Power of Attorney

Some time such situation arises that a person himself is not in a position to perform his duties, so he assigns another person or an agent to perform the duties is his behalf i.e. giving the power to another person to act in his behalf is known as Power of Attorney. This concept has its roots in the famous legal maxim “Qui facit per alium facit per se” means he who acts through another does the act himself.

Meaning

Power of Attorney is a legal document by which one person gives the right to perform or powers of transacting in matters relating to property, banking, legal and judicial proceedings, tax payments, etc. to another person due to some reasons like being out of country, or getting old, or not able to look after one’s duties in those matters etc.

According to Power of Attorney Act,1882 Power of Attorney includes any instrument empowering a specified person to act for and in the name of the person executing it.

According to Indian Stamp Act,1899 Power-of-attorney includes any instrument (not chargeable with a fee under the law relating to court-fees for the time being in force) empowering a specified person to act for and in the name of the person executing it.

Parties to the deed

The parties involved are:

First, the person who grants the power to the other person to act on his behalf is known as the Grantor or Principal or Donor.

Second, the other person to whom the power is granted is known as Attorney or Agent or Donee.

The power of attorney is given to the agent signed by the principal stating that the authority for the prescribed property is given to the agent on behalf of the principal and the agent will have the same power as the principal has regarding the property.

Types of Power of Attorney

The power of attorney can be divided into following types:

General Power of Attorney

As the word suggests, general power of attorney is the authority or power given by the principal should be general regarding the subject matter and not specific. It means that the authority in which principal authorizes the agent to perform certain tasks on behalf of the principal. The subject matter should be general and not restricted to specific task. If it will be restricted then it would not be considered as general power of attorney. The power granted under this category is general in nature such as banking, tax payment, property dealing, or to sue third party.

Special Power of Attorney

The power of authority under this type is narrow, specific and limited. The special power of attorney means when a person is authorized to do any particular or specific task or act. Once the particular act is completed, the Special power of Attorney comes to an end. In simple words, the agent in this case is restricted to perform that special task itself. As soon as the assigned is done, the power of attorney get expired. This is done specifically when the person has to appear before the court or tax authorities etc.

Durable and Non-Durable Power of Attorney

Durable power of attorney is that when the principle authorizes the agent to continue with the assigned even after he become mentally incapable or even after his death. However, durable power of attorney can only be granted if it is specifically mentioned in the deed. If is not mentioned and that agent shall continue the with the power after the death or mental incapacity then it is known as non-durable power of attorney.

Registration of Power of Attorney

A power of attorney does not require compulsory registration under section 17(1)(b) of the Indian Registration Act, 1908 for the simple reason that the principal by the execution of the document only authorizes the agent to act on his behalf and the instrument itself does not create, declare, assign, limit or extinguish any right, title or interest to or in immovable property.

Hon’ble Supreme Court in the case of Rajni Tandon Vs Dual Ranjan Ghosh held that a person holding of power of attorney, which is not registered document, has an authority to the sell the property of the owner under the terms of power of attorney and to execute the necessary documents on behalf of the owner.

Recognition of Power of Attorney under CPC

Order III Rule 2 of Civil Procedure Code recognizes the agents. It says that a person holding power of attorney, authorizes them to make and do such appearances, applications and acts on behalf of parties. The Hon’ble Supreme Court in case of Janki vashdeo Bhojwani vs. Indus Ind. Bank Ltd., AIR 2005 SC 439 said that the term “act” would not include deposing in place and instead of the principal, if the power of attorney holder has rendered some acts in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him.

Revocation of Power of Attorney

The Power of Attorney Act,1882 does not provide any provision for cancellation or revocation of power of attorney deed. However, this can be revoked in the same manner as the termination of Principal-Agent relationship provided under Indian Contact Act, 1872 that are as follows:

  1. When the Principal himself revoked the authority given to an agent.
  2. When either of the ‘Principal’ or ‘Agent’ becomes unsound.
  3. When either of the ‘Principal’ or ‘Agent’ declared to be insolvent by a competent court of law having jurisdiction.
  4. When the agent of the ‘POA’ renounce the agency.
  5. When the purpose or business for the execution of such ‘POA’ is completed.
  6. On the death of either Principal or Agent.
  7. Situations where there is ‘Implied Revocation’ mentioned in the terms of such ‘POA’ executed between the parties

In the case of Govindkoss Krishna Koss v Gopesjhwar lalaji Maharaj, it was established by the court that a power of attorney even if granted irrevocably, shall be revocable on strong proof of gross mismanagement on the part of the said attorney. This also implies if the appointed attorney or agent has somehow broken the terms of the contract between the principal and agent then, the principal can revoke the deed of power of attorney.

Therefore, it is to be concluded that power of attorney is basically giving authority by one to another for certain specific task or general task as mentioned in the deed. The duration of the power of attorney is decided by the parties and is mentioned under the deed. However, it can be revoked on the occurrence of certain circumstances.

References:

The Power of Attorney Act, 1882

The Indian Contract Act, 1872

The Civil Procedure Code, 1908

https://www.legalserviceindia.com/legal/article-1830-power-of-attorney-and-laws-an-overview.html

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