In the context of Nepali law, the term “Waris” (वारिस) is commonly used to refer to a person who holds Power of Attorney (POA), particularly in legal proceedings. As per Section 144 ofthe National Civil procedure Code, 2017, a party involved in a legal case, whether as a plaintiff or defendant may appoint another individual, known as a Waris, to act on their behalf in the lawsuit. This legal representative is authorized to perform various duties in place of the original party.
The Waris can appear in court to represent the principal party, submit documents, give testimony, respond to court queries, and carry out all procedural and legal responsibilities required in the case. The appointment of a Waris must be made through a formal power of attorney document, which clearly defines the scope of authority granted to the representative. This provision is especially useful for individuals who are unable to attend court due to physical absence, residence abroad, health issues, or other valid reasons.
The role of a Waris is not limited to court appearances alone; it may also extend to other legal matters such as managing property, executing contracts, or engaging in negotiations depending on the powers delegated. However, in judicial proceedings, the court may require proof of the legitimacy and scope of the Waris’s authority, typically through a notarized or court-registered POA document.
In Nepal, a Warishnama (Power of Attorney) can be executed in two ways.
1.simple power of attorney ( Sadharan Waris Nama )
A simple Power of Attorneyis a legal instrument that authorizes a designated individual commonly referred to as the attorney or Waris to carry out general or routine legal and administrative tasks on behalf of the person granting the authority, also known as the authority provider. This type of power of attorney is used when the authority provider is unable to personally handle certain responsibilities due to physical absence, illness, travel abroad, or other valid reasons.
The duties authorized under a general power of attorney are generally of a non-complex nature. These include filing or defending lawsuits, submitting written replies or statements to the court, lodging applications before various government or legal authorities, collecting documents, and attending court proceedings on behalf of the authority provider. It provides the attorney with the legal standing to act in place of the assignor within the specified scope outlined in the document.
In Nepal, the simple Power of Attorney is typically drafted and registered at the concerned District Court where the authority provider resides or where the legal matter is to be pursued.
The power of attorney document must include detailed identification of both parties:
- For the authority provider (person granting authority): full name, address, age, citizenship number, and relationship to the attorney (if any).
- For the attorney (recipient of authority): full name, address, citizenship details, and a clear outline of the responsibilities granted.
Both parties may also need to attach copies of their citizenship certificates and recent passport-sized photographs. Also, a thumbprint or signature of the authority provider in the presence of a lawyer.
The simple power of attorney is particularly useful in legal and procedural matters that do not involve high-stakes decisions or property transfers, and it helps ensure that necessary legal functions are not disrupted due to the absence of the person granting authority.
2. Authorized power of Attorney (Adhikrit Warisnama)
The concept of authorized Power of Attorneyplays a crucial role in Nepal’s legal system, enabling individuals to delegate legal authority to another person to perform specific tasks on their behalf especially when they are unable to appear personally. This is particularly important for individuals residing abroad who need to manage legal, property, or court-related matters within Nepal.
An Authorized Power of Attorney authorizes the appointed individual to perform significant legal actions, including but not limited to:
- Filing or defending a lawsuit
- Withdrawing a legal claim
- Entering into a legal settlement or compromise
- Transferring ownership of property
- Executing contracts or legal transactions
An Authorized Power of Attorney can be executed through two official channels, depending on the location of the person granting the authority:
- Through the District Court – for individuals who are currently residing within Nepal.
- Through the Nepali Embassy or Consular Office – for individuals living outside Nepal.To issue an authorized Power of Attorney, the person granting the authority must attach recent passport-size photographs of both themselves and the individual being appointed as attorney. Additionally, photocopies of the citizenship certificates or passports of both parties must be submitted either to the District Court (if within Nepal) or to the Nepali embassy or consulate (if abroad).
Legal Provisions for Appointing an Authorized Power of Attorney in Nepal
According to Section 153 of the National Civil Procedure Code, 2017, individuals involved in civil legal matters in Nepal can appoint a representative through an authorized Power of Attorney to act on their behalf. This provision is especially beneficial for those who are abroad or otherwise unable to personally participate in legal proceedings.
Key Provisions:
- Right to Appoint a Special Power of Attorney:
- Any person may grant an authorized Power of Attorney to allow someone else to file or respond to a case, withdraw a legal claim, enter into a settlement, or carry out any other legal action—even before a case has been formally filed in court.
- Procedure for Appointment Without a Pending Case:
- If a case has not yet been filed, the individual granting the authorized Power of Attorney must sign the document in the presence of:
- A District Court Judge (if residing in Nepal), or
- A Nepali Ambassador or Consul General (if residing abroad).
- The document must be certified by the respective authority.
- If a case has not yet been filed, the individual granting the authorized Power of Attorney must sign the document in the presence of:
- Required Documentation:
- The following must be submitted along with the Special Power of Attorney:
- A copy of the citizenship certificate or passport of the principal.
- Passport-sized photographs of both the principal and the appointed person.
- The following must be submitted along with the Special Power of Attorney:
- Verification Fee:
- A fee of NPR 500 is charged for the certification of the Special Power of Attorney.
