You are on page 1of 10

The

Powers-of-Attorney
Act, 1882
(7 of 1882)
BARE ACT
WIth Short Comments
Price Rs. 15.00
The
Powers-of-Attorney
Act, 1882
(7 of 1882)
with
Short Comments
PROFESSIONAL BOOK PUBLISHERS
NEW DELHI
WITIi TIiE BLESS INGS OF "MATA VAISIiNO DEVI "
Pllbltslll!d by
Ms. SHIKHA ARORA
For Book Publishers
36,. to. II Floor, Ea.. t Palel 'agar, 1\e1o'V Delhi 110008
Phone: 011-25781451, 011-3106388-l
01135781451, OJ 1-25720717
E-Mail profbook@dc13.v::.nLnetin
PUBLISHERS
rypestttmg at
Professional Book Publishers (Computer Division), New Delhi
Prmtt.'Ci at
Print Perk"CI, New Delhi
Although every care has been taken in the publication of this book, theaulhor..,
the publ ishers, the distributors and the printers shall not be responsible for any
loss or damage caused 10 any person on account of errors or which
might have crepl in. It is suggested that to aVoid any doubt the reader should
cross-eheck all the facts, law and contents of the publication with the origmal
Government publication or notification, elc. No part of this book may be
reproduced orcopled in any fannor any mannerwhatsoeverwithoul the prior
written permission of the publishers.
For binding mistake, misprints or for missing pages, etc., the publisher's
liability is limited to replacement within thirty day" of purchase by similar
edition. All expenses in this connection are 10 be borne by the purchaser.
All disputes are subject to Delhi jurisdiction only.
CO TENTS
THE POWERS-OF-ATTORNEY ACT, 1882
SectIOn Page
l. Short title Z
Local extent 2
Commencement 2
I-A. Definition 2
2. Execution under power-ofattomey 2
3. Payment by attorney under power, without notice of death, etc., good 3
4. Deposit of original instruments creating powers-or-attorney 3
5. Power-of-attorney of married women 4
6. IRepealed] 4
Li st of Amending Acts
1. Lower Burma Courts Act, 1900 (6 of 19(0)
2. Pari BStates (Laws) Act, 1951 (30f1951)
3. Powers-of-Attomey (Amendment) Act, 1982 (55 of 1982)
THE POWERS-OF-ATTORNEY ACT, 1882
(7 OF 1882)
[24th February, 1882]
All Act to amend the law relating to Powers-oJ-Attorllt?!J.
For the purpose of amending the law relating to Powers-of-Attorney; It is
hereby enacted as foll ows:-
Statement of Objects and Reasons.-As the law stands, the donee of a power-of-
attorney, when executing an instrument pursuant to the power, must sign, and where
sealing is required must seal, in his principal's name. The first objectef this Bi ll is to render it
legal for such donees to execute in and with theirown names and seals. The law respecting
the execution of instrument under powers-of-attorney will thus be made accordant with
what will be the rule in England from and after 31st December, 1881, and with what is
believed to be the practice in the North-Western Provinces, British Burma and, probably,
elsewhere in India. This section effecting this is copied from section 46 of the recent Statutes
44 and 45 Vic. c. 41, which takes effect from the dose of the present year.
The second object of this Bill is to preclude doubts as to the liability of a donee of a power-
of-attorney who makes payments in good faith after the donor of the power has died or
become lunatic or bankrupt or insolvent, or has revoked the power, when the fact of death,
lunacy, bankruptcy, insolvency or revocation was not known to the donee at the time of
making the payment. The section effecting this is copied from section 47 of the Statute above
mentioned; and merely extends to all attorneys the rule as to trustees, executors and
administrators making payments under powers, which has been in force in British lndia for
the last fifteen years (See Act 28 of 1866, section 39).
The third and last object of the Bill is to provide for the deposit of instruments creating
powers-of-attorney, and for the evidence of the contents of such instruments. The section
effecting this is copied (with the modifications necessary 10 adapt it to India) from 44 and
Vic. c. 41 , section 48.
Amendillg Act SS of1982-Statemellt a/Objects and Reasons.-The Law Commission in
its Sixty-Eighth Report examined the Powers-of-Attorney Act, 1882 and while suggesting
thal because of its archaic form and language it should be replaced by a new enactment, it
also suggested certain amendments to the Act. As the amendments do not call for any
radical or substantial changes in the Act which had worked smoothly for a century, it is
proposed, instead of replacing the Act by a new one, to make the necessary amendments
therein.
(2) The Act though it deals with powers-oE-attorney, does not contain the definition of
It is proposed to remedy this defect by inserting a suitable definition.
