People in the UK often need a relative or friend in India to sell, buy or manage property on their behalf. A power of attorney made in an incorrect manner can be rejected in India after time and money have been spent sending it. This post provides an overview of why an Indian power of attorney cannot be made online from the UK.
Can an Indian power of attorney be made online from the UK?
No. An Indian power of attorney must be a physical paper document. It is signed by hand, in person, before an authorised officer, and stamped once it reaches India.
Three Indian laws set these requirements. The Information Technology Act 2000 does not recognise an electronic signature on most powers of attorney. Under the Registration Act 1908, a principal living outside India must sign before one of the officers it names. Stamping of the signed document in India is governed by the Indian Stamp Act 1899.
Why can an Indian power of attorney not be signed electronically?
Because Indian electronic signature law excludes it.
Section 1(4) of the Information Technology Act 2000 states that “nothing in this Act shall apply to documents or transactions specified in the First Schedule”. Entry 2 of that Schedule lists a power of attorney as defined in section 1A of the Powers-of-Attorney Act 1882.
Why must an Indian power of attorney be signed in person?
Because it has to be signed in front of an authorised officer. For a principal in the UK, that is a notary public or an Indian consular officer.
Section 33(1)(c) of the Registration Act 1908 applies where the principal does not reside in India. It recognises a power of attorney “executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul”. Section 33(4) allows such a power of attorney to be proved by producing it. This applies where it shows on its face that one of those officers witnessed and authenticated it. A power of attorney signed alone at home carries no such authentication.
Why must an Indian power of attorney be stamped in India?
Because Indian stamp duty is paid on the signed document.
Section 18(1) of the Indian Stamp Act 1899 covers an instrument chargeable with duty that is “executed only out of India”. It may be stamped within three months of execution.
A power of attorney signed in the UK therefore does not need to be printed on Indian stamp paper before signing. The High Commission accepts a power of attorney on plain paper or on stamp paper.
What does not count as a valid Indian power of attorney?
A document without a paper original, an in-person signing or the officer’s authentication does not meet these requirements. That includes:
- a power of attorney e-signed on a website, including an Indian online power of attorney service, where it favours a family member or friend;
- a power of attorney signed at home and then scanned or emailed to India; and
- a power of attorney signed in the UK without a notary public or consular officer present.
Which parts can be handled online?
Only the preparation. The power of attorney can be drafted remotely, which is the first of the steps to make an Indian power of attorney in the UK. The document itself is still printed, signed in person and sent to India on paper.
Whytecroft Ford’s Indian power of attorney service is provided remotely, with drafting overseen by an Indian advocate.
Frequently asked questions
Can I sign an Indian power of attorney over a video call?
Not at the High Commission, because the principal must sign before the Consular Officer in person. On the notary route, section 33(1)(c) of the Registration Act 1908 requires the power of attorney to be executed before the notary.
Can I use Aadhaar eSign for an Indian power of attorney?
Not for a power of attorney in favour of a family member or friend. Aadhaar eSign is an electronic signature. The First Schedule to the Information Technology Act 2000 keeps that type of power of attorney outside the Act.
Can a UK Lasting Power of Attorney made online be used instead?
No. A Lasting Power of Attorney is made under the Mental Capacity Act 2005 for England and Wales. It is a different document from an Indian power of attorney, and the online tools for it do not produce one.
How Whytecroft Ford can help
An Indian power of attorney signed the wrong way can be rejected in India after it has been sent, stamped and presented. The whole process then starts again. Whytecroft Ford’s Indian law team is experienced, approachable and professional. The team drafts Indian powers of attorney for UK-based clients, with drafting overseen by an Indian advocate.
To discuss your power of attorney with our team, call 0208 757 5751 or use the contact form.
Disclaimer: The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Whytecroft Ford advises UK-based clients on Indian law matters including Power of Attorney and Indian property work. Please do contact the Whytecroft Ford team if you require further advice.
