Is ‘Vakalatnama’ same as ‘Power of Attorney’?

In order to understand the similarities or differences between a Vakalatnama and a Power of Attorney, it is necessary to understand what a power of attorney actually is. The definition of a ‘power-of-attorney’ in Section 2(21) of the Indian Stamp Act is ‘Power-of-attorney’ includes any instrument (not chargeable with a fee under the law relating to court-fees for the time being in force) empowering a specified person to act for and in the name of the person executing it.[1]

On approaching to the issue of deciphering whether vakalatnama is a power of attorney or not, various case laws have been come across which have deliberated on this issue. The deliberations have been very flexible in nature.

In Ramdeo Tilakchand Agarwal v. Lalu Natha[2], it was held as follows:

“In India under the Stamp Act Section 2(2l) a power of attorney for the purposes of the Stamp Act is defined in a way that excludes a vakalatnama because it excludes a document which carries a court-fee stamp, but that definition or the purposes of the Stamp Act, in my opinion, makes it quite clear that if it were not for that definition, a vakalatnama being a power of attorney would require not only a court, fee stamp under the Court-fees Act but also a stamp under the Stamp Act, and to avoid that double stamp it was necessary in the Stamp Act to exclude the vakalatnama.”

In the above-mentioned case, it was also duly stated that a power of attorney is to be considered as an authority by virtue of which one person gives power to another person to represent him or act in his stead or place of another to act for him and that a vakalatnama is a power of attorney. The justification for the same is that the powers framed out in a power of attorney are just limited to an extent in a vakalatnama. Taking this view into consideration, a vakalatnama can be called a special power of attorney.

In order to grant someone a specific right, it is better to mention the same in the General Power of Attorney by also looking at the statutory compliances for the same. The right to represent a litigant has been duly recognized for an advocate under Section 30 of the Advocates Act. In the case, Madupu Harinarayana v. The Learned First Additional District Judge[1], the right to represent a litigant was sought to be used by the so-called General Power of Attorney holder, who had already filed various so called public interest petitions in the court and had already been convicted for contempt of court in a Contempt Case in the year 1996. It was firmly held in this case that in order to record for the future guidance of the court that any appearance by the holder of the Power of Attorney, who is not an advocate, by obtaining so called General Power of Attorney is not permitted and thus he was not allowed to represent any Petitioner for the purpose of arguing the cases before the court.[2] Hence, the derivation from the above case is that only those persons can be allowed to hold the power of attorney of litigation only if they are allowed as per the Advocates Act.

A vakalatnama does not come under this definition because, although it empowers an advocate to act for the party giving it, it does not authorise him to act in the name of his client, and it is also contended that the definition applies to an instrument which is not chargeable with a Court-fee stamp while a vakalatnama in a Presidency Small Causes Court is exempt from the Court-fees Act, and is not simply not chargeable, as contrasted with documents stated in Section 19 of that Act which, are made not chargeable under the Act. It is finally urged that the words “document in writing ” used in Order III, Rule 4(1), of the Civil Procedure Code, in juxtaposition with the words ” a power-of-attorney ” in the same sub-rule would show that the legislature has made a distinction between a vakalatnama and a power-of-attorney.[3]

In Uday Shanker Triyar v. Ram Kaleshwar Prasad Singh and Anr.[4], it was held, “Vakalatnama, a species of Power of Attorney, is an important document, which enables and authorizes the pleader appearing for a litigant to do several acts as an Agent, which are binding on the litigant who is the principal.”[5]

[1] Madupu Harinarayana v. The Learned First Additional District Judge, 2011(4)ALD61

[2] Ibid.

[3] Hormusji K. Bhabha vs Nana Appa, (1934) 36 BOMLR 658

[4] Uday Shanker Triyar v. Ram Kaleshwar Prasad Singh and Anr., AIR2006SC269

[5] Id.

[1] Hormusji K. Bhabha vs Nana Appa, (1934) 36 BOMLR 658

[2] Ramdeo Tilakchand Agarwal v. Lalu Natha, AIR1937Nag65