GENERAL POWER OF ATTORNEY
Submitted by
GOKUL SURESH NAIR
Reg. No. BCO190013
Name of the Guide
Ms MRINMOYEE MUKHERJEE.,
Assistant Professor of Law
TAMIL NADU NATIONAL LAW UNIVERSITY
(A State University established by Act No. 9 of 2012)
Tiruchirappalli
Tamil Nadu – 620 027
MAY 2021
1
Ms MRINMOYEE MUKHERJEE.
Assistant Professor of LAW
Tamil Nadu National Law University
Tiruchirappalli
Tamil Nadu – 620 027
CERTIFICATE
This is to certify that the project work entitled “GENERAL POWER OF ATTORNEY
” is a bonafide record of the research work done by Gokul Suresh Nair, under my supervision
and guidance. It has not been submitted by any other University for the award of any degree,
diploma, associateship, fellowship or for any other similar recognition.
Place: Tiruchirappalli
Date:
Signature of the Guide
2
GOKUL SURESH NAIR
Reg. No. BC0190013
II – B.Com., LLB., (Hons.)
Tamil Nadu National Law University
Tiruchirappalli Tamil Nadu – 620 027
DECLARATION
I Gokul Suresh Nair, Register Number BC0190013, hereby declare that this Research Paper /
Research Project work entitled “GENERAL POWER OF ATTORNEY
” has been originally carried out by me under the guidance and supervision of Ms Mrinmoyee
Mukherjee, Assistant Professor of Law, Tamil Nadu National Law University,
Tiruchirappalli - 620 027. This work has not been submitted either in whole or in part of any
Degree / Diploma at any University.
Place : Tiruchirappalli
Date : (--------------------------------------)
Counter Signed Signature of the Candidate
Project Guide
3
ACKNOWLEDGEMENT
At the outset, I take this opportunity to thank my Professor Ms Mrinmoyee
Mukherjee from the bottom of my heart who have been of immense help during
moments of anxiety and torpidity while the project was taking its crucial shape.
Secondly, I convey my deepest regards to the Vice Chancellor Dr VS
Elizabeth and the administrative staff of TNNLU who held the project in high esteem
by providing reliable information in the form of library infrastructure and database
connections in times of need.
Thirdly, the contribution made by my parents and friends by foregoing their
precious time is unforgettable and highly solicited. Their valuable advice and timely
supervision paved the way for the successful completion of this project.
Finally, I thank the Almighty who gave me the courage and stamina to
confront all hurdles during the making of this project. Words aren’t sufficient to
acknowledge the tremendous contributions of various people involved in this project,
as I know ‘Words are Poor Comforters’. I once again wholeheartedly and earnestly
thank all the people who were involved directly or indirectly during this project
making which helped me to come out with flying colours.
