Documentation & Notary

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.

Send an Enquiry — No Fee +91 98213 13285

Who this is for

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

Our assistance

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.

Worth knowing

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.

Read our detailed guide