No Sale by Owner, Clouded Title

A large number of cases are coming forward wherein a document is registered on the basis of the notarized Power of Attorney. The idea behind transactions on the basis of the notarized power of attorney is to avoid the stamp duty, which later on becomes a noose for everyone. Now since the second document is being registered on the basis of the notarized Power of attorney (creating a room of doubt about the genuinely of the Notarized Power of Attorney) and a large number of cases are coming forward wherein the Power of Attorney was found to be either forged or made falsely.

In cases of such kind it is the bounden duty of the registrar to satisfy himself that the Power of Attorney is made as defined in section 32 read with section 33 of the Registration Act, 1908 and then only to get the next document registered. Section 32 requires the presence of duly authorized agent, representative or assign, duly authorized by Power-of-Attorney executed and authenticated in the manner prescribed in section 33 of the Act.

33. Power-of-attorney recognizable for purposes of section 32

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

(a) if the principal at the time of executing the power-of-attorney resides in any part of 18[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 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
(iii) persons exempt by law from personal appearance in court.

If the registrar fails to comply with the mandatory requirements and register a document on the basis of the notarized power of attorney (except in the cases aforementioned), the aggrieved person can approach the Civil Court seeking cancellation of the registered document and along with can file a complaint before the Inspector general of the registering office under section 81. Apart from the above-mentioned remedies the person aggrieved can file a complaint under section 166, 167 & 218 of the Indian Penal Code against the public servant for dis-obeying law, framing an incorrect document with the intent to cause injury to the person.

It is unfortunate to say that many properties are being transferred on the basis of the forged and false notarized power of attorney, therefore in order to safeguard one’s interest if any person is apprehending the misuse of the power of attorney or even otherwise suspect a future fraud from being committed, they can write a letter to the area registrar where the property is situated and inform about the same in advance to protect their time, interest and being harassed in future.

 

Kapil Chandna 
on 12 October 2016
Published in Property Law
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