G P A FOR PROPERTY TRANSACTIONS
Power of Attorney is one of the documents which is being executed most extensively pertaining to the transactions involving transfer of properties, irrespective of modes of conveyance. The main reason being inability of the person, either the transferee or the transferor to be present at different place at the same time. In order to complete such transactions, in his/her absence, General Power of Attorney is executed, authorizing another person to do acts or certain acts on his/her behalf. Such an instrument empowering a specified person to perform such act in his absence is termed as General Power of Attorney, as envisaged in the Power of Attorney Act 1882.
The instrument of Power of Attorney is based on the concept of Law of Agency, wherein the Principal, i.e., the person who executes Power of Attorney, authorizes his Agent, i.e., the person in whose favor such Power of Attorney is executed, to do all such necessary acts specified in the Power of Attorney on his behalf and further ratifies such acts of the Agent and the said concept has been recognized under the statute thereby giving legal sanctity.
Competency of the Parties:
The following are the mandatory requirements before executing Power of Attorney:
Majors: It is necessary that both the Principal and the Agent must have attained the age of majority because contract entered between two parties, wherein, either of the one is a minor, is not recognized under Law. Hence, it is very important that both the parties should be above 18 years of age.
Sound Mind: It is also important that both the Principal and the Agent must be of the sound mind since the contract with the person of unsound mind does not bind the parties to such a contract.
Types of Power of Attorney:
There are two types of Power of Attorney. They are:
General Power of Attorney: General Power of Attorney gives wide power to the agent to do various acts on behalf of the Principal, without any specifications.
Special Power of Attorney: Special Power of Attorney is executed in those cases wherein the agent is empowered to do such acts specified in such Power of Attorney. In this kind of Power of Attorney, the power given to the agent will be revoked as soon as that particular act, for which the power of attorney is executed, is performed and once such an act is completed, Power of Attorney does not subsist.
Sub-delegation of power:
The general principal is that an agent can neither sub-delegate his powers to a Sub-agent nor can appoint another power of attorney. The said principle is well expressed in Latin maxim “Delegate non protest delegate”, which means a person who is delegated with certain powers cannot delegate such powers to a third person. But, section 190 of the Indian Contract Act provides certain exceptions, wherein the agent can appoint sub-agent. However, such sub-delegation must be done in connivance with the Principal, who has to ratify all the acts done by the agent on his behalf. The following are the circumstances under which Sub-delegation is permitted:
1. The nature, custom of the trade is such that it requires the appointment of sub-agents.
2. The recitals in such power of attorney authorizes the agent to sub-delegate his powers to another agent.
Registration and Notarization:
Under Section 17 of the Registration Act, if any transaction involves transfer, assignment or creation of right, title and interest over the immovable property and the value of such property is Rs.100 or more, then registration of such documents is mandatory.
As regards execution of Power of Attorney, if the principle assigns right, title and interest over the immovable property in favor of the agent and authorize the agent to execute any document on his behalf, in such case registration of the power of attorney is preferable. However, if the agent is delegated with the powers which does not involve any kind of assignment or transfer of interest over the immovable property, then power of attorney notarized before Notary Public or even before the Magistrate, is considered to be authenticated documents.
Thus for example, if a person executes Power of Attorney, authorizing the Power of Attorney Holder to execute sale deed on his behalf before the proper registering officer, then it is advisable to get such power of attorney registered. On the other hand, if Power of Attorney is executed, authorizing the power of attorney holder to prosecute or defend the suit, then GPA can be notarized before Notary Public. However, the Court shall presume that a power of attorney executed before and authenticated by Notary public or any Court, Judge, Magistrate, Indian Consul or Vice-consul or Representative of the Central Government was so executed and authenticated. If the Power of Attorney is not signed and sealed as required under law, it is nothing more than a waste paper.
In either of the case, each page of the document, whether registered or notarized, has to bear official stamp of the Sub-Registrar office or Notary Public and must disclose the registration number, Book number and signature of the Sub-Registrar or Notary. If the same is notarized, then, apart from the above, appropriate Notary Stamp has to be affixed.
