Can a poa holder transfer or sell the property
Querist :
Anonymous
(Querist) 01 May 2020
This query is : Resolved
I have a grandfather property in bareilly which he through registered will gave it to his sons mentioning their names & distributing it among them..some area of the land was declared common to all sons..He specially said that my sons cant sell the property during the time they are alive but after their death my grandsons will be the absolute owners of the property & can sell his share on the condition that if anyone wants to sell his share he will have to give 1st preference to his other cousions brothers.The middle cousions filed a civil suit in 1998 praying in the court that the elder & the younger is trying to sell it to local land mafias & they should be stopped..Court granted the stay & its being extended on every date..till now In 2006 under pressure by local mafias I gave a registered POA from uttranchal which i cancelled it in june 2019. they also took a notarized agreement to sale also mentioning that if i do not get the cases fnished & get the registry done with a period of one year they will get it from the court ..
My questions are 1.) As the supreme court order regarding the POA came into effect in 2011..but could he get the property transfer in his own name between the year 2006 to 2010..? can he sell it to a third party.when the case is pending & there is a stay order in effect since 1998? 2) can he get the registry done on the basis of special performance act through court on that notarized agreement to sale ? Kindly brief me up in this matter i will be obliged
Dr J C Vashista
(Expert) 01 May 2020
You have mixed up few correlated facts regarding i) stay continuing since 1998 till date; ii) PoA executed by you authorising "someone" to sell your share, which was in vogue till 2019.. iii) The attorney executed a notarized conditional "agreement to sell" for registration of sale documents within one year if the case is disposed.
Now your question starts from the statement, inter alia, that, "as per Supreme Court order the PoA came in to effect in 2011.....but could not get property transferred in his own name between the year 2006 to 2010 ?..." What do you intend to convey is not clear and vague. Please clarify.
Querist :
Anonymous
(Querist) 01 May 2020
I gave a registered POWER OF ATTORNEY TO MR A. to sell 1/3 of my share in the said disputed property & cancelled the POA in Kiccha Uttranchal where it was made in 22nd may 2019..from 1998 to till date there is a continuos stay order by the court of the civil judge senior division. My question was ..from the year 2006 to the year 2011 when the supreme court held that POA is not a valid document to transfer the property..could he sell that property to himself or to a third party on the basis of POA which i gave to him..?
2, My second question is A notarized agreement to sale ( not a sale deed) in which the amount was mentioned and a period of one year given ..that in case there is any dispute in the said property then in one year i have to get it cleared and get the sale deed excuted in the name of MR A..which I didnt do till date ..so I want to know if in the absence and without my knowledge he could have filed a suit for special performance act to get the sale deed registered through court through that notarized agreement to sale ? was it possible for him to do it ..even when there was a stay order which is still in force
P. Venu
(Expert) 01 May 2020
Admittedly, you had willfully done wrong thing and expect the Law the help you without any effort on your part. This is a strange situation for which no meaningful suggestion is possible.
Rajendra K Goyal
(Expert) 01 May 2020
You said:
1.) As the supreme court order regarding the POA came into effect in 2011..but could he get the property transfer in his own name between the year 2006 to 2010..?
Reply:
Nothing can be advised based on sketchy facts / academic question. Show each piece of paper to some expert lawyer and discuss in detail.
You said:
can he sell it to a third party.when the case is pending & there is a stay order in effect since 1998?
Reply:
Language of stay / POA / sale deed need to be referred. Broadly a property cannot be sold till stay from court exist on it.
Rajendra K Goyal
(Expert) 01 May 2020
You said:
2) can he get the registry done on the basis of special performance act through court on that notarized agreement to sale ?
Reply:
It is difficult, there exist a stay against sale of the property.
Rajendra K Goyal
(Expert) 01 May 2020
You said:
from the year 2006 to the year 2011 when the supreme court held that POA is not a valid document to transfer the property..could he sell that property to himself or to a third party on the basis of POA which i gave to him..?
Reply:
Full decision of Apex Court needs to be referred to find to which extent ruling is applicable in this case. Discuss with your lawyer.
