POWER OF ATTORNEY

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Power of Attorney means the power or authority given to a person (agent) by an individual (principal) to act on his behalf or on behalf of a group of individuals in business matters or any other matter.It plays a vital role in transferring the lawful ownership of immovable property like land, building and water source, from one person to another.The person who holds the power is called the Power of Attorney Holder. He is employed by the principal to take care of his dealings with third persons.

A person competent to contract can execute a Power of Attorney.He can appoint one person or several persons to act on his behalf.Where several persons are appointed as attorneys, it is advisable to mention as to how they will act jointly or independently. If this is not mentioned, then they are at liberty to act jointly.

Power of Attorney, generally speaking, is of two types. Power of Attorney for a single specific purpose is known as “Special Power of Attorney” and the one involving more than one work or transaction is called “General Power of Attorney”.The duration of Special power of attorney may be for a particular period or for an indefinite period until the task is completed.

 

A General Power of Attorney may continue to be in force until it is revoked or by death of either party. A registered Power of Attorney can be revoked by a Cancellation Deed.Though, in general, a Power of Attorney is revocable, it cannot be done so in matters pertaining to debt security till the debt is cleared even though the debtor is not alive. It can be revoked if the principal becomes of unsound mind or he is declared insolvent. It cannot be revoked if it is made irrevocable. However it should be registered by paying applicable stamp duty. Power of Attorney attracts various provisions of The India Stamp Act, Powers of Attorney Act, Registration Act, The Indian Contract Act, Indian partnership Act, and the Indian Evidence Act.

 

A Power of Attorney is divided into ten categories according to the stamp duty payable. A Special Power of Attorney is given for a court case, for appointing one attorney in place of another, for collection of debts and for admitting execution and a General Power of Attorney is given for selling shares, to execute a Sale Deed, to prepare a layout and sell plots, to raise money through mortgage of property, to recover rents and many other acts.A Power of Attorney need not be registered except in the case where immovable property is involved. According to the Registration Act, if a Power of Attorney gives power to present documents for registration, then it must be executed before and authenticated by the Registrar or the Sub-Registrar.

 

If the Registration Act is not in force at a place where the Executant lives, then a Magistrate’s authentication is necessary.If the Power of Attorney is registered outside India a Notary Public and Court Judge, Magistrate of that country, or Indian Consul or Vice-Consul or a representative of Central Government must authenticate it.A Power of Attorney is executed in the form of a legal document generally in first person and begins either as “Know all men by these presents that I …….” or “By the power of attorney I ……….. or “This Power of Attorney made and executed on this……………….”

 

After a brief introduction, the operative part is brought in.Thereafter, the specific powers given to the person are mentioned in separate paragraphs. After these a general clause is added empowering the attorney to do such lawful acts and deeds, as he deems fit and proper in the performance of his duties.

It is the duty of the agent, the Power of Attorney holder, to act honestly and faithfully on behalf of his principal, the giver.He is legally bound to perform the tasks according to the wishes of the principal. If the agent acts otherwise and the principal suffers any loss, he must compensate the principal. He is bound to keep all accounts in a proper manner and produce it to the principal on demand. An agent possessing authority to carry on business has authority to do every lawful thing necessary for the purpose. Being a legal document, a Power of Attorney must be strictly interpreted and understood.Therefore, special care must be taken while drafting General Power of Attorney.

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CONSUMER DISPUTES – NATIONAL COMMISSION

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The Consumer Protection Act 1986, has established three forums, to redress the grievances of consumers,District Forum,State Commission,National Commission, in that order. National Commission is the highest in hierarchy. The National Commission shall ordinarily function from capital of the country, New Delhi.The working days and hours are same as that of central government.The National Commission shall use the seal and emblem as the central government may prescribe.The Commission shall meet as and when necessary, and shall be convened by president.

Composition

National Commission consists of a president and members not less than four. One of the members shall invariably be a woman. The number of members may be more than four also. A person who is a judge of Supreme Court or has been judge of Supreme Court shall be appointed as the president by Central Government in consultation with Chief Justice of India.

The members are appointed by Central Government based on the recommendations of a Selection Committee.The Selection Committee is composed of a chairman and two members.The chairman is a judge of Supreme Court who is nominated by Chief Justice of India.The Secretary Department of Legal Affairs of Government of India, and Secretary of Department dealing with consumer affairs in Government of India are members.

The members of National Commission shall not be less than thirty-five years of age, with a bachelor’s degree from a recognized university with ability, integrity and standing. They should have adequate knowledge and experience of at least ten years in dealing with the problems relating to economics, law, commerce, accountancy, industry, public affairs, or administration.The composition is as such that not less than fifty percent of members shall have judicial background.The people, having knowledge and experience of at least ten years as presiding officers at district level court or any tribunal at district level are considered as persons with judicial background.

