Transfer of property by power of attorney holder for his own benefit
kaushal
(Querist) 09 May 2013
This query is : Resolved
I hold property in Gujarat, India. For the purpose of dispute between my family (8 brother and sister in respect of property distribution)i have given power of attorney (registered) to one of my friend because i am currently living at UK.
In such Power i have written one clause that he can sell or transfer this property and delete my name from revenue record. Due to this clause my friend has sell this property to his own father for consideration. Sell was made on registered stamp value of Rs100. while stamp duty should be Rs10 lack as per state law.
What ever money received is not received by me and 4 brother but other family member in dispute has taken all money. After knowing this transaction we have cancel this power of attorney by advertisement in news paper and in registered office where it is register.
Can I sue him for breach of power and can get back our land.
Is there any caselaw of supremecourt or high court.
adv. rajeev ( rajoo )
(Expert) 09 May 2013
Itz sold to his father, there is nothing wrong, because there is clause in the PA that he can sell or transfer. There is no clause that property should be sold to his blood relatives or relatives.
Advocate M.Bhadra
(Expert) 09 May 2013
The Powers- Of- Attorney Act, 1882
THE POWERS- OF- ATTORNEY ACT, 1882
ACT No. 7 OF 1882 An Act to amend the law relating to Powers- of- Attorney.
[ 24th February, 1882.]
For the purpose of amending the law relating to Powers- of- Attorney; It is hereby enacted as follows:-
INDIA CODE, VOL- IIIA.
1. Short title.- This Act may be called the Powers- of- Attorney Act, 1882 . Local extent. It applies to the whole of India 1[ except the State of Jammu and Kashmir]; Commencement. and it shall come into force on the first day of May, 1882 .
1A. 2[ Definition. In this Act," power- of- attorney" include any instrument empowering a specified person to act for and in the name of the person executing it."
2. Execution under power- of- attorney.- The donee of a power- of- attorney may, if he thinks fit, execute or do any 3[ instrument or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power; and every 3[ instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof. This section applies to powers- of- attorney created by instruments executed either before or after this Act comes into force.
But one judgement by the hon'ble supreme court
The Supreme Court has deprecated the practice of sale of immovable properties through sale agreement/general power of attorney/will transfer, and said such sale of property is not valid.A three-judge Bench of Justices R.V. Raveendran, A.K. Patnaik and H.L. Gokhale said such transactions “are not transfers or sales and such transactions cannot be treated as completed transfers or conveyances.” To avoid such transactions, the Bench asked the States to reduce the stamp duty to encourage registration of sale deeds.
Writing the judgment, Justice Raveendran said: “A SA/GPA/Will does not convey any title nor create any interest in an immovable property. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title.”
The Bench said: “The descriptions of SA/GPA/Will are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. These kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest unaccounted money [black money] and to avoid payment of unearned increases due to development authorities on transfer.”
Deed of conveyance
The Bench pointed out that these were transactions where a purchaser “pays the full price, but instead of getting a deed of conveyance gets a SA/GPA/Will as a mode of transfer, either at the instance of the vendor or at his own instance.”
The Bench said a transfer of immovable property by way of sale could only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property could be transferred.The Bench noted that though certain measures to amend the Registration Act had some effect to plug the loss of revenue by way of evasion of stamp duty, the ill-effects continued. Further, such transaction which was only prevalent in Delhi and the surrounding areas had started spreading to other States also.
“Those with ulterior motives, either to indulge in black money transactions or land mafia, continue to favour such transactions,” the Bench said and added “reducing stamp duty on conveyance to realistic levels will encourage the public to disclose the maximum sale value and have the sale deeds registered.”
Long-run benefits
The Bench said: “Though the reduction of the stamp duty may result in an immediate reduction in the revenue by way of stamp duty, in the long run it will be advantageous for two reasons: parties will be encouraged to execute registered deeds of conveyance/sale deeds without any undervaluation instead of entering into SA/GPA/Will transactions and more and more sale transactions will be done by way of duly registered sale deeds, disclosing the entire sale consideration thereby reducing the generation of black money to a large extent.”
The Bench, however, made it clear that if the documents relating to SA/GPA/Will transactions had been accepted and acted upon by the Delhi Development Authority or other developmental authorities or by the municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.
The Bench also said that this judgment would not affect the validity of sale agreements and powers of attorney executed in genuine transactions viz., a person giving GPA to his spouse, son, daughter, brother, sister or a relative to manage his affairs to execute a deed of conveyance.
kaushal
(Querist) 09 May 2013
Mr Bhadra but this transaction was effected before supreme court judgement sale deed was registered by him on Rs.100 stamp value and not as per stamp value applicable on sale deed which is Rs10 lacs.
But my main purpose of giving this power only to clear the title of land in dispute than sale.
but dispute is not resolved and property was sold to his father. this is nothing by breach of agency.
ajay sethi
(Expert) 09 May 2013
sale deed is understamped and not admissible in evidence . consult a local lawyer . please note that document which is not properly stamped would not be regsitered . in addition the power of attorney holder has not paid the sale consideration to you although you are the owner of property .
Guest
(Expert) 10 December 2014
Well advised by Experts
Anirudh
(Expert) 10 December 2014
SHAME ON THIS FELLOW TO ATTEND THIS ONE YEAR OLD QUERY.
HE IS TRYING ALL THESE GIMMICS TO HIDE HIS FALSE AND FRADULENT PROFILE.
This fellow cannot even be a last person one can consult for any advice.
This fellow is good for nothing. Many a times he gives advices which are not supported by law.
TAKE THIS FELLOWS FALSITY IN HIS PROFILE. THIS FELLOW ATTACHES MORE IMPORTANCE TO THE PROFILE, WHILE HE IS FILLING UP TOTAL FALSE HOOD IN HIS PROFILE.
please visit the following link:
http://www.lawyersclubindia.com/lawyers_search/N-J-S-Rajkumar-alias-narasimha-254519.asp#.VIcRwmeHPFx
where he claims that he is practising from 2001, while as already indicated by me, he was enrolled only in the year 2012!!! CAN ANYBODY PRACTICE BEFORE ENROLMENT? IF ONE DOES SUCH A PRACTICE IS HE NOT FIT TO BE CALLED A "FRAUD"?
N.J.S.Rajkumar alias narasimha's Details
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Therefore, before taking advice, the querist should be too careful
