Holding

A writ petition under Article 226 is maintainable when the grievance is limited to the Registering Authority’s failure to comply with statutory duties in the act of registration, and the High Court may cancel the registration without declaring the underlying document null and void.

Summary

The appellant, Asset Reconstruction Company (India) Ltd., challenged the registration of a sale deed executed by S.P. Velayutham in favour of his son, arguing that the Sub‑Registrar had failed to verify that the power of attorney (PoA) presented did not authorize a sale. The High Court’s Division Bench set aside the Single Judge’s order, holding that the writ court should not intervene where civil suits were pending. The Supreme Court examined the statutory scheme of the Registration Act, 1908 and Tamil Nadu Registration Rules, distinguishing the three steps of registration – execution, presentation and the act of registration – and held that a writ petition can be entertained when the grievance is solely against the Registering Authority’s failure to perform its statutory duties. It clarified that challenges to the validity of the document itself must be pursued in a civil suit, but a writ court may cancel the act of registration if the authority’s omission is gross. Consequently, the Court restored the Single Judge’s order, cancelling the registration of the sale deed and allowing the appeal.

Issues considered

Whether a High Court under Article 226 can entertain a writ petition challenging only the Registering Authority’s failure to perform statutory duties in the registration process, without seeking a declaration that the document itself is null and void.
Whether the Registering Authority’s role in the registration process is administrative or quasi‑judicial and how that affects writ jurisdiction.
Whether the presence of pending civil suits and prior orders directing the parties to a civil court oust the High Court’s jurisdiction in the present writ petition.

Legislation cited

Code of Criminal Procedure, 1973s. 145
Recovery of Debts Due to Banks and Financial Institutions Act, 1993s. 19
Registration Act, 1908s. 32, s. 33, s. 34, s. 35, s. 69(1)
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002s. 13(2), s. 13(4)
Tamil Nadu Registration Ruless. Rule 46, s. Rule 48, s. Rule 49, s. Rule 52

Subjects

Registration ActPower of AttorneyArticle 226Writ jurisdictionCivil suitStatutory dutyRegistering AuthorityTamil Nadu Registration RulesSecuritisation ActDebt recovery

Judgment

[2022] 17 S.C.R. 637 637

ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED A
v.
S. P. VELAYUTHAM & ORS.
(Civil Appeal Nos. 2752-2753 of 2022)
MAY 04, 2022 B
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Constitution of India – Art.226 – Jurisdiction under – Failure
of registering authority to perform its duties – The borrower
defaulted in repayment of the loan pursuant to which the Bank issued
C
a demand notice u/s 13(2) of the Securitisation Act - Bank which
already initiated proceedings under the Securitisation Act, assigned
the debt and the collateral security in favour of the appellant - By
deed of PoA, the power of sale is said to have been conferred upon
the agent, but this was un-registered - On the basis of deed of PoA,
which did not confer a power of sale, respondent sold the property D
to his son A - The appellant filed a writ petition seeking a declaration
that the act of the sub-registrar in registering the sale deed was null
and void – Single Judge allowed the petition on the ground that
there was utter failure on the partof the Registering Authority to
follow the mandate of law as prescribed in Sections 32 to 35 of the
E
Registration Act, 1908 - Division Bench held that the appellant is
guilty of violating the order passed by Supreme Court in the
proceedings arising out of the order of the Sub-Divisional Magistrate
under Section 145 of the Cr.P.C- Whether the invocation of the writ
jurisdiction of the High Court by the appellant was right, especially
when civil suits at the instance of third parties are pending - Held: F
If a party questions the very execution of a document or the right
and title of a person to execute a document and present it for
registration, his remedy will only be to go to the civil court - But
where a party questions only the failure of the Registering Authority
to perform his statutory duties in the course of the third step, it
G
cannot be said that the jurisdiction of the High Court under Article
226 stands completely ousted - When a High Court, in exercise of
its jurisdiction under Article 226 finds that there was utter failure
on the part of the Registering Authority to stick to the mandate of
law, the Court merely cancels the act of registration, but does not
declare the very execution of the document to be null and void - H
637
638 SUPREME COURT REPORTS [2022] 17 S.C.R.

A Examining whether the Registering Authority did something in the
manner required by law or otherwise, is certainly within the
jurisdiction of the High Court under Article 226 - Therefore, the
Single Judge rightly applied the law and allowed the writ petition
filed by the appellant, but the Division Bench got carried away by
the sound and fury created by the contesting respondents.
B
Registration Act, 1908 - ss. 32, 33, 34 & 69(1) – Tamil Nadu
Registration Rules - R u l e s 4 6 , 4 8 , 4 9 , 5 2 - A careful look at Sections
32 and 33 will show that while speaking about PoA, these provisions
do not use the word “registration” - While Section 32(c) uses the
words “executed and authenticated”, Section 33(1) uses the words
C “recognised” and “authenticated” - Therefore it is clear that the
word “authenticated” is not to be understood to be the same as
“registered” - Whenever an agent is authorised to execute a
document and present the same for registration and he accordingly
executes the document in terms of PoA, he becomes the actual
D executant in so far as the Registering Authority is concerned and
that therefore he becomes entitled under Section 33(a) to present it
for registration.
Allowing the appeals, the Court
HELD: 1.1 Actually, the registration of a document comprises
E of three essential steps among others. They are, (i) execution of the
document, by the executant signing or affixing his left hand thumb
impression; (ii) presenting the document for registration and
admitting to the Registering Authority the execution of such
document; and (iii) the act of registration of the document. In cases
F where a suit for title is filed, with or without the relief of
declaration that the registered document is null and void, what
gets challenged, is a combination of all the aforesaid three steps
in the process of execution and registration. The first of the
aforesaid three steps may be challenged in a suit for declaration
that the registered document is null and void, either on the ground
G that the executant did not have a valid title to pass on or on the
ground that what was found in the document was not the signature
of the executant or on the ground that the signature of the
executant was obtained by fraud, coercion etc. The second step
of presentation of the document and admitting the execution of
H the same, may also be challenged on the very same grounds
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 639
VELAYUTHAM & ORS.

hereinabove stated. Such objections to the first and second of A
the aforesaid three steps are substantial and they strike at the
very root of creation of the document. A challenge to the very
execution of a document, is a challenge to its very DNA and any
defect or illegality on the execution, is congenital in nature.
Therefore, such a challenge, by its very nature, has to be made
B
only before the civil court and certainly not before the writ court.
[Paras 49 & 50][664-B-F]
1.2. The third step namely the act of registration, is
something that the Registering Authority is called upon to do
statutorily. While the executant of the document and the person
claiming under the document (claimant) are the only actors C
involved in the first two steps, the Registering Officer is the actor
in the third step. Apart from the third step which is wholly in the
domain of the Registering Authority, he may also have a role to
play in the second step when a document is presented for
registration and the execution thereof is admitted. The role that D
is assigned to the Registrar in the second step is that of
verification of the identity of the person presenting the document
for registration. Thus, the first two steps in the process of
registration are substantial in nature, with the parties to the
document playing the role of the lead actors and the Registering
Authority playing a guest role in the second step. The third step E
is procedural in nature where the Registering Authority is the
lead actor. [Paras 51 & 52][664-F-H; 665-A]
1.3. In suits for declaration of title and/or suits for
declaration that a registered document is null and void, all the
aforesaid three steps which comprise the entire process of F
execution and registration come under challenge. If a party
questions the very execution of a document or the right and title
of a person to execute a document and present it for registration,
his remedy will only be to go to the civil court. But where a party
questions only the failure of the Registering Authority to perform G
his statutory duties in the course of the third step, it cannot be
said that the jurisdiction of the High Court under Article 226
stands completely ousted. This is for the reason that the writ
jurisdiction of the High Court is to ensure that statutory authorities

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640 SUPREME COURT REPORTS [2022] 17 S.C.R.

