Forged Power of Attorney in India

Forged Power of Attorney in India: Legal Ramifications, Evidentiary Hurdles, and Judicial Precedents

Introduction

A Power of Attorney (PoA) is a significant legal instrument that enables an individual (the principal or donor) to authorize another person (the agent or donee) to act on their behalf in specified matters, which may include financial and property transactions. While PoAs serve as a crucial tool for delegation and convenience, their susceptibility to forgery presents a substantial legal challenge in India. A forged PoA can lead to unauthorized transactions, fraudulent dispossession of property, and complex legal disputes, undermining the sanctity of legal documents and the security of property rights. This article undertakes a comprehensive analysis of the legal framework governing forged Powers of Attorney in India, examining relevant statutory provisions, the evidentiary challenges in proving forgery, and the evolving judicial scrutiny applied by Indian courts. It draws upon established legal principles and significant case law to elucidate the multifaceted implications of forged PoAs.

Understanding Power of Attorney and Forgery under Indian Law

The Nature and Types of Power of Attorney

The Powers of Attorney Act, 1882, governs the execution and operation of PoAs in India. Section 1A of the Act defines a "power-of-attorney" to include any instrument empowering a specified person to act for and in the name of the person executing it. Section 2 of the Act stipulates that the donee of a PoA may execute instruments and do things in their own name and signature by the authority of the donor, and such acts shall be as effectual as if done by the donee in the name of the donor (HILARY FELSON v. M/S POWERLINK BUILDERS PVT. LTD, Kerala High Court, 2024).

PoAs can be broadly classified into General Power of Attorney (GPA), granting broad powers, and Special Power of Attorney (SPA), limiting authority to specific acts. They can also be revocable or, in limited circumstances (e.g., when coupled with an interest), irrevocable. The Supreme Court in Suraj Lamp And Industries Private Limited (2) Through Director v. State Of Haryana And Another (2012 SCC 1 656, SC, 2011) extensively discussed the misuse of GPAs in property transactions, particularly SA/GPA/Will sales, holding that such instruments do not convey title and that property can only be transferred through registered deeds of conveyance. This underscores the judiciary's concern over the potential misuse of PoAs, including through forgery. The fiduciary nature of a PoA has also been highlighted, emphasizing the trust reposed in the agent (Church Of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, 2012 SCC 8 706, SC, 2012, citing State of Rajasthan v. Basant Nahata, 2005).

Forgery Defined: Indian Penal Code, 1860

Forgery related to a PoA is primarily dealt with under the Indian Penal Code, 1860 (IPC).

  • Section 463 (Forgery): Defines forgery as making any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed.
  • Section 464 (Making a false document): This is a crucial section. A person is said to make a false document who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed. The Supreme Court in Sheila Sebastian v. R. Jawaharaj And Another (2018 SCC 7 581, SC, 2018) emphasized that making a false document is essential to attract the offence of forgery.
  • Section 465 (Punishment for forgery): Prescribes imprisonment up to two years, or with fine, or with both.
  • Section 467 (Forgery of valuable security, will, etc.): A PoA, especially one authorizing property transactions, can be considered a valuable security. This section provides for more stringent punishment, including imprisonment for life or up to ten years, and fine.
  • Section 468 (Forgery for purpose of cheating): If forgery is committed with the intent that the document forged shall be used for the purpose of cheating, the punishment can extend to seven years and fine.
  • Section 471 (Using as genuine a forged document): Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document shall be punished in the same manner as if he had forged such document.
The Supreme Court in Mohammed Ibrahim And Others v. State Of Bihar And Another (2009 SCC CR 3 929, SC, 2009) clarified that merely executing a sale deed for property not owned by the seller does not automatically amount to forgery unless there is an intention to represent oneself as having authority or that ownership lies with another party, which was not the case. This highlights that the essence of forgery lies in the falsity of the document's making, not merely in the falsity of its contents if the maker is who they purport to be and does not misrepresent their authority to make it.

Execution and Authentication of Power of Attorney

The due execution and authentication of a PoA are critical. While a PoA for general purposes may not require registration, a PoA authorizing the sale of immovable property often needs to be registered. Section 32 of the Registration Act, 1908, deals with persons who can present documents for registration, which includes a person executing or claiming under the same, or the representative or assign of such a person, or the agent of such a person, representative or assign, duly authorized by PoA executed and authenticated in the manner prescribed. Section 33 of the Registration Act specifies the requirements for PoAs recognizable for purposes of Section 32, particularly for PoAs executed abroad which require authentication by a Notary Public, Court, Judge, Magistrate, Indian Consul or Vice-Consul, or Central Government representative (M/S. Rishav Enterprises v. M/S. Bhagwati Trading Company, Jammu and Kashmir High Court, 2017, citing Jugraj Singh v. Jaswant Singh).

