A power of attorney signed abroad to sell a flat in Bengaluru: the route, the stamp clock and the limit

A non-resident Indian (NRI) who signs a power of attorney abroad has two routes to a document Indian authorities will take: signature before an Indian consular officer, or signature before a foreign notary followed by an apostille under the Hague Convention of 1961. Either way the instrument is stamped in Karnataka within three months of first reaching the State, under section 18 of the Karnataka Stamp Act, 1957, and a general power of attorney (GPA) does not itself sell a flat: the Supreme Court has held that a transfer needs a registered deed of conveyance, which the attorney can sign for the owner.

Who can take the signature abroad?

The Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 is the first route. Section 3(1) lets a diplomatic or consular officer, "in any foreign country or place where he is exercising his functions", administer an oath, take an affidavit and do any notarial act that a notary public may do within a State, and makes each of those acts as effectual as if done before a lawful authority in a State. Section 3(2) admits in evidence a document bearing the officer's seal and signature without proof of either, or of the officer's official character.

The second route is a notary of the country where the principal lives. The Notaries Act, 1952 governs notaries in India. Section 11 reads a reference to a "notary public" in any other law as a reference to a notary entitled to practise under that Act, and section 14 lets the Central Government declare, by notification, that the notarial acts of notaries in a named country are recognised in India for all or stated purposes, where that country recognises Indian notarial acts. We have not seen any such notification and do not rely on one.

What does an apostille do?

The Ministry of External Affairs (MEA) page on attestation and apostille states that India has been a member of the Hague Convention of 5 October 1961, which abolished the requirement of legalisation of foreign public documents, since 2005. It lists powers of attorney among the documents that are apostilled, and says that, because India is a member, "no further attestation or legalization of a document apostilled by a member country, should be required" for use in India, so that the document is to be treated as legalised for all purposes. Whether a given country is a party is a matter for the Hague Conference's status table, which the MEA page points to and which we have not reproduced.

An apostille certifies the origin of the signature or seal on a public document. It does not stamp or register the document.

What presumption does the Bharatiya Sakshya Adhiniyam give?

The presumption as to powers of attorney now sits in section 84 of the Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023). The Court "shall presume" that a document purporting to be a power of attorney, and to have been executed before and authenticated by a notary public, or any court, judge, magistrate, Indian consul or vice-consul, or representative of the Central Government, was so executed and authenticated. The section replaces section 85 of the Indian Evidence Act, 1872.

The presumption is of execution and authentication only. It says nothing on the scope of the authority, on stamp duty or on registration. A power signed before an Indian consular officer is within its words. A power signed before a foreign notary reads less clearly, because of section 11 of the Notaries Act, 1952; an apostille helps with the genuineness of the foreign notary's seal, but the text of section 84 does not mention it. An older Supreme Court line on powers executed before foreign notaries has not been read for this note.

When does the stamp clock start?

Karnataka's own Act governs an instrument for property in Karnataka. Section 18(1) of the Karnataka Stamp Act, 1957 says that every instrument chargeable with duty "executed only out of India may be stamped within three months after it has been first received in" the State of Karnataka. Section 18(2) lets a person who cannot stamp it with the prescribed stamp take it within the same three months to the Deputy Commissioner, who stamps it with a value the person requires and pays for. The Indian Stamp Act, 1899 has the same rule in section 18, in terms of India, for the instruments it governs.

The three months matter twice. Under section 31 the Deputy Commissioner determines the duty on payment of a fee; under section 32 the officer's endorsement makes the instrument "duly stamped". Proviso (b) to section 32(3) bars an endorsement on an instrument executed out of India that is brought "after the expiration of three months after it has been first received in" the State. And section 34 bars the admission in evidence of an instrument that is not duly stamped, subject to a proviso allowing admission on payment of the duty and a penalty. The text of the penalty we read is the compilation published by PRS Legislative Research, which carries amendments only to 2015, and the penalty may since have changed.

What duty does Karnataka charge on a power of attorney?

Article 41 of the Schedule sets the duty. As it stood in the compilation we read, clause (b) covered a power authorising one or more persons to act in a single transaction; clause (e) a power given for consideration authorising the attorney to sell immovable property, taxed at the duty on a conveyance for a market value equal to the consideration; and clause (eb) a power authorising a person "other than the father, mother, wife or husband, sons, daughters, brothers, sisters" in relation to the executant to sell immovable property in Karnataka, taxed on the market value of the property.

