VALIDITY OF POWER OF ATTORNY
KAMARAJ BHARATHY G
(Querist) 02 January 2009
This query is : Resolved
A POWER OF ATTORNY DEED WAS MADE IN 2000. THE PRINICPAL EXPIRED IN 2004. POWER AGENT HAS SOLD THE POWER MENTIONED PROPERTY IN 2008. NOW MY QUESTIONS ARE
1. AFTER DEDATH OF PRINCIPAL WHAT IS THE VALIDITY OF POWER DEED?
2. THE POWER AGENT CAN MAKE SALE THE POWER PROPERTY AFTER THE DEATH OF THE PRINCIPAL?
3. IF THE POWER AGENT SOLD THE PROPERTY BY SUPPRESSION OF THE DEATH OF PRINCIPAL, THE SALE IS VALIED?
PALNITKAR V.V.
(Expert) 02 January 2009
The power of attorney comes to an end after the death of the author. The sale transaction would thus become illegal.
PALNITKAR V.V.
(Expert) 02 January 2009
The power of attorney comes to an end after the death of the author. The sale transaction would thus become illegal.
PALNITKAR V.V.
(Expert) 02 January 2009
The power of attorney comes to an end after the death of the author. The sale transaction would thus become illegal.
PALNITKAR V.V.
(Expert) 02 January 2009
The power of attorney comes to an end after the death of the author. The sale transaction would thus become illegal.
AEJAZ AHMED
(Expert) 03 January 2009
HE POWERS OF ATTORNEY ACT 1882
Table of Content
Section Details
Preamble
Section 1 Short title
Section 1A Definition
Section 2 Execution under power-of-attorney
Section 3 Payment by attorney under power without notice of death, etc., good.
Section 4 Deposit of original instruments creating powers-of-attorney
Section 5 Power-of-attorney of married women
Section 6 Repealed by Act XII of 1891
THE POWERS OF ATTORNEY ACT 1882
(Act No. 7 of 1882)
(Passed by the Governor General of India in Council)
(Received the assent of the Governor General on 24th February, 1882)
An Act to amend the law relating to Powers-of-Attorney
Preamble
For the purpose of amending the law relating to powers of attorney
1. Short title —
This Act may be called the Powers-of-Attorney Act, 1882.
Local extent, commencement —It applies to the whole of India (except the State of Jammu and Kashmir) and it shall come into force on the first day of May, 1882.
COMMENTS
According to Osborn's Concise Law Dictionary, 7th Edn., a 'power-of-attorney' means a formal instrument by which one person empowers another to represent him, or act in his stead, for certain purposes, usually in the form of a deed poll, and attested by two witnesses. The donor of the power is called the principal or constituent; the donee is called the attorney or agent. The latter is not entitled to exercise his powers for his own benefit e.g. draw cheques on the former's account to pay his own debts.
1A. Definition —
In this Act, "Powers-of-Attorney" include any instrument empowering a specified person to act for and in the name of the person executing it.
2. Execution under power-of-attorney —
The donee of a power-of-attorney may, if he thinks fit, execute or do any 6[xxx] instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by authority of the donor of the power; and every 6[xxx] instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.
This section applies to power-of-attorney created by instruments executed either before or after this Act comes into force.
COMMENTS
(i) A holder of a power-of-attorney or an agent can not go beyond the principal. If it is found that there is a serious doubt as to whether the principal may have authorised in a 'normal state of mental frame' or mind which would give him/her independent disposition and thinking power so as to exercise control over the agent, then such 'power-of-attorney' becomes worthless and null & void from the legal angle. [Mahendra Pratap Singh & Anr. v. Smt. Padam Kumari Devi, A.I.R. 1993 All. 143].
(ii) In circumstances, when the principal has become old, weak, mentally infirm/incapable, and not in a position to have independent disposition and thinking power, continuing to act on such power of attorney will be unethical & immoral on the part of the agent and would amount to fraud, cheating, misappropriation & criminal breach of trust. It would cease to have validity in law. [Mahendra Pratap Singh & Anr. v. Smt. Padam Kumari Devi, A.I.R. 1993 All. 143].
(iii) By virtue of the principal being not in a position to reflect or depose on the validity or bona fide of a power of attorney before the court of law due to old age, weakness, mental infirmity or incapacity, the credibility of such an instrument becomes worthless, in the eyes of law. [Mahendra Pratap Singh & Anr. v. Smt. Padam Kumari Devi, A.I.R. 1993 All. 143].
(iv) A power of attorney holder cannot give evidence on behalf of the Principal. According to Order 32, Rule 15 of C.P.C. the general principals relating to a suit by or against a minor would also apply to persons of unsound mind or mentally infirm in capable. In this regard, a suit on behalf of such person may be filed by the next
AEJAZ AHMED
(Expert) 03 January 2009
HE POWERS OF ATTORNEY ACT 1882
Table of Content
Section Details
Preamble
Section 1 Short title
Section 1A Definition
Section 2 Execution under power-of-attorney
Section 3 Payment by attorney under power without notice of death, etc., good.
