Introduction
This is a reference by the Government under section 6 (Ena) of the
Law Commission Act, 1996 for a review of the Powers-of-Attorney Act,
1882 (Act VII of 1882). The text of the reference as sent to the Commission
under memo no. †jtcÖt 355/07 ZvwiLt 17B AvlvpÕ 1414 e½vã †gvZv‡eK 1 RyjvBÕ
2007 wLª÷vã of the Ministry of Law, Justice and Parliamentary Affairs runs as
follows:
It appears from the above reference that the Government feels the
need for making the power-of-attorney deeds compulsorily registerable with
photographs of both the parties therein. In the absence of any provision in
the existing Powers-of-Attorney Act, 1882 (Act VII of 1882) for registration
of the power of attorney deeds with photographs of both the parties therein,
the power-of-attorney deeds are not required to be registered under the
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provisions of the Registration Act, 1908 (Act No. XVI of 1908) and as a
result, it becomes difficult to identify the doner and donee of a power-ofattorney
in case of any doubt about their identity and that no reliable records
of such power-of-attorney deeds are kept anywhere. In such a position of the
matter, legal complications sometimes arise between the parties in respect of
the matters of the power-of-attorney deeds and even cases are sometimes
filed in courts. To eradicate such complications, appropriate amendments are
proposed to be made in the Powers-of-Attorney Act, 1882 providing for
compulsory registration of power-of-attorney deeds with photographs of
both the parties therein.
We have examined the provisions of the Powers-of-Attorney Act,
1882 (Act VII of 1882) with reference to the changed circumstances of the
present day society. We have also examined the related provisions of the
Registration Act, 1908 (Act XVI of 1908) which provides for compulsory or
optional registration, as the case may be, of written instruments.
Section 17 of the Registration Act, 1908 describes the documents,
which are compulsorily registerable. The list of compulsorily registerable
documents as given in section 17 of the Registration Act, 1908 does not
include instrument of powers-of-attorney. The power-of-attorney deeds are,
thus, not compulsorily registerable under the existing laws. Section 18 of the
Registration Act, 1908, however, provides that any document not required to
be registered under section 17 may also be registered under this Act. This
section pertains to the registration of those documents which do not require
compulsory registration. The non-registration of such documents however
will not affect their validity or admissibility in evidence, but in certain cases
may affect rights of priority. The powers-of-attorney authorizing the donee
of the power to manage, to lease, mortgage, or to sell immovable property
are generally registered in our country under the provision of optional
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registration of the documents as provided for in Section 18 of the
Registration Act, 1908.
Under the changed circumstances prevailing in the present day
society, there is now a tendency to create complications relating to the
matters of powers-of-attorney. Sometimes, the donee of a power-of-attorney
starts claiming his right in the property mentioned in a power-of-attorney
deed which results in frivolous litigation in courts relating to the property of
the power-of-attorney. The registration of power-of-attorney deeds may act
as a check against such false claim on such property. The photographs of the
doner and donee of each power-of-attorney will also help in determining the
identity of the parties in case of any dispute relating to such power-ofattorney.
Registration of powers-of-attorney with photographs will help
maintain permanent reliable records in the record room of the registration
office.
"It is held by the Indian High Court that power-of-attorney purporting
to create an interest in immoveable property of the value of Rs. 100/- or
more, must be registered. (1907) 35 Cal 845 (848-849) (SB)( The AIR
Manual-Volume 30, Page 796). It may be pointed out that the Province of
Sindh (in Pakistan) has already added a new provision in section 17 of the
Registration Act, 1908 for making the Power-of-Attorney to sell any
immoveable property, as compulsorily registerable". (source-internet)
It may be mentioned here that the agreement to sell immoveable
property is not a complete transaction and does not create any right on the
property mentioned in the agreement till execution and registration of a
complete sale-deed in fulfillment of the terms and conditions of the
agreement. Therefore, agreement to sell was not compulsorily registerable
under the provisions of section 17 of the Registration Act, 1908. But in the
present day society, there is a growing tendency to make a false agreement
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to sell and then use it in support of a false plea in Civil Courts for
establishing the right in the property. As a result, frivolous litigation is
increasing. With a view to stopping such tendency, the Government has
recently made an amendment in the Registration Act, 1908 by "The
Registration (Amendment) Act, 2004” effective from 1st July, 2005 by
inserting a new section being section 17A making a contract for sale of any
immoveable property compulsorily registerable. Another amendment has
been made therein to the effect that the photographs of both the executant
and the recipient shall be pasted on every instrument required to be
registered. It will operate as an effective check to prevent the abuse of an
agreement to sell and it will also help identify both the parties in time of
need. The same principle may be applied in respect of power-of-attorney
deeds.
