Buyers: Joint owners 1. Husband: Mr. X Sojer 2. Wife: Mrs. Y Sojer Buyers were represented by POA which was notarized in the USA but it was not adjudicated in India and it was not registered in India in the sub-registrar office. Let's call this POA Mr. POA_Buyer, also Mr POA_Buyer passed away 2 years back and he executed the sale deed on Mr X and Mrs Y's behalf in 2010. Mr. POA_Buyer was the father of Mrs. Y and the father-in-law of Mr X. Unregistered GPA document was notorized in 2009. Sellers: Builder: ABC Corp Ltd Landowners: 5 individuals Both builder and landowners are represented by Power of Attorney: Mr POA_Seller. This POA is registered in the sub-registrar office. Property Transaction Summary: Mr. X Sojer and Mrs. Y Sojer purchased a property from Builder A and the 5 landowners (sellers). Mr X and Mrs Y(buyer) were represented by POA_Buyer and BuidlerA and 5 landowners(sellers) were represented by POA_Seller and the sale deed was executed and registered in the sub-registrar office by these 2 GPAs, effectively transferring property ownership to Mr. X and Mrs. Y from sellers. Current Issue: 1. Seller's GPA was registered(buillder+landowners), while the buyer's GPA was not(Mr X and Mrs Y). Is it necessary for the GPA of the buyer to also be registered, GPA was only the signing authority, and ownership is in Mr. X and Mrs Y's name only. The new property transfer Mr X and Mrs Y now wants to do without any GPA to a new buyer. 2. Mr. X and Mrs. Y are facing questions from a new buyer regarding the registration of the GPA for Mr. POA_Buyer not being done. 3. Additionally, there is a typographical error in the sale deed, where "Sojer" is misspelled as "Sojar." Solution: 3 opinions I learned based on the feedback on this case from 3 lawyers, they are follows: Opinion1. Registering the correction deed mentioning spelling mistakes and certifying the unregistered buyer GPA in the sale deed from buyer side as valid by Mr X and Mrs Y should solve the concerns and make everything legal. This correction deed can be executed by Mr. X and Mrs Y with the seller's GPA and registered. Opinion2. The Seller GPA becomes a witness to the new sale deed registration between MrX and MrsY with the new buyer. This protects from all issues that may arise due to an unregistered buyer GPA. Opinion 3: This issue has become too complicated and not recommended for new buyers to go ahead as the title to the property is not certain. Please suggest how we can solve this problem for Mr. X and Mr Y and also the new buyer so that new buyer becomes the rightful owner and also not face problems in reselling this property later.
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1) deed of rectification has tobe executed to rectify mistake in sale deed
2) POA for purchase of property needs to attested before Indian consulate abroad
3) mere notarised POA does not confer title to property
4) deed of confirmation can be executed by sellers that property was sold to buyers
Also, the GPA document in which Mr X and Mrs Y gave the powers had these mentioned as powers specifically: Our said Attorney is authorised to generally to do all acts, deeds and things, as deemed fit by him and in particular, the following acts, deeds and things, that is to say- To manage, to maintain, to make alterations, repairs and additions to the Schedule Property; To let out to any person or persons on the terms and conditions as deemed fit; To enter into any Agreements, and rectify or alter or cancel the same; To deliver possession and to receive back possession; To make any payments or receive any payments and to obtain or issue any receipt/s; To appear before any Authority or Court or person; To give Undertakings, any Statements, Declarations; In case of any disputes, to take suitable action in the matter, to institute or defend any Proceedings, Suits or Appeal or Revision or Review Petition, to compound, to settle or compromise; to sign any Plaint, written Statement, Objection Statement, Affidavit, Application, Petition Statements or Declarations; To engage any advocate, to execute any Vakalath; To give evidence to produce any documents to receive back any documents or in any Court or any authorities To deal with bank or financial institutions in the matter of making any payment, receiving any payment, to receive back Title Deeds after discharge of loan or credit facilities To appear before and to deal with and represent before corporation, or income tax authorities, or other authorities. To make payment of taxes, maintenance charges and other dues to the concerned authorities or persons or institutions or society. To obtain any license or permission from any authority for any purpose. To engage any professional or person or agency or labourer or worker for any purpose. To incur all necessary expenses on our behalf. And GENERALLY, to do all the acts, deeds and things as deemed fit by our Attorney relating to above matters. Please check
POA holder had no power to purchase the property
2) there is no such clause in POA
3) don’t purchase the property
i wonder why cannot people frame their questions in a simple way
your question is so complicated that i had to read it twice to understand the issue
the POA executed by X and Y and signed before the notary in the USA is perfectly valid and it is not additionally required to be registered with the Sub-Registrar in India
the spelling error in the sale deed does not require any correction deed. This fact can simply be mentioned in the sale deed to be executed between X and Y [as sellers] and the new buyer
the opinions which you have got from certain 'lawyers' are preposterous. It seems those 'lawyers' have not read the Registration Act, 1908
if there was any issue with the POA of X&Y in favour of Y's father, then at the time of registering the sale deed with the builder, the sub-registrar would have refused to act on that POA.
