Notary is sufficient
I want to sell my house by executing Power of Attorney To my Friend. My friend will then execute the sale deed registration and all other formalities himself in registrar office. Then do I need to register the power of attorney or only notary is sufficient. State is Uttar Pradesh
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Notary is sufficient
You should execute POA in favour of family member
2) if executed in favour of friend it would attract higher stamp duty
3) POA registration is mandatory for sale of property
But there is some high court order which states that only if power of attorney is in name of relative like brother or sister or children then notary is enough. Else power of attorney needs to be registered. Maybe some amendment in section 17 of registration act. 2013 Also section 32A states that fingerprint of buyer and seller needs to be affixed. For that I will have to be present in registrar office.
Registration of power of attorney is necessary for sale of property
mere notarised POA would not suffice
your presence would then not be required
1. the POA needs to be registered,
2. the POA (seller) presence is necessary not of the actual owner,
the POA will represent the seller and his fingerprints will be taken
This is the necessity of law in your case that you get the power of attorney registered at registrar's office and for this purpose, the presence of yourself and your friend along with 02 witnesses is necessary where finger prints and other formalities will take place.
No such ruling and any person can be POA holder and notorise POa authorising to sell property is valid.
Sec 32a requirement expunges with Holder finger print and signature
POA to present documents for registration of property must be registered.
Without registered POA the agent shall not be eligible to present property documents in registry office .
Respected sir ...
Notary is sufficient you need not to register that power of attorney ...yes you are right to some extent once that was mentioned in a judgement of High court but later on that was changed in another judgement ...so only notary public is sufficient ....and for fingerprint that friend will be sufficient in whose name you sign the power of attorney ....
1. GPA for sale of property has to be mandatorily registered.
2. Mere notarisation is not sufficient.
3. Do not go by some HC order here and there. HCs and even SC cannot create law, and the law on this point is absolutely settled.
4. The fingerprint of agent who has to execute the sale deed for and on behalf of the true owner will be required.
1) It is true that An amendment has been made to Section 17 whereby clause (g) of Section 17(1)has been introduced as per the Amendment Act 31 of 2013 with effect from 30.9.2013, whereby power of attorney creating any power or right of management, administration, development, transfer or any other transaction relating to immovable property for the value of Rs.100/ and upwards will require compulsory registration, except in the case of power of attorney executed in favour of father, mother, wife, husband, son, adopted son, daughter, adopted daughter, brother, sister, son-in-law or daughter-in-law of the executant.
2) Section 33 of Registration act, recognizes only certain power of attorney for execution of sale deed and affixing finger print of buyer and seller as mandated under Section 32A of Registration act.
3) Since you wish to grant power of attorney to your friend and assuming the value of immovable property is more than Rs100-/- it is mandatory that the power of attorney needs to be registered at Sub-Registrar office.
4) Notarisation of power of attorney will not be legally permissible given that power of attorney holder will be your friend.
Hope this information is useful.
POA needs to be registered for Sale Deed.
it will be useful if you register power of attorney, for registration you require 2 witnesses. Once registered it will be a legal document. Notarised poa won't have evidentiary value.
- As per section 17 of Indian Registration Act, A power of attorney is compulsory not required to be registered.
- But, as per section 32 of the Act, for presenting a property for registration in the office of Registrar in the absence of the executor , it need to be registered .
- For registration of POA , followings are necessary :
1. Appearance of the person, who is transferring the property
2. Two witnesses at the time of registration of the POA
3. All persons will have submit their respective identity proof
4. At the Sub-Registrar's office signatures, photographs and fingerprints of the party will be collected.
- For Registration Finger print & appearance is necessary.
- In Karnataka , if the POA is given to close relative , then registration is not needed , an notarized POA is enough for transferring the property as well.
A sale deed through a POA can be done but it will not be a proof of ownership and a supreme court has categorically stated in 2011 that registered sale deed should be executed by the seller and the buyer himself.
Buying and selling of lands is permissible through a POA but you have to register it afterwards as the supreme court has clearly stated in 2011.
1. I wonder if you indded want to sell the property then what is the requirement of POA.
2. In your case the sale may not be complete since gge buyer is not in your close relationship.
3. So avoid complications and sell by sale deed.
4. If you can't be present at the time of sale then you may give a registered POA to your close relative who can represent you at the time of registration of sale deed.
You need to register the POA too.
For any transaction towards immovable property, it can be done only by a registered document.
Therefore the proposed sale of your property through your friend by executing a POA deed should be by a registered deed only.
The notarized deed will not be accepted by the registrar to execute the registered sale deed by the POA.
The registered POA deed given to the power holder shall take care of the registration of the sale deed.
The power holder becomes the seller hence his signature and thumb impression at the time of registration of the sale deed shall be sufficient, the original owner need not be present for this purpose before the registrar at the time of execution of sale deed.
Remember that notarised POA deed whether given to a relative or friend is not accepted a legally valid document for executing the registered sale deed hence it will be rejected by the registrar.
