• GPA validity

Sir,
I`m planning to buy 1 acre of agriculture land near Bangalore. Person "A" has purchased the land vide a sale deed in 2011. "A" has given a GPA to his brother "B" in 2014 to execute sale/gift deed or alienate the land to any other person. The GPA is not registered but only Notarized. "B" has gifted the land to his another brother "C" through a registered gift deed in 2014. I would like to buy the land from "C" and request you to advise whether the property if bought by me is safe. 
Also I would like to know what will happen if the person "A" files a suit for recovery of the land after my purchase, saying his signatures were forcibly taken on the GPA against his will, since GPA is not registered. All the parties are own brothers. Is there any solution to buy the land safely. Please guide me.
Asked 4 years ago in Property Law
Religion: Hindu

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16 Answers

1) for sale of property GPA has to be duly stamped and registered

2) A can take the plea that signature was obtained forcibly

3) deed of confirmation can be executed by A duly stamped and registered

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

Dear Cleint,

GPA without consideration is not compulsory to be registered to sell/gift property on behalf of principal. But to secure your title and to avoid future useless cases, include person A witness in the sale deed.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

The property doesnt seem to have a clear tile.

The unregistered GPO was not enough to transfer the property in 2014, hence the gift deed can be challenged on the basis that B had no title/right to to transfer the property to C through a gift deed.

A can file a suit and claim the property.

If the sale has to happen now it is advisable to get the approval of A and make him a confirming pay in the sale deed.

You being the purchaser it is advisable to take due diligence before buying the property which is having a disputed and uncleared title.

Thresiamma G. Mathew
Advocate, Mumbai
1631 Answers
212 Consultations

5.0 on 5.0

1) Now whenever you make a sale deed agreement you put all three party names and get signed in it at the time of registration. Atleast of "A" name should you entered because his GPA is not registered.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

1)Get proper legal opinion from local counsel specializing in property/civil matters before entering into any agreement and making payment.

2)civil suit for recovery can be filed before the court within 3 years of the last cause of action.

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

Purchase of immovable property on a unregistered GPA is invalid. Person A can question the sale at a later point of time.

Safest method would be to ask Person C who is the current owner to bring both A and B as consenting witnesses at the time of final registration of sale deed in your favour. Since you inform that persons A, B and C are own brothers. Hence this method would be the safest and completely legal and binding on all parties.

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

Yes both persons A & B need to be present at the time of registration, their photo's and thumb impression will also be taken. This will ensure complete peace of mind and makes the purchase completely legal and binding.

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

1) Instead of making them as witnesses make them as party.

2) Make tripartite agreement of yours and get signed of all three on your sale deed so you will be safe for future

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

1. The said unregistered POA is not acceptable for registering the said gift deed.

2. the whole process might be a well laid trap since A can certainly challenge the said purported unregistered POA even challenging the genuineness of his signature on it.

3. You can buy the said property from C if both A & B signs the sale deed as consenting parties.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. A & B shall have to be parties of the sale deed termed as consenting parties and not just as witnesses (who will be some other persons).

2. Both A & B along with C shall have to sign the sale deed before the Registrar acting as parties affixing their photographs at the appropriate documents.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

If they are signing sale deed as consenting witnesses their personal presence is necessary before sub registrar

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

Hi,

The GPA is generally does not include alienation of property. The proces of bringing both brothers as witness will serve the purpose.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Dear Sir,

Instead of purchase through GPA holder go for Court registration and get valid title. The GPA sales were banned as per following Supreme Court judgment.

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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.]

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Sec 202 of Indian contract act says irrevocable GPA cannot be cancelled as it is executed for consideration.

Section 202 in The Indian Contract Act, 1872

202. Termination of agency, where agent has an interest in subject-matter.—Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. —Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest." Illustrations

(a) A gives authority to B to sell A’s land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death. (a) A gives authority to B to sell A’s land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death."

(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death. (b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."

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Govt tightens power of attorney rules

CHENNAI: The Tamil Nadu registration department has tightened the noose around realtors using power of attorney (POA) for fraudulent land deals. Power of attorney authorizes a person to carry out transactions or act legally on behalf of another.

Under the new rules, a power of attorney holder seeking to carry out a land transaction will have to provide documentary evidence to the sub-registrar to prove that the principal, the person who issued the power of attorney, is alive. The principal has to obtain a "live" certificate with his photograph affixed to it from a registered medical practitioner or a gazetted officer. These certificates are valid for 30 days.

As per a recent order of the inspector general of registration, the new rules are applicable to all POAs registered from February 4. By law, POA is not valid once the principal dies. Section 34 of Tamil Nadu Registration Act says it is the duty of the sub-registrar to ascertain whether the POA holder has the right to execute a transaction on behalf of the principal. But sub-registrars register property documents without bothering to verify whether the principals were alive.

"In Tamil Nadu, where a large number of land transactions are carried out on the basis of POAs to circumvent payment of stamp duty and registration fees. Many instances have been reported of POA holders selling land after the death of the principal. Buyers get into trouble when legal heirs of the principal claim rights over the property. Such cases end up in protracted legal battles and ultimately the sale deeds are declared invalid," said a senior official.

There have been instances of people impersonating land owners and executing fraudulent POAs. In one case, land worth 9 crore on Venkatnarayana Road was sold to a business group based on a POA, reportedly executed by the land owner in 2008. Legal heirs of the land owner subsequently filed a case of forgery against the business group, brokers and others involved in the deal as the owner had died 28 years earlier. When police refused to take prompt action, the owners moved the court.

As per law, the principal also has the right to rescind a POA. "If there is a mention of a consideration (amount) in the POA, the holder can claim that money through legal means. But he cannot claim rights over the property once the POA is rescinded or the principal dies," said the official.

In 2010-11, more than 3.75 lakh POAs were registered across Tamil Nadu for property-related transactions. The number came down to 1.8 lakh last year. It is going up again this year, said the official.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Presence of every one mandatory,

Seller (POA holder)/buyer/witness.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

The purchase of property through C, who shall execute a registered sale deed in your favor in the capacity of the title on his name and absolute ownership is very much valid.

Your further question that what if A comes out with the case against all of them, no answer can be given to this at this stage, because that is your imagination.

At that time the it was not mandatory to register the GPA, hence you may decide about buying the property or not.

You ,may produce the copies of the documents related to the property before an advocate in the local and proceed on his recommendations.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

If I bring both the persons "A" and "B" as consenting witnesses, do they need to compulsorily come to Sub-Registrar's office and put their signatures along with their respective thumb impressions and photo in the sale deed, to be binding on them.

The consenting or attesting witnesses are to be present before the registrar at the time of registering the property while executing the sale deed.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

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