Law Commission Report
The Powers Of Attorney Act,1882
LAW COMMISSION OF INDIA SIXTY-EIGHTH REPORT ON THE POWERS OF ATTORNEY ACT, 1882 MARCH, 1977 A P. B. Gajendragadkar D.O. No. F. 2(2)/77-L.C. 12, Tughlak Road, New Delhi-11 March 15, 1977 1 have great pleasure in forwarding herewith the sixty--eighth Report of the Commission on the Powers of Attorney Act. 1882. This, no doubt, is a very minor Act and the Report of the Com- mission is morc in the nature of a Note than the usual type of Report. However, the Commission thought that since the Act was very old, it needed a fresh look and so it examined the said Act and has made some suitable recommendations. One of the main points which we have made in the Report relates to the definition oi' the "Power "' Attorney" which the Act did not contain and we thought that an Act of this kind was incomplete without the definition of "Power of Attorney". The Report makes certain other recommendations which it is not necessary to set out in this letter. The Report will show that the study of the Act has also involved a close examination of several other Central Acts. Before concluding, I would like to add that after the Commis- sion was constituted in September 1971, it has forwarded twenty- four reports (number forty-five to sixty--eight) including the pre- sent one; and after the present Commission was reconstituted in September 1974, it has forwarded eight reports including the pre- sent one.' ' In the end, let me repeat the suggestion which I have already made on two or three previous occasions that, after the report of the Commission is printed, copies of the report should be circuiated to the relevant academic and professional institutions so that it may stimulate a debate on the questions considered by the Commission and that, in turn, may assist GoVernment_ in comhig to its own conclusions on the relevant recommendations made by the Commission. I may. incidentally, add that the Commission has already completed its study of the. Indian Evidence Act and has finalised its report including several recommendations for the amendment 'ti 1%.'; relevant provisions of the Act. This, no doubt, was _an arduous task. but the Commission has done its best to fpxacmine the Act in depth and has made recommendations which tr: put?-I mission thinks it is necessary to make in the Act. e a ii report deals exhaustively with all the questions which the Com- mission discussed before reaching its final conclusions, It has become an extensive document and spreads over more than two thousand pages. It is now being typed and as soon as its typing work is over, it will be forwarded to Government in due course. In dealing with the problem of suggesting recommendations in the relevant provisions of the Act, the Commission has been fully conscious that the Act is a very commendable piece of legis- lation and has served a very useful purpose of aflording invaluable assistance in the conduct of proceedings before the Courts. Never- theless, with the passage of time, it has been disclosed that there has been a difference of judicial opinions on some relevant and important points and this aspect of the matter the Commission has borne in mind in making its recommendations. After the Act was passed. in, 1872, some new juristic princi- ples have been evolved and received recognition from the jurists and these have been carefully examined by the Commission in making some of its recommendations. At present, the Commission has undertaken another important Act for its study and that is the Transfer of Property Act. This Act was last amended in 1929 and the Commission feels that since it is an important piece of legislation, a fresh look at the Act is now required. Like the study of the Evidence Act, the study of this Act also is being made by_ the Commission in full depth, and though the. task is heavy and arduous, the Commission trusts that it will complete its work in regard to this Act and will be able to make its report during its tenure which expires on the 31st August, 1977. Yours Sd./- --» (P. B. Gajendragadkar) Hon'ble Shri H. R. Gokhale, _ Minister of Law, Justice & Co. Affairs, Government of India, New Delhi. REPORT ON THE POWERS OF ATTORNEY ACT, 1882 CHAPTER 1 CHAPTER 2 CHAPrER 3 CHAPTER 4 CHAPTER 5 CHAPTER 6 APPENDICES APPENDIX 1 APPENDIX 2 CONTENTS PAGE No. Introductory - - . - - 1 Extent and definitions - - - 2 Effect and construction of powers-of-attorney. 7 Deposit of powers of attorney ' - ' 12 Married Women - - ' 0 14 Miscellaneous . - - ' 16 Recommendations as shown in the form of a draft Bill . - ' ' 21 Comparative table - - - - 23 CHAPTER 1 INTRODUCTORY Why the subject has been taken up 1.
1 Revision of the Powers--of--Attorney Act, 1882, has been taken up by the Law Commission as a part of its function of revising Central Acts of general application and importance. The law relating to powers of attorney touches on contracts and pro- perty. The Commission has already forwarded a number of Reports dealing with certain subjects forming part of the Law of Contract', and also a few Reports dealing with branches of the Law of Property'~' or touching thereon. It, therefore, appeared to be appropriate to take up this Act also.
Another consideration which has weighed with the Commis- sion in taking up the subject is the fact that the existing Act is expressed in language which is manifestly out of tune with modern legislative phraseology.
Need for revision 1.2 Though the Act does not require reform in many matters of substance, the structure of its sections is, at many places, rather antiquated". A few of its provisions have become obsolete by the passage of time'. In the circumstances, it is desirable that the whole Act should be replaced, instead of mere amendments being carried out in the various sections.
