Gift Deed
Rathin Ghosh
(Querist) 11 July 2015
This query is : Resolved
Can a person transfer a plot of land in his own name vide a Gift Deed? He was the Attorney in a Power of Attorney and he executed a Gift Deed in his favour. He is the Donor and he is the Donee.
Guest
(Expert) 11 July 2015
YES Please.In this case the Buyer and Seller would be the Same.Instead of Sale here it will be Gift.If it is Gift the Power of attorney statements should allow him for all such Transactions.
Guest
(Expert) 11 July 2015
Dear Author, Legally Only Yes Please. Dear Author,You had Stated he had already executed it and Obviously it Confirms Legally it could be Done.The Fact is YES it is and there could be no wrong answers .
Rathin Ghosh
(Querist) 11 July 2015
Respected Gentlemen, I am still confused as it did not still solve my query. As someone told yes while someone disagrees. A person who is the Power of Attorney holder transfers land in his own name vide a Gift Deed. I had given a family member a POA for sell gift and others. But he misused it and gifted the land to himself. The Donor and the Donee is the same person.
Guest
(Expert) 11 July 2015
The Power given to him Legally entitles him to do so.
J K Agrawal
(Expert) 11 July 2015
Gift is transfer intra vivos. it means there should be at least two persons. A single person can have two legal personalities and capacities. He can transfer the property to himself from one personality to another personality. So there is no bar and one can transfer himself if there are two different entities in the same person.
The transfer in your case is valid if your power of attorney gives power to transfer to 'any body' and does not prohibit him to transfer to himself.
prabhakar singh
(Expert) 11 July 2015
Delhi High Court
Shri Ramesh Chand vs Suresh Chand & Anr. on 9 April, 2012
Author: Valmiki J. Mehta
"Scope of Power of Attorney
13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan v. Basant Nehata MANU/SC/0547/2005 : 2005 (12) SCC 77 this Court held:
"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favor of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof.
""HE CAN NOT USE THE power of attorney FOR HIS OWN BENEFIT. HE ACTS IN A FIDUCIARY CAPACITY. ANY ACT OF INFIDELITY or BREACH OF TRUST IS A MATTER BETWEEN THE DONOR AND THE DONEE ."
An attorney holder may, however, execute a deed of conveyance in the exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
AS IT WAS NOT A POA FOR CONSIDERATION, BREACH OF TRUST HAS TAKEN PLACE AND SUIT FOR CANCELLATION OF GIFT DOES LIE IN MY VIEW.
P. Venu
(Expert) 11 July 2015
I concur with expert Shri Prabhakar Singh. The principal can challenge the action of the power agent in the Court of Law.
Rathin Ghosh
(Querist) 12 July 2015
Prabhkar Singh Sir I am very grateful for your expert advice. I will surely give it a thought about moving to Court now. Thank you once again.
Guest
(Expert) 12 July 2015
You had Permitted him to do it and now what would be the Claim. If any other Transaction had happened after the Execution of Gift Deed even Like mortgage etc your case will be Very Weak.Apply EC.You should have analysed and judged the person before executing the Power.
Dr J C Vashista
(Expert) 12 July 2015
I fully agree and appreciate the explanation and expert advise of Sh. Parbhakar Singh.
In the instant case PAO cannot function as donor to donate the property to himself in the capacity of donee.
Guest
(Expert) 12 July 2015
Dear Author in your Query you had already stated it had been Legally already done Please.Ignorance of Law Not an Excuse.
c.p.s. ramachary
(Expert) 13 July 2015
Transfer of immovable property inter vivos (two different persons) alone is permissible according to law. Power of Attorney cannot support or make an unlaful transfer like the present one into a lawful deed of gift. Mr. Prabhakar Singh rendered valuable and correct opinion in this regard. Going to Court of law in the presnt case would be nothing but wasting money and money value of time.
Rathin Ghosh
(Querist) 13 July 2015
So what should I do finally? Approach the Courts or not.
Guest
(Expert) 13 July 2015
I would suggest meet a Local Good Advocate and take his advise and discuss the Possiblities of filing a Police Complaint for Criminal Breach of Trust and to file a case in relevant court and Obtain a Stay not to have any further Transactions until the Case is Over.First apply for EC.If the Original documents are not with you I am sorry to say Your Case would be more Weak.Discuss with your Advocate.So far you had not stated the real reason for giving the Power.
Biswanath Roy
(Expert) 15 July 2015
In my views every person competent to contract and entitled to transferable property, or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances to the extent and in the manner allowed and prescribed by any law for the time being in force.
'Transfer of property' means an act by which a living person conveys property, in present or in future, to one or more other living persons, OR TO HIMSELF and one or more other living persons and to "Transfer Property" is to perform such act.
