to stick to the mandate of
law, the Court merely cancels the act of registration, but does not
declare the very execution of the document to be null and void -
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SUPREME COURT REPORTS
[2022] 17 S.C.R.
Examining whether the Registering Authority did something in the
manner required by law or otherwise, is certainly within the
jurisdiction of the High Court under Article 226 - Therefore, the
Single Judge rightly applied the law and allowed the writ petition
filed by the appellant, but the Division Bench got carried away by
the sound and fury created by the contesting respondents.
Registration Act, 1908 - ss. 32, 33, 34 & 69(1) - Tamil Nadu
Registration Rules - R u l e s 4 6 , 4 8 , 4 9 , 5 2 - A careful look at Sections
32 and 33 will show that while speaking about PoA, these provisions
do not use the word "registration" - While Section 32(c) uses the
words "executed and authenticated", Section 33(1) uses the words
"recognised" and "authenticated" - Therefore it is clear that the
word "authenticated" is not to be understood to be the same as
"registered" - Whenever an agent is authorised to execute a
document and present the same for registration and he accordingly
executes the document in terms of PoA, he becomes the actual
executant in so far as the Registering Authority is concerned and
that therefore he becomes entitled under Section 33(a) to present it
for registration.
Allowing the appeals, the Court
HELD: 1.1 Actually, the registration of a document comprises
of three essential steps among others. They are, (i) execution of the
document, by the executant signing or affixing his left hand thumb
impression; (ii) presenting the document for registration and
admitting to the Registering Authority the execution of such
document; and (iii) the act of registration of the document. In cases
where a suit for title is filed, with or without the relief of
declaration that the registered document is null and void, what
gets challenged, is a combination of all the aforesaid three steps
in the process of execution and regi

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[2022] 17 S.C.R. 637
637
ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED
v.
S. P. VELAYUTHAM & ORS.
(Civil Appeal Nos. 2752-2753 of 2022)
MAY 04, 2022
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Constitution of India - Art.226 - Jurisdiction under - Failure
of registering authority to perform its duties - The borrower
defaulted in repayment of the loan pursuant to which the Bank issued
a demand notice u/s 13(2) of the Securitisation Act - Bank which
already initiated proceedings under the Securitisation Act, assigned
the debt and the collateral security in favour of the appellant - By
deed of PoA, the power of sale is said to have been conferred upon
the agent, but this was un-registered - On the basis of deed of PoA,
which did not confer a power of sale, respondent sold the property
to his son A - The appellant filed a writ petition seeking a declaration
that the act of the sub-registrar in registering the sale deed was null
and void - Single Judge allowed the petition on the ground that
there was utter failure on the partof the Registering Authority to
follow the mandate of law as prescribed in Sections 32 to 35 of the
Registration Act, 1908 - Division Bench held that the appellant is
guilty of violating the order passed by Supreme Court in the
proceedings arising out of the order of the Sub-Divisional Magistrate
under Section 145 of the Cr.P.C- Whether the invocation of the writ
jurisdiction of the High Court by the appellant was right, especially
when civil suits at the instance of third parties are pending - Held:
If a party questions the very execution of a document or the right
and title of a person to execute a document and present it for
registration, his remedy will only be to go to the civil court - But
where a party questions only the failure of the Registering Authority
to perform his statutory duties in the course of the third step, it
cannot be said that the jurisdiction of the High Court under Article
226 stands completely ousted - When a High Court, in exercise of
its jurisdiction under Article 226 finds that there was utter failure
on the part of the Registering Authority to stick to the mandate of
law, the Court merely cancels the act of registration, but does not
declare the very execution of the document to be null and void -
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SUPREME COURT REPORTS
[2022] 17 S.C.R.
Examining whether the Registering Authority did something in the
manner required by law or otherwise, is certainly within the
jurisdiction of the High Court under Article 226 - Therefore, the
Single Judge rightly applied the law and allowed the writ petition
filed by the appellant, but the Division Bench got carried away by
the sound and fury created by the contesting respondents.