Just because the builder's + Land owners' POA is registered [which is a misnomer since a presentation POA is not registered with the sub-registrar's office but only attested by the sub-registrar] would not mean that the buyer side POA should also have been registered.
Dear Yusuf, Point taken. I tried to provide as much detail as possible. Have you had a chance to review the Buyer POA clauses I pasted above from the GPA document? It appears that it lacks the clause for executing the Sale Deed based on Mr. Ajay's response. Isn't that a concern? Also, the registration of the POA is causing confusion on the buyer's side, especially after the Supreme Court's judgment in 2011, mandating the registration of GPAs. Mr. Anil, Mr. Yusuf, Could you please suggest whether a correction deed would resolve this issue? Let's consider this concern not only from the perspective of the new buyer but also how we can solve the problem for Mr. X and Mr. Y (the current owners). What can we do to mitigate this legal issue stemming from the GPA not being registered for their father (father-in-law)? Thank you.
Dear client, In India, it's generally advisable to have the power of attorney (GPA) for buyers registered. While a GPA may only be a signing authority, registering it adds legal validity and authenticity to the document. The Supreme Court's judgment in 2011 emphasized the importance of registering GPAs to avoid disputes. So, it would be best for Mr. X and Mrs. Y to consider registering their GPA.
Typographical Error in Sale Deed: The misspelling of names in a sale deed can be corrected through a correction deed. This would help ensure that the property title reflects the correct names of the buyers.
New Buyer's Concerns: If a new buyer is interested in the property, they may still have concerns about the unregistered GPA for Mr. POA_Buyer. To address this, Mr. X and Mrs. Y could consider executing a correction deed that includes the spelling correction and explicitly states that the unregistered GPA is valid and authorized by them. This correction deed should be registered to make it legally binding.
Legal Complexity: The third opinion suggests that the issue is too complex and not recommended for new buyers. While this is a cautious approach, it may not be necessary if the correct legal procedures are followed to rectify the situation.
i did not see your follow up which i believe has enlisted all the powers that are granted under the POA
I do not see any power to sign and execute any sale deed and to take steps for registering the same by complying with the registration formalities
it appears that the sub-registrar may have relied on the following powers, for registering the sale deed
To enter into any Agreements, and rectify or alter or cancel the same;
To appear before any Authority or Court or person;
To appear before and to deal with and represent before corporation, or income tax authorities, or other authorities.
