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AMIT AGARWAL   19 October 2021

Sale of property by power of attroney

Dear Sir/Madam , I am having below situation and wanted to know the objections I will face if I am going to purchase this property.

1) Property( which is a house) is registered in the name of Sita. Sita's husband is no more.

2) Sita has 2 sons( Elder married 2 twice, Younger unmarried) & 4 daughters( All married) out of which elder son and 1 daughter are no more. So Sita is having at present 1 son and 3 daughters.

3) Sita has given Power of Attorney(notary) of the property to one of her grand son .

4) Sita's daughter in law has left her after her son died ( more than 4 years passed) and not living with her or in the house/city any more. But daughter in law's nature is very rude and greedy.

5) My father is one of the brothers of Sita's husband. And I am going to buy this property . Given above situation what are the objections and challenges I am going to face .

Note: Sita's family is ready to sell and agreed to the price as well.



 14 Replies

Santhosh R (student )     19 October 2021

1. Since Sita is the registered title holder of the property she has absolute ownership to sell it to anyone. No one has any right to object to it in her life time

2. Power of attorney to grandson is legally valid. It should be registered. He has all power to legally sell it to anyone for consideration. All bona-fide transfer of property through the POA is perse legally valid and you will get a good title.

3. While executing the sale deed also include Sita as a party to sale deed if feasible in addition to POA holder, that will put rest to any of problems

 

2 Like

Siddharth Dash   19 October 2021

what if sita had died prior to power of attorney execution of deed with me

Santhosh R (student )     19 October 2021

He has no power to transfer.

in general, the powers of the POA holder ends by the death of the principal who gave such powers.

taheersyed hameed   19 October 2021

very good information sir.

Ahtashamul Hassan Narejo   19 October 2021

if you will purchase from sita then there should be no objections to face for you, after life time of sita whenever you will face any concequences than show them seel deed

Raghav Arora   19 October 2021

Great info by Mr. Santhosh! :)

Tousif Shaikh   19 October 2021

Buying directly from will be much better, whereas Power of Attorney must include (1) Right to sell property with proper Demarcation (Plot no., Title holder name, Settlement Reciept no. (if any), (2) Correct name of Person making Power of Attorney and person to whom it is made, rest all can be copy paste as it is...........with all these cleared u can buy from Power of Attorney holder there will be no problem...... remember carefully PoA must include selling rights.......... Hope I gave u correct info.
1 Like

Mohansinh Rajput   19 October 2021

1.Sita is absolute owner .

2.Grand son's power of attorney is only notarized and not registered. He cannot sell the said property as per section 17 of Registration Act the power of attorney needs to be registered.

3.So if you purchase from Sita you will get clear right title interest in the said property , if you purchase from her grand son then it may be illegal

AMIT AGARWAL   19 October 2021

To add up on above query  , can the immediate neighbour put any kind of objection if Sita is selling her property to family members ( to me) ? 

SHIRISH PAWAR, 7738990900 (Advocate)     19 October 2021

Hello,

No, neighbour cannot object for selling house by sita. The property belongs to Sita and she has every right to sale /transfer the property as per her wish.

Kishor Mehta (CEO)     20 October 2021

Sale of immovable property by a POA holder is not valid. Please refer the judgment of Hon. Supreme Court of India in the matter.

Santhosh R (student )     20 October 2021

Sir,

I beg to differ. The Hon'ble Supreme Court has held that transfer of property by POA Itself is legally invalid. Property sales were happening through POA to avoid taxes and registration fees. Transfer of property cannot take place through POA instead of proper conveyance/ sale deed and registration of the same.

However, when the registered POA holder being near relative of such principal executes a sale deed for consideration and gets it duly registered as provided in law, then such bona-fide transfers are legally valid.

Will be happy to peruse the judgement referred if could please cite

 

TJS Chawla   20 October 2021

Sale of property on GPA is not valid after the judgement delivered by the Hon'ble Supreme court of India in the matter of Suraj Lamp case. Any property having value of more than Rs 100/- needs to be got registered as per Registration Act otherwise it  has no contractual value except collateral value which is invalid iunder Law of Evidence. In addition as some one has already pointed out that after the death of Executant the GPA becomes infructuous and has no legal value. Read High court of Rajasthan judgement in the matter of Pralad vs Laddo devi on life of power of Attorney.

Advocate TJS Chawla

First you read

Santhosh R (student )     21 October 2021

Thank you sir,

There is no doubt that Transfer of property can only be through the conveyance (sale deed) deed, duly stamped and registered. There is no other instrument of transfer. GPA cannot be an instrument of transfer.

But the point is, whether a bonafide, registered GPA holder is competent to transfer the title on behalf of the principal I.e. whether he can execute the sale deed/ conveyance and if the same is duly registered, is it sufficient for buyer to get a title?

In the  suraj Lamp case referred by you (Suraj Lamp and Industries Pvt. Ltd. through Director v. State of Haryana & Anr. (2012) 1 SCC 656) in para 19,  the honourable SC before parting has clarified as follows

We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance.

Itvis also clarified in the preceding paragraphs that  GPA if used as an instrument of transfer cannot transfer the title by itself, but it serves as an agreement of sale or for purpose of part performance (53A of TP act). Further, basis such GPA instrument, the transferee can get a proper conveyance deed executed, with proper stamp duty and registration to get the title perfected.

The issue was not to invalidate the competency of genuine GPA holders authority in executing proper conveyance and transfer of title, but it was to curb non payment of stamp duties, registration fees, black moneys, non payment of capital gains and curb undocumented/unverifiable transfers to multiple parties by same owner by using GPA as an instrument of transfer.

So i submit that GPA as an instrument of transfer perse is invalid to transfer a title but bonafide GPA holder can by executing proper conveyance transfer a good title to the buyer


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