June 4, 2018
Legal Assistance Required : Comment
My father through will transferred his Property to his children equally, three sons and one daughter. In will it was written in respect of sons that property goes to my ‘sons and his wife’. Individually only sons name was not written. Property transferred by my father was consisting both ancestral as well his self acquired property.
I am Living in England and Property is in India and i am trying to sell my share of property. But,the problem is in will ‘my wife’s name along with me was written’.
So, for registry, is it necessary to bring my wife to India or i am competent enough without my wife for the registry.
What is rule in respect of this in India?
Olga Tellis v. Bombay Municipal Corporation
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No u had to come along with ur wife as she is the part of will and her title was mentioned in the will so without her presence u can’t dispose off the land as she is a party too.
In case of agriculture land – state land revenue code like in u.p. – uttar Pradesh land revenue code 2006 and uttar Pradesh zamindari ablution act and in case of other property transfer of property act will apply.
I think so that it is necessary to bring wife along with if the authority allow u can take a authority letter from wife like power of attorney that i am along my husband Mr._______ to act in my behalf and dispose of the property.
In India, the registration of Wills is not compulsory even if it relates to immoveable property. The non-registration of a Will does not lead to any inference against the genuineness of a Will. In other words, registration therefore does not give any special sanctity to the Will though registration of the Will by the testator himself evidences the genuineness of the Will.
Whether registered or not, a Will must be proved as duly and validly executed, as required by the Indian Succession Act.
However, if a situation arises that it is mandatory to register the will the testator i.e, the person who is in charge of executing the will along with one or two witnesses can go to the registrar or sub registrar and get the will registered.
So, it is not mandatory for you to bring your wife also if there are enough witnesses present you can also avoid coming down to India.
After analysing the will, the property which you (son) got is co-owned by your wife too and for the same, the physical presence of both the co-owners is necessary at the time of registration of the sale of the property.
But, with the Registered General Power of Attorney (GPA) made by your wife of her share in your behalf will make you able to sell the entire property (co-owned by you and your wife, which you got through will) without the physical presence of your wife, because with the making of GPA, you will get sole authority to manage that property.
So, when you have GPA, it is not necessary to take your wife to India, only for the sake of Registration.
Moreover, with the advent of E-Registration, you can sell and purchase property laying back at your home. The requirement of signatures is fulfilled with the Digital ones and the witnesses can attach their biometrics, showing their accountability for the same. So, for you, it is even not required to come and show your physical presence. (This process will be dealt with the provisions of FEMA, 1999).
To get the legal position, please refer the points which are hereinafter provided.
LEGAL POSITION
The present facts show that the property which is transferred in favour of sons by their father through will (taking effect by operation of law after his death) is co-owned by the “son and his wife”, which is clear from the language of the will when interpreted in the whole essence.
The issue which arose in the current case is that Whether is it necessary to bring his wife to India or he himself is enough without his wife for the registry of selling the property which is co-owned?
To get a clear picture regarding the same, we need to follow through to Section- 44 of the Transfer of Property Act of 1882 (referred to as “TPA”). And this section clearly shows that a co-owner can only transfer his own share in such property that too if he is legally competent to do so (fulfilling essentials of Section 7 of TPA). In lieu of the same, the fact sheet shows that the son is legally competent to transfer his share, but if he has to sell the entire property (co-owned by him and his wife), then it is mandatory to seek the consent of the wife too.
So, the general rule is that both son and wife needed to be present at the time of registry for selling their respective shares, jointly.
But, if it is inconvenient for the wife to travel to India, then another alternative can be Registered Power of Attorney (also known as “Authority Letter”) made by the wife in favour of his husband, to take decisions on her behalf in respect of that property situated in India. With the help of this, the son himself can sell the entire property which is co-owned by him and his wife, without the physical presence of the wife at the time of registration.
Firstly, in case of ancestral property the wife will not get any share and thus her presence is not required for the same.If he wants to sell hus share that will take place with consent of other coparcners.
In case of self acquired property, the wife can trasfer the right to dispose off her 1/6th share to her husband by Special Power of Attorney and thus she need not come for the same.
It is not mandatory for your wife to be present during land registry. And as you and your wife both are NRI so, according to special legal provisons related to NRIs, the presence of co-spouse owner is not mandate during the land registry but your wife needs to give Power of Attorney(POA) to you. A “Power of Attorney” (POA) is a legal instrument whereby one person gives another person the authority to be his/her representative and to make binding legal and financial decisions on his/her behalf. Or instead as you both live outside India, you both can also give Power of Attorney to any body present in India from the Indian Consulate situated in your country.
The person is competent enough for the registry of property without the wife.
The wife if gives POA – Power of Attorney to her husband thereby transferring her rights to him to sell the property.
The consent should be free from any external influence like coercion, fraud, undue influence etc.
In order to sell the property the husband needs consent of wife although husband can sell his share of property but if he wants to share his wife’s property then wife shall come to india with him.
It is the situation of joint tenacy where property is owe by two or more person in equal share. Another aspect is According to Section 44 of Teansfer of Property Act,1882 deals with right of transfer of co owner and rights of transferee in this type of transactions.
According to this act every co owner has jointly properietry right in entire property.Hence,any sale is done with the consent of all the co owners involved.
