• US citizen wants to sell property in India via PoA

I am a US citizen and want to sell a property in India. Can I give PoA to my distant relative, my first cousins son who is in the US and a indian citizen to travel to india and do the sale?
Asked 6 days ago in Property Law
Religion: Christian

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11 Answers

As rightly suggested by you, give POA to your son, who is your blood relative, to avoid paying 5% stamp duty on the value of the property, if POA is given to a non-blood relative.

Shashidhar S. Sastry
Advocate, Bangalore
4205 Answers
258 Consultations

5.0 on 5.0

Execute POA in favour of close family relative like your parents or your siblings or your children 

don’t execute POA in favour of your first cousin son 

Ajay Sethi
Advocate, Mumbai
88369 Answers
6226 Consultations

5.0 on 5.0

You can execute POA in favour of your son 

 

it should be attested before Indian consulate 

Ajay Sethi
Advocate, Mumbai
88369 Answers
6226 Consultations

5.0 on 5.0

on basis of POA your son can execute registered sale deed in favour of buyer 

 

2) SC IN SURAJ LAMP V/S STATE OF HARYANA held that 

 

A PoA is not an instrument of transfer in regard to any right, title or interest in an immovable property,” , adding that property can legally be transferred only through a registered sale deed.

3) The judgment, which came after interpreting various provisions of the law concerning property sales and became effective retrospectively, said it would not affect the validity of sale agreements and PoAs executed in genuine transactions.

The top court cited specific examples to elaborate on genuine cases. “For example, a person may give a PoA to his spouse, son, daughter, brother, sister or a relative, to manage his affairs or to execute a deed of conveyance,” it said.

 

4) hence advised you to execute POA in favour of your son to sell your property  

Ajay Sethi
Advocate, Mumbai
88369 Answers
6226 Consultations

5.0 on 5.0

You can give POA to any relative who is a resident Indian. 

The power agent can get the POA deed adjudicated and proceed with the transaction as authorised in the deed. 

T Kalaiselvan
Advocate, Vellore
78530 Answers
1554 Consultations

5.0 on 5.0

A foreign citizen cannot give POA to another foreign citizen to carry out the tasks in India on his/her behalf.

 

T Kalaiselvan
Advocate, Vellore
78530 Answers
1554 Consultations

5.0 on 5.0

Your son is not an Indian citizen, hence you may not be able to give POA to your son.

You can give POA deed to an Indian resident to take care of your business interests including sale of your property in India.

T Kalaiselvan
Advocate, Vellore
78530 Answers
1554 Consultations

5.0 on 5.0

A person given power of attorney over a property cannot sell the asset unless there is a specific provision giving him the power. Special Power of Attorney authorizing the agent to present the document executed by the Principal before the Registering Officer concerned and admit the execution thereof, requires to be attested by the Sub Registrar/Registrar in case the Principal resides in India. The Power of Attorney holder is answerable to the principal and liable to give accounts to him.

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 on property transactions.  Under FEMA Section 6(5), you won’t be able to take the profit from selling an inherited property outside India without RBI permission.

You can only transfer the property  through a blood relative so execute a power of attorney (PoA) in his name for the sale.You can execute POA in favour of your son

Ajay N S
Advocate, Ernakulam
4002 Answers
94 Consultations

5.0 on 5.0

Yes you can give poa and later he can execute sale deed and register it

Prashant Nayak
Advocate, Mumbai
27579 Answers
88 Consultations

4.4 on 5.0

- You can execute POA in favour of a close relative after notarized as per rule of US and attested from the consulate of India.

- Further, if your son is US citizen , then he cannot transfer the property to the seller , hence you should give POA to an Indian.  

Mohammed Shahzad
Advocate, Delhi
10048 Answers
122 Consultations

5.0 on 5.0

Dear Client,

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.

The concept of POA has been discussed under two laws in India – the Powers of Attorney Act, 1882, and the Indian Stamp Act, 1899. These laws defined POA as an instrument empowering a specified person to act on behalf of the person executing the transaction.

Basically, a person gives another person the legal right to present himself as his representative, to perform specific tasks on his behalf.

According to the SC, registration of a PoA is mandatory, if it is executed for the sale of a property. Also note that a notarised PoA would be admissible as proof in the court of law.

Selling properties where the owner has only right over possession and no right over ownership through PoA is also illegal.

To be valid in India, the PoA needs to be attested by the Indian Embassy or any of the Indian consular offices in the U.S. This is possible either by appearing in person or making arrangements through the mail.

 A power of attorney authorizes its holder to enter into transactions and take decisions on behalf of the actual owner of the property.

NRIs would require a special power of attorney to execute a transaction. Through a general power of attorney, no NRI would be able to sell or purchase property in India.

A special power of attorney gives an agent the power to act on behalf of the principal (NRI) for a specific matter, including but not limited to taking legal or financial decisions. 

To have an effective POA for the purchase of property, an NRI must sign the POA agreement in the presence of a consulate officer or Notary in the country of residence. Further, such consulate officers must attest to the agreement for it to be valid. The NRI should register the POA under the Indian Registration Act, 1908, to make it valid and enforceable in India.

POA can be given to friend or blood relative but the difference is stamp duty.

  • The stamp duty to blood relatives is just Rs. 200
  • The stamp duty to non-blood relatives is 5% of property value

The difference in stamp duty is huge for blood and non-blood relatives, also blood relatives are considered as trustworthy.

Following people comes under blood relative category

  • Father

  • Mother

  • Brother

  • Sister

  • Husband

  • Wife

  • Children

The stamp duty for above people is just Rs. 200.

 

Thank You.

 

Anik Miu
Advocate, Bangalore
5001 Answers
53 Consultations

4.9 on 5.0

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