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Gift deee

(Querist) 08 November 2021 This query is : Resolved 
My father and two brothers have equal share in property now one of His brother wan to gift his share to my father but the property is in rajasthan alwar and he is not in position to travel so wat to do ? Some one suggest u write gift deed in mumbai take his power and register it .kindly suggest best possible way
kavksatyanarayana (Expert) 08 November 2021
As per your stated facts, the property is not divided by the three (3) brothers. Hence the brother who intends to gift his share shall relinquish/release his rights to his other brothers. For the execution of a relinquishment/release deed, he can authorise one reliable person through a registered General Power of Attorney.
sandesh (Querist) 08 November 2021
Actually the property is in the name of all three brothers and humko advice diya l aap uncle se father k name par gift deed likhva lo
SHIRISH PAWAR, 7738990900 (Expert) 09 November 2021

Your uncle can execute the power of attorney and thereafter the property can be transferred in the name of your father by the power of attorney holder of your uncle.
sandesh (Querist) 09 November 2021
Uncle has executed the power to my father by power of attorney.can my father transfer the property to his own name
Dr J C Vashista (Expert) 11 November 2021
The donor (your uncle) has to be physically present before the Sub-Registrar for execution and registration of Gift Deed, which cannot be done by PoA.
Adv K Rajasekharan (Expert) 11 November 2021
By a registered Special Power of Attorney, issued by your uncle to your father, in regard to your uncle’s share of property, your father can sign the gift deed and register it in the Sub- Registrar office where the property situates.

That means, your father can sign on behalf of your uncle even though the gift is being received by your father.
Even if your father signs the Donor will be your uncle and the donee will be your father. Your father can sign on behalf of both.

P. Venu (Expert) 11 November 2021
Section 123 of the Transfer of Property Act provides that the gift could be made by the donor or the person acting on his behalf -

"Section 123 of Transfer of Property Act 1882 : "Transfer how effected"
123. For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses."

Section 33 of the Registration Act lays down the requirements of PoA recognisable for the purpose of registration of the deed-
""33. Power-of-attorney recognizable for purposes of section 32. - (1) For the purposes of section 32, the following powers-of-attorney shall alone be recognised, namely:-
(a) If the principal at the time of executing the power- of-attorney resides in any part of (India) in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-registrar within whose district of sub-district the principal resides;
(b) If the principal at the time aforesaid (resides in any part of India in which this Act is not in force), a power-of- attorney executed before and authenticated by any Magistrate;
(c) If the principal at the time aforesaid does not resides in (India), a power-of-attorney executed before and authenticated by a Notary Public, or any Court Judge, Magistrate, (Indian) Consul or Vice-Consul, or representative of the Central Government. Provided that the following persons shall not be required to attend at any registration-office or court for the purposes of executing any such power-of-attorney as is mentioned in clause (a) (b) of this section, namely:-
(i) persons who by reason of bodily infirmity are unable without risk or serous inconvenience so to attend;
(ii) persons who are in jail under civil or criminal process; and
(iii) persons exempt by law from personal appearance in Court.
Explanation.- In this sub-section "India" mean India, as defined in clause 28 of section 3 of the General Clauses Act, 1897 (10 of 1897).
(2) In the case of every such person the Registrar of Sub-registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may atleast the same without requiring his personal attendance at the office or Court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him or issue a commission for his examination.
(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the fact of it to have been executed before and authenticated by the person or court hereinbefore mentioned in that behalf."

Thus the Gift deed could be executed by the PoA subject to the provisions as above. There is nothing in the law that debars the PoA holder for effecting the gift in his favour.
Dr J C Vashista (Expert) 12 November 2021
Thank you Mr. K Rajsekharan and Mr. P Venu for correcting me, a PoA may get the Gift Deed registered.

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