Registration Act, 1908 - ss. 32, 33, 34 & 69(1) - Tamil Nadu
Registration Rules - R u l e s 4 6 , 4 8 , 4 9 , 5 2 - A careful look at Sections
32 and 33 will show that while speaking about PoA, these provisions
do not use the word "registration" - While Section 32(c) uses the
words "executed and authenticated", Section 33(1) uses the words
"recognised" and "authenticated" - Therefore it is clear that the
word "authenticated" is not to be understood to be the same as
"registered" - Whenever an agent is authorised to execute a
document and present the same for registration and he accordingly
executes the document in terms of PoA, he becomes the actual
executant in so far as the Registering Authority is concerned and
that therefore he becomes entitled under Section 33(a) to present it
for registration.
Allowing the appeals, the Court
HELD: 1.1 Actually, the registration of a document comprises
of three essential steps among others. They are, (i) execution of the
document, by the executant signing or affixing his left hand thumb
impression; (ii) presenting the document for registration and
admitting to the Registering Authority the execution of such
document; and (iii) the act of registration of the document. In cases
where a suit for title is filed, with or without the relief of
declaration that the registered document is null and void, what
gets challenged, is a combination of all the aforesaid three steps
in the process of execution and registration. The first of the
aforesaid three steps may be challenged in a suit for declaration
that the registered document is null and void, either on the ground
that the executant did not have a valid title to pass on or on the
ground that what was found in the document was not the signature
of the executant or on the ground that the signature of the
executant was obtained by fraud, coercion etc. The second step
of presentation of the document and admitting the execution of
the same, may also be challenged on the very same grounds
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hereinabove stated. Such objections to the first and second of
the aforesaid three steps are substantial and they strike at the
very root of creation of the document. A challenge to the very
execution of a document, is a challenge to its very DNA and any
defect or illegality on the execution, is congenital in nature.
Therefore, such a challenge, by its very nature, has to be made
only before the civil court and certainly not before the writ court.
[Paras 49 & 50][664-B-F]
1.2. The third step namely the act of registration, is
something that the Registering Authority is called upon to do
statutorily. While the executant of the document and the person
claiming under the document (claimant) are the only actors
involved in the first two steps, the Registering Officer is the actor
in the third step. Apart from the third step which is wholly in the
domain of the Registering Authority, he may also have a role to
play in the second step when a document is presented for
registration and the execution thereof is admitted. The role that
is assigned to the Registrar in the second step is that of
verification of the identity of the person presenting the document
for registration. Thus, the first two steps in the process of
registration are substantial in nature, with the parties to the
document playing the role of the lead actors and the Registering
Authority playing a guest role in the second step. The third step
is procedural in nature where the Registering Authority is the
lead actor. [Paras 51 & 52][664-F-H; 665-A]
1.3. In suits for declaration of title and/or suits for
declaration that a registered document is null and void, all the
aforesaid three steps which comprise the entire process of
execution and registration come under challenge. If a party
questions the very execution of a document or the right and title
of a person to execute a document and present it for registration,
his remedy will only be to go to the civil court. But where a party
questions only the failure of the Registering Authority to perform
his statutory duties in the course of the third step, it cannot be
said that the jurisdiction of the High Court under Article 226
stands completely ousted. This is for the reason that the writ
jurisdiction of the High Court is to ensure that statutory authorities
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P.
VELAYUTHAM & ORS.
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SUPREME COURT REPORTS
[2022] 17 S.C.R.
perform their duties within the bounds of law. It must be noted
that when a High Court, in exercise of its jurisdiction under Article
226 finds that there was utter failure on the part of the Registering
Authority to stick to the mandate of law, the Court merely cancels
the act of registration, but does not declare the very execution of
the document to be null and void. A declaration that a document
is nulland void, is exclusively within the domain of the civil court,
but it does not mean that the High Court cannot examine the
question whether or not the Registering Authority performed
his statutory duties in the manner prescribed by law. It is well
settled that if something is required by law to be done in a
particular manner, it shall be done only in that manner and not
otherwise. Examining whether the Registering Authority did
something in the manner required by law or otherwise, is certainly
within the jurisdiction of the High Court under Article 226.
