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| Can I transfer Property using Power of Attorney to my wife |
In the name of ALLAH, the most beneficent, the most
merciful
Transfer
of Property in favour of close relative using Power of Attorney
When a General Power of
Attorney is executed by Principal in favour of his agent regarding an immovable
property, unusually all the powers to transfer, sell, alienate and even gift
out the property are written, but despite of delegating all the powers, still
there are some restrictions on the Agent with regard to transferring the property
in favour of his close relatives i.e son, daughter, wife etc.
Though, an Agent holding a General
Power of Attorney containing all the powers to sell and transfer the property,
can transfer the property to any person other than his own close relatives, but
he cannot transfer the property in favour of his own close relatives i.e son ,
daughter, wife or kith and kin etc, until and unless special consent/ fresh instruction
is obtained from Principal.
If the Agent / Attorney
Holder transfers the property mentioned in the Power of Attorney in favour of his
kith and kin / close relatives, without obtaining permission from the
Principal, the transfer can be declared illegal, if challenged in the court of
law.
I am giving reference of judgments
of Supreme Court, in which the court declared transfer of land on the strength
of power of attorney, without prior permission of the principal, illegal.
2017 CLC Note 229
As far the arguments of
counsel for the appellants that no such power was delegated to the attorney to
alienate the property he was not equipped with any power to transfer the land
to his son without prior permission of the principal, is concerned, we
appreciate the arguments and have
examined the contents of the power of attorney. Although, the power to alienate
the property is there but it is also not denied that such power was used without
permission of the principal. It is well settled principle of law that on the
strength of a power of attorney, the agent cannot transfer the land to his kith
and kin without prior permission of the principal. In the case reported as
Mjaqsood Ahmed and another V. Muhammad Razzaque and 9 others (PLD
2009 (AJ&K) 13), it
has been observed by this court as under:-
“14. It would not be out of place to mention here that Muhammad Razzaque
after obtaining power of attorney transfer the land to his son, Arshad Hussain,
while it is settled principle of law that an attorney before transferring the
land to his kith and kin has to obtain permission from the principal”
This view has been upheld by
this court in another case reported as Khalid Mehmood V. Muhammad Rasheed
(deceased) through L.H (2016 SCR 830) whereby it has been observed as under:-
5.
Before
proceeding further, it may be observed
that the rule of law laid down in case reported as Maqsood Ahmed and another V.
Muhamamd Razzaque and 9 others (2009 SCR 38)
is correct that holder of General
Power of attorney in alienating the
property of his principal in favour of those who are so closely related to the
agent that ultimate beneficiary would be the agent himself, he should in his
own interest obtain the consent of the principal failing which the principal is
at liberty to repudiate the transaction”
In view of the law laid down
supra pronouncements, we are of the view that the transfer of land on the
strength of power of attorney, without prior permission of the principal. was
illegal.