REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 4671 OF 2004                                         

Rajni Tandon       ..…Appellant

Versus

Dulal Ranjan Ghosh Dastidar & Anr.               ....Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.   

1. The present  Civil  Appeal  raises  questions  relating  to  interpretation  of  

Section 32 and 33 of the Registration Act, 1908 (hereinafter referred to as  

“the Act”).

2. The dispute pertains to a Flat situated on the ground floor of a building  

commonly  known  as  “Nilachal”  at  Tollygunge,  Calcutta  (hereinafter  

referred to as the said premises). The appellant by virtue of a Registered  

Deed of Conveyance dated 28.02.1990 purchased the said premises from  

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one Sri Nandlal Tantia (also referred to as Shri N. L. Tantia), Karta of  

M/s  R.  L.  Tantia  & Sons (HUF).  The said Deed of  Conveyance  was  

executed  by  the  constituted  attorney  of  Shri  N.  L.  Tantia,  Shri  Indra  

Kumar Halani, on the basis of a Power of Attorney). It is pertinent of  

mention  herein  that  the said premises  was  purchased by Shri  Nandlal  

Tantia in his capacity as a Karta of M/s R. L. Tantia and sons (HUF) in  

August 1978. Mrs. Ava Rani Ghosh Dastidar (Predecessor in interest of  

Respondent No. 1 herein) was allowed to stay free of charge in the said  

premises from October, 1978 as a personal gesture of Shri Nandlal Tantia  

as a licensee only. Sri N. L. Tantia, Karta of M/s R. L. Tantia & Sons  

intimated  the  Society  about  their  ownership  in  the  said  premises  and  

asked them to send all future correspondence and maintenance bills in  

their name. They also informed the society that Mrs. Abha Rani Ghosh  

Dastidar was temporarily staying in the said premises as a licensee.

3. It is the case of the Appellant that all records / documents, conveyance  

deed,  corporation  records,  maintenance  bills  of  the  “Nilachal  Housing  

Society”  in  which  the  said  premises  was  located,  resolution  of  the  

“Nilachal Housing Society” under the West Bengal Apartment Owners  

Act giving the detailed  list  of flat  owners,  show N. L.  Tantia  /  R.  L.  

Tantia and Sons as the owner of the said premises.

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4. Mrs. Ava Rani Ghosh Dastidar served a notice in the year 1982 on the  

Society as to why maintenance bills etc. were not made out in her name.  

Mrs. Ava Rani Ghosh Dastidar thereafter filed Civil Suit No. 322 of 1982  

against the Society asking them to include her name as the owner and  

send all correspondence, maintenance bills etc to her.  The President and  

Secretary of the Housing Society filed a reply in this Suit  stating that  

Mrs. Ava Rani Ghosh, Dastidar could not be recognized as a owner in  

absence  of  any  document  to  prove  her  ownership.  She  was  asked  to  

submit better documents proving her ownership.

5. M/s.  R. L. Tantia & Sons (HUF) served a notice dated 20.04.1983 to  

Mrs. Ava Rani Ghosh Dastidar revoking the licence granted and asking  

for vacant possession of the flat. When Smt. Ava Rani Ghosh Dastidar  

refused to vacate the flat, Mr. Nandalal Tantia filed Suit No. 174 of 1983  

for eviction against her.  

6. The Appellant herein after coming to know that a Suit for Eviction filed  

by  his  Predecessor  in  interest  was  pending  moved  an  Application  for  

impleadment as a party. This application for impleadment filed by the  

Appellant  was  rejected.  The  Title  Suit  No.  174  of  1983  filed  by  the  

erstwhile  owner  Mr.  Nandlal  Tantia  was  dismissed  on 29.01.1991 for  

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default due to the fact that Sri. N. L. Tantia having sold the property to  

the Appellant was not interested in pursuing the matter.

7. The Appellant after being refused to be made a party in Suit for Eviction  

filed a fresh Suit in May 1990 for Eviction, Possession and Damages for  

unauthorized occupation of the property against  the Respondents.  This  

Suit was numbered as Title Suit No. 24 of 1991.