"This Act has been extended to Berar by the Berar Laws Act (IV of 1941) and has been
declared to be in force in the Khondmals District by the Khondmals Laws Regulation (IV
of 1936) and in the Angul Districl by the AnguJ Laws Regulation (V of 1936). It has also
been applied in Porahat Estate il, the district of Singhbum by the Porahat Eslate Laws
Regulation, 1945.
This Act has been extended to the new provinces and merged States by the Merged Slates
(Laws) Act (LlX of 1949), and to the States of Manipur, Tripura and Vindhya Pradesh by the
Union Territories (Laws) Act (XXX of 1950). Manipur and Tripara are full-fledged Stales
now, see Acl81 of 1971. Vindhya Pradesh is a part of the State of Madhya Pradesh now, see
Act 37 of 1956.
The Acl has been extended to the Union territory of Dadra Nagar Haveli by Regulation
(VI of 1963) and Pondicherry by Regulation (VIl of 1963).
The Act extended to Sikkim, see S.O. 529(E), Gazelle of India, dt. 19-7- 1983 and enforced
on 1-9-1984, see S.O. 650(E).
2 POWERS-Of-ATTORNEY ACT, 1882 [5.1
(3) The expression "assurance"occurring in section 2 is being omitted as unnecessary_
(4) Section 4 of the Act enables original instruments creating powers-of-attorney to be
deposi ted in a High Court, which, without furthe r proof, would be sufficient evidence of the
contents of the instruments and their deposit in the High Court. It is proposed to make this
facility available even to persons who reside at a distance from the High Courts.
Accordingly, a provision is being made for the deposit of these instruments not onl y in the
High Courts but also in the District Courts.
5. Section 5 of the Act, as at present worded, gives the impression that the marriage of a
minor, which is prohibited by the Child Marriage Restraint Act, is permitted and that a
married woman, who is a minor, could execute a power-of-attorney. Therefore, it is
proposed to delete the reference to a married woman who is a minor so as to make it clear
that a minor, whether married or unmarried, does not have the power to appoint an agent
or execute a power-of-attorney.
1. Shorttitl e.- This Act may be called THE POWERS-OF-AITORNEY Acr, 1882.
Local extent-It applies to the whole of the India ' [except the State of
Jammu and Kashmir];
Commencement-and it shall come into force on the first day of May, 1882.
COMMENTS
A presumption of correctness arises in respect of a power-of-attorney attested in a
foreign country under Ss. 57 and 85 of the Evidence Act, 1872 regarding the genuineness of
the seal of the said Notary; no proof is required from thal country as to whether the person
attesting was in fact a duly appointed otary or not: Rajesli Wndliwn v. SlIslima Govi! AJ.R.
19890.1.144.
Power-of-attorney alongwith verifications are to be presumed to be true under S. 85 of
the Evidence Act, 1872: KlIlslllIlllII v. Ahmadi Begllm A.I.R. 1972 All. 219 (D.B.).
There being a presumption of va lid execution and authentication of the power-of-
attorney, the person objecting to the power-of-attomey is required to allege and prove
that it was not duly executed or authenti cated: Yogesh Sillgh v. Nimlljnll Lal A.I.R. 1981 Del.
222.
' [I-A. Definition.-In this Act, "power-of-attomey" includes any instrument
empowering a specified person to act for and in the name of the person
executing it]
2. Execution under power-of-atlomey.-The donee of a power-of-attorney
may, if he thinks fit, execute or do any Jr" ' ] instrument or thing in and with
his own name and signature, and his own seal, where sealing is required, by
the authority of the donor of the power; and every J[" '] instrument and thing
so executed and done, shall be as effectual in law as if it had been executed or
done by the donee of the power in the name, and with the signature and seal, of
the donor thereof.
This section applies to powers-of-attorney created by instruments executed
either before or after this Act comes into force.
COMMENTS
A power-of-attomey holder cannot give evidence on behalf of his principal: Mahendra
Pmtap Singh v. Padom KlImar; Oev. A.I.R. 1993 All. 143.
1. Substituted by Acl3 of 1951, S. 3 and Sch., for "except Part BStates"
2. Inserted by Acl55 of 1982, 5.2 (w.eJ. 22-10-1982).
3. The word "assurance" orrtitled by Act550f 1982, 5.3 (w.eJ. 22-10-1982).
r
2 POWERS-OF-ATTORNEY ACT, 1882 IS. 1
(3) The expression "assurance"occurring in section 2 is being omitted as wmecessary.
(4) Section 4 of the Act enables original instruments creating powers-ofattorney to be
deposited in a High Court, which, without further proof, would be sufficient evidence of the
contents of the instruments and their deposit in the High Court. It is proposed to make this
facili ty available even to persons who reside at a distance from the High Courts.