4
TITLE PAGE
Introduction 7
General Power of Attorney 9
Role of General Power of Attorney in Legal Proceedings 15
General Power of Attorney vs Will 19
Conclusion 20
Bibliography 21
TABLE OF CONTENTS
STATUTES
5
1. Power of Attorney Act 1882
2. Indian Succession Act 1925
CASES
1. Suraj Lamp and Industries Pvt. Ltd. V/s. State of Haryana and another (2012)
1 SCC 656
2. Ravulu Subba Rao and ors. v. Commissioner of Income Tax (1956) AIR 604
3. Jaldhi Overseas Pvt. Ltd. v/s Bhushan Power & Steel Limited, (2017) SCC
OnLine Cal 4414
4. Karachan Veettil Mariyam v. Alima Beevi (2015) SCC OnLine Ker 31317
5. Seth Loon Karan Sethiya vs Ivan E. John And Ors, (1968) 1 SCR 122
6. Shankar Finance & Investments V. State of A.P. AIR 2009 SC 422
7. Mamta Devi Prafulla Kumar Bhansali Vs. Pushpadevi Kailashkumar Agrawal
and another,(2005) 2 MhLj 1003
8. Shambhu Dutt Shastri v. State of Rajasthan, (1986) 2 W.L.N. 71
9. Janki Vashdeo Bhojwani Vs. Industrial Bank Ltd.(2005) 2 SCC 217
10. Man Kaur Vs. Hartar Singh Sangha ( 2010) ALL SCR 2511
11. Baker Oil Tools (India) Pvt. Ltd. vs Baker Hughes Ltd. & Anr ,(2011)
R.F.A.583/2004
12. Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley AIR 2005 SC 48
BOOKS
1. Poonam Pradhan Saxena, Transfer of Property Act, 3rd edition, 2020
INTRODUCTION
A power of attorney (POA) is a legal instrument that requires you to appoint someone
or an organisation to handle your land, accounts, or medical affairs if a person
6
becomes unable to do it by himself due to various reasons which might be due to a
busy schedule, or failure as a result of illness, old age, or remaining overseas, a
person/principal must rely more on others to get things done. 'Qui facit per alium,
facit per se' is the legal maxim which means that “he who acts through another person
is considered to have done it himself” relates to all the works done under power of
attorney or agency. A power of attorney is a legal agreement that establishes a
relationship between a principal and a certain type of agent, authorizing the agent to
work on behalf of the principal.But the real authority refers to the legal agreement that
occurs between the principal and the agent as a result of a contractual understanding
to which they are all parties.
Generally power of attorney’s are of two types: (i) general power of attorney , (ii)
special power of attorney. The principal appoints his assistant as his agent, under a
general power of attorney.
He delegates to his agent right to rule on his behalf in all civil matters without
limitation on a specific transaction or activity. A general power of attorney is
normally used for all types of property transactions and issues like buying, selling,
leasing,mortgaging etc. Whereas in Special power of attorney, the principal grants his
agent exclusive power of attorney to carry out a particular contract on his behalf. The
agent is expected to complete the job entrusted to him in the name of the
principal/grantor under this act. The power of attorney will terminate after the
specifically assigned contract has been completed.
In this research paper we would be dealing with various aspects of general powers of
attorney which will include the capacity of the grantor, duties of the holder of power
of attorney, how a general power of attorney can be made?, objectives of a general
power of attorney, revocation of the general power of attorney,legal consequences of
giving a power of attorney, legal validity and enforceability of the general power of
attorney etc.
OBJECTIVES :
1. To identify the roles given to powers of attorney.
2. To find out whether the property acquired through General Power of Attorney is
valid under Indian Law?
3. To find out ways through which an NRI can acquire an immovable property
through general power of attorney.
RESEARCH QUESTION
7
1. How effective is a general power of attorney when performing the sale ?
2. What are the advantages and disadvantages that accompany such a sales deed?
RESEARCH METHODOLOGY
This research paper used doctrinal forms of research where it has been purely an
analytical study that consists of either basic research directed at locating a particular
legal argument or legal analysis with more complicated reasoning and depth.
REVIEW OF LITERATURE
1. Property Law by Poonam Pradhan Saxena : This text book has covered almost all
aspects included in the transfer of property acts. From this book the researcher was
able to understand the basic principles of general powers of attorney and also powers
of attorney in general.
2. The uniform power of attorney act by Andrew H. Hook and Lisa V. Johnson : The
aim of this article is to provide a general overview of the uniform power of attorney.
The researcher was able to understand various forms of powers of attorney and their
designated roles after reading this paper.
3. Agency: Authority under General Power of Attorney by C.R.S : This article
generally dealt with the authority of general power of attorney. After reading this
article the researcher was able to under the scope of a general power of attorney
holder.
4. Powers of Attorney by Sheila-Marie Finkelstein : In this article the author has
described the duties of a general power of attorney holder. After reading this article
the researcher was able to gather some ideas on what are the do and don'ts that should
be taken care of by an attorney holder.