Certain people are disqualified to be members. Any person convicted and sentenced to imprisonment for an offence, which Central Government opines to involve moral turpitude, an un-discharged involvement, person of unsound mind who has been declared so by competent court, any person who has been removed or dismissed from the service of the Government or a body corporate owned or controlled by Central Government or if the Central Government opines that the person has financial or other interest which may prejudicially affect the discharging of functions as member are disqualifications. 

The Central Government may remove president or any member if found to be disqualified. The term of the office of president and members is for a period of five years or upto reaching seventy years of age, whichever is earlier.They are eligible for re-appointment of another five years or up to the age of reaching seventy years whichever is earlier. However such re-appointment is subject to satisfying the conditions, qualifications discussed earlier.

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DOCUMENTS TO BE PRODUCED AT THE TIME OF REGISTRATION

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At the time of registration of the properties, various documents are required to be produced at the Sub-Registrar's office. List of such documents may vary on the basis of the nature of the property.In general, the following are the classifications of documents, which are required to be produced at the time of registration:

a)An affidavit stating the transaction is not violative of the provisions of Section 22 A of Indian Registration Act.

b)Extract of the assessment Register for the purpose of valuation of the property (Form No19 if the property comes within Municipal area or Form No. 9 and 10 in case of Panchayat area).

c)If the property comes within the limits of Corporation Khatha Certificate, Katha Extract and Latest Tax paid receipt.

d)Form No.1 prescribed under Karnataka Stamp (prevention of under valuation) Rules

e)Permanent Account No (PAN) issued by Income Tax Department or Declaration in Form No.60 or 61 if the value of the property to be registered exceeds Rs 5.00lakhs and where payment is made completely or partially in cash.

Agricultural land:

The sale and purchase of agricultural land has many restrictions and as such many documents conforming to the requisites are required for registration, which are mentioned below:

a)Two copies of affidavit stating that the transaction is not violative of Section 22 A of Indian Registration Act.

b)Two copies of affidavit about owning agriculture lands.

c)If the property is granted land or of occupancy rights NOC from Tahsildar

d)Declaration under section 81 A of Land Reforms Act.

e)Form no.1 prescribed in Karnataka Stamp (Prevention of under valuation)

f)Permanent Account No (PAN) issued by income Tax Department

g)Declaration in form 60 or 61 if the value of the property to be registered is more than Rs 5lakhs and where payment is completely or partially through cash.

h)'J' Form

i)Purchaser's pahani

j)Copy of the RTC pertaining to the Property to be registered

Apartments:

The following are the documents required to be produced before the Sub-Registrar, at the time of registration of an apartment.

a)Katha pertaining to the total land.

b)Tax paid receipt for the total land.

c)Plan sanctioned by the Competent Authority.

d)Floor Plan.

e)Form no.1 prescribed in Karnataka Stamp (Prevention of under valuation)

f)Two copies of affidavit stating that the transaction is not violative of Section 22 A of Indian Registration Act.

Stamp Duty and Registration Charges:

Stamp duty required to be paid for the property coming within the limits of Corporation or a Municipality is 8.96% on the total sale consideration mentioned in the Sale Deed or on the Market Value of the property, whichever is higher. For the properties that falls beyond the limits of Corporation or CMC, the Stamp Duty required to be payable is 9.04%.

Registration charges payable for the registration of the properties, irrespective of its nature is 1% on the sale consideration or the market value, whichever is higher. Apart from the above, scanning charges has to be paid, which may generally be between Rs.400 to Rs.800.

Scanning of Documents:

After Telgi Scam, usage of Stamp Papers is prohibited in Karnataka. In alternative, 2 Rupees Document sheet is made available to the public issued by the Government Department, who will have to take print out either in such Document sheets or can also use white paper for the same. At the time of presenting such document for registration before the Sub-Registrar, details about the Vendor/s, Seller/s, stamp duty and registration charges required to be paid, will be recorded in the computer, along with the photos of the Vendor/s, Seller/s and Consenting Witness/s, if any. Further, name of the person identifying the Vendor/s will also be recorded in the computer. Subsequently, print out of all the details of the Vendor/s, Seller/s and Consenting Witness/s, if any recorded in the computer, along with their signatures, will be taken on the back side of the Sale Deed and after the Sub-Registrar signs on such sale deeds, details about the document number, CD No and other relevant details will be stored in the Sub-Registrar’s Office.

Registration of the documents opposed to the public policy:

The Government of Karnataka has declared that registration of certain documents is opposed to the public policy, which is listed below:

a) Agreement to sell, sale, gift, exchange, mortgage lease or assignment of which occupancy rights have been granted under Chapter III of Karnataka Land Reforms Act 1061, in contravention of restrictions imposed under Section 61 of the said act and relevant rules.

b) Any agreement to sell, sale, gift, exchange or otherwise of land in excess of ceiling limits prescribed under Section 63 or 64 of Karnataka Land Reforms Act and in contravention of Section 74 of the said act and relevant rule

c)Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural land to a person, family, joint family with an assured annual income of Rs.40lakhs or more from non agricultural source in contravention of section 74 of Karnataka land Reforms Act and relevant rules.

d) Agreement to sell, sale, lease, mortgage with possession or otherwise of any agricultural land to educational, religious, charitable institutions, society, trust, company, association other body of individuals, cooperative society other than cooperative farming society in contravention of section 79B of Karnataka land reforms Act subject to exceptions provided.

e) Agreement to sell, sale, gift, lease, mortgage with possession or otherwise of any agricultural land granted under Karnataka land grant rules subject to restriction imposed on sale, transfer and specific use imposed there under.

