Special Power of Attorney

Question: What is a power of attorney? How many kinds are there, what authorities does it involve, and how is it made?

Solution: A power of attorney is a kind of authority that you assign to someone else, so that in your absence, the work you were supposed to do gets done by them. There are two main kinds of power of attorney:
1. Special power of attorney
2. General power of attorney
There is a third kind, also called a vakalatnama, which a client signs and gives to his lawyer, and its purpose is that the lawyer will legally present my case in court and represent me.

Now let me explain special power of attorney and general power of attorney one by one, since the important thing people wanted to know was how each is formed, what you need to keep in mind. First let me explain the special power of attorney.

A special power of attorney is where the grantor gives his authority to someone else for certain specific tasks, sending them as his representative, saying, sir, I have written this special power of attorney, and all the authorities contained in it belong to him, and whatever work he does under this special power of attorney will be treated exactly as if the original person, the grantor himself, were doing it. A power of attorney can be given by more than one person to a single person, ten, twenty, fifty, a hundred, two hundred, four hundred people together can give authority to one person.

Now, how is a special power of attorney formed? The legal requirement for a special power of attorney is: first, you take a stamp paper. The stamp paper should be obtained by the person granting the authority, ideally he should go and obtain it himself, or have his representative obtain it on his behalf, and it should be issued in the name of the person in whose favour he is doing it. In that special power of attorney, you need to write all the tasks it covers, which can include pursuing cases, which can include presenting evidence, which can include authority to appear as a witness, authority to withdraw a case, authority to give a vakalatnama in a case, authority to appoint a lawyer, authority to pay taxes, authority to obtain copies from the revenue department, authority to file an appeal, authority to file a revision, in short, authority to fight all the way up to the Supreme Court. All these things go into that special power of attorney.

Now, a special power of attorney is not limited only to court matters. A special power of attorney can also be for private purposes. How? A special attorney is appointed and given authority that, this is my property, rent it out, take care of it, pay its utility bills on my behalf, obtain copies of documents relating to this property, appear before the revenue department, appear before any department, exactly as if the original person were appearing himself. Write down all these authorities on that stamp paper, and then you must get it verified by two witnesses, who testify that this special power of attorney was written in our presence, before us, that A, or A, B, C, D, appointed Z as special attorney in our presence. Now there's one very important thing about a special power of attorney: authority to sell the property, authority to gift the property, authority to exchange the property, in short, any authority that would change the form of ownership, so that the grantor's name comes off the ownership column of the property because of this power of attorney, no such authority can be included in a special power of attorney.

Once the special power of attorney is complete, it should then be attested, ideally by a notary public, and it's better to have it attested by both a notary public and an oath commissioner. If a notary public is not available, attestation by an oath commissioner is mandatory. It must be on a stamp paper of the full required value. Forty years ago, a special power of attorney could be issued on a five-rupee stamp paper. Then it became ten rupees, then a hundred rupees, then five hundred rupees, now it's a thousand rupees. Once you get it attested by a notary public and an oath commissioner on a stamp paper of a thousand rupees value, that special power of attorney is complete. You can then use it as a special power of attorney, act on it.

Now, I received a call from a client who asked for my advice, saying, sir, I purchased a property, and now it's being challenged, in the High Court and also in the civil court, that this was done fraudulently, that the attorney had no authority to sell, this and that. I asked them first, is this a registered document, or is it attested by a notary public and an oath commissioner? They sent me pictures on WhatsApp, and it turned out to be a registered document.

Well, brother, you can write 'petrol' on the outside of a glass of water, it still won't be petrol, it will still be a glass of water. Now, this power of attorney had 'special power of attorney' written on it, and below it, the powers given included the authority to sell the land, and it was registered through the full process, under the Registration Act, under the Stamp Act, stamp duty was paid, all the other taxes were paid, so after all of that, it was a registered document. So, brother, just because it says 'special power of attorney' on it doesn't mean it's actually a special power of attorney, it's a general power of attorney. So you have no problem at all in this. Yes, if the person who granted the power of attorney comes forward and challenges it, saying, sir, I read it as a special power of attorney, I only gave him special authority, that's a long argument, that's a long argument, and it depends on the nature of each case.

If he says he gave a special power of attorney, well, a special power of attorney is a simple thing, one thumbprint, one signature, you hand it over, and he goes and gets it attested by an oath commissioner and notary public. But when a document is to be registered, when its registration process begins, that's not just one thumbprint and one signature, it involves dozens of thumbprints and signatures, and after that a whole set is prepared and submitted. Once submitted, what happens next depends on your specific case, but based on what you've told me, this is not a special power of attorney. Either you, or the person you bought from, did not have a special power of attorney, it was a general power of attorney, and it carried full authority.