Case details

Court: Supreme Court of India
Decided: 4 May 2022
Bench: Hemant Gupta
Citations: 2022 INSC 509[2022] 17 S.C.R. 637
Type: Judgment (Appeal(s) allowed)

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Citation: [2022] 17 S.C.R. 637 (search it on the Supreme Court's e-SCR portal)

Supreme Court of India

ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED versus S. P. VELAYUTHAM & ORS on 4 May 2022

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[2022] 17 S.C.R. 637

ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED

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 – Failureof registering authority to perform its duties – The borrowerdefaulted in repayment of the loan pursuant to which the Bank issueda demand notice u/s 13(2) of the Securitisation Act - Bank whichalready initiated proceedings under the Securitisation Act, assignedthe debt and the collateral security in favour of the appellant - Bydeed of PoA, the power of sale is said to have been conferred uponthe agent, but this was un-registered - On the basis of deed of PoA,which did not confer a power of sale, respondent sold the propertyto his son A - The appellant filed a writ petition seeking a declarationthat the act of the sub-registrar in registering the sale deed was nulland void – Single Judge allowed the petition on the ground thatthere was utter failure on the partof the Registering Authority tofollow the mandate of law as prescribed in Sections 32 to 35 of theRegistration Act, 1908 - Division Bench held that the appellant isguilty of violating the order passed by Supreme Court in theproceedings arising out of the order of the Sub-Divisional Magistrateunder Section 145 of the Cr.P.C- Whether the invocation of the writjurisdiction of the High Court by the appellant was right, especiallywhen civil suits at the instance of third parties are pending - Held:If a party questions the very execution of a document or the rightand title of a person to execute a document and present it forregistration, his remedy will only be to go to the civil court - Butwhere a party questions only the failure of the Registering Authorityto perform his statutory duties in the course of the third step, itcannot be said that the jurisdiction of the High Court under Article226 stands completely ousted - When a High Court, in exercise ofits jurisdiction under Article 226 finds that there was utter failureon the part of the Registering Authority to stick to the mandate oflaw, the Court merely cancels the act of registration, but does notdeclare the very execution of the document to be null and void -

637

CDEF

AExamining whether the Registering Authority did something in themanner required by law or otherwise, is certainly within thejurisdiction of the High Court under Article 226 - Therefore, theSingle Judge rightly applied the law and allowed the writ petitionfiled by the appellant, but the Division Bench got carried away bythe sound and fury created by the contesting respondents.B

Registration Act, 1908 - ss. 32, 33, 34 & 69(1) – Tamil NaduRegistration Rules - R u l e s 4 6 , 4 8 , 4 9 , 5 2 - A careful look at Sections32 and 33 will show that while speaking about PoA, these provisionsdo not use the word “registration” - While Section 32(c) uses thewords “executed and authenticated”, Section 33(1) uses the wordsC“recognised” and “authenticated” - Therefore it is clear that theword “authenticated” is not to be understood to be the same as“registered” - Whenever an agent is authorised to execute adocument and present the same for registration and he accordinglyexecutes the document in terms of PoA, he becomes the actualDexecutant in so far as the Registering Authority is concerned andthat therefore he becomes entitled under Section 33(a) to present itfor registration.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1.1 Actually, the registration of a document comprisesEof three essential steps among others. They are, (i) execution of thedocument, by the executant signing or affixing his left hand thumbimpression; (ii) presenting the document for registration andadmitting to the Registering Authority the execution of suchdocument; and (iii) the act of registration of the document. In casesFwhere a suit for title is filed, with or without the relief ofdeclaration that the registered document is null and void, whatgets challenged, is a combination of all the aforesaid three stepsin the process of execution and registration. The first of theaforesaid three steps may be challenged in a suit for declarationthat the registered document is null and void, either on the groundGthat the executant did not have a valid title to pass on or on theground that what was found in the document was not the signatureof the executant or on the ground that the signature of theexecutant was obtained by fraud, coercion etc. The second stepof presentation of the document and admitting the execution ofHthe same, may also be challenged on the very same grounds hereinabove stated. Such objections to the first and second ofthe aforesaid three steps are substantial and they strike at thevery root of creation of the document. A challenge to the veryexecution of a document, is a challenge to its very DNA and anydefect or illegality on the execution, is congenital in nature.Therefore, such a challenge, by its very nature, has to be madeonly 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, issomething that the Registering Authority is called upon to dostatutorily. While the executant of the document and the personclaiming under the document (claimant) are the only actorsinvolved in the first two steps, the Registering Officer is the actorin the third step. Apart from the third step which is wholly in thedomain of the Registering Authority, he may also have a role toplay in the second step when a document is presented forregistration and the execution thereof is admitted. The role thatis assigned to the Registrar in the second step is that ofverification of the identity of the person presenting the documentfor registration. Thus, the first two steps in the process ofregistration are substantial in nature, with the parties to thedocument playing the role of the lead actors and the RegisteringAuthority playing a guest role in the second step. The third stepis procedural in nature where the Registering Authority is thelead actor. [Paras 51 & 52][664-F-H; 665-A]

1.3. In suits for declaration of title and/or suits fordeclaration that a registered document is null and void, all theaforesaid three steps which comprise the entire process ofexecution and registration come under challenge. If a partyquestions the very execution of a document or the right and titleof 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 partyquestions only the failure of the Registering Authority to performhis statutory duties in the course of the third step, it cannot besaid that the jurisdiction of the High Court under Article 226stands completely ousted. This is for the reason that the writjurisdiction of the High Court is to ensure that statutory authorities AB

Aperform their duties within the bounds of law. It must be notedthat when a High Court, in exercise of its jurisdiction under Article226 finds that there was utter failure on the part of the RegisteringAuthority to stick to the mandate of law, the Court merely cancelsthe act of registration, but does not declare the very execution ofthe document to be null and void. A declaration that a documentBis nulland void, is exclusively within the domain of the civil court,but it does not mean that the High Court cannot examine thequestion whether or not the Registering Authority performedhis statutory duties in the manner prescribed by law. It is wellsettled that if something is required by law to be done in aCparticular manner, it shall be done only in that manner and nototherwise. Examining whether the Registering Authority didsomething in the manner required by law or otherwise, is certainlywithin 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 ofprocedureDon the part of the Registering Authority are not gross or theviolations do not shock the conscience of the Court. Lack ofjurisdiction is completely different from a refusal to exercisejurisdiction. [Para 53][665-B-G]

