Civil Procedure Code (CPC)

Can immovable property be transferred by giving declaration

This query is : Resolved 
 

Online (Querist)
13 June 2021

My brother bought a property in auction in nagpur several years ago, he paid the full price. I was not present at the auction, nor did I pay any amount towards its purchase. In certificate of sale he added my name as co-owner. He got into some financial trouble, and so he made a declaration and had it notarized, stating he does not own the property nor does he vest any interest in the property. This way the property would avoid legal effects due to his financial troubles.
His declaration states that I (his brother) am the sole owner of the property. He also gave me an irrevocable power of attorney so that I can transact on the property. Can I transfer this property without any issues? Will I run into problems if in the future he claims to be real owner of the property? Does State of Maharashtra law or Transfer of Properties Act of India allow such transfer via declaration and power of attorney?


J K AgrawalOnline (Expert)
13 June 2021

Transfer Not valid and your brother still owner of property but after 20 year of the deed, you will be owner. However if you transfer the property being POA holder, the transfer is valid because the transfer is not by you but by your brother who is real owner. If you transfer the property showing yourself as owner, the transfer is not valid but your brother can not claim it. In such a case, property will go to State Exchequer.

Advocate Bhartesh goyalOnline (Expert)
13 June 2021

No, immovable property can not be transferred by a deed of notarized declaration. Such type of transfer is neither legal nor valid in eye of law. Immovable property can be transferred only by registered deed (sale deed ,gift deed etc ) However you can appoint your brother and give registered power of attorney to sell/transfer your share in the property.

KartikOnline (Querist)
13 June 2021

Appreciate the response. One more point, my brother had contacts in local municipal office, he was able to get my name included in PR card and Index II. Will that make a difference in me becoming the owner.
Mr. Agrawal - what is 20 year rule? Thank you.

KartikOnline (Querist)
13 June 2021

see follow up question above. Thank you.

Sri Vijayan.AOnline (Expert)
13 June 2021

in certificate of sale, your name is included.
It means you are the owner.
My advice to you is transfer the property to your brother by registered deed.

T. Kalaiselvan, Advocate Online (Expert)
13 June 2021

The property records i the Municipality is not the title document.
If he had given a registered power of attorney deed in your favor, then you can transfer his share of property to your name also by executing a registered sale deed executed by your to your own name as as seller and buyer.
The Declaration he made is not a valid transfer and is not recognised by law.
You may ask im to execute a registered power of attorney deed in your favor to enable you to transfer his share in the property to anyone as decided by you both.

kavksatyanarayanaOnline (Expert)
13 June 2021

You stated that your brother made a declaration and got it notarized. And your brother also gave you an irrevocable power of attorney, that you mean two documents or only one?. Is the Power of Attorney registered? If you want to transfer his share to you or others, in such a case, the Power of Attorney must be registered before the Sub Registrar concerned.

Sankaranarayanan Online (Expert)
13 June 2021

As per your statement your brother also joint ownership. In addition he has given a GPA to his brother for act on his share of property. In your query you pointed that " can I transfer " means transfer to brour name or third party. Your brother interest to give his share to you .if then it should be transfer only bt sale deed or release deed

KartikOnline (Querist)
14 June 2021

Mr. Sankaranarayanan - my brother and my name are on certificate of sale, PR card and Index II. He paid the purchase price for the property. He gave me irrevocable POA and declaration that I’m the only owner. Can I transfer property to third party? Also, can he revoke the POA?

KartikOnline (Querist)
14 June 2021

I’ve follow up question to responses - see above

Dr J C VashistaOnline (Expert)
14 June 2021

The property is stated to have been purchased in joint names in an auction, where your name appears in the Sale/ Purchase documents. In this case, when your brother has authorised you, you are sole owner of the property and can dispose it of as you desire.

Sankaranarayanan Online (Expert)
14 June 2021

yes you can with the support of GPA to any one. without verify the clause of the GPS we can not easily put ideas on it. Based on the trust and affection seems he added your name being a owner then what is the reason. Is any disputes between you and your brother ?

