Upgrad LLM

oral hiba using power of attorney


 

Respected Sir,
 
It is with lots of hope that I am writing this mail on behalf of my ailing mother .  Would request you to please help us out by giving your valuable opinion.
 
My mother are one brother and one sister (i.e my mother). She had given complete power of attorney rights to her brother with respect to a particular property which she inherited from her father(the other inheritor being the brother). 
 
The brother by using the power of attorney had done oral hiba of my mothers share of the property to his own son and daughter.
 
Is  this valid? Can on the basis of power of attorney the brother do oral hiba of my mothers share of the property?
 
Would request you to please respond to my mail. My mother is extremely distressed on this issue. 
 
Yours sincerely
 
Abu Neyaz.
 
 
Reply   
 
Jadhav & Associates

Any transfer of immovable property in India has to be by a written stamped and registered document. The practice of HIBA was used earlier and can be taken as evidence by courts only in exceptional circumstances.

Please check whether your mother has signed a relinquishment deed and stamped and registered it or not. If she has not done this then she can still claim ownership of the property as it would not yet have been transferred. Her brother cannot use oral HIBA to transfer the property ih his children's name.

If she had signed a relinquishment deed and it was properly stamped and registered, then she cannot claim it back.

S Jadhav


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Respected Sir,

My mother has not given any relinquishment deed.

However she had given a power of attorney to this brother. Now this brother of hers as per Mohammedan law has now done oral hiba and gifted away  my mothers share of the property (by virtue of the poa which my mother has given to this brother) to his son and daughter.

My question is can he use poa to effect oral hiba.

 

Thanks you so much in advance

 

Abu Neyaz

 
Reply   
 
Advisory/Advocacy

This is not a valid gift....It is necessary for the transferor to be the owner of the property, without which a gift of HIBA is not valid.....

 

 

Thnanx


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Respected Chetan Sir,

Can you give me any source/case law/any other thing where your above mentioned contention can be found. It will be of immense help to us.

We are in real problem and your support will be of immense help to us.

 

Regards

Abu Neyaz.

 
Reply   
 
Advisory/Advocacy

http://hanumant.com/Hiba.html

 

 

This might help......explains about HIBA.....

 
Reply   
 
Jadhav & Associates

A power of attorney holder is not the owner of the property but has the power to merely represent and do certain acts on behalf of the person who is the owner and who has given this power to the PoA holder. The PoA can be revoked (even if it is irrevocable). Since the PoA holder is not the owner, he cannot give away the porperty as a gift to anyone whether through HIBA or otherwise.

S Jadhav

 
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