REG 042 Power of Attorney and Registration — Law of Registration Notes for Judiciary

Power of Attorney and Registration: Authentication under Section 33, Registration under Section 18, and Why a General Power of Attorney Conveys No Title

A power of attorney is an instrument of agency. It authorises one person to act for another, and it transfers nothing. That single proposition answers most of the questions in this area: why a power of attorney is not compulsorily registrable, why a sale through a general power of attorney is still a sale by the principal, and why the practice of transferring land by a general power of attorney was condemned by the Supreme Court. The Registration Act nonetheless has a great deal to say about powers of attorney, but it says it through Section 33, which is about authentication and not about registration at all. Keeping those two requirements apart is the whole of the technique here.

Registration, authentication, and what a power of attorney can and cannot do

1. What a Power of Attorney Is

Section 1A, Powers of Attorney Act, 1882, and Section 2(21), Indian Stamp Act, 1899

Powers of Attorney Act, 1882, Section 1A. In this Act, "power of attorney" includes any instrument empowering a specified person to act for and in the name of the person executing it.

Indian Stamp Act, 1899, Section 2(21). "Power of attorney" includes any instrument, not chargeable with a fee under the law relating to court fees, empowering a specified person to act for and in the name of the person executing it.

It creates an agency, governed by Chapter X of the Indian Contract Act, 1872, Sections 182 onwards. The donee of the power is an agent; the donor is the principal.
The agent acts in the name of the principal. An act lawfully done within the authority binds the principal as if he had done it himself, under Section 226 of the Contract Act.
It transfers no interest in any property. It is not a conveyance, and the agent acquires no title to anything by virtue of the power.
It must be strictly construed. A power of attorney is read according to its terms, and a general authority is not read as conferring a power to sell, to mortgage or to gift unless the instrument says so expressly.

2. General and Special Powers

	General power of attorney	Special power of attorney
Scope	Authority to do a range of acts, or to manage affairs generally	Authority to do one specified act or a defined set of acts
Typical use	Managing property, conducting litigation, operating accounts, dealing with authorities	Presenting one document for registration; selling one identified property; appearing in one case
Duration	Usually continuing until revoked	Usually spent when the act is done
Construction	Strictly; general words do not confer a power to alienate unless expressly given	Confined to the act specified
Registration	Not compulsory; optionally registrable under Section 18(f)	Not compulsory; optionally registrable under Section 18(f)
Stamp duty	Under the State schedule; the rate often varies by the number of persons and by whether a power to sell is given	Ordinarily a lower rate

3. Registration of a Power of Attorney

A power of attorney is not within Section 17. It does not create, declare, assign, limit or extinguish any right, title or interest in immovable property, and it is not one of the documents specifically enumerated in Section 17(1). It is therefore optionally registrable under Section 18(f), which covers all other documents not required by Section 17 to be registered.

Section 18(f), Registration Act, 1908

18. Documents of which registration is optional. Any of the following documents may be registered under this Act, namely: (f) all other documents not required by section 17 to be registered.

Registration is prudent even though it is optional. A registered power is a public document, it can be produced as a certified copy under Section 57, and its existence and its revocation can be traced.
State law may require it in some cases. Several States have made registration of a power of attorney conferring authority to sell immovable property compulsory by local amendment, or have imposed conditions on such powers. The State legislation must always be checked before advising.
Registration of the power does not make the agent an owner. Whatever the power is registered or not, it remains an instrument of agency.
Registration does not by itself satisfy Section 33. This is the point most often missed, and it is taken up next.

4. Authentication under Section 33: A Different Requirement

Section 32 of the Registration Act says who may present a document for registration, and clause (c) allows presentation by the agent of a person executing or claiming under the document, provided the agent holds a power of attorney executed and authenticated in the manner mentioned in Section 33. Authentication is an act of a public officer certifying that the power was executed by the principal before him. It is not registration, and registration is not a substitute for it.

Section 33, Registration Act, 1908, in substance

33(1). For the purposes of section 32, the following powers of attorney shall alone be recognised:

(a) If the principal at the time of executing the power resides in any part of India in which this Act is for the time being in force, a power executed before and authenticated by the Registrar or Sub Registrar within whose district or sub district the principal resides.