Section 85 of the Indian Evidence Act, 1872, creates a presumption regarding PoAs. It states: "The Court shall presume that every 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." This presumption is rebuttable. The burden of proving that a notarized PoA was not duly executed or authenticated lies on the person objecting to it (Yogesh Singh Sahota v. Niranjan Lal Gupta, Delhi High Court, 1981; M/S. Rishav Enterprises v. M/S. Bhagwati Trading Company, Jammu and Kashmir High Court, 2017).

Judicial Scrutiny of Forged Power of Attorney: Analysis of Case Law

Establishing Forgery: Evidentiary Aspects

Proving that a PoA is forged involves overcoming the presumption under Section 85 of the Evidence Act if the document is notarized. The party alleging forgery bears the initial burden. Evidence can include:

  • Expert Evidence: Comparison of signatures or thumb impressions by handwriting experts. In Gaurishankar Govardhandas Todi v. Evershine Homes Pvt. Ltd., Mumbai And Another (Bombay High Court, 2008), it was noted that "The different type of the letters speak for themselves," and a police investigation concluded the PoA was fake.
  • Circumstantial Evidence: Evidence of impersonation of the principal (Joginder Singh And Others v. State Of Haryana And Another, Punjab & Haryana High Court, 2002; Sheila Sebastian v. R. Jawaharaj And Another, 2018 SCC 7 581, SC, 2018 where accused accompanied an impersonator). Evidence that the principal never went before the notary or that the identifying advocate's statement contradicts the notarization (Gaurishankar Govardhandas Todi, 2008).
  • Notary's Testimony and Records: The notary's records and testimony can be crucial. Failure by a notary to produce relevant registers can be an adverse factor (Gaurishankar Govardhandas Todi, 2008).
  • Inconsistent Conduct: If a party has previously relied on a PoA in other proceedings, a subsequent allegation that it is forged may be viewed with skepticism (Jinofer Bhujwala v. State Of Gujarat, Gujarat High Court, 2015). Conversely, a party who has made attempts to reverse transactions based on an allegedly forged PoA might find their claim more credible (BHARVAD UKABHAI BHIKHABHAI v. STATE OF GUJARAT, Gujarat High Court, 2022).

Consequences of Transactions Based on Forged PoA

A transaction effected through a forged PoA is generally considered void ab initio. A forged document is a nullity in the eyes of the law and cannot confer any rights or title. This means that even a subsequent bona fide purchaser for value may not acquire a valid title if the chain of title includes a transaction based on a forged PoA.

Civil Remedies:

  • Suit for Declaration and Cancellation: The aggrieved principal can file a suit for a declaration that the PoA is forged and void, and for the cancellation of any sale deeds or other instruments executed based on such forged PoA (Smt. Rabiya v. Ali Hussain & Ors., Uttarakhand High Court, 2008; Manohar Lal Petitioner, v. Ram Avtar And Ors., 1990 SCC ONLINE P&H 159, Punjab & Haryana High Court, 1990).
  • Suit for Possession: If possession has been lost due to a transaction based on a forged PoA, a suit for recovery of possession can be filed.
  • Limitation Period: Article 59 of the Limitation Act, 1963, prescribes a period of three years to cancel or set aside an instrument or decree or for the rescission of a contract, with time beginning to run when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. The Supreme Court in Prem Singh And Others v. Birbal And Others (2006 SCC 5 353, SC, 2006) emphasized the strict application of the Limitation Act even in cases of alleged fraud, unless the transaction is void ab initio. A transaction based on forgery is typically void, which may impact the application of Article 59 differently than a merely voidable transaction.

Criminal Liability:

  • Perpetrators of forgery, including those who create or use a forged PoA, can be prosecuted under the relevant sections of the IPC (e.g., Sections 419, 420, 467, 468, 471).
  • The Supreme Court in Devendra And Others v. State Of Uttar Pradesh And Another (2009 SCC CR 3 461, SC, 2009) and Mohammed Ibrahim And Others v. State Of Bihar And Another (2009 SCC CR 3 929, SC, 2009) has cautioned against converting purely civil disputes into criminal cases. However, where clear evidence of forgery and fraudulent intent exists, criminal proceedings are maintainable and can run concurrently with civil proceedings. The termination of civil proceedings does not automatically end criminal proceedings (Joginder Singh And Others v. State Of Haryana And Another, Punjab & Haryana High Court, 2002).
  • Allegations of connivance in the execution of a forged PoA require specific evidence to prima facie establish such connivance; mere assertion is insufficient (Smt. Manju Rajput v. Kamal Singh Rajput, Madhya Pradesh High Court, 2025). In Braham Singh v. State of U.P. (2024 AHC 53029, Allahabad High Court, 2024), bail was considered where the applicant was alleged to be the mastermind but no property was sold using the forged PoA, which was subsequently cancelled.

