General power of attorney - validity and admissibility
M.Chandra shekar
(Querist) 06 January 2014
This query is : Resolved
Respected Experts,
A GPA was executed to take care of the property and sign joint development agreement.
Though, the word ACCEPTOR is typed in the GPA, the acceptor has not signed and it has not been authenticated by witnesses.
The Notary has signed and put his seal as admitted.
Is such a GPA Valid?
Is it valid as per section 85 of Indian evidence Act?
Could the aforesaid document be accepted and admitted as documentary evidence in the Court?
Section 85 of Indian Evidence Act reads thus:
The Court shall presume that every document purporting to be a Power of Attorney, and to have been executed before, authenticated by, notary public, or any Court, judge, Magistrate, Indian Consul, or Vice Consul, or representative of the Central Government, was so executed and authenticated.
Need clarification.
Devajyoti Barman
(Expert) 06 January 2014
No, without signing by the constituted by way of acceptance, the GPA is not valid at all. The requirement of signature of witnesses is however optional.
M.Chandra shekar
(Querist) 06 January 2014
Dear Sir,
Thanks.
I have opined that without the attorney or the acceptors signature, the GPA is not VALID. But, my learned friend thinks, it is not mandatory or required.
The subject is in Bangalore.
Warm Regards,
Dr J C Vashista
(Expert) 07 January 2014
Since the GPA is an authority granted by the executant to the attorney and the signature of the executant has been attested the GPA is a valid document and admissible in evidence without being signed/accepted by the attorney.
malipeddi jaggarao
(Expert) 07 January 2014
Whether GPA is valid or not - It is valid as the expert Dr Vashista explained above.
It is for the attorney either to accept it and act upon or reject it or keep quite.
Devajyoti Barman
(Expert) 07 January 2014
If the GPA is bipartite then without the signature of attorney by way if acceptance it is not valid at all.
However if the same is one sided document appointing some person as attorney then the attorney need not sign and the document remains valid.
So in other words on format of the GPA its validity depends.
If in your documents, the Attorney is made a party but he has not put his signature then it is not valid.
M.Chandra shekar
(Querist) 07 January 2014
Dear Sir/s
Thanks for your valuable opinion.
Regards
Rajendra K Goyal
(Expert) 07 January 2014
Agree with the expert Devajyoti Barman ji. depends upon the document drafting.
ajay sethi
(Expert) 07 January 2014
agree with Mr burman
Advocate. Arunagiri
(Expert) 07 January 2014
1. Is such a GPA Valid?
Invalid.
2. Is it valid as per section 85 of Indian evidence Act?
It can be a piece of evidence, but not as GPA.
3. Could the aforesaid document be accepted and admitted as documentary evidence in the Court?
refer 2 above.
M.Chandra shekar
(Querist) 07 January 2014
Dear Sir/s
Thanks for all valuable remarks and opinions.
Warm Regards to all
Anirudh
(Expert) 07 January 2014
Unlike the case of Indenture where both the parties need to sign, Power of Attorney is a Deed Poll and only the grantor of the Power has to sign. THERE IS ABSOLUTELY NO REQUIREMENT THAT THE PERSON TO WHOM THE POWER IS GRANTED HAS TO SIGN AS A PROOF OF ACCEPTANCE.
It is not at all correct to say that whether the Acceptor has to sign or not would depend upon the wordings in the Power of Attorney. There is no such legal requirement at all as far as Power of Attorney is concerned.
In view of the above, the GPA executed to take care of the property and sign joint development agreement, without the signature of the person to whom the power has been granted, is perfectly VALID, and is admissible in evidence.
Only the views of Dr. J.C.Vashishta and Mr. M.Jaggarao, are quite correct.
Advocate. Arunagiri
(Expert) 08 January 2014
Even if the document is signed only by the witnesses even without the the signature of the principal, It is admissible in evidence,
In this case, the agent's name is typed but not signed, so it is incomplete.
But, the GPA without the agent's signature, is incomplete and not valid.
Anirudh
(Expert) 09 January 2014
Dear Mr. Arunagiri,
Can you please give either the legal provision(s) or court decisions to support your view.
M.Chandra shekar
(Querist) 09 January 2014
Dear Sir/s,
Thanks to all the experts for their valuable inputs.
Warm Regards
DEFENSE ADVOCATE.-firmaction@g
(Expert) 09 January 2014
It all will depend where the POA is being used and who is disputing it.
So apart from other arguments any POA of property above one hundred unless registered is invalid.
Regarding section 45 of evidence act it is presumption only so same can be rebutted.
Without the signatures of witnesses it can always be disputed how the notary identified the person.
Advocate. Arunagiri
(Expert) 09 January 2014
Mr.Anirudh,
The querist says that the name of the agent is typed as Acceptor, but he has not signed.
For every offer there must an acceptance. Without any any acceptance, the contract is not complete.
Please see S.4 and 7 of the Contracts Act.
Dr J C Vashista
(Expert) 10 January 2014
GPA is governed by the provisions of Power of Attorney act and not The Contracts Act.