Outside India:
Section 85 of the Indian Evidence Act applies equally to documents authenticated by Notaries Public of other countries. However, the same has to be done by the designated Officers. So any power of attorney executed outside India shall be authenticated by notary of such country or Indian Consul/Embassy.
Stamp Duty:
Power of attorney, executed and notarized in any country in favour of Power of Attorney Holder, residing in India, has to be duly stamped within four months from the date of receipt of the same and the stamp duty in such case has to be at the District Registrar’s office. However, if the same is executed in India, the same has to be executed on the document sheet, duly stamped.
Stamp duty in either of the case will be Rs.100- if the same is executed in favour of one to five of them and if power of attorney is given to more than five persons, then the actual stamp duty payable is Rs.200/-.
Cancellation of G.P.A:
Power of Attorney can be cancelled by either of the parties to the said contract. However, the same has to be done by giving proper notice to the other, clearly mentioning the intention of the person to revoke the said Power of Attorney and notice to that effect has to be given to the public. However, the Principal cannot cancel the agency after the agent exercises his powers partially. If the power of attorney is given only for the specific purpose and that purpose is fulfilled or if either of them dies or becomes unsound, then such an instrument automatically gets cancelled. Nevertheless, proper notice is a must.
If the agent himself has any interest in the property which is the subject matter of the agency, then the same cannot be cancelled unless the agent agrees.
Representation of Owner:
In Bangalore, there are many instances wherein it is seen that the Power of Attorney Holder, in his individual capacity, representing himself as the owner instead of the actual owner will convey immovable property, which act does not confer any kind of right over the purchasers since the document itself is void and not binding on the parties. So it is very important to verify as to whether the conveyance has been made by the GPA Holder, duly representing his Principal/Owner.
In the recent times, with the growing boom of real estate in Bangalore, the instrument of General Power of Attorney is playing a major role, not only in regard to sale or purchase of the property, but also in all other related fields. However, abundant caution has to be taken at the time of executing Power of Attorney and also cancellation of the same because the same can also be used as a weapon involving acts of fraud or conspiracy to misguide and cheat public.
PROCEDURE FOR THE EXECUTION OF POWER OF ATTORNEY
Power of Attorney is most widely used document in property transactions. This is because many acts, transactions have to be carried out simultaneously and the same persons cannot be present at different place at the same time. Moreover, timing is very important in property transactions.
Power of Attorney in simple terms means a person authorizing another person to do acts or certain acts on his behalf.
The Power of Attorney Act 1882, defines power of attorney “includes any instrument empowering a specified person to act for and in the name of the person executing it”.
The Karnataka Stamp Act 1957 defines power of Attorney as “includes any instrument (not chargeable with fee under the law relating to court fees for the time being in force) empowering a specified person to act for and in the name of the person executing it”.
The Power of Attorney Act 1882 has 5 sections, only and provisions of Indian Contract Act under Chapter X dealing with Agency are applicable to Power of Attorneys. Section 182 of Indian Contract Act defines agent as “an agent is a person employed to do any dealings with the third persons”. The person for whom such act is done or so represented is called principal.
The person who is executing the Power of Attorney is called principal or the executant and the person to whom power is granted is called GPA holder or beneficiary. Both the principal and agent should be of sound mind and majors. The relation between donor and done is one of principal and agent, which has its genesis in a contract.
There are two kinds of powers of attorney
a. General Power of Attorney.
b. Specific Power of Attorney.
The general power of attorney gives wide powers to the agent to do various things on behalf of principal as detailed in deed and not confined to any specific act or acts relating to a specific subject.
Specific power of attorney is given in respect of single specified transaction like selling of particular property. Once the said particular act is completed, the special power of attorney naturally gets revoked or the powers of the holder gets exhausted.
Though power of attorney is a contract of agency, there are certain differences between agency and power of attorney. Power of attorney creates special power of agency, which entitles the holder to use principal’s name in the transaction entered into. Where as an agent who is not a power of attorney holder is not entitled to for such special powers, power of attorney holder acts in the name of his donor.