- Scope of Authority:
- The appointed person under the authorized Power of Attorney may:
- Appear in court on behalf of the principal,
- Represent the principal during proceedings and settlements, and
- The appointed person under the authorized Power of Attorney may:
Appoint another representative if necessary
Transfer of Immovable Property Rights Through Authorized Agents
According to Section 154 of the National Civil Procedure Code, 2017, a person who is unable to personally appear to manage immovable property whether to specify, sell, distribute, exchange, execute a deed of gift, or register related documents may appoint an authorized agent through a power of attorney. This appointment must include a reasonable explanation for the inability to be present.
The authorized agent can then carry out these actions on behalf of the principal, following the procedures outlined in Section 153, which include proper certification and documentation. The agent’s authority is limited to what is specified in the power of attorney.
However, it is important to note that an authorized agent is not permitted to execute a deed of gift involving the remaining property after the principal’s death.
Eligibility Require for Appointment as a Legal Representative
According to Section 145 of the National Civil Procedure Code, 2017, the following eligibility criteria must be met to appoint a legal representative.
- Legal Capacity: The individual must possess the legal competence to enter into contracts in accordance with prevailing laws.
- Absence of Financial Liabilities to the State: The person must not have any outstanding obligations to the government, including unpaid court expenses, legal fees, fines, or penalties resulting from the enforcement of a judicial decision.
- Integrity and Moral Standing: The individual must not have been convicted of any criminal offense involving Immorality including but not limited to forgery, fraud, or corruption.
Provided that, the Above-mentioned conditions shall not Prohibit the appointment of a sole legal representative, where such role is found to be appropriate.
Documentation and Formalities
To issue a Special Power of Attorney, the following documents and details are required:
- Original and photocopy of the citizenship certificate or passport of both the principal and the attorney
- Two passport-size photographs of both the principal and the attorney
- A photocopy of the citizenship certificate of a witness
- The document must be signed and certified by the appropriate authority (judge or consular official)
Appointment and Role of Legal Representatives under the National Civil Procedure Code, 2017
The National Civil Procedure Code, 2017 outlines how parties involved in a legal case can appoint someone else called a legal representative to act on their behalf. The law provides clear rules on how a representative can be appointed, their rights, and how the appointment can be changed.
1. One Person Can Represent in Multiple Cases (Section 147):
A single person can be appointed as a legal representative in more than one case. Also, more than one person can be appointed as representatives in the same case. However, the same person cannot represent both the plaintiff and the defendant in the same case.
2. One Among Several Parties Can Represent the Group (Section 148):
If two or more people are on the same side in a case (like multiple plaintiffs or defendants), one of them can be chosen to act as the representative for all of them.
3. One Person Can Represent in Different Courts (Section 149):
A person who is already a legal representative in one case can also be appointed in another case in a different court, if needed.
4. Powers of the Legal Representative (Section 150):
The representative’s powers depend on what is written in the power of attorney. They can only act within the authority given in that document.
5. Format and Verification of Power of Attorney (Section 151):
Before accepting the power of attorney, the court checks if it is in the correct format. Only after confirming everything is proper, the court will register it.
6. Changing or Cancelling the Representative (Section 152):
If someone who gave a power of attorney wants to cancel it, they can do so. They can appoint a new representative or even choose to handle the case themselves by informing the court.
Procedure for Verifying a Power of Attorney in Nepal
To verify a Power of Attorney, both the person granting the authority (the principal) and the person receiving it (the attorney) must jointly submit an application. This application must include the original PoA document, complete with their signatures, thumb impressions, and passport-sized photographs.
- If the PoA is being executed within Nepal, the verification must take place before a District Court judge.
- If it is being executed from outside Nepal, the process must be completed in the presence of a Nepali Embassy or Consulate General in the respective country.
Once the necessary documents are reviewed and verified, the judge, ambassador, or consular officer will officially authorize the Power of Attorney, granting it legal validity.
Termination of Power of Attorney
Section 155 of the National Civil Procedure Code, 2017, explains when the authority given to an authorized agent through a power of attorney ends. These situations include:
- When the specific task or time period for which the agent was appointed is completed or expires.
- When a particular event or condition tied to the agent’s authority happens or stops.
- If the person who gave the power of attorney cancels it by publishing a notice in two national newspapers.
- If either the person who gave the power or the agent passes away before the task is finished.
- When the property involved is divided or partitioned.
- If a legal dispute arises between the person who gave the power and the agent, or among family members over the property.
- If the authorized agent decides not to act anymore and sends a written notice along with the original power of attorney back to the person who appointed them.
Required documents for Special Power of Attorney (Adhikrit Wareshanam)
- Two Copies of duly prepared Power of Attorney (printed in Nepali Paper)
- A cover letter with a request for attestation.
- Nepalese Citizenship Certificate (Original and photocopy)
- Nepalese Passport (Original and photocopy)
- Copy of Legal documents related to the power of attorney (Land ownership document (Lalpurja), Court order for Divorce etc.)
- Two pp size photograph of the applicant
- Copy of Lawyer’s License Certificate/ID Card.
- Citizenship Copy of each witness.
- Any other document as deemed necessary by the Consulate.