(b) If the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power executed before and authenticated by any Magistrate.

(c) If the principal at the time aforesaid does not reside in India, a power executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice Consul, or representative of the Central Government.

Proviso. In the case of a person who by reason of bodily infirmity is unable to appear, or who is exempted by law from personal appearance in court, or who is in jail, the Registrar or Sub Registrar or Magistrate may attend at his residence or the jail to take his execution.

	Registration of a power of attorney	Authentication under Section 33
Statutory source	Section 18(f), Registration Act	Section 33, read with Section 32(c)
Compulsory?	No, optional, subject to State amendments	Yes, if the agent is to present a document for registration
What it achieves	A public record of the instrument, and a certified copy on demand	Recognition of the agent as a competent presentant under Section 32(c)
Who does it	The registering officer, by copying the document into the register	The Registrar, Sub Registrar, Magistrate, Notary or consular officer named in Section 33
Does it satisfy the other?	No. A registered but unauthenticated power will not do for Section 32(c)	No. An authenticated power is not thereby registered
Consequence of want	None, except loss of the advantages of a public record	The officer must refuse to register the document presented by that agent

⚠ Presentation by an unauthorised person is a fundamental defect

Section 32 is not a matter of form. Where a document is presented by a person who is not competent to present it, the registering officer has no jurisdiction to register it, and the registration has long been treated as a nullity rather than a curable irregularity. Section 87, which saves acts done in good faith from a defect in appointment or procedure, does not cure a want of jurisdiction. A purchaser whose deed was presented by an agent holding an unauthenticated power may therefore find the registration itself open to attack.

5. The Power of Attorney Executed Abroad

1. The governing clause is Section 33(1)(c), which applies where the principal does not reside in India at the time of executing the power.

2. It may be executed before and authenticated by a Notary Public, or by a Court, Judge, Magistrate, Indian Consul or Vice Consul, or a representative of the Central Government.

3. Section 85 of the Indian Evidence Act, 1872, now Section 84 of the Bharatiya Sakshya Adhiniyam, 2023, raises a presumption as to powers of attorney: the court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by a Notary Public or any of the officers named, was so executed and authenticated.

4. The presumption is as to execution and authentication only. It does not presume that the contents are true, that the principal had capacity, or that the authority conferred extends to the act done.

5. The Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 empowers Indian diplomatic and consular officers abroad to administer oaths and to do notarial acts, and a power authenticated by such an officer is within Section 33(1)(c).

6. Apostille and legalisation are separate questions arising under the Hague Convention of 1961 and under the practice of the receiving authority, and they go to proof of the foreign officer's seal rather than to the requirements of Section 33.

7. Stamp duty is payable in India. Under Section 18 of the Indian Stamp Act, 1899, an instrument executed out of India must be stamped within three months after it is first received in India.

6. Sale of Immovable Property Through an Attorney

Where a power expressly authorises the agent to sell, the agent may execute a sale deed and have it registered, and the sale is good. But it is essential to see whose sale it is. The vendor is the principal; the agent merely signs for him. The deed should recite the power, and the agent should execute in the name of the principal, as "A by his attorney B", and not in his own name.

The authority to sell must be express. A general power to manage, to let, to collect rents and to conduct litigation does not authorise a sale.
The agent cannot sell to himself. Section 215 of the Contract Act entitles the principal to repudiate a transaction in which the agent dealt on his own account without the principal's knowledge and consent, and a sale by an attorney in favour of himself or his near relations is looked at with suspicion.
The power must be subsisting at the date of the sale. It must not have been revoked, and the principal must have been alive and of sound mind, because death or insanity terminates the agency under Section 201 of the Contract Act.
The purchaser must satisfy himself of the power. He should see the original power, check that it authorises this sale, check that it was authenticated if the agent is to present the deed, and check that it has not been revoked.

7. The General Power of Attorney Does Not Convey Title

For many years, property in several parts of India was transferred by a package of documents rather than by a conveyance: an agreement to sell, a general power of attorney in favour of the purchaser, a will in his favour, and a receipt for the price. These were called SA/GPA/WILL transactions. The object was to avoid stamp duty and registration, and sometimes to circumvent restrictions on transfer of allotted land. The practice was condemned by the Supreme Court in terms that admit of no qualification.

