PROJECT WORK

DEED & ITS COMPONENTS AND WILL ALONG WITH GENERAL POWER OF ATTORNEY.

SUBMITTED TO: SUBMITTED BY:

Dr. (Prof.) Vijay Kumar Kapoor Mayank Sen (L/1510)

Assistant Professor Student

School of Law School of Law

Raffles University Raffles University

TABLE OF CONTENTS

1. Acknowledgment
2. Research Methodology
3. Introduction
4. Types of Deed
5. Advantages of Deed
6. The parts of Deed
7. Will
8. Power of Attorney
9. Conclusion
10.
ACKNOWLEDGMENT

I take this opportunity to express our humble gratitude and personal regards to Dr. (Prof.) Vijay
Kumar Kapoor for inspiring me and guiding us during the course of this assignment work and also
for his cooperation and guidance from time to time during the course of this assignment work on
the topic.
I have prepared this assignment not only for marks but also to increase my knowledge.

Place: Neemrana -Mayank Sen

RESEARCH METHODOLOGY

Aims and Objectives

The aim of the assignment is to present a detailed study of the topic “Deed and its components and
Drafting of will along with Power of attorney” forming a concrete informative capsule of the same
with an insight into its relevance in the Competition Law.

Research Plan
The researchers have followed Doctrinal method

Method of Writing
The researcher has used both a descriptive and analytical method of writing in order to understand
the issues better. The researcher has also relied on case law, to get an in depth understanding of
the subject. The method of writing followed in the course of this research project is primarily
analytical.

Sources of Data
The researcher has used secondary sources in order to obtain sufficient data for this project,
namely,

 Online Research Portals

 Articles
INTRODUCTION

A deed or any other written agreement provides evidence of the transaction it relates to. Deeds
historically had to be executed under seal and prepared on parchment paper and delivered, now
they are simply written documents which must make it clear on their face that they are intended to
be a deed (by stating as much) and are validly executed and delivered as a deed.

The following does not attempt to address issues such as the registration of deeds, nor any
particular form of deed (ie. trust deeds etc), it is just a broad outline to assist your understanding.

TYPES OF DEED

There are 2 types of deed:

 A Deed of Indenture – being a deed to which 2 or more persons are party, evidencing
some act/agreement between them other than simply their consent to jointly express a
common intention (ie. a conveyance would be an Indenture – one party wanting to sell and
one party to buy, so two different intentions); and
 A Deed Poll – being a deed made by and expressing the intention of 1 party only, or made
by 2 or more persons joining together to express a common intention (ie. a deed declaring
a change of name).

You should be aware that if a deed is a contractual document then it is referred to as

a Specialty (for example a loan evidenced in a deed).

ADVANTAGES OF A DEED

In some instances a deed may be required. In others, where there is a choice, then the advantages
of a deed are:
  The limitation period to enforce it (ie. a specialty) in the event of a breach of its terms is
12 years in England and 21 years in the Isle of Man. Both of these periods exceed the usual
6 year limitation period for enforcing a breach of contract. The relevant English and Manx
Limitation Acts do however provide that these respective periods, after which no claim on
a specialty can be brought, do not affect any action for which a shorter period of limitation
is prescribed by any other provision of the Acts; and
 No consideration is required for a promise (a "covenant") made in a deed to make it
enforceable.

THE PARTS OF A DEED

A deed is generally divided into several distinct parts:

1. The Heading
2. The Parties
3. Recitals
4. Operative Provisions
5. Testimonium
6. Schedules
7. Execution and Attestation

1. The Heading

A deed may be described as a deed in like terms to "This Deed" or "This Indenture". Alternatively
it could be by a name such as a Conveyance, Mortgage (in the Isle of Man a Conditional Bond and
Security) or Lease, according to the nature of the transaction. Sometimes it is described as both so
that you will often see "This Deed of Conveyance".

It is often common (although not necessary, provided that it makes the date clear elsewhere) to
have the date of the deed inserted immediately after the heading (ie. "This Deed of Conveyance is
dated this day of 201X").Alternatively, the date may come in the Testimonium.

2. The Parties
The parties to a deed are usually described immediately after the heading and following the words
"BETWEEN" or "PARTIES".

It makes no difference how parties are described in a deed provided they can be identified
satisfactorily. That said, it is usual for them to be described by their names and addresses, and, if
they are not individuals, or they are party to the deed in a particular capacity, by a description of
what they are, or in what capacity they are party, or both.