Stamp duty
Power of attorney attracts stamp duty which varies from state to state. Article 41 of the Karnataka Stamp Act prescribes the stamp duty as follows:
(d) when authorizing more than five persons but not more than ten persons to act jointly and severally in more than one transaction or generally; (f) in any other case. N.B.- The term “Registration” includes operation incidental to registration under the Registration Act, 1908 Explanation- For the purposes of this Article more persons than one when belonging to the same firm, shall be deemed to be one person
(a) When executed for the sole purpose of procuring the registration of one or more documents in relation to a single transaction or for admitting execution of one or more such documents; One hundred rupees
(e) when given for consideration and authorizing the attorney to sell any immovable property; The same duty as a conveyance for a market value equal to the amount of the consideration.
(eb) when given to person other than the father, mother, wife or husband, sons, daughters, brothers, sisters in relation to the executant authorizing such person to sell immovable property situated in Karnataka State.
Eight rupees for every one hundred rupees or part thereof on the market value of the property which is the subject-matter of power of Attorney:
Provided that the duty paid on such instrument is adjustable towards the duty payable on the instrument of sale or transfer executed subsequently in favour of either the Attorney holder or any other person.
One hundred rupees.
Attestation
The attestation of Power of attorney is not compulsory but in order to avoid any disputes, and to establish the proof of genuineness it is advisable to get the document attested by two witnesses.
Registration
The registration of document is not compulsory, when it is to be registered it shall be presented at the sub registrar’s office who has jurisdiction over the immovable property, referred in the document. However in other cases, the document may be presented for registration either in the office of the sub registrar in whose sub district, the document was executed or in any other sub registrar office in the state as the executants desire.
Notarizing
Notarizing the power of attorney is as good as registration. Section 85 of Indian evidence Act applies to the documents authenticated by the notaries. The court shall presume that every document purporting to be power of attorney and have been executed before and authenticated by notary public or any court, judge, magistrate, Indian consul or vice consul or representative of Central Government shall be presumed to be properly executed and would be a conclusive proof.
Each page of the document notarized should bear the official stamp of the notary disclosing his registration number, jurisdiction and also signature of the notary public. Appropriate notary stamp has to be affixed.
Documents executed outside India
Any power of attorney executed outside India needs authentication, which means it has to be executed in the presence of certain designated officers. As per section 85 of Indian Evidence Act the following persons are empowered or authenticate the documents;
1. Notary public
2. Any court of Judge or Magistrate
3. Indian consul or vice consul.
4. Representative of the Central Government
Section 85 of the Indian Evidence Act applies equally to the documents authenticated by notary public of other countries. So any power of attorney executed outside India shall be authenticated by notary public of such country or Indian consul, vice consul or by representative of Central Government. Such documents need to be stamped within three months from the date of receipt in India, to be payable at the District Registrar’s office as per sections 31 & 32 of Karnataka Stamp Act 1957.
AUTHENTICATION AND ATTESTATION OF POWER OF ATTORNE
Indian Registration Act, 1908, specifically provides as to who should present the document for registration. Section 32 of the Act stipulates that any document the registration of which is compulsory or optional shall be presented by following;
1. By the executant or person claiming under the document.
2. In case of a copy of decree, order, any person claiming under such decree or order.
3. By the representative or assign of such persons referred above.
4. By agent of the persons referred above or by a representative or assign duly authorized by Power of Attorney executed and authenticated as prescribed in the Act.
There are certain exceptions as provided in sections 31, 88 & 89.
POWER OF ATTORNEY
The section 32 of the Act, prescribes that only certain category of Power of Attorney holders are recognised to present documents for registration, they are
(a) If the person executing the Power of Attorney resides in any part of the country at the time of execution where the provisions of the Indian Registration Act apply, only Power of Attorneys executed before and a authenticated by registrar or sub-registrar of the district, where the person executing Power of Attorney resides.
(b) In case the person executing the Power of Attorney resides in any part of India, at the time of execution of the Power of Attorney, where the provisions of the Indian Registration Act does not apply, only Power of Attorney executed and authenticated by any Magistrate.
