[ Suman Kumar Sinha v. The State of Jharkhand & Ors.,
AIR 2009 Jharkhand 53]
A registered power of attorney was executed by the owner of
plot in favour of petitioner authorising the petitioner to manage, sell, to
defend, or file any case including transfer of the said property by executing
sale deed in the name of and on behalf of the executant and receive the
consideration amount and pay the same to the executant i.e., the owner.
The petitioner being the power of attorney holder beside
doing other things in respect of the said property executed various sale deeds
in favour of different persons. However, the petitioner received the impugned
notice issued by the District Sub-Registrar, Hazaribagh, whereby the
petitioner was directed to pay a sum of Rs.82,112 being the stamp duty payable
on the said power of attorney treating the same as an instrument of sale.
S. 2(21) of the Power of Attorney Act, 1822 defines the
word ‘Power of Attorney’ which reads as :
“(21) Power-of –attorney — Power-of-attorney “includes
any instrument (not chargeable with a 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 Court observed that Power of Attorney is a formal
document whereby one person authorises another to represent him and act in his
name in relation to any transaction or a number of transactions.
In case the power of attorney was given for consideration
authorising the attorney to sell any immovable property, then the same duty
was payable in respect of conveyance for a consideration on the market value
equal to the amount of consideration.
From the contents of the power of attorney, it was clear
that the executant has authorised the donee, in whom he has full faith, to
look after and manage his property as he was not in a position to look after
the property because of his preoccupation. The executant, therefore, inter
alia, authorised the donee to enter into an agreement to sell or sell the
property in his name and on his behalf. It was specifically mentioned in the
instrument that whatever consideration for sale of the property is received by
the donee shall be paid to the executant.
It was therefore, held that the power of attorney was
without any consideration.
Further there was much difference between the general power
of attorney and an irrevocable power of attorney. Where the authority of an
agent was required to be conferred by a deed, or where an agent was appointed
to formally act for the principal in one transaction or a series of
transactions, or to manage the affair of the principal generally, such
document was known as power of attorney. Such an instrument confers a right to
the donee to use the name of the principal. Whereas an agreement is entered
into on sufficient consideration for the purpose of securing some benefits to
the donee of the authority, such an authority is irrevocable and was known as
irrevocable power of attorney.
In the instant case, there was no consideration for the
power of attorney executed by the executant in favour of the petitioner, nor
any benefit is derived in favour of the petitioner. There was no consideration
for the authority given to the petitioner.
Conveyance of sale is, therefore, an instrument whereby any
property is legally or equitably transferred or vested in the purchaser.
As the power of attorney in question was not a conveyance
by which executant transferred or alienated the property in favour of the
petitioner for valuable consideration, rather it authorises the donee,
inter alia, to initiate for sale and to sell the property and to pay the
consideration amount so received to the executant. Such power of attorney
cannot be treated as conveyance for consideration. Hence, no fresh stamp duty
was payable on such document.
The impugned notice issued by the Sub-Registrar was
palpably illegal, arbitrary, mala fide and without jurisdiction.