In relation to a company you will normally see something like "XYZ Limited a company
incorporated in the Isle of Man with company number 12345C and having its registered office at
XYZ street". In relation to a company acting in its capacity as trustee of a particular trust you
would have "XYZ Limited as Trustee of the XYZ Trust and being a company incorporated in the
Isle of Man...", or, alternatively, you might have the "...as Trustee of the XYZ Trust" part of the
description after the full details of the company. Please note that it makes no difference where the
capacity is mentioned in the description provided that it is actually mentioned, and that the
description is accurate and complete. It would be best practice to insist on a company entering a
deed to provide its place of incorporation, registered office address and company number in its
description, as having this information easily to hand is of assistance if it ever came to taking
enforcement action against the company – ie. service of legal proceedings is normally effected at
the registered office address.

Recognised legal entities can be named as a party to a deed, or indeed any agreement, in their own
right. An individual, a company and a foundation are legal entities and can be named as a party to
a deed in their own right (ie. Joe Bloggs or XYZ Limited or the XYZ Foundation). A partnership
(also referred to as a "firm") and a trust are NOT separate legal entities in their own right and
therefore cannot contract in their own name (ie. you cannot have the XYZ Trust or XYZ
Partnership as named parties to a deed).

In each case where a deed is to be entered for the benefit of a partnership or trust, the named parties
entering it MUST be the named partners of the partnership or the trustees of the trust as appropriate.
You would therefore expect to see something along the lines of "Joe Bloggs of XYZ street as
Trustee of the XYZ trust", or "Joe Bloggs as a partner of the XYZ Partnership". Incidentally, in
relation to partners, then under the Registration of Business Names Act 1918 (of Tynwald), when
a partnership's name does not consist of the names of the individual partners, such that it must be
registered under that Act, section 20 of the Act makes it an offence for a firm required to be
registered under it to not, in all trade catalogues, trade circulars, showcards and business letters,
on or in which the business name appears and which are issued or sent by the firm, to have
mentioned in legible characters, in the case of a firm, the present first names or initials thereof and
present surnames, any former first and surnames, of all the partners in the firm or, in the case of a
corporation being a partner, the corporate name. In otherwords, a full list of all the partners should
be included in the deed. Usually you would expect all of the partners to be a party to the deed and
to execute it however, if this is not the case (ie. where special authority has been granted to the
executing partners only), then the details of the others should nevertheless be contained in a
Schedule to the deed to comply with the Registration of Business Names Act.

A partner has no implied authority to execute deeds in the name of his co-partner, so in the absence
of special authority a deed executed by one partner purporting to act on behalf of the firm would
not bind the other partners – note this is contrary to the general principles of agency as applicable
to a partnership so that an act done by a partner on behalf of the firm and with the authority of his
co-partners is binding on the firm.

After the description of the parties it is also very common to give a party a definition by simply
saying "(hereinafter referred to as the "Vendor")" or simply (the "Vendor"). In some cases the
definition will be more elaborate such as, in the case of a company "(the "Vendor" which
expression shall include its successors and assigns), or in the case of an individual "(the "Vendor"
which expression shall include its executors and administrators)".

Where the deed is to be executed by one person on behalf of another (ie. as an attorney, or by the
receiver of a person suffering from a mental disorder) then the party on whose behalf the deed is
executed should be named as the party to it, although in the case of a person suffering from a
mental disorder, the name of the receiver and his address are also mentioned (the address of the
mentally disordered person not being revealed). In such cases the deed should be executed in the
name of the person named as a party to it, so that a receiver will sign the name of the person
suffering from the mental disorder. An attorney may sign the name of his principal, or, if preferred,
execute a deed in his own name and with his own signature. A liquidator, whether in a court
winding up or a voluntary winding up, has power to execute documents on behalf of the company
and, for that purpose, to use the company seal as necessary.

After a description of a party you may see something along the lines of "of the first part". This is
relevant to a deed to which 2 or more persons or a group of persons are parties representing
different interests and each person or group is commonly expressed to be of a separate part. Joint
tenants, trustees, mortgagees, or partners for example, are in law considered to be one person as
regards the ownership of property and are therefore usually made parties "of the one part".