The Karnataka Stamp (Amendment) Act, 2023 (Karnataka Act 4 of 2024), published on 3 February 2024 and in force at once, substituted "five hundred rupees" for "one hundred rupees" in clause (b) of Article 41. It also amends clauses (a), (c), (d), (f), (g) and (h), so the 2015 lettering we read is stale. It does not touch clause (e) or clause (eb) in the parts we read. We have not seen a consolidated text of Article 41 after 2015, and the rates and wording of clause (eb) may have changed in other amendments; for that reason this note gives no figure for it.

Can the attorney register and sell?

Presenting a document for registration through an agent is a separate step. Section 32(c) of the Registration Act, 1908 allows presentation by "the agent of such person" duly authorised by a power of attorney executed and authenticated as section 33 provides. For a principal who does not live in India, section 33(1)(c) recognises a power executed before and authenticated by a notary public, or any court, judge, magistrate, consul or vice-consul, or representative of the Government of India. The copy we read is an old reproduction that still says "British Consul"; we have not read the adapted text.

Section 17(1) lists the documents whose registration is compulsory, including instruments that create or extinguish a right in immovable property of INR 100 and above. A power that only appoints an agent is not named there; whether a given power is caught depends on its terms and on state amendments that we have not surveyed.

The larger limit is on what the power can do. In Suraj Lamp & Industries (P) Ltd. v. State of Haryana, decided on 11 October 2011 by a bench of R. V. Raveendran, A. K. Patnaik and H. L. Gokhale, JJ., the Supreme Court held that immovable property can be transferred "only by a registered deed of conveyance", and that "GPA sales" and "SA/GPA/WILL transfers" do not convey title or create an interest, except to the limited extent of section 53A of the Transfer of Property Act, 1882. The Court said it did not intend to affect powers of attorney in genuine transactions, giving the example of a power granted to a relative "to manage his affairs or to execute a deed of conveyance". On 1 November 2023, in Shakeel Ahmed v. Syed Akhlaq Hussain, a two-judge bench of the Court repeated that no title passes on an unregistered agreement to sell or an unregistered general power of attorney, and rejected the argument that Suraj Lamp applies only prospectively. We read the 2011 judgment as reproduced on Indian Kanoon, not on the Supreme Court site; the 2023 judgment is from the Supreme Court site.

So the attorney in India does not sell by holding the power. The attorney signs, as the owner's agent, a deed of sale in the purchaser's favour, and that deed is stamped and registered in the usual way.

An illustration. The facts below are hypothetical, and the dates are illustrative only.

A Dubai-resident NRI appoints a sibling in Bengaluru to sell a flat
  5 January 2027    Power signed before an Indian consular officer in Dubai
  20 January 2027   Original first received in Bengaluru
  20 April 2027     End of the three months from receipt, on the ordinary
                    reading of section 18(1)
  Duty, no consideration, one flat, one transaction:
                    INR 500 under Article 41(b), as amended in 2024
  Clause (eb), on the 2015 text, does not apply: brothers and sisters are
                    excluded from it

If the sibling instead paid the owner for the power, clause (e) would charge conveyance duty on the amount of the consideration, a figure this note does not compute. The sale itself needs a registered deed of conveyance, signed by the sibling for the owner.

What remains unsettled?

Whether a foreign notary's attestation, with an apostille, attracts the presumption in section 84 of the Bharatiya Sakshya Adhiniyam, 2023. The section names a notary public, section 11 of the Notaries Act, 1952 ties that phrase to a notary entitled to practise under the Act, and the route through section 14 needs a notification that we have not seen.

The current wording and rate of Article 41(e) and 41(eb) of the Karnataka Stamp Act after amendments later than 2015. The Act of 2024 sets clause (b) and leaves the rest to other texts.

What "first received in" the State means where the original is couriered to one person in another State and carried to Karnataka later, or where only a copy arrives. The words of section 18(1) speak of the instrument and do not say.

Whether a power to sell, signed abroad and not registered, can be acted on by a sub-registrar in a State that has made such powers compulsorily registrable. We have not surveyed state amendments to the Registration Act, 1908.