Law of Power of Attorney

Law Library

Law Commission 68th report

Key concepts

Section 2(21) of the Indian Stamp Act, 1899 defines the expression “Power of-Attorney” saying that it includes any instrument (not chargeable with a fee under the law relating to court-fees for the time being in force) empowering a specified person to act for and in the name of the person executing it.

 Wharton has defined power of attorney as “a writing given and made by one person authorizing another, who, in such case is called the attorney of the person (or donee of the power), appointing him to do any lawful act in the stead of that person, as to receive rent,
debt to make appearance and application in court, before an officer of registration and the like. It may be either general or special i. e. to do all acts or to do some particular act”

Section   2   of   the  Power   of   Attorney   Act  empowers   to donee of a power­ of­attorney to do anything “in and with his own name and signature” by the authority of the donor of the power. Once such authority is granted, the Act recognises that everything
done by the donee shall be as effectual in law as if it had been done by the donee of the power in the name and with the signature of the donor. It must be in writing. The first object of the Power of Attorney Act  was to render it legal for such donor to execute in and with their own names and seals.

In Jugraj Singh Vs. Jaswant Singh [AIR 1971 SC 761] the Hon’ble Supreme Court held that power of attorney under section 33 of the Indian Registration Act, 1908 need to be authenticated. Registration   of   power   of   attorney   is   not   compulsory. However, a power of attorney given for transfer of an immovable property of value more than Rs.100 must be compulsorily registered. A power of attorney relating to immovable property must be compulsorily registered; and also   held   that   decision   in   this   authority   would   have   prospective application.  The   State   of   Maharashtra,  passed Registration (Maharashtra Amendment) Act, 2010 which came into force from 1st  April 2013, whereby Irrevocable Power of Attorney, relating to transfer of immovable property made after 1 April 2013, is required to be compulsorily registered[ Suraj Lamp and Industries Pvt.Ltd. V/s. State of Haryana]

Section 85 of the Indian Evidence Act, 1872 provides that the court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.

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Edition : 2017

The Powers-Of-Attorney Act, 1882

1. Short title
1A. Definition
2. Execution under power-of-attorney
3. Payment by attorney under power, without notice of death, etc., good
4. Deposit of original instruments, creating powers-of-attorney
5. Power-of-attorney of married women
6. *Omitted

The Powers-Of-Attorney Act, 1882
[Act No. 7 of 1882] [As on 1956]
[24th February, 1882]

An Act to amend the law relating to Powers-of-Attorney.
For the purpose of amending the law relating to Powers-of-Attorney; It is hereby enacted as follows:—

1. Short title.—

This Act may be called the Powers-of-Attorney Act, 1882.
Local extent, commencement.—
It applies to the whole of India except the State of Jammu and Kashmir and it shall come into force on the first day of May, 1882.

1A. Definition.—

In this Act, “Power-of-Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it.

2. Execution under power-of-attorney.

The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof. This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force.

Comment:

To understand the scope of section 2 of the Powers-of Attorney. Act, it is necessary to refer to the history of this legislation. Under the common law of England, an agent having authority to execute an instrument must sign in the name of the principal if he is to be bound. If the agent signs the deed in his name albeit as agent, he is the person who is regarded as party to the document and not the principal.., It is the agent alone that can enforce the deed, and it is be that will be liable on it. Vide In re International Contract Company(2); Schack v. Antony(3), Halsbury’s Laws of England, 3rd Edition, Volume 1, page 217, and Bowstead on Agency, 10th Edition, page 93. To remove the hardships resulting from this state of the law, the Conveyancing and Law of Property Act, 1881 (44 and 45, Vict, Chapter 41) enacted section 46, which is as follows: “(1) The donee of a power,of attorney may, if he thinks fit execute or do any assurance, instrument, or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done shall be (1) [1894] A.C. 347, 351. (2) [1871] 6 Ch. App. 525. (3) I M. & S. 573; 105 E. R. 214. The Indian Legislature immediately followed suit, and enacted the Powers-of-Attorney Act VII of 1882 incorporating in section 2 therein word for word, section 46 of the English Act. The object of this section is to effectuate instruments executed by an agent but not in accordance with the rule of the common law and the enactment is more procedural than substantive. It does not confer on a person a right to act through agents. It presupposes that the agent has the authority to act on behalf of the principal, and protects acts done by him in exercise of that authority but in his own name. But where the question is as to the existence or the validity of authority, the section has no operation.[Ravula Subba Rao And Another vs The Commissioner Of … on 9 May, 1956 . SC 1956 AIR 604, 1956 SCR 577]

3. Payment by attorney under power, without notice of death, etc., good.—

Any person making or doing any payment or act in good faith, in pursuance of a power-of-attorney, shall not be liable in respect of the payment or act by reason that, before the payment or act, the donor of the power had died or become of unsound mind, or insolvent, or had revoked the power, if the fact of death unsoundness of mind, insolvency or revocation was not, at the time of the payment or act, known to the person making or doing the same.
But this section shall not affect any right against the payee of any person interested in any money so paid; and that person shall have the like remedy against the payee as he would have had against the payer, if the payment had not been made by him.
This section applies only to payments and acts made or done after this Act comes into force.