Where a person is a party to a deed in different capacities (eg as a beneficiary under a trust but
also as a trustee for others) the general rule is that they should not be named in more than one
capacity or for more than one purpose. If, however, they are a party both in respect of a separate
interest and in respect of a joint interest, then they should be named a party of one part in respect
of the separate interest and a party with the other person jointly interested, of another part in respect
of the joint interest.

Where some persons are parties in respect of joint interests and others in respect of joint and also
separate interests, it would be sufficient in law if each person were made a party of a separate part,
but this would not be in accordance with the practice of conveyancers, for joint tenants are
considered to be one person as regards the ownership of property. In any case a person should
execute an instrument only once, although named more than once as a party.

3. Recitals

Recitals explain the background of the deed and normally follow a description of the parties to it.
It is unusual to see no recitals at all.

Recitals are not normally intended to be legally binding (although, contrary to this, they may
sometimes be expressed to form part of the terms of the deed), and should not contain substantive
provisions (ie. agreements, obligations etc). In construing the document its recitals are subordinate
to the operative part and where the operative part is clear it is treated as expressing the intention
of the parties and prevails over any suggestion of a contrary intention per the recitals. However
recitals may be looked to where there is an ambiguity in the operative part. Section 3 of the
Conveyancing Act 1908 (of Tynwald) provides that:

"Recitals, statements, and descriptions of facts, matters, and parties contained in deeds,
instruments, Acts of Tynwald, affidavits, or statutory declarations, 21 years odl at the date of the
contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be
sufficient evidence of the truth of such facts, matters and descriptions."

Recitals are usually listed as numbered or alphabetical paragraphs (if they are lettered paragraphs
then you would expect the operative provisions to be numbered) and commonly follow the words
"WHEREAS" or "RECITALS".

4. Operative Provisions

Operative provisions set out the rights and obligations of the parties to the deed and are normally
found immediately after the recitals following the testatum which is usually expressed as "NOW
WITNESSETH AS FOLLOWS", or similar words to that effect.

The Law Reform (Enforcement of Contracts) Act 1956 (of Tynwald) provides that certain
contracts are simply unenforceable unless they are in writing and signed by the parties. The
contracts that must meet these requirements are basically a guarantee of the obligations of another,
and any contract for the sale or disposition of land or any interest in land (this includes a trust of
land, a charge (mortgage) over land etc).

In addition to the requirement that some agreements must be in writing, various statutory
provisions require documents to be in the form of a deed in specified cases – the most important
of these is in legislation relating to property, for example:

Conveyancing Act 1908 (of Tynwald) section 28 states:

"(1) A person to whom any power, whether coupled with an interest or not is given, may, by deed,
release or contract not to exercise, the power.
(2) A person to whom any power, whether coupled with an interest or not, is given, may, by deed,
disclaim the power; and, after disclaimer, shall not be capable of exercising or joining in the
exercise of the power."

* Please note that (1) is subject to certain exceptions such as assents by personal representatives,
disclaimers of onerous property by a trustee in bankruptcy or a liquidator, leases or other tenancies
not requiring to be in writing, vesting order of a court etc.

5. Testimonium

This is a clause that is so named as it used to begin formally with the words "In eujus rei
testimonium". It is basically the concluding part of the deed and normally placed after the operative
provisions and before the schedules – it connects the signatures to the document.

It is now a clause which, for deeds, begins with "IN WITNESS", or for other forms of document
may begin with "AS WITNESS". It will not materially effect the deed whichever form is used.
When the execution is by one person on behalf of another, the testimonium should, unless it has
been fully dealt with in a recital, state this fact and the authority for delegation. The clause is not
necessary to make the deed valid but it preserves the evidence of its due execution, is important
and should really be included.

A full testimonium might read:

"IN WITNESS whereof the parties hereto have hereunto executed this agreement as a deed this the
day month and year first before written"

Or for a testimonium where the deed is executed by attorney under an ordinary power of attorney:

"IN WITNESS whereof this deed has been executed on behalf of [donor –ie. person granting the
power ofattorney] by his attorney [name] of [address] and by [details of other parties] this the day
month and year first before written."

6. Schedules
It is usual for any schedules to follow the testimonium but come before the signatures. By doing
this the idea is that nothing else can be added to the body of the deed.

7. Execution and Attestation

This is the signatures and witnesses page.

