What is Foreign Power of Attorney Validity in India?

Under Indian law, power of attorney executed outside India is not automatically valid in India; its enforceability depends on specific procedural safeguards.

• The Notaries Act, 1952 (specifically Section 14) empowers the Central Government to recognise notarial acts done by foreign notaries, provided the foreign jurisdiction awards reciprocal recognition.

• The Bharatiya Sakshya Adhiniyam, 2023 (formerly the Indian Evidence Act) provides that a document purporting to be a power of attorney and authenticated by a Notary Public, Indian Consul/Vice-Consul or a representative of the Central Government shall be presumed to be validly executed.

• Section 14 of the Notaries Act stipulates that only if a foreign country recognises Indian notarial acts (i.e., there is “reciprocity”), the Indian Government may notify recognition of notarial acts from that country for Indian purposes.

• If a foreign power of attorney is notarised in a country not declared as a “reciprocating country”, then the presumption of validity under Indian evidence law may not apply to the foreign notary’s act.

• A recent decision of the Kerala High Court held that a document notarised in the U.S. state of Missouri could not benefit from the presumption because the U.S. was not a notified reciprocating country under Section 14.

• If the principal executes the power of attorney before an Indian Consul/Vice-Consul abroad or a representative of the Central Government of India, the document is directly covered by the presumption clause without needing reciprocity.

• Even where the foreign notarisation is not from a “reciprocating country”, some courts (for example the Madras High Court) have held that recognition may still be given on the basis of other evidence and by applying Section 84 of the BSA (formerly Section 85 of Evidence Act) i.e., the courts may exercise discretion.

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The foreign power of attorney validity in India allows one person (the principal) to grant another person (the attorney) the authority to act on their behalf. When dealing with a foreign PoA, specific rules and procedures apply for its validity and enforcement in India.

For a foreign PoA to be valid in India, it must meet certain legal requirements:

• The foreign PoA should be executed before a Notary Public in the country of origin.

• Depending on whether the foreign country is a signatory to the Hague Convention, the PoA must be either apostilled or authenticated by the Indian Consulate.

• Upon arrival in India, the foreign PoA must be stamped within three months of receipt in India, as per the Indian Stamp Act, 1899. The stamp duty varies by state.

• The document should be submitted for adjudication to the relevant authority (usually the Registrar or Sub-Registrar) in the state where it is intended to be used.

For the foreign PoA to be recognized and enforceable in India, the following steps are essential:

• Authorities may require verification of the attorney's identity and the PoA's authenticity.

• If the PoA is in a foreign language, it must be translated into English or the relevant local language and certified.

• For certain transactions, such as the sale or transfer of immovable property, the PoA must be registered.

A foreign PoA can be valid and enforceable in India if it adheres to the specified legal requirements. Proper execution, notarization, authentication, and adherence to local regulations are crucial for its recognition and validity.

Ensuring these steps are followed meticulously helps in the smooth execution of the principal's intentions in India. This is all about foreign power of attorney validity in India.

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