A perform their duties within the bounds of law. It must be noted
that when a High Court, in exercise of its jurisdiction under Article
226 finds that there was utter failure on the part of the Registering
Authority to stick to the mandate of law, the Court merely cancels
the act of registration, but does not declare the very execution of
the document to be null and void. A declaration that a document
B
is nulland void, is exclusively within the domain of the civil court,
but it does not mean that the High Court cannot examine the
question whether or not the Registering Authority performed
his statutory duties in the manner prescribed by law. It is well
settled that if something is required by law to be done in a
C particular manner, it shall be done only in that manner and not
otherwise. Examining whether the Registering Authority did
something in the manner required by law or otherwise, is certainly
within the jurisdiction of the High Court under Article 226.
However, it is needless to say that the High Courts may refuse
to exercise jurisdiction in cases where the violations ofprocedure
D
on the part of the Registering Authority are not gross or the
violations do not shock the conscience of the Court. Lack of
jurisdiction is completely different from a refusal to exercise
jurisdiction. [Para 53][665-B-G]
2. In the case on hand, the appellant has not sought a
E declaration from the High Court that the execution of the
document in question was null and void or that there was no title
for the executant to transfer the property. The appellant assailed
before the High Court, only the act of omission on the part of the
Registering Authority to check up whether the person who
F claimed to be the power agent, hadthe power of conveyance and
the power of presenting the document for registration, especially
in the light to the statutory rules. Therefore, the learned Single
Judge rightly applied the law and allowed the writ petition filed
by the appellant, but the Division Bench got carried away by the
sound and fury created by the contesting respondents on the basis
G of (i) pendency of the civil suits; (ii) findings recorded by the
Special Court for CBI cases; and (iii) the order passed by this
Court in the SLP arising out of proceedings under Section 145
Cr.P.C. [Para 54][665-G-H; 666-A-B]

H
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 641
VELAYUTHAM & ORS.

3. Arguments were advanced on the question whether the A
Registering Authority is carrying out an administrative act or a
quasi-judicial act in the performance of his statutory duties. But
we think it is not relevant for determining the availability of writ
jurisdiction. If the Registering Authority is found to be exercising
a quasi-judicial power, the exercise of such a power will still be
B
amenable to judicialreview under Article 226, subject to the
exhaustion of the remedies statutorily available. On the contrary
if the Registering Authority is found to be performing only an
administrative act, even then the High Court is empowered to
see whether he performed the duties statutorily ordained upon
him in the manner prescribed by law. [Para 55][666-C-D] C
4. Therefore, in the light of (i) the Tamilnadu Registration
Rules discussed above; (ii) the statutory scheme of Sections 32
to 35 of the Act as well as other provisions as amended by the
State of Tamilnadu;and (iii) the distinction between a challenge
to the first 2 steps in the process of execution of a document and D
the third step concerning registration, this Court is of the
considered view that the Division bench of the High Court was
not right in setting aside the order of the learned single Judge. If
the Registering Officer under the Act is construed as performing
only a mechanical role without any independent mind of his own,
then even Government properties may be sold and the documents E
registered by unscrupulous persons driving the parties to go to
civil court. Such an interpretation may not advance the cause of
justice. [Para 58][666-G; 667-A-B]
Satya Pal Anand vs. State of Madhya Pradesh (2016)
10 SCC 767 : [2016] 12 SCR 26; Amarnath vs. Gian F
Chand (2022) SCC Online SC-102 - relied on
Rajni Tandon vs. Dulal Ranjan Ghosh Dastidar & Anr
(2009) 14 SCC 782 : [2009] 11 SCR 686; Thansingh
Nathmal vs. Superintendent of Taxes (1964) 6 SCR 654
: Sarvepalli Ramaiah vs. District Collector (2019) 4 SCC G
500 : [2019] 5 SCR 372; Latif Estate Line India Ltd.
vs. Hadeeja Ammal 2011 (2) CTC 1; Thota Ganga
Laxmi and Another vs. Government of Andhra Pradesh

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642 SUPREME COURT REPORTS [2022] 17 S.C.R.

A and Others (2010) 15 SCC 206; Raj Kumar Soni vs.
State of U.P. (2007) 10 SCC 635 - referred to.
Case Law Reference
[2009] 11 SCR 686 referred to Para 7
[1964] 6 SCR 654 referred to Para 39
B
[2019] 5 SCR 372 referred to Para 39
[2016] 12 SCR 26 relied on Para 42
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.2752-
2753 of 2022.
C From the Judgment and Order dated 28.09.2021 of the High Court
of Judicature at Madras in W.A. Nos.59 and 60 of 2016.
Guru Krishna Kumar, Nakul Devan, Sr. Advs., Anirudh Krishnan,
Balaji Srinivasan, Ms. Pallavi Sengupta, Ms. Neelu Mohan, Advaidh
Neelakkantan, Ms. Garima Jain, Subramanian Vaidyanathan, Ms. Aakriti
D Priya, Advs. for the Appellant.
Shyam Divan, Atul Nanda, Mukul Rohatgi, Sr. Advs., Shreeyash
U. Lalit, K. Surendar, Sougat Mishra, Raveena Lalit, Mrs. Pragya
Baghel, Goutham Shivshankar, Mrs. Chenthoori Pugazendhi, Anand
Sathiyaseelan, Satheesh, Jay Kishor Singh, Advs. for the Respondents.
E The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
1. Asset Reconstruction Company (India) Limited, to whom the
Indian Bank assigned the loans and the underlying security of a particular
borrower, has come up with the above appeals challenging the judgment
F of the Division Bench of the High Court of Judicature at Madras, reversing
the judgment of a learned Single Judge of the Court, by which the learned
Single Judge held the registration of a sale-deed by the Registering
Authority to be null and void.
2. We have heard Mr. Guru Krishna Kumar and Mr. Nakul Devan,
G learned senior counsel for the appellant, and Mr. Shyam Divan, Mr. Atul
Nanda and Mr. Mukul Rohatgi, learned senior counsel appearing for the
contesting respondents.
3. The brief facts necessary for the disposal of the appeals can
be summarised as follows:-
H
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 643
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]

(i) In the year 1992, the Indian Bank sanctioned financial A
facilities to M.V.R. Group of Industries. According to the Indian
Bank, the borrower offered the immovable property covered by
the document now in dispute, as collateral security and a mortgage
by deposit of title deeds is said to have been created way back in
the year 1995-96;
B
(ii) Alleging that the borrower defaulted in repayment of
the loan, Indian Bank filed an application before the Debts
Recovery Tribunal in the year 1996 under Section 19 of the
Recovery of Debts Due to Banks and Financial Institutions Act,
1993; C
(iii) However, after the advent of the Securitisation Act,
2002, the Bank issued a demand notice dated 15.12.2004 under
Section 13(2) of the Securitisation Act. It was followed by a
possession notice dated 30.03.2005 under Section 13(4);
(iv) Thereafter, the respondent nos. 4 and 5 herein executed D
a deed of Power of Attorney (‘PoA’ for short) on 23.08.2006 in
favour of Mr. S.P. Velayutham, the 1st respondent in one of these
appeals and the 6th respondent in the other appeal. This deed of
Power of Attorney contained an express prohibition for the agent
to encumber the properties. This deed of PoA was registered in E
the Office of the Sub-Registrar, Alandur;
(v) By another deed of PoA dated 07.06.2007, the power
of sale is said to have been conferred upon the agent, but this
deed of power was un-registered;
F
(vi) On the basis of the original registered deed of PoA
dated 23.08.2006 which did not confer a power of sale, Mr. S.P.
Velayutham sold the property to his son Amar (the 6th respondent
in one of these appeals and the 1st respondent in the other appeal)
under a deed of sale dated 05.07.2007;
G
(vii) In the meantime, Indian Bank which already initiated
proceedings under the Securitisation Act, assigned the debt and
the collateral security in favour of the appellant herein, which is
an asset reconstruction company. On the basis of such assignment,
the appellant issued a sale notice dated 05.08.2008;
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644 SUPREME COURT REPORTS [2022] 17 S.C.R.

