A person may not be able to be personally present to execute any
document, due to various reasons such as living in a foreign country, old age,
sickness, weak or otherwise when they are too busy. In such circumstances, the Owner
of the property may entrust the job of maintaining and managing the property in
his absence, to any third person through a General Power of Attorney (GPA) He
may also authorise the GPA Holder to negotiate for sale of the property on his
behalf. Such an instrument empowering a third person to perform certain General
or specific acts in his absence is termed as General Power of Attorney.
Types of Power of Attorney:
There
are two types of Power of Attorney.They are: General Power of Attorney & Special Power of Attorney.
General Power of Attorney is given in the circumstances, where the Principal, that is, the
person who executes the General Power of Attorney authorizes his Agent,the GPA
Holder, to undertake all the Acts,which are necessary in order to accomplish
the object for which Power of Attorney is executed.
Special Power of Attorney is executed in those cases, wherein the Agent is empowered by his
principal to do such acts specified in such Power of Attorney.In this type of Power
of Attorney, the authority to do the specified Acts will be revoked soon after
that particular act is accomplished.
Revocation of Power of Attorney:
The
Principal has got every right to revoke, terminate or cancel the Power of Attorney.
The following are few of the circumstances, wherein the Power of Attorney can
be revoked:
1.If
one of the parties to the Power of Attorney viz., the Principal or his G.P.A. Holder
dies, then the Power of Attorney will be revoked.Thus, if Power of Attorney is
executed for presentation of a document in the Sub-Registrar office by the GPA Holder
and if the Principal dies prior to the presentation of the document, then the Power
of Attorney automatically gets revoked. But, if the Agent transacts the business
on behalf of the Principal and the Principal dies after the execution of the
same, the legality of document executed on behalf of the Principal is not
affected. However, all further transactions by the Agent representing the
Principal would be null and void;
2.If the Power of Attorney is given for a particular period, on the
expiry of the period stipulated in the instrument;
3.Where the Principal is
adjudicated as an Insolvent by the Court of Law;
4.If the business of
agency is complete for which the Power of Attorney is executed;
5.The Power of Attorney Holder
renounces his Powers;
6.The Principal revokes the Authority of
the Power of Attorney Holder;
7.When either of the
parties to the instrument would become persons of unsound mind;
8.Implied revocation.
Procedure
for termination of Power of Attorney:
Power of Attorney can be revocable or irrevocable.However,in
either case, there is a specific procedure to be followed in order to terminate
the Power of Attorney.
Registered
Power of Attorney:
In case the Power
of Attorney is registered, the revocation can be brought about only by a
registered deed of revocation, the reason being that any registered document
can be cancelled or revoked only by executing a registered instrument.
Unregistered Power of Attorney:
Power of Attorney
need not compulsorily be registered. In case the Power of Attorney is
unregistered, revocation of the same can be done only by an unregistered
instrument of revocation, in which case the Principal can take back the Power
of Attorney from the Agent through an unregistered instrument of revocation.Apart from an unregistered instrument of revocation, it is also necessary that
the fact of revocation has to be published in the local Newspapers clearly
mentioning the fact of revocation of the said Power of Attorney which operates
as the notice to the Public.This is necessary, because registered instrument
operates as notice while unregistered document does not.
Power of Attorney executed jointly:
Where
several persons execute Power of Attorney jointly appointing a person as their Power
of Attorney Holder/Agent, the act of revocation of Power of Attorney by one of
the Principals is void in the absence of the consent of others joint principals. However, if the Power of Attorney is executed jointly and
severally, revocation by one Principal is sufficient for termination of the
same. On the other hand, if Power of Attorney is executed in favour of two
persons jointly and if of them dies, the Survivor alone cannot exercise the Authority
under the Power of Attorney.
Notice:
A reasonable
notice must be given before revocation of Power of Attorney for the reason that
both the parties must be aware about the subsistence or otherwise of the Power
of Attorney. If the party, who revokes the Power of Attorney fails to issue notice to the other party then any damage that may subsequently be caused on
account of this will have to be made good by the person who failed to give
notice.
However,
reasonable notice may differ from one instrument to the other which can be
ascertained from the recitals in the instrument. Revocation of Power of Attorney
may be implied or express. If it is expressed, necessary notice has to be given
conveying the intention of revocation of the Power of Attorney to the other
which may not be necessary if it is implied.
Exceptions for revocation of Power of Attorney:
Though
Principal has got discretionary Powers to revoke the Power of Attorney, there
are certain exceptions which restrain the Principal from revocation, which are
explained below:
1.When the Power of Attorney
Holder himself has an interest in the property, which forms the subject matter
of the Power of Attorney. In such cases, the same cannot be revoked by the
Principal alone without obtaining consent from the Power of Attorney Holder.
2.When the Power of Attorney
Holder has partly exercised the act for which the Principal has authorised, Authority
as regards the acts already exercised cannot be revoked.
3.When the Power of Attorney
is given for due consideration and forms part of the transaction.
Power of Attorney
by Firm:
The execution of Power of Attorney by a firm for exercising
certain acts on behalf of the firm, which includes purchase or sale of the
immovable property, would get terminated on the dissolution of partnership
firm.
Two
persons appointed jointly:
If the Authority
is given for two or more persons to act jointly or severally, exercise of the
act by either of the Power of Attorney Holders is sufficient. However, in cases
where Authority is given for two or more persons to act jointly and on the
death of one of them, the Authority cannot be acted upon by the surviving Power
of Attorney Holder.
Power of Attorney
is the most extensively used document being executed by the Owner due to his
inability to perform many acts. However, the required procedure also has to be
followed for termination of the same. Thus, before proceedings to negotiate for
sale or purchase of the property and if either of the parties for the
negotiations are being represented by their GPA Holder it is very important to
investigate the subsistence of the GPA which depends upon various factors.
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