Legal Guide

All You Need to Know About Notarized Power of Attorney

by Bhavya Choudhary · 4 min read

Notarized Power of Attorney

Introduction

  • The notarized Power of attorney in Indian laws deals with the appointment of an advocate on behalf of the other person to handle his legal proceedings.
  • The notarized Power of attorney functions to deal with the complexities of the law, businesses, and other disputes.
  • The notarized Power of attorney is an important legal process that is also not mandatory in some cases. Under the Notaries act of 1952 provision, it talks about the notarization of the attorney through the appointment of a Notary public servant by the state or the Central Government.  

What is Power of Attorney in the Indian context?

  • The notarized Power of Attorney is like an agent of the principal, but for handling the legal technicalities and legal issues. This has been made to ensure better legal services in the country.
  • It is an instrument by which a person gives authority to the other person to handle the legal technicalities.

Why is it important to Notarize the Power of Attorney in India? 

  • Section 85 of the Indian Evidence Act talks about the documentation for the appointment and declaration of Power of attorney.
  • The documents required must be verified and attested by the Notary Officer.
  • The documents required are promoted to prove the authenticity of the declaration of Power of attorney.

Why Register Power of Attorney? 

  • Registration of the notarized Power of attorney in Indian laws is important but not mandatory in India.
  • But in one of the cases of the Delhi High court, it was held that if the notarized Power of attorney is executed before the Notary, then there is a doubt on the authentication of the document; the such document will be made invalid in the court of law.
  • In the judgment of Grafittek International versus K.K.Kaura and Ors in the year 2002, it was observed that the notarized Power of the attorney is Mere because the Power of attorney is not duly notarized does not mean that the concerned person was not authorized to institute the suit. Notarization raises the presumption as to its authentication and no more.
  • Notarization of Power of attorney is a matter of procedure and raises the presumption of the authority of the person to institute the suit.
  • In other words, it does not mean that Power of attorney executed in favor of a particular person but not duly notarized does not confer Power upon the person to institute the suit.
  • The Benefit of the presumption is given, so it is advisable to notarize the Power of attorney.

Notarized Power of the attorney in Abroad

  • The central government has the power to make the notarial work done in other countries by the Notaries valid and accepted in India under section 14 of the Notaries act of 1952.
  • This makes the notarized Power of attorney a simple process for the NRIs. These are some special power of attorney clauses in the country. 
  • In the absence of agreement among the High Courts. It is suggested that powers of attorney written outside of India be validated by an Indian consul, vice-consul, or Central Government representative abroad rather than a notary public to qualify under section 85 of the Evidence Act in the absence of unanimity among the High Courts.

When there is no need for Notarized Power of the attorney when the agent is itself the Executrix 

  • The notarized Power of attorney is not mentioned in Section 33 of the registration act, 1908, which says that the authentication of the Power of Attorney is not necessary on the condition that the presentation is by the side of the Agent himself. 
  • This means that the requirement for the authentication of the document is required only when there is a presentation, not from the side of the actual agent. 

Process of the registration of the Notarized Power of Attorney 

  • There is no mandatory registration for the notarized Power of Attorney 
  • The deed of Power of attorney does not need to be registered unless it pertains to the transfer of immovable property, possession of which has been or will be given to the attorney holder or when an irrevocable power of attorney relating to the transfer of immovable property is made.
  • Other powers of attorney do not need to be registered.
  • However, there is a presumption that a document that has been registered was duly executed. 
  • As a result, it is the burden of the party challenging the validity of the transaction to demonstrate that it was invalid.
  • Therefore, a power of attorney can always be filed to stave off any potential accusations that it was not properly executed. 

What is Stamp Duty?

The notarized Power of attorney has been given under section 48 of the Indian stamp Act, 1899, which covers all the stamps rules of the country, has made the stamp duty on the notarized Power of attorney chargeable, and the different applications have different types of payments on the different types of Power of attorney. If the payment of the stamp duty is pending, then.

  • The notarized Power of attorney will not be valid, and he cannot present himself. 
  • The documents can be impounded. 
  • The penalty, which can go up to 10 times the original duty, will be imposed for the nonpayment of the stamp duty for the notarized Power of attorney registration. 

Conclusion 

In the end, it is observed that the notarized Power of the attorney’s registration and notarization is not an essential element in the presentation. Still, it is an important issue as the court had to accept the challenges which might be faced by the principal in the process of the execution; we also learned that there is some special power of attorney in the legislation. Notarization is an important part of the initiative to provide better legal consultancy services in the country. 

The notarized Power of attorney functions to deal with the complexities of the law, businesses, and other disputes. To make a power of attorney, consult an expert professional.

Bhavya Choudhary

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Bhavya Choudhary

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