To be validly executed by an individual a deed must be signed by the individual in the presence of
a witness who should sign to acknowledge their witnessing of the signature and provide their
details. If a deed is to be signed at the maker's direction then 2 witnesses are required. There are
other rules which apply where an individual cannot read or write.

For an Isle of Man company incorporated under the Companies Acts 1931 – 2004 a deed can be
executed in the name of the company by affixing the company seal, or, if it does not have a seal,
by being signed by 2 directors or 1 director and the company secretary - OSIRIS TRUSTEES
LIMITED AND OTHERS v OAKLEY 2009 MLR 432 (CA).

The Companies Act 1931 specifically states that provided it is so signed and makes it clear on its
face that it is intended to be a deed "and expressed (in whatever form of words) to be executed by
the company" it shall be so executed. Therefore you could well have "Executed by XYZ Limited"
or "Executed for and on behalf of XYZ Limited" or a myriad of combinations. It may also state "by
any two directors or a director and the company secretary". It may also state that it is executed as
a deed, not in the testimonium, but at the point of execution as "Executed as a deed by...."

For an Isle of Man company incorporated under the Companies Act 2006 the requirements are
simpler in that section 86 of that Act provides that:

"(1) A company may, by affixing its common seal thereto, make or execute any written contract,
deed, instrument or other document.

(2) A company need not have a common seal, however, and the following subsections apply
whether it does or not.
(3) An oral contract may be made, and a written contract, deed, instrument or other document
may be made or executed on behalf of a company by any person acting under its authority, express
or implied.

(4) A written contract, deed, instrument or other document made or executed by a company which
makes it clear on its face that it is intended by the person or persons making it to be a deed has
effect, upon delivery, as a deed; and it shall be presumed, unless a contrary intention is proved, to
be delivered upon it being so executed.

(5) This section applies to contracts, deeds, instruments and other documents made or executed in
the Isle of Man or elsewhere."

So that for a 2006 Act company a deed may be executed by the affixing of the common seal or on
behalf of the company by any person acting under its authority, express or implied. In otherwords,
the person signing need not be a director and the signature need not be witnessed for the execution
to be valid.

The attestation clause where a deed is signed by an individual could say:

The attestation clause where a deed is signed by an attorney under an ordinary power of attorney,
signing in his own name, could say:
Two potential attestation clauses where a deed is executed by a company incorporated under the
1931-2004 Companies Acts would be:
It is generally accepted that where a deed is executed by a company by 2 directors or a director
and the company secretary signing it they effectively witness each other's signatures so that no
separate witness is required.

The attestation clause where a deed is executed by a company incorporated under the Companies
Act 2006 might be:

THE REQUIREMENT OF DELIVERY

Delivery is a legal requirement for a deed.

Delivery originated as a physical act (handing over the document), but it is now a rule that
evidences an intention to be bound by deed. The requirement of delivery fixes the date when the
executed deed takes effect. If a deed is delivered but is not to take effect until some future date it
is called an escrow.

When a company executes a deed there is a statutory implied presumption that it has also been
delivered by the company on the date of its execution unless a contrary intention is shown. In
otherwords, it is quite usual for a company to simply execute a deed without saying it is also
delivered. With an individual the deed should rightly state whether it is to be delivered by the
individual on signing( ie. by saying "Signed and Delivered as a Deed"), or, if delivered at another
date, it should state the date of delivery.

THE EXECUTION BY COMPANIES OF DEEDS ABROAD

Under the Companies Act 1931 (of Tynwald) section 31 provides that a company may appoint
(under a power of attorney) any person as its attorney to execute deeds on its behalf in any place
outside of the Isle of Man. This is fundamentally different to the "domestic" requirement on 1931
Act companies where they have to be signed by 2 directors or 1 director and company secretary.
(ie. always two different people) whether or not a seal is also affixed. The provision permits only
1 person (the authorised attorney) to execute the deed abroad on behalf of the company, in order
for the company to be bound by it.

Section 32 then provides that a company, if so authorised in its articles, may have an official seal
(same as the original seal but with the name of every place it can be used on it) for use outside the
Isle of Man. Again, a company can by writing under its normal common seal authorise anyone to
affix the said official seal for use abroad in such a foreign place. The authority of the person
affixing it lasts for the term granted to him by the company, or, if no term is granted, until it is
revoked by the company. When using such a seal, the person so authorised to affix it must certify
the deed with the date and place where it was affixed.

