POWER OF ATTORNEY

Introduction:

In the Transfer of Property Act, there is a maxim that is used i.e. Nemo dat quod non habet, which means that no one can confer a better title than what he has. However, in certain instances, the person may give certain powers to another trusted person in case he is not able to take due care of that particular property- whether movable or immovable.

What Is The Power Of Attorney?

In layman’s language, a power of attorney is a document that allows the principal person to appoint another person to serve as their agent, conferring certain rights and duties on him to function on his behalf.  According to the Power of Attorney Act, of 1882, Section 1A lays down the definition of Power of Attorney as “includes any instrument empowering a specified person to act for and in the name of the person executing it.” This Act gives two terminologies for the giver and receiver of power of Attorney donee and donor respectively. They may be known as principals and agents as well.

In Manika Majumder and Ors v. Dipak Kumar Saha (dead) through Lrs and Ors (2023 Livelaw (SC) 29, the court held that when a sale deed is executed on the strength of a deed of power of attorney in the suit is fatal to the case of the plaintiff.

Types Of POA’s

  1. General power of Attorney- this type of power of attorney gives the agent the right to perform any task on one’s behalf. It is much wider than the Special power of attorney.
  2. Special power of Attorney- this type of power gives agents the power to perform specific tasks. This is narrower in comparison to General power of attorney.

Registration Of Power Of Attorney:

Neither the Registration Act, of 1908 nor the Power of Attorney Act, of 1882, specifically mentions that registration of power of attorney is compulsory or mandatory. However, registration of power of attorney which gives power to the agent to dispose of a property through a sale deed or conveyance etc. needs to be mandatorily registered. Under the Indian Evidence Act, of 1872, if any person executes the power of attorney in front of a Notary Public, or any court or representative of the central government etc, then the court shall presume that the POA is executed and authenticated. Instruments about power of attorney for the sale of immovable property need to be compulsorily registered. The registration should be done at the office of the sub-registrar within whose jurisdiction the persons giving the power reside.

Can A Property Be Sold Using Power Of Attorney?

If a power of attorney mentions that the agent has the right to sell or purchase the property, the agent still has to take the signatures of the principal. If the power of attorney does not specify the right to sell or purchase or it is limited in its power, then the act of selling will not be valid.

In Suraj Lamp Industries v. State of Haryana (2009) 7 SCC 363, the court held that a power of attorney is not an instrument of transfer regarding any right, title or interest in the immovable property. Hence a property can be legally transferred only through a registered sale deed.

In Ghanshyam v. Yogendra Rathi , the court held that will or general power of attorney cannot confer title in immovable property.

In Mita India Pvt Ltd v. Mahendra Jain, the court held that the power of attorney holder cannot sub-delegate his power to another person but the same can be delegated when there is a specific clause permitting sub-delegation.

In Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, the court held that the power to sell is not inferred from the document of power of attorney which has to be construed strictly. The agent will have the power to sell the property only if the document expressly authorises him/her (1) to execute a sale deed (ii) to present it for registration and (iii) to admit the execution before the registering authority. 

In AC Narayanan v. State of Maharastra and Another,  The court laid down the principles of power of attorney: 

  1. Filing of the complaint under Section 138 of the Negotiable Instruments Act, 18881 through the power of attorney holder is perfectly legal provided that he has due knowledge about the transaction in question. 
  2. Power of attorney holder can dispose and verify on oath to prove the contents of the complaint if he has witnessed the transaction 
  3. The power of attorney holder can depose and verify both to prove the contents of the complaint if he has witnessed the transaction 
  4. The complaint filed through the power of attorney holder must contain an assertion/ that he knew about the transactions in question. 
  5. Functions under general power of attorney cannot be delegated to another person without a specific clause permitting the same in the general power of attorney 
  6. The affidavits of the complainant, his witnesses or his power of attorney holder are permissible and sufficient for taking cognizance of the complaint, and 
  7. The complaint by the power of attorney holder on behalf of the original complainant is maintainable though he cannot give a complaint in his name. 

In Shakeel Ahmed V. Syed Akhlaq Hussain, the SC held that no title could be transferred with respect to immovable properties on the basis of an agreement to sell or on the basis of a General Power of Attorney. 

How can an NRI apply for power of Attorney: 

There are two major processes for this:

  1. Legalisation: Through this, the signature of the judge, before whom the Power of attorney is signed, has to be authenticated by the representative of the Indian Embassy. Then the Power of attorney has to be stamped in India within 3 months from the date of receipt. 
  2. Apostillisation: Apostille is a certificate that confirms and verifies the signature or the seal of the person who had authenticated the document, wit
  3. h compliance of the Indian Registration Act, of 1908. 

How To Revoke A Power Of Attorney? 

The Power of Attorney can be cancelled or revoked at any time, as long as the grantor and the donee are fit and competent. The power of attorney can only be revocated in writing and not orally. If a power of attorney was signed at the recorder’s office, the revocation letter should also be revoked at the same premise. 

Conclusion: 

Now and then the SC and various other HCs have stressed the fact that the Power of Attorney cannot act as a sale agreement and the buyer has to ensure that he is looking into correct and authenticated documents which establish the right of the done to sell of the property. 

If the power of attorney specifically mentions that the donee has the power to sell the property, even then the buyer has to take the permission and approval of the seller.

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