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Power of Attorney

(Querist) 22 August 2008 This query is : Resolved 
In order to purchase the land of X, the buyer has entered into agreement with his attorney A.

1) Whether the buyer was required by law to verify the fact that A had been holding valid PoA from X?

2)Now the buyer seeks to file the suit for specific performance of contact, who is to be arrayed as defendant/s?

i)only the owner X
ii)only the attorney A
iii)or both X & A

3) Whether during trial, the plaitiff would be required to prove that A had been holding Valid PoA from X?

4)The instrument of agreement is unfortunately under stamped,how to cure this lacunae before filing the suit?
anantha krishna n.v. Advocate (Expert) 22 August 2008
I understand it as if you are yet to enter into an agreement with A. If so,
better to see the POA as well.

Even otherwise, before entering into an Agreement, the buyer is expected to satisfy about the validity of title of the seller and also the authority of the person with whom you are dealing.

So in this case it is imperative to look into the title deed and also the link documents to trace the title back to atleast 12 years; the POA to see whether the said A is actually has the authority to deal with the said property.

It is better to retain copies of the said documents including POA.
In the agreement it is advisable to get a covenant stating tht the POA is still in force and is valid;

In the event of suit;
you need to array X and also Attorney A.

anantha krishna n.v. (Advocate AP High Court, Hyderabad, ananthcourt@rediffmail.com, 9246531895)

Srinivas.B.S.S.T (Expert) 23 August 2008
Yes well said by Sri. A.K. nv. It is your bounded duty to verify the validity of the title of the owner and in case a poa is representing a seller, you have to verify that he is holding a valid poa and the same is still in force and subsisting and has not revoked or cancelled by the executant.

You must show the poa as well as the real owner of the property as parties to a suit for specific performance.

If you have entered into a sale agreement with POA it is your duty to prove that there is a GPA in favour of A from X. Once you have filed a copy of the said GPA the burden shifts to X to prove that the GPA has not executed by him.

If the instrument is under stamped you should not have entered into a agreement in the begaining. But anyhow as you are not a party to the document i think you cannot send the same for impounding. you can file a petition under or 12 rl 8 seeking the honourable court to direct the party in whose custody the document in original is,to produce the same before the court and then you can file a petition to send it to compounding. As far as my knowledge is concerned 20/- stamp is suffice to execute a GPA. Correct me if i am wrong. Regards Srinivas BSST
Vijay Kumar (Querist) 23 August 2008
Respected Sirs, the agreement has been already done and the purchaser wants to file the suit, so we, the Advocates, have to manage under the given conditions as we do not have the control over the mistakes which our client has committed in past.Please advice. Thanks.
GOPI KRISHNA (Expert) 23 August 2008
the answer for you points

2)the owner rep by his attorney and Attorney for safer side


4) if the iagreementis under stamped, the plaintiff can pay the deficit stamp duty with penalty inthe court

the above are general answers, please clarify why the purchaser wants to file case and what is the dispte between purchaser and land owner,

H. S. Thukral (Expert) 23 August 2008
Since the power of attorney authorises 'A' to enter into a sale agreement, it has to be registered. If power of attorney is not registered then A can not enter in to an agreement to sell. Check up whether the power of attorney is registered. Now a days photos of both parties are to be put on the document. If the owner has not executed the power of attorney in favour of 'A', case of forgery and cheating can lie against 'A' beside damages in suit for specific performance if performance is avoided. Make both of them parties. Burden of proving the document is on you. If 'A' does not deny POA the onus will shift on owner.

As my ld. friend Srinivas says, I follow to say -correct me if I am wrong.
Vijay Kumar (Querist) 23 August 2008
Sir, 1) whether it is the discretion of the court or the plaintiff has a right to make good the deficit duty in the court?

2)The purchaser has the actual possession of the landwhich is the subject-matter of agreement, but he has no title as per land records maintained by the revenue deptt.So he wants to secure himself by getting tranferred the land in his name through court.

3)The Power of Attorney is the registered one.

Kindly advice further. Thanks.
RAKHI BUDHIRAJA ADVOCATE (Expert) 24 August 2008
I do agree with my friends.
Vijay Kumar (Querist) 24 August 2008
Sir, I am waiting for the further enlightenment on my query.Regards.
anonymus (Expert) 12 September 2008
sorry mr.harbajan, the power of attorey deed need not be registered as it doesnot conveys or extinguishes title as required under sec 17 of Registration Act. hence it is not a compulsorily registrable document .Pls refer AIR 1979 SC 553 "syed abdul khader vs rami reddy"
Vijay Kumar (Querist) 12 September 2008
Thank you very much Mr. Mehbub for responding.Is the purchaser/plaintiff is required to prove that at the time of agreement, A was holding a valid Power of Attorney from the owner of land X?
M. PIRAVI PERUMAL (Expert) 04 February 2009
Yes the purchaser has to check it out whether the power agent is holding a valid power on the date of execution of the sale. Since in most cases the the power will be cancelled and the power agents executes the sale. When the dispute comes to Court, the land owner says that the power deed has been cancelled and hence the sale is null and voic.

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