An attestation clause for such a deed exercised abroad by a duly appointed attorney might read:

Some may go further and state the date and nature of the document authorising the attorney as
such.

THE MEANING OF CERTAIN EXPRESSIONS FOUND IN DEEDS

"This Deed is supplemental to..." the Conveyancing Act 1908 (of Tynwald) section 29 states:

"(1) A deed expressed to be supplemental to a previous deed, or directed to be read as an annex

thereto, shall, as far as may be, be read and have effect as if the deed so expressed or directed
were made by way of indorsement on the previous deed, or contained a full recital thereof."
"Premises" are the words in the operative part that describe the parties and the transaction
involved.

"Parcels" are the words in the premises that describe any property involved.

"Locus sigilli" is the position indicated for placing the seal – normally a little round circle.

"These presents" simply means present statements.

WILL

Will is the best medium through which a person can ensure that his property is divided as per his
desire after his death. If an individual dies without any will his property would be distributed
intestate under the Indian Succession Act, 1925 which has been amended in 2005 and 2015 giving
rights to women in family property. The Mohammedans are not governed by this Act. If a Muslim
dies without any will his property will be distributed as per Muslim laws.

In this blog, I have discussed various essential elements of the will. I have also discussed the
execution procedure of the will. In the end, I have provided a sample of a draft of the will.

Essential Elements of Will

It is important to remember that a will need not be drafted in legal language. It can be drafted in
simple language but the intention of the parties need to be clear. There must not be any ambiguity.
Secondly, it is not important to have a will on non-judicial stamp paper. It can be drafted on a
simple white paper. To have a legally valid will, one needs to have following clauses in their will-

1. Personal Details – one has to clearly give his personal details in the will. One has to specify
details like son/ daughter of, residential address, age, date of birth, etc.
2. Declaration of Date – the date on which the will is being prepared has to be mentioned. It
helps the court to identify the last and the valid will, in the case of multiple wills.
3. Validate Free Will – one has to clearly state that he is making the will with his free consent.
He has to specify that there is no undue influence or coercion or pressure under which he
is writing the will.
 4. Provide Executor’s Details – an individual needs to nominate an Executor in his will. The
Executor is the person who is responsible for executing the will. Along with providing the
executor details, the testator should add a clause describing what would happen if executor
dies before the testator.
5. Details of Assets– one can dispose of movable and immovable property through a will. The
testator has to give details of all kinds of property that he wants to dispose of. In the case
of immovable property like house, land, etc. he has to give a proper address. In the case of
movable property like bank deposits, mutual funds, share, etc. he has to give authentic
identification numbers. The testator should also specify the mode through which income
generated from these assets would be distributed to the beneficiaries.
6. Liabilities of the Testator – testator should specify any liability that he owes and the mode
of settling that liability through his assets. He should also specify the mode to settle probate
charges and executor fees.
7. Name of the beneficiary(ies) - the testator has to mention the name and some personal
details of the beneficiary so that the court can identify the individual. The testator can
describe the relation like my wife, my son, my daughter, etc. In case, where the beneficiary
is a minor, the testator should specify the legal guardian of these minors. In case, where
the beneficiary is a daughter, the testator should specify different situation regarding her
marital status.
8. Signature – testator has to sign the will at the end.
9. Signature of Witnesses – there is a requirement of getting the will tested by two witnesses.
The testator has to specify the father’s name and the residential address of the witnesses.

One can also include codicil to make amendments or to alter the will. The testator can change the
beneficiary, executors, assets, liabilities, etc. by adding codicil in the will. The court interprets will
and codicil together to know the true intention of the executor.

Including all the above-mentioned elements would reduce the chances of ambiguity in the will. It
would make it easier for the executor to obtain probate. Probate is essential to execute a will and
codicil as discussed in next section.

Execution of Will
To execute a will, one needs to get a probate from the court with competent jurisdiction. Under
the Indian Succession Act, only an executor can get a probate from the court. If there is no executor
appointed in the will, an application for the appointment of executor has to be filled in the court.
This application of appointment has to be filed before an application of Probate is filed.