Reasons for enacting the existing Act 1.3 So much as regards the need for revision. We begin our consideration of the Act with the Statement of Objects and Rea- sons to the Powers--of--Attorney Bill No. 22 of 18815. The rea- sons why the legislation in question was initiated were thus stated:
1. For example, the 7th Report (Partnership Act). the 8th Report (Sale of Goods Act), the 11th Report (Negotiable Instruments Act) and the 13th Report (Contract Act).
2. See the 6th and 30th Reports (Registration Act). the 17th Report (Trusts Act), and the 66th Report on the Married W0men's Property Act, 1882.
3. For example, in sections 2 and 3, there are a number of paragraphs, which do not appear as sub-sections.
4. For example. section 2, 2nd paragraph; section 3, last paragraph, and section 4(g) dealing with the application of the Act to old powers of attorney.
5. Gazette of India, 22nd October, 1881, Part V, pages 1473-1474.
"As the law stands, the donee of a power--of--Attorney, when executing an instrument pursuant to the power, must sign, and where scaling is required must seal, in his principal's name. The first object of this Bill is to render it legal for such donees to execute in and with their own names and seals. The law respecting the execution of instruments under powers--ot'--attorney will thus be made accordant with what will be the rule in England from and after the 31st December, 1881, and with what is believed to be the practice in the North--Western Provinces, British Burma and, probably, else- where in India. The section elfecting this is copied from sec- tion 46 of the recent Statute 4-4 & 45 Vic., e. 41. which takes elicct from the close of the present year.
"The second object of the Bill is to preclude doubts as to the liability of a donee of a power--of--attorney who makes payment in good faith after the donor of the power has died or become lunatic or bankrupt or insolvent, or has revoked the power, when the fact of death. lunacy, bankruptcy, insol- vency or revocation was not known to the donee at the time of making the payment. The section effecting this is copied from section 47 of the Statute abowe--mentioned, and merely extends to all attorneys the rule as to trustees, execu- tors and administrators making payments under powers, which has been in British India for the last fifteen years--see Act XXVIII of 1865. section 39.
"The third and last object of the Bill is to provide for the deposit of instruments creating powers-of--attorney, and for the evidence of the contents of such instruments. The section effecting this is copied (with the modifications necessary to adapt it to India) from 44 & 45 Vic., c. 41, section 48.
--WHlTLEY STOKES"
Aspect of power-------:'rs significance 1.4 The essential characteristic of an agent is that he is invested with a legal power to alter his prlncipal's legal relations with third persons : the principal is undmr a correlative liability to have his legal relations altered.
tial hol This theory (as to the essen-
charaeteristie of an agent) was advanced first by Hohfeld'.
The English judges have occasionally described an agent as cling such a ''power''''-'*.
I 2 _3 4 . Hohfeld, Fundamental Legal Conceptions, page 52.
. Read v. Anderson, (1884) 13 Q.B.D. 779, 782; (Bowen, L.J.).
. Lamb v. Goring Brick Co., (1932 1 K.B. 710, 713; (Wright. J.). . Salford Corporation v. Lever. (1891) 1 Q.B. 168; (Lord Esher).
This is also the expression used by Mellish L.J.', by Romilly M.R.2 and by Lord Watson?' in reported cases.
Restatements and academic writings 1.5 This theory was later developed by Seavey in an article in the Yale Law Journal? The American Restatement5 of the Law of Agency states that an essential characteristic of the rela- tionship of agency is that "an agent or apparent agent holds a power to alter the legal relations between the principal and third persons and between the principal and himself". Falconbridge"
discusses the whole law of agency in terms of the agent's power.
Salmond7 employs this expression in his draft of the Law of Contracts : "An agent is a person who is authorised by law to exercise on behalf of another person, called his principal, anr power possessed by that other person . . . . . . .. of doing any act in Law."
J. L. Montrose3 accepted it in an article published a few years ago.
English Act of 1971 1.6 In England, the Powers of Attorney Act, 1971 makes cer- tain new provisions in relation to powers of attorney and the dele- gation by trustees of their trusts, powers and discretions.
Section 1 of the Act contains rules for the execution of powers of attorney. In brief, it requires attestation by two witnesses.
Section 2 abolishes the need to file or deposit instruments creating powers of attorney in the Supreme Court.
. Parker V. Mckenna, (1874) LR. 10 Ch. 96, 125. .Pariente v. Lubbock. (1855) 20 Beav. 588, 597-598.
. Stumore V. Breen, (1866) 12 App. Cas. 698, 704.
. Seavey in 29 Yale L.J., pages 859--95.
. American Law Institute. Restatement of the Law of Agency.
. Falconbridge in 17 Can Bar Rev. 248. referred to bv F.F.. Dowrick in "Relationship of Principal and Agent" (1954) 17 Modern Law Review.
7. Salmond & Winfield, Contracts, pages 338-40, cited by Dowrick, "Relationship of the Laws of Principal and Agent (1954) 17 Modern Law Review.
8. I. L. Montrose, "The Basis of the Power of Agent in cases of Actual and Apparent Authority", 16 can. Bar Rev. 757.
G\U1-l>u,[\)>-* 4 Section 3 concerns the proof of instruments creating powers of attorney. In brief, it provides for proof by photographic copies, certified to be true and complete copy. Section 4 deals with powers of attorney given as security. Such a power cannot be revoked so long as the security remains undischarged.
