Sem II

Drafting, Pleading and

Conveyancing
Delivered by
Adv.Bhagyashree Dalvi
Govt Law College, Mumbai
Power of Attorney
 The Power of Attorney
• While the main concern of Indian philosophy is to analyze the fundamental
concepts of ethics, religion, epistemology and metaphysics, its ultimate concern is
the social well-being of individuals.
In the recent computer era, where commerce and industry assured large role to
play , the need for entering into contracts of agreements in relation to business and
other transactions become a common and primary feature of daily life.
• Because of human being became busier, it became more necessary for him to
depend on others for getting his things done.
• The hectic activities of the businessmen and industrialists have made the
execution of power of attorney for delegating his functions.
• A "power of attorney" is a legal instrument whereby one person gives another
person the authority to act on his or her behalf as his legal representative, and to
make binding legal and financial decisions on your behalf.
 Defining A Power Of Attorney
• In Blacks dictionary it is described as the instrument by which a person is
authorized to act as an agent of the granting it.
• It is pertinent to mention here a person need not be a lawyer to hold a Power of
Attorney as an agent for someone else.
• In Strouds judicial dictionary "power of attorney is defined extensively as an
authority whereby one is set in the stead or place of another to act for him".
• Power of Attorney is a document of agency whereby the principal appoints an
agent to do and execute certain acts or deeds on his behalf.
• Various can be found in different enactments like according to the Bombay
Stamp Act it is defined as "any instrument empowering a person to act for and in
the name of the person executing it and includes an instrument by which a
person a not being a legal practitioner is authorized to appear on behalf of any
party in proceedings before any court tribunal or authority"
• The Indian Stamps Act defines it "any instrument empowering any specified person to act for
and in the name of the person executing it"

• Despite there is a specific act pertaining to Power of attorney but it is a very precise and brief
one , the basic principles of these document are governed by the law of agency as provided for
in the Indian Contract Act. A power of attorney may be of two types-
• 1) General
• 2) Specific-

• The test to determine under which category a given document falls is as to what is the subject
matter in respect of which power is given and if it is restricted to some specific matter it is
specific else it is general.
• Construction of a power of attorney- There are two main rules in construing a power of
attorney
• 1) The operative part of the deed is controlled by the recitals wherever there is any ambiguity
• 2) Where authority is given to do particular acts followed by general words the general words
are restricted to what is necessary for the performance of the particular acts
 Use of Power of Attorney

• Contracts, Agreements
1. To enter into contracts,
2. Perform any contract, agreement, writing, or thing
3. To make, sign, execute, and deliver, acknowledge any contract, agreement,

• The Power Of Attorney In Real Estate Field

1. To sell, exchange, lease, collect rents, grant, bargain, or borrow and mortgage .
2. To execute all deeds, bonds, contracts, mortgages, notes, checks, drafts, money orders;
3. To manage, compromise, settle, and adjust all matters relating to real estate;

• Bank Accounts, Certificates Of Deposit, Money Market Accounts

1. To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money
Market Accounts, etc.
2. To make, execute, endorse, accept and deliver any and all cheques and drafts
3. Execute or release such deeds of trust or other security agreements as may be necessary
4. Deposit and withdraw funds Acquire and redeem certificates of deposit, in banks, savings and loan
• Tax Returns, Insurance And Other Documents
1. To file, sign all tax returns, insurance forms and any other documents
2. To represent in all matters concerning the foregoing.

• Stocks, Bonds, And Securities

1. To sell any and all shares of stocks, bonds, or other securities
2. To make, execute, and deliver any assignment, or assignments, of any such
shares of stock, bonds, or other securities.
 Kinds Of Power Of Attorney

• Every act performed by the agent within the authority of the Power of Attorney is legally
binding upon the persons granting it. A power of attorney must be given only to a trustworthy
person, and only when it is absolutely necessary. The person who empowers is the Principal
and the person to whom the power is conferred is the Agent.

