A power of attorney is a written instrument by which one person, the executant or principal, authorises another, the attorney or agent, to act on his behalf, and it is governed in India by the Powers of Attorney Act 1882. A general power of attorney confers broad powers, while a special power of attorney is limited to a particular act or transaction. Where a power of attorney relates to immovable property in West Bengal, the state law requires it to be properly stamped and registered as the state law provides, so that it may be acted upon before the registration and revenue authorities; an unstamped or unregistered instrument of this kind invites objection.
Who this applies to
This guide is for a property owner who is abroad or unwell and wants someone to manage or deal with a property in Kolkata or elsewhere in West Bengal, for a buyer or seller who is being asked to act through an agent, and for a family member handling the affairs of an elderly or non-resident principal. It applies to powers of attorney concerning immovable property, and the stamping and registration questions that follow.
General versus special power of attorney
A general power of attorney usually empowers the attorney to deal with a range of matters, sometimes including the sale of property, execution of documents and representation before authorities. A special power of attorney is confined to one transaction or one act, such as executing a particular sale deed, collecting rent, or appearing in one proceeding. Courts look closely at the scope actually conferred, and an attorney cannot do what the instrument does not authorise. A document styled general does not, by itself, enlarge the powers beyond what its words convey.
What the instrument must contain
- The full particulars of the executant and of the attorney, with addresses and identification.
- The powers conferred, stated clearly and, for property, tied to the specific property.
- A description of the property by plot, khatian, holding number or premises address as applicable.
- The purpose and, where the instrument is a special power of attorney, the single transaction.
- A revocation clause and the manner of revocation.
- The period of validity, if the power is to operate for a fixed time.
- The date, place and signature of the executant, and the attestation or notarisation.
Stamping and registration
A power of attorney relating to immovable property must be stamped according to the Indian Stamp Act as in force in West Bengal and, where the state law so requires, registered under the Registration Act 1908 as amended in its application to West Bengal. The document is executed on stamp paper or e-stamped value as required, and if executed outside India it must be executed before and authenticated by a notary public or an Indian diplomatic or consular officer, and presented for adjudication and registration within the time allowed. Confirm the current stamp duty and the office before execution, because the amount and the procedure are fixed by the state.
Attestation and notarisation
Attestation by witnesses or notarisation by a notary public is commonly required for the instrument to be acted upon. A power of attorney executed in a foreign country is usually notarised and then apostilled or consularised, and it may also require adjudication in India before registration. A photograph and signature of the executant, and often a thumb impression, are affixed in the manner the notary or the registering officer requires.
Using a power of attorney to sell property
Courts have repeatedly flagged the risks in sales made through a power of attorney rather than a direct conveyance. A sale carried out solely on the strength of a general power of attorney may be questioned if the attorney exceeded the powers, if the principal had already revoked the authority, or if the transaction was not for the principal's benefit. A prudent buyer dealing with an agent should insist on seeing the registered power of attorney, verify that it authorises the sale, confirm that it has not been revoked, and prefer a conveyance executed directly by the owner where that is possible. A prudent principal uses a special power of attorney for a single sale, with a clear description of the property and the consideration.
Revocation and protecting the parties
A power of attorney may be revoked by the principal by a written notice to the attorney, and the revocation should be registered so that third parties dealing with the property are on notice. The death or insolvency of the principal also brings the authority to an end. A seller should track whether a previously executed power of attorney is still alive, and a buyer should obtain a declaration and, where feasible, a confirmation from the principal, to avoid a later challenge. Where the attorney has an interest of his own in the subject matter, the power may be revoked only with the authority of the court.
When registration is refused
The registering officer may refuse to register a power of attorney where the stamp duty is short, where the executant does not appear and is not properly represented, where the document is not presented within the time allowed, where the identity or authority of the executant is in doubt, or where the property is not described with the particulars the register requires. A refusal under the Registration Act carries a right of appeal to the registrar and further to the civil court as the Act provides. The defect can often be cured by adjudication, additional stamp and re-presentation.
Is registration always required?
A power of attorney relating to immovable property is required to be stamped and, as the state law provides, registered to be acted upon before the authorities. For a transaction in West Bengal, do not rely on an unattested or unregistered instrument.
Can a power of attorney be given to a family member?
Yes. The attorney may be a relative or any person the principal trusts, but the same requirements of stamping, attestation and registration apply, and the powers should be stated precisely.
How do I revoke a power of attorney?
By a written notice of revocation to the attorney, and by registering the revocation so that it appears against the record, so that no third party can later claim to have acted on the subsisting authority.
Executing or relying on a power of attorney for property in Kolkata or West Bengal? FileX Advocates & Legal Consultants at 14 Hare Street, Kolkata 700001 drafts the instrument, handles stamping and registration and advises on revocation and risk. Call +91 7439811422 or message us on WhatsApp at https://wa.me/917439811422. See our property and registration services, use our property registration formats, or contact our team.