2. In the case on hand, the appellant has not sought aEdeclaration from the High Court that the execution of thedocument in question was null and void or that there was no titlefor the executant to transfer the property. The appellant assailedbefore the High Court, only the act of omission on the part of theRegistering Authority to check up whether the person whoFclaimed to be the power agent, hadthe power of conveyance andthe power of presenting the document for registration, especiallyin the light to the statutory rules. Therefore, the learned SingleJudge rightly applied the law and allowed the writ petition filedby the appellant, but the Division Bench got carried away by thesound and fury created by the contesting respondents on the basisGof (i) pendency of the civil suits; (ii) findings recorded by theSpecial Court for CBI cases; and (iii) the order passed by thisCourt in the SLP arising out of proceedings under Section 145Cr.P.C. [Para 54][665-G-H; 666-A-B]

3. Arguments were advanced on the question whether theRegistering Authority is carrying out an administrative act or aquasi-judicial act in the performance of his statutory duties. Butwe think it is not relevant for determining the availability of writjurisdiction. If the Registering Authority is found to be exercisinga quasi-judicial power, the exercise of such a power will still beamenable to judicialreview under Article 226, subject to theexhaustion of the remedies statutorily available. On the contraryif the Registering Authority is found to be performing only anadministrative act, even then the High Court is empowered tosee whether he performed the duties statutorily ordained uponhim in the manner prescribed by law. [Para 55][666-C-D]

4. Therefore, in the light of (i) the Tamilnadu RegistrationRules discussed above; (ii) the statutory scheme of Sections 32to 35 of the Act as well as other provisions as amended by theState of Tamilnadu;and (iii) the distinction between a challengeto the first 2 steps in the process of execution of a document andthe third step concerning registration, this Court is of theconsidered view that the Division bench of the High Court wasnot right in setting aside the order of the learned single Judge. Ifthe Registering Officer under the Act is construed as performingonly a mechanical role without any independent mind of his own,then even Government properties may be sold and the documentsregistered by unscrupulous persons driving the parties to go tocivil court. Such an interpretation may not advance the cause ofjustice. [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. GianChand (2022) SCC Online SC-102 - relied on

Rajni Tandon vs. Dulal Ranjan Ghosh Dastidar & Anr(2009) 14 SCC 782 : [2009] 11 SCR 686; ThansinghNathmal vs. Superintendent of Taxes (1964) 6 SCR 654: Sarvepalli Ramaiah vs. District Collector (2019) 4 SCC500 : [2019] 5 SCR 372; Latif Estate Line India Ltd.vs. Hadeeja Ammal 2011 (2) CTC 1; Thota GangaLaxmi and Another vs. Government of Andhra Pradesh AB

Aand Others (2010) 15 SCC 206; Raj Kumar Soni vs.State of U.P. (2007) 10 SCC 635 - referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.2752-2753 of 2022.

From the Judgment and Order dated 28.09.2021 of the High Courtof 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, AdvaidhNeelakkantan, Ms. Garima Jain, Subramanian Vaidyanathan, Ms. AakritiDPriya, Advs. for the Appellant.

Shyam Divan, Atul Nanda, Mukul Rohatgi, Sr. Advs., ShreeyashU. Lalit, K. Surendar, Sougat Mishra, Raveena Lalit, Mrs. PragyaBaghel, Goutham Shivshankar, Mrs. Chenthoori Pugazendhi, AnandSathiyaseelan, Satheesh, Jay Kishor Singh, Advs. for the Respondents.

EThe Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

1. Asset Reconstruction Company (India) Limited, to whom theIndian Bank assigned the loans and the underlying security of a particularborrower, has come up with the above appeals challenging the judgmentFof the Division Bench of the High Court of Judicature at Madras, reversingthe judgment of a learned Single Judge of the Court, by which the learnedSingle Judge held the registration of a sale-deed by the RegisteringAuthority to be null and void.

2. We have heard Mr. Guru Krishna Kumar and Mr. Nakul Devan,Glearned senior counsel for the appellant, and Mr. Shyam Divan, Mr. AtulNanda and Mr. Mukul Rohatgi, learned senior counsel appearing for thecontesting respondents.

3. The brief facts necessary for the disposal of the appeals canbe summarised as follows:- H

(i) In the year 1992, the Indian Bank sanctioned financialfacilities to M.V.R. Group of Industries. According to the IndianBank, the borrower offered the immovable property covered bythe document now in dispute, as collateral security and a mortgageby deposit of title deeds is said to have been created way back inthe year 1995-96;

(ii) Alleging that the borrower defaulted in repayment ofthe loan, Indian Bank filed an application before the DebtsRecovery Tribunal in the year 1996 under Section 19 of theRecovery 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 underSection 13(2) of the Securitisation Act. It was followed by apossession notice dated 30.03.2005 under Section 13(4);

(iv) Thereafter, the respondent nos. 4 and 5 herein executeda deed of Power of Attorney (‘PoA’ for short) on 23.08.2006 infavour of Mr. S.P. Velayutham, the 1[st] respondent in one of theseappeals and the 6[th] respondent in the other appeal. This deed ofPower of Attorney contained an express prohibition for the agentto encumber the properties. This deed of PoA was registered inthe Office of the Sub-Registrar, Alandur;

(v) By another deed of PoA dated 07.06.2007, the powerof sale is said to have been conferred upon the agent, but thisdeed of power was un-registered;

(vi) On the basis of the original registered deed of PoAdated 23.08.2006 which did not confer a power of sale, Mr. S.P.Velayutham sold the property to his son Amar (the 6[th] respondentin one of these appeals and the 1[st] respondent in the other appeal)under a deed of sale dated 05.07.2007;

(vii) In the meantime, Indian Bank which already initiatedproceedings under the Securitisation Act, assigned the debt andthe collateral security in favour of the appellant herein, which isan asset reconstruction company. On the basis of such assignment,the appellant issued a sale notice dated 05.08.2008; A

(viii) However, Mr. Amar, executed a deed of settlementdated 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, someencroachments took place which led to the initiation of proceedingsunder Section 145 Cr.P.C. The original borrowers also filed civilsuits 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-Registrarin registering the sale deed executed by S.P. Velayutham in favourof his son Amar, was null and void. The said writ petition wasallowed by a learned Judge on the ground that there was utterfailure on the part of the Registering Authority to follow themandate of law as prescribed in Sections 32 to 35 of theRegistration Act, 1908 and that the Registrar failed to verify thedeed of PoA dated 23.08.2006, before allowing registration of thesale deed executed on the basis of the said power;

(xi) However, two intra-court appeals filed by the father-son duo, were allowed by the Division Bench primarily on theground, (1) that the appellant ought to have taken recourse to acivil suit; and (2) that the appellant is guilty of violating the orderpassed by this Court in the proceedings arising out of the order ofthe Sub-Divisional Magistrate under Section 145 of the Cr.P.C.,directing the parties to approach the civil court. Aggrieved by thisorder of the Division Bench, the appellant has come up with theabove appeals.