5. Power of Attorney and Laws: An overview by Ramindar Singh, : In this article ,
the author has mentioned the role of a general power of attorney holder in legal
proceedings. From this article the researcher was able to identify how a attorney
holder can take a role of witness in proceedings
1.GENERAL POWERS OF ATTORNEY
8
It is the power that requires the principal/grantor to assign a job to the agent on behalf
of the grantor/principal. The agent is granted jurisdiction by filling out some legal
papers. The term "GENERAL" denotes that the principal's or grantor's authority or
power should be universal in nature and not limited to a particular subject. It will not
be considered a general power of attorney if the subject matter is not general and there
are restrictions listed when filling out the paperwork; instead, then it will be called as
a limited power of attorney.
(a)Registering a general power of attorney :
It is not necessary to file a power of attorney unless it establishes an interest in some
immovable property, such as a transition in the power of attorney holder's favour.
POA registration is optional in India. If you grant someone a power of attorney over
immovable property worth more than INR 100, you must get it registered
compulsorily.Where a power of attorney was signed in another country, signature of a
notary or a judge in front of whom it is signed is needed. Also it needs to have been
legalized by a representative of Indian government in the indian embassy in that
country.1 Within three months after obtaining the Power of Attorney, the required
stamp duty must be paid.
With regard to this , in Suraj Lamp and Industries Pvt. Ltd 2 case the supreme court
has said that a power of attorney with regards to immovable property must be
registered by law compulsorily and In addition, he stated that the authority's decision
will have prospective effects. It is also said that the above observations are not in any
way meant to affect the legitimacy and validity of sale agreements and power of
attorney executed in a fair transaction. For an example, a person might in order to
execute a deed of conveyance, or manage his affairs delegate the power of attorneys
to his spouse,brother, sister, son, daughter, or any relative.
(b)Who can grant a general power of attorney
According to Section 183 of the Indian Contract Act of 1872, Anyone who is major
and has a sound mind may name an agent. Before the 1982 amendment to the Power
of Attorney Act, Section 5 stated that a married minor woman could appoint a power
of attorney on her account, but ever since the idea of the 'full age' of marriage has
been introduced, now a minor can not legally appoint any power of attorney.Also
1 Nikkieta Agarwal, power of attorney blog.ipleaders (Mar 22,2021, at 10:30am),
https://blog.ipleaders.in/power-of-attorney/ .
2 Suraj Lamp and Industries Pvt. Ltd. V/s. State of Haryana and another (2012) 1 SCC 656
9
Power of attorney can be granted by a corporation. A power of attorney that is issued
by a partnership company must mandatorily be signed by all of the partners, or else it
is considered invalid. A company's power of attorney must include its common seal,
or else it may not be valid.
Also, there are certain actions that should be done by the party themselves in his or
her personal capacity, where a power of attorney cannot be used to carry out such an
act. In Ravulu Subbarao case3 , the supreme court have said that section 2 of the
powers of attorney act cannot be used to circumvent a particular clause of a statute
that requires a party to perform a specific act personally.In the case, a general power
of attorney bearer applied for the renewal of a Registered Partnership firm's
registration certificate under rules 2 and 6 of the rules framed under section 59 of the
Income Tax Act. He signed the application twice, once for himself and once as the
attorney for his partner Subba Rao.An application for registration of a company under
section '26A' and for renewal of a registration certificate "shall be signed individually
by all the partners," according to the rules.It was observed that where the law
explicitly specifies that a particular act must be performed by the individual himself,
then one cannot delegate his power or allow someone else to do so on his behalf, and
any act performed on his behalf by an agent will be refused.
(c)Who can be made a general power of attorney :
A person who is employed to do some act for another person or to represent another
in dealings with a third party is termed as an agent under section 182 of the Indian
Contract Act, 1872. Any person can act as an agent under section 184 of the Contract
Act, but a minor or a person with unsound mind cannot act as an agent and be liable
to the principal. Any act carried out by an individual under the authority of a power of
attorney binds the principal who granted it.
