Power of Attorney for property in India – The Definitive Guide

Power of Attorney is an important legal document in property and real estate matters and yet is not well understood and given importance by most people. This ignorance sometimes leads to big legal troubles. This comprehensive guide will answer most of your questions related to power of attorney for property in India. Yet, if you have more questions please leave your comments below. If a point is worth covering, we will update this guide.

What is a Power of Attorney?

A power of attorney is a legal document that authorizes another person, called an agent, to act on behalf of the person who created the power of attorney, known as the principal, in the event that the principal cannot make those decisions himself or herself. Depending on the requirement, the principal can decide the level of authority given to the agent. The power of attorney may cover any or all aspects of money management, property and asset management, personal care and managing company matters etc. Hence, the power of attorney can be classified as general or special, depending on the authority given to the agent by the principal. Types of Power of Attorney are covered in more detail below. In this guide, we are focusing on power of attorney for property in India. Any signed Power of Attorney document is governed by “Power of Attorney Act, 1882”.  The act, passed on 1st May 1882, applies to the whole of India except the state of Jammu & Kashmir.

Why Power of Attorney is important?

In the modern world, businesses and transactions have grown to proportions beyond what our forefathers had ever imagined. As businessmen, professionals and leaders have become busier than ever, it has become necessary for them to delegate more and more functions. Power of Attorney serves the purpose of delegating important functions which require legal authorization. Principal should be careful while authorizing an agent and the powers to be delegated to avoid inconvenience and expense of any legal proceedings in the future.

Difference between Power of Attorney and Will

Power of Attorney is an extremely important document in property and real estate matters yet is the most misunderstood. People often confuse the Power of Attorney (PoA) with a Will (Probate) though both are two very different legal documents and serve different purposes. A will comes into effect on the day a person dies. A Power of Attorney applies during a person’s lifetime and ceases to apply when he dies. A Will and a POA do not overlap but complement each other. They deal with different areas of your life and are both required for an effective estate planning.

Power-of-Attorney-for-Property-India

Power of Attorney

Types of Power of Attorney

  1. General Power of Attorney

In this type of Power of Attorney, the principal authorizes the agent to do certain acts in general related to the subject matter. It grants broad powers to the agent to make decisions. For example, in many states in India, property sales were being executed using this instrument till Supreme Court banned such transactions in 2011. In a property sale transaction using General Power of Attorney, the buyer gets a GPA from seller granting rights not only for the use of the property but also for further sale to someone else. The buyer can further sell the property to another buyer through another GPA. You must be really careful in signing a General Power of Attorney for Property in India to avoid legal troubles later with respect to the ownership of your own property.

  1. Special Power of Attorney

In a special power of attorney, the agent is appointed by the principal to do specific act or acts as mentioned in the document. It narrows the choices the agent can make. In order to reduce or diversify risk, you can even make several different special POAs, with different agents for each instead of signing one General PoA authorizing one agent to carry out all tasks.

  1. Durable Power of Attorney

Generally, under a Power of Attorney an agent’s power ends if the principal becomes mentally incapacitated, unless specified otherwise in the document. A Power of Attorney that specifies to be in effect in the event of future incapacity of the principal is called as durable power of attorney.

Powers under Power of Attorney for Property

An agent may be authorized to execute any or all of these powers under a Power of Attorney for Property in India:

  • Lease, bargain, sell, collect rents, borrow, mortgage
  • Manage, compromise, settle and adjust all matters pertaining to real estate
  • Execute contracts, deeds, bonds, mortgages, notes, cheques, drafts, money orders
  • Sue on behalf of the principal

Validity and Duration of Power of Attorney

Power of Attorney shall remain in force until:

  • Expressly revoked by the principal or agent by giving a written notice, or
  • The principal becomes mentally incapacitated, or declares bankruptcy or dies, or
  • The specified act is completed under the PoA, or
  • The end of the fixed period of power granted by the principal as mentioned in the deed, or
  • The event of divorce or legal separation in case a principal has named his spouse as his agent.

Execution of Power of Attorney

  • Eligibility – A power of attorney can be executed by any person who is competent to enter into a contract. A company while executing power of attorney must make conformity with the “Articles of Association” and its common seal.
  • Legal Document – As per Indian Law, Power of Attorney is a legal and binding document on both principal and the agent. It must therefore be framed carefully using legal terms and clearly defining the scope, objectives and responsibilities.
  • Notarisation – A Power of Attorney must be signed and notarized by a certified notary advocate. You will need to show your ID to the notary so that he can certify the document. It must then be executed and authenticated by the registrar or sub-registrar of assurances as per the ‘Registration Act, 1908’.
  • Registration – A power of attorney is not required to be registered unless it creates an interest in an immovable property i.e. charge in favor of the donee or the agent.
  • Stamp Duty – A power of attorney is chargeable under ‘Indian Stamp Act, 1899’. A stamp duty has to be paid compulsorily by the principal or donor in the jurisdictional registrar’s office.

Conclusion

A Power of Attorney is an extremely important legal document which can be admitted as an evidence in the court of law in case of any violation. Therefore, the principal must carefully select an agent who is trustworthy, someone who will act in the interest of the principal and not use his property for personal gains. Hope you enjoyed this post on “Power of Attorney for property in India – The Definitive Guide

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Team AY is the editorial team of AssetYogi led by Mukul Malik. A small group of Real Estate enthusiasts, Team AY works hard everyday on a vision of making high quality Real Estate knowledge freely available.