Section deals with protection of a donee and third persons where a pUV.'t".' of attorney is revoked and the donee is ignorant of revocation. Section 6 gives additional protection for trans- fcrees under stock exchange transactions (in case of revocation). Section 7 in provisions for the execution of instruments, etc. by the donce or' a power of attorney.
Section 8 repeals section 129 of the Law of Property Act, 1925 1'-elating to married women. Section 9 gives power to deleg:atr- ;:'v -,7': etc. by a power of attorney. Section 10 deals with the etleet of a general power of attorney in the specified form given in the First Schedule to the Act. Section 1] contains the short title. repeals, consequential amendments, commencement and extent.
CHAPTER 2 EXTENT AND DEFINITION Section l--ExIe1z1 2.1 Addressing ourselves to the Act. iye . _ X x certain preliminary provisions. The Act a: present lcs to the whole of India except the Sta.e oi' Jammu and iiashrnir. The subject-matter of the legislation falls. Witllill the Coire-ur;'ent List', and the relevant CFlll'iCS do not apply to the State of Jammu and Kashmir. Hence it is unnecessary to consider the question of extension of the Act to the State of Jammu and Kashmir.
Need for definition of "p0wcr--0f-attorney"
2.2 Curiously enough, the Act does not contain any definition of "powe1'--ot'--attorney". Since the operative portion of the Act, namely, section 2, uses the expression "'powcr--ot-attorney", it is desirable that such a definition be inserted. An exampie oi' st h :1 definition will be found in section. 2(2l) of the iniiiun Stamp Act, 1899, which reads as follows :2 "Power of Attorney" includes any instrument ( not Cl}Lil';:[C- able with fee under the law relating to Court fees for the time being in force) empowering a specified person to act for and in the name of the person executing it.
Wharton3 defines a power of attorney as "a writing given and made by one person authorising another, who, in such case, is called the attorney of the person (or donee of the power), appointing him to do any lawful act in the stead of that person, as to receive rents, debts, to make appearance and Elppii£L'.ti('»l'I in court, before an olficer of registration and the lilxe. lt may be either general or special, i.e., to do all acts or to do seine particu- lar act."
Stroud4 defines it as an authority whereby one is "set in turn, stead or place" of another to act for him.
1. Concurrent List, Entry 7, "Contracts including . . . . .. ney". and Entry 6, "Transfer of Property . . . . . . ..Registration of' Deeds and Documents".
2. Section 2(2l), lndian Stamp Act, 1899.
. Wharton, Law Lexicon (1953), page 784.
4. Stroud, Judicial Dictionary (1953), page 2257.
5U.) 2----351 Mof Law/77 Rules of rtgerzey not dealt with 2.3 Several matters concerning agency are dealt with, not in the Powers of Attorney Act, but in the lnd.an Contract Act, 1872 (sections relating to agency). Important amongst these are----
(a) who may execute a power;
(b) who may become an attorney;
(c) when is a power terminated; and (cl) whether a power coupled with interes: is revocable.
Thercason, obviously, is that these matters would be governed by the general prncipiles of the law of agency'. A power of attorney is an all//l0I'Il_)7 in writing to ano;her person to act for and in the name of the person who executed the power". There- fore, speaking generally, the law relating to authority, that is, agency, would be attracted when a power of of attorney is execut- ed. Halsbury" explains the matters thus----
"An agent who to execute a deed, as for example, a conveyance or deed of partnership must be appointed by deed. Such an authority is called a power of attorney."
The definition given in the Stamp Act is less elaborate, but may be regarded as adequate as a statutory definition'. The real emphasis in the concept of power of attorney is on the authority to use the name of the principal. That is suffieiently brought out in the definition in the -Stamp Act.
Recomnzendalion to adopt a definition 2.4 We recommend that a suitable definition on that line may be inserted'. For the purpose of the present Act. however, it is unnecessary to exclude documents requiring court fees. Such documents were excluded in the definition in the Stamp Act, merely to avoid double stamp under the Court Fees Act and under the Stamp Act".
1. Cf. Halsbury, 3rd Edn., Vol. 1. page 153, para 365, relating to Powers of Attorney, which deals with the subject under "Ager1cy-- Formation of Agency------Appointment by deed."
2. Cf. Chapter 2, S1I[)I'(l.
3. Halsbury, 3rd Edn, Vol. 1, page 153, para 365.
4. Supra, Para 2.2,
5. See Appendix I for tentative draft.
6. Sec Rumdeo v. Lalu Narrh I.L.R. (I937) Nag. 494, 496: .'\.I.R. I937 Nag. 65, 66 (Stone, C.J.).
CHAPTER 3 THE EFFECT AND CONSTRUCTION OF POWERS OF ATTORNEY Section 2--I'rim-iple
3.l The elteet of a power of attorney is dealt. with in section
2. The section in its operative part provides that the donee of a poxver»-«Jrf--attorney may execute or do any assurance, instrument or tlting in his own rtune and signature, and an instrument or thing so cxecutctl or done shall be as etiectual in law as it? it had tween C.'{CClll.~"l or done "by the donec of the power in the name and with the signature and seal oi' the donor thereof".