4. Assailing the impugned order of the Division Bench of the HighCourt, it is contended by the learned senior counsel for the appellants, (i)that the High Court failed completely to appreciate that the RegistrationAct, 1908, enjoins upon the Registering Authority to verify “the personexecuting” the document sought to be registered; (ii) that in cases wherethe statutory authorities fail to perform the duties enjoined upon them,under specific provisions of the statute, the jurisdiction of the High Courtunder Article 226 of the Constitution does not stand ousted; (iii) thatwhat was challenged before the High Court in a petition under Article226 was not the acts of individuals, but the acts of omission andcommission on the part of the Registering Authority and hence the writ petition cannot be said to be not maintainable; and (iv) that by an over-simplified process of reasoning, the Division Bench of the High Courtthrew the appellant out of the Court and also added insult to injurybycommenting upon the conduct of the appellant and imposing costs.

5. Supporting the impugned order, it is contended by Mr. ShyamDivan, learned senior counsel appearing for Mr. S.P. Velayutham(respondent no.6 in one of these appeals and respondent no.1 in theother appeal), (i) that when admittedly title suits are pending and thevery appellant herein has got themselves impleaded therein, it was notopen to the appellant to resort to a short-cut method of invoking thejurisdiction of the writ court; (ii) that when there are seriously disputedquestions of fact, with the contesting respondents (father and son) tracingtheir title to an un-broken, un-impeachable chain of registered documentsdating back to 1929, the appellant could not have invoked the writjurisdiction of the High Court, after having got an assignment deed fromthe Indian Bank just a few years ago in 2007; (iii) that the very right ofthe Indian Bank to claim the creation of a mortgage in their favour, hascome under cloud after the officials of the Indian Bank and the borrowersgot convicted by the Special Court for the CBI cases in Calendar CaseNo. 36 of 1998 for various offences punishable under Section 120Bread with Sections 420, 467, 471 etc., and Section 13(2) read with Section13(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 theHigh Court was in the teeth of the judgment of this Court inSLP(Crl.)No.838 of 2015 dated 27.02.2015, which arose out ofproceedings under Section 145 of the Code of Criminal Procedure, 1973;(v) that despite this Court affirming the judgment of the High Courtrelegating the appellant to a civil court, the appellant took a chance byinvoking the writ jurisdiction of the High Court suppressing material facts;and (vi) that the appellant, whose very locus to stake a claim on theproperties is disputed, was rightly non suited by the High Court.

6. Mr. Atul Nanda, learned senior counsel appearing for one ofthe parties, while adopting the contentions of Mr. Shyam Divan, addedthat when the Special Court for CBI cases has found the very creationof the mortgage in favour of Indian Bank to be a product of fraud andforgery, an institution claiming to be the assignee of the mortgagee couldnot have invoked the writ jurisdiction of the High Court, especially afterhaving got impleaded in the civil suits.

A7. Mr. Mukul Rohatgi, learned senior counsel appearing for oneof the contesting respondents invited our attention to the statutoryprovisions and the decision of this Court in Rajni Tandon vs. DulalRanjan Ghosh Dastidar & Anr[1], and contended that the requirementof authentication of PoA by the Registrar under Section 33(1), wasmandatory only in cases where the person executing the document isBdifferent from the person presenting it for registration and that whereverthe agent himself has signed the deed which is presented for registration,he becomes the executant of the document, leaving no role for theRegistrar to probe.

8. We have carefully considered the above submissions.C

9. The limited question that arises for our consideration is as towhether the invocation of the writ jurisdiction of the High Court by theappellant was right, especially when civil suits at the instance of thirdparties are pending and when the appellant had already been directed bythis Court, in proceedings arising under section 145 of the Code ofDCriminal Procedure, to move the civil court?

10. To enable (or disable?) us to find an answer to the abovequestion, the learned counsel on both sides took us through some provisionsof the Registration Act, 1908 and a few decisions of this Court. We shallnow take a look at them.E

11. There is and there can be no dispute about the fact that whilethe Registering Officer under the Registration Act, 1908, may not becompetent to examine whether the executant of a document has anyright, title or interest over the property which is the subject matter of thedocument presented for registration, he is obliged to strictly comply withFthe 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 IIIcomprising of Sections 17 to 22 contains provisions relating to registerabledocuments; Part-IV of the Act contains prescriptions regarding the timeGof presentation of documents for registration; Part-V contains provisionsprescribing and regulating the place of registration of documents; Part-VI contains provisions relating to presentation of documents forregistration and the procedure on admission and denial of execution;Part-VII contains provisions for enforcing appearance of executants H1 (2009) 14 SCC 782

and witnesses; Part-XI contains provisions relating to the duties andpowers of Registering Officers and Part-XII contains provisions relatingto refusal to register and the remedies available against such refusal.

13. Before we look at the relevant provisions of the RegistrationAct, 1908, it is necessary to note that “Registration of deeds anddocuments” falls in Entry 6 of List III (Concurrent List) of the SEVENTHSCHEDULE of the Constitution. Therefore, the Registration Act, 1908,which is a Central Act, can be seen as something which provides only atemplate upon which the States are entitled to make amendments. Thisis why amendments by States galore in the Registration Act, 1908.Therefore, any interpretation of the provisions of the Act, should be inconsonance with the scheme of the Act as applicable to the State involvedin the litigation. For instance, registration of certain documents may beoptional in some States but mandatory in some other States. Therefore,the interpretation made by this Court, of a provision as amended in itsapplication to a particular State, cannot be applied blindly whileinterpreting the same provision as applicable to another State. Keepingthis aspect in mind, let us now peep into the statutory provisions.

14. Section 32 of the Act mandates that every document to beregistered under the Act, irrespective of whether such a registration iscompulsory or optional, shall be presented by any of the personsmentioned therein. Section 32 reads as follows:- E

“32. Persons to present documents for registration.—Exceptin the cases mentioned in sections 31, 88 and 89, every document,to be registered under this Act, whether such registration becompulsory or optional, shall be presented at the proper registration-office,—

(a) by some person executing or claiming under thesame, 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 orGassign, duly authorised by power-of-attorneyexecuted and authenticated in manner hereinaftermentioned.”

15. The words “such person” appearing in clauses (b) and (c) ofSection 32, correlate to the words “person executing or claiming under H

Athe 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 representthe executant or the claimant. Since the controversy in several decisionsof this Court has revolved around clause (c) of Section 32, it would beuseful, for the purpose of easy appreciation, to break clause (c) into itsBseveral 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 theCdocument;

(iv) by the agent of the representative of the person claiming underthe document;

(v) by the agent of the assign of the person executing the document; D(vi) by the agent of the assign claiming under the document.

