• Selling a property by POA

Hi,

I have a property in Bangalore that I want to sell. I cannot travel due to Covid19 and want to know if sale deed can be executed by power of attorney. Property is in joint name with my wife. . I can provide POA to my relative. my wife does not have any relative in India.

What are the options to execute sale deed with special POA from outside of India.

Thanks
Asked 4 years ago in Property Law
Religion: Hindu

12 answers received in 1 day.

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15 Answers

You can execute POA in favour of relative to execute sale deed 

 

POA should be attested before Indian consulate 

 

your wife personal presence would be necessary to execute sale deed as she does not have any relative in India 

 

if she executes a POA in favour of non family member it would attract higher stamp duty and has to be stamped as conveyance 

Ajay Sethi
Advocate, Mumbai
97297 Answers
7859 Consultations

Any immovable property can be sold or purchased by person residing abroad through SPA. The procedure  is, draft a special power of attorney on Indian stamp paper of 100 rupees which  is available in all countries giving SPA to any of you relatives/friend to sell the property.  Go to Indian consulate and get SPA validated which  the consulate official will readily do. Send the SPA to the person named, he will take the SPA to the District Registrar who will validate it by putting his seal and signature. Fee for validation of SPA is 1 % if it is given to blood relation if given to other person it is 2% of government valuation of the property. With the validated SPA you property can be sold by person named.

Notary not required, has to attested by Consulate. It can be given to any major person. Property can be registered through him. Adding a clause with regard to transfer of sale consideration.

Ravi Shinde
Advocate, Hyderabad
4301 Answers
42 Consultations

It has to be given in favour of family member 

 

registration in India is not necessary if attested before Indian consulate 

Ajay Sethi
Advocate, Mumbai
97297 Answers
7859 Consultations

1. ONLY a proper Stamp Duty paid (500/-) and Registered POA holder is entitled to execute any immovable property transaction before the local registrar of sub-assurances. Online POA Registration facility is not available, as yet. IF the POA is not registered, THEN the whole proceedings shall remain illegal. POA can be given to "ANYBODY", irrespective of relationships. Stamp Duty on POA is not the same as Stamp Duty paid on Sale /Purchase Deed.

2. POA may have strategic clauses and time limitations of the deal (payment terms, validity time period of the POA document ....), for safety of the POA giver.

3. POA can be registered "ANYWHERE" in India, before the local registrar of sub-assurances and shall be valid throughout India. Stamp Duty on POA is not the same as Stamp Duty paid on Sale /Purchase Deed. A Notarized POA is legally infructuous for immovable properties.

4. POA document can be endorsed abroad by the local consulate office and SUBSEQUENTLY stamp duty paid and registered in India, for it to be legally enforceable.

5.  IF person CANNOT go to Registrar office to register POA, THEN Registrar's officer can be requisitioned to visit home, to register POA, on payment of due fees by following due procedure of law.

6. As per a SC judgment, "Immovable Property" CANNOT be sold using a GPA and such GPA and Sale shall remain legally null & void.
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Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

Hi, You can give Power of Attorney to any body but the thing is that if the Sale Clause is the there in the Power of Attorney and if it is executed to other than the blood relatives then you need to pay the stamp duty  on Power of Attorney as per market value. 

Pradeep Bharathipura
Advocate, Bangalore
5617 Answers
338 Consultations

Dear Sir/Ma'am,

Power of attorney is a written document in which one person known as The Principal appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal. Powers of attorney are routinely granted to allow the agent to take care of a variety of transactions for the principal, such as executing a stock power, handling a tax audit, or maintaining a safe-deposit box. A power of attorney is generally terminated when the principal dies or becomes incompetent, but the principal can revoke the power of attorney at any time.

POA and sales deed

Now that we have seen what is Power of Attorney and the legal process behind it. When it comes to buying or selling a property Power of Attorney is not a valid instrument to transfer property titles. However, selling the property through General Power of Attorney had become common practice across Indian cities, owing to the monetary benefits it offered, both the buyer and the seller.

A sale deed must be carried out for transferring property titles, following which the buyer has to pay stamp duty and registration charges. The seller will also have to bear the burden of capital gains tax on the transaction. By transferring property title through a General Power of Attorney, these charges are avoided. “From the sellers’ perspective, a General Power of Attorney makes it possible to carry the transaction even if they do not hold clear property titles. General Power of Attorney, in fact, is their only option. From the buyers’ perspective, they can afford property at much cheaper rates than the market price.

Two types of POA


  • general power of attorney- When a person is authorised with absolute general right or power to act legally with respect to the property or bank accounts or tax payments, or registration work or to file a case against 3rd party etc by another person is termed as a GPA.

