Evidence Act
R.VENKATESAN
(Querist) 06 August 2008
This query is : Resolved
One Mr. X is the absolute owner of an immovable property. X avails a loan for which the creditor obtains a registered sale agreement in favour of one Y and a General Power of Attorney (registered) in his favour i.e creditor.The said registered agreement and GPA were executed during Febraury,2000 on the same day.
Mr.X executes an unregistered Will bequeathin the said property in favour of his wife Z during April,2000. Since August 2000, X is missing.
A police complaint was lodged by Z (wife of X alongwith her son) and also paper publication (public notice regarding missing was also given in local dailies) during Early 2001. The Police Authorities have issued a No traceable Certificate during June2008.
In the meanwhile, the Agreement holder Y is dead during the year 2004. The creditor who is holding the GPA executes a registered sale deed in favour of the legal representatives of Y during May,2008. The value of the property as on today is multifold and the amount mentioned in the sale agreement during 2000 is rs. 3,00,000/-.
Now Z wants to safeguard her property. The legal question is that whether there can be a presumption under Sections 107 and 108 of the Evidence Act that there is a Civil Death of X during the year 2007. consequently the GPA is invalid under law and thus the sale is not valid or whether the civil death can be considered only after the fact that the court declares the civil death and thereby there is a valid sale basing on the GPA.
The other aspect is that whether the GPA is coupled with interest as per the provisions of Transfer of property Act.
Whether the unregistered instrument requires probate?
Request for solution with judgements of High Courts and Supreme courts on this point.
Srinivas.B.S.S.T
(Expert) 06 August 2008
If the GPA connotes that the possession of the land is delivered then you have to appraoch a civil court for its cancellation in the circumstances described by you. Now coming to the point of unregistered will if any one objects the validity you must obtain a probate