Probate is a copy of will which has a court seal. It signifies that the will is the valid and the last
will of the testator. An executor cannot execute a will without a probate if the immovable property
in the will is located in Mumbai, Kolkata, and Chennai. To obtain a probate following steps has to
be followed –

1. Application
The application of probate is filed by the lawyer. It has to be filed in the court which has
the competent jurisdiction. In case, the value of properties mentioned in the will is very
high, the case would be filed in the higher court.
2. Documents
It has to be proved to the court that the testator has died. The lawyer has to prove the
validity of the will i.e. it has to prove that it was the last will and that it was by the free
consent of the testator.
3. Notification
After the application is filed, the court notifies the posterity of the testator and the general
public (through newspaper). It is to ensure that they have an opportunity to file an objection
against “granting of probate”.
4. Fees
The parties have to pay a probation fee which generally depends on the valuation of assets
mentioned in the will.

After receiving the probate from the court, the executor will execute the will. He will transfer the
assets in the name of a respective beneficiary.

Power of Attorney: A Mode of Creation of Agency

Chapter X of the Contract Act 1872 governs agency. An ‘Agent’ is someone employed to do any
act for another or to represent another in dealings with third person/s. The person for whom such
act is done, or who is so represented, is called the ‘Principal’. The authority of an Agent may be
expressed or implied. An express authority, in turn, could be given by words spoken or written.
An implied authority is inferred from the circumstances of the case.

A “power of attorney” is a mode of creating an express agency. It is a written instrument executed

by a Principal to appoint an Agent to act for the Principal in one or more transactions. “Power-of-
attorney” includes any instruments empowering a specified person to act for and in the name of
the person executing it.

Is It Necessary to Notarize a Power of Attorney?

There is no specific mode prescribed for the execution of power-of-attorney. Yet it is not
uncommon to notarize the execution of power of attorney. An aspect of notarization is governed
by provisions of Notaries Act, 1952. Under the said Act a notary is appointed by Central or State
Government to do specified acts inter alia to verify, authenticate, certify or attest the execution of
any instrument.

Under the provisions of Indian Evidence Act, a power of attorney executed before and
authenticated by a Notary Public carries a presumption that it was properly executed.

Section 85 of the Indian Evidence Act reads:

“85. Presumption as to powers-of-attorney.—The Court shall presume that every document

purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a
Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative
of the Central Government, was so executed and authenticated.”

In Kamla Rani and Ors. vs. Texmaco Ltd. MANU/DE/7343/2007, the High Court of Delhi
explained the effect of notarization as follows:
“Authentication by a notary public is a solemn act performed by the notary public whose duty is
to ensure that the executant is the person before him and is identified to his satisfaction. Once a
document is authenticated by a notary public, it will be presumed that the document was duly
executed and was in order. The use of the expression ‘shall presume’ shows that the section is
mandatory and the court has to presume that all necessary requirements for the proper
execution of the power of attorney were duly fulfilled before the notary public. As observed in
AIR 1984 363 E.C. & E. Co. Ltd. v. J.E. Works, if 2 conditions are satisfied, firstly the power of
attorney being executed before a notary public and secondly it being authenticated by a notary
public, a presumption would arise under Section 85 about the executant of the power of
attorney. Onus would thus lie on the opposite party to prove to the contrary. It is well settled that
authentication would mean more than mere execution. Where proof of authentication surfaces, the
benefit of Section 85 has to be granted.”

While a power of attorney executed before and authenticated by a Notary carries a presumption as
to its due execution, the absence of such authentication would not render the document invalid.
Explaining this aspect, the Delhi High Court in Grafitek International Versus K.K. Kaura &
Ors. 2002 SCC OnLine Del 3 held as under:

“Merely because the power of attorney is not duly notarized does not mean that the concerned
person was not authorized to institute the suit. Notarization raises the presumption as to its
authentication and no more. Notarization of power of attorney is a matter of procedure and raises
the presumption of the authority of the person to institute the suit. In other words, it does not mean
that power of attorney executed in favour of a particular person but not duly notarized does not
confer power upon the person to institute the suit.”

Keeping in view the benefit of presumption as to its due execution, it is advisable to notarize the
power of attorneys.

Power of Attorney Executed Abroad

Section 14 of the Notaries Act, 1952 empowers the Central Government to declare that notarial
act lawfully done by Notaries in other countries shall be recognized for specified purposes.
Pursuant to power under said Section 14 Central Government has notified only three countries
namely Belgium, New Zealand and Ireland.

Calcutta High Court in a recent decision took a view that notification under Section 14 of the
Notaries Act is not mandatory and Section 85 of the Evidence Act applies to documents
authenticated by the notary public of other countries. The contrary view was taken by High Court
of Kerala.