8. Respondent No. 2 alone contested the Suit. The said defendant contended  

that Nandlal Tantia was not the owner of the Suit property and he had no  

right title and interest therein and as such the Appellant did not acquire  

any right, title and interest in the Suit premises by virtue of her purchase  

of the same by a registered Deed of Conveyance dated 28.02.1990. The  

said  Respondent  further  made  out  a  case  for  acquisition  of  title  by  

adverse  possession  upon  contention  that  the  said  defendant  has  been  

occupying the Suit premises along with his mother since 11.09.1978 as of  

right and adversely against the rightful owner and after the death of his  

mother in the year 1983 he is in possession of the same adversely against  

the interest of any other person. The Respondent No. 2 also urged that  

one Mr. Indra Kumar Halani executed the said Sale Deed on behalf of  

Nandlal Tantia as his constituted Attorney in favour of the appellant and  

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presented  the  same  for  registration.  It  was  therefore  argued  that  

registration of the Sale Deed was hit by provisions of Section 33 (1) (a)  

of the Act as the power of attorney in favour of Indra Kumar Halani was  

not executed before and authenticated by the Registrar or Sub-Registrar  

within whose District or Sub-District said Nandalal Tantia resided.

9. The Trial  Court  recorded  a  finding that  the  Power  of  Attorney  under  

which the Sale/Conveyance Deed was executed was not registered and  

the  same  ought  to  have  been  registered  as  Mr.  Indra  Kumar  Halani  

executed  the  said  Sale  Deed  on  behalf  of  Nandalal  Tantia  as  his  

constituted Attorney and presented the same for registration. Hence, it  

was held to be in violation of provisions of Section 32 and 33 of the Act.  

Consequently, it was also held that the Title in the said premises had not  

passed in favour of the Appellant. The Trial Court accordingly dismissed  

the  Suit  as  the  Appellant/Plaintiff  did  not  acquire  any  right  title  and  

interest by virtue of her purchase by the said deed of conveyance dated  

28.02.1990.

10.In the appeal filed by the Appellant against the said decree of dismissal  

of the suit, the first appellate court held that that the Respondent failed to  

establish his case for acquisition of title in the suit premises by adverse  

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possession.  On  the  question  of  presentation  of  the  said  deed  of  

conveyance for registration by Indra Kumar Halani, the Court of Appeal  

held that the same was properly registered as Indra Kumar Halani being  

the executant of the same had presented the same for registration and as  

such the provision of Section 33 (1) (a) of the Act were not applicable in  

the facts  and circumstances of this case and consequently decreed the  

Suit in favour of the Appellant.

11.It may be mentioned herein that in the second appeal before the High  

Court the Respondent did not assail the finding of the first appellate court  

that they did not acquire right, title and interest in the suit premises by  

way of adverse possession. Such findings therefore became final. During  

the course of hearing, two substantial questions of law were raised in the  

following manner:

“(a) Whether the finding of the Court as regards the validity  of the Sale Deed being Exhibit 1 executed and presented by an  Agent – Indra Kumar Halani on behalf of the principal on the  strength of a power of attorney (Exhibit – 10) is sustainable in  Law,  when  admittedly  Exhibit  10  was  not  registered  nor  an  authenticated document in the manner prescribed in Section 33  of the Registration Act.

(b) Whether  the  findings  of  the  Appellate  Court  as  to  the  validity  of the registration of  the document (Exh.  1)  done in  good faith  and on active  participation  of  the  Registration  by  drawing inference from Section 87 of the Registration Act is  

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liable to be sustained in law when the question at issue is not  the defects  in the procedure of the Registrar,  but the lack of  jurisdiction and more so, when the findings recorded by the trial  Court in this regard were not reversed.”