It must be noted that the word “agent” appearing in clause (c) ofsection 32 goes not only with the words “such a person”, but also withthe words “representative” and “assign”. This is for the reason that‘representative’ and ‘assign’ are independently covered by clause (b)Eand hence if these words do not go with the word ‘agent’ then theirappearance in clause (c) would be redundant.

16. By virtue of the 2[nd] part of clause (c) of Section 32, it isnecessary that if a document for registration is presented by any of theafore-mentioned six categories of persons, he should have been “dulyFauthorized by a PoA executed and authenticated in the mannermentioned in the other provisions of the Act”. In other words, incases where a document is presented for registration by the agent, (i) ofthe executant; or (ii) of the claimant; or (iii) of the representative orassign of the executant or claimant, the same cannot be accepted forregistration unless the agent is duly authorized by a PoA executed andGauthenticated 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. Section33 reads as follows:- H

33. Power-of-attorney recognizable for purposes of section32.—(l) For the purposes of section 32, the following powers-of-attorney shall alone be recognized, namely:—

(a) if the principal at the time of executing the power-of-attorney resides in any part ofIndia in which thisAct is for the time being in force, a power-of-attorneyBexecuted before and authenticated by the Registraror Sub-Registrar within whose district or sub-districtthe principal resides; (b) if the principal at the time aforesaid resides in anypart of India in which this Act is not in force, a power-of-attorney executed before and authenticated by anyMagistrate; C

(c) if the principal at the time aforesaid does not residein India, a power-of-attorney executed before andauthenticated by a Notary Public, or any Court, Judge,Magistrate, Indian Consul or Vice-Consul, orrepresentative of the Central Government:

Provided that the following persons shall not be required toattend at any registration-office or Court for the purpose ofexecuting 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 unablewithout risk or serious inconvenience so to attend;

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

(iii) persons exempt by law from personal appearance inCourt.

(2) In the case of every such person the Registrar or Sub-Registraror Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purportingto be the principal, may attest the same without requiring hispersonal 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 H

Ago to the house of the person purporting to be the principal, or tothe jail in which he is confined, and examine him, or issue acommission for his examination.

(4) Any power-of-attorney mentioned in this section may be provedby the production of it without further proof when it purports onBthe face of it to have been executed before and authenticated bythe person or Court hereinbefore mentioned in that behalf.”

18. A careful look at Sections 32 and 33 will show that whilespeaking about PoA, these provisions do not use the word“registration”. While Section 32(c) uses the words “executed andCauthenticated”, 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 reasonwhy we say so is that Section 33(1) speaks only about authenticationand not registration and clauses (a), (b) and (c) of Section 33(1) providesthe list of persons competent to authenticate a PoA. Persons who areDempowered by clauses (a), (b) and (c) of sub-section (1) of Section 33to authenticate a PoA are as follows:-

(i) The Registrar or the Sub-Registrar within whose district orsub-district the principal resides, if such principal resides,at the time of execution of the PoA, in any part of India toEwhich this Act applies;

(ii) Any Magistrate, if the principal resides in any part of Indiawhere this Act is not in force;

(iii) A Notary Public, any Court, Judge, Magistrate, IndianFConsul, Vice Consul or Representative of the CentralGovernment, if the principal does not reside in India.

19. It may be seen from the list of persons indicated above, thatnot all of them are Registrars and Sub-Registrars appointed in terms ofSection 6 of the Registration Act, 1908. Under the Act, the power ofregistration is conferred only upon the Registrars and Sub-RegistrarsGappointed 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 theexpression “authenticated” and not the word “registered”. Butunfortunately several Courts have mixed-up these two words, resulting H

in applying the test in terms of Sections 17 and 18 for determining thevalidity 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 generalsuperintendence over all the registration offices in the territories underthe State Government; and (ii) to make rules consistent with the Act, inrespect of matters provided in clauses (a) to (j) therein. These rules, byvirtue of sub-section (2) of section 69, are required to be submitted tothe State Government for approval and to be published in the officialgazette after such approval. The rules so made in terms of section 69,in the State of Tamil Nadu, provide clarity on the distinction betweenauthentication and registration.

21. Rules 48 and 49 of the Tamilnadu Registration Rules read asfollows:

48. A power of attorney may be brought to a registering officer(1) for authentication, or (2) for registration, or (3) for bothauthentication and registration. In the first case, he shall merelymake the entry prescribed for authentication; in the secondcase, he shall register the power in the same manner as anyother document; and in the third case, he shall firstauthenticate the power and then admit it to registration in theusual manner.

49. Although a power of attorney may be registered like anyother instrument, it is not valid for registration purposes unlessauthenticated. When a power of attorney is brought to aregistering officer by a person who does not understand thedistinction between authentication and registration, theregistering officer should explain the difference to him andgive him such information as may be necessary.

22. After pointing out the distinction between authentication andregistration of a PoA, Rule 52 indicates the duty to be performed by theRegistering Officer, at 2 points of time, namely (i) at the time ofauthentication; and (ii) when the power is revoked. Rule 52 reads asfollows:

A52. (i) An abstract in the form printed in Appendix III shall beretained of each power of attorney authenticated by aregistering officer whether such power is general or special,registered or not registered. The abstract shall be signed bythe registering officer; and shall be filed in a separate filewith a serial number along with other powers retained underBrule 46. The notes of interlineations, blanks, erasures andalterations made by the registering officer on the originalpower shall be copied verbatim in the abstract.

(i) (a) Each registration office shall maintain a register of allrevocations of powers of attorney registered in, orCcommunicated 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 officesas may be specified by the person revoking the power.

D23. In fact, there is a separate chapter in Chapter X of theRegistration Rules of Tamilnadu, devoted to deeds of PoA. Rules 48, 49and 52 which we have extracted above, are part of the said chapter.Rule 46 spells out the procedure to be followed by the Registering Officerwhen a document is presented for registration under a general PoA andthe procedure to be followed when the document is presented under aESpecial PoA. It reads as follows:

46. (i) If a document is presented for registration under specialpower of attorney, the power shall be retained an filed in theoffice with the following endorsement …………………….No…………….. of 19 ………..

FPresented in connection with document No……………. of19……….. of Book………., Vol………..

Date:

Signature of Registering Officer.

(ii) If a document is presented for registration under generalGpower of attorney, the power shall be returned with thefollowing endorsement:

Presented in connection with document No……………. of19……….. of Book………., Vol………..

Date:Signature of Registering Officer.

(iii) When a document is presented for registration by a personentitled to present it and execution is admitted by an agentunder a power of attorney, the following endorsement shallbe made on the power, which shall be retained and filed, orreturned, according as it is a special or a general power *No……………. of 19…… Presented in connection withdocument No……………. of 19……….. of Book……….,Vol………..

Date:Signature of Registering Officer.