A (viii) However, Mr. Amar, executed a deed of settlement
dated 13.10.2008 in favour of his father Mr. S.P. Velayutham,
from whom he had purchased the property;
(ix) While so, during the period 2009-2015, some
encroachments took place which led to the initiation of proceedings
B under Section 145 Cr.P.C. The original borrowers also filed civil
suits and the appellant got themselves impleaded in those suits;
(x) Eventually, the appellant filed a writ petition in W.P.No.
33462 of 2014 seeking a declaration that the act of the Sub-Registrar
in registering the sale deed executed by S.P. Velayutham in favour
C of his son Amar, was null and void. The said writ petition was
allowed by a learned Judge on the ground that there was utter
failure on the part of the Registering Authority to follow the
mandate of law as prescribed in Sections 32 to 35 of the
Registration Act, 1908 and that the Registrar failed to verify the
deed of PoA dated 23.08.2006, before allowing registration of the
D sale deed executed on the basis of the said power;
(xi) However, two intra-court appeals filed by the father-
son duo, were allowed by the Division Bench primarily on the
ground, (1) that the appellant ought to have taken recourse to a
civil suit; and (2) that the appellant is guilty of violating the order
E passed by this Court in the proceedings arising out of the order of
the Sub-Divisional Magistrate under Section 145 of the Cr.P.C.,
directing the parties to approach the civil court. Aggrieved by this
order of the Division Bench, the appellant has come up with the
above appeals.
F 4. Assailing the impugned order of the Division Bench of the High
Court, it is contended by the learned senior counsel for the appellants, (i)
that the High Court failed completely to appreciate that the Registration
Act, 1908, enjoins upon the Registering Authority to verify “the person
executing” the document sought to be registered; (ii) that in cases where
G the statutory authorities fail to perform the duties enjoined upon them,
under specific provisions of the statute, the jurisdiction of the High Court
under Article 226 of the Constitution does not stand ousted; (iii) that
what was challenged before the High Court in a petition under Article
226 was not the acts of individuals, but the acts of omission and
commission on the part of the Registering Authority and hence the writ
H
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 645
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]

petition cannot be said to be not maintainable; and (iv) that by an over- A
simplified process of reasoning, the Division Bench of the High Court
threw the appellant out of the Court and also added insult to injuryby
commenting upon the conduct of the appellant and imposing costs.
5. Supporting the impugned order, it is contended by Mr. Shyam
Divan, learned senior counsel appearing for Mr. S.P. Velayutham B
(respondent no.6 in one of these appeals and respondent no.1 in the
other appeal), (i) that when admittedly title suits are pending and the
very appellant herein has got themselves impleaded therein, it was not
open to the appellant to resort to a short-cut method of invoking the
jurisdiction of the writ court; (ii) that when there are seriously disputed
questions of fact, with the contesting respondents (father and son) tracing C
their title to an un-broken, un-impeachable chain of registered documents
dating back to 1929, the appellant could not have invoked the writ
jurisdiction of the High Court, after having got an assignment deed from
the Indian Bank just a few years ago in 2007; (iii) that the very right of
the Indian Bank to claim the creation of a mortgage in their favour, has D
come under cloud after the officials of the Indian Bank and the borrowers
got convicted by the Special Court for the CBI cases in Calendar Case
No. 36 of 1998 for various offences punishable under Section 120B
read with Sections 420, 467, 471 etc., and Section 13(2) read with Section
13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988; (iv)
that the attempt of the appellant to invoke the writ jurisdiction of the E
High Court was in the teeth of the judgment of this Court in
SLP(Crl.)No.838 of 2015 dated 27.02.2015, which arose out of
proceedings under Section 145 of the Code of Criminal Procedure, 1973;
(v) that despite this Court affirming the judgment of the High Court
relegating the appellant to a civil court, the appellant took a chance by F
invoking the writ jurisdiction of the High Court suppressing material facts;
and (vi) that the appellant, whose very locus to stake a claim on the
properties is disputed, was rightly non suited by the High Court.
6. Mr. Atul Nanda, learned senior counsel appearing for one of
the parties, while adopting the contentions of Mr. Shyam Divan, added G
that when the Special Court for CBI cases has found the very creation
of the mortgage in favour of Indian Bank to be a product of fraud and
forgery, an institution claiming to be the assignee of the mortgagee could
not have invoked the writ jurisdiction of the High Court, especially after
having got impleaded in the civil suits.
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646 SUPREME COURT REPORTS [2022] 17 S.C.R.

A 7. Mr. Mukul Rohatgi, learned senior counsel appearing for one
of the contesting respondents invited our attention to the statutory
provisions and the decision of this Court in Rajni Tandon vs. Dulal
Ranjan Ghosh Dastidar & Anr1, and contended that the requirement
of authentication of PoA by the Registrar under Section 33(1), was
mandatory only in cases where the person executing the document is
B
different from the person presenting it for registration and that wherever
the agent himself has signed the deed which is presented for registration,
he becomes the executant of the document, leaving no role for the
Registrar to probe.
8. We have carefully considered the above submissions.
C
9. The limited question that arises for our consideration is as to
whether the invocation of the writ jurisdiction of the High Court by the
appellant was right, especially when civil suits at the instance of third
parties are pending and when the appellant had already been directed by
this Court, in proceedings arising under section 145 of the Code of
D Criminal Procedure, to move the civil court?
10. To enable (or disable?) us to find an answer to the above
question, the learned counsel on both sides took us through some provisions
of the Registration Act, 1908 and a few decisions of this Court. We shall
now take a look at them.
E
11. There is and there can be no dispute about the fact that while
the Registering Officer under the Registration Act, 1908, may not be
competent to examine whether the executant of a document has any
right, title or interest over the property which is the subject matter of the
document presented for registration, he is obliged to strictly comply with
F the mandate of law contained in the various provisions of the Act.
Therefore let us take a look at the scheme of the Act.
12. The Registration Act, 1908 is divided into XV parts. Part III
comprising of Sections 17 to 22 contains provisions relating to registerable
documents; Part-IV of the Act contains prescriptions regarding the time
G of presentation of documents for registration; Part-V contains provisions
prescribing and regulating the place of registration of documents; Part-
VI contains provisions relating to presentation of documents for
registration and the procedure on admission and denial of execution;
Part-VII contains provisions for enforcing appearance of executants
1
H (2009) 14 SCC 782
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 647
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]

