Power of attorney and will
Drafting, Pleading and Conveyance · Unit IV · Topic 16 of 19 · 7 min read
Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Power of attorney: the law
- Definition. Section 1A of the Powers-of-Attorney Act, 1882: “power of attorney” includes any instrument empowering a specified person to act for and in the name of the person executing it.
- Execution by the donee (section 2). The attorney may execute an instrument in his own name and signature by the authority of the donor, and it is as effective as if executed by the donor.
- Agency law. The Indian Contract Act, 1872 governs the relationship: the agent acts within the authority given (section 182 onwards); the agency ends on revocation, on the death or unsoundness of mind of the principal, or on the agent’s renunciation (section 201); but an agency where the agent has an interest in the property cannot be terminated to the prejudice of that interest (section 202).
- General and special. A general power authorises acts of a class (manage all my properties); a special power, one act or transaction (sell this site, appear in this case). Powers to sell, mortgage or gift immovable property are construed strictly and must be stated expressly.
- Registration. A power of attorney is not itself compulsorily registrable unless it creates an interest in immovable property. But under section 33 of the Registration Act, 1908, an attorney who presents a document for registration under section 32 must hold a power executed before and authenticated by the Registrar or Sub-Registrar (or, if the principal is abroad, before a notary, court or Indian consular officer). Stamp duty is payable under the Karnataka Stamp Act, 1957, and is higher for a power to sell given to a non-family member.
- Not a transfer. In Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, 2011 INSC 739, (2012) 1 SCC 656, the Supreme Court held that a GPA, even irrevocable and combined with an agreement and a will, does not transfer title. The attorney can sell on the principal’s behalf by a registered sale deed; the power itself conveys nothing.
SPECIAL POWER OF ATTORNEY
I, Sri Venkatesh R. Kamath, son of Ramachandra Kamath, aged about 46 years, residing at Flat 4B, Palm Court, Dubai, United Arab Emirates, holder of Indian Passport No. XXXXXXX, appoint my brother Sri Ganesh R. Kamath, aged about 42 years, residing at No. 16, Kadri, Mangaluru, as my attorney to do the following acts in my name and on my behalf in respect of the property described in the Schedule only:
- To negotiate and fix the price for the sale of the Schedule Property, not below Rs. 75,00,000.
- To execute a sale deed in favour of the purchaser, receive the consideration by bank transfer into my account No. XXXX at Canara Bank, Kadri Branch, and present the deed for registration and admit execution before the Sub-Registrar.
- To sign and file applications for transfer of khata and payment of taxes.
- To deliver possession and the original title deeds to the purchaser.
The attorney shall not mortgage, lease, or gift the Schedule Property, or receive the consideration in cash or into any account other than mine. I agree to ratify all acts lawfully done by my attorney under this power. This power ends on completion of the sale or on 31 December 2027, whichever is earlier, and may be revoked by me at any time in writing.
Schedule: residential site No. 52, Kadri Hills, Mangaluru, measuring 2,400 square feet, with boundaries.
Executed at Dubai on 2 November 2026. Sd/- Venkatesh R. Kamath (Principal). Signature of the attorney accepting: Sd/- Ganesh R. Kamath. Attested by the Consul, Consulate General of India, Dubai.
Note: a power executed abroad must be adjudicated for stamp duty in Karnataka within the period the stamp law allows after it is received in India.
2. Will: the law
- Capacity (section 59, Indian Succession Act, 1925). Every person of sound mind, not a minor, may dispose of his property by will. Hindus may dispose of their property, including an interest in a Mitakshara coparcenary, by will (section 30, Hindu Succession Act, 1956). Muslims are governed by their personal law, which limits a bequest to one-third of the estate without the heirs’ consent.
- Free will (section 61). A will caused by fraud, coercion or importunity that takes away free agency is void.
- Execution (section 63). (a) The testator signs or affixes his mark, or another signs in his presence and by his direction; (b) the signature is so placed as to show it was meant to give effect to the writing as a will; (c) the will is attested by two or more witnesses, each of whom saw the testator sign (or received his personal acknowledgment of his signature) and each of whom signed in the presence of the testator. The witnesses need not be present at the same time.
- No technical words (section 74): the intention need only be clear.
- Revocation (section 70): by a later will or codicil, by a writing executed like a will, or by burning, tearing or destroying it with intent to revoke.
- Registration is optional (section 18 of the Registration Act), and a will may be deposited in a sealed cover with the Registrar (section 42).
- Proof. A document required by law to be attested cannot be used as evidence until at least one attesting witness is called, if alive and capable (section 67 of the Bharatiya Sakshya Adhiniyam, 2023, formerly section 68 of the Evidence Act). Choose young, reachable witnesses who are not beneficiaries.
In H. Venkatachala Iyengar v. B.N. Thimmajamma, 1958 INSC 98, AIR 1959 SC 443, the Supreme Court held that the propounder must prove due execution and the testator’s sound disposing state of mind, and must remove any suspicious circumstances, such as a shaky signature, an unnatural disposition excluding natural heirs without reason, or the propounder’s own prominent role in preparing the will. The drafter’s job is to leave no suspicion: give reasons for unequal shares, keep the beneficiaries out of the room at execution, and consider a doctor’s certificate for an elderly testator.
WILL
I, Sri Basappa M. Angadi, son of late Mallappa Angadi, aged 78 years, retired headmaster, residing at No. 3, Vidyanagar, Haveri, a Hindu, make this my last will on 30 November 2026.
- I revoke all earlier wills and codicils made by me.
- I am in good health and of sound mind, and I make this will of my own free will, without pressure from anyone.
- My family consists of my wife Smt. Gowramma, my son Sri Shivakumar and my daughter Smt. Shobha.
- I give my house at No. 3, Vidyanagar, Haveri (Schedule A) to my wife for her lifetime, and after her death to my son and daughter in equal shares absolutely.
- I give my agricultural land in Sy. No. 66/1, Devagiri village, Haveri taluk (Schedule B) to my son absolutely, because he has cultivated it with me for twenty years and my daughter is well settled.
- I give all my bank deposits and other movable property to my daughter absolutely.
- I appoint my son as executor of this will.
- This will is written by Sri M. S. Patil, Advocate, Haveri, on my instructions, and was read over and explained to me in Kannada, which I understand.
Schedules A and B: descriptions with boundaries.
Sd/- Basappa M. Angadi (Testator)
Attestation. We, the undersigned, declare that the testator signed this will in our presence, and that we have each signed it as witnesses in his presence. 1. Name, address, signature. 2. Name, address, signature.
How this is examined
Both are named in the syllabus and belong among the 15 conveyancing exercises (3 marks each); a general power of attorney for management of property and a codicil make good additional exercises. At the viva: section 63 of the Succession Act; whether a will must be registered; suspicious circumstances and Venkatachala Iyengar; the difference between a general and a special power; when an agency is irrevocable; and why a GPA sale does not pass title.