Accordingly, a provision is being made for the deposit of these instruments not only in the
High Courts but also in the District Courts.
5. Section 5 of the Act, as at present worded, gives the impression that the marriage of a
minor, which is prohibited by the Child Marriage Restraint Act, is permitted and that a
married woman, who is a minor, could execute a power-of-attorney. Therefore, it is
proposed to delete the reference to a married woman who is a minor so as to make it clear
that a minor, whether married or unmarried, does not have the power to appoint an agent
or execute a power-of-attomey.
1, Short titJe.-This Act may be called THE POWERS-OF-ArrORNEY Aer, 1882.
Local extent.- It applies to the whole of the India ' [except the State of
Jammu and Kashmir];
Commencement.-and it shall come into force on the first day of May, 1882.
COMMENTS
A presumption of correctness arises in respect of a power-of-attorney attested in a
foreign country under Ss. 57 and 85 of the Evidence Act, 1872 regarding the genuineness of
the seal of the said Notary; no proof is required from that country as to whether the person
attesting was in fact a duly appointed Notary or not: Rajesh Wadlmm v. Sushma Govil A.I.R.
19890.1.144.
Power-of-attorney alongwith verifica tions are to be presumed to be true under S. 85 of
the Evidence Ac. 1872: Kulsumuu v. Ahmadi Begum A.I.R. 1972 AU. 219 (D. B.).
There being a presumption of valid execution and authentication of the power-of-
attorney, the person objecting to the power-of-attomey is required to allege and prove
that it was not d uly executed or authenticated: Yogesh Sillgh v. Nirnlljall Lal A.I.R. 1981 Del.
222.
' [1-A. Definition.-In this Act, "power-of-attorney" includes anr instnunent
empowering a specified person to act for and in the name 0 the person
executmg It. ]
2, Execution under power-of-attorney.-The donee of a power-of-attorney
may, if he thinks fit, execute or do any 3[' '] instrument or thing in and with
his own name and signature, and his own seal, where sealing is required, by
the authority of the donor of the power; and every 3[.. ' ] instrument and thing
so executed and done, shall be as effectual in law as if it had been executed or
done by the donee ofthe power in the name, and with the signature and seal, of
the donor thereof.
This section applies to powers-of-attorney created by instruments executed
either before or after this Act comes into force.
COMMENTS
A power-of-attomey holder cannot give evidence on behalf of his principal: Mnhendra
Prntap Sillgh v. Padam Klllllari Devi A.I.R. 1993 All. 143.
1. Substituted by Act 3 of 1951, S. 3 and Sch., for "except Part BStates"
2. Inserted by Act S5 of 1982, S. 2 (w.e.f. 22-10-1982).
3. The word "assurance" omitted by Act55 ofl982, S. 3 (w.e.f. 22-10-(982).
4
POWERS-OF-ATIORNEY ACT, 1882 IS.5
'(e) The High Court may, from time to time, make rules for the purposes
of this section, and prescribing, with the concurrence of the ' IState
Government], the fees to be taken under clauses (0), (b) and (c)."
7[' ..]
(g) This section applies to instruments creating powers-of-attorney
executed either before or after this Act comes into force.
5. Power-of-attorney of married women.-'[A married woman of full age
shall, by virtue of this Act, have power, as if she were unmarried,] by a non-
testamentary instrument, to appoint an attorney on her behalf, for the purpose
of executing any non-testamentary instrument, or doing any other act which
she might herself execute or do; and the provisions o this Act, relating to
instruments creating powers-of-attorney, shall apFly thereto.
This section applies only to instruments executed after this Act comes into
force.
6. Act 28 of 1866, section 39, repealed.-[Repeoled by ti,e Amelldillg Act, 1891
(12 ofI891), section 2 olld Schedule 1.]

"For instances of rules made and fees prescribed under this clause, see Mad. R. and 0.;
Born. R. and 0., Bur. R. M.
"For Madras High Court-Fees Rules made under this Act and the Indian High Courts
Act, 1661 (24 and 25 Viet., C. 104), see Fort St. George Gazette, now replaced byActs of 1925.
6. Substiluted by A.O. 1950.
7. CI. if) repealed by the Lower Burma Courts Act6 of 1900, S. 48 and Sch. II.
8. Substilut4(d by Act 55 of 1982, S. 6, for"A married women, whether a minor or not
shall by virtue of this Act, have power, as if she were unmarried and of full age," (w.eJ.
22-10-1982).
The
Powers-of-Attorney
Act, 1882
(7 of 1882)
,