There are two kinds of power of attorney viz., "General Power of Attorney" and "Special (or
limited) Power of Attorney" .

• What is a General Power of Attorney ?

1. The principal empowers the agent with the right to carry out all legal acts on his behalf
without restricting it to a particular transaction or act,
2. Gives the agent very broad powers to act on behalf of the Principal

• What is a Special Power of Attorney?:

1. The authority is restricted to act only on certain matters or only a particular kind of
transaction or to carry out a specific legal transaction for the Principal.
2. The agent's power of attorney expires on the completion of the transaction
 The Basic Principles To Remember

• 1. The general rule of power of attorney is that it should be strictly construed.

• 2. Unless an express power is conferred on an agent to enter into contracts of guarantees on behalf of
his principal or to execute or negotiate , negotiable instruments for his principal jointly with others

• 3. An agent cannot by his acts bind the principal to a larger extent than he is empowered to do under
the power of attorney.

• 4. Fraud by the power agent does not bind the principal. He cannot be sued or otherwise held
responsible for fraud by the agent

• 5. If the power does not authorize the agent to carry on a business except with limitations any act
done by him in excess of such power will not bind the principal.

• 6. For example power to dispose of property does not confer a power to mortgage the property.

• 7. Power to manage immoveable property cannot permit principal's ornaments which are a moveable
property
 Registration Of Power-Of-Attorney
1. Registration of power of attorney is not compulsory. it is optional

2. In India, where the Registration Act, 1908, is in force, the Power of Attorney should be authenticated by a Sub
Registrar only, (Whenever a person signs the document and his attorney presents/ admits execution).

3. In other areas, attestation should be by a Notary or diplomatic agents

4. In case an attorney under a valid Power of Attorney himself signs a document, he may, as an executing (signing)
party present/admit execution of a document though it is attested by a Notary, unless the text of the power specifically
excludes such powers

5. Foreign Power of Attorney should be stamped by the Collector after its receipt in India within prescribed time of 3
months