Section 4 Deposit of original instruments creating powers-of-attorney
Section 5 Power-of-attorney of married women
Section 6 Repealed by Act XII of 1891
THE POWERS OF ATTORNEY ACT 1882
(Act No. 7 of 1882)
(Passed by the Governor General of India in Council)
(Received the assent of the Governor General on 24th February, 1882)
An Act to amend the law relating to Powers-of-Attorney
Preamble
For the purpose of amending the law relating to powers of attorney
1. Short title —
This Act may be called the Powers-of-Attorney Act, 1882.
Local extent, commencement —It applies to the whole of India (except the State of Jammu and Kashmir) and it shall come into force on the first day of May, 1882.
COMMENTS
According to Osborn's Concise Law Dictionary, 7th Edn., a 'power-of-attorney' means a formal instrument by which one person empowers another to represent him, or act in his stead, for certain purposes, usually in the form of a deed poll, and attested by two witnesses. The donor of the power is called the principal or constituent; the donee is called the attorney or agent. The latter is not entitled to exercise his powers for his own benefit e.g. draw cheques on the former's account to pay his own debts.
1A. Definition —
In this Act, "Powers-of-Attorney" include any instrument empowering a specified person to act for and in the name of the person executing it.
2. Execution under power-of-attorney —
The donee of a power-of-attorney may, if he thinks fit, execute or do any 6[xxx] instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by authority of the donor of the power; and every 6[xxx] instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.
This section applies to power-of-attorney created by instruments executed either before or after this Act comes into force.
COMMENTS
(i) A holder of a power-of-attorney or an agent can not go beyond the principal. If it is found that there is a serious doubt as to whether the principal may have authorised in a 'normal state of mental frame' or mind which would give him/her independent disposition and thinking power so as to exercise control over the agent, then such 'power-of-attorney' becomes worthless and null & void from the legal angle. [Mahendra Pratap Singh & Anr. v. Smt. Padam Kumari Devi, A.I.R. 1993 All. 143].
(ii) In circumstances, when the principal has become old, weak, mentally infirm/incapable, and not in a position to have independent disposition and thinking power, continuing to act on such power of attorney will be unethical & immoral on the part of the agent and would amount to fraud, cheating, misappropriation & criminal breach of trust. It would cease to have validity in law. [Mahendra Pratap Singh & Anr. v. Smt. Padam Kumari Devi, A.I.R. 1993 All. 143].
(iii) By virtue of the principal being not in a position to reflect or depose on the validity or bona fide of a power of attorney before the court of law due to old age, weakness, mental infirmity or incapacity, the credibility of such an instrument becomes worthless, in the eyes of law. [Mahendra Pratap Singh & Anr. v. Smt. Padam Kumari Devi, A.I.R. 1993 All. 143].
(iv) A power of attorney holder cannot give evidence on behalf of the Principal. According to Order 32, Rule 15 of C.P.C. the general principals relating to a suit by or against a minor would also apply to persons of unsound mind or mentally infirm in capable. In this regard, a suit on behalf of such person may be filed by the next
KamalNayanSaxena
(Expert) 03 January 2009
Kindly refer to Sec.2 of Powers of Attorney Act.
A power of attorney cannot go beyond the principal. But the general principle of this rule is that a principal must be in a position to make an authorisation and continue to exert his or her authority so that agent binds the principal.
Even where the principal was found to be old, feeble, weak and mentally infirm and not in a position to think independently for himself the power of attorney executed by him would become worthless. Such an agent would be committing an immoral and an unethical act by acting on a power of attorney of a principal whom he knows is mentally unsound, weak, suffers from mental infirmity and has no legal capacity to authorise. This is like continuing to act on a power of attorney of a dead man.
If the agent continues to act on the power of attorney his action will be writ large with fraud, misappropriation cheating and criminal breach of trust. The power of attorney shall be declared as null and void.
KamalNayanSaxena
(Expert) 03 January 2009
Kindly refer to Sec.2 of Powers of Attorney Act.
A power of attorney cannot go beyond the principal. But the general principle of this rule is that a principal must be in a position to make an authorisation and continue to exert his or her authority so that agent binds the principal.
Even where the principal was found to be old, feeble, weak and mentally infirm and not in a position to think independently for himself the power of attorney executed by him would become worthless. Such an agent would be committing an immoral and an unethical act by acting on a power of attorney of a principal whom he knows is mentally unsound, weak, suffers from mental infirmity and has no legal capacity to authorise. This is like continuing to act on a power of attorney of a dead man.