However, it is needless to say that the High Courts may refuse
to exercise jurisdiction in cases where the violations ofprocedure
on the part of the Registering Authority are not gross or the
violations do not shock the conscience of the Court. Lack of
jurisdiction is completely different from a refusal to exercise
jurisdiction. [Para 53][665-B-G]
2. In the case on hand, the appellant has not sought a
declaration from the High Court that the execution of the
document in question was null and void or that there was no title
for the executant to transfer the property. The appellant assailed
before the High Court, only the act of omission on the part of the
Registering Authority to check up whether the person who
claimed to be the power agent, hadthe power of conveyance and
the power of presenting the document for registration, especially
in the light to the statutory rules. Therefore, the learned Single
Judge rightly applied the law and allowed the writ petition filed
by the appellant, but the Division Bench got carried away by the
sound and fury created by the contesting respondents on the basis
of (i) pendency of the civil suits; (ii) findings recorded by the
Special Court for CBI cases; and (iii) the order passed by this
Court in the SLP arising out of proceedings under Section 145
Cr.P.C. [Para 54][665-G-H; 666-A-B]
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3. Arguments were advanced on the question whether the
Registering Authority is carrying out an administrative act or a
quasi-judicial act in the performance of his statutory duties. But
we think it is not relevant for determining the availability of writ
jurisdiction. If the Registering Authority is found to be exercising
a quasi-judicial power, the exercise of such a power will still be
amenable to judicialreview under Article 226, subject to the
exhaustion of the remedies statutorily available. On the contrary
if the Registering Authority is found to be performing only an
administrative act, even then the High Court is empowered to
see whether he performed the duties statutorily ordained upon
him in the manner prescribed by law. [Para 55][666-C-D]
4. Therefore, in the light of (i) the Tamilnadu Registration
Rules discussed above; (ii) the statutory scheme of Sections 32
to 35 of the Act as well as other provisions as amended by the
State of Tamilnadu;and (iii) the distinction between a challenge
to the first 2 steps in the process of execution of a document and
the third step concerning registration, this Court is of the
considered view that the Division bench of the High Court was
not right in setting aside the order of the learned single Judge. If
the Registering Officer under the Act is construed as performing
only a mechanical role without any independent mind of his own,
then even Government properties may be sold and the documents
registered by unscrupulous persons driving the parties to go to
civil court. Such an interpretation may not advance the cause of
justice. [Para 58][666-G; 667-A-B]
Satya Pal Anand vs. State of Madhya Pradesh (2016)
10 SCC 767 : [2016] 12 SCR 26; Amarnath vs. Gian
Chand (2022) SCC Online SC-102 - relied on
Rajni Tandon vs. Dulal Ranjan Ghosh Dastidar & Anr
(2009) 14 SCC 782 : [2009] 11 SCR 686; Thansingh
Nathmal vs. Superintendent of Taxes (1964) 6 SCR 654
: Sarvepalli Ramaiah vs. District Collector (2019) 4 SCC
500 : [2019] 5 SCR 372; Latif Estate Line India Ltd.
vs. Hadeeja Ammal 2011 (2) CTC 1; Thota Ganga
Laxmi and Another vs. Government of Andhra Pradesh
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P.
VELAYUTHAM & ORS.
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SUPREME COURT REPORTS
[2022] 17 S.C.R.
and Others (2010) 15 SCC 206; Raj Kumar Soni vs.
State of U.P. (2007) 10 SCC 635 - referred to.
Case Law Reference
[2009] 11 SCR 686
referred to
Para 7
[1964] 6 SCR 654
referred to
Para 39
[2019] 5 SCR 372
referred to
Para 39
[2016] 12 SCR 26
relied on
Para 42
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.27522753 of 2022.
From the Judgment and Order dated 28.09.2021 of the High Court
of Judicature at Madras in W.A. Nos.59 and 60 of 2016.
Guru Krishna Kumar, Nakul Devan, Sr. Advs., Anirudh Krishnan,
Balaji Srinivasan, Ms. Pallavi Sengupta, Ms. Neelu Mohan, Advaidh
Neelakkantan, Ms. Garima Jain, Subramanian Vaidyanathan, Ms. Aakriti
Priya, Advs. for the Appellant.
