Power of Attorney — Representation

What this document contains

7 clauses every power of attorney — representation 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 authority and the matter

   Which authority the attorney may appear before, and on what. Both mandatory, and the reason this document works: an officer asked to act on a power naming neither is entitled to refuse, and a power naming both is one a counter will accept because the person behind it can see exactly what is being allowed.

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 powers to concede the matter, withheld. An authority to appear is not an authority to give in, and an attorney who admits a liability, withdraws an appeal or accepts a settlement has disposed of the matter the grantor only meant them to attend to. Mandatory and fixed.

6. 06

   No power to admit, compromise or receive

   A covenant lifted out of `powers-excluded`, where it was an unnumbered paragraph. The spine numbers clauses, so a covenant that shares a clause with another has no number of its own.

7. 07

   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

Name the authority and the matter

An officer asked to act on a power of attorney is entitled to satisfy themselves that the authority covers what is being done. A power naming the authority, the matter and its reference is one a counter can act on; a power to represent the grantor generally is a general power of attorney under another name, and may be refused.

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

This is not a vakalatnama

An advocate appearing in a court acts under a vakalatnama filed in the proceeding, governed by the court's own rules. A power of attorney authorising a person to appear before an administrative or quasi-judicial authority is a different instrument and does not entitle anybody to appear as a pleader.

Code of Civil Procedure 1908, Order III, rr. 1, 2 and 4

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

Appearing is not conceding

An authority to appear and act does not carry an implied authority to admit liability, to compromise or withdraw a claim, or to accept a settlement. Those dispose of the matter, and an agent who does them without express authority acts outside the agency — but the other side may still be entitled to rely on the act if the authority appeared to extend to it, which is why the exclusion is stated in the deed rather than left to be inferred.

Indian Contract Act 1872, ss. 186–188 and 237

Some authorities restrict who may represent you

Several statutes prescribe who may appear on another's behalf — a relative, an employee, an accountant, an advocate, a person holding a particular qualification. A power of attorney evidences the authority; it does not make a person eligible to represent where the statute says otherwise.

Income-tax Act 1961, s. 288 and the rules made under it; the corresponding provisions of other statutes