(c) In case of person executing Power of Attorney resides out of India at the time of executing power of Attorney, only Power of Attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice Consul or representative of the Central Government.
It may be noted that in case of authentication by registrar or sub registrar, such officers should be of the district where the principal resides, but no such stipulation in case of authentication by a magistrate.
However, the Act exempts the following people from attending the registration office or court for executing and obtaining authentication of Power of Attorney. This exemption is available only to persons residing in India and not to persons residing outside India.
• They are persons who are unable to attend without any risk or inconvenience because of bodily infirmity, ill health and illness.
• Persons who are in jail under Civil or Criminal process.
• Persons exempted by law from personal appearance in court.
In case of Power of Attorneys executed by persons who are exempted from a personal appearance, to execute and obtain authentication, the sub-registrar or magistrate, may attest the Power of Attorney after satisfying himself that the Power of Attorney has been voluntarily executed by the Principal. In case of necessity the concerned officer may either visit the house of the principal, jail, examine him or may issue commission for his examination. Any Power of Attorney as detailed above may be proved by production of it, without further proof, when it purports to have executed before and authenticated by a person or a court.
Authentication and Attestation
The section 33 of the Act refers to two different words authentication and attestation. Both are not similar. Attestation is done in case of Power of Attorney executed by persons, who are exempted from personal appearance before court, registrar, and sub registrar under section 33 of the Act.
Rule 63 of Karnataka Registration Rules 1965 prescribes the procedure of authentication and attestation. When a Power of Attorney is executed before registering officer, he shall authenticate the same, after satisfying himself the identity of the party executing the Power of Attorney and if necessary after obtaining the left hand thumb impression of the party against his signature. The authentication shall be as follows
“Authentication under clause (a) of sub-section (1) of section 33”
This Power of Attorney has been executed by ………… of ……….. in my presence on the …………. Day of ……………..20…. The said……….. is personally known to me/ the identity of the said………….. has been provided by the testimony of Sri………………… to my satisfaction and whose signatures is affixed to this endorsement.
Signature of the
Person identifying the principal
Seal
Dated
Signature of (Sub) registrar
In case of attestation where the principal has not attended the office of the registering authority, the registering officer will attest the Power of Attorney but not authenticate it. In such cases, if the registering officer himself attends the residence of principal or if the principal appears in the office behind a pardah as is in the case of Ghosha ladies the registering office may examine the principal with the help of any witness. The following form of attestation will be made;
“Authentication under clause (a) of sub-section (2) of section 33”
This Power of Attorney has been voluntary executed by ………… of ………… I have satisfied myself in this behalf. The personal examination of the said …………. on commission. The said ……….. is personally known to me. The identity of the said person has been proved by the testimony of ……………. to my satisfaction and whose signature is affixed hereto.
Signature of the
Person identifying the principal
Seal
Dated
Signature of (Sub) registrar
Procedure:
While authenticating the Power of Attorney, which runs into more than one sheet of paper, the seal and signature of the Registering officer shall be affixed to each sheet.
If the Power of attorney which has to be authenticated but not to be registered contains interlineations, blank, erasure, or alteration in the body of Power of Attorney, a detailed footnote of number of interlineations, blank, erasures, alteration has to be added to the document below the authentication and shall be signed by the registering officer. Such detailed footnote is necessary even if the principal has made such footnote. If there are no interlineations etc., such fact has to be noted.
If the authentication or attestation endorsement contains any interlineations, each such interlineation has to be initialed by registering officer.
District registrars or sub registrars are not authorised to authenticate or attest the Power of Attorney, other than those required for registration purpose. The Power of Attorney should contain a specific authority to present the document or to admit the execution of a document by principal, and then only it can be authenticated or attested. A power of attorney may be registered like any other document, but unless it is authenticated or attested, it is not valid for using for presenting for registration of other documents executed by principal. One has to understand the difference between the registering the power of attorney and using the power of attorney for presenting the documents executed by principal for registration.