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PERSONS EXEMPTED FROM APPEARANCE AT REGISTRATION OFFICE

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 Indian Registration Act 1908 has mandated that who should present the document for registration personally.The executants of a document or any person claiming under such document or representative or assignee of such executants or duly authorised power of attorney holder has to present the document for registration.These are detailed in sections 32 and 33of the Act. Karnataka Registration Rules stipulates the document shall be presented for registration to the registering officer and not to a clerk or peon. In ordinary course, the registration or deposit of documents has to be made only at the designated office.The Act also provides for exemption of certain people from personal appearance and presents the document for registration.

Section 31 of the Act gives power to the registering officer under special cases to attend the residence of any person desiring to present a document for registration or to deposit a will and accept for registration of such document or deposit of will.

Section 38 of the Act lists the category of persons who are exempted from appearance at registration office to present the document for registration.

1) Any person who is bodily infirm because of illness or age and cannot attend the office without risk or is inconvenience.

2) Any person in jail under civil or criminal process or

3) Persons who are exempt by law from personal appearance in court are exempted from personal appearance or through their agents.

Persons who are exempted from personal appearance in court as per Civil Procedure Code are

(1) Women who according to the customs and manners of the country ought not to be compelled to appear in public, persons of rank especially exempted by the government. In such cases the registering officer shall personally go the house of such person or the jail where the person is confined and examine him or may appoint a person or visit and examine such person.

Procedure for attending at Private Residence

Karnataka Registration Rules 1965 has formulated procedure for attendance if the registering officer at Private residence.The relevant rules is detailed in chapter 10 and under Rule Nos. 56 to 32.Any application for attendance at private residence shall be in writing and has to be signed by the person who requests the attendance at his residence.Such letter may be presented by any person to the registering officer.The request has to be complied with as early as possible.

If such attendance at private residence disturbs the regular routine of the office or requires closure of office and if the case does not fall under section 31 of the Indian Registration Act, a commission may be issued, which means another person other than the registering officer may be requested to attend the private residence and complete the registration formalities. The attendance of sub-registrar at private residence or issuing commission has to be reported to the registrar within 24 hours.The Sub-registrar shall not proceed out of his sub district for this purpose, but registrar may attend the private residence situated in his district though it may not be situated within the sub district under his immediate charge.

The commissioner appointed to attend the private residence will examine the witness and persons to give evidence and the registering officer will examine the commissioner personally in his office connected with discharge of his commission and voluntary nature of admission of execution. During the course of attendance if the registering authority has to record the admission or execution of persons not exempted from personal appearance in the respect of the same document executed by a person exempted from personal appearance, the registering authority may comply with the request provided attendance fee is levied.

Government Officers

Section 88 of the Act refers to documents, which are executed by government officers or certain public functionaries who are exempted from personal appearance. Any officer of the government, any administrator general, official trustee or official assignee, the sheriff, receiver or registrar of High Court, any holder of such other public office as notified is official Gazette of the state government are exampled from personal appearance or through their agents at registration office in connection with registration of any instrument executed by them or any document executed in their favour in their official capacity. They are also exempted from signing the document for admitting the execution as required under section 58 of the Act.

When documents are forwarded by government officer with a covering letter stating that documents executed by him and be registered, the covering letter will be sufficient to satisfy the genuineness of the signature of the executant.If such document is presented by a private party, who is also a party to the document, the registering authority will satisfy as to the genuineness of the signature by a brief enquiry.The fact of exemption from personal appearance and presentation of the document by covering letter will be endorsed. 

Only Copies to be sent

Certain category of documents like copies of orders, certificates and instruments need not be presented for registration but may be sent to the registering office for filing as per section 89 of the Act.In following cases, the copies have to be forwarded to the Jurisdictional registering officer under whose jurisdiction the immovable property in question is situated.

Every officer granting a loan under Land Improvement Loans Act 1883.Every court granting a certificate of sale of immovable  property under Civil Procedure Code, 1908.In case of loans under Land Improvement Loans Act 1883, the details of any land to be granted as collateral  security.

Every officer granting a loan under Agriculturists Loan Act 1884, a copy of the document whereby the immovable property is mortgaged to secure the repayment of the loan or if such property is mortgaged for the same purpose in order granting the loan, a copy of such order.

Every Revenue officer, who grants a certificate of sale to the purchase of immovable property sold in public auction.The registering officer will file the copies of such orders, certificates,and instruments in book No.1.The concerned officers need not appear in person at registration office.State government has made rules as to the mode of making copies and manner of filing copies.

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