4. Deposit of original instruments, creating powers-of-attorney.

(a)An instrument creating a power-of-attorney, its execution being verified by affidavit, statutory declaration or other sufficient evidence, may, with the affidavit or declaration, if any, be deposited in the High Court or District Court within the local limits of whose jurisdiction the instrument may be.
(b)A separate file of instruments so deposited shall be kept; and any person may search that file, and inspect every instrument so deposited, and a certified copy thereof shall be delivered out to him on request.
(c)A copy of an instrument so deposited may be presented at the office and may be stamped or marked as a certified copy, and, when so stamped or marked, shall become and be a certified copy.
(d)A certified copy of an instrument so deposited shall, without further proof, be sufficient evidence of the contents of the instrument and of the deposit thereof in the High Court or District Court.
(e)The High Court may, from time to time, make rules for the purposes of this section, and prescribing, with the concurrence of the State Government, the fees to be taken under clauses (a), (b) and (c).
(g)This section applies to instruments creating powers-of-attorney executed either before or after this Act come into force.

Comment : 

Notarization & Stamp duty 

Section 8 of the Notaries Act, 1952 provides that a notary may by virtue of his office verify, authenticate, certify or attest the execution of any instrument. Section 2(b) of the Notaries Act, 1952 defines the expression “Instrument” saying that it includes every document by which any right or liability is, or purports to be, created, transferred, modified, limited, extended, suspended, extinguished or recorded. Article 48 of Schedule I of the Indian Stamp Act, 1899 indicates the amounts chargeable as duty for the several categories of powers-of-attorney mentioned therein.Section 35 of the Indian Stamp Act, 1899 provides that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.

5. Power-of-attorney of married women.—

A married woman of full age shall, by virtue of this Act, have power, as if she were unmarried, by a non-testamentary instrument, to appoint an attorney on her behalf, for the purpose of executing any non-testamentary instrument or doing any other act which she might herself execute or do; and the provisions of this Act, relating to instruments creating powers-of-attorney shall apply thereto.
This section applies only to instruments executed after this Act come into force.

6. *Omitted

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Sale of immovable property by Power of attorney 

Suraj Lamp and Industries Private Limited vs State of Haryana (2009) 7 SCC 363[October 11, 2011] 

For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a power of attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty.

  • Sale transactions carried in the name of general power of attorney will have no legal sanctity and immovable property can be sold or transferred only through registered deeds. “Transactions of the nature of `GPA sales or `SA/ GPA/ WILL transfers’ do not convey title and do not amount to transfer nor can they be recognised or valid mode of transfer of immovable property.
  • A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.
  • In State of Rajasthan vs. Basant Nehata – 2005 (12) SCC 77, this Court held :
    “A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document
    of convenience.
    Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.”
  • An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the  grantor.We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of ‘GPA sales’ or ‘SA/GPA/WILL transfers’ do
    not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
  • Power of Attorney and Negotiable Instrument Act

A.C. Narayanan     Vs. State of Maharashtra and another (2013) 4 MLJ (Cri) 213] the Hon’ble Supreme Court has   summarised   the   right   of   a   power   of   attorney   in   criminal proceedings in the following words:
“(i) Filing of complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent.
(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However,  the  power  of  attorney  holder must  have  witnessed  the transaction as an agent of the Payee/holder in due course or possess
due knowledge regarding the said transactions.
(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be
examined as a witness in the case.
(iv) In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the N.I. Act.
(v) The functions under the general power of attorney cannot be delegated to another person without specific clause permitting the same in the power of attorney. Nevertheless, the general power of attorney itself can be cancelled and be given to another person.

Advocate can not act as Power ­of­ attorney Holder for his Client.

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Law of England

Powers of Attorney Act 1971

sec 1 -An instrument creating a power of attorney shall be executed as a deed by the donor of the power.

 Sec 3 Proof of instruments creating powers of attorney.

(1)The contents of an instrument creating a power of attorney may be proved by means of a copy which—

(a)is a reproduction of the original made with a photographic or other device for reproducing documents in facsimile; and

(b)contains the following certificate or certificates signed by the donor of the power or by a solicitor , authorised person ] or stockbroker, that is to say—

(i)a certificate at the end to the effect that the copy is a true and complete copy of the original; and

(ii)if the original consists of two or more pages, a certificate at the end of each page of the copy to the effect that it is a true and complete copy of the corresponding page of the original.

(2)Where a copy of an instrument creating a power of attorney has been made which complies with subsection (1) of this section, the contents of the instrument may also be proved by means of a copy of that copy if the further copy itself complies with that subsection, taking references in it to the original as references to the copy from which the further copy is made.

(3)In this section authorised person” means a person (other than a solicitor) who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to any activity which constitutes a notarial activity (within the meaning of that Act) and]stockbroker” means a member of any stock exchange within the meaning of the Stock Transfer Act 1963 or the Stock Transfer Act (Northern Ireland) 1963.

