- within Law Department Performance, Real Estate and Construction and International Law topic(s)
The Kerala High Court, in a significant ruling delivered on 13 July 2026 by a Division Bench comprising Dr. Justice A.K. Jayasankaran Nambiar and Mrs. Justice Preeta A.K., has clarified the interplay between compulsory registration requirements and procedural authentication norms under the Registration Act, 1908. Through Writ Appeal Nos. 203 and 1354 of 2022, the Court addressed a question of substantial practical importance: whether a power of attorney executed abroad by non-resident principals in favour of an attorney in India, and duly authenticated by an Indian Consul under Section 33 of the Act, is sufficient to empower the attorney to execute and register sale deeds relating to immovable property in India, or whether such a power of attorney must additionally be compulsorily registered under Section 17(1)(g) of the Act. The Court's answer carries far-reaching consequences for non-resident Indians and the legal practitioners who advise them on cross-border property transactions.
The appeals arose from two distinct factual matrices that presented a common legal issue. In the first matter, which gave rise to Writ Appeal No. 203 of 2022, the writ petitioner Muhammed was the holder of a power of attorney executed by property owners residing abroad. Acting under this authority, he executed a sale deed in favour of a third party in respect of immovable properties situated within India. When the sale deed was presented for registration, the Sub-Registrar raised multiple objections. In the second matter, culminating in Writ Appeal No. 1354 of 2022, the writ petitioner V.R. Jameela was the donee of a power of attorney executed by her son-in-law, who was residing abroad. The instrument had been duly executed and authenticated by the Indian Consulate at Dubai. Jameela subsequently executed a sale deed on behalf of her son-in-law and presented it for registration before the local Sub-Registrar. In both instances, the transaction hit a regulatory wall at the registration stage.
The Sub-Registrar in the first case communicated objections on three grounds. First, that the vendors were foreigners and prior permission from the Reserve Bank of India was required. Second, that the thumb impressions of the executants, as mandated under Section 32 of the Registration Act, were absent. Third, and most critically, that under Section 17(1)(g) of the Act, the power of attorney instrument authorising the petitioner to act on behalf of the foreign principals had to be compulsorily registered, which it was not. In the second case, the Sub-Registrar refused to act upon the sale deed solely on the ground that the underlying power of attorney had not been registered in terms of Section 17(1)(g). These refusals formed the subject matter of the writ petitions before the learned Single Judge.
The learned Single Judge, considering both writ petitions separately, allowed them. The Single Judge held that so long as the execution of the power of attorney instruments and their authentication was done before and by an Indian Consul or Vice-Consul in the manner stipulated under Section 33 of the Act, the same would suffice for the purpose of presenting other instruments for registration in terms of Section 32. In arriving at this conclusion, the Single Judge did not, however, engage with the scope and ambit of Section 17(1)(g) of the Act or the specific objection that the power of attorney instrument had to be compulsorily registered if executed in the circumstances contemplated thereunder. The writ petitions were thus allowed without adverting to this substantive objection raised by the registering authorities.
Aggrieved by the Single Judge's omission to consider the mandatory registration requirement under Section 17(1)(g), the State of Kerala and the registering authorities preferred the writ appeals. Before the Division Bench, the learned Senior Government Pleader contended that while the power of attorney instrument may be valid for the purposes of Sections 32 and 33 of the Registration Act, it nevertheless had to be compulsorily registered as per the requirements of Section 17(1)(g). It was submitted that since the power of attorney instruments in question were admittedly not registered, the attorney holders could not be permitted to act thereunder for the purpose of effecting the transfer of immovable property through the sale deeds presented for registration.
Per contra, the counsel for the respondent writ petitioner in the first appeal submitted that the provisions of Section 17(1)(g) and Sections 32 and 33 of the Act had to be read together so as to form a self-contained code with regard to the execution of documents conveying immovable property by a power of attorney holder. The contention was that so long as the power of attorney instrument was executed and authenticated in the manner contemplated under Section 33, the requirements under Section 32 with regard to the presentation of the document for registration would stand complied with. Consequently, such powers of attorney, which are recognised for the purposes of Section 32, would stand excluded from the ambit of compulsorily registrable documents under Section 17(1)(g) of the Act.
The Division Bench, upon careful consideration of these rival submissions, found force in the contention of the State. The Court held that the provisions of Section 17(1)(g) stand separate and independent of the procedural requirements under Sections 32 and 33 of the Registration Act. It observed that while Section 17(1)(g) stipulates the categories of documents that are compulsorily registrable, Sections 32 and 33 fall under Part VI of the Act, which deals exclusively with the procedure for presenting documents for registration. Section 32 addresses the persons entitled to present documents for registration, while Section 33 deals specifically with powers of attorney recognisable for the purposes of Section 32. Thus, the special procedure under Section 33 for the execution of a power of attorney where the principal does not reside in India only deems the instrument valid for the purpose of presenting documents for registration. It does not, however, override the substantive requirement of compulsory registration.
The Court emphasised that the requirement of compulsory registration stands independent of and separate from the procedural provisions under Part VI. Section 17 falls under Part III, which deals with registrable documents and prescribes the requirement of registration before an instrument can be regarded as valid for the purpose of creating or legitimising the relationship or transaction it purports to effect. Inasmuch as the power of attorney instruments in the instant cases created a power to transfer or otherwise deal with immovable property, and were not in favour of persons specifically exempted under Section 17(1)(g), they had to be necessarily registered. The Court noted that it was the admitted position in both cases that the power of attorney instruments were not registered. It therefore concluded that the objection raised by the Registering Authority was valid, and the writ petitioners could not have used the unregistered instruments to effect the sale transactions.
Accordingly, the Division Bench set aside the impugned judgments of the learned Single Judge on this issue and allowed the appeals to that extent. The ruling serves as a crucial reminder that procedural authentication under Section 33 and substantive registration under Section 17(1)(g) operate in distinct domains, and compliance with the former does not excuse the latter. For non-resident Indians and their attorneys, the judgment underscores the indispensable necessity of registering power of attorney instruments that authorise the transfer of immovable property, regardless of whether such instruments have been duly authenticated by Indian consular authorities abroad.
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