Shyam Divan, Atul Nanda, Mukul Rohatgi, Sr. Advs., Shreeyash
U. Lalit, K. Surendar, Sougat Mishra, Raveena Lalit, Mrs. Pragya
Baghel, Goutham Shivshankar, Mrs. Chenthoori Pugazendhi, Anand
Sathiyaseelan, Satheesh, Jay Kishor Singh, Advs. for the Respondents.
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
1. Asset Reconstruction Company (India) Limited, to whom the
Indian Bank assigned the loans and the underlying security of a particular
borrower, has come up with the above appeals challenging the judgment
of the Division Bench of the High Court of Judicature at Madras, reversing
the judgment of a learned Single Judge of the Court, by which the learned
Single Judge held the registration of a sale-deed by the Registering
Authority to be null and void.
2. We have heard Mr. Guru Krishna Kumar and Mr. Nakul Devan,
learned senior counsel for the appellant, and Mr. Shyam Divan, Mr. Atul
Nanda and Mr. Mukul Rohatgi, learned senior counsel appearing for the
contesting respondents.
3. The brief facts necessary for the disposal of the appeals can
be summarised as follows:-
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(i) In the year 1992, the Indian Bank sanctioned financial
facilities to M.V.R. Group of Industries. According to the Indian
Bank, the borrower offered the immovable property covered by
the document now in dispute, as collateral security and a mortgage
by deposit of title deeds is said to have been created way back in
the year 1995-96;
(ii) Alleging that the borrower defaulted in repayment of
the loan, Indian Bank filed an application before the Debts
Recovery Tribunal in the year 1996 under Section 19 of the
Recovery of Debts Due to Banks and Financial Institutions Act,
1993;
(iii) However, after the advent of the Securitisation Act,
2002, the Bank issued a demand notice dated 15.12.2004 under
Section 13(2) of the Securitisation Act. It was followed by a
possession notice dated 30.03.2005 under Section 13(4);
(iv) Thereafter, the respondent nos. 4 and 5 herein executed
a deed of Power of Attorney ('PoA' for short) on 23.08.2006 in
favour of Mr. S.P. Velayutham, the 1st respondent in one of these
appeals and the 6th respondent in the other appeal. This deed of
Power of Attorney contained an express prohibition for the agent
to encumber the properties. This deed of PoA was registered in
the Office of the Sub-Registrar, Alandur;
(v) By another deed of PoA dated 07.06.2007, the power
of sale is said to have been conferred upon the agent, but this
deed of power was un-registered;
(vi) On the basis of the original registered deed of PoA
dated 23.08.2006 which did not confer a power of sale, Mr. S.P.
Velayutham sold the property to his son Amar (the 6th respondent
in one of these appeals and the 1st respondent in the other appeal)
under a deed of sale dated 05.07.2007;
(vii) In the meantime, Indian Bank which already initiated
proceedings under the Securitisation Act, assigned the debt and
the collateral security in favour of the appellant herein, which is
an asset reconstruction company. On the basis of such assignment,
the appellant issued a sale notice dated 05.08.2008;
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P.
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]
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SUPREME COURT REPORTS
[2022] 17 S.C.R.
(viii) However, Mr. Amar, executed a deed of settlement
dated 13.10.2008 in favour of his father Mr. S.P. Velayutham,
from whom he had purchased the property;
(ix) While so, during the period 2009-2015, some
encroachments took place which led to the initiation of proceedings
under Section 145 Cr.P.C. The original borrowers also filed civil
suits and the appellant got themselves impleaded in those suits;
(x) Eventually, the appellant filed a writ petition in W.P.No.
33462 of 2014 seeking a declaration that the act of the Sub-Registrar
in registering the sale deed executed by S.P. Velayutham in favour
of his son Amar, was null and void. The said writ petition was
allowed by a learned Judge on the ground that there was utter
failure on the part of the Registering Authority to follow the
mandate of law as prescribed in Sections 32 to 35 of the
Registration Act, 1908 and that the Registrar failed to verify the
deed of PoA dated 23.08.2006, before allowing registration of the
sale deed executed on the basis of the said power;
(xi) However, two intra-court appeals filed by the fatherson duo, were allowed by the Division Bench primarily on the
ground, (1) that the appellant ought to have taken recourse to a
civil suit; and (2) that the appellant is guilty of violating the order
passed by this Court in the proceedings arising out of the order of
the Sub-Divisional Magistrate under Section 145 of the Cr.P.C.,
directing the parties to approach the civil court. Aggrieved by this
order of the Division Bench, the appellant has come up with the
above appeals.