12.The High Court, after hearing arguments of the counsel appearing for the  

parties, answered the question No. 1 as also question No. 2 in favour of  

the Respondents – Defendants. So far as question No. 1 is concerned, it  

was held that since the power of attorney (Exhibit 10) is, admittedly, not a  

registered  document  and  was  simply  notarized  by  a  Notary,  therefore  

Indra Kumar Halani, was not authorized to execute and present the sale  

deed  (Exhibit  1)  before  the  Sub-Registrar  for  registration.  It  was,  

therefore, held by the High Court that no right and title had passed to the  

Plaintiff on the basis of the aforesaid sale deed. Accordingly, the issue  

No. 1 was decided in favour of the Respondents – Defendants.  So far  

question  No.  2  is  concerned,  upon  a  conjoint  reading  of  Section  32,  

Section 33 (1) (a) and Section 34 of the Act, the High Court took the view  

that  it  was  difficult  to  conclude  that  Indra  Kumar  Halani  became the  

executant by himself on the basis of the power of attorney which was  

neither executed nor authenticated in the manner provided under Section  

33 (1) (a) of the Act so as to enable him to present  the sale deed for  

registration in compliance with the provisions of Section 32 (a) of the  

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Act. The second appeal was accordingly allowed and the suit filed by the  

Appellant  – Plaintiff  was dismissed vide its  judgment and order  dated  

20.08.2003.  

13.Being  aggrieved  by  the  aforesaid  decision,  the  Appellant  –  Plaintiff  

preferred the present appeal.

14. Leave was granted by this Court and the Respondent Nos. 2(a) and 2(b)  

entered appearance.  The preparation of the paper books was dispensed  

with and it was directed that the case be heard on the basis of the SLP  

paper  books.   On  an  application  being  filed  by  the  appellant-plaintiff  

herein, it was ordered that the appeal would be listed during the summer  

vacation, 2009 before this Court.  Consequently, the appeal was listed for  

hearing before us on 19th May 2009.

15.Learned Counsel for the Appellant – Plaintiff argued the case at length  

before  us.  However,  none  appeared  for  the  Respondents  –  Defendant  

when the matter was heard.

16. It  was submitted by the learned counsel appearing for the Appellant  –  

Plaintiff that in this case what is applicable is Section 32 (a) of the Act  

and  the  provisions  of  Section  33  (1)  (c)  of  the  Act  would  have  no  

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application. It was further submitted by him that it is not necessary that a  

power of attorney to execute document, is capable of being recognized  

only when it is mandatorily registered and authenticated under Section 33  

(1) (c) of the Act. It was next submitted that pursuant to the power of  

attorney executed by Nandlal  Tantia  in favour of  Indra  Kumar Halani  

authorizing him (Indra Kumar Halani) to execute the sale deed, he duly  

executed and presented the said sale deed for registration before the Sub –  

Registrar  and  the  said  registration  was  done  by  the  Sub-Registrar.  In  

support of his submission he relied upon decisions rendered by various  

High  Courts,  viz.,  Motilal  v.  Ganga  Bai [AIR  1915  Nagpur  18],  

Gopeswar  Pyne v.  Hem Chandra Bose & Ors. [AIR 1920 Calcutta  

316],  Mt.  Aisha Bibi  v.  Chhajju  Mal  & Ors. [AIR 1924 Allahabad  

148], Sultan Ahmad Khan v. Sirajul Haque and Ors [AIR 1938 ALL  

170], Ram Gopal v. L. Mohan Lal & Ors. [AIR 1960 Punjab 226] and  

Sami Malti Vahuji Maharaj v. Purushottam Lal Poddar [AIR 1984  

Calcutta 297]. These decisions support the stand taken by the Appellant –  

Plaintiff before us.

17. However, our attention was also drawn to decisions in which the courts  

had taken a contrary view. Reference in this regard may be made to the  

decisions,  viz.,  D.  Sardar  Singh  v.  Seth  Pissumal  Harbhagwandas  

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Bankers [AIR  1958  Andhra  Pradesh  107]  and  Abdus  Samad  vs.  

Majitan Bibi & Anr. [AIR 1961 Calcutta 540].

