The Execution Of Power Of Attorney Outside India And Its Use With Reference To International And Domestic Laws

A “power of attorney” is a legal instrument whereby one person gives another person the authority to act on his or her behalf as his legal representative, and to make binding legal and financial decisions on your behalf.

Important Facets of the Power Of Attorney

 

  • Legal representation
  • Limits imposed
  • Time frame
  • Scope of the draft

The present question is regarding the validity of passing of a power of attorney executed outside India. The value of a deed of power of attorney executed outside India is proven through a process called Apostallisation passed under Hague convention of 1961. Under Article 1 of the treaty:

  1. All the registry entries of a notary public and official certificates signed under the private capacity certifying registration,
  2. Notarisation and authentication of documents are treated as public documents, which are available for public inspection.

Method 1: Legalisation

 

A deed of power of attorney is framed complying with laws of both the countries involved. (In the present case USA and India) The deed is made sustainable to legal challenge by notarising it from the authorized officer in the Indian Consulate/Embassy as he is a valid notary under Indian law under section 3, Diplomatic and Consular Officers (Oaths and Fees) Act, 1948.

Once the deed is executed from the embassy, it is sent to India for registration along with all the signatures and the payment of stamp fees according to section 2(17) along with schedule I of Indian Stamp Act, 1899. Once registration is done under the adjudication of the sub-registrar, the legality of document can be proved in the court of law beyond all reasonable doubts.

Ministry of external affairs, Government of India has issued a notification L161/1/2003 In March 31st 2006 accepting the Hague convention and entering into force for India on 14th July 2006.

Method 2: Apostallisation

 

It is much simpler process but with a certain degree of doubt and suspicion surrounding it. For making a deed of power-of-attorney which is valid in India from USA, firstly a deed must be executed according to the law of the state where you are residing in. The grantor shall comply with all the legal requirements under US laws and Indian laws, so that there won’t be any difficulty in legally enforcing it in India.

The next step is to approach the U.S. Department of State Authentication Office to get an apostille stamp affixed in the document. If the deed complies with all the requirements set forth by Section 17 (b) and 33(c) of the Indian Registration Act, 1908 and Section 2, Power of Attorney Act, 1882 along with payment of required stamp duty, it shall be registered and can be considered as a valid power of attorney in India.

FAQs

 

1)      What value does the verification or attestation of a foreign notary hold in India?

Ans: According to the section 14 of the Notaries Act of 1952, if the central government is satisfied that by law or practice of any country or place outside India, the notaries act done by notaries within India are recognised for all or any limited purposes in that country or place, the Central Government may, by notification in the Official Gazette, declare the notarial acts lawfully done by notaries within such country or place shall be recognised within India for all purposes or, as the case may be, for such limited purposes as may be notified in the notification.

Thus it is perfectly valid.

2)      Is registration required for this deed?

Ans: Yes, registration is must for this deed of power of attorney, as under Section 17 of the Indian Registration Act, 1908 it is required that all non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immoveable property, must be registered for ensuring its legal validity.

3)      Is Hague convention ratified in India?

Ans: Hague Convention is in force in India since 14th July 2006. It is upheld by an amendment in Diplomatic and Consular Officers (Fees) Rules, 1949 under Section 8 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 whereby the Central Government is allowed to make rules accordingly.

Section 14 of the Notaries Act of 1952 read along with the section 33(c) of The Registration Act, 1908 gives the discretion to the Central Government to recognise the acts of foreign notaries if found satisfactory. It will have the same effect of an act done by an Indian notary.

4)      Why there are two methods of certification?

Ans: The first method is older and lengthy, when compared to apostallisation process. The public seems to prefer the simpler method. But, in the actual practice, the newer process is no less cumbersome than the old one, as only difference is a mere change in the office where you get it done. And further adding salt to the injury in the second case, the grantor has to make sure that both the laws are complied with, whereas in the legalisation, Indian law is the only one to be complied with.

– A report presented as a part of my legal internship.

 

Important Links

  1. http://apostille.us/services/country/india.shtml
  2. http://tiny.cc/8n50z
  3. http://tiny.cc/kv6ub
  4. http://www.scribd.com/doc/4608826/Explanation-of-Hague-Convention-Apostilles-1961
  5. http://hcch.e-vision.nl/index_en.php?act=text.display&tid=37
  6. http://www.vakilno1.com/bareacts/notariesact/notariesact.htm
  7. http://tiny.cc/h76op
  8. http://dolr.nic.in/Acts&Rules/RegistrationAct%281908%29.htm
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13 thoughts on “The Execution Of Power Of Attorney Outside India And Its Use With Reference To International And Domestic Laws

  1. I am Arindam Mukherjee, residing presently in Mumbai (posted here). I have my (late) parents’ house in Kolkata which is actually part of one house (which again has two portions, in one my late uncle would stay and in another my parents). The house will be divided in the ratio of 2:3 :: 1:3 with 1: 3 again being divided in the ratio of 1:3 and 1:3 between me and my sister which means I have a 1: 6 share and so has my sister. The house will be redevloped and the promoter will give the entire Mukherjee family 3 flats of which 2 will go the descendants of my uncle and one to us (me and my sister). My sister is presently in the US but an Indian citizen and cannot come to India to do the formalities 9she wants to pass on her share to me).
    I have two questions:

    (i) Can she execute a deed of gift from the US to me?
    (ii) Can she execute a power of attorney to act on her behalf from there in case (i) is not possible?

    Is it possible to get advise on this?

    Like

  2. what is period of validity of deed executed in india by indian national with indian citizan -but lives abroad not intending for return.As rules are changed but validity of saledeed executed by notary not specified.
    So what should be done.
    ss mahajan

    Like

  3. Dear Sir, I am Mr. Krishna Saha, I have already purchase the my commercial place from promoter, and my commercial place already registered, and I got all of the municipality papers like CC certificate, Mutation, And Tax cleared in my name but when I take the loan in against my property from the SBI bank but bank denied to sanctioned my loan due to power of attorney approved by Notary from land lord to promoter in the year 1998 but so far as my knowledge the power of attorney compulsory Indian Supreme court act 2001-2002 must be mandatory. What should I do ? please give me your advice.

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  4. dear sir
    i am a partner of a firm and my all other partners has given me general power of attorney to deal for firm with banks and others to get loans.now my bank is asking me that my partners has given me power to mortgage the property but not given me power to sign the personal guarantee form on behalf of them for the same loan.what is legal opinion.
    thanks
    ajit anwala

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  5. dear sir,
    i am dharan. my friend solemnized his marriage by notary lawyer. is it a valid one? registration is a compulsory one afater the commencement of notary?

    Like

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