  • special power of attorney- An SPA is transfer of special power which is only granted for a specific assignment and once the specific assignment is completed the SPA automatically comes to an end.
    A typical example of an SPA is when people rent out their property or when the agent appears for the registration of the principal’s property or when the agent appears in a court or before the Tax authorities on behalf of the Principal etc.

Is property sale through power of attorney legal?

In 2011, the Supreme Court ruled that property sale through power of attorney (PoA) is illegal and only registered sale deeds provide any legal holding to property transactions.

 

There are two different ways to execute a POA from abroad:

Legalization: For this situation, signatures of the notary or judge before whom the POA is executed are needed to be verified by the appropriately authorized representative of the Indian Embassy/Consulate. As indicated by Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, notarizing a deed from an approved official of the Indian Consulate/Embassy would be viewed as a legitimate public accountant.

Such a POA is not needed to be stopped at the hour of execution. Be that as it may, it should be stamped within three months from the date of receipt of the POA in India. Stamp obligation would be payable as indicated by Section 2(17) read with Schedule-I of the Indian Stamp Act, 1899, when the Deed is presented for registration in India.

Apostallisation: The Deed of POA executed external India is demonstrated through an apostallisation cycle which is administered by The Hague Convention, 1961. Otherwise called super legalization, an apostille is a certificate which affirms and checks the signature/seal of the individual who authenticated the document. Be that as it may, this Deed, as well, requirements to follow Indian laws, for example, the Indian Registration Act, 1908, and the Power of Attorney Act, 1882. A person likewise needs to pay the stamp obligation on this.

 

Anik Miu
Advocate, Bangalore
10308 Answers
121 Consultations

1. You can execute a Special POA, notarized and attested by Indian Consulate and send it to your relative in Bengaluru, who will in turn get it adjudicated in the jurisdictional District Registrar's Office. Your wife can appoint anyone after following the same procedure narrated above.

2.  After following step (1), the Special POA will be valid for executing the sale deed.

Shashidhar S. Sastry
Advocate, Bangalore
5428 Answers
330 Consultations

- Since, you cannot travel to India , then you should execute POA/SPA in favour of any relative or nearest one living in India. 

- Further that POA should be notarised as per rule of Canada , and attested the same from the office of Consulate of India.

- Further, your wife can also give POA to the same person , as after marriage he will be considered her relative/nearest one. 

- Further, if the POA is attested by the Consulate of India in Canada , then registration of the same is not mandatory for executing sale deed in favour of the purchaser on your behalf. 

Mohammed Shahzad
Advocate, Delhi
14676 Answers
224 Consultations

You can give POA deed to your relative and she can give POA to her own relative.

Both the power agents can execute the joint registered sale deed in favor of the prospective buyer after adjudicating the power deeds before the concerned sub registrar.

 

T Kalaiselvan
Advocate, Vellore
87497 Answers
2348 Consultations

A special power of attorney or a general power of attorney can be executed in favor of a relative back in India to avoid legal complications or the objections raised by the sub registrar where the power of attorney deed can be adjudicated and the execution of registered sale deed is carried out. 

An SPA is transfer of special power which is only granted for a specific assignment and once the specific assignment is completed the SPA automatically comes to an end.

A typical example of an SPA is when people rent out their property or when the agent appears for the registration of the principal’s property or when the agent appears in a court or before the Tax authorities on behalf of the Principal etc

the law holds that a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property but any genuine transaction carried out through General Power of Attorney is considered valid under the law.

NRIs can always give authority for such transactions to his/ her agent/ attorney who can be a friend or even a family member

 

T Kalaiselvan
Advocate, Vellore
87497 Answers
2348 Consultations

1. For registering the sale deed of a property through POA, the said POA is required to be registered.

 

2. For registering the POA, the executant   shall have to appear before the Registrar.

 

3. If they can appear before the Registrar, they can register the sale deed itself in place of registering the POA.

Krishna Kishore Ganguly
Advocate, Kolkata
27503 Answers
726 Consultations

The sale deed of a property can not be registered based on the POA attested by the appropriate officer of Indian Consulate.

Krishna Kishore Ganguly
Advocate, Kolkata
27503 Answers
726 Consultations

Even if the Special POA is attested and notarised by an Indian Consulate, you will have to pay the necessary stamp duty as per the Indian laws and then the POA holder can transfer the property on your behalf.

Garima Anil Mehrotra
Advocate, Mumbai
514 Answers
1 Consultation

You execute the same after attesting the poa in the Indian embassy or consulate of that country later the same needs to be registered in India

Prashant Nayak
Advocate, Mumbai
32714 Answers
208 Consultations

you can execute the poa in your country and get it attested by notary or consulate as per your country provisions. then post it to india to your lawyer or the person then he will get it stamped alongwith a stamp paper of rs 100/- then he can use this attorney here in india. yes poa can be given to anyone of your choice. registration is needed as per law however it is valid even without registration. good luck

Gopender
Advocate, New Delhi
384 Answers

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