Affidavit cannot be substitute for POA
2) you need registered power of attorney to mortgage , sell the flat
Can affidavit for power of attorney substitute POA?
We had purchased a flat in 2011. My father is unable to move owing to physical disability. So he gave me a power of attorney for the flat in Sarjapur-Attibele house in Bidarguppe. When I searched for the folder to pledge the flat, the document is missing. Can I get an affidavit equivalent to that?
Asked 4 years ago in Property Law
Religion: Hindu
25 Answers
1. No. An affidavit for the same in legally insufficient and will not be acceptable for any legal purposes.
2. The POA holder must always hold the original POA (for verification, as & when demanded), without which POA holder cannot exercise or enforce the POA.
3. You can requisition the SRO office for home visit by paying their statutory charges, for registering a new POA.
1. Was the POA executed to authorise you to sell the property for and on behalf of your father?
2. On the basis of affidavit you cannot pledge the flat. Let your father execute a fresh GPA in your favour.
1. If it were to be a registered POA, then you can get a certified copy of POA from the Sub Registrar's Office in which it was registered. Certified copy of POA is as good as the original and can be used for all the purposes wherever original POA is needed.
2. If you have lost the POA, whether it's a registered one or an unregistered one, you have to lodge a Police Complaint to prevent its misuse by unscrupulous people.
3. After a complaint is lodged in the Police Station regarding the theft of POA, you can swear to an affidavit mentioning the loss of POA, as well as the complaint lodged in the P.S.
The affidavit cannot replace the power of attorney deed.
In fact for using the power of attorney deed now you need to have a life certificate to prove that your father is alive
Therefore you may have to somehow trace out the missing deed or obtain a fresh deed.
1. It is not clear what document you have missed.
2. if you are going to mortgage this flat for securing loan then do so only with the express consent of your father.
3. in such the Ban may not reply unless it speaks with your father and this is done on the basis of registered POA.
Dear Sir,
You may get the second POA from father for which is not required to move, rather the witnesses and and Notary may be called at the place where father is staying.
You may ask him to issue a fresh PoA, if you have misplaced the earlier one.
Respected sir...
Moving an affidavit in support of the missing documents that is equivalent vale for the same in which you file that above said documents...you can use certified copy of that also if you have...
Thank you
Not valid.
Get another POA from father or certified copy of POa from registrar office.
For power of atorney loss you need to execute one more power of attorney affidavit will not suffice
Dear Sir,
You are not clear as to which document you are missing. If you are missing the original Power of Attorney then you can get certified copy of the same from the Sub-Registrar Officer concerned and get fledge the flat as it is considered as secondary evidence and bank cannot refuse it udders the following sections of law.
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Section 63 in The Indian Evidence Act, 1872
63. Secondary evidence.—Secondary evidence means and includes—
(1) Certified copies given under the provisions hereinafter contained1;1;"
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen it. Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original. COMMENTS Admissibility Application moved for permission to lead secondary evidence based on ground of loss of document. Presence of document proved from the facts pleaded - Allowing secondary evidence not illegal; Sobha Rani v. Ravikumar, AIR 1999 P&H 21. Tape-recorded statements are admissible in evidence; K.S. Mohan v. Sandhya Mohan, AIR 1993 Mad 59. Certified copies of money lender’s licences are admissible in evidence; K. Shivalingaiah v. B.V. Chandrashekara Gowda, AIR 1993 Kant 29.
(1) Certified copies given under the provisions hereinafter contained1;1;"
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen it. Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original. COMMENTS Admissibility Application moved for permission to lead secondary evidence based on ground of loss of document. Presence of document proved from the facts pleaded - Allowing secondary evidence not illegal; Sobha Rani v. Ravikumar, AIR 1999 P&H 21. Tape-recorded statements are admissible in evidence; K.S. Mohan v. Sandhya Mohan, AIR 1993 Mad 59. Certified copies of money lender’s licences are admissible in evidence; K. Shivalingaiah v. B.V. Chandrashekara Gowda, AIR 1993 Kant 29.
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Section 65 in The Indian Evidence Act, 1872
65. Cases in which secondary evidence relating to documents may be given.—Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:—
(a) When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence2; 1[India] to be given in evidence2;"
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
(a) When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence2; 1[India] to be given in evidence2;"
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
No, there is no substitute for POA, more-particularly, affidavit shall not be a substitute for POA. .
You have to get fresh POA in your name from your father duly registered by paying stamp duty.
The same can be used to pledge / mortgage / sell flat etc.
In case the document was register you can obtain a certified copy of same if not.you may get an affidavit file a police complaint and further give newspaper advertisement in regard to the same.
No, power of attorney explainetory legal document defines scope of authority that cannot be substituted by affidavit.
I am sorry but that is not possible. Both are different things.
No, affidavit cannot serve the purpose,
File a report for lost documents and get another copy of it from where the Will was registered
- As per law, An affidavit is statement of facts which is sworn or affirmed before an officer who has authority to administer an oath (e.g. an oath commissioner or a notary public) and the person making the signed statement i.e. affidavit takes an oath that the contents are, to the best of their knowledge, true and correct.
- Whereas , A power of attorney (POA) is a legal document in which the principal (you) designates another person to act on your behalf and that person can enter into agreements in the manner you permit him to do so.
- Hence , both are not equivalent , you will have to take a new POA from your father , if the same is untraceable.
Good luck and dont forget to rating Positively.
Ans: Ideally Sale by way of a Power of Attorney is invalid. You do not become the owner of the house to sell it further. It is bad title on your part as the seller of the property.
If you wish to sell by way of Power of Attorney, you will have to pay the necessary stamp duty to the government as applicable in your state register the document and only then you have a good title to sell a property through POA.
1. The said POA authorising you to deal with the property by its owner being your father can not be substituted by an affidavit affirming the fact that the said POA has been lost/misplaced by you.
2. Get a fresh POA on the same line to be legally appropriate.
If the POA is registered then you can easily obtain a certified copy of the same from the sub registrar office. If it’s not registered then file an FIR to that effect and give a public notification in the local newspaper. After the publication, execute a new POA.
Dear Client,
Affidavit cannot take place of power of attorney.
A fresh Power of attorney can used for pledge the flat .
Indemnity bond and affidavit are used when the original is permanently lost with out getting or traceable in future.
1. No affidavit for POA have no legal validity and cannot substitute original POA.
2. If POA was registered then you should lodge FIR for loss of original documents and obtain a true copy from sub registrar office.
- As per the information mentioned in the present query, makes it clear that the said document is not going missing and you wish to substitute the same by the affidavit.
- I would like to apprise you that affidavit won’t serve the purpose as it can be attested in the absence of the main issuer, so it has little lesser sanctity in the eyes of law.
- You can again get it executed afresh.