now there are 2 things: implied authority and ratification of an act which was not authorised
it is not the case of X and Y that Y's father's act of registering the sale deed was illegal and without any authority
in fact X and Y by their conduct have accepted the act of registration of the sale deed by Y's father on behalf of X and Y
Thus even though there is no power in the POA in favour of Y's father to sign and register a sale deed on behalf of X and Y, it can be said that Y's father had an implied authority
X and Y can also ratify the act of the grantee of the POA of signing and registering the sale deed on their behalf, which can again be either express or implied
see s. 186, 196 and 197 of the Indian Contract Act, 1872
so X and Y can make an affidavit [for the new buyer's purpose] that their grantee had an implied authority to sign and register the sale deed on their behalf and even otherwise the said act is being ratified by the donors of the POA
This should allay any doubts in the minds of the new buyer
a correction deed would require the sellers to be parties. so you will have to approach them. and you may or may not be entertained by them. and by making a correction deed you are in a way admitting that there is some defect in the sale deed by which X and Y acquired title. so i don't see how a correction deed helps
had there been any dispute between the donors and donee of the POA then it was another thing. Here there is none. So you can explore the route of the affidavit as stated above and satisfy your buyer
1. Registration of POA was made compulsory based on the Hon'ble Supreme Court's judgement in Suraj Lamp Industries Vs State of Haryana in 2011.
2. Registration of POA was not compulsory prior to the date of judgement in 2011.
3. Even though the registration of POA was not compulsory in the year 2009, but there was no clause of executing the sale deed on behalf of buyer in the POA.
4. To resolve this issue let the POA_Seller execute a registered Confirmation Deed in favour of Mr. X and Mrs. Y. for the property in question.
POA needs to be registered
in present case it is merely notarised
if POA is executed abroad it needs to be attested before Indian consulate
there is no specific clause authorising POA holder to purchase property
Yes a rectification deed will suffice the purpose
- A POA dully notarized in USA is valid in India , if it is attested from the consulate of India , and the registration of that POA is not mandatory for executing a deed on behalf of principal
- Further, if that POA was only notarized in USA and not attested from the consulate of India, then the said POA is not having a legal value , and the attorney holder having no right to enter into any transaction of property on behalf of the principal
- Further, a notarized GPA having no legal value in the eye of law presently , however as it was done before passing the Supreme Court judgement in 2011 , then it can be considered as valid.
- Further, a mistake in the deed can be rectified after executing a registered Rectification deed.
The sale deed was executed in the year 2010, at that time the registration of GPA to deal with immovable properties was not insisted hence the sub registrar allowed the power agent to sign the sale deed on behalf of the buyers.
But as the property is in possession of the joint owners subsequent to execution of sale deed, it can be said that the buyers have clear and marketable title on their names.
As far as the error in spelling in the name of one of the buyers, the seller may be approached to get a reification deed executed to rectify the error.
Besides the seller can be a witness to the sale deed that you may propose to execute in favor of the prospective buyer.
These are the general terms that will be present in every general power of attorney deed.
The question or the problem you face now is that the POA deed was not registered nor adjudicated, hence you may have to concentrate on that point.
You have mentioned that the supreme court has mandated the registration of the POA deed in respect of the transaction of immovable properties in the year 2011..
Whereas your property was purchased in the year 2010, and at that time the sub registrar was not insisting on a registered POA deed hence there is no illegality
Your buyer is creating an unnecessary controversy over this issue instead of understanding the practical problems in this regard.
Registration of POA was not compulsory prior to the date of judgement in 2011.
Similarly adjudication by sub registrar also was not mandatory at that time.
Since the buyers have accepted the purchase of the property done through their power agents, and there is no issue between the buyers and their power agents, there is no issue at all here at least not to the extent of this big controversy.
Please refrain from asking questions privately on other forum
Not here to give legal advice for free
Highly inappropriate conduct!
Yusuf - Noted. But do understand every comment is costing 500rs. So many opinions have just added to the confusion. Responses with reference to law documents and section numbers in the Registration Act 1908, could back the opinions strongly and would have helped. Section 33 of the Registration Act 1908, clearly states that powers-of-attorney (legal documents giving someone authority to act on your behalf) are recognized in India. It says that if you're in India, the document needs to be approved by certain officials. If you're not in India(current case of Mr X and Mrs Y), it can be approved by a Notary Public or other specific authorities. It also mentions some exceptions for people who can't go in person. Check Section33 of the Registration Act 1908 here: https://incometaxindia.gov.in/pages/acts/registration-act.aspx Here are the exact words from Section33: "Power-of-attorney recognizable for purposes of section 32. 33. (1) For the purposes of section 32, the following powers-of-attorney shall alone be recognized, 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 :" So the GPA document that was authenticated by Notary Public for principal X and Y giving POA to POA_Buyer is valid. 2011 court judgment came later and is not relevant as it is buyer GPA.
