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Sandeep K Singh (Business)     23 May 2011

Notarized POA or IS it illegal POA

Sir/Madam,

Need your valuable guidance in below matter.

Interested in buying one house at Varanasi which was given by unregistered will to Daughter in Law by Father in law and he was the owner of the property and original sale deed was executed on his name and then daughter in law sold to my seller along with his Mother in law and  two Brother in Laws as confirming party in sale deed but eldest brother in law sign for himself and as POA holder of his mother and brother. That POA is notarized and probate of will was not done as a general practice in UP. Current owner name is mutated in Gov records.

Is that sale transaction ok with that Notarized POA or it is illegal POA. Should I but that property?

Pl reply.

thanks.

rgds



Learning

 11 Replies

Akshay Saraswat (Assistant Manager - Legal)     23 May 2011

The Power of Attorney has already been accepted by the Sub-registrar so it is ok as far as stamp and regsitrartion laws are concerned, moreover a name transfer has been issued in favour of the present buyer. Title of the property is clear, and i believe you should go ahead with your deal. 

Only problem that can arise is, if, there are any legal heirs of the father-in-law, you can probably look for ration card of father in law, however name transfer in favour of your seller is proof enough that all legal heirs have given up their claim on the property.

1 Like

Sandeep K Singh (Business)     24 May 2011

Hi Akshay,

Thanks for your reply. It has cleared my doubt. I want your further exploration on following points.

1. Elder Brother has signed as confirming party for himself and for his mother and younger brother and both had given him POA which is notarized not registered.

Can this is legal POA ?

rgds

Sandeep K Singh

 

prabhakar singh (advocate)     26 May 2011

ONLY THOSE WILLS WHEREIN AN EXECUTLOR IS APPOINTED REQUIRE PROBATE.

IF PoA AS WELL AS THE TRIO(mother in law,and her two sons ie brother in laws of the vendor,the seller) have singed the sale deed only as confirmiming the fact that TITLE OF HOUSE DOES VEST IN VENDOR AND NOT IN THEM,THEN EVEN NOTARIZED PoA IS OK.

BUT IN CASE THE PoA AND ITS SIGNATORIES CLAIM THEMSELVES  TO BE OWNER IN THE SALE DEED OF THE HOUSE ALONG WITH THE VENDOR IN WHOSE FAVOUR WILL IS, CERTAINLY PoA REQUIRES REGISTRATION, NO MATTER REGISTRAR ACCEPTEDIT.

HENCE CATCH THE RECITALS OF SALEDEED ITSLF TO MAKE SURE THAT HOUSE HAS BEEN SOLD BY THE LADY SOURCING HER TITLE FROM WILL ALONE AND PoA AS WLL AS ITS  EXECUTORS HAVE SIGNED ONLY CONFIRMING HER EXCLOSIVE TITLE.

prabhakar singh (advocate)     26 May 2011

ONLY THOSE WILLS WHEREIN AN EXECUTLOR IS APPOINTED REQUIRE PROBATE.

IF PoA AS WELL AS THE TRIO(mother in law,and her two sons ie brother in laws of the vendor,the seller) have singed the sale deed only as confirmiming the fact that TITLE OF HOUSE DOES VEST IN VENDOR AND NOT IN THEM,THEN EVEN NOTARIZED PoA IS OK.

BUT IN CASE THE PoA AND ITS SIGNATORIES CLAIM THEMSELVES  TO BE OWNER IN THE SALE DEED OF THE HOUSE ALONG WITH THE VENDOR IN WHOSE FAVOUR WILL IS, CERTAINLY PoA REQUIRES REGISTRATION, NO MATTER REGISTRAR ACCEPTEDIT.

HENCE CATCH THE RECITALS OF SALEDEED ITSLF TO MAKE SURE THAT HOUSE HAS BEEN SOLD BY THE LADY SOURCING HER TITLE FROM WILL ALONE AND PoA AS WLL AS ITS  EXECUTORS HAVE SIGNED ONLY CONFIRMING HER EXCLUSIVE TITLE.

1 Like

Sandeep K Singh (Business)     26 May 2011

Sir,

I am thankful for your valuable suggestions in this matter. One of my local lawyer is saying that all the persons signing the deed as confirming party stands as owners of the property irrespective any conditions.

