MANIK MAJUMDER AND OTHERS versus DIPAK KUMAR SAHA (DEAD) THROUGH LRS. & OTHERS

Citation: [2023] 4 S.C.R. 140 · Decided: 13-01-2023 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Matter referred to larger bench

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 4 S.C.R.
[2023] 4 S.C.R. 140
140
MANIK MAJUMDER AND OTHERS
v.
DIPAK KUMAR SAHA (DEAD) THROUGH LRS. & OTHERS
(Civil Appeal No. 2965 of 2022)
JANUARY 13, 2023
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Registration Act, 1908 – ss. 32, 33 and 60 – Execution of
sale deed on the strength of a deed of Power of Attorney – Non-
production of the deed of power of attorney – Effect of, to the case
of plaintiff in the suit – Power of attorney (PoA) executed outside
India – Presumption as to correctness of the PoA – On facts, PoA
allegedly executed in East Pakistan by the original owner in favour
of respondent No. 2 – Respondent No. 2 thereafter executed two
sale deeds transferring the suit property firstly in his own favour
and then in favour of his wife – Respondents then filed suit for
declaration of title over the subject land and recovery of khas
possession from the appellants – Respondent no. 2 claimed his
ownership on the basis of sale deed executed by the respondent no.
1 in his own favour on the basis of PoA executed by the original
owner, however, the same PoA not produced before the trial court –
Appellant’s case that they are the owner of the part of the suit
property and have been in possession for more than 40 years –
Trial court dismissed the suit since no right, title or interest was
established in favour of respondent No.2 for want of PoA for proper
execution of the sale deed in his favour; and that the provisions of
s. 33(1)(c) not complied with – First appellate court upheld the
same – However, the High Court allowed the Second Appeal by
drawing presumption u/s. 60 in respect of PoA by virtue of
endorsement – High Court directed the appellants to handover the
vacant possession of the suit land to the respondent – On appeal,
held: In view of the difference of opinion, the matter referred to the
larger bench – Reference to larger Bench – Power of attorney.
Referring the matter to larger Bench, the Court
Per M.R. SHAH, J.
HELD: 1.1 When the plaintiffs claimed title on the basis of
the aforesaid two sale deeds dated 2.9.1968 and 29.09.1968, it
was for the plaintiffs to prove even the execution of the sale deeds.
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The defendants were not required to challenge the sale deeds in
the suit filed by the plaintiffs, who prayed for a decree for a
declaration of title in their favour. When plaintiff No.2 claimed
title on the basis of the PoA executed by the original owner and
thereafter executed the sale deed in favour of plaintiff No.1 as
PoA of the original owner, the conditions provided under Section
33(1)(c) of the Registration Act are required to be strictly complied
with. [Para 6][158-G-H; 159-A]
1.2 As per Section 32 of the Registration Act, every
document to be registered under the Registration Act shall be
presented at the proper registration office by some person
executing or claiming under the same, or, by the agent of such a
person, representative or assign, duly authorised by PoA
executed and authenticated in the manner mentioned in Section
33(1)(c) of the Registration Act. Section 33 of the Registration
Act provides that for the purposes of Section 32, only those power
of attorneys shall be recognised as are mentioned in Section
33(1). As per Section 33(1)(c) of the Act, if the principal at the
time of execution of the PoA does not reside in India, a PoA
executed before and authenticated by a Notary Public, or any
Court, Judge, Magistrate, Indian Consul or Vice-Consul, or
representative of the Central Government shall be valid. In the
instant case, the requirement of Section 33(1)(c) of the Act has
not been satisfied at all. Section 32 of the Act is to be read along
with Section 33(1)(c) of the Registration Act. Only in a case where
the execution of the PoA is as per Section 32 read with Section
33(1)(c) of the Act, there shall be statutory presumption under
Section 60 and/or under the provisions of the Registration Act.
Therefore, the High Court committed a grave error in drawing
the statutory presumption in favour of the plaintiffs and more
particularly with respect to alleged PoA alleged to have been
executed by the original owner in favour of plaintiff No.2. As such,
there were concurrent findings recorded by both the courts below
on non-compliance and/or non-fulfilling the conditions mentioned
in Section 33(1)(c) of the Registration Act. By drawing the
statutory presumption and without properly appreciating and/or
considering the fact that t

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