The authentication or attestation of Power of Attorney is required only when a document executed by the principal is presented for registration. But if the document is executed by the Power of Attorney holder and presented by Power of Attorney holder, no authentication or attestation is necessary.
DEED OF COVENANT FOR PRODUCTION OF DEEDS
The transfer of immovable property by way of sales, gift, will, releases etc., presupposes that documents to the title of transferred immovable property are delivered to the transferee on completion of process. This is statutory obligation. Section No. 55(3) of Transfer of Property Act, puts this responsibility on the seller. But the section has a provision, that in case where only a part of the property is sold and the seller retains a part of the property the seller is entitled to retain the original documents, and copies of such documents are delivered to the purchaser.
In case, where the property is transferred to different persons, in different lots, the transferee of greatest portion is entitled to hold the original documents of title and others are provided with copies of such documents.
In the circumstances dealt above, the persons holding the documents, either the seller or one who holds the greatest portion has some responsibilities. He has to keep the documents in safe custody and in good condition. He has to make available the documents for inspection to other buyers and also furnish the true copies of such documents; extract from such documents, whenever required.
But the cost has to be met by the buyer who needs such inspection or copies, extracts. These responsibilities of person who holds the original property are required to be recorded properly.
The document, which records such obligations of safe keeping the documents; producing them for inspection, providing copies, extracts is called “Deed of Covenant for Production of Documents”.
The deed of transfers like sale, gift, will and release may contain such a covenant by the vendor in favour of purchaser or a separate deed may also be executed by the vendor in favour of purchaser (or) after making the same covenants can be incorporated in the sale deed.
In case of the person holding greatest portion, a separate covenant deed about his obligations becomes necessary. A separate deed in favour of each transferee of other portions or a common deed in favour of all other transferees jointly may be executed.
In the deed of transfer of the greatest portion or of higher value an explicit covenant, that, the transferee shall safe keep the documents in good condition, produce for inspection of other transferee and furnish true copies or extract should be included. Similar relevant covenant should also be incorporated in deed of transfer of other transferees.
Generally all the portions of the property are not transferred at the same time, and the above suggested procedure may not be possible. In such cases, the transferor should give a covenant of production of documents in each of the deeds of transfer and it should further provide that if and when the transferor hands over the documents to any other transferee at a later date he would procure a similar condition from the such transferee. Under a covenant of production of document, the original owner liable indefinitely unless a condition provides that he is no more responsible after he parts with the remaining portion of the property.
Flats are constructed on land and are sold to different purchasers. But the original title deeds for the entire land will be only one and cannot be given to each and every purchaser. Each purchaser will get original sale deed, which is executed in his name and registered. He will get copies of other original documents and not originals. The original title deeds of the land will be in the custody of the
Flat Owners Association. The association has the responsibility of maintaining them safely and make available the documents for inspection by the owners and to provide copies, extracts the promoters or builder shall incorporate such clause in individual sale deeds. The articles of the flat owners association shall contain the clauses relating to safe custody, inspection and making available the copies or extracts of the original documents.
Stamp Duty: In case the conditions is including in the transfer deeds itself, no separate stamp duty is payable. If a separate deed is executed, it attracts the stamp duty as that of an agreement depending upon the stamp duty prescribed by the state.
Registration: this deed of covenant does not require the registration, but it is advisable to get it registered.
DEED OF CONFIRMATION
It is very common that many a times the main documents of sale, mortgage, lease are drafted by inexperienced and unqualified people, as a result of which defects creep into the documents. This necessitates the requirements of supplementary documents to remedy the mistakes. Deeds of confirmation, rectification and cancellation are some of the important supplemental deeds. We have already dealt with rectification deed. This write up deals with confirmation deed.
There are two types of confirmation deeds, one of the types is, where a person confirms and assents to the documents of conveyance executed by another person. This becomes necessary, when a person is not made a party to the main document of conveyance either by oversight or by ignorance or by some other reasons.