6. Registration of power of attorney authenticates the deed of power of attorney

7. Power of Attorney shall be attested by two or more adult independent witnesses who are of sound mind
8. If a power of attorney is in respect of an immovable property of value more than Rs100 it must be registered.
 Revocation Of Power Of Attorney
• Power of Attorney can be revoked in the following cases,in case of :
1. Revoked by the principal himself
2. The principal dies or becomes insane or becomes bankrupt
3. The business for which the agent was appointed is over
4. Mutually agreed upon by the principal and agent
5. The right under the power of attorney is renounced by the agent
 Revision
• What is a power of attorney?
• Ans: Power of attorney includes any instrument empowering a specified person to act
for and in the name of the person executing it. [Section 1A of The Powers of Attorney
Act, 1882]
• By a power of attorney, one person appoints and authorises another to act for him/her.
• Who can make a power of attorney?
• Ans: A power of attorney is a species of the law of agency (law of contract). Any
person competent to contract, i.e. above the age of 18 and of sound mind can make a
power of attorney. The person making the power of attorney is called the donor.
• Q.3 Who can be appointed as a donee?
• Ans: The person who would exercise the powers under the power of attorney is called
the donee or attorney. Any person above the age of 18 and of sound mind can be
appointed as a donee. [Section 184 of the Indian Contract Act, 1872.
• Q.4 When/why is a power of attorney made?
• Ans: A power of attorney is made when the donor is unable to do certain acts or it
is more convenient for the donor to act through a donee.
• Q.5 What is the effect of making a power of attorney?
• Ans: Every instrument executed and thing done by the donee in exercise of his
powers under the power of attorney, shall be as effectual in law as if it had been
executed or done by the donee of the power in the name, and with the signature
and seal, of the donor thereof. [Section 2 of The Powers of Attorney Act, 1882]
• Q.6 Does a power of attorney have to be executed on stamp paper?
• Ans: Yes.
• Does a power of attorney have to be notarized?
• Ans: Yes. Section 4 of the Powers of Attorney Act, 1882 requires that
the execution of an instrument creating a power of attorney must be
verified by affidavit, statutory declaration or other sufficient evidence.
• Section 85 of the Indian Evidence Act, 1872 states that there is a legal
presumption of the execution and authentication of a power of
attorney that has been executed before, and authenticated by, a notary
(or any Court, Judge, Magistrate, Indian Consul or Vice Consul or
representative of the Central Government).
• Section 57 of the Indian Evidence Act, 1872 lists down the facts of
which a court must take judicial notice and sub section 6 includes the
seal of a notary.
• Does a power of attorney have to be registered?
• Ans: The purpose for which the power of attorney is being executed
will determine whether or not it requires to be registered. Further, the
state in which it is executed and the law applicable to registration of
documents in that state will also have to be looked at.
• In Maharashtra, an irrevocable power of attorney relating to transfer of
immovable property in any way must be registered. [Section 17 of the
Registration Act, 1908 as amended by the Registration (Maharashtra
Amendment) Act, 2010]
• What is a general power of attorney and special power of attorney?
Ans: A general power of attorney grants a wider set of powers to the agent
as compared to a special or limited power of attorney that specifically sets
out the powers of the agent and is usually confined to a restricted set of
circumstances/transaction.
• What laws govern the making of powers of attorney?
Ans: The Powers of Attorney Act, 1882, The Indian Contract Act, 1872,
The Indian Stamp Act, 1899 (or the applicable state Stamp Act) and the
Registration Act, 1908.
• What is the effect of the death of the donor on the power of attorney?
Ans: The agency granted under a power of attorney would normally
terminate on the death of the donor except where the agent himself has an
interest in the subject matter of the agency. [Sections 201 and 202 of the
Indian Contract Act, 1872]
• How does a power of attorney come to an end?
• Ans: The power of attorney comes to an end if
• (a) the donor revokes his authority,
• (b) the donee renounces the business of agency,
• (c) the business of agency is completed,
• (d) the principal or agent die or are no longer of sound mind or
• (e) the donor is adjudicated an insolvent under applicable law. [Section
201 of the Indian Contract Act, 1872]
 Sample of General Power of Attorney
(This is just a guide line and clients are expected to finalise their own draft as per
their requirements)

