LegalKart Editor

LegalKart Editor

LegalKart has an inhouse team of editors who research on the most relevant topics and write articles which can help understand the issue in a simple and easy manner. LegalKart aims to simplify law and make legal accessible to every Indian.

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Power of Attorney in India for Selling Property
Property

Power of Attorney in India for Selling Property

NRIs use Power of Attorney (‘POA’) as an instrument to appoint an agent/attorney to help them sell their properties in India. NRIs find it difficult to come to India and sell their property, and hence, the concept of a power of attorney exists. A power of attorney authorizes its holder to enter into transactions and take decisions on behalf of the actual owner of the property. 

Special Power of Attorney for Purchase of Property: India Format

 

You can find the format of a power of attorney here,. You should draft a POA on a green stamp/bond paper or a non-judicial stamp paper of INR 100. The NRI should authorise the power of attorney himself and the Indian Consulate in the country of residence. Once authorised, the NRI should send a power of attorney to the sub-registrar’s office and relevant witnesses, identity proofs, and photograph copies.

 

 

You should include certain clauses in a PoA to ensure that no loopholes could pose a threat to the NRI/owner/principal in case of a dispute. Some of these clauses are:

 

 

  • Full details of the parties, including relevant information such as name, age, address, occupation, etc.

  • The reason for entering into this agreement (sale or purchase of property by the NRI in India)

  • Termination clause to ensure that the power is not misused beyond the fulfillment of the objective of this agreement.

  • The clarity in the specific powers granted to the agent and the attached responsibility.

 

 

Power of Attorney by NRI to Buy Property in India

 

 

NRIs often purchase property in India for investment purposes or to have a visiting home/holiday home. However, most NRIs do not have the time to come to India to execute the Sale Deed/Agreement for Sale transaction. Therefore, a power of attorney for purchase of property by an NRI facilitates sale transactions legally. Moreover, 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.

 

 

People Also Read This: Get Your Power of Attorney Carefully Drafted by Expert Lawyer

 

 

Power of Attorney to Sell Property in India

 

 

Power of attorney to sell property in India also requires authorization from the country of residence. Let us examine a few countries of residence and the procedures related to power of attorney therein.

 

 

Australia:

 

 

An NRI must book an appointment with a Notary in Australia where the NRI and two witnesses and the Notary officer would sign the POAon a green stamped or bond paper. 

 

 

After notarizing the POA, you would send it to the Indian Consulate, who would stamp it with an Apostille by the Department of Foreign Affairs (DFAT) and then send it back to India to the appropriate authority duty charges prescribed by the local government.

 

 

Then, you can register the agreement, and the transaction can legally take place.

 

 

UK:

 

 

There is a 3-step process when an NRI from the UK wishes to purchase or sell property in India. 

 

 

Firstly, an attorney from India must draft the POA according to the needs of both parties and according to the applicable laws (ICA, 1872, or RERA, 2016, etc.) in India.

 

 

Secondly, the POA must be sent to the place of residence, i.e., the UK, where you can get it notarized by a Notary Public for a charge between 20 to 100 pounds. The concerned NRI, along with two witnesses and the Notary, will have to sign the document. After notarization, the Indian Consulate, located at the Indian High Commission, London, would attest the same. 

 

 

Thirdly, the document can be sent to the attorney in India where registration happens, and the transaction can legally take place.

 

 

USA:

 

 

There is a 3-step process when an NRI from the US wishes to purchase or sell property in India.

 

 

Firstly, an attorney from India must draft the POA, and the NRI and two witnesses should sign this agreement. The notarization of the document should be done in the presence of a Notary Public. Further, it must be sent to the Indian Consulate for his/her signature. An appropriate fee would be charged for attestation, notarization, etc.

 

 

Secondly, the POA must be sent to the Secretary of State for an apostille from the Department of State, Authentications Office, which will use the Seal of the US Department of State to authorize the document's validity will be sent overseas.

 

 

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Thirdly, the agreement shall be sent to the attorney in India for the legal execution of the transaction.

