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Vishal Salvi   06 July 2024

How to sell a property under this circumstances?

There is a property in Nalasopara, Maharashtra, that was in my mother's name. She granted me the rights to sell the property through a registered power of attorney, but she sadly passed away before the sale deed was completed. After the power of attorney was created, 50% of the share was transferred to my name through a release deed. The dilemma is that the purchaser's lawyer insists on obtaining a share certificate in my name (I have no siblings) from the building for the buyer's loan process. However, the building management insists that the share transfer should be done directly to the buyer after the sales deed is completed. Both the lawyer and the building are trying to convince me that their respective suggestions are the best way to close the sale. The lawyer says that obtaining the share certificate in my name is necessary for the buyer's home loan process. Meanwhile, the building management argues that since my mother granted me the rights to sell the property through the registered power of attorney and 50% of the share was released in my name, I am the legal nominee to inherit the flat, so it's best to create the sale deed directly and proceed from there. What is the best possible way to sell the property under these circumstances?


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 3 Replies

T. Kalaiselvan, Advocate (Advocate)     06 July 2024

You have to note the following legal issues involved in this: 1. You were given a general power of attorney by your mother, but sadly it remains automatically cancelled upon the death of the principal/grantor of the power deed. Therefore you cannot claim title to the property on the basis of the power of attorney deed. 2. If it was your mother's self acquired and own property then she cannot transfer 50% of property to you by executing a release deed. It is also not known whether the release deed was executed by a registered document or by an unregistered document. Whatever, even if it is presumed that 50% of property was transferred to you by a registered release deed, what about the rest 50% share, how did you get it transferred to your name other than having a GPA deed which also stands cancelled upon the death of the Principal? 3. You say that you are the only legal heir to your deceased mother, then nothing prevents you from obtaining a legal heirship certificate issued by the revenue department and get the entire property transferred to your name subsequent to which to get the share certificate transferred to your name. You have not followed the procedures to get the entire proeprty transferred to your name hence yo cannot claim title to the property to enable you to sell the same in favor of the prospective purchaser. 4. The bank is right in demanding the proper evidence to prove your title in order to ascertain the title enabling you to sell the property to the buyer, only after which the bank can grant loan. The bank cannot grant loan to the property having defective title. 5. you should understand the legal fact that the nominee is a different person to that of the legal heir, the nominee is just a trustee to receive the property on behalf of the legal heirs and he has to subsequently distribute the same to the successors in interest/legal heirs. Therefore instead of objecting or agitating over the issues involving legal aspects, you may better follow the rules and law in order to sail smoothly.
1 Like

kavksatyanarayana (subregistrar/supdt.(retired))     06 July 2024

Yes. After the death of your mother, the Power of Attorney automatically stands cancelled. As you have no siblings, is your father alive? If you are the only legal heir, you can apply for a legal heir certificate from the Tahsildar concerned. A copy of the legal heir certificate with your mother's death certificate and apply for a share certificate.

Dr. J C Vashista (Advocate )     07 July 2024

Very well analysed, and advised by Senior expert Mr. T Kalaiselvan, I agree and appreciate his acumen. After death of executant of attorney, it (PoA) gets automatically invalid so the PoA cannot be used for sale transaction on behalf of your (deceased) mother. All the LRs of deceased have share (as per personal laws) in the intestate property left behind by her (your mother). The society has no right to transfer property to 50% share holder.

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