the judgement have prospective effect if the transaction is before then it will not be affected. But you need to do the sale deed in future if you need a good title
In the instant case, the POA executed by Mr. X and Mrs. Y appointing Mr. POA_Buyer does not have a clause of representing the Principal (Mr. X and Mrs. Y) for executing the registered sale deed/buying the property on their behalf. To resolve this issue, let the POA_Seller execute a registered Confirmation Deed in favour of Mr. X and Mrs. Y in respect of the property in question in the jurisdictional Sub Registrar's Office.
You have understood the position of law as provided therein suiting your topic.
As a matter of fact the notarised POA prior to the year 2011 is very much valid and it has been rejected only after the judgment by supreme court in the year 2011.
Hence your case is perfectly alright, do not get confused reading too many opinions, you can choose whichever suits your situation
In 2010 it was not necessary to register POA
to that extent you are correct it would be valid
2) however As per section 3 of the Diplomatic and Consular Officers Act, 1948 notarizing a deed from an authorized officer of the Indian embassy would be considered a valid notary.
3) in present case POA is not attested
by Indian consulate abroad but only notarised
4) Section 85 of Indian Evidence Act, 1872 contains presumption as to power of attorney which means that the court shall presume that every document proposed to be a power of attorney and have been executed before must be authenticated by a notary public or any court, judge, magistrate, Indian Consul or Vice-Counsel, or representative of the central government.
So what do you expect that you will be replied for free?
If you have doubt which requires a follow up query then obviously you will have to pay for that
Nobody is sitting here to do any charity!
On this platform there are various lawyers who answer to a particular query
No one lawyer knows the answer given by the other
So if many lawyers give answer it is but obvious that most likely they will be giving varied and not unanimous answer as the lawyers here give their own answers and don't consult each other before replying
It is for the person who has asked the question then to decide whose answer he found most suitable and act accordingly for his situation
And what is the meaning of reproducing the sections from the registration act?
If you knew the answer as per these sections then why was the question even posted?
In my initial response I did tell that the poa is valid
Your doubt still was regarding absence of powers in that poa
That also was replied by citing the relevant legal provision
If you still have doubts then you are required to book a paid phone consultation with any lawyer of your choice from among the lawyers who replied to your query
Sending messages over other platforms in private is so wrong and that too being associated with a reputed company
So you need to understand first how to behave on a public platform like this one
When you see a doctor you pay his initial consultation. When you go to the doctor again for follow up sessions, does the doctor look to you or entertain you for free ? He would charge you for the follow up consultation
The fee that you may have paid goes to Kanoon and not to any lawyer here who answers your question.
The lawyers here answer to get an online presence by sharing their knowledge and information. This is done without any fee. Client lawyer relationship gets established only when the queriest books a paid phone consultation with the lawyer of his choice. So Noone is obliged here to answer your question for free.
Admin - please see to it that this person is not able to post any further queries and that I should not get notification about any further queries posted by him.
Unregistered GPA of the Buyer (Mr. X and Mrs. Y): In many jurisdictions, a Power of Attorney (GPA) for the buyer does not necessarily need to be registered if it is only used for the signing authority and not for transferring property ownership.
Typographical Error in Sale Deed: If there is a typographical error in the sale deed, you can consider executing a correction deed (also known as Rectification Deed) to rectify the error. This correction deed should be executed by Mr. X and Mrs. Y, and it should be registered with the sub-registrar's office to make the necessary correction.
New Buyer: When selling the property to a new buyer, it's crucial to ensure that the title to the property is clear. This may involve addressing any concerns related to the unregistered GPA and the typographical error. The new sale deed with the new buyer should be carefully drafted and registered.