• TO ALL TO WHOM THESE PRESENTS SHALL COME Know all men by

these presents that I ……………… s/o …………….. aged ……. yrs r/o
…………………………………., state as follows :- Whereas I am personally
unable to attend to the managerial and other affairs with respect to
my property ……………(Description of property)……………., so I, hereby
nominate and appoint Shri/Smt……………..……………… R/o……………… as
my true and lawful Attorney to act for and on my behalf and I
authorize and empower him to do the following acts, deeds and
things on my behalf:-
1. To rent the aforementioned property by leave and license agreement.
2. To purchase the stamp, make, sign, execute and admit the execution of leave and
license agreement and to appear before the sub registrar for the registration of the
leave and license agreement of the aforesaid property.
3. To demand, collect the rent due on the aforementioned property.
4. To manage and control my aforesaid property including collection of monthly rents,
from the licensees and issuance of proper stamped receipts acknowledging the rent
received.
5. To make applications, affidavits, documents etc., to the Govt. Departments and any
other concerned authorities, required for the managing of the aforesaid property and
to do all other acts, deeds and things in respect thereof.
6. To effect and carry out necessary repairs, additions, etc., in the said property as and
when may be desired, and for this purpose obtain all the necessary permissions
and/or sanctions, necessary from any appropriate authority.
7. To deal with Govt. departments and other local bodies for the purpose of any
essential facilities or amenities required to be provided in the building. He can sign all
papers and documents etc. for this purpose.
• 8. To pay all the taxes, Municipal levies and other taxes, which may be, required to
be paid.
• 9. To file any objections with Govt. departments or other local body of Government
for any purpose related with said property.
• 10.To furnish the details of Licensee to concerned Police Station, to get No
Objection from the local Police by appearing personally as and when required or
called by the Police of concerned jurisdiction.
• 11.To pay maintenance charges to society and attend society meetings.
• 12.To engage any Advocate or Attorney for the purpose and or to appear for and
represent our in all the courts, civil, criminal or revenue including labour tribunals,
original, revisional or appellate, in any registration offices, and also to present
appeals in any court, and also to accept services of all summons, notices and other
processes of law.
• 13.AND GENERALLY TO DO ALL other acts, deeds and things, which my said
attorneys may deem fit and proper for the maintenance, upkeep of my property.
• 14.This power of attorney is without any consideration.
• Provided that the said attorney shall not sell or transfer the ownership
of the property to any person.
• Provided further that the said attorney shall keep true accounts of all
activities performed by virtue of this power of attorney. AND I hereby
agree and undertake to confirm and ratify all and whatsoever my said
attorney shall do or purport to do by the virtue of this power of
attorney. IN WITNESS WHERE OF this deed is signed by me at
________on this ______day of_______
• 1. EXECUTANT Name & Signature –
• 2. ATTORNEY HOLDER
• “I hereby accept all the powers.” Name & Signature - WITNESSES:
• 1. ………………… Name and Address of Witness 1
• 2. ………………… Name and Address of Witness 2
Special Power of Attorney
 What Is a Special Power of Attorney?

• A special power of attorney is a legal document that authorizes one

person, called an agent or an attorney in fact, to act on behalf of
another person, known as the principal, under specific, clearly laid-out
circumstances.
• Also known as a limited power of attorney (LPOA), a special power of
attorney allows an individual to give another person the ability to
make certain legal or financial decisions on their behalf.
 Understanding Special Power of Attorney

• A power of attorney refers to an agreement between two individuals

that allows one individual to act on the other's behalf. For example,
you might want a power of attorney if you are out of the country and
unable to carry out a business transaction yourself, or if your abilities
are limited by a medical condition.
• The person who initiates a power of attorney, whether in oral or
written form, is referred to as the grantor or principal. The authorized
individual named in the agreement is referred to as
the attorney in fact or agent.
• In the case of a special power of attorney, the actions that the agent
can take are limited to very specific circumstances.
• Because this type of power of attorney is limited to what has been laid
out in the signed document, it is particularly important that the
principal is very clear about the powers that they want the agent to
have.
• Additionally, the principal may create more than one special power of
attorney, naming a different individual in each one.
 General Power of Attorney vs. Special Power of Attorney

• While a special power of attorney gives the agent authority for a limited set of
actions under a restricted set of circumstances—such as buying or selling a home,
withdrawing money from an account, or running a business—a general power of
attorney is more broad.
• A general power of attorney grants the agent the legal right to make all financial
and legal decisions on behalf of the principal. An individual who will be out of the
country for a year may give an agent extensive powers to carry out transactions
such as personal and business financial transactions, bill payments, life insurance
purchases, charitable donations, real estate management, and the filing of tax
returns.
 Special Considerations

• A power of attorney becomes ineffective if its principal dies or becomes

incapacitated, meaning the principal is unable to grant such power due to an
injury or mental illness. However, a special power of attorney can be made
durable.
• A durable power of attorney is one that authorizes the agent to continue acting
on behalf of the principal even after the principal becomes incapacitated, for
instance, due to a head injury or Alzheimer’s disease. Under a durable power of
attorney, the authority of the agent to act and make decisions on behalf of the
principal continues until the principal's death. For an individual who does not
already have a durable power of attorney in place and does not have the capacity
to execute a special power of attorney, the court will impose a conservatorship
or a guardianship to act on their behalf.
• When an individual passes away, the special power of attorney becomes void,
and a last will and testament takes precedence.
Thankyou