Two very different things travel under the same name here, and confusing them is how buyers end up owning nothing.
The legitimate use
An owner who cannot attend, often an NRI or someone unwell, executes a power of attorney authorising a named person to execute and register the sale deed on their behalf. That is entirely proper. Title passes by the registered sale deed executed by the attorney for the owner, and the owner remains the seller.
Keep the two documents in their proper places. The power of attorney is only the authority to sign. The registered sale deed is the instrument that transfers ownership, and where the transaction has an agreement to sell as well, the attorney's authority must cover the whole sequence and not merely the last signature.
The arrangement that does not work
The so-called SA/GPA/WILL transaction: an unregistered agreement to sell, plus a general power of attorney, plus a will, used instead of a sale deed to avoid stamp duty. In Suraj Lamp & Industries v. State of Haryana (2011) the Supreme Court held that such transactions do not convey title. A power of attorney is an agency document, not a conveyance. Buyers in these arrangements cannot get a clean loan, cannot pass good title on, and are exposed if the "seller" or their heirs later dispute it.
Unless it is coupled with an interest, a power of attorney is revocable at any time and stands automatically revoked on the death or insanity of the person who gave it. A sale executed under a power of attorney after the owner has died is void. This is why the checks below are not optional.
Two provisions of the Indian Contract Act, 1872 sit behind that. Section 201 deals with the termination of an agency, including on the death or unsoundness of mind of the principal. Section 202 is the exception sellers reach for: where the agent has himself an interest in the property forming the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of that interest. Whether a document is genuinely irrevocable therefore turns on the interest actually created. Writing the word irrevocable into the text does not create one.
What to verify before you accept a sale by attorney
- Is it valid for this transaction? Check the execution and authentication requirements under Sections 32 and 33, together with applicable registration and stamp requirements. Do not assume that every power of attorney follows the same domestic or overseas process.
- Read the powers. It must expressly authorise sale of this property, receipt of consideration, and execution and registration of the deed. A general management or maintenance power is not enough.
- Confirm the principal is alive and competent, ideally on video call on the day, and obtain a fresh written confirmation that the power stands unrevoked.
- Check for revocation in the sub-registrar's records and the encumbrance certificate.
- Pay the principal directly, into the owner's own bank account, not the attorney's, unless the document expressly authorises otherwise.
How it has to be executed, and the NRI case
Section 33 of the Registration Act, 1908 sets out which powers of attorney a sub-registrar will recognise for the purpose of presenting a document. Where the principal resides in India, the power must be executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides. Where the principal does not reside in India, it must be executed before and authenticated by a Notary Public, or a Court, Judge, Magistrate, Indian Consul or Vice-Consul, or a representative of the Central Government. The section also provides for a principal who cannot attend through bodily infirmity, or who is in jail, to be attended at home or in custody.
For a principal outside India, Section 33 recognises execution before and authentication by the officials listed there, including a Notary Public or an Indian Consul or Vice-Consul. It does not itself impose an apostille in every case. Confirm the authentication, applicable stamping and registration requirements with the registering office before the transaction.
The safer alternative
Where the price is significant, ask the owner to execute the sale deed personally, in person or by video-assisted arrangements the sub-registrar permits. Where that is impossible, ask for a specific power of attorney whose execution, authentication and any registration requirements have been checked for the proposed sale.
Keep on your file a certified copy of the power obtained from the sub-registrar rather than the copy the attorney is carrying, the principal's identity document and specimen signature, a fresh dated confirmation that the power subsists, proof of the attestation and stamping, an encumbrance certificate taken after the date of the power so that a registered revocation would show, and bank records proving the money reached the owner's own account. None of that is an unusual thing to ask for, and a seller who resists it is telling you something. If a document cannot be produced, go back through the verification checklist and decide whether the transaction is worth doing, rather than accepting an indemnity clause in place of the missing paper. An indemnity is worth what the person giving it is worth, and by the time you need one that person is usually unreachable.