Rajendra K Goyal
(Expert) 01 May 2020
You said:
2, My second question is A notarized agreement to sale ( not a sale deed) in which the amount was mentioned and a period of one year given ..that in case there is any dispute in the said property then in one year i have to get it cleared and get the sale deed excuted in the name of MR A..which I didnt do till date
Reply:
You knew that:
There is a stay on the sale of the property, which may not be removed in near future, you intentionally entered into agreement. (Must have taken token money / bayana)
You tried to sell a property under dispute / in which you were not having clear marketable title.
Your action was fraudulent and cheating, a criminal act done knowingly / intentionally.
Rajendra K Goyal
(Expert) 01 May 2020
You said:
..so I want to know if in the absence and without my knowledge he could have filed a suit for special performance act to get the sale deed registered through court through that notarized agreement to sale ? was it possible for him to do it ..even when there was a stay order which is still in force
Reply:
If so, sale deed can be challenged. Discuss with your lawyer in detail in such case.
Raj Kumar Makkad
(Expert) 01 May 2020
1. As you have already got cancelled the GPA hence there is no question of use of such cancelled GPA for the registration of the sale deed either in his own name or the name of any third person. First of all, GPA cannot be used for the registration of own name and second-if GPA stands cancelled to the knowledge of its holder then the same cannot be used. It is persumed that you might have informed the holder of GPA that the same stands cancelled and its cancellation shall also have been widely circulated in the newspapers so that the person delaing with the holder o such GPA holder shall be responsible if he/she deals with such person on the basis of the mentioned GPA.
Raj Kumar Makkad
(Expert) 01 May 2020
2. As the stay order is already in existence therefore the question of getting the registration of sale-deed by way of specific performance act do not arise, without having any notice to you. The plaintiff in that eventuality not only is required to give a notice to you qua the exact date of the registration of the sale-deed requiring your presence there but on your failure to appear there, a subsequent notice is also required and after filing of the said case, the court is also required to serve you notice of the case requiring your presence in the case.
Raj Kumar Makkad
(Expert) 01 May 2020
On the basis of your subsequent facts which by and large confirm to the earlier facts, my parawise reply is under:
1. It is correct that Hon'ble Supreme Court of India in the case Suraj Lamp Company versus State of Haryana has clearly held that sale-deed shall not be registered on the basis of GPA wherein the tendancy is to save stamp duty but the said judgment is not applicable in your case because you have already cancelled your GPA empowering one of the mafia/muscleman to sale your 1/3 share in the joint property. GPA gets illegal soon on the day of its cancelllation, however, its information should be legally given to its holder.
Raj Kumar Makkad
(Expert) 01 May 2020
2. No. Mr. A cannot file the civil suit first providing you an opportunity to come present before the registrar for the registration of the sale-deed. If you fail to appear before the registrar on the fixed for the purpose of the registration, only then he can file a civil suit and the civil court shall issue a notice to you to appear and put your defence to the said suit. You shall get the due information of the said suit legally.
Raj Kumar Makkad
(Expert) 01 May 2020
One additional advice which you have not sought:
As the property is joint and as per the conditon contained in the settlement deed of your grand-father, the said property cannot be sold to any outsider party without first granting an opportunity to your cousins to purchase the proposed part of said joint property so it shall be better to make your cousins to file a civil suit filed against you and the proposed vendee seeking setting aside the said agreement to sale in the light of the terms of the settlement-deed of your grand-father, howeever, the issue of the money/sale consideration as mentioned in the agreement to sale shall definitely arise which shall be a big tool in the hands of Mr. A.
If you have obtained the amount of the sale-consideration as mentioned in the notarized agreement to sale, shall have to be returned to Mr. A but you have been pressurized under threat or coercion, it shall be good to go to police and lodge FIR against Mr. A and his accompalices.
KISHAN DUTT KALASKAR
(Expert) 01 May 2020
Dear Sir,
After reading answers of experts Mr. Dr J C Vashista, Rajendra K Goyal, Raj Kumar Makkad and P. Venu there is nothing left to clarify. You might have understood fully. I am thankful to all the experts and also gained much knowledge.
Raj Kumar Makkad
(Expert) 02 May 2020
I pay my full regards towards Sr. Expert Shri Kishan Dutt ji.
Rajendra K Goyal
(Expert) 02 May 2020
Thanks and regards to expert Kishan Dutt Retd. Judge for the comments.
