Disposed

K.J. Mathukutty v. Government of Kerala

Kerala HC1 Mar 2017WP(C)/29973/2013

Case brief

AI extract

What is this about?

The petitioner challenged the validity of the Registration (Kerala) Amendment Act, 2012 affecting powers of attorney for immovable property. The court held that issuing on constitutional validity was premature as no denial of registration was proven. It reserved liberty for the petitioner to present documents, directing the authority to decide within one month based on relevant Registration Act se

What did the court decide?

Liberty reserved to the petitioner to present documents for registration; the third respondent directed to consider the same within one month and record reasons for refusal.

K.J. Mathukutty Vs Government of Kerala — Constitutional and Fundamental Rights | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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WEDNESDAY, THE 1ST DAY OF MARCH 2017/10TH PHALGUNA, 1938

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WP(C).No. 29973 of 2013 (V)

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PETITIONER(S):

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K.J. MATHUKUTTY, S/O.JOSEPH GEORGE, AGED 49 YEARS, KADONE HOUSE, VELLAYIL P.O., THEODICAL, THIRUVALLA-13.

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BY ADV. SRI.V.N.RAMESAN NAMBISAN

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RESPONDENT(S):

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1. GOVERNMENT OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF REGISTRATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.

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2. THE DISTRICT REGISTRAR (GENERAL) AND DISTRICT REGISTRAR (AUDIT), 1ST FLOOR, TRANSPORT BHAVAN BUILDING, EAST FORT, THIRUVANANTHAPURAM, PIN-695001.

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3. THE SUB REGISTRAR,

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DEPARTMENT OF REGISTRATION, TRANSPORT BHAVAN BUILDING, EAST FORT, THIRUVANANTHAPURAM, PIN-695001.

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BY STATE ATTORNEY SRI. K.V.SOHAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SKG

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WP(C).No. 29973 of 2013 (V)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1: COPY OF THE IRREVOCABLE POWER OF ATTORNEY DATED 18.9.2013 EXECUTED AT SHARJA BY LEEN BASTIAN JASMAS IN FAVOUR OF THE PETITIONER.

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P2: COPY OF THE AGREEMENT FOR SALE EXECUTED BETWEEN THE PARTIES ON 30.11.2013.

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P3: COPY OF THE REGISTRATION (KERALA AMENDMENT) ACT, 2012 (ACT 31 OF 2013)

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RESPONDENT(S)' EXHIBITS

NIL

/TRUE COPY/

P.S. TO JUDGE

SKG

DEVAN RAMACHANDRAN, J.

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============================== W.P.(C)No.29973 of 2013

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============================== Dated this, the 01^st day of March, 2017.

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J U D G M E N T

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The petitioner, though has mounted a challenge against the Registration (Kerala) Amendment Act, 2012 by which a new sub section has been inserted in Section 17 of the Registration Act, 1908, in reality only requires that a document presented by him on the strength of a power of attorney be accepted by the Registrar for registration.

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The petitioner says that on account of the amendment brought to the Registration Act, 1908 by the by the Registration (Kerala) Amendment Act 2012, every power of attorney creating any power or right of management, administration, development, transfer or any other transaction relating to immovable property, except those which are executed in favour of the father, mother, wife, husband, son etc., will require to be compulsorily registered. He says this is an affront on his

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W.P.(C)No.29973 of 2013 : 2 :

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rights to deal with property under Article 300A of the Constitution of India. He has, therefore, filed this writ petition seeking several reliefs.

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Heard the learned counsel for the petitioner Shri.V.N.Ramesan Nambisan and the learned Government Pleader appearing for the respondents.

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I am not proposing to go into an analysis regarding the contentions of the petitioner or to conclude upon the validity or otherwise of the same, because, I think it is now premature. I say this because, I notice that thought the petitioner says that he has presented a document before the Registering authority, nothing has been placed on record to show that the document that was presented had been denied registration by such authority. This writ petition seems to have been build upon apprehension more than reality.

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The petitioner alleges that he has presented a document for registration on 30.11.2013 before the third respondent Sub Registrar, on the strength of a power of attorney that is executed in his favour by a certain

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W.P.(C)No.29973 of 2013 : 3 :

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Shri.Leen B.Jasmas who is presently residing in Dubai.

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He has produced his power of attorney as Ext.P1 in this writ petition. As is clear from the document, the same has been presented by the aforesaid Shri. Leen B.Jasmas before the Consulate General of India in Dubai and it has been authenticated by the said authority, presumably under the terms of Section 85 of the Indian Evidence Act. The petitioner, therefore, says that Ext.P1 power of attorney will have to be presumed as to be an authentic one, under the mandate of Section 85 of the Indian Evidence Act and that a document that is presented by him on the strength of this power of attorney will have to be accepted by the concerned Sub Registrar under the imperative sanction of Sections 32A and 33(1)(c) of the Indian Registration Act, notwithstanding the the amendments brought in through Ext.P3.

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I am sure these are issues that will have to be considered by the competent authority if the petitioner presents the document for registration before it. However, for this purpose, I do not think that it will be

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W.P.(C)No.29973 of 2013 : 4 :

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required or relevant for this Court to consider the constitutional validity of the amendments brought in through Ext.P3, because, I am of the view that they have to be read harmoniously within the confines of the parameters of those sections, which is possible. I say this because, even though the amendments that is sought to be brought in through Ext.P3, makes certain classes of attorney registerable, Sections 32A and 33(1)(c) gives legal sanction to a power of attorney which is executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, [Indian] Consul or Vise-Consul, or representative of the Central Government. If that be so, obviously, Ext.P1 which appears to be authenticated by the Consulate General of India, Dubai would also obtain the benefit of the provisions of Sections 32A and 33(1)(c). I do not want to make any further comments on this, since I think these issues can also be considered by the authority before whom the document may be presented by the petitioner.

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In such circumstances and for the reasons

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W.P.(C)No.29973 of 2013 : 5 :

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above, I do not deem it necessary to issue any further orders in this writ petition apart from reserving liberty to the petitioner to present any document, that he may require to be registered, before the third respondent on the strength of Ext.P1 power of attorney and it will be left to such Authority to consider whether the said document can be accepted for registration or otherwise adverting to Sections 32A, 33(1)(c) of the Indian Registration Act as well as the amendments brought in to the said Act through Ext.P3.

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If for any reason, the third respondent is of the opinion that the said document cannot be registered, he will be obligated to record his reasons in an appropriate order so that the petitioner would be entitled to have recourse to such action as is legally available to him. Since this writ petition has been pending before this Court for the last more than 4 years, I deem it appropriate that the third respondent consider the registration of any document, that the petitioner may present before him, within a period of one month from the date on which it is

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W.P.(C)No.29973 of 2013 : 6 :

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so presented.

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The writ petition is ordered as above. I make no

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order as to costs. Parties are directed to suffer their

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respective costs.

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Sd/- DEVAN RAMACHANDRAN, JUDGE.

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Bb/08/03/2017

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[True copy]

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P.A to Judge

K.J. Mathukutty v. Government of Kerala

Case brief

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K.J. Mathukutty v. Government of Kerala

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