24. Having seen (i) the distinction between authentication andregistration of a PoA; (ii) the obligation imposed by the Act and theRules, upon the Registering Officer while authenticating and/or registeringa PoA; (iii) the necessity for the Registering Officer to maintain a trackof revocation of deeds of PoA; and (iv) the different requirements ofRule 46, relating to a document presented under a general PoA and adocument presented under a special PoA, let us now turn to the otherprovisions.

25. Section 34 of the Act contains provisions regarding the enquiryto be undertaken by the Registering Officer before registration. Section34, in its application in the State of Tamilnadu, as amended by TamilnaduAmendment 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 registeredunder this Act, unless the persons executing such document (andin the case of document for sale of property, the personsclaiming under that document)[2], or their representatives, assignsor agents authorized as aforesaid, appear before the registeringofficer within the time allowed for presentation under sections 23,24, 25 and 26:

Provided that, if owing to urgent necessity or unavoidable accidentall such persons do not so appear, the Registrar, in cases wherethe delay in appearing does not exceed four months, may directthat on payment of a fine not exceeding ten times the amount ofthe proper registration fee, in addition to the fine, if any, payableunder section 25, the document may be registered.

2 Vide Tamil Nadu Act 28 of 2000, sec.3

BCD

A(2) Appearances under sub-section (1) may be simultaneous orat different times.

(3) The registering officer shall thereupon—

(a) enquire whether or not such document was executedby the persons by whom it purports to have beenBexecuted; (b) satisfy himself as to the identity of the personsappearing before him and alleging that they haveexecuted the document (or they are claiming underthe document)[3]; and C

(c) in the case of any person appearing as arepresentative, assign or agent, satisfy himself of theright of such person so to appear.

(4) Any application for a direction under the proviso to sub-sectionD(1) may be lodged with a Sub-Registrar, who shall forthwithforward 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 uponthe Registering Officer. These obligations are:-E

(i) To enquire whether or not such document was executed bythe person by whom it is claimed to have been executed;

(ii) To satisfy himself as to the identity of the person appearingbefore him and claiming to have executed the document;

(iii) To satisfy himself about the right of any personappearing as a representative, assign or agent, to soappear; F

27. We may note that Sections 32(c), 34(1) and 34(3)(c) use theexpressions ‘agent’, ‘representative’ and ‘assign’. Though in commonGparlance, we understand the power of attorney agent of a person to bethe representative of the principal, the words “agent” and“representative” are used in Sections 32(c) and 34(3)(c) to meandifferent persons. The word “representative” is defined in Section 2(10)of the Registration Act “to include the guardian of a minor and the H3 Vide Tamil Nadu Act 28 of 2000, sec.3

committee or other legal curator of a lunatic or idiot”. The words“agent” and “assign” are not defined in the Act. Therefore, we mayjustifiably borrow the definition of the expression “agent” from Section182 of the Indian Contract Act, 1872, which defines an “agent” “tomean a person employed to do any act for another or to representanother in dealings with third person”.

28. Keeping the above definitions in mind, if we go back to Section32(c) it could be seen that whenever the agent of, (i) the executant; (ii)the claimant; (iii) a representative; or (iv) an assign, presents a documentfor registration,

(1) he should have been authorised by PoA and

(2) such PoA should have been executed and authenticated in themanner provided in clauses (a), (b) or (c) of sub-section (1) ofSection 33. The requirement of registration depends upon the Stateamendments.

29. What is covered by Section 32 (c) read with Section 33(1) issomething different from what is covered by Section 34(3). While Section32(c) read with Section 33(1) speaks about the entitlement of the personto present a document for registration, Section 34(3) speaks about theenquiry to be conducted and the satisfaction to be arrived at by theRegistering Officer. Section 34(3)(c) imposes an obligation on theRegistering Officer to satisfy himself about the right of a person appearingas a representative, assign or agent. This prescription has to be readwith rule 46 of the Tamilnadu Rules.

30. Before we complete our discussion on the statutory scheme,it is necessary to take note of few more provisions, applicable in theState of Tamilnadu, which are of relevance. By Tamilnadu Act No.29 of2012, Section 17(1) of the Registration Act, 1908 was amended so as toinsert clauses (f), (g), (h) and (i). Clause (h) so inserted, reads as follows:- “Instruments of power of attorney relating to immovable propertyother than those executed outside India”

31. Simultaneously, Section 28 was also amended by the State ofTamilnadu to incorporate a proviso to the effect that a documentmentioned in Section 17(1)(h) may also be presented for registration inthe office of the Sub-Registrar within whose jurisdiction the principalordinarily resides.

A32. By the very same Tamilnadu Amendment Act 29 of 2012, twomore provisions were also inserted in the Registration Act, 1908. Onewas Section 34-B and another was Section 64A. Section 34Breads asfollows:- “34-B. Procedure for Registration of document of PowerBof Attorney relating to immovable property.-Subject to theprovisions of this Act, no document of Power of Attorney relatingto immovable property shall be registered unless passport sizephotographs and finger prints of the principal, the agent and of theidentifying witnesses are affixed to the document and the agenthas also signed such document.”.C

Section 64-Areads as follows:-

“64-A. Procedure where instrument of Power of Attorneypresented in office of Sub-Registrar relates to immovableproperty not situate in sub-district. - Every Sub-Registrar onDregistering an instrument of Power of Attorney including instrumentof revocation or cancellation of such Power of Attorney relatingto immovable property not situate in his own sub-district, shallmake a copy and send the same together with a copy of the mapor plan (if any) mentioned in section 21, to every other Sub-Registrar in whose sub-district the whole or any part of suchEproperty is situate and such Sub-Registrar shall file the same inhis Book No.1:

Provided that where such instrument relates to immovable propertyin several districts, shall forward the same to the Sub-Registrarsconcerned, under intimation to the Registrar of every district inFwhich any part of such property is situate.”

33. At this stage we should record that the dispute on hand relatesto a document executed and registered much before the TamilnaduAmendment Act 29 of 2012. But still we have taken note of it, not forthe purpose of applying it to this case, but for the purpose of flaggingGcertain concerns. Now that we have noticed various provisions of theAct, let us see some factual aspects and then deal with the contentionson both sides.

34. In the case on hand, the sale deed dated 05.07.2007 executedby the father S.P. Velayutham, in favour of his son Amar, contained aHspecific recital to the effect that the owners of the property had appointed

S.P. Velayutham, as their Power of Attorney, by a deed dated 23.08.2006to sell the property. But far from authorising the power agent to sell theproperty, clause 7 of the registered deed of PoA dated 23.08.2006, onthe basis of which the sale deed was executed, actually contained anexpress prohibition from creating any encumbrance on the property.Clause 7 of the registered PoA dated 23.08.2006 reads as follows :- “(7) To negotiate with any third party/s claimant/s including broker/s take the Banks and other financial institutions claimant/s if anyin the schedule mentioned properties and to settle such claimsand on, this behalf our attorney is empowered to do all acts, deedsand things. To enter upon the schedule mentioned properties forthe survey of, the same. The power agent herein appointed shallhave no power to encumber the schedule mentioned propertiesfor the survey of the same. The power agent herein appointedshall have no power to encumber the schedule mentionedproperties without the written consent of us.”