18.In view of the aforesaid situation, the issue that falls for our consideration  

is  whether  a  person who executes  a  document  under  the  terms of  the  

power of attorney, is, in so far as the registration office is concerned, the  

actual executant of the document and is entitled under Section 32 (a) to  

present it for registration and get it registered.  

19.Part  VI  of  the  Act  deals  with  ‘Presentation  of  Documents  for  

Registration’. Sections 32 and 33 of the Act which are in Part VI deal  

with  ‘persons  to  present  documents  for  registration’  and  ‘power-of-

attorney recognisable for purposes of Section 32’ respectively. Section 32  

and 33 of the Act are referred to hereunder:  

“Section 32. Persons to present documents for registration.-

Except in the cases mentioned in Sections 31, 88 and 89, every  document  to  be  registered  under  this  Act,  whether  such  registration be compulsory or optional, shall be presented at the  proper registration-office:  

(a) by some person executing or claiming under the same, or,  in the case of a copy of a decree or order, claiming under  the decree or order, or  

(b) by the representative or assign of such person, or  

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(c) by  the  agent  of  such  person,  representative  or  assign,  duly  authorized  by  power-of-attorney  executed  and  authenticated in manner hereinafter mentioned”.

“Section 33. Power-of-attorney recognisable for purposes of  Section 32:-

(1) For the purposes of Section 32, the following powers-of- attorney shall alone be recognised, namely:-  

(a) if  the  principal  at  the  time of  executing the  power-of-  attorney resides in any part of India in which this Act is  for the time being in force, a power-of-attorney executed  before  and  authenticated  by  the  Registrar  or  Sub- Registrar  within  whose  district  or  sub-district  the  principal resides;  

(b) if the principal at the time aforesaid resides in any part of  India  in  which  this  Act  is  not  in  force,  a  power-of- attorney  executed  before  and  authenticated  by  any  Magistrate;  

(c) if the principal  at the time aforesaid does not reside in  India,  a  power-of-attorney  executed  before  and  authenticated by a Notary Public,  or any Court,  Judge,  Magistrate,  Indian  Consul  or  Vice-Consul,  or  representative of the Central Government:  

Provided that the following persons shall not be required  to  attend  at  any  registration-office  or  Court  for  the  purpose  of  executing  any such power-of-attorney  as  is  mentioned in clauses (a) and (b) of this section, namely:-  

(i) persons  who  by  reason  of  bodily  infirmity  are  unable without risk or serious inconvenience so to  attend;  

(ii) persons  who  are  in  jail  under  civil  or  criminal  process; and  

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(iii) persons exempt by law from personal appearance  in Court.  

(2) In the case of every such person the Registrar or Sub-  Registrar or Magistrate, as the case may be, if satisfied  that the power-of-attorney has been voluntarily executed  by the person purporting to be the principal, may attest  the same without requiring his personal attendance at the  office or Court aforesaid.  

(3) To  obtain  evidence  as  to  the  voluntary  nature  of  the  execution,  the Registrar  or  Sub-Registrar  or  Magistrate  may  either  himself  go  to  the  house  of  the  person  purporting to be the principal, or to the jail in which he is  confined, and examine him, or issue a commission for his  examination.  

(4) Any power-of-attorney mentioned in this section may be  proved by the production of it without further proof when  it purports on the face of it to have been executed before  and  authenticated  by  the  person  or  Court  hereinbefore  mentioned in that behalf.  

20. Section 32 deals with persons who are eligible to present documents  

for Registration before the  proper  registration  office.  Section 32 specifies  

three categories of persons who can present documents for Registration. The  

use of the word “or” between the Clauses of Section 32 demonstrates that the  

legislature  intended  the  said  Clauses  to  be  read  disjunctively  and  not  

conjunctively. It is settled law that the use of the word ‘or’ is used to signify  

the disjunctive nature of a provision. In this regard reference may be made to  

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the  decision  of  this  Court  in  State  of  Orissa  v.  The  State  of  Andhra  

Pradesh reported in (2006) 9 SCC 591.  