and witnesses; Part-XI contains provisions relating to the duties and A
powers of Registering Officers and Part-XII contains provisions relating
to refusal to register and the remedies available against such refusal.
13. Before we look at the relevant provisions of the Registration
Act, 1908, it is necessary to note that “Registration of deeds and
documents” falls in Entry 6 of List III (Concurrent List) of the SEVENTH B
SCHEDULE of the Constitution. Therefore, the Registration Act, 1908,
which is a Central Act, can be seen as something which provides only a
template upon which the States are entitled to make amendments. This
is why amendments by States galore in the Registration Act, 1908.
Therefore, any interpretation of the provisions of the Act, should be in
consonance with the scheme of the Act as applicable to the State involved C
in the litigation. For instance, registration of certain documents may be
optional in some States but mandatory in some other States. Therefore,
the interpretation made by this Court, of a provision as amended in its
application to a particular State, cannot be applied blindly while
interpreting the same provision as applicable to another State. Keeping D
this aspect in mind, let us now peep into the statutory provisions.
14. Section 32 of the Act mandates that every document to be
registered under the Act, irrespective of whether such a registration is
compulsory or optional, shall be presented by any of the persons
mentioned therein. Section 32 reads as follows:- E
“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,—
F
(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 a person, or
(c) by the agent of such a person, representative or G
assign, duly authorised by power-of-attorney
executed and authenticated in manner hereinafter
mentioned.”
15. The words “such person” appearing in clauses (b) and (c) of
Section 32, correlate to the words “person executing or claiming under H
648 SUPREME COURT REPORTS [2022] 17 S.C.R.

A the same”, appearing in clause (a) of Section 32. In other words, clause
(a) covers both the executant as well as the claimant of the document.
Therefore, clauses (b) and (c) cover several persons who may represent
the executant or the claimant. Since the controversy in several decisions
of this Court has revolved around clause (c) of Section 32, it would be
useful, for the purpose of easy appreciation, to break clause (c) into its
B
several components as follows:-
(i) by the agent of the person executing the document;
(ii) by the agent of the person claiming under the document;
(iii) by the agent of the representative of the person executing the
C document;
(iv) by the agent of the representative of the person claiming under
the document;
(v) by the agent of the assign of the person executing the document;
D (vi) by the agent of the assign claiming under the document.
It must be noted that the word “agent” appearing in clause (c) of
section 32 goes not only with the words “such a person”, but also with
the words “representative” and “assign”. This is for the reason that
‘representative’ and ‘assign’ are independently covered by clause (b)
E and hence if these words do not go with the word ‘agent’ then their
appearance in clause (c) would be redundant.
16. By virtue of the 2nd part of clause (c) of Section 32, it is
necessary that if a document for registration is presented by any of the
afore-mentioned six categories of persons, he should have been “duly
F authorized by a PoA executed and authenticated in the manner
mentioned in the other provisions of the Act”. In other words, in
cases where a document is presented for registration by the agent, (i) of
the executant; or (ii) of the claimant; or (iii) of the representative or
assign of the executant or claimant, the same cannot be accepted for
registration unless the agent is duly authorized by a PoA executed and
G authenticated in the manner provided in the Act.
17. Section 33 contains prescriptions regarding the types of PoA,
which alone shall be recognized, for the purposes of Section 32. Section
33 reads as follows:-

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ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 649
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]

33. Power-of-attorney recognizable for purposes of section A
32.—(l) 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 B
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- C
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, D
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 E
(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 F
(iii) persons exempt by law from personal appearance in
Court.
(2) In the case of every such person the Registrar or Sub-Registrar
or Magistrate, as the case may be, if satisfied that the power-of-
attorney has been voluntarily executed by the person purporting G
to be the principal, may attest the same without requiring his
personal attendance at the office or Court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution,
the Registrar or Sub-Registrar or Magistrate may either himself
H
650 SUPREME COURT REPORTS [2022] 17 S.C.R.

A go to the house of the person purporting to be the principal, or to
the jail in which he is confined, and examine him, or issue a
commission for his examination.
(4) Any power-of-attorney mentioned in this section may be proved
by the production of it without further proof when it purports on
B the face of it to have been executed before and authenticated by
the person or Court hereinbefore mentioned in that behalf.”
18. A careful look at Sections 32 and 33 will show that while
speaking about PoA, these provisions do not use the word
“registration”. While Section 32(c) uses the words “executed and
C authenticated”, Section 33(1) uses the words “recognised” and
“authenticated”. Therefore it is clear that the word “authenticated”
is not to be understood to be the same as “registered”. The reason
why we say so is that Section 33(1) speaks only about authentication
and not registration and clauses (a), (b) and (c) of Section 33(1) provides
the list of persons competent to authenticate a PoA. Persons who are
D empowered by clauses (a), (b) and (c) of sub-section (1) of Section 33
to authenticate a PoA are as follows:-
(i) The Registrar or the Sub-Registrar within whose district or
sub-district the principal resides, if such principal resides,
at the time of execution of the PoA, in any part of India to
E which this Act applies;
(ii) Any Magistrate, if the principal resides in any part of India
where this Act is not in force;
(iii) A Notary Public, any Court, Judge, Magistrate, Indian
F Consul, Vice Consul or Representative of the Central
Government, if the principal does not reside in India.
19. It may be seen from the list of persons indicated above, that
not all of them are Registrars and Sub-Registrars appointed in terms of
Section 6 of the Registration Act, 1908. Under the Act, the power of
registration is conferred only upon the Registrars and Sub-Registrars
G
appointed under the Act. But clauses (b) & (c) of Section 33(1)
speaks about persons other than Registrars and Sub-Registrars.
This is why, Section 32(c) as well as Section 33 use only the
expression “authenticated” and not the word “registered”. But
unfortunately several Courts have mixed-up these two words, resulting
H
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 651
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]

in applying the test in terms of Sections 17 and 18 for determining the A
validity of a PoA.
20. In fact the distinction between “authentication” and
“registration” is spelt out very clearly in the Tamilnadu Registration Rules.
It may be noted here that section 69(1) of the Registration Act, 1908,
empowers the Inspector General of Registration (i) to exercise general B
superintendence over all the registration offices in the territories under
the State Government; and (ii) to make rules consistent with the Act, in
respect of matters provided in clauses (a) to (j) therein. These rules, by
virtue of sub-section (2) of section 69, are required to be submitted to
the State Government for approval and to be published in the official
gazette after such approval. The rules so made in terms of section 69, C
in the State of Tamil Nadu, provide clarity on the distinction between
authentication and registration.
21. Rules 48 and 49 of the Tamilnadu Registration Rules read as
follows:
D
48. A power of attorney may be brought to a registering officer
(1) for authentication, or (2) for registration, or (3) for both
authentication and registration. In the first case, he shall merely
make the entry prescribed for authentication; in the second
case, he shall register the power in the same manner as any
other document; and in the third case, he shall first E
authenticate the power and then admit it to registration in the
usual manner.
49. Although a power of attorney may be registered like any
other instrument, it is not valid for registration purposes unless
authenticated. When a power of attorney is brought to a F
registering officer by a person who does not understand the
distinction between authentication and registration, the
registering officer should explain the difference to him and
give him such information as may be necessary.
22. After pointing out the distinction between authentication and G
registration of a PoA, Rule 52 indicates the duty to be performed by the
Registering Officer, at 2 points of time, namely (i) at the time of
authentication; and (ii) when the power is revoked. Rule 52 reads as
follows:
H
652 SUPREME COURT REPORTS [2022] 17 S.C.R.

A 52. (i) An abstract in the form printed in Appendix III shall be
retained of each power of attorney authenticated by a
registering officer whether such power is general or special,
registered or not registered. The abstract shall be signed by
the registering officer; and shall be filed in a separate file
with a serial number along with other powers retained under
B
rule 46. The notes of interlineations, blanks, erasures and
alterations made by the registering officer on the original
power shall be copied verbatim in the abstract.
(i) (a) Each registration office shall maintain a register of all
revocations of powers of attorney registered in, or
C communicated to it.
(b) When notice of a revocation is given to a registering officer,
he shall send an intimation of the same to such other offices
as may be specified by the person revoking the power.