The wording of the section is somewhat unfamiliar and slightly un--inteiligible, but what it intends to emphasise is, that though the sigiizittire is of the donee, the Lloeunient is to be read as it signed by the donor. This legal fiction necessarily implies that the document will be binding on the donor. Simply stated, the section provides that the signature of the agent will be deemed to be the signature of the principal. The language of the section has not caused such difficulty in practice, and need not be disturb- ed on this point.
The section follows section 46 of the Conveyancing Act, l88l', which was in these terms :
"46. l?,rc('1Iziz)I1 mIa':>r power of (lIf())'ll('_\'Z (I) The donec of a power of attorney may, if he thinks fit, execute or do any assurance, instrument, or thing in and w7'-.h his own name and signature and his own seal, where scaling is required, by the authority of the donor of the power: 'dfltl every assurance, instrument, and thing so executed and done shall be as effectual in law, to all intents, as it' it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.
(2) This section applies to powers of attorney created by instruments executed either before or after the commence»-
mcnt of this Act."
1. (/'/Onycy-(mr_-ing Act. 1881 (44 8; 45 Vic. c_ 41) (repealed and re- placed).
,-
I This section of the Conveyancing Act was, so far as England is concerned, replaced by section 123 of the Law of Property Act, 1925' which was in the same terms.
Object 3.2 As was stated in the Statement of Objects and Reasons' to the Powers-of-attorney Bill, 1881, as the law relating to powers of attorney stood before the Bill, the donee of a power of attorney, when executing an instrument pursuant to the power "must sign and, where sealing is required, must seal in his princi- pa1's name.""' The first object of the Powers of Attorney bill, was to render it legal for such donees to execute in and with their own names and seals. The Statement of Objects and Rea- sons added : "The law respecting the execution of instruments under powers of attorney will thus be made accordant with what will be the rule in England from and after the 31st December, 1881, and with what is believed to be the practice in the North Western Provinces, British Burma and probably elsewhere in India."
Section 2, last paragraph 3.3. The last paragraph of existing section 2 relating to application of theexisting Act to power executed before its com- mencement, need not be repeated in the new Act.
Expression "Assurance" to be omitted 3.4. The word "assurance" should be omitted from this sec- tion, as it would be covered by the word "instrument". It is not the practice now to mention "assurance" separately. The' definition of "instrument" in the Indian Registration Act, 1908 may be seen, as an example of later legislative practice.
With the above changes, section 2 may be incorporated in the new Act.' Section 3.
3.5. We now come to section 3, whitthindemnifies the holder of a power of attorney for acts done by him in good faith before notice of death of grantor. It is based" on section 7 of the . Law of Property Act, 1925 (15 & 16 Geo. 5 Ch. 20).
. Gazette of India, October 22, 1881, Part V, page 1473. . See Chapter 2, supra.
. See Appendix 1.
. See now section 5, Powers of Attorney Act, 1971.
O III-#9-'bib-I 9 Conveyancing Act, 1881, and is, in fact, a copy of it, That section of the English Act was replaced, so far as England is concerned, by section 124 of the Law of Property Act, 1925. which was in these terms :
"124. Payment by attorney under power without notice of death, etc. (1) Any person making any payment or doing any act, in good faith, in pursuance of a power of attorney, shall not be iiable in respect of the payment or act by reason that be-
fore the payment or act the donor :of the power had died "or become subject to disability or bankrupt, or had revoked the power, if the fact of death, disability, bankruptcy, or revo- cation was not at the time of the payment or act known to the person making or doing the same.
(2) A sta.utory declaration by an attorney to the eifeci that he has not received any notice or information of the re- vocation of such power of attorney by death or otherwise shall, if made immediately before or within three months after any such payment or act as aforesaid, be taken to he conclusive proof of such non~revocation at the time when such payment or act was made or done.
Where the donee of the power of attorney is a corporate aggregate, the oificer appointed to act for the corporation in the execution of the power may make the statutory declara- tion in like manner as if that officer had been the donee of the power.
Where probate or letters of administration have been granted to any person as attorney for some other person, this Section applies as if the payment made or acts dove under the grant had been made or done under a power of attorney.
'13) section does not affect any right against th:
payee of any person interested in any money so paid; and ti: t person shall have the like remedy against the payee as he would have had against the payer if the payment had not been made by him.
(4) This section applies to payments and acts made and done before or after the commencement of this Act. and in this section 'power of attorney' includes a power of attorney implied by a statute'.
(This was replaced in part by section 5 of the 1971 Act) ."
3---'25]Moi'Law/77 10 The English Act is more elaborate than the section in our AcI.----see particularly the portion relating to "statutory declara- tionr". However, it is not necessary to make in our Act such elaberate provisions.
l'cr/ml c'.-";aIzge.r 3.6. A few verbal changes are needed se-::tion I'-------
(i) Mention of 'lunatic' and 'bankrupt' should be omitted. The expression 'unsound mind' and 'in- solvent' are more appropriate, and should be sub- stituted.
