The Supreme Court of India ("Supreme Court") in G. Kalawathi Bai (Died), per LRs v. G. Shashikala (Died), per LRs, 2025 INSC 851 (decision dated July 15, 2025) ("Kalawathi Judgment"), held that even if a document to be registered is executed by a power of attorney holder ("PoA Holder"), the power of attorney ("PoA") must be authenticated during presentation of the document under Sections 32(c) and 33 of the Registration Act, 1908 ("Act"). The Sections 32 and 33 of the Act states that:
"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
(c) by the agent of such person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.
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 recognized, 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
(iii) persons exempt by law from personal appearance in Court.
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In doing so, the Supreme Court has departed from its prevailing judgment in Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, 2009 INSC 969 (decision dated July 19, 2009) ("Rajni Tandon Judgment"). Given the divergence, the Supreme Court has referred the issue to a larger bench.
Previous Position: Rajni Tandon Judgment
In the Rajni Tandon Judgment, a two-judge bench of the Supreme Court had previously held that a PoA Holder executing as well as presenting a document for registration would qualify as an "executor" under Section 32(a) of the Act. Consequently, requirements for authentication of the PoA under Section 33 of the Act would not apply.
The Supreme Court in this case interpreted that Section 32 of the Act requires the presence of the actual person executing the document. Thus, any person who executes the document to be registered i.e., either a principal or an agent on behalf of the principal, becomes an executor under Section 32(a) of the Act. It also held that in the absence of allegations of fraud in a case, the registering officer's duty under Section 32 of the Act was limited to confirming that the document was signed by the person purporting to sign it.
Recent Shift: Kalawathi Judgment
The two-judge bench of the Supreme Court in the Kalawathi Judgment disagreed with the view taken in the Rajni Tandon Judgment. It observed that a PoA Holder remains an agent of the principal in both executing and when presenting a document for registration and does not become the executant in his own right under Section 32(a) of the Act. Accordingly, such a person must present the document under Section 32(c), not Section 32(a) of the Act. Thus, the Supreme Court held the authentication requirements under Section 33 of the Act and relevant rules are mandatory.
Additionally, the Supreme Court observed that the relevant PoA in the present case, granted two distinct powers to the PoA Holder, as captured in separate clauses, (i) to execute the document to be registered and, (ii) to present such documents for registration. Therefore, a PoA Holder, having signed the document as an agent of the principal pursuant to the authority conferred on him by the PoA, then presents it for registration, having been specifically authorized to do so by the PoA, and not because he is the 'executant' of the document in terms of Section 32(a) of the Act. The Supreme Court noted that the bench in the Rajni Tandon Judgment did not note that Section 34(3) of the Act requires the registering officer to conduct a detailed inquiry as to whether the document presented for registration was executed by the persons by whom it 'purports to have been executed' and also satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document. Additionally, Section 35 of the Act places a duty upon the registering officer to satisfy himself that the persons appearing before him are the persons 'they represent themselves to be'. Lastly, the Supreme Court observed that the interpretation adopted and applied by the bench in Rajni Tandon Judgment would lead to a rather incongruous situation wherein in effect, the mere mechanical act of presentation of a document for registration would have to be subjected to rigorous scrutiny but the weightier act of executing a document transferring title in immovable property on behalf of the true owner, on the strength of a PoA, which may even be unregistered or just notarized, passes muster straightaway and need not be subjected to any of the tests prescribed in the Act.
Conclusion
The Supreme Court's observations in the Kalawathi Judgment offer a more robust framework for preventing fraud and upholds the legislative intent embodied in the Act. Although the matter now awaits determination by a larger bench, the Supreme Court's observations demonstrate the practical difficulties and the heightened risk of abuse, that could follow if the interpretive approach adopted in Rajni Tandon Judgment were to prevail.
Please find a copy of the judgment, here.
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