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sid jai (ceo)     13 July 2014

Gift deed thru power of attorney

This is regarding GIFT DEED- My father wants to gift  his flat to me. Since he is old and stays in native place he can not come to the city therefore he wishes to give a POWER OF ATTORNEY on my name to enable me to gift the said flat to myself. On one hand I am his Constituted Attorney on the other hand I am the beneficiary .


There are two school of thoughts-

1) I can always be the C.A  of  my father and Gift the property to myself. Since I am representing my father and authorized by him to gift   the property to a beneficiary  who happens to be  myself. And there should not be any issue as  I am representing  two different  entities.

2) I cannot be the C.A.to my father and also be the beneficiary.

Next query:

For second property -

Can he give me the POA on my name and authorize me to gift this property to any person of my choice. Should he mention to whom it should be gifted right now in the POA?

He has said that I should Gift it to any person of my choice. I wish to gift it to one of my  three nieces or to a charitable institution of my choice. Is it necessary to mention the beneficiary's name in the POA? If the choice has been left to me then why should any beneficiary's name should be mentioned in the POA>

 

Please clarify with explanation.

 



Learning

 4 Replies

Raajeev Sampat. (Self employed.)     13 July 2014

To my knowledge Sid what your doing is valid as long as its mentioned in the p.o.a.that he has given you the power to execute any deeds which you may thing right.But at the end of the day your brothers and sisters may challenge that saying that it was done with a selfish intent.Ideally father should appear before the registrar and sign and register the deed by you paying the stamp duty etc.If the age is the factor then the registration authorities also come home to register the deed which is at an additional cost.If you can pay that that is the second option.The third option is to make a SPECIAL POWER OF ATTORNEY with respect to the said property which gives you the power to gift but there also it has to be registered for which father has to come.I think what you should do is execute a gift deed from father to you and have the registrar come home and do it.There you will have to pay the charges which is worth it for a thing like this.Call me if you need clarification.0 8097044030.RAAJEEV SAMPAT.

1 Like

Shantilal Pandya ( Advocate)     13 July 2014

poa  as contemplated by you is not voided merely on the strength of its challenge, but the poa should be registered  power to gift the property to any one is valid  but it should be exercised during the life time of your father ,

K.K.Ganguly (Advocate)     13 July 2014

Executing and registering the Gift Deed in your favour with the help of a POA executed in your name is valid but the said registration has to be completed during the lifetime of your father since the said POA will become invalid in the event of his demise. 

T. Kalaiselvan, Advocate (Advocate)     13 July 2014

@Sid Jai: reply to your queries given below against each:

1) I can always be the C.A  of  my father and Gift the property to myself. Since I am representing my father and authorized by him to gift   the property to a beneficiary  who happens to be  myself. And there should not be any issue as  I am representing  two different  entities.

The POA aspect is different to that of the second aspect namely gift.  The POA can sell the the property to himself too on behalf of owner. Now question is about the gift deed, where the owner will not get anything as sale consideration of the  property if the POA decides to execute the gift deed in favor of anyone either himself or any third party on behalf of his principal on the basis of POA hence, this can be challenged about its invalidity on this ground also. Hence a mention authorising/permitting the POA  to execute a gift deed to a particular person will provide a shield to the POA's such act.  Further, the POA involving transaction with regard to immovable property need to be registered unless it is not valid.  So, for registering the same the principal has to visit the registrar's office, that way instead of taking a long route of executing POA  deed for a gift deed will be  waste of time, money and energy, instead a gift deed can be executed straightaway.


2) I cannot be the C.A.to my father and also be the beneficiary.

You can ,but see how it will solve the purpose.

 

For second property -

Can he give me the POA on my name and authorize me to gift this property to any person of my choice. Should he mention to whom it should be gifted right now in the POA?

The answer to this have been given in the above lines.  By clearly mentioning the names of the beneficiaries in the POA deed, future litigation, it at all any, can be solved.


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