4. Assailing the impugned order of the Division Bench of the High
Court, it is contended by the learned senior counsel for the appellants, (i)
that the High Court failed completely to appreciate that the Registration
Act, 1908, enjoins upon the Registering Authority to verify "the person
executing" the document sought to be registered; (ii) that in cases where
the statutory authorities fail to perform the duties enjoined upon them,
under specific provisions of the statute, the jurisdiction of the High Court
under Article 226 of the Constitution does not stand ousted; (iii) that
what was challenged before the High Court in a petition under Article
226 was not the acts of individuals, but the acts of omission and
commission on the part of the Registering Authority and hence the writ
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petition cannot be said to be not maintainable; and (iv) that by an oversimplified process of reasoning, the Division Bench of the High Court
threw the appellant out of the Court and also added insult to injuryby
commenting upon the conduct of the appellant and imposing costs.
5. Supporting the impugned order, it is contended by Mr. Shyam
Divan, learned senior counsel appearing for Mr. S.P. Velayutham
(respondent no.6 in one of these appeals and respondent no.1 in the
other appeal), (i) that when admittedly title suits are pending and the
very appellant herein has got themselves impleaded therein, it was not
open to the appellant to resort to a short-cut method of invoking the
jurisdiction of the writ court; (ii) that when there are seriously disputed
questions of fact, with the contesting respondents (father and son) tracing
their title to an un-broken, un-impeachable chain of registered documents
dating back to 1929, the appellant could not have invoked the writ
jurisdiction of the High Court, after having got an assignment deed from
the Indian Bank just a few years ago in 2007; (iii) that the very right of
the Indian Bank to claim the creation of a mortgage in their favour, has
come under cloud after the officials of the Indian Bank and the borrowers
got convicted by the Special Court for the CBI cases in Calendar Case
No. 36 of 1998 for various offences punishable under Section 120B
read with Sections 420, 467, 471 etc., and Section 13(2) read with Section
13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988; (iv)
that the attempt of the appellant to invoke the writ jurisdiction of the
High Court was in the teeth of the judgment of this Court in
SLP(Crl.)No.838 of 2015 dated 27.02.2015, which arose out of
proceedings under Section 145 of the Code of Criminal Procedure, 1973;
(v) that despite this Court affirming the judgment of the High Court
relegating the appellant to a civil court, the appellant took a chance by
invoking the writ jurisdiction of the High Court suppressing material facts;
and (vi) that the appellant, whose very locus to stake a claim on the
properties is disputed, was rightly non suited by the High Court.
6. Mr. Atul Nanda, learned senior counsel appearing for one of
the parties, while adopting the contentions of Mr. Shyam Divan, added
that when the Special Court for CBI cases has found the very creation
of the mortgage in favour of Indian Bank to be a product of fraud and
forgery, an institution claiming to be the assignee of the mortgagee could
not have invoked the writ jurisdiction of the High Court, especially after
having got impleaded in the civil suits.
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P.
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]
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[2022] 17 S.C.R.
7. Mr. Mukul Rohatgi, learned senior counsel appearing for one
of the contesting respondents invited our attention to the statutory
provisions and the decision of this Court in Rajni Tandon vs. Dulal
Ranjan Ghosh Dastidar & Anr1, and contended that the requirement
of authentication of PoA by the Registrar under Section 33(1), was
mandatory only in cases where the person executing the document is
different from the person presenting it for registration and that wherever
the agent himself has signed the deed which is presented for registration,
he becomes the executant of the document, leaving no role for the
Registrar to probe.
