• Registration of POA and gift deed

My son, who resides in USA has sent an Apostile original POA in favour of me, which deals with two immovable properties in Ulwe, Raigad district. In that ha has given all powers such as gift, transfer, buy and sell etc. He wants to gift one property to his sister and another one to buy from a builder on POA.As those documents are to be registered, we need to register the POA. We are all permanent residents of CBD Belapur, Navi Mumbai. 
Is the claimants presence mandatory for registering the gift deed? 
What is the procedure to register the POA
Asked 8 years ago in Property Law
Religion: Hindu

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6 Answers

1) power of attorney executed by your son had to be attested before Indian consulate

2) you have to submit Original power of attorney together with passport photocopies of your son front and back pages

3) you have to submit. Your address and identity proof

4) documents that prove relationship between the executabt and POA holder

5) envelope through which POA was sent by your son to you

Ajay Sethi
Advocate, Mumbai
94965 Answers
7576 Consultations

5.0 on 5.0

the POA executed by your son is a document executed outside India and therefore on receipt of the said document by you, it has to be adjudicated by the District Registrar of Stamps and Registration for it to be valid in India. Once this is done registration of POA will not be required. Based on this adjudication you may gift one property in favour of his sister and buy another in your son's name.

Your son's presence would not be required at the time of registration of the gift deed.

If the above procedure is followed registration of POA will not be required.

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

1) gift deed to sister attracts nominal stamp duty

2) it makes no difference whether sister is married or not

3) it should be executed on Rs 500 stamp paper

Ajay Sethi
Advocate, Mumbai
94965 Answers
7576 Consultations

5.0 on 5.0

Power of Attorney is a document of agency whereby the principal appoints an agent to do and execute certain acts or deeds on his behalf. The Power of Attorney can be effective immediately upon signing. The operative part of the deed is controlled by the recitals wherever there is any ambiguity.

Foreign Power of Attorney should be got stamped by the Collector after its receipt in India within prescribed time of 3 months.

If a power of attorney is in respect of an immovable property of value more than Rs100 it must be registered.

The authority is restricted to act only on certain matters or only a particular kind of transaction or to carry out a specific legal transaction for the Principal. The agent's power of attorney expires on the completion of the transaction.

A Gift Deed is a legal document that describes voluntary transfer of gift from donor (owner of property) to donee (receiver of gift) without any exchange of money. The donor must be solvent and should not use this tool for tax evasion and illegal gains.

Gift Deed is a contract between donor and the donee which defines simultaneous and reciprocal act of giving and taking. A gift to be valid must be made by a person voluntarily and not under compulsion without any exchange of money.

Acceptance of the gift after its execution is a legal requirement and Donee must accept the gift during the lifetime of donor. In case donee fails to accept the gift, it is rendered invalid. The acceptance may be validated by acts such as taking possession of the property.

The person offering the gift and the one receiving it must both sign the gift deed.

Gift deed needs to be registered; only then it is effective. Registration renders it less liable to litigation.Transfer using gift deeds are tax free in the hands of donor and donee.

Stamp duty varies for women and men (Slightly lower for women). Stamp duty also varies from state to state and for latest rates one should visit official state government website.

In Maharashtra:

Government has issued the notification regarding the amendment in Maharashtra Stamp act amendment bill 20/2015 dated 24 April 2015 as per notification to waive the stamp duty on transfer of immovable property by an owner to a heir of the family member will be applicable w.e.f. 24.04.2015.

According to section 123 of The Transfer of Property Act, it is invalid if a gift of immovable property is not registered. Immovable property is a legal term that encompasses land along with anything permanently affixed to the land, such as buildings.

A gift is the transfer of property by one person to another made voluntarily and without consideration. In order to constitute a valid gift, a basic requirement is acceptance. If a document of gift, after its execution or registration in favor of the donee, is handed over to him by the donor, it amounts to a valid acceptance of the gift. The gift must be an existing property. It cannot be a future property.

Now to your questions

What is the procedure to register the POA

Refer to answer above.

As the gift is to sister, does not require any stamp duty. Is it applicable even the sister is a married one?

Married person cannot be deprived of the original relationship just because married so the blood relationship called sister will prevail for waiver of stamp duty.

Does the stamp duty waiver applicable to married sisters also? Gift deed on 500 rupees non judicial . Or online payment is enough?

Read the above answer.

T Kalaiselvan
Advocate, Vellore
85166 Answers
2222 Consultations

5.0 on 5.0

1. Your son has executed the POA to confer on you the right to execute the gift deed on his behalf. So it follows that you can execute the gift deed on his behalf. Since the gift deed requires registration the gift is incomplete till such time that the deed is registered. As a corollary thereto, you can represent your son before the registrar at the time of registration of gift deed.