Scope and Misuse of Power of Attorney

A PoA holder acts in a fiduciary capacity and is accountable to the principal (Church Of Christ Charitable Trust, 2012, citing State of Rajasthan v. Basant Nahata, 2005). The acts of the agent must be strictly within the scope of authority conferred by the PoA. If a PoA does not expressly authorize the execution of a sale agreement, for instance, such an agreement may be invalid (Church Of Christ Charitable Trust, 2012).

It is important to distinguish between a forged PoA (where the document itself is not genuine) and the misuse of a genuine PoA (where a duly appointed agent exceeds their authority or acts fraudulently). While this article focuses on forged PoAs, the case of Anthonysamy v. Christoraj And Another (Madras High Court, 2013) illustrates misuse where an agent, based on a genuine PoA, allegedly sold property to his mother under questionable circumstances, leading to allegations of forgery in the sale deed and subsequent cancellation of the PoA.

Procedural Aspects

Several procedural issues can arise in litigation involving forged PoAs:

  • Rejection of Plaint (Order 7 Rule 11 CPC): If a suit is filed based on a PoA that does not grant the necessary authority, or if the PoA itself is prima facie invalid, the plaint may be liable for rejection (Church Of Christ Charitable Trust, 2012).
  • Court Fees: In suits for cancellation of documents like sale deeds executed on the basis of an allegedly forged PoA, if the plaintiff is a party to the instrument sought to be cancelled (even if through an alleged forged PoA), ad valorem court fees may be payable (Manohar Lal Petitioner, v. Ram Avtar And Ors., 1990, citing Niranjan Kaur v. Nirbigan Kaur, 1981).
  • Section 195(1)(b)(ii) CrPC (formerly 195(1)(c)): If a forged PoA is produced or given in evidence in any proceeding in any Court, cognizance of offences such as forgery (Section 463 IPC) or using a forged document (Section 471 IPC) alleged to have been committed in respect of such document can only be taken on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. The Supreme Court discussed the application of the erstwhile Section 195(1)(c) CrPC in Patel Laljibhai Somabhai v. State Of Gujarat (1971 SCC 2 376, SC, 1971) in the context of a forged receipt.
  • Lodging of FIR: Aggrieved parties often lodge First Information Reports (FIRs) alleging forgery of PoAs (Ashok Kamalprasad Jain v. State of Gujarat, Gujarat High Court, 2016). Delays in lodging FIRs can sometimes be a factor considered by courts, as seen in Zarina Begum v. State Of M.P. (Madhya Pradesh High Court, 2021) where the alleged offence was committed thirty-one years prior.

Revocation and Termination of Power of Attorney

A PoA is generally revocable by the principal at any time, unless it is an irrevocable PoA (e.g., one coupled with an interest, as per Section 202 of the Indian Contract Act, 1872). Revocation should be communicated to the agent and, where relevant, to third parties. Parties may formally cancel a PoA (Anthonysamy v. Christoraj And Another, 2013; Braham Singh v. State of U.P., 2024).

Importantly, the Uttarakhand High Court and Orissa High Court, citing the Supreme Court in Shanti Budhiya Vesta Patel and Ors. v. Nirmala Jayprakash Tiwari and Ors: (2010) 5 SCC 104, held that a registered document (like a registered PoA) has sanctity and cannot be revoked merely by filing police complaints. Proper legal procedure must be followed for revocation (DR MRS VALENSHA SURONG v. STATE OF MEGHALAYA, Uttarakhand High Court, 2016; DR MRS VALENSHA SURONG v. STATE OF MEGHALAYA, Orissa High Court, 2016).

Conclusion

Forged Powers of Attorney pose a serious threat to the integrity of legal and commercial transactions in India. The legal framework, encompassing provisions of the Indian Penal Code, Powers of Attorney Act, Indian Evidence Act, and Registration Act, provides mechanisms to address such forgeries, both through civil remedies and criminal prosecution. Judicial precedents demonstrate a careful approach by courts, balancing the presumption of validity for duly authenticated PoAs with the imperative to uncover and penalize fraud.

Establishing forgery often involves complex evidentiary challenges, requiring meticulous presentation of direct and circumstantial evidence. The consequences of a forged PoA are severe, typically rendering subsequent transactions void. Litigants, legal practitioners, and authorities involved in the execution and verification of PoAs (such as notaries and sub-registrars) must exercise utmost diligence. While the law provides recourse, the prevention of such forgeries through heightened awareness, stringent verification processes, and the cautious use of PoAs remains paramount to safeguarding property rights and maintaining public trust in legal instruments. The judiciary continues to play a vital role in interpreting the law to ensure that justice prevails in disputes arising from the fraudulent creation and use of Powers of Attorney.