8. We have carefully considered the above submissions.
9. The limited question that arises for our consideration is as to
whether the invocation of the writ jurisdiction of the High Court by the
appellant was right, especially when civil suits at the instance of third
parties are pending and when the appellant had already been directed by
this Court, in proceedings arising under section 145 of the Code of
Criminal Procedure, to move the civil court?
10. To enable (or disable?) us to find an answer to the above
question, the learned counsel on both sides took us through some provisions
of the Registration Act, 1908 and a few decisions of this Court. We shall
now take a look at them.
11. There is and there can be no dispute about the fact that while
the Registering Officer under the Registration Act, 1908, may not be
competent to examine whether the executant of a document has any
right, title or interest over the property which is the subject matter of the
document presented for registration, he is obliged to strictly comply with
the mandate of law contained in the various provisions of the Act.
Therefore let us take a look at the scheme of the Act.
12. The Registration Act, 1908 is divided into XV parts. Part III
comprising of Sections 17 to 22 contains provisions relating to registerable
documents; Part-IV of the Act contains prescriptions regarding the time
of presentation of documents for registration; Part-V contains provisions
prescribing and regulating the place of registration of documents; PartVI contains provisions relating to presentation of documents for
registration and the procedure on admission and denial of execution;
Part-VII contains provisions for enforcing appearance of executants
1 (2009) 14 SCC 782
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and witnesses; Part-XI contains provisions relating to the duties and
powers of Registering Officers and Part-XII contains provisions relating
to refusal to register and the remedies available against such refusal.
13. Before we look at the relevant provisions of the Registration
Act, 1908, it is necessary to note that "Registration of deeds and
documents" falls in Entry 6 of List III (Concurrent List) of the SEVENTH
SCHEDULE of the Constitution. Therefore, the Registration Act, 1908,
which is a Central Act, can be seen as something which provides only a
template upon which the States are entitled to make amendments. This
is why amendments by States galore in the Registration Act, 1908.
Therefore, any interpretation of the provisions of the Act, should be in
consonance with the scheme of the Act as applicable to the State involved
in the litigation. For instance, registration of certain documents may be
optional in some States but mandatory in some other States. Therefore,
the interpretation made by this Court, of a provision as amended in its
application to a particular State, cannot be applied blindly while
interpreting the same provision as applicable to another State. Keeping
this aspect in mind, let us now peep into the statutory provisions.
14. Section 32 of the Act mandates that every document to be
registered under the Act, irrespective of whether such a registration is
compulsory or optional, shall be presented by any of the persons
mentioned therein. Section 32 reads as follows:-
"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 registrationoffice,-
(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 a person, or
(c)
by the agent of such a person, representative or
assign, duly authorised by power-of-attorney
executed and authenticated in manner hereinafter
mentioned."
15. The words "such person" appearing in clauses (b) and (c) of
Section 32, correlate to the words "person executing or claiming under
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the same", appearing in clause (a) of Section 32. In other words, clause
(a) covers both the executant as well as the claimant of the document.
Therefore, clauses (b) and (c) cover several persons who may represent
the executant or the claimant. Since the controversy in several decisions
of this Court has revolved around clause (c) of Section 32, it would be
useful, for the purpose of easy appreciation, to break clause (c) into its
several components as follows:-
(i) by the agent of the person executing the document;
(ii) by the agent of the person claiming under the document;
(iii) by the agent of the representative of the person executing the
document;
(iv) by the agent of the representative of the person claiming under
the document;
(v) by the agent of the assign of the person executing the document;
(vi) by the agent of the assign claiming under the document.
It must be noted that the word "agent" appearing in clause (c) of
section 32 goes not only with the words "such a person", but also with
the words "representative" and "assign". This is for the reason that
'representative' and 'assign' are independently covered by clause (b)
and hence if these words do not go with the word 'agent' then their
appearance in clause (c) would be redundant.
16. By virtue of the 2nd part of clause (c) of Section 32, it is
necessary that if a document for registration is presented by any of the
afore-mentioned six categories of persons, he should have been "duly
authorized by a PoA executed and authenticated in the manner
mentioned in the other provisions of the Act". In other words, in
cases where a document is presented for registration by the agent, (i) of
the executant; or (ii) of the claimant; or (iii) of the representative or
assign of the executant or claimant, the same cannot be accepted for
registration unless the agent is duly authorized by a PoA executed and
authenticated in the manner provided in the Act.
