Power Of Attorney Executed Abroad Must Be Registered Before It Can Be Used To Sell Property In India: Kerala High Court

A Division Bench comprising Dr. Justice A.K. Jayasankaran Nambiar and Justice Preeta A.K delivered the judgment in a writ appeal filed by the State of Kerala against separate judgments of a Single Judge.

The appeals arose from two writ petitions involving powers of attorney executed by persons residing abroad. In one case, property owners living outside India had executed a power of attorney in favour of the writ petitioner, who later executed a sale deed relating to immovable property in India. The Sub Registrar refused registration, citing, among other grounds, that the power of attorney had not been registered under Section 17(1)(g) of the Registration Act.

In the second case, the petitioner's son-in-law executed a power of attorney in Dubai in her favour, which was duly authenticated by the Indian Consulate. However, when she presented a sale deed executed on his behalf for registration, the Sub Registrar declined to act upon it on the ground that the power of attorney itself had not been registered.

The Single Judge had allowed both writ petitions, holding that compliance with Section 33 of the Registration Act, requiring execution and authentication of a power of attorney before an Indian Consul or Vice-Consul where the principal resides abroad was sufficient for the purposes of presenting documents under Section 32. The Single Judge did not consider the scope of Section 17(1)(g) or the objection that the power of attorney instrument had to be compulsorily registered if executed in different circumstance. 

For context, Section 32 states that except in specific cases, every document to be registered under the Act, irrespective of whether the registration is compulsory or optional must be presented before the proper registration office. Section 33 recognises power of attorney for the purpose of Section 32. 

The State argued that while Sections 32 and 33 prescribe the procedure for recognising a power of attorney for presentation of documents for registration, they do not dispense with the independent requirement of compulsory registration under Section 17(1)(g).

It contended that since the powers of attorney in question authorised the transfer of immovable property in India but had not been registered here, the attorney holders could not validly execute sale deeds on behalf of their principals.

Accepting the State's submissions, the Division Bench held that Section 17(1)(g) and Sections 32 and 33 operate in different fields.

The Court observed that Section 17 falls under Part III of the Registration Act dealing with compulsorily registrable documents, whereas Sections 32 and 33 fall under Part VI, which governs the procedure for presenting documents for registration.

The Bench clarified that Section 33 merely recognises powers of attorney executed and authenticated abroad for the limited purpose of enabling presentation of documents under Section 32. It does not exempt such instruments from the statutory requirement of compulsory registration where Section 17(1)(g) applies.

“The special procedure contemplated under Section 33 of the Act for the execution of a power of attorney, where the principal at the time of its execution does not reside in India, only deems the power of attorney so executed to be valid for the purpose of presenting documents for registration. However, the requirement of compulsory registration of documents stands independent of and separate from the provisions under Part VI of the Registration Act.” the Court said.

According to the Court, where a power of attorney creates authority to transfer or otherwise deal with immovable property in favour of persons other than those specifically exempted under Section 17(1)(g), registration of the instrument is mandatory.

Since it was undisputed that the powers of attorney involved in both cases had not been registered, the Court held that the Registering Authorities were justified in refusing to act upon them for registration of the sale deeds.

The Court thus set aside the judgments of the Single Judge on this issue and allowed the State's appeals.

Case Title: Inspector General of Registration and Anr. v Muhammed and connected matter

Case No: WA 203/ 2022

Citation: 2026 LiveLaw (Ker) 402

Counsel for Appellants: M.R. Arunkumar (Sr. GP), K.P. Jayachandran (Addl. AG)

Counsel for Respondent: P.M. Habeeb, Rajit, Jacob Sebastian