KartikOnline (Querist)
14 June 2021

Even though my brother paid the full price in auction, he added my name in Cert of Sale. Certificate of sale has my brother name and my. His declaration says I’m the sole owner. And he gave me an irrevocable POA, for which I didn’t pay him anything. I don’t know if I can claim to be the sole owner and sell / transfer property to third person. Don’t know if he can claim joint ownership. Would I get into trouble if I sell it and keep the monies from sale, or do I have to keep him fifty percent share?

KartikOnline (Querist)
14 June 2021

At present our relationship is good, but he’s under financial stress. So don’t know if he can revoke the POA and cause any legal action if I was to sell to third person.

Sankaranarayanan Online (Expert)
14 June 2021

Is he agrees your further course of action

J K AgrawalOnline (Expert)
14 June 2021

It looks that you are in more financial crisis then him as you did not offer his property back to him nor even having courage to offer half only. You seems neither legally sound nor morally then on which strength you want to win?

KartikOnline (Querist)
14 June 2021

My brothers declaration says, I’m sole owner and he give me POA. My friend tell me I can sell to third person and keep money. I don’t know property law, so I ask. Do I still need to give my brother half share? Would I get in trouble if I sell and not give him half of monies. Worst, can he ask for all of the monies from sale to third person?

Sankaranarayanan Online (Expert)
14 June 2021

If he ask his money back are you willing to give back ?

KartikOnline (Querist)
14 June 2021

If he ask for half I would give. But my friend tell me that his declaration make me the full owner. Is that not correct?

Sankaranarayanan Online (Expert)
14 June 2021

Still you are ready to give his share if he asked .? He has given only power it's not mean he has given his share to you .

KartikOnline (Querist)
14 June 2021

I don’t have problem giving him half share. But his declaration say I’m the sole owner. So can he claim fifty percent? Should I or can I fight him in court because of his declaration.

KartikOnline (Querist)
14 June 2021

One friend tell me I’m the sole owner because of declaration, POA, and municipal documents, and I can sell to third person and keep all the monies. Another tell me that’s not correct, bse I don’t pay any consideration for my share or the POA, don’t have agreement with my brother to become owner. I’m confused.

P. Venu Online (Expert)
14 June 2021

Admittedly, you are the co-owner of the property. Does the certificate of sale mentions of the shares belonging to each brother?

Provisions of the Prohibition of Benami Property Transactions Act prevents your brother from claiming your share in the property.

Certainly, you can transfer your share in the property. On the strength of the PoA, you can transfer your brother's share as well, so long as such sale does not amount to a fraudulent transfer in terms of the provisions of Section 53 of the transfer of Property Act. Such fraudulent transfer is voidable at the option of the creditors.

T. Kalaiselvan, Advocate Online (Expert)
14 June 2021

You have not answered so far that whether the POA deed was executed by a registered deed or by an unregistered instrument.
The unregistered power of attorney may not be a valid document to permit you to sell or transfer the property i.e., his share in the property by a registered deed, either by sale or any other manner.
Whether he fully funded for the purchase of proeprty or not since you are the joint owner as per the registered sale deed, your share in the property will remain undisturbed.
Now his share of property is to be disposed, but his unregistered declaration deed as well as an unregistered POA deed will not allow you to transfer his share of property in any manner to anyone, hence you first confirm this issue and revert with the proper answer instead of repeating your same questions in a different manner.
If you insist on repeating your question then the answers will mislead you and you will land in more trouble.\


KartikOnline (Querist)
15 June 2021

Sorry, what is registered deed and registered declaration?

Sankaranarayanan Online (Expert)
15 June 2021

The power given by your brother is registered with the local Sub Registrar office?

Dr J C VashistaOnline (Expert)
15 June 2021

You have adequately been obliged by experts, proceed accordingly and close this thread.

KartikOnline (Querist)
15 June 2021

No, he did not register them. Can I get them registered now? Do I need my brothers approval to have them registered?

P. Venu Online (Expert)
16 June 2021

It is your brother who has to register the PoA.



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