(d) Scope of a general power of attorney
A power of attorney in the general form is created to give authorisation to carry out a
wide variety of tasks for the benefit and use of the principal which involves almost
every conceivable mode of dealing with real and personal, tangible and intangible
property, enumerating among other forces the power to sign ntes in the principal's
name, and the power "to create, do, and transact any kind of business of whatever
3 Ravulu Subba Rao and ors. v. Commissioner of Income Tax (1956) AIR 604
10
nature and kind soever."4 The principal's purpose in granting such a power is to give
the attorney authority to act on behalf of the principal in all matters relating to the
principal's use and gain, with the agent working in the principal's position and
stead.The power is made general because unforeseen situations may occur, and it is
vital that the agent has the same authority to deal with the situation as the principal
would if he were present. As a consequence, the power's spectrum should be limited
only to what could be considered for the benefit of the principal, that is, what the
principal would do if he were in charge at this time. Also only for the sole benefit of a
third party or the agent, the agent may not perform any actions binding on the
principal.
Also without a specific clause in the power of attorney allowing it, the functions
under the general power of attorney cannot be delegated to another person. However,
the general power of attorney can be revoked and transferred to another person.
(e)Language of the power of attorney document :
The language used in the legal document should be clear and easy to understand by
the person who is giving the power of attorney.If the principal signing the POA is
illiterate, the clerk and identifier should clarify the legal document's contents in the
language which the principal knows.The grantor must then certify that he recognizes
the entire substance of the legal document before putting his thumb impression on it.
The administrative officer must sign and seal the document after it has been
thoroughly verified.
A POA may be oral or written, depending on the authority (depending upon the
situation). Many organizations need a formal power of attorney, and they usually hold
a photocopy of the original for their records.5
(f)Duties of a general power of attorney holder :
The individual who has been given authority must not exceed the amount of power
that has been given to them.If the individual who has been given authority exceeds the
cap, they can be held responsible for the grantor's losses.The attorney is only expected
to perform work that has been assigned to him and in a specific manner if the legal
contract specifically requires that the work be done in a specific manner. If the
authority holder breaches a condition, he is liable to the grantor/principal, unless he
4 C.R.S, Agency: Authority under General Power of Attorney,3 California Law Review.45,46 (1914).
5 Nikkieta Agarwal, power of attorney blog.ipleaders (Mar 22,2021, at 9:12pm),
https://blog.ipleaders.in/power-of-attorney/
11
did so in a fair manner. An attorney may only assign his or her powers and obligations
to another person if he or she has been granted permission to do so by a power of
attorney.6
(g)General power of attorney made abroad :
The Central Government will declare that notarial acts lawfully performed by
Notaries in other countries will be recognised for defined purposes under Section 14
of the Notaries Act, 1952. Just three nations, Belgium, New Zealand, and Ireland,
have been informed as a result of the power granted under Section 14.7
In a recent judgment, in Jaldhi overseas Pvt Ltd case8 The Calcutta High Court held
that notification under Section 14 of the Notaries Act is not needed, and that Section
85 of the Evidence Act applies to documents authenticated by foreign notaries
publicly. Contrastingly The Kerala High Court took the opposite stance in Alima
9
Beevi case that the section 85 does not infer to the documents authenticated by
foreign notaries.
In the absence of an agreement among the High Courts, it is recommended that power
of attorney executed outside India be authenticated by an Indian Consul, Vice-Consul,
or representative of the Central Government in that region, rather than a Notary
Public, in order to obtain the benefit of section 85 of the Evidence Act.
So for an NRI to purchase an immovable property or for any other acts using a power
of attorney he must first get the deed stamped and sealed from the indian embassy in
that region and send it by post to india and then get the deed registered at a sub
registrar or office for creating a valid power of attorney to fulfill the desired tasks.