21 comments

  1. Mukul Sir,
    I am impressed by the way you have maintained the blog. Cheers !! I have a apartment owned by me & my brother. I want to issue a PoA to my brother so that he can sell it. I have a few questions for the same. Can you please take some time to answer these ??

    1) Will I need general PoA or special PoA ?
    2) Where can I find the template for the same ? It will be of great help if you can email it.
    3) Should there be any witnesses while I sign the PoA ?? Coz I intend to mail the documents to Indian Consulate in Atlanta and not personally visit it.

    • Hi Hiren

      1. You can issue a Special PoA to your brother.
      2. I would suggest you to take help of a lawyer who will draft it for you and can notarize it.
      3. Get signatures of 2 witnesses on PoA.

      Hope it helps.

  2. The power of attorney is at times couples with consideration and in such an event it is irrevocable. This used to happen when DDA properties were being transferred and the seller wanted to avoid sharing unearned increase with DDA. The seller used to transfer the property on the strength of GPA, WILL, Promissory Note, Agreement to Sell and receipt.

  3. Dear Sir

    I live in California, USA. I intend to sell my Apartment in Hyderabad, India. Me and My Wife both are owners of the Property. Do both of us need to be present while selling the Property ? or One of us can go to India to sell ?
    What is the procedure ?

    I intend to give Special Power of Attorney for selling Apartment to my Brother In Law who is in Hyderabad – I have been told I can get the SPA papers signed at Indian Consulate here in US. Do both of us (me and My Wife) need to give different SPA to my Brother in Law ?

    • Yes, you can give SPA to your relative sell your property. Both, you and your wife, can give a single PoA.

  4. Hi – we have farming land in Gujarat. 7/12 has 4 names in it, only 1 is presently alive. Of the 4 names one is my father & one is also my uncle who are now both deceased. My father has 3 children & my uncle has 3 children & we all live in the UK. I am the active person in family frequently visiting India. Is it possible for me to get POA from my brothers & cousin brothers so I can initiate name changes to land ownership at local talaka offices in india? All are agreed to give me POA so we can remove old fathers name and insert my name in care of my fathers and uncles share. Is this possible or is there another procedure I have to go through? My brothers & cousin brothers refuse to visit india and have trusted me on this matter. Please help and advise as much as you can. Kind regards.

    • Hi Kumar

      Although PoA suffices the need of signatures, however, transfer of title may require physical presence of your relatives. We suggest that you visit the local Taluka office to understand the exact requirements and also consult a local lawyer.

  5. Hey, mr mukul i want the information related to only jamnagar city of gujarat .

  6. Hi my father has commercial property in jalandhar , we have appointed a lawyer he wants a power of attorney made. We are in England , we would like to know what this is and what is the purpose of this.

    • Hi Sarban

      Broad outlook of Power of Attorney is given in the article.
      You need to ask your lawyer about the purpose of PoA and then accordingly a customised PoA can be made.
      A Power of Attorney is a very important legal document. Please don’t sign on anything that you don’t understand completely.

      If you have any specific questions, please don’t hesitate to ask.

  7. Vishnumoorthy Kamath

    Dear Mr. Malik

    My mother’s fathers Land is sold and being one of the may recipient, I have to sign one document in front of a Notary and also in Notaries book. But right now I am abroad and can not come immediately. Can I sign a power of attorney in my wife’s name and can she sign on my behalf?

    Kindly clarify.

    Best regards

    Vishnu

    • Mr. Kamath

      Yes you can give PoA to your wife for signature. But please discuss details with an advocate.

  8. Hi.
    I recently bought flate.i m living in sydney. My all payments has done n builder is ask to do deed agreements but i can’t come there to so.can i do power of attorney to some one. Awaiting your reply

    Thanks

  9. I live outside India and want to register my newly constructed residential flat.My relative in India will sign the sales deed registration on my behalf.
    1. I understand that I need not execute any POA and Form 32A can be used to authorize my relative to present before Registering officer. However, the builder or seller is asking to provide a General POA in favor of my relative.
    2. Also, i understand that the actual registration process will be completed by the builder in the designated registrar office, and the buyer signature (in the deed) will be collected at the builder office.
    Please comment if my understanding is correct in point 1. And is the process in point 2. is fine.

  10. Dear Sir,
    My query is as under:

    I intend to purchase a Immoveable property in Mumbai. The owners of the said property have issued a General Power of Attorney in favour of another person with regard to the managing the said property. This person has agreed to sell me the property. The said Power of Attorny has been Notarised in June 2010 and a Stamp Duty of Rs.100/- paid.

    I understand that the owners are still alive. In this case, whether the Notarised Power of Attorney is suffiicient for me to go ahead with the Sale Agreement. if so, what precautions do I need to take to safeguard my interest.

    • Dear Nitin

      You should check whether the GPA holder has absolute selling rights. It is better to take legal help and check all clauses of GPA. The advocate can guide you through complete process of sale deed registration.

  11. Who needs to sign on the PoA?
    Is it just the executioner or both executioner and beneficary?

  12. Amazing article again! Just wrote a comment on your other article on Delhi Housing Scheme Review.
    Excellent articles. Awesome website.
    Cheers Mukul. You have way to go.

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