which of these supercedes other WILL OR POWER OF ATTORNEY
ballly jaiswal
(Querist) 31 December 2009
This query is : Resolved
My question is that a woman has made a power of attorney to sell or manage her property in his brothers favour. her brother sold 1/5 of the property for agreed amount to someone and when they went to got the sale registered. her brother agreed to sell remaining four parts of the property to the same buyer. but suddenly a third came over there and objected to the sale registration as he has possession over the said land. As a result sale of only 1/5 part of the property got registered. when the holder of attorney died,the women made a will in favour of sons of her brother i.e holder of attorney. now the buyer of 1/5 part of the said property of the women sold by holder of attorney claims the specific performance of the agreement to sell the other part of the property by the deceased holder of attorney though he has not recieved any amount towards such agreement to sell which was offered to him at that time.. so my query is that will the buyer of 1/5 of the property can claim specific performance of the agreement to sell by deceased holder of attorney as such property comes into hand of his sons?
Devajyoti Barman
(Expert) 31 December 2009
The agreement entered into by the constituted attorney binds the property in question even after his death. The circumstance however would have been different had the power of attorney holder agreed to sell only the 1/5 the share in the property.
Now the suit for Specific Performance is surely maintainable against the current land owners of the property though it would be difficult get the decree for the same.
Raj Kumar Makkad
(Expert) 01 January 2010
I differ with the opinion of Barman. As there had been no specific agreement to sale 4/5 portion of the property even though direct registration was going to be held (which got stopped by a third party) so when no agreement held, how its execution can be sought. It was discretion of the seller at that time and mutual acceptance but once it was deffer ed, no further agreement took place so there is no scope of specific performance.
A V Vishal
(Expert) 01 January 2010
The clauses governing the GPA are important to decide the question raised by you, however, both the experts have answered the query with respect to their personal prespectives, so the larger question remains that what does the GPA says. Another thing which requires clarity is the agreement of the GPA holder to sell the remaining share to the owner of the 1/5th share. If such agreement is available on paper then it will have to be seen whether it can be acceptable in terms with the GPA.
ballly jaiswal
(Querist) 01 January 2010
what if the purchaser pleads that the attorney holder have entrusted them the advance money as Trust for the attorney holder...and they have cheques related with back dated.. Can it will differ the situation