(h)Revocation of a general power of attorney :
The principal has the right to revoke the agent's power of attorney by submitting a
written notice to the agent (if it is for the fixed period). Also if the work for which the
agent was named is completed, the principal may terminate the power of attorney.
Also in case of a new power of attorney created ,a subsequently executed power of
attorney must specifically allow for the revocation of the previously created power of
attorney or specify that all other powers of attorney are revoked to effectively revoke
6 Sheila-Marie Finkelstein,Powers of Attorney,33 ESTATE PLANNING 3-5(2016)
7 Sudarshan Thapa , Execution of General Power of Attorney. Blog(Mar 23,2021, at
12pm),https://blog.ipleaders.in/execution-of-power-of-attorney/
8 Jaldhi Overseas Pvt. Ltd. v/s Bhushan Power & Steel Limited, (2017) SCC OnLine Cal 4414
9 Karachan Veettil Mariyam v. Alima Beevi (2015) SCC OnLine Ker 31317
12
a power of attorney.10 Also if the principal has designated his wife as the agent, his
wife's authority will be immediately revoked if the couple divorces. Also an agent or
other person who "acts in good faith under the power of attorney" and does not have
actual knowledge that the power of attorney or the agent's authority has been
terminated is not affected by a termination case.
Once the power of attorney is revoked, then the principal is responsible for informing
all third parties that the agent is no longer allowed to conduct the designated mission.
If you fail to notify, your agent will continue the transaction with the third party on
behalf of the principal, and the third party will not be held responsible for any losses
incurred by the principal.
Additionally The agent is entitled to fair compensation and "reimbursement of
reasonably incurred expenses on behalf of the principal.While the principal is unlikely
to change the default rule in this area,expenses, limiting or defining the term
EXCEPTION:
The principal always has the right to cancel the power of attorney, unless it is
irrevocable, as defined by section 202 of the Contract Act, in which case the agent has
an interest in the property that is the subject of the power of attorney and there are no
express terms for the principal to terminate it. In Seth Loon case 11 The Supreme Court
has ruled that where the power of attorney is for a valuable consideration, the
authority should be exercised. It is not possible to revoke a permit. Such a power of
attorney continues to function even after the death of the principal.
(i)Pros and Cons of a general power of attorney :
Pros :
Establishing POA is very inexpensive; only a small amount of paperwork is needed,
which includes the basic work given by the principal to the agent in a clear language
that both the principal and the agent can understand.
If you grant anyone power of attorney, even a family member , they may also serve as
an agent.
Cons :
If the agent's powers are given too general, he or she can begin to abuse them. After
receiving POA, he or she could change their mind and begin behaving in a manner
10 Andrew H. Hook and Lisa V. Johnson,THE UNIFORM POWER OF ATTORNEY ACT,45 REAL
PROPERTY, TRUST AND ESTATE LAW JOURNAL .294 (2010)
11 Seth Loon Karan Sethiya vs Ivan E. John And Ors, (1968) 1 SCR 122
13
that is potentially harmful to your property. Also you have no direct authority over the
agent to whom you've provided your power of attorney. The agent must behave in
accordance with your instructions in order to complete work. He or she may even
abuse their position of power or commit fraud. The agent uses the power of attorney
on your behalf, but you don't have direct authority over him or her.
14
2.ROLE OF GENERAL POWER OF ATTORNEY IN LEGAL
PROCEEDINGS
(a) General power of attorney holder initiating legal proceedings :
The attorney holder is the grantor's agent, and when the grantor authorizes the
attorney holder to initiate legal proceedings, the attorney holder does so as the
grantor's agent, and the initiation is by the grantor represented by his attorney holder,
not by the attorney holder in his personal capacity." This has been upheld by the
supreme court in Shankar finance12 case where the court said that a general power of
attorney holder can initiate a legal proceeding for his principal.