(4)This section is without prejudice to section 4 of the Evidence and Powers of Attorney Act 1940 (proof of deposited instruments by office copy) and to any other method of proof authorised by law.

(5)For the avoidance of doubt, in relation to an instrument made in Scotland the references to a power of attorney in this section and in section 4 of the Evidence and Powers of Attorney Act 1940 include references to a factory and commission.

 Sec-5 Protection of donee and third persons where power of attorney is revoked.

(1)A donee of a power of attorney who acts in pursuance of the power at a time when it has been revoked shall not, by reason of the revocation, incur any liability (either to the donor or to any other person) if at that time he did not know that the power had been revoked.

(2)Where a power of attorney has been revoked and a person, without knowledge of the revocation, deals with the donee of the power, the transaction between them shall, in favour of that person, be as valid as if the power had then been in existence.

(3)Where the power is expressed in the instrument creating it to be irrevocable and to be given by way of security then, unless the person dealing with the donee knows that it was not in fact given by way of security, he shall be entitled to assume that the power is incapable of revocation except by the donor acting with the consent of the donee and shall accordingly be treated for the purposes of subsection (2) of this section as having knowledge of the revocation only if he knows that it has been revoked in that manner.

(4)Where the interest of a purchaser depends on whether a transaction between the donee of a power of attorney and another person was valid by virtue of subsection (2) of this section, it shall be conclusively presumed in favour of the purchaser that that person did not at the material time know of the revocation of the power if—

(a)the transaction between that person and the donee was completed within twelve months of the date on which the power came into operation; or

(b)that person makes a statutory declaration, before or within three months after the completion of the purchase, that he did not at the material time know of the revocation of the power.

(5)Without prejudice to subsection (3) of this section, for the purposes of this section knowledge of the revocation of a power of attorney includes knowledge of the occurrence of any event (such as the death of the donor) which has the effect of revoking the power.

(6)In this section “purchaser” and “purchase” have the meanings specified in section 205(1) of the Law of Property Act 1925.

(7)This section applies whenever the power of attorney was created but only to acts and transactions after the commencement of this Act.

Conveyancing and Law of Property Act 1881

(1)The donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument, or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done shall be as effectual in law, to all intents, as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.

(2)This section applies to powers of attorney created by instruments executed either before or after the commencement of this Act.

Payment by attorney under power without notice of death, &c good

(1)Any person making or doing any payment or act, in good faith, in pursuance of a power of attorney, shall not be liable in respect of the payment or act by reason that before the payment or act the donor of the power had died or become lunatic, of unsound mind, or bankrupt, or had revoked the power, if the fact of death, lunacy, unsoundness of mind, bankruptcy, or revocation was not at the time of the payment or act known to the person making or doing the same.

(2)But this section shall not affect any right against the payee of any person interested in any money so paid ; and that person shall have the like remedy against the payee as he would have had against the payer if the payment had not been made by him.

(3)This section applies only to payments and acts made and done after the commencement of this Act.

Deposit of original instruments creating powers of attorney

(1)An instrument creating a power of attorney, its execution being verified by affidavit, statutory declaration, or other sufficient evidence, may, with the affidavit or declaration, if any be deposited in the Central Office of the Supreme Court of Judicature.

(2)A separate file of instruments so deposited shall be kept, and any person may search that file, and inspect every instrument so deposited, and an office copy thereof shall be delivered out to him on request.

(3)A copy of an instrument so deposited may be presented at the office, and may be stamped or marked as an office copy, and when so stamped or marked shall become and be an office copy.

(4)An office copy of an instrument so deposited shall without further proof be sufficient evidence of the contents of the instrument and of the deposit thereof in the Central Office.

(5)General Rules may be made for purposes of this section, regulating the practice of the Central Office, and prescribing, with the concurrence of the Commissioners of Her Majesty’s Treasury, the fees to be taken therein.

(6)This section applies to instruments creating powers of attorney executed either before or after the commencement of this Act

Devider

Law of Australia 

POWERS OF ATTORNEY ACT 2014 (NO. 57 OF 2014)

Section 3 – Attorney for financial matters”, for an enduring power of attorney, means an attorney who has power for financial matters under that enduring power of attorney;

“Attorney for personal matters”, for an enduring power of attorney, means an attorney who has power for personal matters under that enduring power of attorney

See-22 –Enduring power of attorney

    (1)     By an enduring power of attorney a person may authorise an eligible attorney to do anything on behalf of the person that a person can lawfully do by an attorney.

    (2)     Without limiting subsection (1), a person may make an enduring power of attorney for personal or financial matters or both.

    (3)     Despite any rule of law to the contrary an enduring power of attorney is not revoked by the principal, after making the power, becoming a person who does not have decision making capacity for any matters to which the power of attorney applies.

    (4)     In this section—”eligible attorney” means a person who is eligible under Division 3 to be appointed as an attorney under the power of attorney.

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