“Once the person representing the true owner was not genuine, it was always open to the Sub-Registrar not to return the document. The contention of learned counsel for the petitioner, that registration of power of attorney is optional also cannot be accepted, though it is not disputed, that unregistered power of attorney is valid, but where the attorney has the right to transfer the immovable property worth more than Rs.100/-, then it is compulsorily required to be registered. The person holding unregistered power of attorney, has no right to transfer immovable property worth more than Rs.100/-“.
Immovable property can be legally transferred only by way of a deed of conveyance which is duly stamped under the provisions of the Stamp Act applicable to the state in which such property is situated, as well as registered under the provisions of the Registration Act, 1908. Madras high court observed in " S.Geethan C.Winson vs The Inspector General Of ... on 5 July, 2012"that Notarization of GPA is not equivalent to registration. The sale is illegal if the GPA is not registered.
The 2011 order by Supreme Court of India categorically states that the GPA is not an instrument of transfer in regard to any right, title and interest in an immovable property. It directed the municipal bodies not to register or mutate any property based on the GPA documents. However, genuine transactions done through GPA would remain valid. Power of attorney to a friend is not valid one .
Nothing prevents affected parties from getting registered deeds of conveyance to complete their title. The said transactions may also be used to obtain specific performance or to defend possession under section 53A of TP (Transfer of Property) Act,
You may see the following judgment. Your personal presence may be required if you could not find out any blood relative.
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.
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.]
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
(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."
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.
Buying property through General Power of Attorney or GPA
The Honorable court has held that when someone transfers any immovable property through GPA, it does not convey any right or title or create any interest in respect of such immovable property in favor of such person as only a deed of conveyance/sale deed which is duly stamped under the provisions of the Stamp Act applicable to the state in which such property is situated, as well as registered under the provisions of the Registration Act, does so.
Validity and Scope of General Power of Attorney
A lot of real estate is being bought through GPA; however, as a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property, it still serves several purposes for buyers and sellers, particularly where registration of sale deed is not possible due to some legal issues.
The legal definition of the GPA is that it is a mere agency whereby the grantor authorizes the grantee to do certain acts specified therein; this he does on behalf of grantor, which when executed will be binding on the grantor as if done by him. Interestingly, GPA is revocable or can even be terminated at any time unless made irrevocable in a manner known to law.
GPA is Not Irrevocable
The law is that even if the parties have determined that the GPA is irrevocable it won’t have the effect of transferring title to the grantee. Thus, in totality GPA does not convey ownership of the buyer; however, a GPA holder may execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
Taking the judgment from the Supreme of India into consideration it’s a settled law now that immovable property can be legally and lawfully transferred or conveyed only by a registered deed of conveyance and not through GPA. Thus, as GPA does not conclude complete transaction, the Supreme Court parties should consider registering the deed of conveyance.
The Supreme Court in the case had however, observed that GPA transactions may also be used to obtain specific performance or to defend possession under section 53A of Transfer of Property Act, 1882.
Yes your presence is necessary in the registrar office and POA should be registered
Rajni Tandon vs Dulal Ranjan Ghosh Dastidar & Anr on 29 July, 2009 Supreme court has held in this case that if power of attorney holder is himself the executant of the sale deed then the registration of the power of attorney is not required to be registered and section 33 of Registration act does not apply. How ever it is not understood that why such a judgement is given because if any miscreant wants to defraud someone of property then he would make poa in his name by forgery or get the owner to sign by deceit under false pretences and then execute the sale deed without registered poa. I mean the whole purpose of registration is to bring the owner in front of regustrar to prevent fraudulent transactions. How ever this is an easy work around for a muscreant who wants to defraud.
After passing of the Suraj Lamp & Industries (P) ... vs State Of Haryana & Anr on 11 October, 2011 the decision cited by you does not hold the filed on the issue of registration of Power of Attorney.
Registration ofPOA has been made mandatory
2) It is compulsory after April 2013 in Maharashtra
You are right but the intention of the law to keep fraudsters away.
Pls go through Supreme Court judgement in the matter of the Suraj Lamp & Industries (P) ... vs State Of Haryana & Anr on 11 October, 2011, which is very much prevailing now.
For selling or transferring any immovable property a registered power of attorney with possession of such along with sale or transferable rights of such such is required so that such attorney receive the sale consideration and acknowledge the same and as also ensure the delivery the physical possession in favour of prospective purchaser
The Power of attorney has to be registered.
Registrar will not allow to register without POA registration as per rules and norms developed .
One have to go to court to enforce the said SC rulings .
One SC rulings can not be considered the final proposition of law in any particular subject matter because there may be other contradictory judgements by other SC judges or by larger bench in same matter.
Further always latest rulings prevail over the earlier ones.
The Supreme Court has various inherent powers and also interprets / alters the judgments of lower courts. / the visions of law makers at the time of implementing a law in the parliaments .
