POWER OF ATTORNEY

 

 A power of attorney is a document whereby one or more persons give authority to one or more persons to act in his or their place. It is defined in Sec. 2 (2) of the Stamp Act thus. "Power of attorney" includes any instrument (not chargeable with a fee under a law relating to court fees for the time being in force) empowering a specified person to act executing it. It is a delegation of authority in writing by which one person empowers another to act on his behalf.

The giver of the authority is called the 'donor' and the recipient is called the 'donee'. If the appointment is made for specified act or acts the deed is called "special power of attorney" and if it is made generally for certain acts, it is called "general power of attorney". A power of attorney can be executed by any person who is able to contract. A power of attorney can be executed by or in favour of two or more persons. When executed in favour of 113 more than one person it is desirable to state whether the donee's will act only jointly or severally and jointly.

 

Authority of donee

So long as the donee acts within the powers delegated to him, his acts will be deemed to be the acts of the donor and will bind him. Sec. 2 of the power of attorney Act, 1882 (as amended in 1982) provides; The donee of a power of attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power and every instrument and thing so executed and every instrument and thing so executed and done, shall be as effectual in law as if it had been exacted or done by the dinee of the power in the name, and with the signature and seal, of the donor thereof. Normally after the revocation of the power of attorney the donee ceases to be an agent of the donor. But Sec. 3 protects persons making payment and doing acts in pursuance of the power of attorney even after the death etc. of the donor in certain circumstances. This section reads: Normally after the revocation of the power of attorney the donee ceases to be an agent of the donor.

But Sec. 3 protects persons making payments and doing act in pursuance of the power of attorney even after the death etc. of the donor in certain circumstances. This Sec. reads: Any person making or doing any payment or act in good faith in pursuance of a power of attorney, shall not be liable on respect of the payment or act, by reasons that before the payment or act, the donor of he power had died, or become of unsound mind, or bankrupt or insolvent, or had revoked the power, if the fact of death, unsoundness of mind, bankruptcy, insolvency or revocation was not at the time of the payment or act, known to the person making or doing the same.

 

Execution, attestation and authentication

A power of attorney has to be in writing signed by the donor. It is executed in the form of a deed poll, a unilateral document, usually in the first person. No law requires a power of attorney to be attested but it is useful to have it attested by witnesses. Though no law requires a power of attorney to be authenticated it is desirable to have this done so as to avail of the presumption under sec. 85 of the Evidence Act. This section provides: The court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by a Notary public, or any Court, Judge, Magistrate Indian Counsul or Vice Counsul or representative of the contra Govt., was so executed and authenticated.

 

Stamp duty and Registration

Stamp duty on a power of attorney is payable under Article 48 of he stamp Act. A deed canceling a power of attorney is chargeable to duty under Article 17. A power of attorney is not compulsorily registrable. But by virtue of the provisions of Sec. 32 and 33 of the 114 Evidence Act, a power of attorney specifically presenting a document for registration must be itself registered.

 

Deposit in High Court or District court

Section 4 of the Power of Attorney Act as amended in 1982 provides that: -

(a) An instrument creating a power of attorney, its executing being verified by affidavit, statutory declaration or other sufficient evidence may, with the affidavit or declaration, if any be deposited in the High Court or District court within the local limits of whose jurisdiction the instrument may be.

(b) A certified copy of an instrument so deposited shall, without further proof, be sufficient evidence of the contents of the instrument and of the deposit there of in the High Court or District Court.