The Power of Attorney Act, 1882

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The Power of Attorney Act, 1882 was enacted on 24th February, 1882. The act aims to amend and consolidate laws relating to power of attorney in India. The Act extends to whole of India except for the state of Jammu and Kashmir. Power of attorney in lay man language would mean where one person empowers another person in writing to act lawfully on his behalf. The person who issues such attorney is called as the executor. The Power of Attorney may be issued in certain cases wherein executor authorises another person to take rent on his behalf, clear debts, make appearance in courts etc.

The power of Attorney so issued may either be general or specific i.e. authorising a person to do all acts or a specific act. The Power of Attorney Act 1882 under section 2 sub clause 1 (a) defines term power of attorney which means issuance of an instrument to any person on behalf of executor empowering such holder of power of attorney to act on behalf of the executor. The instrument so issued shall not be chargeable with fee of any nature.

Section 2 of the act ratifies the acts done by the holder of power of attorney or donee. It says that whenever a donee thinks fit or does an act in furtherance of powers given to him under power of attorney such acts shall automatically be ratified as if done by the executor himself. In case of any instrument signed by done such instrument shall be as lawful as if signed and sealed by the executor himself. But the Act also lays that section 2 shall lie only to power of attorney created by instrument weather before or after enforcement of the Act.

However Hon’ble Supreme Court in T.C. Mathai v. District and Sessions Judge, Thiruvananthapuram, AIR 1999 SC 1385, held Section 2 of The Powers of Attorney Act cannot override the specific provision of a statute which requires that a particular act should be done by a party in person itself. In this case the appellant sought permission of Sessions Court to appear on behalf of a couple living in Kuwait arrayed in criminal revision petition as respondents. The appellant claimed holding of power of attorney in this behalf. The Session Judge however declined the plea of the appellant since such permission did not emanate from the couple itself. The appellant moved to the High Court of Kerela seeking relief under Article 226 of the Indian Constitution against the orders of the Session Judge. Single Judge in the High Court dismissed the original petition against which the appellant filed a writ appeal before division bench which also dismissed the writ filed. The Court held that in matters where Code requires personal appearance of the accused he cannot further delegate the appearance by way of power of attorney. Thus where an act requires to be performed personally the same cannot be delegated further.

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Section 4 of the Act applies in cases where the executor has to make certain payment in lieu of which he issues a power of attorney. In such cases the payment made by done shall be similar to that made by executor of attorney. In case the donee makes any payment in good faith he shall not be liable in cases where executor of power of attorney is dead, unsound mind or insolvent.

Section 5 of the act enables the power of attorney shall be treated as evidence in court of law.  Such instrument shall be deposited in courts both High Court and Sessions Court. The instrument stamped and marked as a certified copy shall become certified copy. The High Court from time to time shall make rules prescribing fees for power of attorney.

The Act also empowers  married women who have attained age of majority to issue non testamentary power of attorney for execution of certain acts on her behalf.

Thus the Power of Attorney Act is an act which creates relationship of a Principal and agent between the executor and done the only difference being that the done herein shall act only to the extent of powers given to him by the power of attorney issued in his favour.

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by Vibhuti Nakta.