Non-production of original power of attorney and its effect on validity of sale: Supreme Court passes split verdict

The Supreme Court last week delivered a split verdict in a case involving the question of whether non-production of a deed of power of attorney on the strength of which a sale deed is executed, is fatal to a suit [Manik Majumder and Others v. Dipak Kumar Saha (Dead) through Lrs. & Others]..While Justice MR Shah found that execution of the sale deed was not established since the respondent did not produce the power of attorney on record, Justice BV Nagarathna, on the other hand, was of the view that non-production of the deed of power of attorney was not fatal to the case of the respondent.The disagreement between the judges in this case was not on a point of law, but largely on the factual circumstances and appreciation of evidence..The judgment was delivered on January 13 in an appeal assailing a decision of the Tripura High Court which had ruled in favour of the present respondents and had set aside the decisions of the trial court and the first appellate court..The original owner of the suit property was was alleged to have taken a loan of ₹10,000 from his tenant (present respondent). Thereafter, he went to East Pakistan wherein he had executed a power of attorney in favour of the present respondent to enable repayment of the alleged loan amount by sale of the suit property.Thereafter, the respondent executed in his favour the sale deed dated September 3, 1968 as power of attorney. By virtue of the said power of attorney, he transferred the suit property to his wife through a sale deed dated September 29, 1968.The respondent then constructed a godown at the rear end of his grocery shop in the suit property. It was stated that the current appellants tried to forcefully dispossess the respondent by breaking down the said godown. However, it was the case of the appellants that they were in possession of the suit land for more than thirty years and were running a business from the said property.In his verdict, Justice Shah noted that when the present respondents claimed title on the basis of the power of attorney executed by the original owner (in modern day Bangladesh), the conditions provided under Section 33(1)(c) of the Registration Act 1908 are required to be strictly complied with. The judge also took note of the fact that if the power of attorney was executed outside India, then as per Section 33(1)(c) of the 1908 Act, a power of attorney executed before and authenticated by a notary or any court, Indian consul, vice-consul, or representative of the Central government shall be valid. However, the judge was of the view that the requirements of Section 33(1)(c) of the 1908 Act has not been satisfied at all.Justice Shah also noted that only in a case where the execution of the power of attorney is as per Section 32 read with Section 33(1)(c) of the 1908 Act, can there be a statutory presumption in favour of the present respondents under Section 60 of the 1908 Act.Therefore, Justice Shah was of the view that the High Court has committed a grave error in drawing the statutory presumption in favour of the present respondents since there were already concurrent findings recorded by both the courts below on non-compliance of the conditions mentioned in Section 33(1)(c) of the 1908 Act.Therefore, Justice Shah has set aside the order of the High Court and has restored the decisions of the trial court and the first appellate court..In her verdict, Justice Nagarathna noted that Section 17 of the 1908 Act provides an exhaustive list of documents of which registration is compulsory, while Section 18 deals with documents of which registration is optional. The judge took note that the power of attorney is not a compulsorily registrable document when it is duly notarized and it carries the presumption of being valid in view of Section 85 of the Evidence Act 1872.Justice Nagarathna then made it clear that what was sought to be proved in the present case was title by the sale deed and not the power of attorney, as it is the sale deed which conveys title and the sale deed has been executed in accordance with the provisions of the 1908 Act, and proved in accordance with Section 67 of Evidence Act 1872. Therefore, the judge was of the view that even in the absence of the production of the power of attorney, the contents of the sale deed and the execution of the power of attorney as well as the sale deed have been established by proving the sale deed in accordance with the law.Taking a divergent view from Justice Shah, Justice Nagarathna was of the opinion that the conditions of Section 33(1)(c) of the 1908 Act have been complied with inasmuch as the power of attorney was executed before a magistrate in erstwhile East Pakistan. Moreover, the judge was also of the view that the requirements under Section 32 of the 1908 Act have also been met since the present respondent had the authority to present a document for registration in his capacity as the attorney the original owner.Placing reliance on the decision in Amar Nath v. Gian Chand and Another (2022), Justice Nagarathna said,"In short, the law laid down in Amar Nath (supra) supports the position that production of the original power of attorney is not an indispensable requirement to establish the validly of execution of a sale deed. It would therefore follow that production of a power of attorney is not a necessary requirement to prove a sale deed before a court of law executed through a power of attorney."While dismissing the appeal, she observed:"In short, it has been authoritatively laid down by this Court that a registered document carries with it, by virtue of it being registered, the presumption as to the authority of the person executing it. In the present case, the Trial Court and the First Appellate Court failed to treat the endorsement made by the District Sub-Registrar on the body of the sale deed, as evidence in respect of the authority of Plaintiff No. 2 to execute the sale deed.".Due to a split decision, the matter will now be placed before the Chief Justice of India for assigning of a larger bench.Senior Advocate Rana Mukherjee appeared for the appellants.Advocate Hrishikesh Baruah appeared for the respondents..[Read Judgment]