 

 

The POA is a powerful document and must be drafted between two parties that trust each other. The agent must be selected with caution as the agreement would transfer significant power to decide the owner/principal to the agent. A poorly drafted agreement that does not consider the risks involved (such as consideration, percentage of share between co-owners, obligations of agents, the role of decision making by an agent, etc.) would cause litigation which would severely affect the parties.

 

Permission for Sale of Minor Property
Property

Permission for Sale of Minor Property

The Indian Majority Act, 1875 specifies the age of majority in India. The Act states that the age of the majority in India is “18 years,” and any individual living in India who is below the age of 18 years is a minor. Minors cannot enter into contracts until and unless their guardians enter into contracts on their behalf. Let us find out how one gets permission to sell a minor’s property. 

 

Can a Guardian Sell Property?

 

 

Section 8 of the Hindu Minority and Guardianship Act, 1956 identifies the powers of a natural guardian or legal guardian. Clause (1) states that the natural guardian has all the power to do any act necessary, or reasonable, or proper in the eyes of the law for the sole purpose of such an Act is beneficial to the minor that it shall protect the minor or minor’s estate. 

 

 

Therefore, it is clear from the above provision that a natural guardian can sell the minor’s property (the Act) for the sole purpose of benefiting the minor.

 

 

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Can a Guardian Sell Minor’s Property?

 

 

The Supreme Court in Saroj v. Sunder Singh & Ors. held that a guardian cannot sell a minor’s share in the property without the permission of the appropriate Court. Furthermore, section 8(2) of the Hindu Minority and Guardianship Act, 1956 states that minors’ immovable property cannot be mortgaged, charged, or transferred by sale, gift, exchange, or in any other mode without the previous permission of the Court.

 

 

Further, Section 8(3) states that if any natural guardian disposes of any immovable property in contravention to clause (2) of Section 8, then such a sale would be voidable at the option of the minor. However, the said minor can challenge such a sale only within the limitation period, which shall begin running against them after they attain the majority.

 

 

Further, suppose a minor, after attaining majority, wishes to set aside the sale deed as such property belonged to the minor. In that case, such a suit must be filed within the limitation period prescribed under Article 60 of the Limitation Act, i.e, 3 years after attaining majority. 

 

 

Can a Minor Purchase Property?

 

 

For a minor to purchase property in India, he or she must enter into a valid contract of purchase and sale of such property. This agreement is known as an ‘Agreement of Sale’. Every agreement shall be a valid contract in India if it fulfils the criteria under Section 10 of the Indian Contract Act, 1872. Further, Section 11 highlights competent to be a valid party in any valid contract in India.

 

 

Section 11 states that every person of the age of majority will be competent to enter into a contract if they are not barred by other conditions mentioned in the section. Therefore, a minor, i.e, anyone who is not of the age of majority (18 years), will not be competent to enter into a contract. Any agreement entered into by a minor will be void ab initio (void from the beginning) the eyes of the law. 

 

 

People Also Read This: Inheritance Rights of Grandchildren in India

 

 

The provisions under the Transfer of Property Act, 1882, especially section 6 and 7 of the Act do not bar a minor from contracting. However, from the conjoint reading of the above two Acts, it can be deduced that a minor can be a valid transferee and receive property. 

 

 

A minor can acquire property through the hands of either his/her natural guardian (mother or father) or through a guardian appointed by the appropriate Court in the absence of such natural guardian. In such a case of acquisition, the purchase of property would be valid. 

 

 

After valid purchase, the natural guardian can register the property in the name of the minor under Section 35 of the Registration Act, 1908. However, the execution of such registration shall take place before the appropriate Court’s permission after satisfaction that the property acquired was legal and valid.

 

 

A minor can acquire a property by way of gift also. Here, there is no need for the intervention of the law, Court, or guardians of the minor. The reason for the same being that in case of a gift, acceptance by the donee is the only required to make it effective.

 

 

Lastly, a minor can acquire property using inheritance, be it intestate or by way of a will. In case of ancestral property of a Joint Hindu Family, the minor (both son and daughter, since 2005) will receive an equal share in the capacity of a coparcener after the death of the last holder of the property.

 

 

Hence, a minor, though not competent to enter into a contract can sell property through his guardians. A minor can also receive property through the means listed out above.