📖 Suraj Lamp & Industries (P) Ltd. v. State of Haryana, (2012) 1 SCC 656

Facts. The Court examined, on a petition concerning the practice in Delhi and the neighbouring States, the widespread use of sale agreements coupled with general powers of attorney and wills as a substitute for registered conveyances of immovable property.

Held. The Court held that such transactions do not convey title and do not amount to transfers. A power of attorney is not an instrument of transfer in regard to any right, title or interest in immovable property; it creates an agency, and the agent may act for the principal, but the power itself conveys nothing. An agreement to sell transfers no title, by the third paragraph of Section 54 of the Transfer of Property Act. A will takes effect only on death and is revocable until then. Immovable property can be transferred or conveyed only by a registered deed of conveyance.

Ratio. What none of the documents can do singly, they cannot do in combination. The Court nonetheless clarified that the judgment does not affect the legitimate use of agreements to sell and powers of attorney, does not affect the doctrine of part performance under Section 53A, and does not disturb transactions already concluded, whose holders were left to have their titles regularised.

An irrevocable power of attorney is still not a transfer. Parties often describe a power as irrevocable and add a recital that consideration has been received, in the hope of turning it into a conveyance. It remains an instrument of agency.
Section 202 of the Contract Act provides that where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of that interest. This is the doctrine of agency coupled with an interest, and its effect is that the agency survives revocation and survives the death of the principal, so far as that interest requires.
But the interest must exist independently of the power. An interest created by the power, or a mere interest in the remuneration or the proceeds, is not an interest in the subject matter within Section 202.
Even a power coupled with an interest conveys no title. It makes the agency durable; it does not make the agent an owner.

8. Revocation of a Power of Attorney

1. By the principal, at will. Under Sections 201 and 203 of the Contract Act, the principal may revoke the authority at any time before it has been exercised so as to bind him, subject to Section 202.

2. By the agent renouncing the business of the agency.

3. By the business of the agency being completed.

4. By the death or insanity of the principal or the agent, or by the principal being adjudicated an insolvent.

5. By efflux of time, where the power is expressed to be for a term.

6. Compensation may be payable. Section 205 of the Contract Act entitles the party prejudiced to compensation where there is an express or implied contract that the agency should continue for a period and it is revoked or renounced without sufficient cause.

7. Notice matters. Under Section 208, the termination of the authority does not take effect as regards the agent before it becomes known to him, or as regards third persons before it becomes known to them. An act done by the agent after revocation but before third parties know of it may still bind the principal.

It follows that a revocation should be registered where the power was registered, so that the revocation appears on the same public record, and should be notified to the agent and, where the power has been acted upon, to the persons likely to deal with him. A revocation kept in a drawer protects nobody.

9. The Position Stated Shortly

1. A power of attorney is an instrument of agency. It transfers no interest in any property.

2. It is not compulsorily registrable under Section 17, and is optionally registrable under Section 18(f), subject to State amendments.

3. Authentication under Section 33 is a separate and stricter requirement, needed before an agent may present a document for registration under Section 32(c).

4. A registered power is not thereby authenticated, and an authenticated power need not be registered.

5. Where the principal resides in India, the power is authenticated before the Registrar or Sub Registrar of his district; where he resides abroad, before a Notary Public or the Indian consular or diplomatic officer, among others.

6. Section 84 of the Bharatiya Sakshya Adhiniyam, 2023, corresponding to Section 85 of the Evidence Act, raises a presumption as to execution and authentication only.

7. Presentation by an agent holding an unauthenticated power is a defect of jurisdiction which Section 87 does not cure.

8. Authority to sell must be express, and the agent executes in the name of the principal.

9. A general power of attorney, an agreement to sell and a will, singly or together, do not convey title. Only a registered deed of conveyance does, Suraj Lamp & Industries v. State of Haryana.

10. An agency coupled with an interest under Section 202 of the Contract Act survives revocation and the death of the principal, but it still conveys no title.

11. A revocation should be registered where the power was registered, and notified to the agent and to third parties, because under Section 208 termination does not affect those who do not know of it.