Dear Sir,
My answers are as follows:
1. Can this transaction be done and sale amount be given to the GPA holder?
Ans: Yes, taking into consideration the relationship between A and Mrs. A. It is better to get sale deed get executed by both the persons instead of one of them being consenting witness. Secondly in the sale deed a recital may be stated that entire amount is paid to GPA holder as per the instructions of co-seller.
2. In whose name should I do the 1% TDS of the sale amount?
Ans: It is better to pay TDS in joint names of both the vendors.
3. The Sale Deed has Mr.A and Mrs.A's, PAN number. If I do the TDS in the name of GPA holder will it not be a Income Tax issue later on?
Ans: Since GPA sales are not valid as per Supreme Court judgment so treat this transaction as joint transaction by the both vendors and take PAN numbers of both the persons.
4. GPA holder can have a new registered GPA with new clause to receive the proceeds. Can we buy the property based on this?
Ans: No, because such sale is invalid.
5. if none of the above options works, What other option do I have to buy this property? Please advise
Ans: The above method is appropriate. Please see the following judgment of Supreme Court on the issue of GPA sales.
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No property sale on power of attorney: Supreme Court
Property sales through the common practice of general power of attorney (GPA) will not give ownership title to the buyer.
In a landmark judgment that is expected to send a large number of property owners into a tizzy, the Supreme Court held that the GPA method of immovableproperty sales is not a valid form of transfer of property.
A three-judge bench presided over by Justice R. V. Raveendran said that property can be lawfully transferred only through registered sale deeds.
"A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property," the bench said, after interpreting various provisions of the law concerning property sales. However, the bench said the judgment will not affect "genuine transactions" under the GPA.
The judgment delivered on Wednesday would have an impact on both freehold and leasehold properties and affect the mode of transfer of property in Delhi and the National Capital Region (NCR) where GPA sales are very common. Even though it can cause some hardship to those who have already purchased property through the GPA, the order will help curb evasion of duties, flow of black money into real estate and also save people from being cheated by unscrupulous owners selling the same property to several people.
• Flat sold by builder to third party whem my Agreement to sale was valid
I had executed a Agreement to sale on one flat at Agra U.P. in 02/11/2012 with a validity of 15 months ,after 15 months the builder with mutual consent and reason that the the construction work is not over renewed it for another 12 months upto 28/01/2015,again with the same reason it sought and extension of another 6 months of agreement to sale which was made and agreement to sale was extended upto 22/07/2015.
After this we issued a notice to the builder and on reply to notice the builder through its legal counsel sought again time upto 15/10/2015.Subsequently again a notice was given on 17/10/2015 to execute the sale deed but the builder again replied by letter and sought extension upto 15/07/2016 with the same reason that flats are incomplete.After 15/10/2016 the builder is untraceable and recently he was arrested on forgery charges and currently in jail.On enquiry I came to know that the builder sold my flat that was having valid agreement to sale to third party with sale deed dated 28/06/2014.During this period my agreement to sale was valid but now builder is in jail what is the legal remedy and the party having sale deed has occupied the flat .now what is the legal remedy me to get my flat back.
Section 53A in The Transfer of Property Act, 1882
1[53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]