D 23. In fact, there is a separate chapter in Chapter X of the
Registration Rules of Tamilnadu, devoted to deeds of PoA. Rules 48, 49
and 52 which we have extracted above, are part of the said chapter.
Rule 46 spells out the procedure to be followed by the Registering Officer
when a document is presented for registration under a general PoA and
the procedure to be followed when the document is presented under a
E Special PoA. It reads as follows:
46. (i) If a document is presented for registration under special
power of attorney, the power shall be retained an filed in the
office with the following endorsement …………………….
No…………….. of 19 ………..
F
Presented in connection with document No……………. of
19……….. of Book………., Vol………..
Date: Signature of Registering Officer.
(ii) If a document is presented for registration under general
G power of attorney, the power shall be returned with the
following endorsement:
Presented in connection with document No……………. of
19……….. of Book………., Vol………..
Date: Signature of Registering Officer.
H
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 653
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]

(iii) When a document is presented for registration by a person A
entitled to present it and execution is admitted by an agent
under a power of attorney, the following endorsement shall
be made on the power, which shall be retained and filed, or
returned, according as it is a special or a general power
*No……………. of 19…… Presented in connection with B
document No……………. of 19……….. of Book……….,
Vol………..
Date: Signature of Registering Officer.
24. Having seen (i) the distinction between authentication and
registration of a PoA; (ii) the obligation imposed by the Act and the C
Rules, upon the Registering Officer while authenticating and/or registering
a PoA; (iii) the necessity for the Registering Officer to maintain a track
of revocation of deeds of PoA; and (iv) the different requirements of
Rule 46, relating to a document presented under a general PoA and a
document presented under a special PoA, let us now turn to the other
D
provisions.
25. Section 34 of the Act contains provisions regarding the enquiry
to be undertaken by the Registering Officer before registration. Section
34, in its application in the State of Tamilnadu, as amended by Tamilnadu
Amendment Act 28 of 2000, reads as follows:-
E
34. Enquiry before registration by registering officer.—(l)
Subject to the provisions contained in this Part and in sections 41,
43, 45, 69, 75, 77, 88 and 89, no document shall be registered
under this Act, unless the persons executing such document (and
in the case of document for sale of property, the persons
claiming under that document)2, or their representatives, assigns F
or agents authorized as aforesaid, appear before the registering
officer within the time allowed for presentation under sections 23,
24, 25 and 26:
Provided that, if owing to urgent necessity or unavoidable accident
all such persons do not so appear, the Registrar, in cases where G
the delay in appearing does not exceed four months, may direct
that on payment of a fine not exceeding ten times the amount of
the proper registration fee, in addition to the fine, if any, payable
under section 25, the document may be registered.
2
Vide Tamil Nadu Act 28 of 2000, sec.3 H
654 SUPREME COURT REPORTS [2022] 17 S.C.R.

A (2) Appearances under sub-section (1) may be simultaneous or
at different times.
(3) The registering officer shall thereupon—
(a) enquire whether or not such document was executed
by the persons by whom it purports to have been
B executed;
(b) satisfy himself as to the identity of the persons
appearing before him and alleging that they have
executed the document (or they are claiming under
the document)3; and
C
(c) in the case of any person appearing as a
representative, assign or agent, satisfy himself of the
right of such person so to appear.
(4) Any application for a direction under the proviso to sub-section
D (1) may be lodged with a Sub-Registrar, who shall forthwith
forward it to the Registrar to whom he is subordinate.
(5) Nothing in this section applies to copies of decrees or orders.
26. Sub-section (3) of Section 34 imposes three obligations upon
the Registering Officer. These obligations are:-
E (i) To enquire whether or not such document was executed by
the person by whom it is claimed to have been executed;
(ii) To satisfy himself as to the identity of the person appearing
before him and claiming to have executed the document;

F (iii) To satisfy himself about the right of any person
appearing as a representative, assign or agent, to so
appear;
27. We may note that Sections 32(c), 34(1) and 34(3)(c) use the
expressions ‘agent’, ‘representative’ and ‘assign’. Though in common
G parlance, we understand the power of attorney agent of a person to be
the representative of the principal, the words “agent” and
“representative” are used in Sections 32(c) and 34(3)(c) to mean
different persons. The word “representative” is defined in Section 2(10)
of the Registration Act “to include the guardian of a minor and the
3
H Vide Tamil Nadu Act 28 of 2000, sec.3
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 655
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]

committee or other legal curator of a lunatic or idiot”. The words A
“agent” and “assign” are not defined in the Act. Therefore, we may
justifiably borrow the definition of the expression “agent” from Section
182 of the Indian Contract Act, 1872, which defines an “agent” “to
mean a person employed to do any act for another or to represent
another in dealings with third person”.
B
28. Keeping the above definitions in mind, if we go back to Section
32(c) it could be seen that whenever the agent of, (i) the executant; (ii)
the claimant; (iii) a representative; or (iv) an assign, presents a document
for registration,
(1) he should have been authorised by PoA and C
(2) such PoA should have been executed and authenticated in the
manner provided in clauses (a), (b) or (c) of sub-section (1) of
Section 33. The requirement of registration depends upon the State
amendments.
29. What is covered by Section 32 (c) read with Section 33(1) is D
something different from what is covered by Section 34(3). While Section
32(c) read with Section 33(1) speaks about the entitlement of the person
to present a document for registration, Section 34(3) speaks about the
enquiry to be conducted and the satisfaction to be arrived at by the
Registering Officer. Section 34(3)(c) imposes an obligation on the E
Registering Officer to satisfy himself about the right of a person appearing
as a representative, assign or agent. This prescription has to be read
with rule 46 of the Tamilnadu Rules.
30. Before we complete our discussion on the statutory scheme,
it is necessary to take note of few more provisions, applicable in the F
State of Tamilnadu, which are of relevance. By Tamilnadu Act No.29 of
2012, Section 17(1) of the Registration Act, 1908 was amended so as to
insert clauses (f), (g), (h) and (i). Clause (h) so inserted, reads as follows:-
“Instruments of power of attorney relating to immovable property
other than those executed outside India”
G
31. Simultaneously, Section 28 was also amended by the State of
Tamilnadu to incorporate a proviso to the effect that a document
mentioned in Section 17(1)(h) may also be presented for registration in
the office of the Sub-Registrar within whose jurisdiction the principal
ordinarily resides.
H
656 SUPREME COURT REPORTS [2022] 17 S.C.R.

