A Power
of Attorney means the power or authority given to a person (agent) by an
individual (principal) to act on his behalf or on behalf of a group of
individuals in business matters or any other matter.
It plays a vital role in transferring
the lawful ownership of immovable property like land, building, water source,
from one person to another. The person who holds the power is called the Power
of Attorney Holder. He is employed by the principal to take care of his
dealings with third persons.
A person competent to contract
can execute a power of attorney. He can appoint one person or several persons
to act on his behalf. Where several persons are appointed as attorneys, it is
advisable to mention as to how they will act jointly or independently. If this
is not mentioned, then they are at liberty to act jointly.
Power of Attorney, generally
speaking, is of two types. Power of Attorney for a single specific purpose is
known as "special power of attorney" and the one involving more than
one work or transaction is called "General Power of Attorney."
The duration of a special power
of attorney may be for a particular period or for an indefinite period until
the task is completed. A general power of attorney may continue to be in force
until it is revoked or by death of either party. A registered power of attorney
can be revoked by a cancellation deed.
Though, in general, a power of
attorney is revocable, it cannot be done so in matters pertaining to debt
security till the debt is cleared even though the debtor is not alive. It can
be revoked if the principal becomes of unsound mind or he is declared
insolvent. It cannot be revoked if it is made irrevocable. However it should be
registered by paying applicable stamp duty.
Power of Attorney attracts
various provisions of The Indian Stamp Act, Powers of Attorney Act,
Registration Act, The Indian Contract Act, and Indian Partnership Act, and The
Indian Evidence Act.
A power of attorney is divided
into ten categories according to the stamp duty payable.
It is significant to note that a
power of attorney by a promoter to a builder for construction of apartments
under flat ownership scheme, attracting stamp duty according to the value of
the property, has been added by an amendment to the Stamp Duty Act. In
Karnataka, presently stamp duty is 2% plus registration charges 2% for the
promoter GPA.
A power of attorney is given for
a court case, for appointing one attorney in place of another, for collection
of debts and for admitting execution, and a general power of attorney is given
for selling shares, to execute a sale deed, to prepare a layout and sell plots,
to raise money through mortgage of property, to recover rents and many other
acts.
A power of attorney need not be
registered except where an immovable property is involved. According to the
Registration Act if, a power of attorney gives power to present
documents for registration, then it must be executed before
and authenticated by the Registrar or the Sub-Registrar.
If the Registration Act is not in
force at a place where the executants lives, then a Magistrate's authentication
is necessary.
If the power of attorney is
registered outside India a Notary Public, any Court Judge, Magistrate of that
country, or Indian Consul or Vice-Consul or a representative of Central
government must authenticate it.
A power of attorney is executed
in the form of a legal document generally in the first person and begins either
as "Know all men by these presents that I..." or "By this power
of attorney I,...".
After a brief introduction, the
operative part is brought in. Thereafter, the specific powers given to the
person are mentioned in separate paragraphs. After these a general clause is
added empowering the attorney to do such lawful acts and deeds, as he deems fit
and proper in the performance of his duties.
It is the duty of the agent, the
power of attorney holder, to act honestly and faithfully on behalf of his
principal, the giver. He is legally bound to perform the tasks according to the
wishes of the principal. If the agent acts otherwise and the principal suffers
any loss, he must compensate the principal. He is bound to keep all accounts in
a proper manner and produce it to the principal on demand.
An agent possessing authority to
carry on business has authority to do every lawful thing necessary for the
purpose.
Being a legal document, a power of attorney must be
strictly interpreted and understood. Therefore special care must be taken while
drafting the clauses.
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