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The Power of Attorney (POA) Registration

The Power of Attorney (POA) is a document through which a right is granted by the principal in favour of his/her agent to carry out specific actions.

According to sec.1A of the Power of Attorney Act 1882, a power of attorney includes any instrument empowering a specified person to act for and in the name of principle executing it. Power of Attorney is also defined in Sec.2(21) of the Indian Stamp Act. A power of attorney holder is nothing but an agent as defined in sec.182 of the Indian Contract Act 1872. Section 85 of Indian Evidence Act also deals with the Power of attorney.

Earlier, the POA was always signed only by the principal but today, many States in India including Tamil Nadu insists that the power agent also signs in the POA.

In case if no fixed term is mentioned and it is valid until it is revoked by the principal or till the lifetime of the principal. In common usages, there are two main kinds of Power of Attorney.

General Power of Attorney

A General Power of Attorney gives your agent the authority to handle all your affairs during a period of time when you are unable to do so, such as when you are traveling out of the country or when your physical and/or mental health are compromised. A General POA can be included as part of your estate plan to ensure that your financial affairs will be tended to in the event that you are unable to do so.
A General Power of Attorney is typically very broad, giving the agent extensive powers and responsibilities. Powers typically include (but are not limited to):
Handling banking and other transactions Filing tax returns Buying, selling, or managing real estate and other property Entering contracts Settling claims
You also have the option to grant your agent additional powers, such as making transfers to living trusts, maintaining and operating business interests, and disclaiming interests, among others.

Special Power of Attorney

A Special, Specific or Limited Power of Attorney gives your agent the authority to conduct a specific act or acts on your behalf. Because this type of Power of Attorney is limited to the act or acts designated in the document, it is especially important to be very clear about the powers you wish to appoint to your agent.
You may use a Special Power of Attorney to appoint an agent to act on your behalf in the event that you become ill or disabled, are embarking on extended travel, or are otherwise unable to handle a specific type of task. You may designate any of the powers listed above (under General POA) to your agent, or any other powers you deem necessary.

Fatures of a POA in Tamil Nadu

In Tamil Nadu, many of the land transactions were carried out on the basis of POAs. It might be so to avoid payment of stamp duty and registration fees.

Many instances have been reported of POA holders selling land after the death of the Principal. Buyers get into trouble when Legal Heirs of the property owner, claim rights over it. Such cases end up in protracted legal battles and ultimately the sale deeds are declared invalid in many cases.

The Tamil Nadu Registration Department has revised the rules of using Power of Attorney (POA) for Property deals. Under the new rules, a POA holder seeking to carry out a land transaction will have to give documentary evidence to the Sub-registrar to prove that the Principal, the person who issued the POA is alive. The Principal has to get a “live” certificate with his photograph affixed to it from a Registered Medical Practitioner or a Gazetted Officer. These certificates are valid for 30 days only.

The new rules are applicable to all POAs registered since February 4, 2013.

Since November 2010 — the document is duly registered under Book I records and hence the details of transactions executed after the above said period also appear in the encumbrance certificate. No other State in India has this unique feature.

Precautions to be observed while drafting a POA
  1. Mention the residing and original address of the principle and agent.
  2. Mention how the principal has got a valid title to the property and whether his/her name is reflected as owner in government revenue records.
  3. Describe the purpose for which it is framed is to be clearly mentioned in the clause of POA
  4. Signatures of the principal, power agent and two witnesses must be affixed.
  5. Ensure that it is duly registered and the stamp duty prescribed by the State has been paid
  6. For availing loans based on a POA, precisely mention the authority of power agent to sign loan documents and can create an equitable mortgage in favour of banks/financial institutions on behalf of the principal.
  7. In case of a POA is to be granted by a builder (private or public limited company) to their employee, ensure that a certified copy of supporting board resolution authorising the power agent is produced. In case the builder is a partnership firm, check whether all the partners have authorised in writing any specific partner or their employee to act as power agent.
  8. In case power is given to two or more persons, a clause has to be inserted in the power of attorney as to whether the attorneys are to act jointly or severally.
  9. If the POA is being executed abroad, ensure that it is either notarized or signed before Indian Consulate/ High Commission/ Embassy officials and then duly adjudicated within 120 days from the date of execution of the said POA by the Power Holder in the jurisdictional sub-registrar office.
  10. You must also check whether the description of the property (schedule of property) is in order.
Precautions to be observed while relying on a POA
  1. Always check the availability of the original duly registered GPA.
  2. Ensure that as on the date of execution of any document based on the POA, the POA is in force and the principal is alive.
Power of Attorney Stamping/ Adjudication Process

When the Principle held in abroad while giving/ executing the power of attorney to agent/ holder who is in India, then the holder should adjudicate the same before the concerned jurisdictional  sub-registrar office within 120 days from the date of execution of power of attorney

  1. Type One Affidavit for Adjudication -Power of Attorney holder should sign the affidavit before Notary public. (and it should Notarized)
  2. Covering Letter requesting to District Registrar by Attorney Holder
  3. Take a xerox copy of the General power of attorney received from abroad,(With Original)
  4. Address Proof and ID Proof and One Pass port size photo fixed back of the power of attorney first Page.
  5. Stamp Duty Fee.

Prepare all the above documents and approach the District Registrar office in your city and they will finish the adjudication process within a day time and they will hand over to your Adjudicated Power of Attorney.

Registration Fees and Stamp Duty:

At present the stamp duty and registration fees for registering POA to sell the property is Rs.100 and Rs.10,000/-  respectively in case of non-family members and Rs.100 and Rs.1000/- respectively in case of family members and all other purpose is Rs 100/- and Rs. 50/- respectively. But in case of any consideration is received by the agent, the stamp duty and registration fees would be 4% and 1% subject to a maximum of Rs.10,000/- respectively on the value of consideration amount.

Registration Boss expert opines that in section 34 of Tamil Nadu Registration Act says it is the duty of the sub-registrar to ascertain whether the POA holder has the right to execute a transaction on behalf of the principle. So draft carefully and remit the stamp and registration fees in accordance with the nature of POA. The clause of the POA should be precise and concise. So careful drafting of POA would go the way of contradiction free for further process. For any assistance required to prepare and register a power of attorney deed, you may contact to our Registration Boss…

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