After reading the deed and will while keeping the points in mind which was raised by you, I have found this.

1. Trio has signed the deed as confirming party without any consideration of sale amount to confirm fact of will and ownership of lady.

2. POA has been also given with statement that she has got the property in will and they are giving the POA for signing as confirming party without sale consideration

3. The said un registered will has following line in last....

I appoint my eldest son Shri Pradeep Kumar ..... to be the executor of this will.

but will was not probated hence request your kind advise on above matter as it involves my savings of life and i am in fix.

thanks

rgds

 

prabhakar singh (advocate)     26 May 2011

AS  IT LINKS WITH PROBATE ,IT WAS POSSIBLE TO GO FOR PROBATE,BUT FAILURE TO DO SO DOES NOT IN VALIDATE WILL ITSELF.

PROBATED WILLS ARE JUDGEMENT IN REM WHICH BINDS ONE AND ALL IN CASE OF FUTURE DISPUTES AS PROBATES ARE AWARDED ONLY AFTER DUE GENERAL NOTICE FROM COURT TO ALL IN GENERAL APART FROM INTERESTED PARTIES.

THE FACTS GIVEN BY YOU SUGGEST THAT EVEN IN PoA THE VALIDITY OF WILL IS ADMITTED AND IT IS THE THAT MAKES HER EXCLUSIVE OWNER SO THERE WAS NO RIGHT TITLE OR INTEREST VESTED IN THE TRIO AND IF THE SAME IS RECITED IN THE SALEDEED TO THE EFFECT THAT ONLY LADY VENDOR IS OWNER OF HOUSE WHO HAS INHERITED IT BY TESTAMENTRY SUCESSION OF WILL OF DECEASED OWNER THEN,AND THEN ONLY I OPINE,NON REGISTRATION OF PoA IS NOT FATAL.

BUT YOU SAY YOUR LOCAL LAWYER HAS  A DIFFERNT OPINION.BUT IN THE LIGHT OF FACTS SUPPLIED SO FAR I DIFFER FROM HIM. STILL THERE IS A FACT I WOULD NOT LIKE TO IGNORE,THAT HE HAS SEEN THE TWO DOCUMENTS BUT I HAVE NOT.

IS IT POSSIBLE FOR YOU TO PLACE THE THREE DOCUMENTS BY ATTACHMENT HERE,IF SO,IT WILL HELP ME TO ARRIVE AT FIRM OPINION.

prabhakar singh (advocate)     26 May 2011

FROM FACTS SO FOR EVOLVED BY YOU it seems to me THAT facts are so that A bought a property by sale deed( u r requested mention the date...)and became owner.

 THE sameA during his life time tastated a will in favour of the wife say W1 of his son(here too u plz mention the date of will)

That A had a wife,say W and two sons say B and C. (make me sure he did not have any other issue male or female as sons or daughters)

Thereafter  A died living behind him his wife W and sons B and C but his house devolved upon her daughter in law W1(being wife of hiseldest son,sayB.)due to will.

Had there not been a will the HOUSE would have devolved upon A's natural heirs,his widow W and sons B and C(as gather from your facts A did not have any other son or daughter,if position is otherwise plz. state clearly)

Any way W1 has sold the house to,say X,by a egistered sale deed(mention the date) and the sale deed has been joined also by B(the eldest son of A, being husband of W1,in whose favor the WILL is) on behalf of his own as well as on behalf his mother W and brother C as an power of attorney which is notorised only and not registered.NOW YOU WANT TO BUY FROM X?

plz. read it care fully to confirm that i have understood the facts correctly. Answer para wise if any correction needed.

Give me all the dates asked.

Then i will explore before you RISK OR NO RISK OR DEGREE OF RISK INVOLVED.

prabhakar singh (advocate)     27 May 2011

SO U HAVE NOT COMEBACK SOFOR. ANY WAY YOUR MATTER HAS BECOME INTERESTING DUE TO PROFESSIONLISM INSTINCT I HAVE,

TO ME THE QUESTION IS NOT THAT PoA IS NOT REGISTERED.BUT WHAT IF IT IS OBTAINED BY SOME ACTIVITY OF IMPERSONATION AND SIGNATURES OF THE WIDOW AND YOUNGEST SON HAS BEEN OBTAINED BY COMMISSION OF SOME FORGERY BY PRADIP KUMAR ,THE ELDEST SON,BEING EXECUTOR APPOINTED IN WILL,AND LATERON,ALSO CLAIMING TO HAXE BEEN APPOINTED PoA OF HER MOTHER AND YOUNGER BROTHER.