17. Section 33 contains prescriptions regarding the types of PoA,
which alone shall be recognized, for the purposes of Section 32. Section
33 reads as follows:-
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33. Power-of-attorney recognizable for purposes of section
32.-(l) For the purposes of section 32, the following powers-ofattorney shall alone be recognized, namely:-
(a)
if the principal at the time of executing the powerof-attorney resides in any part ofIndia 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 powerof-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
(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-ofattorney 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
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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."
18. A careful look at Sections 32 and 33 will show that while
speaking about PoA, these provisions do not use the word
"registration". While Section 32(c) uses the words "executed and
authenticated", Section 33(1) uses the words "recognised" and
"authenticated". Therefore it is clear that the word "authenticated"
is not to be understood to be the same as "registered". The reason
why we say so is that Section 33(1) speaks only about authentication
and not registration and clauses (a), (b) and (c) of Section 33(1) provides
the list of persons competent to authenticate a PoA. Persons who are
empowered by clauses (a), (b) and (c) of sub-section (1) of Section 33
to authenticate a PoA are as follows:-
(i)
The Registrar or the Sub-Registrar within whose district or
sub-district the principal resides, if such principal resides,
at the time of execution of the PoA, in any part of India to
which this Act applies;
(ii)
Any Magistrate, if the principal resides in any part of India
where this Act is not in force;
(iii)
A Notary Public, any Court, Judge, Magistrate, Indian
Consul, Vice Consul or Representative of the Central
Government, if the principal does not reside in India.
19. It may be seen from the list of persons indicated above, that
not all of them are Registrars and Sub-Registrars appointed in terms of
Section 6 of the Registration Act, 1908. Under the Act, the power of
registration is conferred only upon the Registrars and Sub-Registrars
appointed under the Act. But clauses (b) & (c) of Section 33(1)
speaks about persons other than Registrars and Sub-Registrars.
This is why, Section 32(c) as well as Section 33 use only the
expression "authenticated" and not the word "registered". But
unfortunately several Courts have mixed-up these two words, resulting
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in applying the test in terms of Sections 17 and 18 for determining the
validity of a PoA.
20. In fact the distinction between "authentication" and
"registration" is spelt out very clearly in the Tamilnadu Registration Rules.
It may be noted here that section 69(1) of the Registration Act, 1908,
empowers the Inspector General of Registration (i) to exercise general
superintendence over all the registration offices in the territories under
the State Government; and (ii) to make rules consistent with the Act, in
respect of matters provided in clauses (a) to (j) therein. These rules, by
virtue of sub-section (2) of section 69, are required to be submitted to
the State Government for approval and to be published in the official
gazette after such approval. The rules so made in terms of section 69,
in the State of Tamil Nadu, provide clarity on the distinction between
authentication and registration.
21. Rules 48 and 49 of the Tamilnadu Registration Rules read as
follows:
48. A power of attorney may be brought to a registering officer
(1) for authentication, or (2) for registration, or (3) for both
authentication and registration. In the first case, he shall merely
make the entry prescribed for authentication; in the second
case, he shall register the power in the same manner as any
other document; and in the third case, he shall first
authenticate the power and then admit it to registration in the
usual manner.
49. Although a power of attorney may be registered like any
other instrument, it is not valid for registration purposes unless
authenticated. When a power of attorney is brought to a
registering officer by a person who does not understand the
distinction between authentication and registration, the
registering officer should explain the difference to him and
give him such information as may be necessary.
22. After pointing out the distinction between authentication and
registration of a PoA, Rule 52 indicates the duty to be performed by the
Registering Officer, at 2 points of time, namely (i) at the time of
authentication; and (ii) when the power is revoked. Rule 52 reads as
follows:
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52. (i) An abstract in the form printed in Appendix III shall be
retained of each power of attorney authenticated by a
registering officer whether such power is general or special,
registered or not registered. The abstract shall be signed by
the registering officer; and shall be filed in a separate file
with a serial number along with other powers retained under
rule 46. The notes of interlineations, blanks, erasures and
alterations made by the registering officer on the original
power shall be copied verbatim in the abstract.