(ii) The last paragraph of section 3, providing that the section applies only to paymen?s e:c.. made after the commencement of the existing Act, need not be repeated in the new Act.
r'\"ag;.-11;' Case 3.7. An interesting argument advanced in a case before t.e Nagpur High Court' may be noted at this stage. An appellant l7.Ll!,l died bcl'or'e the filing of the appeal. In igsrorzuirce of the dca'h, a memorandum of appeal was filed on her behalf by her counsel under instructions from her accredited agent. Before her death. she had instructed her accredited agent to cngzage plealers to file an appeal. The engagement of the counstel by the ..":_tZC!It took place after her death in ignorance of her death, and the purchase of stamps and filing of the I'I]EIT]0l'E1R-'l!.1l1'1 of appeal also took place thereafter. When the fact of death was dise<'«vered, her counsel sought to make an application for sub- .<ti',ution of the name of the legal representative. The court held that since the appellant had died before the filing of the appeal. as :~.;7nl?e.' 7n to substitute could not be enter'ai'~r*<i. An :~tt:;-znpt was made by counsel on the appellant's side to bring the ease wiiliin the provisions of the Contract Act, and section 3 of the Powers of Attorney Act was relied upon. the contention being:
ils':Z|', the various acts that took place in ignorance of the "sath of' ah: donor of the power were valid by virtue of the sectim, The High Court. however. pointed out that seetinn 3 did no 'more than indemnify the holder of the power for action done by hfrn in greed faith. it" the termination of the p:3wer hv ilie death of' the erson grantine it was unknown to him at the time It operate to indemnify the agent, but in this case the CD'.t!"1; not concerned with any such question.
1. ''-.:''.\:t. Rani/irllwai v. 1'/I01i_qiz.', A.I.R. 1939 Nag. 27¢ ll (.'nnstrm'7ion of powers of attorney 3.8. Sections 2 and 3, dealt with so far, are the important provisions. The general principles regarding the construction of a power of attorney are well settled. The power must be strictly construed as giving only such authority as it confers expressly or by necessary implication. In particular,------
(1) The operative part of the instrument is controlled by the recitals; (2) where an authority is given to do particular acts.
followed by general words, the general words are restricted to what is nccesary for the performance of the particular acts; (3) the general Words do not confer general powers, but are limited to the purpose for which the authority is given, and are con- strued as enlarging the special powers only when necessary for that purpose; (4) a p0wer--0f-attorney is construed so as to in- clude all powers necessary for its eifeetive execution'.
Where an act purporting to be done under a power-of:--attorncy is challenged as being in excess of the authority conferred by the power, it is necessary to show that on a fair construction of the whole instrument the authority in question is to be found within four corners of the instrument, either in express terms or by necessary implication?
The general words used in the subsequent clauses of a power- of--at'.orney must be read with the special powers given in the earlier clauses. and cannot be construed so as to enlarge the restricted powers therein mentioned'''--''.
it, /f~'*'(!.'Z.-'/I(l Pillrii V, Rutrnasabiialvlzale, (1968) 2 Mad. LJ. 574.
2. 1 'wk 0;' 1:35'/igaf it R'am<I/mllian C/lefty, 43 LA. 48, 55,
3. ()_A.P.R.M'.A.R. /Jzlziiknppa C/1r'.tIiar v. Tlionms C00/c & Son, A.I.R. 1933 P.C. 78.
. Sim'; Lara v. P:'zIf1a.7a, (1966) Cut. 90, 93 (Misra, .l.).
..'a.
CHAPTER 4 DEPOSIT OF POWERS OF ATTORNEY Section 4--Dep0sit of p0wers--of--attorney 4.1. Section 4 provides for the deposit of powers of attorney in High Courts, and for the issue by the High Courts of certified copies oi.' the p0wcrs--ot'--attorney so deposited. Corresponding provisions existed in England in section 219 of the Supreme Court of Judicature Consolidation Act, 1925, read with R.S.C. Order 61A, but these gvrovisions have now been repealed. Proof in England is governed by the Evidence and Powers of Attorney Act, 1940. "
This procedure appears to be out of tune with modern no- tions about the functions of the judiciary. Powers--of--attorney can be registered under section l8(f) of the Indian Registration Act, 1908, which allows the registration of any document not required by section 17 to be registered. Section 57(5) of that Act enables what are known as "registration copies" of such documents to be given in evidence for proof of contents of the original. In the circumstances, section 4 of the »"()';x'C!'ii of Attor- ney Act, 1882 does not serve any particular purpose. It may also he noted. that there are now facilities for the authentication of power-of-attorney by notaries'. Section 4 should, therefore, be deleted, and we recommend accordingly.
4.2 it may be noteti that section 4- is bztsetl on section 48 of the Conveyancing: Act. l88l. The English section was re- placed by section 219, Supreme Court of Judicature (Consoli- dation) Act, 1925.' which was in these terms :
"Z19. Dc;m.\'/I of t/;:'g.r'Izt!t' /mxmmtt-';1z.\, (.?'(t'ltI'.iikf,/' ,~u;ivz*w. of attorney 2 (1) An instrument creating a power of attorney. the execution of which has been verified by atlidavit, statutory declaration or other sufficient evidence. may, with the alTida--
vit or declaration, if any, be deposited in the central oflicc.
1. See discussion in Chapter 6. infra.
2. Stuprcmc Court of Judicature (Consolidation) Act, 1925. I5 St I6 Geo V, Ch. 49.
1'3 (2) A separate file of instruments so deposited shall be kept, and any person may search that file, and inspect every instr1,m1ent so dep:')si*el..l, and an otlice copy thereof shall be delivered out to him on request.
