Statutory Compliances In Kerala For Transferring Immovable Properties Through Power Of Attorney
Articles / By Kurian K Jose
Power of Attorney (“POA”) is a handy instrument where a person could not be personally present to execute legal documents, appear before authorities and conduct legal proceedings, in connection with the transfer of immovable properties. Instead of being personally present to do the said acts, one could appoint a person through a POA, to do the said acts on his behalf. POA for the sale of immovable properties could be particularly useful for people who are residing outside India, like NRI’s and foreign citizens. This article discusses the legal compliances, stamp duties, and registration fees in Kerala, in connection with the transfer of immovable properties through a POA.
Execution of POA – As per Section 33 (1)(a) of the Registration Act, 1908(“Registration Act”), if the POA is executed in India, it has to be printed in a stamp paper of appropriate value and authenticated before the Registrar or sub-Registrar within whose district or sub-district the executant resides. If the POA is executed outside India, as per Section 33 (1)(c) of the Registration Act, it has to be Notarized and attested at the Indian Consulate of the country where it is executed. Thereafter, for adjudication of stamp duty, the said document has to be presented before the Adjudication Officer in Kerala and the stamp duty so adjudicated, under section 31 of the Kerala Stamp Act, 1959 (“Stamp Act”), has to be paid.
Stamp duty to be paid – Where the POA for the sale of immovable property is executed in favour of the father, mother, wife, husband, son, daughter, brother, or sister of the executant, only Rs. 600/- needs to be paid towards stamp duty, as per Sl. No. 44 (g) of the Schedule of the Stamp Act. However, when the POA is executed in favour of any other person, 8% of the fair value of the land to be sold or the amount of consideration, whichever is higher, is to be paid towards stamp duty, as per Sl. No. 44 (f) of the Schedule of the Stamp Act. Please note that this 8% stamp duty is over and above the 8% stamp duty on the fair value of the land or the amount of consideration, whichever is higher, that one needs to pay while executing the sale deed.
Registration – Where the POA for the sale of immovable property is executed in favour of the father, mother, wife, husband, son, adopted son, daughter, adopted daughter, brother, sister, son-in-law, or daughter-in-law of the executant, registration is not compulsory. However, when the POA is executed in favour of any other person registration is compulsory as per Section 17(g) of the Registration Act. In such cases, the POA has to be presented before the concerned Sub Registrar Officer for registration. The registration fee in such cases shall be 2% of the stamp duty paid to such POA, subject to a minimum of Rs. 210, as per Article I (a)(2) of the Table of Fees under section 78 of the Registration Act. Please note that this 2% registration fee is over and above the 2% registration fee on value, that one needs to pay, while executing the sale deed.
Thus one could save a stamp duty of 8% on the fair value of the land to be sold or the amount of consideration, whichever is higher, and a registration fee of 2% on such stamp duty, if the POA for the sale of immovable property is executed in favour of his father, mother, wife, husband, son, daughter, brother or sister.
One issue that, people executing POA for the sale of immovable property face is that, some Sub Registrars are insisting on the personal presence of the executant for the registration of POA. This would in effect defeat the very purpose for which the POA is executed as the executants in most cases are NRIs and foreign citizens residing outside India. Taking note of this issue, the Hon’ble High Court of Kerala in Mary Vs. Sub Registrar, Irinjalakkuda & Ors. 2021(1) KHC 243, had categorically held that, the Power of Attorney holder is eminently qualified to present the POA for registration as per section S.32(c) of the Registration Act and the personal presence of the executant of the POA should not be insisted.