If the agent continues to act on the power of attorney his action will be writ large with fraud, misappropriation cheating and criminal breach of trust. The power of attorney shall be declared as null and void.
KamalNayanSaxena
(Expert) 03 January 2009
Kindly refer to Sec.2 of Powers of Attorney Act.
A power of attorney cannot go beyond the principal. But the general principle of this rule is that a principal must be in a position to make an authorisation and continue to exert his or her authority so that agent binds the principal.
Even where the principal was found to be old, feeble, weak and mentally infirm and not in a position to think independently for himself the power of attorney executed by him would become worthless. Such an agent would be committing an immoral and an unethical act by acting on a power of attorney of a principal whom he knows is mentally unsound, weak, suffers from mental infirmity and has no legal capacity to authorise. This is like continuing to act on a power of attorney of a dead man.
If the agent continues to act on the power of attorney his action will be writ large with fraud, misappropriation cheating and criminal breach of trust. The power of attorney shall be declared as null and void.
KamalNayanSaxena
(Expert) 03 January 2009
Kindly refer to Sec.2 of Powers of Attorney Act.
A power of attorney cannot go beyond the principal. But the general principle of this rule is that a principal must be in a position to make an authorisation and continue to exert his or her authority so that agent binds the principal.
Even where the principal was found to be old, feeble, weak and mentally infirm and not in a position to think independently for himself the power of attorney executed by him would become worthless. Such an agent would be committing an immoral and an unethical act by acting on a power of attorney of a principal whom he knows is mentally unsound, weak, suffers from mental infirmity and has no legal capacity to authorise. This is like continuing to act on a power of attorney of a dead man.
If the agent continues to act on the power of attorney his action will be writ large with fraud, misappropriation cheating and criminal breach of trust. The power of attorney shall be declared as null and void.
AEJAZ AHMED
(Expert) 03 January 2009
Dear Kamaraj,
Read Section 3 of the Act
AEJAZ AHMED
(Expert) 03 January 2009
DEAR KAMARAJ,
YOU CAN ALSO COPY THE ACT IN PDF FORMATE, FROM "FILES" OF THE FORUM, WHERE I SENT THE SAME.
AEJAZ AHMED
(Expert) 03 January 2009
:: POWERS OF ATTORNEY ::
PURPOSE:-
A Power of Attorney is a written document which allows you to appoint an "attorney or attorneys" to act on your behalf. It essentially gives the attorney(s) the same powers that you have to deal with your assets and your personal care. A Power of Attorney is only valid after it is signed until it is revoked or the person who gave it (the "Grantor") dies. A Power of Attorney does not operate after the Grantor dies.
FUTURE INCAPACITY : -
Powers of Attorneys are usually granted to allow the attorney(s) to make decisions on your behalf in the event you become unable to make those decisions on your own at some future time.
USE WITH CAUTION :-
Powers of Attorney are very powerful documents and should only be given after careful consideration to individuals that are completely trustworthy. It is wise to leave them in your lawyers vault so they cannot be accessed by the Attorney(s) until you want them released. It is important to understand that Powers of Attorney are capable of being used as soon as they are signed.
DOVE -TAIL WITH WILL : -
Because a Power of Attorney is effective until death (unless it is earlier revoked) and a Will is effective on and after death, it is advisable to have a Will and Powers of Attorneys.
OPERATE BEFORE AND AFTER INCAPACITY :-
A Power of Attorney can operate both before and after the incapacitation of the Grantor.
TYPES OF POWER OF ATTORNEY : -
There are two types of Powers Of Attorneys: Power of Attorney for Personal Care ("PAPC") and Powers of Attorney for Property ("PAP")
PAPC usually give the attorney power to make decisions about the personal care of the Grantor, such as health decisions, and decisions about whether the Grantor should be moved into a nursing home.
PAP usually give the attorney power to make decisions about the property and liabilities of the Grantor, such as decisions to sell a house or car, or to write cheques on the Grantor's accounts.
RESTRICTIONS : -
Powers of Attorney can be restricted as much as you like. They can be limited to a certain time period or to a certain asset. Consult with your legal advisor to understand how your power of attorney should be limited.
A. A. JOSE
(Expert) 03 January 2009
Excellent deliberations and commendable guidance indeed ! I fully endorse all above views.
A. A. JOSE
(Expert) 03 January 2009
Excellent deliberations and commendable guidance indeed ! I fully endorse all above views.
A. A. JOSE
(Expert) 03 January 2009
Excellent deliberations and commendable guidance indeed ! I fully endorse all above views.
Kiran Kumar
(Expert) 05 January 2009
replies r correct and fine but why the same replies for more than 2 times?
RAKHI BUDHIRAJA ADVOCATE
(Expert) 05 January 2009
