Is producing the power of attorney (PoA) necessary in a title suit if the property sale has taken place using it as an instrument? In an order passed on January 13, 203, a two-member Bench of the Supreme Court differed in their opinion.
Passing a judgment in the Manik Majumder vs Dipak Kumar Saha (D) Thr. Lrs, Justice MR Shah was of the opinion that production of the power of attorney was mandatory under Section 33 (1) (c) of the Registration Act. Justice BV Nagarathna on the other hand observed that production of the PoA was not an indispensable requirement to establish the validity of the sale.
See also: Is property sale through power of attorney legal?
Case study
One Braja Mohan Dey, the owner and in possession of a property, alleged took a loan of Rs. 10,000 his tenant, Dhirendra Chandra Saha. Later, Dey went to East Pakistan and he executed a power of attorney in East Pakistan in favour of Saha to enable repayment of the loan amount by sale of the land to Saha as his PoA holder. Using the PoA, Saha transferred the property to his wife Gita Rani Saha in 1968. Saha constructed a godown at the rear end of the grocery shop in another part of the property
One Sarat Chandra Majumdar tried to dispossess Saha from the godown, he had an interest in the property for claiming more than 30 years while denying that the plaintiffs had acquired any right, title or interest as claimed over the suit land.
Following the contention, Saha filed a civil suit in trial Court for a declaration of title over the suit land and recovery of khas possession from the defendants.
The trial court dismissed the suit and held that Saha was not entitled to relief sought as no right, title or interest was established in his favour for want of PoA for proper execution of the sale deed in his favour. The matter subsequently reached the Tripura High Court and then the apex court.
What the SC said?
“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,” said Justice Nagarathna.
“As the PoA is not produced on record; the executant of the PoA has not stepped into the witness box; there is a non-compliance of Section 33(1)(c) of the Registration Act… I am of the opinion that the learned trial court was justified and right in dismissing the suit and refusing to pass a decree for a declaration of title in favour of the plaintiffs. The same was rightly confirmed by the first appellate court. The high court has committed a serious error in decreeing the suit. The impugned judgment and order of the high court is unsustainable both, on law as well as on facts,” said Justice Shah.
FAQs
Can a property be sold with power of attorney?
According to the Supreme Court, those with a power of attorney of a property cannot sell it unless there is a specific provision in the document giving them the power to do so.
Can a sale deed be executed by a registered power of attorney?
Yes, a sale deed be executed by a registered power of attorney.
What is the validity of power of attorney for property in India?
A power of attorney for property in India can be valid for a specified period, the lifetime of the principal or agent or until it is revoked by the principal.
What is the latest Supreme Court decision on power of attorney?
In April 2022, the Supreme Court said that the power of attorney holder can’t sell property unless authorised to do so. While passing its order on an appeal filed by one, Umadevi Nambiar, a Bench of Justices Hemant Gupta and V Ramasubramanian said the power to sell the property was the subject matter of the power of attorney document and it could not be inferred. The document should expressly authorize the agent, i to execute a sale deed; ii to present it for registration; and iii to admit execution before the Registering Authority, it said.
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An alumna of the Indian Institute of Mass Communication, Dhenkanal, Sunita Mishra brings over 16 years of expertise to the fields of legal matters, financial insights, and property market trends. Recognised for her ability to elucidate complex topics, her articles serve as a go-to resource for home buyers navigating intricate subjects. Through her extensive career, she has been associated with esteemed organisations like the Financial Express, Hindustan Times, Network18, All India Radio, and Business Standard.
In addition to her professional accomplishments, Sunita holds an MA degree in Sanskrit, with a specialisation in Indian Philosophy, from Delhi University. Outside of her work schedule, she likes to unwind by practising Yoga, and pursues her passion for travel.
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