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Deccan Herald » DH Realty » Detailed Story
REALITY BITES
Authentication & attestation of ‘power of attorney’
BY S SELVAKUMAR

The Indian Registration Act, 1908, specifically provides as to who should present the document for registration. Section 32 of the Act stipulates that any document the registration of which is compulsory or optional shall be presented by following:

1) By the executant or person claiming under the document.

2) In case of a copy of decree, order, any person claiming under such decree or order.

3) By the representative or assign of such persons referred above.

4) By agent of the persons referred above or by a representative or assign duly authorised by Power of Attorney executed and authenticated as prescribed in the Act.

There are certain exceptions as provided in Sections 31, 88 & 89.

Power of attorney

Section 32 of the Act, prescribes that only certain category of Power of Attorney holders are recognised to present documents for registration, they are:

(a) If the person executing the Power of Attorney resides in any part of the country at the time of execution where the provisions of the Indian Registration Act apply, only Power of Attorneys executed before and authenticated by registrar or sub-registrar of the district, where the person executing Power of Attorney resides.

(b) In case the person executing the Power of Attorney resides in any part of India, at the time of execution of the Power of Attorney, where the provisions of the Indian Registration Act does not apply, only Power of Attorney executed and authenticated by any Magistrate.

(c) In case person executing Power of Attorney resides out of India at the time of executing power of Attorney, only Power of Attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice Consul or representative of the Central government. It may be noted that in case of authentication by registrar or sub-registrar, such officers should be of the district where the principal resides, but no such stipulation in case of authentication by a magistrate.

Exemption

However, the Act exempts the following people from attending the registration office or court for executing and obtaining authentication of Power of Attorney. This exemption is available only to persons residing in India and not to persons residing outside India.

They are persons who are unable to attend without any risk or inconvenience because of bodily infirmity, ill health and illness.

Persons who are in jail under Civil or Criminal process.

Persons exempt by law from personal appearance in court.

In case of Power of Attorneys executed by persons who are exempted from a personal appearance, to execute and obtain authentication, the sub-registrar or magistrate, may attest the Power of Attorney after satisfying himself that the Power of Attorney has been voluntary executed by the Principal.

In case of necessity the concerned officer may either visit the house of the principal, jail, examine him or may issue commission for his examination. Any Power of Attorney as detailed above may be proved by production of it, without further proof, when it purports to have executed before and authenticated by a person or a court.

Authentication and attestation

The section 33 of the Act refers to two different words authentication and attestation. Both are not similar. Attestation is done in case of Power of Attorney executed by persons, who are exempted from personal appearance before court, registrar, sub-registrar under section 33 of the Act.

Rule 63 of Karnataka Registration Rules 1965 prescribes the procedure of authentication and attestation. When a Power of Attorney is executed before registering officer, he shall authenticate the same, after satisfying himself the identity of the party executing the Power of Attorney and if necessary after obtaining the left hand thumb impression of the party against his signature.

In case of attestation where the principal has not attended the office of the registering authority, the registering officer will attest the Power of Attorney but does not authenticate it. In such cases, if the registering officer himself attends the residence of principal or if the principal appears in the office behind a pardah as is in the case of Ghosha ladies the registering office may examine the principal with the help of any witness.

Procedure

While authenticating the Power of Attorney, which runs into more than one sheet of paper, the seal and signature of the Registering officer shall be affixed to each sheet.

If the Power of attorney which has to be authenticated but not to be registered contains interlineations, blank, erasure, or alteration in the body of Power of Attorney, a detailed footnote of number of interlineations, blank, erasures, alteration has to be added to the document below the authentication and shall be signed by the registering officer. Such detailed footnote is necessary even if the principal has made such footnote. If there are no interlineations etc., such fact has to be noted.

If the authentication or attestation endorsement contains any interlineations, each such interlineations has to be initialled by registering officer.

District registrars or sub-registrars are not authorised to authenticate or attest the Power of Attorney, other than those required for registration purpose. The Power of Attorney should contain a specific authority to present the document or to admit the execution of a document by principal, then only it can be authenticated or attested. A power of attorney may be registered like any other document, but unless it is authenticated or attested, it is not valid for using for presenting for registration of other documents executed by principal. One has to understand the difference between the registering the power of attorney and using the power of attorney for presenting the documents executed by principal for registration.

The authentication or attestation of Power of Attorney is required only when a document executed by the principal is presented for registration. But if the document is executed by the Power of Attorney holder and presented by Power of Attorney holder, no authentication or attestation is necessary.


The author is an advocate who specialises in property matters. He can be reached on e-mail: editor@realestatereporter.net or ph: 25526644/45.

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