If, however there are specific conditions in the agreement that gives co-owners exclusive rights to certain parts/portions of the property, a co-owner can sell his portion to whom he chooses.
However, a currently dwelling house is an exception to this rule, where consent has to be sought from both co-owners who jointly own the house.
In this case his wife can claim his share in the property.
Both the parties have to be present at the time of registry exception to this is available under section-31 of registration act or under sec-32(a) of registration act 1908 where a person can further delegate his/her power by making an power of attorney to act on his/her behalf.
If the property goes to ‘sons and his wife’ in the time of registry both of them are required because the property is jointly on the name of son and wife. No, the son alone is not competent to sell his share of property.
Hey; see there is no need for your wife to be present here for the registration purposes. Simply saying , she can sign power of attorney in your name as per the provisions of registration act, 1908. This instrument gives you the power to takes d decisions on her behalf regarding the property.
If the relationship with wife is cordial, than no issues. Otherwise there are legal remedies. The problem may not be as big as it may appear to him. If wife gives her general power of attorney to him, he alone is enough.
As vested by the will, both you and you wife are co-owners of the property and thus,
a property is jointly owned by two or more people, the share that each has in the property, a ‘tenancy-in-common’ is created. All the co-owners can use the entire property and every co-owner is deemed to be having an equal share in it.
Under the Transfer of Property Act, Section 44, every joint or co-owner has a proprietary right of the entire property. Accordingly, a sale has to be with the consent of all co-owners involved. Only in certain cases, the co-owners get exclusive rights to certain parts of the property, which one can transfer.
Though, in the case, the consent of the wife is deemed necessary. But it is not the case that your wife needs to be present. She can register a power of attorney in your name for selling the property. Thus, transferring all her rights to you over selling the property, and thus, the sale can be made.
Section 32(b) of The Registration Act, 108 states, “(b) by the representative or assign of such a person,” Thus the transfer of rights of selling the property will enable the representative to do so and thus, in the same way you can sell the property
The wife needs to be present at the time of registration or else she might make a Power of Attorney in the name of her husband and it can be easily done. This is applicable on both the kinds of property: ancestral and self-acquired as they are both under one single will and are held jointly.
As you and your wife are co-owner of land, it is necessary to take her to India for Registry but if “Power of Attorney” transferred to you then presence is not required.
Since the words ”sons and their wives” were written in the will, the property will be jointly owned by you and your wife.
Section 44 of the Transfer of Property Act 1882 deals with transfer by a co-owner and it also deals with the rights of a transferee in this type of a transaction.
According to the Transfer of Property Act every joint or co-owner has a proprietary right of the entire property. Hence, any sale has to be done with the consent of all co-owners involved.
After obtaining the consent of your wife, it is not mandatory for her to come to India for registration. You can obtain a special power of attorney by her in your favour. This document is used generally by person having difficulty in attending execution and registeration of sale. It will empower you the right to sell the property on her behalf.
yes, It is necessary to bring wife and children to India and it is also possible that he is also competent without the wife for the registry if the wife is transferring her rights to him to sell the property. in the instant case, Father cannot make a will on ancestral property. the will made for the self-acquired property would be divided among the children and wife also. at the time of registry, the wife has to be there. he will not be competent for registry alone if it is without the consent of the wife.
Its a fiduciary relationship where the owner and the co-owner with mutual consent decides to sell the shares of the property thus here if the wife grants power of attorney i.e to act as a legal representative or in a legal authority on behalf of her would work
Yes . You need to bring Your wife ,as she also has a representation in the will as her name along with your name is mentioned .
Section 44 TPA said that any co owner can transfer his share of property if the essential of section 7 of the TPA will be fulfilled.
Here wife is co owner of the property that’s why her consent is necessary to sell or transfer of property.the registration of Wills is not compulsory even if it relates to immoveable property. The non-registration of a Will does not lead to any inference against the genuineness of a Will. But in this case the issue is ki unks wife ka ana compulsory hai ya nahi?
She may come agr wo aana chahe to.
Agar nahi ana chahti to uske husband ko ek GPA lena hoga. GPA mtlb general power of attorney. Isme ye hoga ki wo apne wife ke behalf pe act kr rha hai. Aur fir wife ka ana is not mandatory.
Whether registered or not, a Will must be proved as duly and validly executed, as required by the Indian Succession Act.
However, if a situation arises that it is mandatory to register the will the testator i.e, the person who is in charge of executing the will along with one or two witnesses can go to the registrar or sub registrar and get the will registered.
So, it is not mandatory for you to bring your wife also if there are enough witnesses present you can also avoid coming down to India.
As the property is co-owned by your wife you need to come along with her for making any business of the property.
And if you have power of attorney of your wife mentioning the support to you then she doesn’t need to come with you, you alone can deal with the property
As the property was in the name of both the husband and the wife, so the husband is suppossed to take the wife also for the registry as she also has title in the land and the property. But if the wife transfers the ‘Power of Attorney’ to the husband then the presence of wife for the registry is not mandatory.
Here, in this case, it is not necessary that you have to bring your wife to India for the purpose of Registry so as to sell the property. Although she is equally the owner of the property same as you are so her decision is equally important in selling the property.
However , under the provisions of Registration Act, 1908 if the wife issues General Power of Attorney (GPA) then she did not even need to come to India because this GPA shows that she has given the permission regarding the sale of property from her side.