A 32. By the very same Tamilnadu Amendment Act 29 of 2012, two
more provisions were also inserted in the Registration Act, 1908. One
was Section 34-B and another was Section 64A. Section 34Breads as
follows:-
“34-B. Procedure for Registration of document of Power
B of Attorney relating to immovable property.-Subject to the
provisions of this Act, no document of Power of Attorney relating
to immovable property shall be registered unless passport size
photographs and finger prints of the principal, the agent and of the
identifying witnesses are affixed to the document and the agent
has also signed such document.”.
C
Section 64-Areads as follows:-
“64-A. Procedure where instrument of Power of Attorney
presented in office of Sub-Registrar relates to immovable
property not situate in sub-district. - Every Sub-Registrar on
D registering an instrument of Power of Attorney including instrument
of revocation or cancellation of such Power of Attorney relating
to immovable property not situate in his own sub-district, shall
make a copy and send the same together with a copy of the map
or plan (if any) mentioned in section 21, to every other Sub-
Registrar in whose sub-district the whole or any part of such
E property is situate and such Sub-Registrar shall file the same in
his Book No.1:
Provided that where such instrument relates to immovable property
in several districts, shall forward the same to the Sub-Registrars
concerned, under intimation to the Registrar of every district in
F which any part of such property is situate.”
33. At this stage we should record that the dispute on hand relates
to a document executed and registered much before the Tamilnadu
Amendment Act 29 of 2012. But still we have taken note of it, not for
the purpose of applying it to this case, but for the purpose of flagging
G certain concerns. Now that we have noticed various provisions of the
Act, let us see some factual aspects and then deal with the contentions
on both sides.
34. In the case on hand, the sale deed dated 05.07.2007 executed
by the father S.P. Velayutham, in favour of his son Amar, contained a
H specific recital to the effect that the owners of the property had appointed
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 657
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]

S.P. Velayutham, as their Power of Attorney, by a deed dated 23.08.2006 A
to sell the property. But far from authorising the power agent to sell the
property, clause 7 of the registered deed of PoA dated 23.08.2006, on
the basis of which the sale deed was executed, actually contained an
express prohibition from creating any encumbrance on the property.
Clause 7 of the registered PoA dated 23.08.2006 reads as follows :-
B
“(7) To negotiate with any third party/s claimant/s including broker/
s take the Banks and other financial institutions claimant/s if any
in the schedule mentioned properties and to settle such claims
and on, this behalf our attorney is empowered to do all acts, deeds
and things. To enter upon the schedule mentioned properties for
the survey of, the same. The power agent herein appointed shall C
have no power to encumber the schedule mentioned properties
for the survey of the same. The power agent herein appointed
shall have no power to encumber the schedule mentioned
properties without the written consent of us.”
35. Apart from the fact that clause 7 extracted above expressly D
prohibited the power to encumber, there was also no stipulation authorising
S.P. Velayutham to appear before any Registering Officer for the purpose
of sale, as an agent. Though clause 5 authorised the agent to appear
before the Registrar and to admit execution, the same was specifically
in relation to the execution of gift deeds in favour of municipalities, E
corporations or other authorities, for the purpose of development of the
layout, formation of the roads etc. Similarly, clause 6 of the deed of PoA
also contained a limited power to appear before the Sub-Registrar, but
the same was also restricted to certain things mentioned in clause 6
itself.
F
36. Interestingly, the contesting respondents relied upon another
un-registered deed of PoA dated 07.06.2007, which contained a power
to sell. Despite this document being dated 07.06.2007 and despite the
date of execution of the sale deed being 05.07.2007, there was no
reference to this PoA in the sale deed. This deed of PoA has surfaced
much later and the fraudulent nature of this deed of PoA is patently G
visible, in view of certain recitals contained therein. The relevant recitals
contained in the un-registered PoA dated 07.06.2007 reads as follows:-
“…AND WHEREAS, under the said General Power of Attorney
Deed though we have intended to confer power including to
sell the Schedule mentioned properties under clauses of the said H
658 SUPREME COURT REPORTS [2022] 17 S.C.R.

A General Power of Attorney Deed, by inadvertence and over
sight the said clause relating to power to sell the schedule
mentioned properties was omitted to be included therein;
AND WHEREAS, now our Agent Mr. S.P. Velayutham has found
the said mistake and requested for execution of additional and
B supplemental General Power of Attorney Deed ‘empowering him
to sell the schedule mentioned properties’ and to receive the sale
consideration therefor. In continuation of the earlier General Power
of Attorney Deed dated 23.08.2006 referred to above;:
AND WHEREAS, we as the Principals under the General Power
C of Attorney Deed dated 23.08.2006 are satisfied with, the mistake
pointed out by our Agent and ‘accordingly we also agreed’ to
execute this General Power of Attorney Deed and as such we
are appointing Mr. S.P. Velayutham, son of Sabapathy, Hindu;
aged about 50 years, residing at No. 5, Sabarj, Street, Madlpakkam,
Chennai-600091 as out General Power of Attorney to do the
D following acts; deeds and things relating to the properties detailed
in the Schedule hereunder…”
The above recitals contain a totally false statement to the effect,
(i) that a power of sale was intended to be conferred under the original
PoA, but it was omitted due to inadvertence and oversight; and (ii) that
E after the mistake was pointed out, the Principals decided to execute the
additional document. These recitals are manifestly false and are contrary
to clause 7 of the registered PoA dated 23.08.2006. In any case, this
PoA dated 07.06.2007 was not what was produced or relied upon at the
time of registration of the sale deed dated 05.07.2007.
F 37. Therefore, if the Registering Officer had verified the recitals
contained in the registered deed of PoA dated 23.08.2006, to see if the
power agent had the power to do what he did, he would have refused
the registration of the document. Rule 46 of the Tamilnadu Registration
Rules ordains what the Registering Officer is obliged to do, (i) when a
G document is presented for registration under a special PoA; and (ii)
when a document is presented for registration under a general PoA. It
was the failure on the part of the Registering Officer to do what he is
required to do, that convinced the learned Single Judge to invoke the
writ jurisdiction. But the Division Bench overturned the decision of the
learned Judge on the ground that the writ court ought to have relegated
H the parties to the civil court.
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 659
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]

38. Two main contentions are raised on behalf of the contesting A
respondents, namely (i) the restraint that is expected of the High Court,
in a writ petition arising under Article 226, in respect of matters which
require detailed factual investigation; and (ii) the limited scope of the
enquiry that could be conducted by the Registering Authority under
Sections 32 to 34 of the Registration Act, 1908.
B
39. In support of the 1st contention, the learned senior counsel
appearing for the respondents relied upon the following decisions,
(i)Thansingh Nathmal vs. Superintendent of Taxes4, (ii) Sarvepalli
Ramaiah vs. District Collector5; (iii) Latif Estate Line India Ltd. vs.
Hadeeja Ammal6.
40. Out of the aforesaid decisions, the decision in Thansingh C
(supra) arose out of the orders of assessment passed under the Assam
Sales Tax Act, 1947. The order passed by the original authority was
challenged before the appellate authority and then the revisional authority
and thereafter in a writ petition under Article 226. It was in such
circumstances that this Court held that the High Court had no power to D
decide questions of fact which are exclusively within the competence of
the taxing authorities. Similarly, the decision in Sarvepalli Ramaiah
(supra), arose out of proceedings for the grant of Ryotwari Patta. The
dispute travelled to the High Court after an elaborate enquiry by the
District Collector. It was in that context that this Court examined the
scope of the power of judicial review under Article 226. E
41. The Full Bench decision of the Madras High Court in Latif
Estate Line India Ltd. (supra), arose out of a controversy as to whether
a deed of cancellation of sale can or cannot be accepted for registration.
The Full Bench explained the circumstances under which a deed of
cancellation, presented by both the vendor and the purchaser, can be F
accepted. But the Full Bench categorically held that a deed of unilateral
cancellation cannot even be accepted for registration. This proposition
actually goes in support of the contention of the appellant that the
Registering Officer has a duty to see whether the document presented
for registration has been presented in accordance with law or not. In
G
fact the decision of the Full Bench itself arose out of a writ petition
challenging the act of the Registering Authority in allowing the registration
of the deeds of unilateral cancellation of sale deeds.
4
(1964) 6 SCR 654
5
(2019) 4 SCC 500
6
2011 (2) CTC 1 H
660 SUPREME COURT REPORTS [2022] 17 S.C.R.

