I am interested in buying a property in Hyderabad. The situation is as follows: 1. Apartment was owned jointly by a husband and a wife. The husband is deceased and his share of the apartment (50%) was distributed to the wife, son, and daughter. 2. Both children are living abroad and wife is in a old age home. The son has given a GPA for the property to the mother (GPA-1) and the mother in turn gave a GPA for the property to the daughter (GPA-2). 3. The daughter is planning to come to India in person to execute the sale deed using GPA-2 Questions: Q1: Do both GPA-1 and GPA-2 need to be registered with the sub-registrar with a payable stamp duty of INR 1000 for GPA to have validity? Q2: Can the mother transfer the son's rights on the apartment (administered through GPA-1) through GPA to the daughter (GPA-2) without the son executing a separate GPA directly in the name of his sister? Q3: As a buyer interested in buying this apartment, will the signature of the daughter on the sale deed suffice for registration purposes/ sale? Or would this be risky? Thanks AJ
1) GPA executed abroad has to be attested before Indian consulate
2) registration in India is not mandatory
3) if mother executes GPA in India it has to be registered
4) mother cannot cannot transfer sons rights given through GPA to daughter unless there is specific clause in GPA authorising her to delegate
5) signature of daughter on sale deed is not sufficient
1. If the GPA by the son is notarised and attested from the consulate of India in that country , then its registration is not mandatory.
- But , for the transfer of the property , the mother GPA -2 to daughter should be registered from the office of the registrar after paying stamp duty.
2. Yes , if the said GPA having clause for the same .
3. Yes, as 50% share in the name of mother , and the remaining share consent has been obtained by way of GPA by mother , but depend upon the GPA clauses.
1. GPA/s has/have to be countersigned by an Indian Consulate and sent to India, where it will be adjudicated in the jurisdictional District Registrar's Office.
2. Son may execute a GPA appointing his sister as Attorney and mother can execute a registered separate GPA appointing her daughter as Attorney.
3. If the above procedure is adopted, the signature of the daughter on the sale deed would suffice.
Dear Sir,
The GPAs are to be registered with registrar. Also, mother can't transfer the right of son to daughter by way of GPA. At present, you are suggested that the all the persons give POA to daughter separately and then the daughter may write the sale deed to you.
1. Firstly ascertain that the widow and the 2 children are the only surviving legal heirs of the deceased husband.
2. For that either an heirship certificate is needed or a letters of administration
3. Secondly check whether the POA given by son to mother has a power to sell and also a power to substitute
4. Thirdly check whether the state law requires such POA containing a power to sell to be compulsorily registered and stamped for the market value of the share of the son in the property
5. Fifthly check whether the POA given to daughter by the mother contains a power to sell clause and also a clause that daughter can act on behalf of the son as a substitute attorney in place of the mother
6. Without the documents its very difficult to answer your query
1. & 2. The mother can execute GPA to her daughter in connection with her share of the said property. She can not execute the GPA in connection with her son's shale of the property for which GPA was executed by her son in her favour. The son shall have to execute GPA in favour of his sister in connection with his share of the said property. The said GPAs are required to be registered for transferring the immoveable property.
3. The POA holder holding the proper POA can register the sale deed in connection with the said property.
1. Power of constituted attorney through GPA can not be delegated further unless in the first GPA the attorney was given such power.
2. Every GPA executed in India requires registration to transfer immovable property.
3. However GPA executed in abroad can be be notarised on foreign soul and then can be adjudicates/stamped in India to enforce it here.
1. A GPA holder cannot execute a GPA to another person on the same property or for the same reason.
Hence the existing power agent cannot execute another GPA which is not acceptable .\
2.The mother can execute a transfer deed on behalf of her principal.
3. She has to be present before the registrar to sign the sale deed.\
Thanks for the responses.I have convinced the seller based on the responses here. Instead of the son GPA to mother (GPA-1), and mother GPA to daughter (GPA-2), they have agreed for a new GPA from son to sister directly (GPA-3) along with signatures of everyone on the sale deed with the daughter being present with GPA1 and GPA3. I had a few followup questions: The ownership share of the property after the husband share distributed equally among the heirs is Mother-66.66%, Son - 16.66% and Daughter 16.66%. Daughter and Son are abroad and mother is in India. Q1: For the cheque towards the sale, it is unlikely they have a joint account with the mom, son, daughter and it will be difficult to open one given the location. Can I give 3 separate cheques against each name separately, in the ratio of their ownership shown above instead of 1 cheque with all their 3 names on it? Q2: As a buyer am I required to initiate TDS witholding? Since 2 of the owners are abroad should I withhold a TDS of 20% of the ENTIRE sale consideration (not their share) correct? Do I have to deposit this to the IT office and provide them a challan? Q3: I am told that they are able to lower the TDS withholding if they provide a certificate from the IT department? Is this correct? How will they be able to get such a certificate, so that I can verify from the relevant authority of its authenticity? Any other considerations I am missing? Thanks in advance
You can issue 3 separate cheques
2)TDS has to be deducted for sister , brother share in property
3) it should not be of entire sale consideration
4) as far as obtaining certificate from income tax department contact a local CA in this regard
Dear Sir,
It is suggested that you give three cheques on the name of the each as told by you. Regarding TDS withholding, the certificates issued by them can be verified from concerned department. So, you may take the time for being yourself confirmed.
1. Why do you decide about giving three cheques to their proportionate share in the property.
The sellers have to decide about getting one cheque or three cheques in the names of the individuals.
If the son has already given GPA to his mother for the same property, then he cannot give a fresh GPA to another person i.e., his sister without cancelling the existing GPA.
In that circumstances after cancelling the existing GPA, his sister shall be signing the registered sale deed on her behalf and on behalf of her principal i.e., her brother, if so, you may have to draw two cheques only, one in the name of mother and the other on behalf of the sister.
You cannot decide about making the payment to them, you may discuss with them and arrange for the disbursal/payment of the sale consideration amount accordingly, without making anything complicated due to your own ideas.
2. The TDS in respect of the share of sale consideration amount to be disbursed to the NRIs/foreign citizen is to be made by the buyer as per law in vogue, he cannot show any consideration towards their plea on this.
3. If at all they claim any exemption, let them file the income tax returns and claim refund.
If they are ready to produce any certificate to that effect, you may verify the authenticity of the same and consult an auditor before exempting them from the proposed TDS.
1. Yes, you can issue three separate cheques
2. Yes,
3. They can claim exemption after filing the Return