Special Power of Attorney and Sale of Property

What is Special Power of Attorney?

There may be many circumstances in a person’s life who owns assets, properties, bank accounts, etc. but who at that moment may not be in the right condition to appropriately execute his/ her duties due to unforeseen circumstances like being ill, being abroad (in case of an NRI) or even when the person is too old to perform his/ her duties etc.

Special Power of Attorney  for sale of property is a document that enables a person to sell a property on behalf of another person. SPA is a transfer of special power which is only granted for a specific Assignment.

Special Power of Attorney can be drafted on legal paper and registered under the Indian Registration Act, 1908 by paying the requisite Stamp Duty before the Sub-Registrar.

Power of Attorney by Non- Resident Indians (NRI)

A Non- Resident Indian can create a Power of Attorney deed while residing outside India without having to visit India solely for that purpose. Majority of NRIs own properties as well as banking transactions in India that could require their appearance while undergoing transactions. However, the same cannot be possible for every such transaction. Therefore, NRIs can always give authority for such transactions to his/ her agent/ attorney who can be a friend or even a family member.

If in case, the Special Power of Attorney is being created in Foreign Country, then it needs to be taken to the Indian Embassy or Consulate in that particular country and get it attested by the authorities  and send the same to Attorney who may get the document registered in India.

Note:

  • The General Power of Attorney remains valid only till the life of Principal and its revocable. Special Power of Attorney gets revoked on its own as soon as the specific transaction for which it was executed is completed.
  • As per the Supreme Court Judgment titled as Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and another:
    • Power of Attorney is not a valid instrument to transfer property titles, However, genuine transactions carried out through General Power of Attorney would be valid.

What is the difference between a GPA and SPA?

A GPA is a lot different from an SPA since a GPA always grants a general power to perform while the special power grants only a specific power to perform a particular duty or assignment.

A GPA encloses a broad range of powers and is not restricted to any particular/ specific responsibility. Therefore, it requires to be given only to a very dependable person. An SPA on the contrary expires as soon as the specific responsibility/ assignment is over.

An SPA is always specific in nature, however, under a GPA there is unrestrictive authority to buy, sell, rent out, recovering debts, opening of bank accounts, close of bank accounts, attending/ appearing the courts, appearing on the direction of the principal in legal disputes or filing tax returns etc. In an SPA, only 1 of the above mentioned duties is to be performed by the agent. An SPA cannot be created for every assignment and therefore, the provision for GPA is allowed.

What should be essentially mentioned in the Special Power of Attorney for Sale of Property?

  • Name of Executant;
  • Acknowledgment of ownership;
  • Description of property including the value;
  • Declaration to Sell the property;
  • Reason for executing the power of Attorney with details of incapacity;
  • Description of identities of Principal and Attorney along with permanent & current addresses.

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