Advocate Selvakumar | property advocates in Bangalore | property lawyer Bangalore
Power of Attorney is one of the documents
which is being executed most extensively pertaining to the transactions
involving transfer of properties, irrespective of modes of conveyance. The main
reason being inability of the person, either the transferee or the transferor
to be present at different place at the
same time. In order to complete such transactions, in his/her absence, General
Power of Attorney is executed, authorising another person to do acts or certain
acts on his/her behalf. Such an instrument empowering a specified person to
perform such act in his absence is termed as General Power of Attorney, as
envisaged in the Power of Attorney Act 1882.
The instrument of Power of Attorney
is based on the concept of Law of Agency, wherein the Principal, i.e., the
person who executes Power of Attorney, authorizes his Agent, i.e., the person
in whose favour such Power of Attorney is executed, to do all such necessary
acts specified in the Power of Attorney on his behalf and further ratifies such
acts of the Agent and the said concept has been recognized under the statute
thereby giving legal sanctity.
Competency of the
Parties:
The following are the mandatory
requirements before executing Power of Attorney:
Majors: It is necessary that both
the Principal and the Agent must have attained the age of majority because
contract entered between two parties, wherein, either of the one is a minor, is
not recognized under Law. Hence, it is very important that both the parties
should be above 18 years of age.
Sound Mind: It is also important that both the Principal and the Agent must be
of the sound mind since the contract with the person of unsound mind does not
bind the parties to such a contract.
Types of Power of
Attorney:
There are two types of Power of
Attorney. They are:
Ø
General
Power of Attorney: General Power of Attorney gives wide power to the agent to
do various acts on behalf of the Principal, without any specifications.
Ø
Special
Power of Attorney: Special Power of Attorney is executed in
those cases wherein the agent is empowered to do such acts specified in such
Power of Attorney. In this kind of Power of Attorney, the power given to the
agent will be revoked as soon as that particular act for which the power of
attorney is executed, is performed and once such an act is completed, Power of
Attorney does not subsist.
Sub-delegation of
power:
The
general principal is that an agent can neither sub-delegate his powers to a
Sub-agent nor can appoint another power of attorney. The said principle is well
expressed in Latin maxim “Delegate non protest delegate”, which means a person
who is delegated with certain powers cannot delegate such powers to a third
person. But, section 190 of the Indian Contract Act provides certain
exceptions, wherein the agent can appoint sub-agent. However, such
sub-delegation must be done in connivance with the Principal, who has to ratify
all the acts done by the agent on his behalf. The following are the
circumstances under which Sub-delegation is permitted:
1. The nature, custom of the trade
is such that it requires the appointment of sub-agents.
2. The recitals in such power of
attorney authorizes the agent to sub-delegate his powers to another agent.
Registration and
Notarization:
Under Section 17 of the Registration Act, if
any transaction involves transfer, assignment or creation of right, title and
interest over the immovable property and the value of such property is Rs.100
or more, then registration of such documents is mandatory.
As regards execution of Power of
Attorney, if the principle assigns right, title and interest over the immovable
property in favour of the agent and authorize
the agent to execute any document on his behalf, in such case registration of
the power of attorney is preferable. However, if the agent is delegated with
the powers which does not involve any kind of assignment or transfer of interest
over the immovable property, then power of attorney notarized before Notary
Public or even before the Magistrate, is considered to be authenticate
documents.
Thus for example, if a person
executes Power of Attorney, authorising the Power of Attorney Holder to execute
sale deed on his behalf before the proper registering officer, then it is
advisable to get such power of attorney registered. On the other hand, if Power
of Attorney is executed, authorizing the power of attorney holder to prosecute
or defend the suit, then GPA can be notarized before Notary Public. However,
the Court shall presume that a power of attorney executed before and
authenticated by Notary public or any Court, Judge, Magistrate, Indian Consul
or Vice-consul or Representative of the Central Government was so executed and
authenticated. If the Power of Attorney is not signed and sealed as required
under law, it is nothing more than a waste paper.
In either of the case, each page of
the document, whether registered or notarized, has to bear official stamp of
the Sub-Registrar office or Notary Public and must disclose the registration
number, Book number and signature of the Sub-Registrar or Notary. If the same
is notarized, then, apart from the above, appropriate Notary Stamp has to be
affixed.
Outside India
Section 85 of the Indian Evidence
Act applies equally to documents authenticated by Notaries Public of other
countries. However, the same has to be done by the designated Officers. So any
power of attorney executed outside India
Stamp Duty:
Power of attorney, executed and notarized
in any country in favour of Power of Attorney Holder, residing in India India
Cancellation of
G.P.A:
Power of Attorney can be cancelled
by either of the parties to the said contract. However, the same has to be done
by giving proper notice to the other, clearly mentioning the intention of the
person to revoke the said Power of Attorney and notice to that effect has to be
given to the public. However, the Principal cannot cancel the agency after the
agent exercises his powers partially. If the power of attorney is given only
for the specific purpose and that purpose is fulfilled or if either of them
dies or becomes unsound, then such an instrument automatically gets cancelled.
Nevertheless, proper notice is a must.
If the agent himself has any
interest in the property which is the subject matter of the agency, then the
same cannot be cancelled unless the agent agrees.
Representation
of Owner:
In Bangalore
In the recent times, with the
growing boom of real estate in Bangalore
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