Q. How do I get a Power of Attorney for my wife

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posted 1 year ago

Q.How do I get a Power of Attorney for my wife
Hi - I will be travelling out of India for an extended period of time. There are certain matters related to our household that I would like my wife to handle. She needs to be able to operate bank accounts and sign property papers on my behalf. How can I go about getting her a Power of Attorney.

Appreciate the help.

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Kishan Dutt Kalaskar Retired Judge

Experience: 34 Year(s)

Responded 1 year ago

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A. ) Power of Attorney in Court proceedings – How and When to file Power of Attorney ?
Evidence and Power of attorney – How and when to file Power of Attorney in Civil Court – Criminal Court – Family Court – Labour Court – Rent Control Court – Cheque Dishonored.
When and How to File Power of Attorney in Court Proceedings ?
Representation by Power-of Attorney Holder in Civil Cases:
A party to the Court Proceedings may be represented by a Power-of Attorney holder duly authorized by the Party/Principal. Under Order 3 Rule 1 & 2 of Civil Procedure Code any appearance application or act in or to any Court except otherwise provided by any law made or done by the party in person or by his recognized agent or by a pleader on his behalf. Order 3 Rule 2 of C.P.C. specifies the Power-of-Attorney holder as recognized agents for the Party. Therefore the power-of-Attorney holder who is authorized to appear on behalf of the party can appear, file application engage advocates and act on behalf of parties. The process to be served to the Party shall be served to the power agent[Order 3 Rule 3 C.P.C.] Besides the recognized agents, any person residing within the jurisdiction of the Court may be appointed as agent to accept service of process [Order 3 Rule 6 C.P.C.] The appointment may be special or general and shall be made by an instrument in writing signed by the principal and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court. The Court may, at any stage of the suit, order any party to the suit not having a recognized agent residing within, the jurisdiction of the Court, or a pleader who has been duly appointed to act in the Court on his behalf, to appoint, within a specified time, an agent residing within the jurisdiction of the Court to accept service of the process on his behalf. Rule 16 and 17 of the Civil Rules of Practice [T.N.] enumerates the procedure to file power of attorney by the agent and recognizing the same by the Court as follows:
 When a party appears by an agent other than a pleader or advocate the agent shall before making or doing any appearance, application, or act in or to the Court file in Court the power of attorney or written authority thereunto authorizing him, or a properly authenticated copy thereof/ or in the case of an agent carrying on a trade or business on behalf of a party without a written authority an affidavit stating the residence of his principal, the trade or business carried on by the agent on the behalf and the connection of the same with the subject matter of the suit and that no other agent is expressly authorized to make or do such appearance, application or act.
 The judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party and unless and until the said permission is granted no appearance, application or act of the agent shall be recognized by the Court.
If any proceeding which under any provision of law or these rules is required to be signed or verified by a party is signed or verified by any person on his behalf a written authority in this behalf signed by the party shall be filed, in Court. Together with an affidavit verifying the signature of the party and stating the reason of his inability to sign or verify the proceedings and proving the means of knowledge of the facts set out in the proceeding of the person signing or verifying the same. Relevant Rules from the Madras High Court Original Side Rules with regard to filing of proceedings before High Court by the power of attorney:
Rule 7 Order II :
Affidavit of recognized agent as defined in Order III, Rule 2, Civil Procedure Code to be filed: Except as provided for by the Code if a plaint is subscribed and verified by a person other than the party on whose behalf it is presented it shall not be admitted or filed unless it is made to appear, upon affidavit that such person is a recognized agent of the party as defined by Order III Rule 2 of the Code and is duly authorized and competent so to do.
Rule 37 of Order XXV:
Registrar may require further proof of execution of Power of Attorney: Unless a power of attorney constituting such attorney can under section 85 of the Indian Evidence Act, 1872 be presumed to have been executed and authenticated as in the said section mentioned, the Registrar may require further proof of its due execution.
Rule 1 of Order XXIX:
Application for execution to be made to the Registrar:
All application for the execution of decrees or orders whether of the High Court or of any o0ther Court (except as otherwise provided by these rules) shall be made by advocates or by parties in person to the Registrar. The transmission of decrees and the issue of all necessary warrants and notices by him and all amendments thereof shall be deemed quasi-judicial acts.
Procedure in filing power-of-attorney in Civil Court:
When the Power-of-attorney holder appears for a party he has to file:
 Authenticated copy of the Power-of-Attorney to be filed. The Original power-of-Attorney may be produced to the officer of the Court for verification and will be taken back after due verification.
 A petition with supporting affidavit to be filed along with an affidavit under Rule 16(2) of Civil Rules of Practice[T.N.] seeking permission to appear and act on behalf of the principal/Party as a recognized agent. The Attorney (agent) should also state that the executor is alive at the time of filing the suit and further to aver that the power of attorney is still in force.