(b) General Power of Attorney holder as a Witness :
The question arises whether a party's power of attorney holder/agent may be a
credible witness in the suit proceedings on the party's behalf. In response, there is no
explicit clause in the CPC 1908 prohibiting the holder of a power of attorney from
being called as a witness on behalf of the parties to the proceedings. Furthermore,
Section 118 of the Indian Evidence Act 1872 does not prohibit the holder of a power
of attorney from testifying on behalf of his principal, i.e. complainant or defendant,
unless he fails to qualify the requirements set forth in the same.13
In Mamta Devi Prafulla Kumar Bhansali14 The Hon'ble Bombay High Court held that
if the power of attorney has personal knowledge on the transaction then he can testify
as an eyewitness. But In the case of Shambhu Dutt Shastri 15 A general power-of-
attorney holder may appear, plead, and act on behalf of the party, but he cannot testify
on behalf of the party, according to the High Court. He can only make an appearance
under his own name. No one may delegate the authority to appear in court on his or
her own behalf. It's a whole different thing to appear in a courtroom as a witness.In
the capacity of the plaintiff, a general power-of-attorney holder cannot be permitted to
testify on behalf of the plaintiff.
To put an end to the confusion in Janki Vashdeo Bhojwani case 16 , the supreme
court said that the general power of attorney holders cannot testify as witness for
12 Shankar Finance & Investments V. State of A.P. AIR 2009 SC 422
13 Ramindar Singh, Power of Attorney and Laws: An overview, Legal Service India(Mar 23,2021,at
3pm), http://www.legalserviceindia.com/legal/article-1830-power-of-attorney-and-laws-an-
overview.htm
14 Mamta Devi Prafulla Kumar Bhansali Vs. Pushpadevi Kailashkumar Agrawal and another,(2005)
2 MhLj 1003
15 Shambhu Dutt Shastri v. State of Rajasthan, (1986) 2 W.L.N. 71
16 “Janki Vashdeo Bhojwani Vs. Industrial Bank Ltd.(2005) 2 SCC 217 “
15
principal with regards to matters which only principal have a personal knowledge and
in furtherance of which the principal is required to be questioned..
A further detailed explanation was given by the supreme court in the case of Man
Kaur17 where it gave a summary of position on who should testify in relation to
certain issues involving personal experience in the following manner:
An power of attorney holder who signed the petition and has brought the said suit, but
he does not have personal knowledge of the situation then only a formal evidence
about that transaction can be obtained from him as a witness. Also if the attorney has
some personal knowledge of such actions and is the only one who knows about them,
not the principal,, then the attorney bearer must be questioned provided certain acts
and completed transactions must be proven.
Subsequently if the whole transaction was handled by a single attorney, the principal
would test the attorney to prove the transaction, not a separate or another attorney.
When different attorney holders have dealt with the matter then testimony is required
as to what occurred at various points of the transaction, all of the attorney holders will
be called to testify.
Finally the court had said that when the law requires and contemplates the
complainant or an alternate party to a proceeding to determine or to prove something
in regard to his mental state' or 'conduct,' the person concerned usually has to do so
alone rather than an attorney holder
(c) Advocate acting as general power of attorney for clients :
Delhi High Court in a case18 said that “Unfortunately, in our Court, a completely
incorrect procedure has developed in which any of the partners of an advocate firm
sign pleadings and petitions on behalf of a nri or a foreign client pursuant to authority
found in a power of attorney. In a professional capacity, the same group of Advocates
acts, plead and appeal . The procedure in question is against the law. Such a
procedure, in the court's opinion, was illegal. Also it said that the Advocate cannot
perform in two roles at the same time or be a hybrid of two characters. There is no
requirement that a specific provision be implemented in this regard. With all due
respect, the implication from the Code's scheme, interpreted in light of the Bar's well-
established rights and obligations, is far too obvious.