"(3) A copy of an instrument so deposited may be pre-
sented at the olllee, and may he stan1ped or marked and when sa smntped and marked shall become an offiee copy.
f.'3ub-~seet%on (4) ra>p:z:.l<::l l:-y fl. 8.: Geo. Vl Ch. 28, SK 4].
(5) Rules oi' cw this reeiaca: remzlzil 1re';::.z'§l)i*1§.¥, w'.th *0 be taken :h.ere'n.
"Hurt may he made 5 . the purpose of the pra<77~.:e 0:" the central olllce and 2:.-l:ri'<?1;::.: :7." (la: Tra::1sury, the fees
7) Recently, by the Powers of Attorney Act, 1971, thls pro-
cedvre has l3 'en t4;)t21§iy ;:l7rog;21tecl in ilunnl (scc1'=0x1 2).
CHAPTER 5 MARRIED WOMEN Section 5.
5.1. Section 5, relating to married Women's power to execute a power of attorney, was not contained in the original Bill of 1881. It was added later in pursuance of the following observa- tions which Mr. Stokes made while introducing the Bill :
"It might also be worthwhile to declare (in accordance with section 40 of that statute)', that married women, whether minors or not should have power to appoint attorneys on their behalf for the purpose of executing a deed or doing any other act which they might themselves execute or do. The matter would be considered by the Select Committee . . . . ..932
5.2. As has been pointed out3, section 5 of the Act is quite general in its terms and there is nothing which limits the genera- lity. The section, in so far as it expressly permits married women to create a power, overrides section 183, Indian"Contract Act, under which only a person who is of the age of majority etc. can employ an agent.
5.3. It may be noted that, but for such a provision, a minor cannot execute a power of attorney':
Modification needed.
5.4. As regards Hindus and Muslims, the provision is, in relation to proprietary transactions, an exception to the rule that a minor cannot execute instruments affecting property. As re-
gards others governed by the Married Women's Property Act, 1874 (3 of 1874), the provision extends the principle 'under- lying that Act even to minors.
1. Conveyancing Act, 1881 (44 & 45 Vic., c. 41), s. Later section 129 L.P. Act 1925 repealed 1971.
2. See Gazette of India, December 17, 1881, Supplementary, page 1413.
3. Chirmammi v. Venkayya, A.I.R. 1933 Mad. 407, 409 (Pandalai, J.) (Upholding the validity of a power executed by a Hindu minor mar- ried women in favour of her husband and authorising him to apply under section 73, Registration Act).
4. Bowstead on Agency, Tenth Edition, page 14, Article 6, footnote (0). --
14 , la We reeonuiicnd that this part at the section Le. the words, "whether a minor or not"' should be tlcleted, as it assumes that :1 minor can marry. It is tsntler the Child Marriage Restraint Act, 1929, as amended. {lit minimum :.:g_ac for the inarriage of girls is l8 years. The ni:i1'i'i3.gc oi' minor girl is prohibited after this amendment. Retention ml the present provision in the Powers of Attorney Act x-«ould creato :1 wrong impression about the legal position as to the iiihizntizn age of marriage.
55. In Engltzitcl, the e:<*-2'resorrtlizig f"'30'~/lSlOt'.---SCC'LlOl"! 129', Law of Property Act. l')25~---\"»(iS r "'0; in l97l as "im-
nCcessary"'. l-l(,w;cve1',. iy, lntéiu. L-i. Lmtil (70211-prof tsisiwe the seiiiozt may serve legislation as to niztrricd \\'t)l'1'.':i"» ii useful purpose, and nmy be retained with the above modifica- tfon.
I. The Powers of Attorney Act' 197i. section 8.
CHAPTER 6 MISCELLANEOUS Attestation and presumptions regarding attested powers.
6.1. We now come to the topic of authentication of powers- of-attorney. Under section 3 of the Notaries Act', the Central Government in the whole or any part of India, and any State Government in the whole or any part of the State, has power to appoint, as Notary a legal practitioner or other person who possesses the prescribed qualifications. Under section 8(1)(a) of that Act, one of the functions of a notary is to verify, authen- ticate, certify or attest the execution of any "document". Under section 7, a notary is bound to have and use a seal.
Under section 85 of the Indian Evidence Act, 1872, the court shall presume that every document purporting to bea power of attorney, and to have been executed before and authenticated by a Notary Public or any court, Judge, Magistrate, Indian Con- sul or Vice Consul or representative of the Central Govern- ment, was so executed and authenticated. Under section 57(6) and (7) of that Act, the seals of Notary Public are taken judi- cial notice of. The provisions of the Registration Act will be noted later'.
6.2. It may not be out of place to mention here in brief the provisions relating to powers-of-attorney, contained in some other Acts. There are provisions in the Indian Registration Act, 1908, regarding powers of attorney for presenting documents at Regis- tration offices. Under section 32 (c) of that Act, a power-of- attorney can be granted to an agent to present a document for registration; but, under section 33(1), only certain powers of attorney are recognised. Briefly speaking, section 33 requires the power of attorney to be executed before and authenticated by a Registrar 'or Sub-Registrar (if the principal resides in any part of India where the Act is in force) or by a Magistrate' (if the principal resides in any other part of India) or a Notary Public or any court, Judge, Magistrate, Indian Consul or Vice--Consu1 or representative of the Central Government, (if the principal does not reside in India).
