SALE OF PROPERTY via power of attorney and will

Ashwini Sharma (Querist) 19 January 2011 This query is : Resolved
Hi,

These are the facts to be considered

S1 in order to avoid stamp duty sells property and gives possession of the property to S2 by executing a power of attorney and entitling S2 full rights over the property to sell, lease, or do whatever he wants to with the property. S1 also executes a will in favour of S2 that after the death of S1 the said property shall devolved to S2.

Now, S2 dies, which means the power of attorney is no longer in effect and S1 is still living which means the property has not devolved yet by way of will.

now in these circumstances, how can the legal representatives of S2 sell or lease the property out to someone? if they continue in possession of property for a long time, will it help the case of legal representatives?

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Bhawani Mahapatra (Expert) 19 January 2011
Dear Ashwini
You have rightly told, the PoA becomes in-operative after death of S2 also by that time the property in question has not devolved to S2 as S1 is still alive. Now S1 is at its liberty to transfer the said property by himself and even he can execute another will in favour of an another person. Mere possession over the property of legal representatives of S2 cannot create a right automatically to disposes the property. So they cannot sell or lease out the property.

Ashwini Sharma (Querist) 19 January 2011
Dear Bhawani

Thanx for your reply.

in addition, I wish to know can the legal representatives of S2 claim title over the said property after the limitation period of 12 years is over by way of adverse possession?

it is to be borne in mind that S1 has willingly sold such property to S2 but has not registered a sale deed but instead executed a PoA and wrote out a will as mentioned earlier.

can LRs of S2 claim title ? and thus be able to sell off the property?

now even if they sell the property to someone else , lets say S3, and then it goes to lets say S4, and in between 40 years have passed. S1 never claims title or fights. what is the legal status of the property in that situation? will it go to the government by way of eminent domain?

Adv Akhtar Ali Sheikh (Expert) 20 January 2011
1. S2's legal reperesentatives must first pay stamp duty with penalty. (by adjudication for stamp duty)
2. make a confirmation deed whereunder s1 and the LRs can conform the agreement and get it registered.
3. The LRs then can dispose off the property.
4. If S1 is not forthcoming even then the LRs can register the same with declaration with agreement annexed. The above procedure is for Mumbai.