(i) (a) Each registration office shall maintain a register of all
revocations of powers of attorney registered in, or
communicated to it.
(b) When notice of a revocation is given to a registering officer,
he shall send an intimation of the same to such other offices
as may be specified by the person revoking the power.
23. In fact, there is a separate chapter in Chapter X of the
Registration Rules of Tamilnadu, devoted to deeds of PoA. Rules 48, 49
and 52 which we have extracted above, are part of the said chapter.
Rule 46 spells out the procedure to be followed by the Registering Officer
when a document is presented for registration under a general PoA and
the procedure to be followed when the document is presented under a
Special PoA. It reads as follows:
46. (i) If a document is presented for registration under special
power of attorney, the power shall be retained an filed in the
office with the following endorsement .........................
No................. of 19 ...........
Presented in connection with document No................ of
19........... of Book.........., Vol...........
Date:
Signature of Registering Officer.
(ii) If a document is presented for registration under general
power of attorney, the power shall be returned with the
following endorsement:
Presented in connection with document No................ of
19........... of Book.........., Vol...........
Date:
Signature of Registering Officer.
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(iii) When a document is presented for registration by a person
entitled to present it and execution is admitted by an agent
under a power of attorney, the following endorsement shall
be made on the power, which shall be retained and filed, or
returned, according as it is a special or a general power
*No................ of 19...... Presented in connection with
document No................ of 19........... of Book..........,
Vol...........
Date:
Signature of Registering Officer.
24. Having seen (i) the distinction between authentication and
registration of a PoA; (ii) the obligation imposed by the Act and the
Rules, upon the Registering Officer while authenticating and/or registering
a PoA; (iii) the necessity for the Registering Officer to maintain a track
of revocation of deeds of PoA; and (iv) the different requirements of
Rule 46, relating to a document presented under a general PoA and a
document presented under a special PoA, let us now turn to the other
provisions.
25. Section 34 of the Act contains provisions regarding the enquiry
to be undertaken by the Registering Officer before registration. Section
34, in its application in the State of Tamilnadu, as amended by Tamilnadu
Amendment Act 28 of 2000, reads as follows:-
34. Enquiry before registration by registering officer.-(l)
Subject to the provisions contained in this Part and in sections 41,
43, 45, 69, 75, 77, 88 and 89, no document shall be registered
under this Act, unless the persons executing such document (and
in the case of document for sale of property, the persons
claiming under that document)2, or their representatives, assigns
or agents authorized as aforesaid, appear before the registering
officer within the time allowed for presentation under sections 23,
24, 25 and 26:
Provided that, if owing to urgent necessity or unavoidable accident
all such persons do not so appear, the Registrar, in cases where
the delay in appearing does not exceed four months, may direct
that on payment of a fine not exceeding ten times the amount of
the proper registration fee, in addition to the fine, if any, payable
under section 25, the document may be registered.
2 Vide Tamil Nadu Act 28 of 2000, sec.3
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(2) Appearances under sub-section (1) may be simultaneous or
at different times.
(3) The registering officer shall thereupon-
(a)
enquire whether or not such document was executed
by the persons by whom it purports to have been
executed;
(b)
satisfy himself as to the identity of the persons
appearing before him and alleging that they have
executed the document (or they are claiming under
the document)3; and
(c)
in the case of any person appearing as a
representative, assign or agent, satisfy himself of the
right of such person so to appear.
(4) Any application for a direction under the proviso to sub-section
(1) may be lodged with a Sub-Registrar, who shall forthwith
forward it to the Registrar to whom he is subordinate.
(5) Nothing in this section applies to copies of decrees or orders.
26. Sub-section (3) of Section 34 imposes three obligations upon
the Registering Officer. These obligations are:-
(i)
To enquire whether or not such document was executed by
the person by whom it is claimed to have been executed;
(ii)
To satisfy himself as to the identity of the person appearing
before him and claiming to have executed the document;
(iii)
To satisfy himself about the right of any person
appearing as a representative, assign or agent, to so
appear;
27.