1. Notaries Act, 1952 (53 of 1952).
2. Sections 32-33, Indian Registration Act, 1908, infra. 16» 17 Under section 33(4), a power of attorney mentioned in the section can be proved by the production of it without further proof, when it purports on the face of it to have been executed before the person or court already referred to. These provisions are of a special nature, and would not be affected by the changes recommended in the Powers of Attorney Act.
6.3. Then there are provisions in the Indian Stamp Act, 1899, First Schedule, Entry 48, for the stamping of a power of attorney as defined in section 2(21) of that Act. That also will not be afiected by the proposed revision of the Powers of Attorney Act.
The provisions in the Notaries Act, 1962, and the Indian Evidence Act, 1872, have been referred to separately'.
Compulsory registration.
6.4. In certain cases, registration of a power of attorney may become compulsory under section 17 of the Indian Registration Act, 1908. Thus, a power which authorises the donee to re- cover rents of immovable property belonging to the donor for the donee's own benefit is an assignment and requires registration under section 17(1)(b) of the Registration Act; similarly, a power of attorney which creates a charge on the immovable pro- perty referred to therein in favour of the donee of the power, requires registration". In other cases, a. mere general power of attorney, even though it deals with immovable property, need not be registered3 since it does not come under any of the docu- ments specified in the Registration Act as requiring registration.
Irrevocable P0wers--pr0visi0ns in English Act of 1925.
6.5. At this stage, we may refer to certain provisions in English statutes which may be of interest. Sections 126 and 127 of the Law of Property Act, 19254 made certain provisions regarding the effect of a power of attorney given for value and expressed to be irrevocable or a power of attorney, whether for value or not, made irrevocable for fixed period". The two sections, and the definition of "purchaser" given in section 205(i) (xxi), are reproduced below : '
1. See para 6.1, supra.
2. (a) Ganpat v.Adarji, (1879) I.L.R. 3 Born. 312, 325;
(b) Indra Bibi v. Jain Sirdar, (1908) I.L.R. 35 Cal. 845. 848.
3. Compare the discussion in Kochuvarend V. Mariapprz, A.I.R. 1954 T.C. 10, 17.
4. Sections 126, 127, Law of Property Act, 1925 (15 & 16 Geo. V, Ch.
20). See now the 1971 Act.
5. See now section 4 of 1971 Act.
18"126. Effect of irrevocable power of attorney for value :(1)
If a power of attorney given for valuable considera-
tion is in the instrument creating the power expressed to be irrevocable, then, in favour of a purchaser----
(i)
(iii) the power shall not be revoked at any time, either by anything done by the donor of the power with-
out the concurrence of the donee of the power, or by the death, disability or bankruptcy of the donor of the power; and any act done at any time by the donee of. the power in pursuance of the power shall be as valid as if any- thing done by the donor of the power without the concurrence of the donee of the power, or the death, disability or bankruptcy of the donor of the power, had not been done or happened; and neither the donee of the power nor the purchaser shall at any time be prejudicially affected by notice of anything done by the donor of the power without the concurrence of the donee of the power, or of the death, disability or bankruptcy of the donor of the power.
"(2) This section applies to powers of attorney created by instruments executed after the thirty--first day of Decem-
ber, eighteen hundred and eighty--two."
time .
(1)"I27. Effect of power of attorney irrevocable for a fixed If a power of attorney, whether given for valuable consideration or not, is in the instrument creating the power expressed to be irrevocable for a fixed time therein specified, not exceeding one year from the date of the instrument, then in favour of a purchaser,----
(i)
(ii) the power shall not be revoked for and during that fixed time either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, disability or bankruptcy of the donor of the power; and any act done within that fixed time by the donee of the power in pursuance of the power shall be as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, disability or bankruptcy of the donor of the power, had not been done or happened; and 19 "(iii) neither the donee of the power, nor the purchaser, shall at any time be prejudicially affected by notice either during or after that fixed time of anything done by the donor of the power during that fixed time without the concurrence of the donee of the power, or of the death, disability or bankruptcy of the donor of the power, within that fixed time.
(3) This section applies to powers of attorney created by instruments executed after the thirty~firs. day of December, eéghteen hundred and eighty--two."
"205. (i) (xxi) 'Purchaser' means a purchaser in good faith for valuable consideration and includes a lessee, inorfgagee or other person who for valuable consideration acquires an interest in proper_y except that in Part I of this Act and elsewhere where so expressly provided 'purchaser' only means a person who ac- quires an interest in or charge on property for money or money's worth; and in reference to a legal estate includes a chargee by way of legal mortgage and where the context so requires 'pur- chaser' and 'valuable consideration' includes marriage but does not include a nominal consideration in money."
No need.
6.6. We have devoted thought to the question whether similar provisions are needed in India. Our conclusion is that it is not necessary to insert these elaborate provisions in the Indian Act. No strong need has been felt for such provisions. In our view, in the conditions of the country, it is not necessary to adopt them.
