Is it necessary for the owner of a flat to be in India for its sale?

My son lives in the US. We are joint owners of a flat here. Is it possible to sell this flat without his having to visit India?

—Name withheld on request

It is possible to sell or transfer the immovable property in India without the owner (co-owner, in this case) travelling back to the country.

For this, a special or specific power of attorney (PoA) should be executed in favour of a family member, relative, trusted advisor or confidant in the state where the immovable property is located.

This PoA should encompass rights only in relation to the immovable property in question. Such a PoA gets automatically revoked after the execution of the particular act for which it was granted and hence is generally preferred as a risk averse alternative. The PoA document should be prepared with the help of a lawyer/legal expert. Further, there is per se no prescribed format for the PoA and it may be prepared on either a stamp paper or plain paper as well.

The PoA should have all details of the immovable property along with photograph and KYC details of the executant (person executing the PoA) and the attorney holder (person in whose favour the PoA is executed) along with the names, addresses and KYC details of two independent witnesses. The PoA will have to be first notarized and then apostilled by the state authorities concerned in the US. Apostilling is done at the offices of the Secretary of State where the applicant resides.

Thereafter, it is advisable to have the special PoA attested by the Indian consulate in the US along with supporting documentation such as application form, copy of passport of the applicant, proof of US visa status along with payment of nominal statutory fees.

Finally, the special/ specific PoA shall delivered in original to India, wherein it will have to be registered by the attorney holder at the sub-registrar’s office and stamp duty shall be payable in accordance with the applicable state Stamp Act.

All this should be completed in a time-bound manner, else it may run the risk of being misused. In particular, registration with the concerned land department of the state government within 3 months of its execution.

However, since execution of PoA is a state-driven subject, the exact method may slightly vary from state to state.

Keshav Singhania is head, private client, Singhania &Co.