2. The POA can be presented for registration to sub-registrar.

3. It is immaterial whether sister is married or unmarried. The exemption from stamp duty is applicable even if she is unmarried.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

There is no need to physically present before the Sub Registrar to get the document registered in favour of others or in favour of self.

I would like to explain through an example.

Raja is residing in New York, USA. He got a flat in Chikkadpalli, Hyderabad, India. Raja wants to sell the flat. Raja need not come to Hyderabad to register the document in favour of the buyer. There are two methods to complete the transaction without Raja being present in Hyderabad.

The first method is executing a General Power of Attorney in favour of a family member or a friend giving all powers to the agent

(family member or a friend) --- to find the purchaser, receive consideration, execute (sign) sale document, present before the Sub Registrar and do all other acts/deeds in connection with this transaction. In this case, Raja need to send a General Power of Attorney duly signed by him in New York and signed by two attesting witnesses. Raja may use a Notary Public of New York as one of the witnesses (it is optional but not compulsory).

If this power of attorney is given in favour of family members (namely-- father, mother, sister, brother, daughter, son, wife, husband, grandfather, grandmother, grandchild) it requires to be stamped with Rs.1000/- after receipt in India. If it is given to a person other than the family member, then it shall be stamped with 1% of the market value of the property. In this case, Raja did not identify the buyer and he does not know the consideration he may get by selling the flat. So he shall be very careful in engaging an agent. Agent must be trustworthy since he receives the consideration from the buyer.

After receiving the GPA in Hyderabad, the Agent shall take the GPA to the District Registrar, Hyderabad and get it stamped under Section 18 of Indian Stamp Act, 1899 with Rs.1000/- if it is given to a family member, or with 1% of the Market Value of the property if the GPA is given to other than family member.

After receiving the GPA, the agent will find a purchaser, receives consideration, signs the sale deed on behalf of Raja (Principal), presents the document before the Sub Registrar concerned and do all necessary acts/deeds that are required to complete the transaction on behalf of the Principal. Raja (Principal) shall have to give his thumb impression and photograph in the Registration Act Section 32A proforma.

The second method is executing (signing) the sale deed by Raja (Principal) in favour of the purchaser.

In this method Raja knows the purchaser and full details of consideration and mode of payment etc.

Raja may obtain fully prepared sale deed in favour of the purchaser along with all the relevant forms either through email (soft copy) or by courier (hard copy). If he gets them through email, then he shall take sale deed (including all forms) printout on a very good quality paper. There is no requirement of usage of any Non-Judicial stamp papers of India. Raja can take printout on a very good quality paper and sign the document.

Along with the sale deed, Raja (Principal) shall also execute a Special Power of Attorney (SPA). In this SPA he authorizes a family member or a friend to present the sale deed signed by him before the Sub Registrar concerned and admits the execution on behalf of him (Raja).

This SPA shall be attested by a Notary Public of USA or Consul or Vice-Consul of India. (Please note that if it is not attested by Notary Public or Consul or Vice-Consul of India, then it is not valid).

After receipt in India, the Agent shall present SPA to the District Registrar, Hyderabad and get it affixed with Rs.20/- stamp duty as per Section 18 of Indian Stamp Act, 1899. On the sale deed, the stamp duty can be paid through challan in the Sub Registrar Office where the document is registered.

The agent can present the sale deed executed by Raja along with the SPA and complete the entire process of registration without any problem.

In case a person residing outside India purchasing the property:- The purchaser residing outside India's presence is not required; but he shall give his thumb impression, photograph in Registration Act Section 32A proforma by printing it on a good quality paper. In this proforma he authorizes a person to present on behalf of him and to sign in the registers of Sub Registrar Office. This does not require any stamp duty.

The above procedure is applicable to the persons residing in any foreign Country.

In case Principal resides in India but in a different place, then he can use either of the above mentioned two methods. But in case of Special Power of Attorney, the attestation shall be done by the Sub Registrar in whose jurisdiction he resides. For example a person resides in Vizag but he wants to sell his property situated in Hyderabad, then he can execute a sale deed along with all the relevant forms, and also a Special Power of Attorney authorizing a friend or family member to present the document before the concerned Sub Registrar. In such case, the SPA shall be attested by the Sub Registrar, Vizag.

Please note: The SPA if registered instead of Attestation is not valid. Notary attestation is not valid.

Kshitija Wadatkar Wankhede
Advocate, Greater Mumbai
29 Answers
14 Consultations

4.7 on 5.0

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