 

Stamp Duty and Registration in India
Registration & Licenses

Stamp Duty and Registration in India

Stamp Duty and Registration Charges

 

The Indian government levies stamp duty on various legal papers such as sale deeds, conveyance deeds, gift deeds, and mortgage deeds. These agreements establish the contracting parties' obligations and rights. Stamp duty and registration fees ascertain possession and serve as proof of sale/purchase in a court of law. The sum you must pay to the authorities to register a property in your name is stamp duty. The cost of stamp duty varies based on the region's circular rates. The amount of stamp duty varies from state to state. 

 

 

The most conventional method of paying stamp duty and registration fees is to purchase physical stamp papers. One can buy non-judicial stamp paper from a licensed dealer here. Papers with imprinted stamps are known as non-judicial stamp paper. The transaction information can be written/typed on the stamp paper after purchase. The conventional method of paying stamp duty and registration fees is to buy physical stamp papers. You can purchase non-judicial stamp paper from a licensed seller. Paper with imprinted stamps is known as non-judicial stamp paper. The transaction information can be written/typed on the stamp paper once you have purchased it.

 

 

The government implemented e-stamping to prevent counterfeit stamp sheets and make stamping easier. Several states permit e-stamping. E-stamping is simply stamping done via the internet. The Stock Holding Corporation of India Limited (SHCIL) has been named the official e-stamping vendor and the Central Record Keeping Agency for all e-stamps used. To perform e-stamping,  you need to access the SHCIL website. Details on the transactions that must be e-stamped are present online. After filling the application form, you can return it to the collecting center with the stamp duty payment. Different modes of payment are adopted, including debit cards, credit cards, checks, demand draughts, and internet banking. Upon paying the stamp duty,  you would get the e-certificate. The issuing date is included in the certificate's unique certificate number (UIN). E-stamping has the advantage of being accessible and allowing for online verification.

 

 

Franking is a procedure in which an authorized franking agency stamps your document to indicate the amount of stamp duty you have to pay. One should contact an authorized bank that will function as a franking agent or a franking agency to deposit the stamp duty before you complete the transaction for which you must pay the stamp duty. 

 

 

 

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Stamp Duty on Gift Deed

 

The transferee or donee is obligated to pay stamp duty unless there is an agreement to the contrary. An agreement or gift deed, on the other hand, might indicate differently. The stamp duty is agreed to be paid equally by both parties in many sales and gift deeds. Get the stamp papers in the name of one of the parties to the gift, i.e., the donor or the donee; otherwise, the stamp paper will be rendered useless. If you pay the stamp duty on time, it is valid for six months from the date of purchase. Penalties, such as monetary fines, can be incurred if a document that needs stamping is not stamped correctly. If you don't pay your stamp duty on time, you'll be charged 2% every month, up to a maximum of 200 percent of the amount you owe in stamp duty.

 

 

Stamp Duty Registration Calculator

 

 

The bottom line is that stamp duty is computed based on the property's entire market value. If your asset's market worth is high, you'll have to pay a hefty fee and vice versa. If the property has both a market value and an agreement value, you will pay stamp duty on the higher of the two. Apart from the property's cost or worth, the kind of property, location, the owner's gender and age, the property's use, and the number of floors in the property all influence the property registration fee and stamp duty costs. Stamp duty officials usually utilize Stamp Duty Ready Reckoner to determine the property's value. Consider using one of the many online stamp duty calculators available to figure out how much stamp duty you'll have to pay. To receive your answer, enter basic information about your property, such as its location and total worth, and then click the "Calculate" option. To calculate the total sum required to register your property, add the cess and surcharges.

 

 

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Stamp Duty Value

 

 

Any value set by any authority of the federal government or a state government for stamp duty payment on immovable property is referred to as stamp duty value. When acquiring a property, it is necessary to set up a substantial sum for stamp duty and registration fees. Registration fees are paid to the same body that handles all the paperwork required to complete the procedure. Suppose the actual sale consideration of such land and the building is less than the stamp duty value. In that case, the stamp duty value will be considered an absolute value of consideration, i.e., as deemed selling price, and capital gain will be computed accordingly to section 50C.