Indian
Registration Act, 1908, specifically provides as to who should present the
document for registration. Section 32 of
the Act stipulates that any document the registration of which is compulsory or
optional shall be presented by following;
1.
By the executant or person
claiming under the document.
2.
In case of a copy of decree,
order, any person claiming under such decree or order.
3.
By the representative or assign
of such persons referred above.
4.
By agent of the persons
referred above or by a representative or assign duly authorised by Power of
Attorney executed and authenticated as prescribed in the Act.
There are
certain exceptions as provided in sections 31, 88 & 89.
POWER OF
ATTORNEY
The section 32
of the Act, prescribes that only certain category of Power of Attorney holders
are recognised to present documents for registration, they are
(a)
If the person executing the
Power of Attorney resides in any part of the country at the time of execution
where the provisions of the Indian Registration Act apply, only Power of
Attorneys executed before and authenticated by registrar or sub-registrar of
the district, where the person executing Power of Attorney resides.
(b)
In case the person executing
the Power of Attorney resides in any part of India, at the time of execution of
the Power of Attorney, where the provisions of the Indian Registration Act does
not apply, only Power of Attorney executed and authenticated by any Magistrate.
(c)
In case person executing Power
of Attorney resides out of India at the time of executing power of Attorney,
only 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.
It may be noted
that in case of authentication by registrar or sub registrar, such officers
should be of the district where the principal resides, but no such stipulation
in case of authentication by a magistrate.
However, the Act
exempts the following people from attending the registration office or court
for executing and obtaining authentication of Power of Attorney. This exemption is available only to persons
residing in India and not to
persons residing outside India
·
They are persons who are unable
to attend without any risk or inconvenience because of bodily infirmity, ill
health and illness.
·
Persons who are in jail under
Civil or Criminal process.
·
Persons exempt by law from
personal appearance in court.
In case of Power
of Attorneys executed by persons who are exempted from a personal appearance,
to execute and obtain authentication, the sub-registrar or magistrate, may
attest the Power of Attorney after satisfying himself that the Power of
Attorney has been voluntary executed by the Principal. In case of necessity the concerned officer
may either visit the house of the principal, jail, examine him or may issue
commission for his examination. Any
Power of Attorney as detailed above may be proved by production of it, without
further proof, when it purports to have executed before and authenticated by a
person or a court.
Authentication and Attestation
The section 33
of the Act refers to two different words authentication and attestation. Both are not similar. Attestation is done in case of Power of
Attorney executed by persons, who are exempted from personal appearance before
court, registrar, sub registrar under section 33 of the Act.
Rule 63 of
Karnataka Registration Rules 1965 prescribes the procedure of authentication
and attestation. When a Power of
Attorney is executed before registering officer, he shall authenticate the
same, after satisfying himself the identity of the party executing the Power of
Attorney and if necessary after obtaining the left hand thumb impression of the
party against his signature. The
authentication shall be is as follows
“ Authentication
under clause (a) of sub-section (1) of section 33”
This Power of
Attorney has been executed by ………… of ……….. in my presence on the …………. Day of
……………..20…. The said……….. is personally
known to me/ the identity of the said………….. has been provided by the testimony
of Sri………………… to my satisfaction and whose signatures is affixed to this
endorsement.
Signature of the
Person
identifying the principal
Seal
Dated
Signature
of (Sub) registrar
In
case of attestation where the principal has not attended the office of the registering authority, the
registering officer will attest the Power of Attorney but not authenticate it. In such cases, if the registering officer
himself attends the residence of principal or if the principal appears in the
office behind a pardah as is in the case of Ghosha ladies the registering
office may examine the principal with the help of any witness. The following form of attestation will be
made;
“ Authentication
under clause (a) of sub-section (2) of section 33”
This Power of
Attorney has been voluntary executed by ………… of ………… I have satisfied myself in
this behalf. The personal examination of
the said …………. on commission. The said ……….. is personally known to me. The identity of the said person has been
proved by the testimony of ……………. to my satisfaction and whose signature is
affixed hereto.
Signature of the
Person
identifying the principal
Seal
Dated
Signature
of (Sub) registrar
Procedure:
While
authenticating the Power of Attorney, which runs into more than one sheet of
paper, the seal and signature of the Registering officer shall be affixed to
each sheet.
If
the Power of attorney which has to be authenticated but not to be registered
contains interlineations, blank, erasure, or alteration in the body of Power of
Attorney, a detailed footnote of number of interlineations, blank, erasures,
alteration has to be added to the document below the authentication and shall
be signed by the registering officer.
Such detailed footnote is necessary even if the principal has made such
footnote. If there are no
interlineations etc., such fact has to be noted.
If
the authentication or attestation endorsement contains any interlineations,
each such interlineations has to be initialled by registering officer.
District
registrars or sub registrars are not authorised to authenticate or attest the
Power of Attorney, other than those required for registration purpose. The Power of Attorney should contain a
specific authority to present the document or to admit the execution of a
document by principal, then only it can be authenticated or attested. A power of attorney may be registered like
any other document, but unless it is authenticated or attested, it is not valid
for using for presenting for registration of other documents executed by
principal. One has to understand the
difference between the registering the power of attorney and using the power of
attorney for presenting the documents executed by principal for registration.
The
authentication or attestation of Power of Attorney is required only when a
document executed by the principal is presented for registration. But if the document is executed by the Power
of Attorney holder and presented by Power of Attorney holder, no authentication
or attestation is necessary.
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