Power of Attorney

What is a Power of Attorney:

A power of Attorney is written instrument executed by a person authorizing the person named therein to do some specified acts on behalf of the executor, such acts which otherwise could be done by executor only. The Person who gives the power/authority is called the Donor or principal and to whom the power is given is called the Donee or the Attorney. The Said Attorney acts as an agent of the principal. A power of attorney attracts various provisions of the Indian stamp Act, power of attorney act, registration act, Indian contract act, Indian partnership act and the Indian Evidence Act.

Definition of Power of Attorney:

According to section 1A of Power of Attorney Act, 'A Power of Attorney' includes any instruments empowering a specified person to act for and in the name of the person executing it”. The Power of Attorney Act 1882 has five sections only and provisions of Indian Contract Act Chapter X dealing with Agency are applicable to power of Attorneys.

Section 182 of Indian Contract Act defines agent as a person employed to do any dealings with the third parties.

The person for whom such act is done or so represented is called principal. The person who is executing the power of Attorney is called principal or the executant and the person to whom power is granted is called GPA holder or beneficiary. Both the principal and agent should be of sound mind and majors.

The relation between the donor and Donee is one of principal and agent which has its genesis in a contract.

Power of Attorney are of 2 types:

General and Special:

A general POA authorizes the Attorney to act on behalf of his principal in all matters of a particular nature, or generally in respect of particular business. A special POA authorizes the attorney to represent his principal only in respect of some particular specified acts mentioned in the document so executed in that behalf.

Nature and Extent of authority of the attorney:

Section 188 of the Indian Contract Act, 1872 provided that an agent having an authority to do an act is deemed to have authority to do every lawful thing, which is necessary in order to do such act.

Section 237 of the Indian Contract Act 1872 provides that when an agent without authority has done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts, obligations, if the principal has by his words or conduct induced such third persons o believe that such acts and obligations were within the scope of the agent's authority.

Interpretations of Terms of Powers which are set out in the instrument:

The nature of powers which are conferred under the instrument of power of Attorney are always strictly construe that is to say they are construed as giving only such authority as they confer expressly or by necessary implication. The following are the most important rules of construction.

Duration of Granted Power:

A general power of Attorney remains n force unless expressly revoked or determined by the death of either of the Party. A special power of attorney will be in force until the specified act is not completed. Duration of the power, will depend upon the type of the attorney or there may be a fixed period of power granted by the principal which must be included in the deed.

Purposes for which POA may be executed.

The list states herein is only an illustration under which the POA may be executed (a) Execution of sale deed (b) presenting documents before registering authorities (c) conducting/ representing in court/Tribunals/any other legal proceeding before any public authority (d) conducting businesses (e) to receive Rent, etc.

Both Civil And Criminal Proceedings May Be Instituted And Prosecuted Through Power Of Attorney.

However, it must bear in mind that the concerned legal proceedings must be instituted in the name of principal only for the power of attorney holder is merely the agent of the principal. In so far as criminal complaints are concerned which are filed before the magistrate court u/s 200 of crpc, 1973, if the power of attorney holder is volunteering to be examined before the magistrates court u/s 200 then in the body of the complaint it must set out that the power of attorney Holder is personally aware of the transaction in question for which the present complaint is filed. In so far filing/giving of evidence and deposing on behalf of principal is concerned, the power of attorney cannot depose for the principal for the acts done by the principal nor can be cross-examined on those facts which are to the personal knowledge of the principal.

Section 85 of the Indian evidence act 1872 presumption:

A perusal of section 85of the Indian evidence act 1872 shows that the court must presume that a POA duly authenticated by a public notary or any court Indian consul or representative or the central government was validly executed and authenticated.

Registration of POA

A POA is a document within the meaning of section 17 of the Indian Registration Act 1908, which provides certain kinds of documents must be registered before the competent registrar to get its validity and sanctity in the eyes of law. Therefore, all POA which falls within the subject of section 17 of Indian Registration Act 1908 would required to be registered failing which they are not valid.