In absence of uniformity of view amongst the High Courts, in order to seek the benefit of section
85 of Evidence Act, it is advisable that power of attorney executed outside India, should to be
authenticated by Indian Consul, Vice-Consul or representative of the Central Government in that
country and not by any Notary Public.

Need to Authenticate Power of Attorney to be Used for Presenting a Document for

Registration

In case the document to be registered under the Registration Act 1908, it is possible to present the
same for registration either through the person executing such document or through an Agent of
the executrix duly authorized by power-of-attorney executed and authenticated in the manner
specified in section 33 of the Registration Act.

Section 33 of Registration Act provides:

“(1) For the purposes of section 32, the following powers-of-attorney shall alone be recognized,
namely:-

(a) if the principal at the time of executing the power-of-attorney resides in any part of 18[India]
in which this Act is for the time being in force, a power-of-attorney executed before and
authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal
resides;
(b) if the principal at the time aforesaid resides in any part of India in which this Act is not in
force, a power-of-attorney executed before and authenticated by any Magistrate;

(c) if the principal at the time aforesaid does not reside in India, a power-of-attorney executed
before and authenticated by Notary Public, or any court, Judge, Magistrate, Indian Consul or
vice-consul, or representative of the Central Government:

PROVIDED that the following persons shall not be required to attend at any registration-office or
court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and
(b) of this section, namely-

(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so
to attend;

(ii) persons who are in jail under civil or criminal process; and

(iii) persons exempt by law from personal appearance in court.”

No Need for Authentication of Power of Attorney when Agent Himself id the Executrix

The provisions of Section 33 of Registration Act, 1908 requiring the Power of attorney to be used
by an Agent to present a document for registration to be authenticated, are not applicable in all
cases where presentation is by an Agent. The requirement of authentication applies only where the
person presenting a document is the Agent/attorney of the person executing it, and not where it is
presented for registration by the actual executrix, even though such executrix may have executed
it as an Agent for the Principal. Here the decision of Supreme Court in Rajni Tandon v. Dulal
Ranjan Ghosh Dastidar, (2009) 14 SCC 782 is relevant wherein it was held:

“Where a deed is executed by an agent for a principal and the same agent signs, appears and
presents the deed or admits execution before the registering officer that is not a case of
presentation under Section 32(c) of the Act. As mentioned earlier the provisions of Section 33 will
come into play only in cases where presentation is in terms of Section 32(c) of the Act. In other
words, only in cases where the person(s) signing the document cannot present the document before
the registering officer and gives a power of attorney to another to present the document that the
provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has
to be necessarily executed and authenticated in the manner provided under Section 33(1)(a) of the
Act.”

Registration of Power of Attorney

 Registration of all power of attorney is not compulsory.

 Only in certain states in case the power-of-attorney relates to transfer of immovable
property possession whereof has been or is handed over to the attorney holder or where
Irrevocable power of attorney relating to the transfer of immovable property is made,
that the deed of power of attorney is required to be registered.
 The registration of all other power of attorneys is optional. Yet a registered document
carries with it a presumption that it was validly executed. Consequently, it is for the
party questioning the genuineness of the transaction to show that transaction was
invalid.
 Therefore, to preempt any possible attack that power of attorney was not duly executed,
it can always be registered.

Payment of Stamp Duty

A Power of Attorney is chargeable under section 48 of Schedule I of the ‘Indian Stamp Act, 1899’.
The Stamp Act as applicable in different States prescribe the stamp duty payable on different types
of power of attorney. Non-payment of prescribed stamp duty may entail the following
consequences:

1. The power of attorney would be inadmissible in evidence before any authority capable
of receiving evidence or before any public authority.
2. The document can also be impounded for enforcing the payment of full stamp value.
3. An unstamped or under the stamped power of attorney can be admitted in evidence only
if penal stamp duty 10 times the value of the original amount is paid.
Conclusion

To sum up notarization and registration of power of attorney though not essential in all cases, to
effectively meet any challenge as to due execution thereof, it is better to get the same notarized. In
case substantial rights are derived under/through power of attorney, the same could even be
registered. In cases where authority is conferred on an Agent to present a document executed by
Principal for registration, its authentication by registering authority is essential. Payment of
appropriate stamp duty is invariably be ensured.