A 42. The reliance placed by the respondents on the decision in
Satya Pal Anand vs. State of Madhya Pradesh7, is misplaced. The
decision in Satya Pal Anand (supra) arose out a case where the allotment
of a plot made by a cooperative society was cancelled unilaterally by a
deed of extinguishment, by the society. The allottee raised a dispute
which ended in a compromise but notwithstanding the compromise the
B
allottee raised a dispute under the relevant provisions of the Madhya
Pradesh Cooperative Societies Act, 1960. When the dispute was pending,
the allottee moved the Registering Officer for the cancellation of the
deed of transfer executed in favour of the subsequent purchasers. When
the Registering Authority refused to comply with the demand, a writ
C petition was moved seeking a declaration that the deed of extinguishment
and the subsequent sales were null and void. The High Court dismissed
the writ petition on the ground that a dispute was already pending before
the competent authority under the Cooperative Societies Act. When the
order of dismissal passed by the High Court was challenged before this
Court, there was a difference of opinion as to whether the issue was
D
directly covered by the decision of this Court in Thota Ganga Laxmi
and Another vs. Government of Andhra Pradesh and Others 8.
Therefore, the matter was placed before a three Judge Bench. While
upholding the decision of the High Court, the three member Bench held
in Satya Pal Anand (supra) that there was no rule in the State of Madhya
E Pradesh similar to Rule 26(k)(i) of the Rules issued by the State of
Andhra Pradesh under Section 69 of the Registration Act, 1908 and that
therefore the decision in Thota Ganga Laxmi (supra) cannot be invoked.
43. The decision in Satya Pal Anand (supra) cannot go to the
rescue of the contesting respondents, for the simple reason that the writ
F petitioner in that case, first accepted a compromise and then raised a
dispute under the Cooperative Societies Act (which is akin to a civil suit)
and thereafter approached the High Court under Article 226 for a
declaration, which he could have sought only in the already instituted
proceedings. The very fact that Thota Ganga Laxmi was sought to be
distinguished on the basis of the express provision contained in the Rules
G of the State of A.P., would indicate that there is no absolute bar for the
High Court to exercise jurisdiction under Article 226.
44. Both sides relied upon the decision of this Court in Rajni
Tandon (supra). The question that arose in Rajni Tandon (supra) was
7
(2016) 10 SCC 767
H 8
(2010) 15 SCC 206
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 661
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]

as to whether the PoA required authentication by the Registering A
Authority, when a sale deed executed by the power agent himself is
presented for registration by the power agent. This question was couched
in a different language by this Court in paragraph 19 of the Report in
Rajni Tandon (supra) as follows:-
“19. In view of the aforesaid situation, the issue that falls for our B
consideration is whether a person who executes a document under
the terms of the power of attorney, is, insofar as the registration
office is concerned, the actual executant of the document and is
entitled under Section 32(a) to present it for registration and get it
registered.”
C
45. After analysing Sections 32 and 33 of the Registration Act,
1908 this Court came to the conclusion that whenever an agent is
authorised to execute a document and present the same for registration
and he accordingly executes the document in terms of PoA, he becomes
the actual executant in so far as the Registering Authority is concerned
and that therefore he becomes entitled under Section 33(a) to present it D
for registration. This Court further held that the authentication in terms
of Section 33(1)(a) is required only in cases where Section 32(c) is
invoked. Paragraph 33 of the Report in Rajni Tandon is reproduced for
easy appreciation as follows:-
“33. Where a deed is executed by an agent for a principal and the E
same agent signs, appears and presents the deed or admits
execution before the registering officer, that is not a case of
presentation under Section 32(c) of the Act. As mentioned earlier
the provisions of Section 33 will come into play only in cases
where presentation is in terms of Section 32(c) of the Act. In F
other words, only in cases where the person(s) signing the
document cannot present the document before the registering
officer and gives a power of attorney to another to present the
document that the provisions of Section 33 get attracted. It is only
in such a case, that the said power of attorney has to be necessarily
executed and authenticated in the manner provided under Section G
33(1)(a) of the Act.”
46. But we are not concerned in this case with the question whether
the PoA relied upon by the power agent S.P. Velayutham in the sale
deed executed by him, required authentication and whether the
Registering Authority committed a blunder in accepting the sale deed H
662 SUPREME COURT REPORTS [2022] 17 S.C.R.

A presented by him for registration, without verifying the authentication of
the PoA or not. We are concerned in this case with the most fundamental
question whether the Registering Authority could have turned a blind
eye to the fact that the deed of PoA on the basis of which the sale deed
was executed as well as presented for registration by S.P. Velayutham
contained an express prohibition for the power agent to create an
B
encumbrance on the property, especially in the light of the Rules framed
under section 69 of the Act. The decision in Thota Ganga Laxmi, was
in a way approved by a 3-member Bench in Satya Pal Anand, on the
basis of the rules in the State of Andhra Pradesh, showing thereby that
statutory rules also play a crucial role.Rajni Tandon is not an authority
C for holding that the registering Authority has no duty even to verify the
presence or absence of a power of sale in the deed of PoA, especially in
the light of the rules.
47. In Amarnath vs. Gian Chand 9, this Court was concerned
with a case arising out of peculiar circumstances. The said case arose
D out of a civil suit for a declaration of title and for permanent injunction.
The plaintiff in that case entered into an oral agreement for the sale of
his property and gave a special PoA in favour of the second defendant.
But the agreement fell through and hence the plaintiff took back the
original deed of PoA from the second defendant. However, the second
defendant applied for a copy of the PoA and thereafter sold the property
E in collusion with the first defendant. Upon coming to know of the same,
the original owner filed the suit as aforesaid, contending that the second
defendant had no valid power and that the Registering Authority ought
to have verified this aspect from the second defendant under Sections
32, 33 and 34 of the Registration Act, 1908. After trial, the trial court
F dismissed the suit on the ground that the cancellation of the PoA also
required registration and that the mere writing of the word “cancelled”
on the original PoA cannot be taken to mean that the power was validly
cancelled. The First Appellate Court confirmed the judgment and decree
of the trial court. While reversing the judgments of the trial court and the
Appellate Court, the High Court opined that under Section 18A of the
G Registration Act as applicable to the State of Himachal Pradesh, by way
of an amendment under Himachal Pradesh Act 2 of 1969, the PoA ought
to have accompanied the sale deed presented for registration and that if
the Sub-Registrar had ensured this, he would have found that in view of
the cancellation of the power, the agent ceased to have any power of
9
H (2022)SCC Online SC-102
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 663
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]

sale. This decision of the High Court was reversed by this Court in A
Amar Nath (supra), after an exhaustive analysis of the provisions of
the Registration Act, 1908. While doing so, this Court held in paragraph
26 as follows:-
“26. For reasons, which we have indicated, Section 32(c) read
with Section 33 and Section 34(2)(c) are inter- related and B
they would have no application in regard to the document
presented for registration by a power of attorney holder who
is also the executant of the document. In other words, there is
really no need for the production of the original power of
attorney, when the document is presented for registration by
the person standing in the shoes of the second defendant in C
this case as he would be covered by the provisions of Section
32(a) as he has executed the document though on the strength
of the power of attorney. To make it even further clear, the
inquiry contemplated under the Registration Act, cannot
extend to question as to whether the person who executed the D
document in his capacity of the power of attorney holder of
the principal, was indeed having a valid power of attorney
or not to execute the document or not..”
48. Though the passage extracted above, lends credence to the
contention of the learned senior counsel for the contesting respondents, E
there is some difficulty in accepting the same as a proposition of law of
universal application. There are two reasons why we say so. They are:
(i) as we have stated elsewhere, the interpretation of the provisions of
the Registration Act, would depend upon the State amendments and the
Rules framed in each State under Section 69; and (ii) in Amar Nath, the
challenge to the sale was before the civil court, not merely on the ground F
that the Registering Authority failed to perform his duties, but also on the
ground that the defendant conveyed what he could not have.
Unfortunately, the parties in Amar Nath, appear to have gone on a wild
goose chase. Instead of focussing their attack on the agent (who was
the defendant in the suit), for executing the document without any power, G
the parties focussed their attack on the registering officer for permitting
the registration of the document. This resulted in their failure. If a civil
court finds that the sale by a power agent was unauthorised, then the
question whether the Registering Officer performed his duties properly
or not, would lose its significance. An attack on the authority of the
H
664 SUPREME COURT REPORTS [2022] 17 S.C.R.