17 Man Kaur Vs. Hartar Singh Sangha ( 2010) ALL SCR 2511
18 Baker Oil Tools (India) Pvt. Ltd. vs Baker Hughes Ltd. & Anr ,(2011) R.F.A.583/2004
16
It is not enough for an Advocate to behave impartially. In addition, it is important for
the advocate to remain neutral at all times.The fundamental principle of acting
impartially and simply representing an individual client in accordance with his or her
obligation to the opponent.
If an advocate behaves in both a professional and nonprofessional capacity about the
same matter and at a same time, the Court's ability to maintain a proper distance from
the dispute zone will be jeopardized. The Court's practices and procedures must
represent the implementation of justice and the rule of law in accordance with its
nobility, values, traditions, and goals. The court is obliged to view different provisions
of various acts and rules in such a way that inconsistencies are avoided to the greatest
extent possible. As a result, it is decided that the Advocate cannot serve both as an
advocate and a power of attorney bearer for his client.
(d) Event of death of the principal :
The holder of a power of attorney may represent his party in the court as long as the
party is alive. In the eyes of the statute, an appeal brought by a power of attorney in
the ignorance of the appellant's death is not legitimate. In Jimmy Jahangir Madan
case19 the supreme court have said that the power of attorney cannot directly file a
petition for a deceased principal directly nor through through the recommendation of
the legal heirs of the principal but the heirs were given the option of making their own
application to the court to continue with the pleadings or requesting permission from
the court to allow a power of attorney bearer to continue with the prosecution on their
behalf.
(e)Legality of a sale through a general power of attorney
The Supreme Court of India ruled in a landmark decision that using a General Power
of Attorney (GPA) to pass property title is illegal. The person who purchases a
property through a GPA may have “possession” of the property, but the person is not
considered the legitimate legal owner of the property since there is no genuine
recorded sale deed. Apart from that, due to the lack of a legitimate property title in the
person's possession, it would be almost impossible to sell the property in the future,
unless the person had a valid property title. 20
19“ Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley AIR 2005 SC 48”
20 Rakesh Sinha, Power of Attorney and its Legality During Sale of Property in India, Helpline law
(Mar 24, 2021, at 11am),https://www.helplinelaw.com/real-estate-wills-probate-and-
trust/PALD/power-of-attorney-and-its-legality-during-sale-of-property-in-india.html
17
Also in the event that a prospective buyer needs financing against the house, obtaining
financing from a bank will be exceedingly difficult. This is due to the fact that banks
do not lend money to GPA-facilitated property transactions as a matter of course. As a
result, the only requirement for obtaining bank financing for the purchase of a
property is that the property title be perfectly clear.
Although it has no legal validity people tend to use the same procedure many a time .
This is because from the perspective of a seller, the GPA route helps them to sell a
property even though they do not have direct title to it. A buyer, on the other hand, is
enticed by too-good-to-be-true real estate offers. GPA is also one of the illicit ways of
investing unaccounted money in the real estate sector.
3.GENERAL POWER OF ATTORNEY vs WILL
Both a will and a power of attorney are legal documents that express the desires of the
person who creates them to another person that they choose to carry out and fulfill
those wishes.
The Indian Succession Act of 1925, governs the rules surrounding wills. According to
section 2 (h) of the Act, a will is any legal declaration made by the testator about his
18
property that he wishes to continue after his death. A will is a testamentary document
that expresses the testator's desires, or the individual making the will. The will
specifies how the estate should be handled after his death. A testator is someone who
writes a will. Any individual who wishes to allocate his wealth to family and friends
after his death makes a will. The person assigned to carry on the administration of the
estate is called as the executor. 21
There often arises a doubt in the minds of people when it comes to matters of a power
of attorney and a will and a common conception is that these two are the same . So in
order to clarify this there are some distinguishing factors as follows :
1. The main distinction is the time frame in which a will and a power of attorney
go into practice. Only after the testator's death does the testator's will take
effect. During the testator's lifetime, the executor cannot exercise all of the
executor's rights over the assets. However, the power of attorney may only
exercise the powers during the principal's lifetime. The principal is the person
who delegated his powers of administration to a person known as the donee.