Another type is very important. Here the party to a document has made some mistake in signing the main document or has failed to admit the execution before the sub-registrar within the prescribed time, and consequently the sub-registrar has refused to register the document as far as the said party is concerned or in some other respect. It is very common though the parties execute the documents, but fails to turn up at sub-registrars office to admit execution, and the registering authority, refuses to register the document. In order to remedy this defect, a deed of confirmation has to be executed from the concerned party, wherein the confirms the execution of principal deed and further adds that the principal deed is valid and binding on him. He also confirms that he has no right, interest, title to the property transferred which belongs to the purchaser/transferee.
As a precautionary measure a copy of principal deed should be annexed to the deed of confirmation and such copy should also be signed by the party executing the confirmation deed. However, whether such a document cures the defects of the main documents is debatable, but such documents would act as promissory estoppel against the party. This would avoid execution of fresh documents, payment of stamp duty and registration charges.
The word confirmation in strict parlance means approbation or assent to the estate already created, by which confirmation party further strengthens and gives legal validity to such estate so far at it is his powers.
The confirmation may be given in variety of ways (1) by acquiescence (2) by limitation (3) by deeds. Confirmations of acquiescence and by limitations are the outcome of operation of law.
The Indian registration recognizes confirmation deeds. Sec. 17(1) provides any deed confirming any interest in immovable property needs to be registered.
The confirmation deed attracts stamp duty. If the main documents is registered or to be registered the corresponding confirmation deed also requires registration.
DEED OF CANCELLATION
Section 13 of Specific Relief Act 1963, deals with the cancellation deeds. There may be certain written documents, which by their nature or by operation of law or by some other reasons are void, violable. Such documents if left as they are and outstanding may harm the interest, right, titles privileges of some party. Such person may institute a suit, praying for cancellation of such written documents, and the court in its discretion if thinks it proper may order for Cancellation of such written document.
There may be documents of contract, which are void as they are against Law Public Policy or violable if they are vitiated by fraud coercion or other similar grounds. The parties to the document may also cancel such documents by mutual consent without referring to the court. An agreement for sale, lease, mortgage, license, partition, may be cancelled by the parties with consent of all parties.
But at times, the matter of cancellation of document may not be so simple as some parties may want to take undue advantage, or very mature of document may not make it simple task.
A deed of conveyance, which is duly executed and registered, cannot be cancelled by mere deed of cancellation. The proper course would be to execute a reconveyance deed and get it duly registered. But if of fraud, coercions or incase of any disagreement among the parties, the chances of mutual consent to cancel the agreement are very remote. In such cases, the affected party has to seek the intervention of the court by filing suit as per the provisions of section 13 of Specific Relief Act.
If any of the documents are unregistered, it may be cancelled by consent of all the parties by scoring off or by endorsing it about cancellation. But in both cases, all the parties should sign the document for having cancelled.
Cancellation deed attracts the stamp duty as per section 17 of Indian Stamp Act, that is stamp duty is payable only if it is attested by witness. A cancellation deed, which is not attested, attracts stamp duty as per agreement. If the main deed needs to be registered. Cancellation deed also needs to be registered.
