Power of Attorney
A power of attorney lets one person act for another. In property matters it is indispensable — for owners living abroad, for family members managing an elderly relative's affairs, for anyone who cannot attend in person on the day a document must be executed. It is also the instrument most often misunderstood, and the misunderstanding is expensive.
We draft powers of attorney for the actual transaction, with the actual property described and the actual acts enumerated, stamped for what the instrument in fact does and made usable for the office where it will be presented.
When you need this service
- You are abroad and a document has to be executed or registered in India
- You cannot attend on the date of execution and someone must act for you
- A family member is managing property affairs on behalf of an elderly relative
- A developer or a firm requires project-level authority to deal with authorities
- You have been offered property on the basis that the seller holds a power of attorney
- You want an existing power of attorney revoked
What we handle
Choosing between a special and a general power
A general power confers broad authority across a range of matters. A special power confers authority for a defined purpose — to execute and register one particular sale deed, to appear before one particular authority, to complete one particular transaction. For property work a special power is very often the better instrument, because it gives the attorney exactly the authority needed and no more.
Enumerating the powers
An attorney has the powers conferred by the instrument, construed strictly. Authority to manage property is not authority to sell it. Authority to sell is not authority to gift. Authority to execute a document is not necessarily authority to admit execution before the Sub-Registrar, which is a distinct act. Blanket language such as to do all acts necessary is not a substitute for enumeration.
Describing the property and the parties
The property described precisely enough to establish that it is the property the power relates to, and the donor's identification particulars stated so that they match the identity documents that will be produced.
Stamping
Stamp duty on a power of attorney varies materially — by the powers conferred, by whether the power relates to immovable property, by whether it is given for consideration, and by the relationship between the donor and the attorney. There is no single figure. We identify the applicable article of the Schedule for the specific instrument.
Registration, authentication and notarisation
Whether a power of attorney must be registered, and how it must be authenticated, depends on what it does and what it will be used for. A power conferring authority to present a document for registration is subject to its own requirements under the Registration Act, 1908, and a power relating to the transfer of immovable property is treated differently from a simple authority to collect rent. Notarisation is available on-site from Adv. S. V. Tarte, a Notary Public appointed by the Government of India under the Notaries Act, 1952.
Execution from outside India
Where the donor is abroad, the power is executed there and then has to be made usable in India. Broadly that means execution before the appropriate authority in the country of execution — typically an Indian consular officer, or a local notary with authentication under the arrangements applicable to that country — followed by the steps required on receipt in India, which can include stamping within the period allowed after it is first received here. The requirements differ by country of execution and by intended use, and they do change, so we confirm the current requirement before execution rather than after the document has travelled.
Revocation
A power of attorney can ordinarily be revoked by the donor. A power coupled with an interest — where the attorney has an interest in the subject matter, not merely authority over it — stands differently and may be irrevocable in accordance with its terms. Where a power is revoked, we document the revocation and bring it to the notice of those who may otherwise act on the original.
What we need to settle before drafting
A power of attorney gives the attorney only the authority expressed in the instrument. Drafting therefore starts with what the attorney actually needs to do, rather than with a standard form:
- What you need the attorney to do — for example, execute a particular deed, admit its execution before the Sub-Registrar, appear before a specified authority, or carry out another identified act.
- Who is granting the authority and who will hold it, including the donor's identification particulars as they appear in the relevant documents and the relationship between them.
- The property or other subject matter to which the power relates, described from the available documents where applicable.
- Whether the power will be executed in India or outside India and, if outside India, the country of execution.
- Where the power is intended to be produced and acted upon — such as a registration office, authority, bank or other institution — and whether an existing power is already in place that is to be relied upon, varied or revoked.
Please note: These facts determine the instrument itself, including the powers to be enumerated, whether a special or general power is appropriate, and the applicable stamp and registration or authentication route. There is no single document list for every power of attorney because the requirement depends on what the attorney is authorised to do and where the instrument will be used. Where execution is outside India, the applicable requirements depend on the country of execution and intended use, and we confirm the current requirement before execution.
What you should know before you sign one
A power of attorney does not transfer title
In Suraj Lamp & Industries (P) Ltd v State of Haryana, decided on 11 October 2011 and reported at (2012) 1 SCC 656, the Supreme Court held that transactions structured as an agreement to sell with a general power of attorney and a Will do not convey title. A transfer of immovable property by way of sale can be effected only by a registered deed of conveyance; in the absence of one, no right, title or interest passes. A power of attorney is an instrument of agency, not an instrument of transfer.
If you are offered property on a power of attorney, you are not being offered title
Examine what the power actually authorises, whether it is still subsisting, and what the underlying title chain is. Section 53A of the Transfer of Property Act, 1882 protects a transferee in possession under a written contract of transfer, but Section 17(1A) of the Registration Act, 1908, inserted with effect from 24 September 2001, requires that documents containing contracts to transfer immovable property for the purposes of Section 53A must themselves be registered.
Why powers of attorney get rejected
A power that is legally sound can still fail in practice. The commonest reason by some distance is that the specific act being attempted is not among the powers enumerated. The others: the instrument is not stamped correctly for what it in fact does, or duty was not paid within the period allowed after a foreign instrument was received in India; it was not registered or authenticated in the manner required for its intended use; the donor's identification particulars do not match the documents produced; the property is described too loosely; or the power has expired by its own terms.
A wide general power is a genuinely dangerous document
A general power executed casually, in wide terms, in favour of someone the donor later falls out with, creates risk that a special power drafted for the actual transaction does not.
Questions we are asked about this service
Yes, but only if the power of attorney says so in terms. An attorney has the powers the instrument confers, construed strictly. Authority to sign a document is not automatically authority to admit its execution before the Sub-Registrar, which is a distinct act and has to be enumerated. Blanket language such as authority to do all acts necessary is not a substitute for enumeration, and a representative turned away at the counter is most often turned away for exactly this reason. The power must also be correctly stamped for what it in fact does, and registered or authenticated in the manner its intended use requires. See the power of attorney guide.
The power is executed in the country you are in and then has to be made usable here. Broadly that means execution before the appropriate authority there — typically an Indian consular officer, or a local notary with authentication under the arrangements applicable to that country — followed by the steps required on receipt in India, which can include stamping within the period allowed after it is first received here. The requirements differ by country of execution and by intended use, and they do change, so we confirm the current requirement before execution rather than after the document has travelled.
For registration handled at a Government registration office, the executants attend in person. Signing the document and admitting its execution before the registering officer are two different acts, and the second has to happen at the office. We also recommend keeping witnesses available on the day: identity at the counter is ordinarily verified through Aadhaar, and where that verification is unsuccessful, or the office requires it, witness attendance becomes necessary. That contingency is a separate question from any attesting-witness requirement the particular instrument carries in its own right — a Will, for example, requires two or more attesting witnesses under Section 63 of the Indian Succession Act, 1925 whether or not it is ever registered.
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