IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.8704 of 2001 (O&M) Date of decision:10.08.2011 Smt. Sham Bai widow of Damodar Lal Dahiya son of Mani Devi, and others. ...Petitioners versus The Registrar, Rohtak, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Arun Jain, Senior Advocate, with Mr. Vishal Goel, Advocate, for the petitioners. Mr.O.P. Sharma, Additional Advocate General, Haryana Mr. Surinder Gandhi, Advocate, for the applicant in CM No.13930 of 2009. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) CM No.13930 of 2009 1. The applicant seeks for permission for withdrawal of the application. 2. As sought for, the application is dismissed as withdrawn. Civil Writ Petition No.8704 of 2001 3. The orders impugned in the writ petition are the first order passed by the Sub-Registrar declining registration which was affirmed by the Registrar by a later order. 4. The Sub-Registrar had 4 reasons to decline registration. The Civil Writ Petition No.8704 of 2001 (O&M) - 2 - reasons 1 and 2 were that principals named in the sale deed were female heirs of the original owner Kanhiya Lal and they could not have had title to the property of Kanhiya Lal before the coming into force of Hindu Succession Act. The 3rd reason was that the document that was executed and presented for registration was a power of attorney for the principals and there was yet another power of attorney by name Rajinder, who claimed to be a power of attorney of some other third parties and not the vendors mentioned in the sale deed, but in relation to the same property. The Sub-Registrar thought that the power of attorney must be bogus, since there were two deeds of power of attorney brought before him in relation to the same property. The 4th reason given by him was that the power of attorney was not identified by the Lambardar. 5. In my view, all the 4 reasons given are untenable. The Registrar has no power to refuse registration except for reasons which are brought out and recorded in the register in the manner known to law. That refusal could arise in a case where the executant does not admit execution or where a power of attorney presents the document, the Registering Officer records the satisfaction that the power of attorney had no authority to represent as such power of attorney. The Sub- Registrar has no jurisdiction to dwell on question of title, nor could he join issue on whether two documents of power of attorney could exist in relation to the same property at the instance of two different persons to excite doubt regarding the genuineness of anyone deed of power of attorney. If the same principals had constituted two sets of power of attorney with similar powers, there could be a cause for a doubt. On the Civil Writ Petition No.8704 of 2001 (O&M) - 3 - other hand, if two independent persons claim different sources of title, there cannot be a ground to doubt their respective power of attorney. The point for a Registering Officer could only be where the deed of power of attorney is true or the identity of the person but not whether such a power of attorney could validly transfer title because the vendor did not have title. If there are rival claims to title, that will not be in the realm of jurisdiction for Sub-Registrar to decide. The other ground mentioned as ground No.4 that the Lambardar had not identified the power of attorney, is irrelevant. It is not very clear what the Registering Officer meant; whether the Sub-Registrar expected the executant to be identified by a Lambardar or a power of attorney should always be identified by a Lambardar. The issue of identification of the executant arises under the Registration Act by someone stating that he is identifying the executant and the Registering Office shall take his signature as an identifying witness. There is no legal requirement that the person that identifies the executant must only be a Lambardar. On the other hand, if the order of the Sub-Registrar must be understood that a power of attorney must have an identification through the Lambardar, even that is not supported by law, for, Section 85 of the Evidence Act makes a presumption about the power of attorney that includes a document executed and authenticated by a Notary Public, Court, Judge, Magistrate, Counsellor or Vice Counsellor or representative of the Central Government. Apart from where the presumption lies under Section 85, a power of attorney which is executed and registered in the manner which is provided under Section 33 where the principal at the Civil Writ Petition No.8704 of 2001 (O&M) - 4 - time of executing the power of attorney resides in any part of India and the power of attorney is executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides. 6. The Registrar, who passed the order on 19.03.2001, has correctly observed that the Sub-Registrar ought to have registered the document but since the Sub-Registrar held that the document was bogus, he directed the Sub-Registrar to consider whether the power of attorney was competent to submit the document or not in terms of Section 34(3). Section 34(3) would require the Sub-Registrar to enquire: (i) whether or not the document was executed by the persons by whom it purports to have been executed. This would mean, if the document is executed by a power of attorney describing himself as such power of attorney for three named principals, the enquiry shall only be whether he was the named power of attorney and whether he admitted the document; (ii) The 2nd requirement under Section 34(3) is that the Sub-Registrar shall satisfy himself of the identity of the person appearing before him. This identification could be brought by yet another person declaring his acquaintance and the Registrar shall take him to be an identifying witness and secure the signatures of that person as well. (iii) After securing the signatures of the executant as a person, who was admitting the document, the 3rd requirement under Section 34(3) is that in a case where a person was appearing as a representative, assign or agent, the Registering Officer should satisfy himself of the right of such person to appear. The right to appear as contemplated under Section 34(3)(c) shall Civil Writ Petition No.8704 of 2001 (O&M) - 5 - mean that there is a valid document of agency on which he could act on. The validity of the document that would show the status as a person as an agent and would be to satisfy that the document is duly authenticated which could be inferred in the manner which I have outlined above. The Registering Officer shall not allow himself to be distracted by objections relating to the title to the property as claimed by the vendors or entertain any objection from a third party that he has tile to the property and, therefore, the registration shall not take place. Even while affirming the order of the Registrar, which is impugned, I have added these clarifications so that the attempt which was impugned by the respondents before me in this Court is not carried out again before the Sub-Registrar. The order of the Sub-Registrar is set aside and the order of Registrar is clarified as above. 7. The writ petition is disposed of with the directions to the Registering Officer the rules to be followed at the time of registration. (K. KANNAN) JUDGE 10.08.2011 sanjeev