35. Apart from the fact that clause 7 extracted above expresslyprohibited the power to encumber, there was also no stipulation authorisingS.P. Velayutham to appear before any Registering Officer for the purposeof sale, as an agent. Though clause 5 authorised the agent to appearbefore the Registrar and to admit execution, the same was specificallyin relation to the execution of gift deeds in favour of municipalities,corporations or other authorities, for the purpose of development of thelayout, formation of the roads etc. Similarly, clause 6 of the deed of PoAalso contained a limited power to appear before the Sub-Registrar, butthe same was also restricted to certain things mentioned in clause 6itself.

36. Interestingly, the contesting respondents relied upon anotherun-registered deed of PoA dated 07.06.2007, which contained a powerto sell. Despite this document being dated 07.06.2007 and despite thedate of execution of the sale deed being 05.07.2007, there was noreference to this PoA in the sale deed. This deed of PoA has surfacedmuch later and the fraudulent nature of this deed of PoA is patentlyvisible, in view of certain recitals contained therein. The relevant recitalscontained in the un-registered PoA dated 07.06.2007 reads as follows:- “…AND WHEREAS, under the said General Power of AttorneyDeed though we have intended to confer power including tosell the Schedule mentioned properties under clauses of the said AB

AGeneral Power of Attorney Deed, by inadvertence and oversight the said clause relating to power to sell the schedulementioned properties was omitted to be included therein; AND WHEREAS, now our Agent Mr. S.P. Velayutham has foundthe said mistake and requested for execution of additional andBsupplemental General Power of Attorney Deed ‘empowering himto sell the schedule mentioned properties’ and to receive the saleconsideration therefor. In continuation of the earlier General Powerof Attorney Deed dated 23.08.2006 referred to above;:

AND WHEREAS, we as the Principals under the General PowerCof Attorney Deed dated 23.08.2006 are satisfied with, the mistakepointed out by our Agent and ‘accordingly we also agreed’ toexecute this General Power of Attorney Deed and as such weare appointing Mr. S.P. Velayutham, son of Sabapathy, Hindu;aged about 50 years, residing at No. 5, Sabarj, Street, Madlpakkam,Chennai-600091 as out General Power of Attorney to do theDfollowing acts; deeds and things relating to the properties detailedin the Schedule hereunder…”

The above recitals contain a totally false statement to the effect,(i) that a power of sale was intended to be conferred under the originalPoA, but it was omitted due to inadvertence and oversight; and (ii) thatEafter the mistake was pointed out, the Principals decided to execute theadditional document. These recitals are manifestly false and are contraryto clause 7 of the registered PoA dated 23.08.2006. In any case, thisPoA dated 07.06.2007 was not what was produced or relied upon at thetime of registration of the sale deed dated 05.07.2007.F

37. Therefore, if the Registering Officer had verified the recitalscontained in the registered deed of PoA dated 23.08.2006, to see if thepower agent had the power to do what he did, he would have refusedthe registration of the document. Rule 46 of the Tamilnadu RegistrationRules ordains what the Registering Officer is obliged to do, (i) when aGdocument is presented for registration under a special PoA; and (ii)when a document is presented for registration under a general PoA. Itwas the failure on the part of the Registering Officer to do what he isrequired to do, that convinced the learned Single Judge to invoke thewrit jurisdiction. But the Division Bench overturned the decision of thelearned Judge on the ground that the writ court ought to have relegatedHthe parties to the civil court.

38. Two main contentions are raised on behalf of the contestingrespondents, namely (i) the restraint that is expected of the High Court,in a writ petition arising under Article 226, in respect of matters whichrequire detailed factual investigation; and (ii) the limited scope of theenquiry that could be conducted by the Registering Authority underSections 32 to 34 of the Registration Act, 1908.

39. In support of the 1[st] contention, the learned senior counselappearing for the respondents relied upon the following decisions,(i)Thansingh Nathmal vs. Superintendent of Taxes[4], (ii) SarvepalliRamaiah vs. District Collector[5]; (iii) Latif Estate Line India Ltd. vs.Hadeeja Ammal[6].

40. Out of the aforesaid decisions, the decision in Thansingh(supra) arose out of the orders of assessment passed under the AssamSales Tax Act, 1947. The order passed by the original authority waschallenged before the appellate authority and then the revisional authorityand thereafter in a writ petition under Article 226. It was in suchcircumstances that this Court held that the High Court had no power todecide questions of fact which are exclusively within the competence ofthe taxing authorities. Similarly, the decision in Sarvepalli Ramaiah(supra), arose out of proceedings for the grant of Ryotwari Patta. Thedispute travelled to the High Court after an elaborate enquiry by theDistrict Collector. It was in that context that this Court examined thescope of the power of judicial review under Article 226.

41. The Full Bench decision of the Madras High Court in LatifEstate Line India Ltd. (supra), arose out of a controversy as to whethera deed of cancellation of sale can or cannot be accepted for registration.The Full Bench explained the circumstances under which a deed ofcancellation, presented by both the vendor and the purchaser, can beaccepted. But the Full Bench categorically held that a deed of unilateralcancellation cannot even be accepted for registration. This propositionactually goes in support of the contention of the appellant that theRegistering Officer has a duty to see whether the document presentedfor registration has been presented in accordance with law or not. Infact the decision of the Full Bench itself arose out of a writ petitionchallenging the act of the Registering Authority in allowing the registrationof the deeds of unilateral cancellation of sale deeds.

6 2011 (2) CTC 1

6 2011 (2) CTC 1

A42. The reliance placed by the respondents on the decision inSatya Pal Anand vs. State of Madhya Pradesh[7], is misplaced. Thedecision in Satya Pal Anand (supra) arose out a case where the allotmentof a plot made by a cooperative society was cancelled unilaterally by adeed of extinguishment, by the society. The allottee raised a disputewhich ended in a compromise but notwithstanding the compromise theBallottee raised a dispute under the relevant provisions of the MadhyaPradesh Cooperative Societies Act, 1960. When the dispute was pending,the allottee moved the Registering Officer for the cancellation of thedeed of transfer executed in favour of the subsequent purchasers. Whenthe Registering Authority refused to comply with the demand, a writCpetition was moved seeking a declaration that the deed of extinguishmentand the subsequent sales were null and void. The High Court dismissedthe writ petition on the ground that a dispute was already pending beforethe competent authority under the Cooperative Societies Act. When theorder of dismissal passed by the High Court was challenged before thisCourt, there was a difference of opinion as to whether the issue wasDdirectly covered by the decision of this Court in Thota Ganga Laxmiand Another vs. Government of Andhra Pradesh and Others[8].Therefore, the matter was placed before a three Judge Bench. Whileupholding the decision of the High Court, the three member Bench heldin Satya Pal Anand (supra) that there was no rule in the State of MadhyaEPradesh similar to Rule 26(k)(i) of the Rules issued by the State ofAndhra Pradesh under Section 69 of the Registration Act, 1908 and thattherefore the decision in Thota Ganga Laxmi (supra) cannot be invoked.

