Power of attorney — Registration — Registration Act, — S. 17.

[Mrs. B. Maragathamani & Ors. v. Member Secretary, Chennai
Metropolitan Development Authority & Ors., AIR 2010 Madras 61]

The petitioners 1 to 5 were holder of a valid power of
attorney.

The application for permission of construction of building
was rejected on the ground that the building was owned by several others holding
undivided shares of land and they have not given any registered power of
attorney in favour of the applicant.

The Court observed that S. 17 of the Registration Act, 1908
provides for compulsory registration of documents. S. 18 relates to the
documents of which registration is optional. S. 17 contemplates compulsory
registration of documents whenever some interest over immovable property or some
non-testamentary instruments transferring or assigning any decree or order of a
Court. None of the clauses contemplated under that Section requires a
registration of a power of attorney, which does not convey or confer any title
or interest whether vested or contingent.

As against S. 17, S. 18 gives an option to the executant of a
document to register the documents. The document in question is in respect of an
authorisation to some of the purchasers in an apartment seeking for
regularisation.

The authorisation does not indicate any transfer of title or
interest or any other matter covered u/s.17 and for that matter even u/s.18 of
the Registration Act. The power of attorney had been notarised by one Advocate
and Notary, Chennai. S. 85 of the Indian Evidence Act contemplates a presumption
to be drawn by the Court as to certain powers of attorney. By that Section the
Court shall presume that every document purporting to be a power of attorney and
to have been executed before and authenticated by a Notary Public was so
executed and authenticated. Certainly the power of attorney in question would be
considered to be a valid and legal document for the purpose of making an
application for regularisation and such application cannot be rejected solely on
the ground that it is not registered.

The Court held that the power of attorney does not create any
interest in immovable property. It is further held even on the question of
compulsory registration of the power of attorney, which is not covered u/s.17,
that only when the document creates an interest in immovable property, it is
compulsorily registrable.

Hence, the order rejecting the application for regularisation
solely on the ground that the power of attorney had not been registered was set
aside.