Considering the above circumstances, we agree with the view
expressed by the Government that there is a need for compulsory registration
of power-of-attorney deeds with photographs of both the doner and donee
therein for the purpose of maintaining permanent reliable records of such
instruments and for identifying both the parties in time of need.
The power-of-attorney means any written instrument empowering a
specified person to act for and in the name of the person executing it. But it
appears that there is no such definition in the existing Powers-of-Attorney
Act, 1882. The definition of a power-of-attorney will make it clear to all
concerned as to what exactly a power-of-attorney means. We, therefore,
recommend that a new section as section IA be added in the Act after section
I giving a 'definition' of powers-of-attorney.
We have discussed above the reasons for making power-of-attorney
deeds compulsorily registerable. To that end in view, we recommend for
insertion of a new section as section 2A in the Act after section 2 providing
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for compulsory registration of the power-of-attorney deeds with further
provisions for pasting photographs of both the doner and donee on every
instrument of powers-of-attorney requiring the parties to sign and put their
left thumb impression across their photographs in the instrument.
Provisions for compulsory registration of the instruments of power-ofattorney
will necessitate some consequential amendment in section 3
regarding revocation of a power-of-attorney and addition of a new section as
section 3A providing for registration of instrument of revocation, if any,
with notice to the donee of that power-of-attorney.
After insertion of a new section being section 2A as we have
recommended above providing for compulsory registration of the
instruments of powers-of-attorney, section 4 of the Powers-of-Attorney Act,
1882 shall become redundant and as such, we recommend for omission of
section 4 from the Act.
Earlier, a married woman though a minor could appoint an attorney on
her behalf under section 5 of this Act, but after the enactment of the Child
Marriage Restraint Act, 1929 and the Marriage and Divorce (Registration)
Act, 1974 minor marriage is neither prevalent nor allowed in our country.
The concept of ‘full age’ has been introduced, that is, a girl must be a major
at or above the age of 18 years at the time of her marriage. Therefore, there
is a need to amend section 5 of the Powers-of-Attorney Act, 1882. In such a
position, we recommend for amendment of section 5 by substituting the
words "whether a minor or not" by the words "of full age".
After making the amendment and inserting new sections providing for
compulsory registration of the power-of-attorney deeds as we have
recommended above, there will then arise a need for deciding the fate of all
the power-of-attorney deeds executed and registered or not registered, as the
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case may be, and the acts and deeds done on the strength of those powers-ofattorney
before coming into force of our recommended amendments of the
Act. To meet those requirements, we recommend for addition of a new
section as section 7 to be added after the repealed section 6 of the Act.
Consequent upon the proposed amendment of the Powers-of-Attorney
Act, 1882 (Act VII of 1882) making the power-of-attorney deeds
compulsorily registerable, the related provisions of section 17 of the
Registration Act, 1908 (Act No. XVI of 1908) shall be necessary to be
amended by inserting the instrument of power-of-attorney and deed of
revocation of power-of-attorney in the list of compulsorily registerable
documents. In that view of the matter, we recommend for inclusion of
power-of-attorney deeds and deed of revocation in section 17 of the
Registration Act, 1908 by way of an amendment of the Registration Act,
1908 (Act No. XVI of 1908).
After inclusion of the powers-of-attorney in the category of
compulsorily registerable documents under section 17 of the Registration
Act, 1908, section 85 of the Evidence Act, 1872 (Act No. I of 1872)
regarding presumption of execution and authentication of a power-ofattorney
shall become redundant and as such, we recommend for omission
of section 85 from the Evidence Act, 1872 after implementation of this
report.
Recommendations
In view of our discussions above, we recommend that an amendment
be made in the Powers-of-Attorney Act, 1882 (Act No. VII of 1882) and in
section 17 of the Registration Act, 1908 (Act No XVI of 1908) and we
further recommend that section 85 of the Evidence Act, 1872 (Act No. 1 of
1872) be omitted from that Act.
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For convenience and ready reference, we are enclosing herewith three
drafts of the three proposed Ordinance as annexures A, B and C.
(Dr. M. Enamul Hoque)
Member-2
(Justice Md. Sirajul Islam)
Member-1
(Justice Mustafa Kamal)
Chairman
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