43. The decision in Satya Pal Anand (supra) cannot go to therescue of the contesting respondents, for the simple reason that the writFpetitioner in that case, first accepted a compromise and then raised adispute under the Cooperative Societies Act (which is akin to a civil suit)and thereafter approached the High Court under Article 226 for adeclaration, which he could have sought only in the already institutedproceedings. The very fact that Thota Ganga Laxmi was sought to bedistinguished on the basis of the express provision contained in the RulesGof the State of A.P., would indicate that there is no absolute bar for theHigh Court to exercise jurisdiction under Article 226.

44. Both sides relied upon the decision of this Court in RajniTandon (supra). The question that arose in Rajni Tandon (supra) was 7 (2016) 10 SCC 767H8 (2010) 15 SCC 206

as to whether the PoA required authentication by the RegisteringAuthority, when a sale deed executed by the power agent himself ispresented for registration by the power agent. This question was couchedin a different language by this Court in paragraph 19 of the Report inRajni Tandon (supra) as follows:- “19. In view of the aforesaid situation, the issue that falls for ourconsideration is whether a person who executes a document underthe terms of the power of attorney, is, insofar as the registrationoffice is concerned, the actual executant of the document and isentitled under Section 32(a) to present it for registration and get itregistered.”

45. After analysing Sections 32 and 33 of the Registration Act,1908 this Court came to the conclusion that whenever an agent isauthorised to execute a document and present the same for registrationand he accordingly executes the document in terms of PoA, he becomesthe actual executant in so far as the Registering Authority is concernedand that therefore he becomes entitled under Section 33(a) to present itfor registration. This Court further held that the authentication in termsof Section 33(1)(a) is required only in cases where Section 32(c) isinvoked. Paragraph 33 of the Report in Rajni Tandon is reproduced foreasy appreciation as follows:-

“33. Where a deed is executed by an agent for a principal and thesame agent signs, appears and presents the deed or admitsexecution before the registering officer, that is not a case ofpresentation under Section 32(c) of the Act. As mentioned earlierthe provisions of Section 33 will come into play only in caseswhere presentation is in terms of Section 32(c) of the Act. Inother words, only in cases where the person(s) signing thedocument cannot present the document before the registeringofficer and gives a power of attorney to another to present thedocument that the provisions of Section 33 get attracted. It is onlyin such a case, that the said power of attorney has to be necessarilyexecuted and authenticated in the manner provided under Section33(1)(a) of the Act.”

46. But we are not concerned in this case with the question whetherthe PoA relied upon by the power agent S.P. Velayutham in the saledeed executed by him, required authentication and whether theRegistering Authority committed a blunder in accepting the sale deed A

Apresented by him for registration, without verifying the authentication ofthe PoA or not. We are concerned in this case with the most fundamentalquestion whether the Registering Authority could have turned a blindeye to the fact that the deed of PoA on the basis of which the sale deedwas executed as well as presented for registration by S.P. Velayuthamcontained an express prohibition for the power agent to create anBencumbrance on the property, especially in the light of the Rules framedunder section 69 of the Act. The decision in Thota Ganga Laxmi, wasin a way approved by a 3-member Bench in Satya Pal Anand, on thebasis of the rules in the State of Andhra Pradesh, showing thereby thatstatutory rules also play a crucial role.Rajni Tandon is not an authorityCfor holding that the registering Authority has no duty even to verify thepresence or absence of a power of sale in the deed of PoA, especially inthe light of the rules.

47. In Amarnath vs. Gian Chand [9], this Court was concernedwith a case arising out of peculiar circumstances. The said case aroseDout of a civil suit for a declaration of title and for permanent injunction.The plaintiff in that case entered into an oral agreement for the sale ofhis property and gave a special PoA in favour of the second defendant.But the agreement fell through and hence the plaintiff took back theoriginal deed of PoA from the second defendant. However, the seconddefendant applied for a copy of the PoA and thereafter sold the propertyEin collusion with the first defendant. Upon coming to know of the same,the original owner filed the suit as aforesaid, contending that the seconddefendant had no valid power and that the Registering Authority oughtto have verified this aspect from the second defendant under Sections32, 33 and 34 of the Registration Act, 1908. After trial, the trial courtFdismissed the suit on the ground that the cancellation of the PoA alsorequired registration and that the mere writing of the word “cancelled”on the original PoA cannot be taken to mean that the power was validlycancelled. The First Appellate Court confirmed the judgment and decreeof the trial court. While reversing the judgments of the trial court and the Appellate Court, the High Court opined that under Section 18A of theGRegistration Act as applicable to the State of Himachal Pradesh, by wayof an amendment under Himachal Pradesh Act 2 of 1969, the PoA oughtto have accompanied the sale deed presented for registration and that ifthe Sub-Registrar had ensured this, he would have found that in view ofthe cancellation of the power, the agent ceased to have any power ofH9 (2022)SCC Online SC-102

sale. This decision of the High Court was reversed by this Court inAmar Nath (supra), after an exhaustive analysis of the provisions ofthe Registration Act, 1908. While doing so, this Court held in paragraph26 as follows:-

“26. For reasons, which we have indicated, Section 32(c)readwith Section 33and Section 34(2)(c)are inter- related andthey would have no application in regard to the documentpresented for registration by a power of attorney holder whois also the executant of the document. In other words, there isreally no need for the production of the original power ofattorney, when the document is presented for registration bythe person standing in the shoes of the second defendant inthis case as he would be covered by the provisions of Section32(a)as he has executed the document though on the strengthof the power of attorney. To make it even further clear, theinquiry contemplated under the Registration Act, cannotextend to question as to whether the person who executed thedocument in his capacity of the power of attorney holder ofthe principal, was indeed having a valid power of attorneyor not to execute the document or not..”

