IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 OP(C).No. 3804 of 2011(O) ------------------------------------- IA 2276/11 IN OP(LA)...../2011 of DISTRICT COURT,TRIVANDRUM .................... PETITIONER (S): PETITIONER -------------------------------------------- BINU S.R, S/O.SOMAN PILLAI, B.S.N.R.A E4-A, SHAJI LANE, BHAGAT SINGH NAGAR MUKKOLA PO, THIRUVANANTHAPURAM. BY ADV. SRI.LATHEESH SEBASTIAN SRI.M.FATHAHUDEEN RESPONDENT(S): --------------------------- NIL THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OP(C) NO.3804/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE POWER OF ATTORNEY P2:- COPY OF THE UNNUMBERED OP(LA) NO.2011 OF DISTRICT COURT, THIRUVANANTHAPURAM. P3:- COPY OF THE ORDER DT. 8.11.11 OF THE DISTRICT COURT, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3804 of 2011 --------------------------------------- Dated this 24th day of November, 2011 JUDGMENT Notice is given to the learned Government Pleader. 2. This original petition is in challenge of the order dated 08.11.2011 on I.A.No.2276 of 2011 in an unnumbered O.P(L.A). No. ---- of 2011 of the Court of learned District Judge, Thiruvananthapuram directing that the original of the unstamped power of attorney - Ext.P1, be forwarded to the District Collector for action under Sec.39 of the Kerala Stamp Act (for short, "the Act”). 3. Unnumbered original petition is for grant of letters of administration. Petitioner is the power of attorney holder. He filed I.A.No.2276 of 2011 to receive the unstamped power of attorney - Ext.P1 executed beyond the territorial limits of the country. Since the power of attorney was unstamped, learned District Judge took the view that the original of the document has to be sent to the District Collector for action under Sec.39 of the Act. That order is under challenge. It is contended by learned counsel that when the unstamped power of attorney was produced along with I.A.No.2276 of 2011 it is to be impound as a O.P(C).No.3804 of 2011 -: 2 :- document tendered in evidence and hence it was within the power of the Court to deal with the same under Sec.34 of the Act. Learned counsel also invited my attention to the meaning of 'document' in Sec.3 of the Evidence Act. 4. There could be no doubt that Ext.P1 is a document as defined in Sec.3 of the Evidence Act in that, the document is intended to evidence authority of petitioner to present and prosecute the petition for grant of letters of administration. But the mere filing of I.A.No.2276 of 2011 to receive the power of attorney on file does not mean that the said document was tendered in evidence as understood in Sec.34 of the Act. This Court in Mohanan v. M.A.C.T., Moovattupuzha (2005 (4) KLT 273) has distinguished the power under Secs.34 and 39 of the Act and held that power of the Court to impound the document which is either not stamped or insufficiently stamped arise only when a document is tendered in evidence. In this case, there is only a request to receive the document along with the unnumbered O.P(L.A).No.---- of 2011. In that view of the matter learned District Judge is right in directing that the original of the document be forwarded to the District Collector for appropriate action under Sec.39 of the Act. O.P(C).No.3804 of 2011 -: 3 :- 5. Learned counsel submitted that under Sec.18 of the Act, the instrument chargeable with duty and executed out of India has to be stamped within three months after it has been first received in the State of Kerala and hence the District Collector may raise an objection that the document is not liable to be stamped as the said period of three months has expired. But, that provision does not control the power of Court to send the document to the District Collector under Sec.39 of the Act. Sec.39 deals with the power of the District Collector to stamp the instrument when any such instrument is sent to him under sub sec.(2) of Sec.37 of the Act. 6. It is by virtue of the power under Sec.37 of the Act that learned District Judge has directed that the original of the document be sent to the District Collector for appropriate action. Hence there is no basis for the apprehension of petitioner. 7. Learned counsel requested that it may take time for the District Collector to pass orders on stamping of the document and hence learned District Judge may be directed to number the original petition without waiting for the decision of the District Collector. Learned counsel submitted that at the time of presentation of proceeding it is not necessary that a written O.P(C).No.3804 of 2011 -: 4 :- authority must be produced by the power of attorney. Learned counsel has placed reliance on the decisions of this court in Narayanan Nair Vs. John Kurian (1988(1) KLT 673) and Rajan Vs. Padmavathy and Anr. (2011(4) KLJ 193). 8. Regarding the last part of the argument, I make it clear that notwithstanding the direction contained in the impugned order to await report from the District Collector, it is open to the petitioner to request the learned District Judge to number the original petition as petitioner contends. If any such request is made learned District Judge shall consider the same and pass appropriate orders as provided under law notwithstanding the observations contained in the impugned order. The District Collector is directed to expedite his proceedings on the original of the document forwarded to him by the learned District Judge. This original petition is disposed of as above. (THOMAS P. JOSEPH, JUDGE) Sbna/-