By Advocate S. R. Agarwal
Property transaction through Attorney is a widely prevalent practice these days because of the complexity of the life or unavoidable circumstances. Not only property transactions, other transactions such as operating bank accounts, demat accounts, investments in the bonds and securities etc., take place day in and day out through attorney or the agent appointed by a person for these purposes.
An attorney or an agent acts on behalf of another person, known as donor in the case of an attorney or a principal in the case of an agent, though the basic difference between the two is that an attorney can act only in the name of his donor, whereas an agent acts in his own name. However, both of them derive the authority and power to act as such from a written instrument and any transaction beyond that authority or the power may render a particular transaction beyond that authority or the power may render a particular transaction voidable or at least disputable. Such an instrument in the case of an attorney is, popularly, known as Power of Attorney. Section 1-A of the Power of Attorney Act, 1882, read with section 2 (21 of the Indian Stamps Act, define Power of Attorney to include any instrument empowering a specified person to act for and in the name of the person executing it. In other words, it has to be in writing and the authority or the power has to be well specified.
This Power of Attorney need not be, necessarily, attested and authenticated or registered in all the cases, except when executed out of India or for the presentation of the documents of immovable property for registration. However, the attestation or authentication or registration of a Power of Attorney, as the case may be, is resorted to as a matter of well established practice, because Section 85 of the Indian Evidence Act raises a presumption of genuineness in favour of a Power of Attorney authenticated by a Notary Public or a Magistrate or Indian Consular in a foreign country. Therefore, such an attestation avoids the need for satisfying or proving the genuineness of the instrument of the Power of Attorney.
In terms of Section 32 of Indian Registration Act, 1908, where a document, needs to be registered, is required to be presented before the Sub-Registrar of Assurances by the person executing the document. But where it has to be presented through a representative or an agent, a Power of Attorney, duly authenticated in the manner prescribed in Section 33 of the said Act, is necessary. Therefore, if a document has been executed by an attorney himself on behalf of the donor and the attorney himself is presenting the same for the registration, such a Power of Attorney authenticated by a Notary Public or a Magistrate is acceptable, as the person (attorney), who has executed the document, is appearing before the Sub-Registrar, but where a document, executed by someone else, is presented before the Sub-Registrar by an attorney, such a Power of Attorney is to be, necessarily, registered as per the provisions of sections 33 of the said Act. For example, where the Promoters, Builders or the
Developers, who execute the documents such as Agreements for Sale, which are presented for registration by someone else for example by a Partner or an employee, such a Power of Attorney should always be registered.