48. Though the passage extracted above, lends credence to thecontention of the learned senior counsel for the contesting respondents,there is some difficulty in accepting the same as a proposition of law ofuniversal application. There are two reasons why we say so. They are:(i) as we have stated elsewhere, the interpretation of the provisions ofthe Registration Act, would depend upon the State amendments and theRules framed in each State under Section 69; and (ii) in Amar Nath, thechallenge to the sale was before the civil court, not merely on the groundthat the Registering Authority failed to perform his duties, but also on theground that the defendant conveyed what he could not have.Unfortunately, the parties in Amar Nath, appear to have gone on a wildgoose chase. Instead of focussing their attack on the agent (who wasthe defendant in the suit), for executing the document without any power,the parties focussed their attack on the registering officer for permittingthe registration of the document. This resulted in their failure. If a civilcourt finds that the sale by a power agent was unauthorised, then thequestion whether the Registering Officer performed his duties properlyor not, would lose its significance. An attack on the authority of the A

Aexecutant of a document, is not to be mixed with the attack on theauthority of the Registering Officer to register the document. Thedistinction between the execution of a document and the registration ofthe document is to be borne in mind while dealing with these questions.

49. Actually, the registration of a document comprises of threeBessential 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 theRegistering Authority the execution of such document; and (iii) theact of registration of the document.

C50. In cases where a suit for title is filed, with or without the reliefof declaration that the registered document is null and void, what getschallenged, is a combination of all the aforesaid three steps in the processof execution and registration. The first of the aforesaid three steps maybe challenged in a suit for declaration that the registered document isnull and void, either on the ground that the executant did not have a validDtitle to pass on or on the ground that what was found in the documentwas not the signature of the executant or on the ground that the signatureof the executant was obtained by fraud, coercion etc. The second stepof presentation of the document and admitting the execution of the same,may also be challenged on the very same grounds hereinabove stated.ESuch objections to the first and second of the aforesaid three steps aresubstantial and they strike at the very root of creation of the document.

A challenge to the very execution of a document, is a challenge toits very DNA and any defect or illegality on the execution, iscongenital in nature. Therefore, such a challenge, by its very nature,has to be made only before the civil court and certainly not before theFwrit court.

51. The third step namely the act of registration, is something thatthe Registering Authority is called upon to do statutorily. While theexecutant of the document and the person claiming under the document(claimant) are the only actors involved in the first two steps, theGRegistering Officer is the actor in the third step. Apart from the thirdstep which is wholly in the domain of the Registering Authority, he mayalso have a role to play in the second step when a document is presentedfor registration and the execution thereof is admitted. The role that isassigned to the Registrar in the second step is that of verification of theHidentity of the person presenting the document for registration.

52. Thus, the first two steps in the process of registration aresubstantial in nature, with the parties to the document playing the role ofthe lead actors and the Registering Authority playing a guest role in thesecond step. The third step is procedural in nature where the RegisteringAuthority is the lead actor.

53. In suits for declaration of title and/or suits for declaration thata registered document is null and void, all the aforesaid three steps whichcomprise the entire process of execution and registration come underchallenge. If a party questions the very execution of a document or theright and title of a person to execute a document and present it forregistration, his remedy will only be to go to the civil court. But where aparty questions only the failure of the Registering Authority to performhis statutory duties in the course of the third step, it cannot be said thatthe jurisdiction of the High Court under Article 226 stands completelyousted. This is for the reason that the writ jurisdiction of the High Courtis to ensure that statutory authorities perform their duties within thebounds of law. It must be noted that when a High Court, in exercise ofits jurisdiction under Article 226 finds that there was utter failure on thepart of the Registering Authority to stick to the mandate of law, theCourt merely cancels the act of registration, but does not declare thevery execution of the document to be null and void. A declaration that adocument is null and void, is exclusively within the domain of the civilcourt, but it does not mean that the High Court cannot examine thequestion whether or not the Registering Authority performed his statutoryduties in the manner prescribed by law. It is well settled that if somethingis required by law to be done in a particular manner, it shall be done onlyin that manner and not otherwise. Examining whether the RegisteringAuthority did something in the manner required by law or otherwise, iscertainly within the jurisdiction of the High Court under Article 226.However, it is needless to say that the High Courts may refuse to exercisejurisdiction in cases where the violations of procedure on the part of theRegistering Authority are not gross or the violations do not shock theconscience of the Court. Lack of jurisdiction is completely different froma refusal to exercise jurisdiction.

54. In the case on hand, the appellant has not sought a declarationfrom the High Court that the execution of the document in question wasnull and void or that there was no title for the executant to transfer theproperty. The appellant assailed before the High Court, only the act of A

Aomission on the part of the Registering Authority to check up whetherthe person who claimed to be the power agent, had the power ofconveyance and the power of presenting the document for registration,especially in the light to the statutory rules. Therefore, the learned SingleJudge rightly applied the law and allowed the writ petition filed by theappellant, but the Division Bench got carried away by the sound andBfury created by the contesting respondents on the basis of (i) pendencyof the civil suits; (ii) findings recorded by the Special Court for CBIcases; and (iii) the order passed by this Court in the SLP arising out ofproceedings under Section 145 Cr.P.C.

55. Arguments were advanced on the question whether theCRegistering Authority is carrying out an administrative act or a quasi-judicial act in the performance of his statutory duties. But we think it isnot relevant for determining the availability of writ jurisdiction. If theRegistering Authority is found to be exercising a quasi-judicial power,the exercise of such a power will still be amenable to judicial review Dunder Article 226, subject to the exhaustion of the remedies statutorilyavailable. On the contrary if the Registering Authority is found to beperforming only an administrative act, even then the High Court isempowered to see whether he performed the duties statutorily ordainedupon him in the manner prescribed by law.

E56. Much ado was sought to be made by contending that theappellant approached the High Court without disclosing the previousorders of the High Court and this Court, relegating them to civil court forthe adjudication of their claim. Reliance was also placed in this regardon the decision of this Court in Raj Kumar Soni vs. State of U.P.[10].

F57. But we do not agree. The previous orders directing the appellantto go to the civil court arose out of the proceedings under Section 145 ofthe Cr.P.C. But it does not mean that the recourse to civil court wasseen as the only panacea for all ills.

58. Therefore, in the light of (i) the Tamilnadu Registration RulesGdiscussed above; (ii) the statutory scheme of Sections 32 to 35 of theAct 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 theprocess of execution of a document and the third step concerningregistration, we are of the considered view that the Division bench of the High Court was not right in setting aside the order of the learnedsingle Judge. If the Registering Officer under the Act is construed asperforming only a mechanical role without any independent mind of hisown, then even Government properties may be sold and the documentsregistered by unscrupulous persons driving the parties to go to civil court.Such an interpretation may not advance the cause of justice.

59. Therefore, in fine, the appeals are allowed, the impugned orderof the Division Bench is set aside and the order of the learned singleJudge is restored. There will be no order as to costs.

Ankit Gyan(Assisted by : Rahul Rathi, LCRA)

Appeals allowed.