UNLESS YOUR PROPOSED VENDOR(SELLER) HAS ENJOYED HIS SALEDEED RIGHTS FOR A PERIOD OF OVER NORETHAN 12 YEARS, A DISPUTE IS STILL OPEN ON WILL ON BEHALF OF PRADEEP'S MOTHER AND HIS YOUNGER BROTHER THAT THE SO CALLED WILL AS WELL AS THE PoA IS RESULT OF FORGERY OR FRAUD,THEN THEY MAY HAVE A GOOD CASE BEFORE COURT, SINCE LAW IS SO THAT WHEN EVER A WILL COMES BEFORE THE COURT,THE PERSON CLAIMING RIGHT THROW WILL MUST REMOVE ALL THE DOUBTS OF CLOUDS CASTED UPON WILL.

AND HERE THERE IS A BIG CLOUD ON WILL THAT WHY THE FATHER OF PRADIP DISCARDED HIS WIFE(pradeeps mother)and his2nd son from INHERITENCE?????????IS THERE ANY THING RECITED IN THE WILL TO EXPLAIN THIS CIRCUMSTANCE????IF NOT,THEN IN CASE A DISPUTE ARISES ON WILL,FROM PRADIPS'MOTHER AND YOUNGER BROTHER THAT WILL IS FALSE, FORGED, FRAUDULENT AND RESULT OF IMPERSONATION BY PRADEEP AND HIS WIFE(THE BENIFICIARY OF WILL)AND THAT IS WHY PROBATE WAS NOT SOUGHT FOR SO THAT MATTER MAY NOT COME TO THEIR KNOWLEDGE AND AFTERWORD EVEN A PoA OF THEM WAS CREATED BY IMPERSONATION THEN SUCH  A CLAIM WILL PREPONDERATE AGAINST ANY DEFENCE UNLESS SETTING OF SUCH A CASE HAS BECOME TIME BARRED.

THE ONLY PLEA YOU CAN PLEAD IS BONAFIDE PURCHASER FOR VALUE AND THIS CAN SUCEED ONLY WHEN YOUR SELLER HAS PEACEFULLY ENJOYED HIS TITLE POSSESSION OVER HOUSE FOR A PERIOD OF MORE THAN 12YEARS FROME THE DATE OF HIS SALE DEED. OTHERWISE ALL BUYER ARE UNDER LEGAL DUTY TO DUELY ENQUIRE TITLE THEY WANT TO BUY AND ANY NEGLIGENCE IN THIS REGARD KEEP THEM BARRED FROM PLEADIN A BONAFIDE PURCHASER.

SO IF THE 12YEARS HAVE PASSED TO THE SALE DEED OF YOUR SELLER THEN DEGREE OF RISK IS A LITTLE LESS OTHERWISE ITS A BIG RISK SINCE WILL IS NOT PROBATED AND STILL OPENED TO CHALLENGE BY PRADEEPS' MOTHER AND HIS YOUNGER BROIHER ON THE GROUND THAT WILL AS WELL AS SO CALLED NOTERISED PoA IS RESULT OF IMPERSONATION AND FRAUD AND FORGERY AND AS SUCH IS NOT BINDING.

NOW I EXPOSED THE RISK FROM ALL CORNERS. BETTER YOU DECIDE WHAT TO DO????????/

 

1 Like

Sandeep K Singh (Business)     27 May 2011

Sir,

Thanks for your views and now I feel I should get it cleared before taking any decisions.

I will attach the scanned copies of POA and WILL shortly as I don’t have scanner at my home.

rgds

 

prabhakar singh (advocate)     28 May 2011

Awaitig for will deed, poa and sale deed.

JT Rajasuriya, Chennai (Advocate 98410 53790)     31 July 2011

Mr.Sandeep, This almost appears as a case as pointed out by Mr.Prabhakar Singh in his last msg of suspicion. It is highly suspicious in wills. So, best thing is to get things carefully scrutinized by an expert lawyer.

           The other method for you would be to find out the mother and other brother and get an affidavit of confirmation from them stating their position vis-a-vis the property.


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