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S. Singh (partner)     15 October 2013

Is this irrevocable poa even after death of doner

Dear Advocate Friends,

are the followings POA irrevoacable in nature even after the death of donor :-  

 Case (i) A (donor including his legal heirs ) gives power of attorney to B (Donee including his legal heirs) for the sale of his(A)  immovable property. A (donor) indicates that after the sale of property, the B (done including his legal heirs) shall take all the sale proceeds and use freely as per his (B) wishes and A (donor including his legal successor) has no right on such sale proceeds.

  Note:- for executing this POA, A (donor) does not take any consideration for immovable property from B(donee)

 

Case (ii) A (donor including his legal heirs) gives power of attorney to B (Donee including his legal heirs) for the sale of his (A) immovable property. A (donor) indicates that after the sale of property, the B (done including his legal heirs) shall take all the sale proceeds and use it for charitable purposes / environmental upliftment) and A (donor including his legal successor) has no right on such sale proceeds.

Note:- for executing this POA, A (donor) does not take any consideration for immovable property from B (donee)

 

Please let me know that above power of attorney are irrevocable (even on death of donor) or not. What more additions to be done to make it more irrevocable.   

S. Singh



Learning

 5 Replies

minesh shah (proprietor)     15 October 2013

DEAR,

IN BOTH THE CASES THE POA STANDS VALID AS IT IS IRREVOCABLE AND SO A HAVE GIVEN IRREVOCABLE POWER TO B. WHICH CANNOT BE CANCEL UNTIL AND UNLESS THERE IS ANY PROVISION IN THE POA ITSELF. POA CAN BE WITHOUT CONSIDERATION. 

NOTE - THE POA MUST BE REGISTERED.


(Guest)

As per my understanding of the law there cannot be a Sale without consideration. Therefore, the principles of agency coupled with interest shall not apply. Such Powers of Attorneys in absence of consideration are revocable and can be unilaterally withdrawn.

1 Like

S. Singh (partner)     17 October 2013

thanks for opinion sir,

Further, what may be the consideration. Can it be as low as Rs. 1/- or it should be fair market value?

What is the process of registering irrevocable power of attorney. Shall the registration charges be that much as is required to register the sale of property. I think, registration charges shall be considerably low as it is not a sale of property   

T. Kalaiselvan, Advocate (Advocate)     17 October 2013

As far as I understand a POA stands cancelled after the death of Principal, so if there was any transaction by the POA agent subsequent to the death of the Principal, it is invalid by law.  Check up the details available in the recital of the said deed, see how it has been drafted and what are its effect and proceed after fully clarifying the entire issues involved.

T. Kalaiselvan, Advocate (Advocate)     18 October 2013

A further clarification on the subject is that there is no word called donor or donee in a Power of Attorney Deed.  The person(s) executing a POA deed in favor of another person(s) is called a Principal(s) and the other one is called his Agent(s).  Why I am insisting on this definition is that a principal can appoint his attorney/agent for some specific or general purpose to perform certain acts on behalf of the principal during his absence as if the principal himself himself has done it.  This will remain effective only during the life time of the principal and more on this is that the principal can cancel/revoke the powers given to his agent any time during his life time.  Whatsoever, the Principal(s) cannot give power to an agent/attorney  on behalf of his legal heirs/successors without having been authorised to do so by the said heirs/successors and also he cannot give powers to an unknown person, here the unknown person is the legal heir/successor of the agent/attorney.  In the event of death of a principal, the POA deed stands automatically cancelled while the other principals have to execute a fresh POA deed favoring the existing Power Agent/Attorney.  Thus the donor/donee word donot find place in a power of attorney deed, hence I think your query in this regard is actually different from what your contents denote, please confirm.

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