In Suraj Lamp and Pvt. Ltd. v/s State of Haryana and another supreme court deeply evaluate the Scope of Power of Attorney and confirmed that even an irrevocable attorney does not have the effect of transferring title to the grantee. the ill - effects of what is known as General Power of Attorney Sales (for short `GPA Sales') or Sale Agreement/General Power of Attorney/Will transfers (for short `SA/GPA/WILL' transfers). Both the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. As noticed in the earlier order, these kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest unaccounted money (`black money') and to avoid payment of `unearned increases' due to Development Authorities on transfer.
Sec.32 deals with Persons to present documents for registration and sec 33 deals with Power-of-attorney recognizable for purposes of section 32. In Rajni Tandon vs Dulal Ranjan Ghosh Dastidar & Anr has different views and not analize the stamp duty of GPA.
In Suraj Lamp and Pvt. Ltd. v/s State of Haryana and another the apex court said the amendments to stamp and registration laws by various states do not address the larger issue of generation of black money and operation of land mafia and hence there was a need to reduce the stamp duty though it may result in loss or revenue. The same time evaluate the material for the purpose of compulsory registration of a document under Section 17(1) of the Registration Act, 1908. The court held that the Observations made by the High Court of Delhi in the case of, Asha M. Jain v. Canara Bank, 94 (2001) DLT 841, that the concept of ‘Power of Attorney Sales’ has become, over a period of time, a recognised mode of transfer apropos transactions concluded by way of Agreement to Sell or General Power of Attorney or Will, are unwarranted, unjustified and misleading.
Please do understand that some of the positions are over ruled by latest rulings held by the highest judicial court.
Power-of-attorney recognisable for purposes of Section 32:-
(1) For the purposes of Section 32, the following powers-of-
attorney shall alone be recognised, namely:-
(a) if the principal at the time of executing the power-of-
attorney resides in any part of India in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub- Registrar within whose district or sub-district the principal resides;
(b) if the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power-of-
attorney executed before and authenticated by any Magistrate;
(c) if the principal at the time aforesaid does not reside in India, a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government:
Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely:-
(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;
(ii) persons who are in jail under civil or criminal process; and
(iii) persons exempt by law from personal appearance in Court.
(2) In the case of every such person the Registrar or Sub-
Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid.
3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.
(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court herein before mentioned in that behalf.
Clause (a) of Section 32 specifies that a document can be presented for registration by
(i) by the person executing the document
(ii) any person claiming under the document presented for registration and
(iii) in the case the said document is a copy of a decree or order, any person claiming under the decree or order.
The above are some of the excerpts of the judgment you have referred which gives more meaning to your question.
The question is that if the POA Deed is by a registered document then the power holder can execute the registered sale deed document on behalf of his principal.
Unregistered power of attorney is not a valid legal document. It will not be accepted before sub registrar office
You can try the same as the law is already laid unregistered POA for sake transaction is inadmissible. If you yourself can be present for sale transaction why ij the first place you require a PoA
Where the actual executant of the sale deed and the presenter is the power of attorney, then the provisions in Clause (a) of Section 32 will get attracted and therefore, the provision contained in Clause (a) of Section 33 (1) of the Registration Act requiring the authentication of the said power of attorney before the Registrar/Sub Registrar concerned will not apply as held by the Apex Court in Rajni Tandon's case (supra)
Registration of Power of Attorney is require for execution, Otherwise its may not executable. Notarized Powar of Attorney also legal tender for execution.
This does not prevail anymore after Suraj Lamps judgment.
Notary of POA is not sufficient, it has to be registered.
If you give POA in favor of your friend, it attracts more stamp duty, if possible you give POA to one of your family members.
Registration of POA is necessary under Sec.17 of Registration Act.
The ruling which you are relying is not applicable to your case.
Registration of POA is mandatory to execute sales deed as per section 17 of The registration act 1908.
Yes , in India,it is necessary that a power of attorney must be Notarized and recorded by a Notary or it must be attested by a competent officer of the Government of India or of the State.
If Notarized then the same should be entered in the notarial register of the notary.
It is compulsory that the power of attorney must be witnessed by atleast two witnesses.
If the power of attorney confers powers in respect of dealing with immovable property then the same be ought to be attested by a revenue officer of the place where the concerned immovable property is situated and the same be registered in the said official record maintained in respect of powers of attorney.
In case the power of attorney is executed by one living out of India then the same should be attested by a Notary of the said country with necessary attachment of documents like passport, photographs, legal status etc. as may be applicable. The same thereafter requires countersigning by the Indian consulate of that country. In India the beneficiary must get the same registered with the required revenue authority as per the law within a specified time period which may vary from state to state.
When he is himself the executing the sale deed then therw ia no use of the power of attorney.
Ans: Once you register the power of attorney, you also need to pay requisite duty charges to the concerned government, only then a sale via power of attorney is considered valid and legally binding on both the parties.