21. Clause (a) of Section 32 specifies that a document can be presented for  

registration by   

(i) by the person executing the document  

(ii) any  person  claiming  under  the  document  presented  for  registration and  

(iii) in the case the said document is a copy of a decree or order, any  person claiming under the decree or order.  

22.Clause (b) and (c) deal with cases were the document is presented not by  

any  person  mentioned  in  (i),  (ii)  and  (iii)  above  but  by  their  agent,  

representative  or  assign.  This  is  so because  the use of  the words “such  

person” in Clause (b) and (c) can be understood to mean only persons as  

referred to in (i), (ii) and (iii) above. It may also be mentioned herein that  

the scope of Clause (b) and (c) in Section 32 may to an extent overlap one  

another. However, we do not propose to deal with the same as it  is not  

relevant for determination of the issue before us. It is suffice to say that in  

so far as Clause (c) of Section 32 is concerned the agents, representative or  

assigns of the persons referred to in (i), (ii) and (iii) above can present the  

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said document for registration only if they are duly authorized by power-of-

attorney executed and authenticated in manner hereinafter mentioned. The  

words “executed  and authenticated  in  manner  hereinafter  mentioned”  in  

Section 32 (c) would mean the procedure specified in Section 33. This is  

clear from the opening words of Section 33 which reads “for the purposes  

of Section 32, the following power-of-attorney shall alone be recognised”.  

Section 32 refers to documents presented for registration by a holder of  

“power-of-attorney”  in  Clause  (c)  and  it  therefore  follows  that  the  

procedure specified under Section 33 would be attracted where a document  

is  presented  by  a  person holding a  “powers-of-attorney”  of  the  persons  

mentioned in Clause (a) of Section 32.

23. The aforesaid position makes it explicitly clear that Section 32 of the Act  

requires the documents sought to be registered, to be presented, inter alia  

by the person executing it.   In other words, the said expression requires  

presence of the actual person executing the document. The basic principle  

underlying this provision of the Act is to get before the Sub-Registrar the  

actual executant who, in fact, executes the document in question.  In fact,  

the ratio of the decision in  Ram Gopal (supra) as reported in AIR 1960  

Punjab 226 has laid down a similar proposition on the conjoint reading of  

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Section  32  and  Section  33  of  the  Act  and  after  referring  to  all  the  

judgments noted hereinbefore. Same view has been expressed earlier by the  

Bombay High Court in Ratilal Nathubhai and Anr. v. Rasiklal Maganlal  

and Ors., AIR 1950 Bombay 326.  

24.It is important to bear in mind that one of the categories of persons who are  

eligible  to  present  documents  before  the  registration  office  in  terms  of  

Section  32  of  the  Act  is  the  “person  executing”  the  document.  The  

expression “person executing” used in Section 32 of the Act, can only refer  

to  the  person  who  actually  signs  or  marks  the  document  in  token  of  

execution, whether for himself or on behalf of some other person. Thus,  

“person executing” as used in Section 32 (a) of the Act signifies the person  

actually executing the document and includes a principal who executes by  

means  of  an  agent.  Where  a  person  hold  a  power  of  attorney  which  

authorises him to execute a document as agent for some one else, and he  

executes a document under the terms of the power of attorney, he is, so far  

as the registration office is concerned, the actual executant of the document  

and is entitled under Section 32 (a) to present it for registration and get it  

registered.

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25. In view of the aforesaid legal position, we are of the considered view that  

the law laid down by the Andhra Pradesh High Court in D. Sardar Singh  

v. Seth Pissumal Harbhagwandas Bankers [AIR 1958 Andhra Pradesh  

107] and the decision of Calcutta High Court in Abdus Samad v. Majitan  

Bibi & Anr. [AIR 1961 Calcutta 540] with regard to the interpretation of  

Section 32 and 33 of the Act is not the correct legal position.  

