Power of Attorney — Property Management

What this document contains

6 clauses every power of attorney — property management carries.

1. 01

   Who grants the authority, and to whom

   The head of the deed: the place and date, the grantor, and the person being authorised. The attorney is named here rather than being taken from the party picker — a power of attorney is executed by the grantor alone, and a person who signs nothing is not a party to it.

2. 02

   The attorney

   Who is being authorised, identified well enough that a bank, a society or a government office can be satisfied it is them. Their specimen signature is recorded here because that is what counterparties ask for — it is not a signature Dharaa collects, and the attorney does not execute this deed.

3. 03

   The property

   What the authority relates to, described well enough to be identified from the deed alone. A power of attorney over an unidentified property is one nobody will act on.

4. 04

   What the attorney may do

   The powers granted, chosen by the grantor. Each is a separate thing the attorney may do in the grantor's name, and only what is selected is granted — a power of attorney is read strictly against the person relying on it.

5. 05

   What the attorney may not do

   The transfer powers, expressly withheld. Mandatory and fixed: a management authority that does not say what it withholds is the instrument the Supreme Court addressed in Suraj Lamp, where general powers of attorney were being used as a substitute for a registered conveyance. A grantor who genuinely intends a sale wants the separate power of attorney for sale and registration, which is a registrable document.

6. 06

   How long it lasts, and how it ends

   When the authority begins, when it ends, and that the grantor may revoke it. Every power of attorney needs this: one that says nothing about its own end is one nobody can be sure has ended.

What the law requires

A management authority is not a way to transfer property

The Supreme Court has held that a general power of attorney does not convey title, and that arrangements combining a sale agreement, a general power of attorney and a will are not a substitute for a registered conveyance. A power of attorney confined to management, which expressly withholds the powers to sell, mortgage or gift, cannot be put to that use.

Suraj Lamp & Industries v. State of Haryana, (2012) 1 SCC 656

Only what is granted is granted

A power of attorney is construed strictly. An authority to do one thing does not carry an implied authority to do another, and a counterparty relying on an attorney's act takes the risk that the act was outside the authority. Anything the attorney will need has to be on the list.

Indian Contract Act 1872, ss. 186–188 (extent of an agent's authority)

When registration is required

Registration follows the transaction rather than the document. A power of attorney authorising an act that is itself compulsorily registrable must be registered; one that authorises no such act generally need not be. Notarisation is not a substitute for registration where registration is required.

Registration Act 1908, ss. 17, 32 and 33

A deed executed outside India has a clock on it

An instrument executed outside India must be stamped within three months of the date on which it is first received in India. An instrument not duly stamped is inadmissible in evidence and a sub-registrar will not act on it. Where the duty payable is not obvious the instrument may be adjudicated by the Collector.

Indian Stamp Act 1899, ss. 18, 33 and 35

Authentication abroad

A deed executed in a country party to the Hague Apostille Convention carries an apostille, which Indian authorities accept without further legalisation. Where the country is not a party, the deed is executed before an Indian Embassy or Consulate and attested there. The two are equivalent in effect for documents originating in Convention countries.

Hague Convention of 1961 abolishing the requirement of legalisation

How the authority ends

An agency may be revoked by the principal, and ends on the principal's death or insanity, on the agency being renounced by the agent, or on the business of the agency being completed. Revocation is effective against a third party only when they come to know of it, which is why a revocation is served rather than merely signed.

Indian Contract Act 1872, ss. 201–208