 The attorney should state in the affidavit verifying the signature of his principal and stating the reasons for the principal’s inability to sign or verify the proceedings and proving the means of knowledge of the facts set out in the proceedings by the attorney signing or verifying the same. The agent also should aver that no other agent is expressly authorized to make any such appearance or application or do such an act.
 With regard to filing of the cases and taking part in the proceedings by the power of attorney holder, in the proceedings before the Madras High Court (Original Side) the Madras High Court Original Side Rules recognizes the power of attorney executed and authenticated as per section 85 of the Indian Evidence Act only. In all other kinds of power-of attorney if needed the Registry may require further proof of due execution of the power-of-attorney relied upon.
 In the true copies of the power-of-attorney a Court fee of Rs.5/- to be affixed as per the Article15, Schedule II of the Tamil Nadu Court Fees and Suits Valuation Act 1955.
Appearance by power agent in Court: In Surender Raj Jaswal Vs. Smt. Vijaya Jaiswal [AIR 2003 AP 317], the question as to whether the General Power of Attorney holder of the respondent is entitled to appear and prosecute the case considered. In this case the plaintiff gave power of attorney to her husband who is well acquainted with the facts of the case and who is looking after her affairs. The Court permitted the plaintiff’s power of attorney holder under Rule 32 and 33 of Civil Rules of Practice (A.P.) to prosecute the case of the plaintiff by tendering evidence. The Power of Attorney holder cross examined the defendant which was agitated by the defendant. It was held that when the trial Court permitted the power agent to prosecute the case and to cross examine the witnesses, the said agent was helping the Court by appearing for the plaintiff and there was no remark noticed by the trial Court. It was held further that it is always open to the Court to withdraw or cancel permission if the power of attorney holder is unworthy or reprehensible. When can a General Power of Attorney holder give evidence:When once a person files a suit on behalf of the party, as a G.P.A. holder he enters into the shoes of that party and except to the extent of personal knowledge, he is entitled to depose on other facts. In the instant case, what was relied upon by the plaintiffs is entirely documentary evidence, which are public documents and no personal knowledge was required to be pressed into service to establish the case of plaintiff [Secretary to Govt. of India Vs. Indira Devi, AIR 2003 A.P. 329 (DB)] In Shanthi Devi Agarwal Vs. V.H. Lulla [AIR 2004 M.P. 58], the Madhya Pradesh High Court while considering letting of evidence by Power-of-Attorney holder held that a power of attorney holder, who virtually steps into shoes of a party can place materials in terms of the definition of ‘evidence’ as above, on behalf of that party, before a Court under Section 118 of the Evidence Act unless he stands disqualified for the reasons given in that section itself and further, admissibility of his evidence would be subject to rigorous procedure contained in Chapter X thereof. That apart a bona fide requirement is also with reference to family and it can be proved by any member of the family. In the instant case old age of the plaintiff is a good ground that her son, the power of attorney holder, should have been allowed to tender evidence on her behalf. In P.Punnaiah Vs./Jeypore Sugar Co. Ltd.,[AIR 1994 SC 2258], the Supreme Court held that the normal rule is that whatever a person can do himself, he can do it through his agent, except certain functions which may be personal in nature or otherwise do not admit of such delegation. In Humberto Luis Vs. Floriano Armando Luis [2000 AIHC 1572 (Bom.) = 2000(1) Mah LJ 690] it was held that a person holding a power of attorney can depose in the witness box on behalf of the party. In Moulasab Vs. Sri Mohammed Hasim deceased by LRs and others [2003 (1) KCCR 239 = ILR 2003 (2) Kar 1041 =2003(2) KLJ 48]. It was held that the recognized agent holding GPA cannot be allowed to plead and argue. He can only appear and conduct the judicial proceedings and has no right of audience. Power to plead on behalf of a party to judicial proceedings is vested only with the pleader. This is very clear from the provisions contained in Order 3, Rule 2 and Order 3 Rule 4 of CPC. InJaymal Thakore Vs. Charity Commissioner, Ahmedabad [AIR 2001 Guj. 279], it was held that a chartered accountant holding a power of attorney can file application on behalf of a party in the proceedings but he cannot act as pleader for the party as contemplated by the provisions of the Advocate Act.
When Power of Attorney holder cannot give evidence :
In a latest Supreme Court case Janki Vashdeo Bhojwani Vs. Industrial Bank Ltd., [(2005) 2 SCC 217 =AIR 2005 SC 439 =2005 (3) CTC 128 (SC)], It was held that power of attorney holder cannot depose for principal in respect of matters of which only the principal can have personal knowledge and in respect of which principal is entitled to be cross-examined. It is further observed that persons claiming share in property should have entered the witness box and discharged burden. The power of attorney holder cannot enter a witness box and depose instead of persons claiming such share. Such persons have to show that they have got an independent source of income and they contributed for the purchase of property from such independent income. It was observed that where a person does not appear in a witness box and state his/her case on oath and does not offer to be cross examined by the other side, the presumption would arise that the case set up by such person is not correct.

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Ashish K Dongre

Experience: 13 Year(s)

Responded 1 year ago

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A. ) Contact Local Lawyer who can draft you power of attorney according to your need and make sure to register it.

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