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Can’t use PoA to transfer rights of immovable property

It can't be used to transfer any right, title or interest in an immovable property

My mother has a flat in Mumbai. She had given me power of attorney (PoA) three years ago so that I could sell the property on her behalf. The general power of attorney (GPA) is not registered. If the GPA is registered, can I sell the property?

—Jayesh Mathur

A PoA is a formal arrangement by which one person (donor-principal) gives another person (the attorney-agent) authority to act on his behalf and in his name. Every act performed by the attorney within the authority of the PoA is legally binding on the person granting it. PoAs can be of two types: special power of attorney (SPA) and general power of attorney. An SPA is used for a specific transaction and authorizes the agent to act on behalf of the principal for a specific purpose. And the GPA gives the agent broad powers to act on behalf of the principal. It covers more than one subject matter and normally gives the agent the right to conduct financial and legal affairs on behalf of the principal, including the right to buy and sell property, liquidate bank accounts and so on. It may be pointed out that a PoA is not an instrument of transfer with regard to any right, title or interest in an immovable property. Even an irrevocable PoA does not have the effect of transferring title to the grantee. An attorney holder may, however, execute a deed of conveyance in exercise of the power granted under the PoA and convey title on behalf of the grantor.

The Registration (Maharashtra Amendment) Act, 2010, effective from 1 April 2013, has resulted in amendment of section 17 of the Registration Act, 1908, in its application to the State of Maharashtra. As per these amendments, an irrevocable PoA relating to transfer of immovable property in any way, executed on and after the commencement of the Registration (Maharashtra Amendment) Act, 2010, shall be compulsorily registrable. Thus, any PoA granted to a person for sale of immovable property will have to be registered with the applicable sub-registrar of assurances, failing which it cannot be put to use.

Hence, you can sell the property only if you have a registered PoA. However, the relevant sub-registrar may not allow the sale of immovable property through a GPA and may insist on a specific PoA for the sale.

Further, it is advisable to mention the details of the property in respect of which the PoA is to be utilized.

According to article 48 of the Maharashtra Stamp Act, the stamp duty payable on a PoA, not being a proxy, when authorizing to sell or transfer immovable property, without consideration or without showing any consideration as the case may be, if given to the father, mother, brother, sister, wife, husband, daughter, son, grandson, grand-daughter or father, mother, brother or sister of the spouse, shall be 500.

If it is executed in favour of a person other than a close relative, authorizing her to sell or transfer the immovable property, the stamp duty payable is the same as that on the sale of property.

Queries and views at mintmoney@livemint.com

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