Devolution of power given for value--English provision.
6.7. In section 188. Law of Property Act. 1925'. there is a provision for the devolurion of power of attorney given to a purchaser of property. It is as follows :
"I28. Devolution of power of attorney given to a pur- chaser 2 (1) A power of attorney given for valuable consideration may be given, and shall be deemed to have been always capable of being given, to a purchaser of property or any interest therein, and to the persons deriving title under him thereto, and those persons shall be the duly constituted attorneys for all the pur-
poses of the power, but without prejudice to any right to appoint substitutes given by the power.
1. The Law of Property Act, 15 & 16 Geo. V, Ch. 20.
"(2) This section applies to powers of attorney created by instruments executed after the thirty-first day of December, eighteen hundred and eighty-two.
(3) This section does not auihorise the person deriving title under the donee of the power to execute, on behalf of the regis-
tered propriety 1'. an instrument relating to registered land to which eilect is to be given on the register, unless the power is protected by ;i caution er other entry on the register."
There does not appear to be any necessity to make this pro- vision.
3-.' (31.1 En' I .
108. 'While repealing the present Act, provision will have to be made nrr powers attorney deposited under the present Act with the High Court under section 4. These should be returned to the depositor or his successor in interest, or, where such re- turn is not practicable, be dealt with in accordance with rules to be made by the High Court.
Appendices.
6.9. In order to give a concrete shape to our recommenda- tions, we have, in Appendix I, given them in the form of a draft Bill.
Appendix 2 contains a comparative table, showing the pro- vision in the existing Act and the corresponding provision, if any, in Appendix I. APPENDIX 1 Recommendation as shown in the form of (l draft Bill.
(Note : This is a tentative draft only) Contents of Appendix 1 Clause Subject matter
1. Short title and extent.
2 Definition.
3. Execution under powers--of--attorney.
4Payment by attorney under power without notice of death etc.
5. Powers of attorney of married women.
6. Repeal.
THE POWERS--OF--ATTORNEY BILL, 197 . . . . . .
A Bill to amend the law relating to powers--of--attorney.
Be it enacted by Parliament in the... .year of Republic of' India as follows :
Short title and extent. [Existing section 1] ' l. (1) This Act may be called the Powers-of--Attorne.y Act,
197. . . . .
(2) It extends to the whole of India except the state of' Jammu and Kashmir.
(3) It shall come into force on . . . . . . . . .. Definition. [New]
2. In this Act, unless the context otherwise requires. "power-
of--attorney" includes any instrument empowering a specified' person to act for and in the name of the person executing it.
Execution under powers--0f--attorney. [Existing section 2]
3. The donee of a power--of-attorney may, if he thinks fit, execute or do any . . . . .. instrument or thing in and with his own name and signature, and his own seal, where sealing is 21 22 required, by the authority of the donor of the power; and every . . . . .. instrument and thing so executed and done, shall be as eflectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.
Payment by attorney under power, without notice of death, etc. good. [Existing section 3]
4. (1) Any person making or doing any payment or act in good faith, in pursuance of a power of attorney, shall not be liable in respect of the payment or act by reason that, before the payment or act, the donor of the power had died or become. . . . of unsound mind, or been adjudged an insolvent or had revoked the power, if the fact of death unsoundncss of mind. . .. insolvency or revocat§on was not, at the time of the payment or act, known to the person making or doing the same.
(2) Nothing in _this section shall affect any right against the payee of any person interested in any money so paid; and that person shall have the like remedy against the payee as he would have had against the payer, if the payment had not been made by him.
[Existing section 4 is omitted]'.
Powers of attorney of married women. [Existing section 5 modi-
fled]
5. A married woman of full age, shall, by virtue of this Act, have power, as if she were unmarried, . . . . . . . . . . . ., by a non- testamentary instrument to appoint an attorney on her behalf, for the purpose of executing any non--testamentary instrument or doing any other act which she might herself execute or do; and the provisions of this Act relating to instruments creating powers- of--attorney shall apply thereto.
7 of 1882.
6. (1) The Powers--0f--attorney Act, 1882, is hereby repealed.
(2) Instruments deposited with a High Court under section 4 of that Act shall, on an application made for the purpose to the High Court in which they are deposited, in accordance with such rules as may be made by the High Court, be returned to the person who deposited them, or their successors--in-interest, or where such return is not practicable, be otherwise dealt with in accordance with such rules.
1. See the body of the Report, para 4.1.
APPENDIX 2 Comparative Table showing the provision in the existing Act and the corresponding provisions, if any, in Appendix 1 Existing Section Clause in Appendix 1 1 1 2 3 3 4 4 omitted 5 5 We would like to place on record our warm appreciation of the valuable assistance we have received from Shri Bakshi, Member--Secretary of the Commission in the preparation of this Report.
P. B. Gajendragadkar . . . . . . . . . .Chair1nan P. K. Tripathi . . . . . . . . ..Member S. S. Dhavan . . . . . . . . ..Member S. P. Sen-Varma . . . . . . . . ..Member B. C. Mitra . . . . . . . . . .Member P. M. Bakshi . . . . . . . . . .Member--Secretary Dated, New Delhi the 15th March, 1977.
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