A executant of a document, is not to be mixed with the attack on the
authority of the Registering Officer to register the document. The
distinction between the execution of a document and the registration of
the document is to be borne in mind while dealing with these questions.
49. Actually, the registration of a document comprises of three
B essential steps among others. They are, (i) execution of the document,
by the executant signing or affixing his left hand thumb impression;
(ii) presenting the document for registration and admitting to the
Registering Authority the execution of such document; and (iii) the
act of registration of the document.
C 50. In cases where a suit for title is filed, with or without the relief
of declaration that the registered document is null and void, what gets
challenged, is a combination of all the aforesaid three steps in the process
of execution and registration. The first of the aforesaid three steps may
be challenged in a suit for declaration that the registered document is
null and void, either on the ground that the executant did not have a valid
D title to pass on or on the ground that what was found in the document
was not the signature of the executant or on the ground that the signature
of the executant was obtained by fraud, coercion etc. The second step
of presentation of the document and admitting the execution of the same,
may also be challenged on the very same grounds hereinabove stated.
E Such objections to the first and second of the aforesaid three steps are
substantial and they strike at the very root of creation of the document.
A challenge to the very execution of a document, is a challenge to
its very DNA and any defect or illegality on the execution, is
congenital in nature. Therefore, such a challenge, by its very nature,
has to be made only before the civil court and certainly not before the
F writ court.
51. The third step namely the act of registration, is something that
the Registering Authority is called upon to do statutorily. While the
executant of the document and the person claiming under the document
(claimant) are the only actors involved in the first two steps, the
G Registering Officer is the actor in the third step. Apart from the third
step which is wholly in the domain of the Registering Authority, he may
also have a role to play in the second step when a document is presented
for registration and the execution thereof is admitted. The role that is
assigned to the Registrar in the second step is that of verification of the
H identity of the person presenting the document for registration.
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 665
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]

52. Thus, the first two steps in the process of registration are A
substantial in nature, with the parties to the document playing the role of
the lead actors and the Registering Authority playing a guest role in the
second step. The third step is procedural in nature where the Registering
Authority is the lead actor.
53. In suits for declaration of title and/or suits for declaration that B
a registered document is null and void, all the aforesaid three steps which
comprise the entire process of execution and registration come under
challenge. If a party questions the very execution of a document or the
right and title of a person to execute a document and present it for
registration, his remedy will only be to go to the civil court. But where a
party questions only the failure of the Registering Authority to perform C
his statutory duties in the course of the third step, it cannot be said that
the jurisdiction of the High Court under Article 226 stands completely
ousted. This is for the reason that the writ jurisdiction of the High Court
is to ensure that statutory authorities perform their duties within the
bounds of law. It must be noted that when a High Court, in exercise of D
its jurisdiction under Article 226 finds that there was utter failure on the
part of the Registering Authority to stick to the mandate of law, the
Court merely cancels the act of registration, but does not declare the
very execution of the document to be null and void. A declaration that a
document is null and void, is exclusively within the domain of the civil
court, but it does not mean that the High Court cannot examine the E
question whether or not the Registering Authority performed his statutory
duties in the manner prescribed by law. It is well settled that if something
is required by law to be done in a particular manner, it shall be done only
in that manner and not otherwise. Examining whether the Registering
Authority did something in the manner required by law or otherwise, is F
certainly within the jurisdiction of the High Court under Article 226.
However, it is needless to say that the High Courts may refuse to exercise
jurisdiction in cases where the violations of procedure on the part of the
Registering Authority are not gross or the violations do not shock the
conscience of the Court. Lack of jurisdiction is completely different from
a refusal to exercise jurisdiction. G

54. In the case on hand, the appellant has not sought a declaration
from the High Court that the execution of the document in question was
null and void or that there was no title for the executant to transfer the
property. The appellant assailed before the High Court, only the act of
H
666 SUPREME COURT REPORTS [2022] 17 S.C.R.

A omission on the part of the Registering Authority to check up whether
the person who claimed to be the power agent, had the power of
conveyance and the power of presenting the document for registration,
especially in the light to the statutory rules. Therefore, the learned Single
Judge rightly applied the law and allowed the writ petition filed by the
appellant, but the Division Bench got carried away by the sound and
B
fury created by the contesting respondents on the basis of (i) pendency
of the civil suits; (ii) findings recorded by the Special Court for CBI
cases; and (iii) the order passed by this Court in the SLP arising out of
proceedings under Section 145 Cr.P.C.
55. Arguments were advanced on the question whether the
C Registering Authority is carrying out an administrative act or a quasi-
judicial act in the performance of his statutory duties. But we think it is
not relevant for determining the availability of writ jurisdiction. If the
Registering Authority is found to be exercising a quasi-judicial power,
the exercise of such a power will still be amenable to judicial review
D under Article 226, subject to the exhaustion of the remedies statutorily
available. On the contrary if the Registering Authority is found to be
performing only an administrative act, even then the High Court is
empowered to see whether he performed the duties statutorily ordained
upon him in the manner prescribed by law.
E 56. Much ado was sought to be made by contending that the
appellant approached the High Court without disclosing the previous
orders of the High Court and this Court, relegating them to civil court for
the adjudication of their claim. Reliance was also placed in this regard
on the decision of this Court in Raj Kumar Soni vs. State of U.P.10.

F 57. But we do not agree. The previous orders directing the appellant
to go to the civil court arose out of the proceedings under Section 145 of
the Cr.P.C. But it does not mean that the recourse to civil court was
seen as the only panacea for all ills.
58. Therefore, in the light of (i) the Tamilnadu Registration Rules
G discussed above; (ii) the statutory scheme of Sections 32 to 35 of the
Act as well as other provisions as amended by the State of Tamilnadu;
and (iii) the distinction between a challenge to the first 2 steps in the
process of execution of a document and the third step concerning
registration, we are of the considered view that the Division bench of
10
H (2007) 10 SCC 635
ASSET RECONSTRUCTION COMPANY (INDIA) LTD. v. S. P. 667
VELAYUTHAM & ORS. [V. RAMASUBRAMANIAN, J.]

the High Court was not right in setting aside the order of the learned A
single Judge. If the Registering Officer under the Act is construed as
performing only a mechanical role without any independent mind of his
own, then even Government properties may be sold and the documents
registered by unscrupulous persons driving the parties to go to civil court.
Such an interpretation may not advance the cause of justice.
B
59. Therefore, in fine, the appeals are allowed, the impugned order
of the Division Bench is set aside and the order of the learned single
Judge is restored. There will be no order as to costs.

Ankit Gyan Appeals allowed. C
(Assisted by : Rahul Rathi, LCRA)

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