RECTIFICATION OF PROPERTY DOCUMENTDocuments of immovable property should depict the correct title of the present owner and should be free from mistakes if the owner of the property is to have peaceful possession and enjoyment of such property. However, in spite of great precaution, many of the documents do contain mistakes. Mistakes noticed in a document after registration can be corrected only by execution of a rectification deed and not by tampering with the original documents. However, the mistakes noticed in a documents before registration can be corrected under the signature of the concerned person.Types of mistakesIt is difficult to specify the exact type of mistakes which a document may contain. There is no uniformity in the types of mistakes in a property document. Some documents may contain mistakes relating to boundaries of the property, measurement of the plot while some other documents may contain mistakes relating to the location, survey numbers, municipal numbers, description and number of floors, names of parties, consideration amount, absence of easementary rights clause etc. In one of the cases, it is noticed after the purchase of the property that the measurement of the site has been wrongly spelt in the sale deed showing East to West 40’ and North to South as 30’ instead of East to West 30’ and North to South 40’ and thereby the sale deed became defective and the purchaser was handicapped to deal with the property as he liked without a rectification deed rectifying the mistake in the measurement. This type of mistakes could be termed as mistakes due to negligence. Before registration, if the parties had compared the measurement and the boundaries of the property the need for execution of rectification deed would not have arisen. This type of mistakes are very common and do occur due to non-verification and comparison of the sale deeds with the records of the revenue authorities or due to ignorance or laxity on the part of the parties to the transaction or the middlemen involved therein. But, whatever be the reason, the mistakes in the sale deeds do require rectification if the purchaser has to enjoy his property without litigation or disturbance and to have a clear marketable title.Rectification deedSuch mistakes, errors in the deeds require to be corrected by execution of a supplementary document called “rectification deed”. Rectification deed is a document executed between parties for effecting corrections of the mistakes of facts / typographical errors which are committed in the original/principal deed. Rectification of deeds is supported by the various canons of law and is an equitable relief usually granted by Courts of Equity and is based on doctrine of mistake of fact. Once a rectification deed is executed, it shall have to be read as part of the original sale deed and copies of the extracts of the revenue records indicating the fact of execution of rectification deed are to be obtained and preserved along with the sale deed and the rectification deed.Pre-requisitesIn order to execute a deed of rectification, there must be bona fide mistake whereby the original deed does not reflect the true intention of parties to the said deed. More importantly the mistake should pertain to the facts and not for application or interpretation of law. However, there is an exception to this rule. The mistake of foreign law is considered as mistake of fact. Section 21 of Indian Contract Act is relevant in regard to this.When the parties to deed agree to modify, add or delete any terms referred to in any original deed executed by them on a prior date, to bring out their true intentions, it is necessary to reduce such correction into a duly executed document and to pay the requisite stamp duty in order to get the same registered with the concerned authority.Section 26 of the Specific Relief Act reads as under:26. When instrument may be rectified – (1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not express their real intentions, then –(a) either party or his representative-in-interest may institute a suit to have the instrument rectified; or(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.(2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument, so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.(3) A contract in writing may first be rectified and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.(4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed:Provided that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim.Stamp duty and RegistrationIf the original deed is a registered document, the corresponding rectification deed also requires to be registered. Stamp duty and registration charges payable for registration of rectification deeds are at the rates as are prescribed by different States.If rectification deed is executed to rectify mistakes of a general nature, boundaries, spellings, etc, in Karnataka, the stamp duty and registration charges are Rupees One Hundred each and if the rectification deed is executed for rectification of mistake concerning the area or the extent of the property, or change in the names of the purchaser, the stamp duty and registration charges payable would be at the rate prescribed for conveyance deed.
IMPORTANCE OF SIGNATURE IN THE SALE DEED
Testimonium is the concluding part of the Deed. This clause is incorporated in order to authenticate the execution of the instrument. It is in this part of the instrument, the parties having interest over the schedule property sign the deed, confirming their consent for the conveyance of the same apart from the parties to the deed.
In case of Companies registered under the Companies Act, 1956, the following clause is incorporated:
”In Witness Whereof, the Parties have hereto set their hands and seal the day and year first above written".
The word "Seal" is incorporated only if the parties to the deed are a Company.
In case where the parties are individuals, it is written in the following manner:
"In Witness whereof the Parties hereunto have set their hands/signatures on this Deed on the day and year first mentioned above".
While drafting an instrument, it is the usual practice that the date is mentioned in the beginning of the Deed. However, the same can be incorporated in the Testimonium clause, if it is not incorporated earlier. Where the document is written in the first person like Power of Attorney or Will, the date is mentioned in the Testimonium clause.
Execution of Signatures
After the Testimonium clause, the parties to the deed should affix their signatures. Number of signatures varies from one document to the other. In case of an agreement, it is necessary that both the parties to the deed should sign, while in case of sale deed, it is sufficient if Vendor/seller alone signs. Any person having certain right or interest on the property has to sign as Consenting Witness or Confirming Witness. Again, if either of the parties executing the deed has been represented by GPA Holder, then it is very important that the GPA Holder should sign the instrument representing the principal and not in his individual capacity. On the other hand, if it is a guardian on behalf of the minor, then that fact has to be mentioned below signature. Executant shall affix his signature at the end of every page of the instrument.
