Is property registration valid through SPA Special power of Attorney

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the Honble Supreme Court vide its judgment rendered in case titled as Suraj Lamp and Pvt. Ltd. v/s State of Haryana and another. Honble Apex Court dealt with is whether immovable property can be legally transferred or conveyed through a General Power of Attorney, Agreement to Sell and a Will? Before we embark upon this question, it is very essential to know as to why such kind of indirect sales came into existence. The most dominant reasons for such kind of Indirect Sales were to avoid prohibitions/ conditions regarding certain transfers (as some deeds of conveyance contain the clauses that the property can only be sold after 15 years from the date of construction of some building on the plot/property), to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest black money etc. The seller of the immovable property in these indirect sales after receiving the agreed consideration, deliver the possession of the said property and executes some or all of the following documents: (1) An agreement of sale (containing the terms which would be similar to terms of sale) by the seller in favor of the purchaser and undertaking to execute any document as and when required in future. (2) An agreement of sale agreeing to sell the property with the separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required. (3) An Irrevocable General Power of Attorney in favor of the purchaser or his nominee. (4) A Special Power of Attorney either to sell or to manage the property. (5) A Will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected). The Honble Apex Court noted that such kind of Indirect Sales adversely affected the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the Government and Public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption.

Advocate Siddhant Sharma LawRato