Procedure for the execution of power of attorney

Power of Attorney is most widely used document in property transactions. This is because many acts, transactions have to be carried out simultaneously and the same persons cannot be present at different place at the same time. Moreover, timing is very important in property transactions.

Power of Attorney in simple terms means a person authorizing another person to do acts or certain acts on his behalf.

The Power of Attorney Act 1882, defines power of attorney "includes any instrument empowering a specified person to act for and in the name of the person executing it".

The Karnataka Stamp Act 1957 defines power of Attorney as "includes any instrument (not chargeable with fee under the law relating to court fees for the time being in force) empowering a specified person to act for and in the name of the person executing it".

The Power of Attorney Act 1882 has 5 sections, only and provisions of Indian Contract Act under Chapter X dealing with Agency are applicable to Power of Attorneys. Section 182 of Indian Contract Act defines agent as "an agent is a person employed to do any dealings with the third persons". 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 donor and donee is one of principal and agent, which has its genesis in a contract.

There are two kinds of powers of attorney

a. General Power of Attorney.
b. Specific Power of Attorney.

The general power of attorney gives wide powers to the agent to do various things on behalf of principal as detailed in deed and not confined to any specific act or acts relating to a specific subject.

Specific power of attorney is given in respect of single specified transaction like selling of particular property. Once the said particular act is completed, the special power of attorney naturally gets revoked or the powers of the holder gets exhausted.

Though power of attorney is a contract of agency, there are certain differences between agency and power of attorney. Power of attorney creates special power of agency, which entitles the holder to use principal's name in the transaction entered into. Where as an agent who is not a power of attorney holder is not entitled to for such special powers, power of attorney holder acts in the name of his donor.

Stamp duty

Power of attorney attracts stamp duty which varies from state to state. Article 41 of the Karnataka Stamp Act prescribes the stamp duty as follows:

(d) when authorizing more than five persons but not more than ten persons to act jointly and severally in more than one transaction or generally; (f) in any other case. N.B.- The term "Registration" includes operation incidental to registration under the Registration Act, 1908 Explanation- For the purposes of this Article more persons than one when belonging to the same firm, shall be deemed to be one person

Attestation

The attestation of Power of attorney is not compulsory but in order to avoid any disputes, and to establish the proof of genuineness it is advisable to get the document attested by two witnesses.

Registration

The registration of document is not compulsory, when it is to be registered it shall be presented at the sub registrar's office who has jurisdiction over the immovable property, referred in the document. However in other cases, the document may be presented for registration either in the office of the sub registrar in whose sub district, the document was executed or in any other sub registrar office in the state as the executants desire.

Notarizing

Notarizing the power of attorney is as good as registration. Section 85 of Indian evidence Act applies to the documents authenticated by the notaries. The court shall presume that every document purporting to be power of attorney and have been executed before and authenticated by notary public or any court, judge, magistrate, Indian consul or vice consul or representative of Central Government shall be presumed to be properly executed and would be a conclusive proof.

Each page of the document notarized should bear the official stamp of the notary disclosing his registration number, jurisdiction and also signature of the notary public. Appropriate notary stamp has to be affixed.

Documents executed outside India

Any power of attorney executed outside India needs authentication, which means it has to be executed in the presence of certain designated officers. As per section 85 of Indian Evidence Act the following persons are empowered or authenticate the documents;

1. Notary public
2. Any court of Judge or Magistrate
3. Indian consul or vice consul.
4. Representative of the Central Government

Section 85 of the Indian Evidence Act applies equally to the documents authenticated by notary public of other countries. So any power of attorney executed outside India shall be authenticated by notary public of such country or Indian consul, vice consul or by representative of Central Government. Such documents need to be stamped within three months from the date of receipt in India, to be payable at the District Registrar's office as per sections 31 & 32 of Karnataka Stamp Act 1957.