2. An executor's authority is unrestricted, and he has the authority to administer
all aspects of the assets. However, the agent's rights in relation to the power of
attorney are limited to certain matters that must be taken out in order to carry
out the arrangement.
Even though both Will and general power of attorney are legal instruments which
confers power to some other person. The time period in which the documents take
effect varies which makes both of them different
CONCLUSION
General power of attorney and power of attorneys commonly are beneficial to society
as there occurs a variety of circumstances when a person himself won't be able to
physically present for carrying out all the purposes.
The holder of a power of attorney effectively moves into the role of the principal and
performs every actions on his/her behalf, with the exception of the right to plead
21 Shuruthi Jegannathan, Difference between Power of Attorney and Will, Law times journal, (mar
24,2021, at 12pm), http://lawtimesjournal.in/difference-between-power-of-attorney-and-will/
19
unless the court permits it and the right to speak about facts that are solely known to
the principal.When delegating such authority, the principal must exercise extreme
caution; otherwise, the outcome will be counterproductive. A general power of
attorney cannot be given in order to complete the transfer of property titles. Instead,
granting a general power of attorney to an agent will make the agent responsible for
managing and monitoring the Principal's estate, as well as managing and monitoring
the Principal's rental properties. They can also serve as the official agent in home
loan-related transactions and pay the occasional utility bills. Aside from that, the
Principal may also give his or her agent/attorney the authority to register his or her
property using a GPA.
While a general power of attorney will last until you die, in most states it will
immediately expire if you become dead.
A general power of attorney holder has some legal capacity which he can exercise in
his authority such as giving witness filing suits etc but these too have their own
limitation and capacity.
So in conclusion general power of attorney is a very useful tool which makes many
things easy just by employing an agent to work but at the same time due care should
be given while selecting the attorney holder because there is risk of the attorney
holder acting fraudulently or in excess of his powers.
Test of Hypothesis :
The hypothesis holds good after the research paper has been completed. The sale
transactions proceeding through a general power of attorney sales have no legal
effect.
BIBLIOGRAPHY
JOURNALS
● C.R.S, Agency: Authority under General Power of Attorney,3 California Law
Review.45,46 (1914).
20
● Andrew H. Hook and Lisa V. Johnson,THE UNIFORM POWER OF
ATTORNEY ACT,45 REAL PROPERTY, TRUST AND ESTATE LAW
JOURNAL .294 (2010)
● Sheila-Marie Finkelstein,Powers of Attorney,33 ESTATE PLANNING 3-
5(2016)
● Ramindar Singh, Power of Attorney and Laws: An overview, Legal Service
India
BOOKS
● Poonam Pradhan Saxena, Transfer of Property Act, 3rd edition, 2020
WEB SOURCES
● Nikkieta Agarwal, power of attorney blog.ipleaders (Mar 22,2021, at
10:30am), https://blog.ipleaders.in/power-of-attorney/ .
● Sudarshan Thapa , Execution of General Power of Attorney. Blog(Mar
23,2021, at 12pm),https://blog.ipleaders.in/execution-of-power-of-attorney/
● Ramindar Singh, Power of Attorney and Laws: An overview, Legal Service
India(Mar 23,2021,at 3pm), http://www.legalserviceindia.com/legal/article-
1830-power-of-attorney-and-laws-an-overview.htm
● Rakesh Sinha, Power of Attorney and its Legality During Sale of Property in
India, Helpline law (Mar 24, 2021, at
11am),https://www.helplinelaw.com/real-estate-wills-probate-and-
trust/PALD/power-of-attorney-and-its-legality-during-sale-of-property-in-
india.html
● Shuruthi Jegannathan, Difference between Power of Attorney and Will, Law
times journal, (mar 24,2021, at 12pm), http://lawtimesjournal.in/difference-
between-power-of-attorney-and-will/
21
22