Rajendra K Goyal
(Expert) 02 May 2020
Author need to ensure the POA has been duly cancelled.
The fact has been conveyed to POA holder through Registered letter and published in news paper.
Rajendra K Goyal
(Expert) 02 May 2020
The fact should be conveyed to agreement holder that the conditions regarding removal of stay can not be fulfilled, court did not lift the stay, the agreement is cancelled. Return the token money taken if any.
In some states registration of sale agreement is necessary, please confirm the situation in your state as said agreement is notarised.
Querist :
Anonymous
(Querist) 02 May 2020
THank you for the valuable replies from the learned lawyers I really appreciate it ...I already spoke personally to Mr Kishan dutt personally and was also advised accordingly...The stay also is against Mr A ..by my middle cousions brothers restraining him to sell anything till date...
Rajendra K Goyal
(Expert) 02 May 2020
You are welcome, may revert for supplementary information.
Raj Kumar Makkad
(Expert) 02 May 2020
If your cusins have filed civil suit against Mr. A, the question doesn't arise to get the registered sale-deed from your side violating the terms of the conditional settlement made by your grandfather.
Raj Kumar Makkad
(Expert) 02 May 2020
You have not mentioned the mode of the cancellation of POA granted by you in favour of Mr. A as the same is a technical issue so it is presumed that you might have cancelled the same under the guidance of your lawyer.
Rajendra K Goyal
(Expert) 03 May 2020
The details of case filed by your cousin if any, need to be discussed with local lawyer. It may not affect your interest till you are a party in the suit.
Rajendra K Goyal
(Expert) 03 May 2020
You have not mentioned whether you have taken any monetary consideration while executing the sale agreement and if have taken, have you returned the same while sending notice for cancellation.
How you cancelled the agreement for sale?
What were the terms of cancellation of this sale agreement, mentioned in the said agreement? Whether you have followed the same while cancelling?
Querist :
Anonymous
(Querist) 03 May 2020
The registered POA was cancelled at the same city where it was made at Kiccha uttranchal ..the property is situated at bareilly UP..I have meeting with my lawyer tomorrow and will tell them to give a notice to Mr A informing him that the POA IS CANCELLED..as i have still not informed so till now there is no dispute ..but later it will surely arise ..he may file a fraud case against me so I need to take a anticipetary bail if he files an FIR..
Raj Kumar Makkad
(Expert) 03 May 2020
Though it would have been good to immediately inform Mr. A about the cancellation of POA so that he may not use the said POA thereafter and every act done or ommitted by him on the basis of the said POA after its cancellation might have been got declared as illegal. If he has taken any action even after cancellation of GPA by him, you cannot undone it legally.
BUT if you intimate Mr. A now, he cannot file any FIR against you on that basis as cancellation of POA is your legal right. If irrevocable POA had been given even then on its cancellation, only civil remdy may accrue but not criminal hence you need not worry for police case or seeking anticipatory bail.
There is no issue of a criminal action against you in the light of given facts.
Rajendra K Goyal
(Expert) 04 May 2020
Surprised to know that the information regarding cancellation of POA has not been conveyed to the holder till date. It should have been conveyed on the day of cancellation.
For entering any dealing / transaction / agreement / contract on the basis of POA, one must ensure that the POA was enforceable on the date of dealing / transaction / agreement / contract. However, it is your responsibility also to duly inform the POA holder regarding cancellation of POA as and when it is cancelled.
Rajendra K Goyal
(Expert) 04 May 2020
Cancellation of POA and any claim against such action is civil action, criminal procedure is not involved / applicable unless the same is done with intension to defraud / cheat other party knowingly with criminal intention.
In case any FIR is lodged, accused has the right to try anticipatory bail before arrest.
Raj Kumar Makkad
(Expert) 04 May 2020
No opinion is expected on the basis of assumptions and presumptions to save the innocent querist who are neither lw graduates nor possess sufficient legal knowledge.
Raj Kumar Makkad
(Expert) 04 May 2020
The author is advised to post the opinion of his lawyer, to whom, the author is going to have a meeting on today so that the same may be got evaluated in the light of the facts and law on the subject.
Rajendra K Goyal
(Expert) 04 May 2020
The author may share the opinion of his lawyer, appropriate advice can be given in case of need.