Illiterate person:
It is a well established convention that if the Executant is an illiterate, thumb impression in ink is accepted at the time of execution of the instrument. Thus, in case of illiterate males, left hand thumb impression in ink is affixed in place of his name and in case of illiterate female, right hand thumb impression in ink is affixed in place of her name. However, name of the executant has to be written either next or below the Left Thumb impression or Right Thumb impression.
In case of deed executed by an illiterate person, abundant caution has to be taken before execution of the same. It is very important that the contents and covenants incorporated in the deed has to be read out and interpreted and explained clearly in the local language well known to the Executant and incorporate the same at the end of the deed. This practice is also followed if the Executant is blind or even a Pardhanashin lady.
Thumb impression by educated person:
There are instances where the Executant who is educated and knows how to sign, uses thumb impression or mark instead of affixing the signature. In such case, the Registering Officer should object for the same and insist the Executant to sign since thumb impression is permitted only in case of illiterate person or those who do not know how to sign or not possible to sign.
Corporate Body:
If the Executant is a corporate body, the document can be signed by an Authorized Company Director or Authorized Company Secretary. However, it is mandatory that the person executing the document on behalf of the company has to be duly authorized by the Board of Directors by passing necessary resolutions. If there is no such resolution passed by the Board of Directors, the person executing the instrument on behalf of the company will not derive any legal authority to execute the same. The execution of such documents shall be governed by the rules and regulations envisaged under the Indian Companies Act 1956.
Un-incorporate Bodies:
In case of Societies registered under the Societies Registration Act, 1860, Clubs and Associations, documents can be executed by a person or persons of the society, duly authorized by the management only after passing a suitable resolution. However, the procedure involved for execution of the documents is governed by the rules, regulations and Bye-laws of the Society.
Partnership firm:
In case of partnership firm, registered under the Indian Partnership Act, one partner alone shall not be allowed to sign on behalf of all the remaining partners. In such case, it is necessary that the remaining partners authorize any one partner to sign on behalf of the partnership firm and also remaining partners. The reason being that, unlike a Company, partnership firm does not have a separate legal entity and hence a partner can neither sell nor mortgage any immovable property standing in the name of the Partnership firm without the written consent of the remaining partners. A partner can be authorized to sign on behalf of the partnership firm and also the remaining partners either incorporating the name of the person authorized to sign on their behalf in the Partnership deed itself or executed a Registered Special Power of Attorney to that effect. In either way, a partner duly authorized can execute the document representing the partnership firm.
Attestation:
Attestation means signature of two or more witnesses, each of whom has seen the executant affixing his signature or marking on the instrument or some other person signing the instrument under the instructions and direction of the Executant. However, it is not necessary that more than one of such witness shall be present at the same time. There is no particular format adopted for attestation. It is generally at the left hand side of the Deed, a heading "Witnesses" is mentioned and two witnesses should sign below the caption.
Valid Attestation:
There are three pre-requisites for valid attestation, as mentioned below:
1. There must be two or more attesting witnesses.
2. Each of them must have seen the Executant signing or affixing the mark on the document.
3. Each of the two attesting witnesses must have signed the document in the present of the Executant.
Necessity of Attestation:
Except few of the documents such as Mortgage and Will, remaining documents does not require compulsory attestation. However, it is advisable to incorporate Testimonium clause, requiring the signature of witnesses to the document in order to testify the execution of the documents if the same is denied by the Executant.
Hence, before executing a deed, it is very important to scrutinize the capacity of the Executant, as to whether the Executant is signing the deed as an individual or if representing partnership firm or a corporate body or any other bodies, necessary authorization has been obtained before signing the document. If there is any ambiguity pertaining to the capacity of the Executant, the execution of the instrument itself will nullify the legal sanctity.
