Power of Attorney
H.G. Vijaykumar – Advocate (High court)
One of the fundamental and important principals of modern management system is ‘Delegation of Authority’ every one of us, be it an individual, sole proprietorship concern, partnership firm, private limited company, public limited company or any other form of organization or person or entity can always delegate our powers to some one for execution of any work. The legal terminology used for the documentation with regard to such delegation is ‘Power of Attorney’. The power can be conferred specifically or generally, acid test to decide the type is the subject matter, restriction and powers conferred therein.
‘POA’ as it is usually termed is executed in the form of a deep poll, i.e. A unilateral document, describing the executant in first person.
POA is revocable unless it is specifically irrevocable or
When revoked by principal,
Death of principal,
Unsound mind of principal,
Business of agency comes to an end,
Principal is adjudged insolvent.
POA can be terminated by operation of law when :
Partnership firm dissolves
It is compulsory to affix photograph and left hand thumb impression of the person giving the powers on the first page of POA and photograph and left hand thumb impression of the attorney holder on the last page of POA. In case of females the thumb impression should be of the right hand. It is always advisable to sign on every page of POA as well as wherever any changes, alterations are made in the POA.
When a person holding a power of attorney executes a sale deed and presents it for registration, the Registrar must satisfy himself whether the POA is in the form, and authenticated in the manner, required by Sec. 32 of Indian Registration Act, 1908 Where POA is not authenticated the registration of sale deed can not be said to be on presentation by a duly constituted agent. The defect is fatal and makes the registration invalid (A.P. HIGH COURT SARDAR SINGH V. SETH PISSUMAL HARBHAGWANDAS BANKER)
A Power of Attorney is recognizable for presentation of a document executed by a person on behalf himself and another (Section 32 of The Registration Act). But, for a valid POA to be recognized in should be executed and authenticated as follows :
WHERE PRINCIPAL AT THE TIME OF EXECUTING THE POA RESIEDS IN INDIA
EXCUTED BEFORE AND AUTHENTICATED BY
Where the Registration act is applicable Registrar or sub Registrar within whose district or sub district the principals resides.
Where the registration act is not applicable Magistrate
Where Principal at the time of executing the POA does not resides in India
Notary Public/Court/Judge/Magistrate/Indian consul/vice consul/representative of central government
The courts in India will be entitled to presume the existence of the document and its validity, If POA executed abroad complies the following requirements:
It is executed before a judge in foreign country.
It is duly, authenticated by the judge of that country.
The signatures of the officials has to be attested by the office of Indian embassy (such attestation is equivalent to registered POA before the Sub Registrar of Assurances in India)
The POA has to be duly stamped within three months after it has been first received in India.
Usually a POA need not be registered under ‘The Registration Act’. A duly notarized POA on a stamp paper is sufficient to show its validity. But, a Power of Attorney specifically for presenting a document for registration must be itself registered under the provisions of Section 32 and 33 of ‘The Evidence Act, 1872’.
There is no limit as to the persons by whom a power of attorney can be executed jointly and the number of persons in whose favor it can be executed, however stamp duty increases in proportion to the number of doness.
Stamp duty is chargeable according to the number of persons in whose favor it is executed.
Where POA is executed in favor of persons who are partners of a firm, they will be considered as one person.
A POA authorizing the donee to sell an immovable Property and for consideration is required to be fully stamped as a conveyance but need not be registered (article 48 (f) of Bombay Stamp Act).
A POA can be renounced at any time by either party at their own option.
Trustees or persons holding property in representative capacity can not delegate their powers by general or special POA.
POA is categorized depending upon the incidence of stamp duty theron. The following are the categories of POA :
Special POA (STAMP DUTY OF RS. 100/-):
1.Executed solely for the purpose of procuring the registration of one or more documents in relation to a single transaction or for admitting execution of one or more such documents.
2.For suits or proceedings under the presidency small causes court act, 1882.
3.For authorizing one or more person to act in a single transaction (other than 2).
General POA :
4.Authorizing one person to act in more than one transaction or generally. (Stamp duty thereon is Rs. 100/-)
5.Authorizing more than one person to act in single or more transaction jointly and severally or generally. (Stamp duty thereon is Rs. 100/-)
6.For consideration and authorizing to sell my immovable property. Stamp duty shall be levied as on conveyance, and determined on the market value of the property.
7.Power given by promoter to a builder by a development agreement along with a POA for construction of building on flat ownership scheme, such a POA attracts advalorem stamp duty.
8.Other than the above.
For authorizing one or more person to act in a single transaction (other than 2).
General POA :
Power of Attorney