Anirudh
(Expert) 10 January 2014
Dear Mr. Arunagiri,
If you are trying to invoke contract act (which is not clearly applicable in this case as rightly pointed out by Dr. Vashista), WHAT IS THE CONSIDERATION in this case?
Anirudh
(Expert) 10 January 2014
I am sorry, I find that some of the experts are not able to either cite the legal provision or case laws in support of their answers.
Then what is the use of such answers? (Whether they are really answers, in the first place?)
prabhakar singh
(Expert) 10 January 2014
The role of Contract Act is every where to determine CAPACITIES OF THE DONOR AS WELL AS OF DONEE TO ACT UPON,MAJORS OF SOUND MIND AND NOT DECLARED INSOLVENTS BOTH OF THEM SHOULD BE.
DONEE MAY ACT GRATUITOUSLY ALSO.
DONEE DOES NOT NEED TO SIGN.
NOTARY WHO HAS NOTARIZED IS WITNESS OF THE DEED FOR WHICH PRESUMPTION OF CORRECTNESS IS RAISED.
EVERY PRESUMPTION IS REBUTTABLE IS AN OTHER MATTER.
DEED IN HAND IS VALID ON FACTS TOLD.
Devajyoti Barman
(Expert) 10 January 2014
It is wrong that GPA is not governed by contract act.
The GPA is nothing but a contract of Agency well governed by Chapter-X , section 182 -238 of Indian Contract Act. Kindly refer to those sections.
I repeat in bipartite agreement the contract of agency is not valid if the agent does not accept the agency.
M.Chandra shekar
(Querist) 10 January 2014
Dear Sir,
Thanks, once again for the views.
Though, the GPA may be valid and still due to its incompleteness could be rebuttable.
Warm Regards,
Advocate. Arunagiri
(Expert) 10 January 2014
Mr.Anirudh,
For a GPA consideration is not necessary. Even without consideration GPA is valid.
Prima facie this GPA refered by the querist is invalid without the signature of the Agent.
Please see the Contract Act is a parent act for many Acts, which says about the written agreements between the parties.
Anirudh
(Expert) 11 January 2014
None of the Sections of the Contract Act deals with whether the GPA has to be accepted by the Attorney or not. Therefore, the those sections do not answer the question at all.
In the instant query, A GPA was executed to take care of the property and sign joint development agreement. Therefore it is not a bipartisan agreement at all.
Some Expert said that "Even if the document is signed only by the witnesses even without the the signature of the principal, It is admissible in evidence."
But inspite of being requested, neither any legal provision being cited, nor any decision of the Court of law is being indicated to support the above proposition.
I feel less than confident in accepting such answers when the same is not being backed by legal support, especially when specifically asked for.
Advocate. Arunagiri
(Expert) 11 January 2014
Mr.Anirudh,
Please see the attached citation, which deals with GPA , Contracts Act, Incomplete document etc.
as this query is resolved I am not able to attach the file, however see the url
http://www.indiankanoon.org/doc/387949/
Anirudh
(Expert) 11 January 2014
Dear Mr. Arunagiri,
I went through the complete judgment In Re: Bengal Silk Mills Co. Ltd. vs Unknown on 18 July, 1941 as per the link provided by you.
The said judgment does not in any place say that ""Even if the document is signed only by the witnesses even without the the signature of the principal, It is admissible in evidence."
Therefore that judgement does not at all support the view expressed by you.
Advocate. Arunagiri
(Expert) 11 January 2014
Mr.Anirudh,
I have addressed all of your points. Once again I say, validity of the agreement is different from, admissable evidence. Even if it is not signed by any party, it is a evidence.
If you want any further clarification on the legal issue, please give me the points for which you expect reply from me. I am ready to reply.
I think we may continue this discussion in our personal chat. This thread is meant for the public / common man. In case of arguments between the experts, let us have it in personally. Once you get convinced or not convinced you can give your opinion in the same thread.
I trust, you will agree with me at least in this point.
advocatearunagiri@gmail.com
T. Kalaiselvan, Advocate
(Expert) 11 January 2014
U/s 4 of Indian Contract Act, the communication of an acceptance is complete so as to be out of the power of the acceptor;
as against the acceptor, when it comes to the, knowledge, of the proposer.
Sec 7 says that acceptance must be absolute
in order to convert a proposal into promise
(1) be absolute and unqualified;
(2) be expressed in Some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but if he fails to do so, he accepts the acceptance.
Thus it is evident from the cited provisions, that the same is not acceptable for GPA as was referred by Advocate Arunagiri;
I agree with Anirudh's opinion that without the acceptor signing the GPA also the same is valid.
Further as somebody referred sec 182 to 238 for clarification; here the agent defined is not an attorney agent hence this is not applicable for GPA or any attorney deed, further the authority of an agent may be expressed or implied. I agree with Dr. Vashist's opinion that GPA is governed by the provisions of Power of Attorney act and not The Contracts Act.
Devajyoti Barman
(Expert) 12 January 2014
Dear Mr Kalaiselvan would you explain how sections 182-238 contract does not apply here when it deals with contract of Agency and Attorney is nothing but an agent.