26.In the facts of the present case, it is quite clear that Indra Kumar Halani,  

was given the full authority by Nandalal Tantia under the power of attorney  

to transfer the suit property and to execute the necessary document. It is an  

accepted  position  that  the  said  document  had  been  executed  by  Indra  

Kumar Halani in the name and on the behalf of Nandalal Tantia thereof.  

Therefore, for the purposes of registration office under Section 32 (a) of the  

Act Indra Kumar Halani is clearly the “person executing” the document.  

Therefore,  it  follows  that  the  said  sale  deed  which  was  executed  and  

authenticated by Indra Kumar Halani could be presented for registration by  

him. We are of the considered view that Indra Kumar Halani acted in the  

aforesaid manner mandated under Section 32 (a) of the Act.

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27.The object of registration is designed to guard against fraud by obtaining a  

contemporaneous  publication  and  an  unimpeachable  record  of  each  

document. The instant case is one where no allegation of fraud has been  

raised.  In  view  thereof  the  duty  cast  on  the  Registering  Officer  under  

Section 32 of the Act was only to satisfy himself that the document was  

executed  by  the  person by whom it  purports  to  have  been signed.  The  

Registrar  upon  being  so  satisfied  and  upon  being  presented  with  a  

document to be registered had to proceed with the registration of the same.  

28.The High Court held that since the power of attorney was not registered  

document, Indra Kumar Halani, was not authorized to execute and present  

the sale deed before the Sub-Registrar  for registration. It  was, therefore,  

held by the High Court that no right and title had passed to the Plaintiff on  

the basis of the aforesaid sale deed. The High Court also held that upon a  

conjoint reading of Section 32, Section 33 (1) (a) and Section 34 of the Act,  

it was difficult to conclude that Indra Kumar Halani became the executant  

by  himself  on  the  basis  of  the  power  of  attorney  which  was  neither  

executed nor authenticated in the manner provided under Section 33 (1) (a)  

of the Act so as to enable him to present the sale deed for registration in  

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compliance with the provisions of Section 32 (a) of the Act. We do not  

agree with the said findings of the High Court.  

29.Where a deed is executed by an agent for a principal and the same agent  

signs,  appears  and  presents  the  deed  or  admits  execution  before  the  

Registering Officer, that is not a case of presentation under Section 32 (c)  

of the Act. As mentioned earlier the provisions of Section 33 will come  

into play only in cases where presentation is in terms of Section 32 (c) of  

the  Act.  In  other  words,  only  in  cases  where  the  person(s)  signing  the  

document cannot present the document before the registering officer and  

gives  a  power  of  attorney  to  another  to  present  the  document  that  the  

provisions of Section 33 get attracted. It is only in such a case, that the said  

power of attorney has to be necessarily executed and authenticated in the  

manner provided under Section 33 (1) (a) of the Act.  

30.In the instant case, Indra Kumar Halani executed the document on behalf of  

Shri  N.  L.  Tantia  under  the  terms  of  this  power  of  attorney.  He  then  

presented it for registration at the Registration Office and it was registered.  

The plea taken by the Respondents that in order to enable him to present  

the document  it  was necessary that  he should hold a  power of  attorney  

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authenticated before the Sub-Registrar under the provisions of Section 33 is  

thus not supported by the language of Section 32. The provisions of Section  

33 therefore  only apply  where  the  person presenting  a  document  is  the  

general attorney of the person executing it, and not where it is presented for  

registration by the actual executant, even though he may have executed it  

as agent for some one else. In this case, the presentation is by the actual  

executant himself and is hence is entitled under Section 32 (a) to present it  

for registration and to get it registered.  

31.Accordingly, we allow the present appeal and set aside the judgment and  

order passed by the High Court and restore the judgment and decree passed  

by the first appellate court whereby and whereunder a decree for eviction of  

the respondents-defendant was passed.  No order as to the costs.

  ..........………………………J.                        [Dr. Mukundakam Sharma]

   …................………………..J.      [Dr. B.S. Chauhan]

New Delhi, July 29, 2009

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