Special Power of Attorney
1. My elder sister(staying abroad) and I had jointly purchased a flat and this was recorded in Society's records ( her name first). 2. I have been staying in this flat from the time the possession was given by the Society. 3. Some years afterwards, my sister without my knowledge appointed my Maternal Uncle (now expired) as Special Power Of Attorney (SPOA), only for the purpose of executing Gift Deed of this flat. 4. This was done without my knowledge. 5. Months later my Maternal Uncle told me that sister wants to transfer the flat on her name and that it is only for record purposes only and that I and my family could stay as long as we liked. 6. Since I trusted him fully I signed the Gift Deed papers and it was registered. 7. After this, my name was removed from Society's Share certificate and my sister is being shown as the sole owner. 8. Now almost 7 years after this my sister has filed an eviction case against me. 10. On observing the SPOA document, given to my Maternal Uncle I find that though my sister is an NRI, her passport details are not mentioned in this document. (a) Is this legal ? (b) Can I challenge it in court ? And if I can, then how ? 11. My sister has appointed the SPOA without my consent and knowledge. 12. It was only, months later (refer point No.5), when we were at the Registrar's Office that I came to know that he was appointed as SPOA. (a) How can I challenge this ? 13. In such cases is the SPOA appointed by the Donor (myself) or the Donee (my sister) ? (a) Can I challenge this, and if so, then how ? Thank you and awaiting an early reply. Khadim Kapadia
You need to consult an advocate with all the relevant documents and it needs to be verified whether all the documents mentioned are properly executed. You need to file a suit in the civil court.
In your situation, as per the Special Power of Attorney, your uncle had rights limited to those of your elder sister. A Special Power of Attorney is entrusted for specific rights. Since yours was a joint property, your sister could entrust only those rights which she herself had and nothing beyond that. However, you by signing the transfer deed have yourself waved off your rights. The only solution to this situation is that you can challenge the transfer deed on the ground of being illegal if you can prove that there was undue influence by the uncle and because of your fiduciary relation with your uncle and your sister you agreed to sign the transfer document (Please refer to Section 16 Clause 2 of the Indian Contract Act, 1872) and hence they committed Fraud against you (refer Section 17 of the Indian Contract Act). The only way in which you can support your argument is that the basic principle of Contract law says that for a valid contract, there must be some form of consideration involved. Agreements without consideration are void (Section 25, Indian Contract Act). On if you are able to prove the transfer deed to be illegal, will you be able to gain back your share. Please note that the other party shall be proving to the court that it was a mistake of fact on your part and as per the law a contract does not become voidable merely because one of the parties was under a mistake to the matter of facts. Hence we would strictly advice you to take help from a lawyer who can go through the terms of the transfer deed and suggest you better. Regarding your other queries, the SPOA shall be considered valid as long as it is duly stamped and registered by the notary. Your sister need not require your consent as she had full rights to transfer her own rights to your uncle. As long as SPOA did not transfer your rights to your uncle, it shall be completely valid irrespective of whether you were aware about it or not. Hence instead of focusing on challenging the SPOA, you must challenge the transfer deed.
You need to consult with an advocate with all relevant documents. The documents are required to be verified to check its legality and validity. You have to file civil suit for claiming your right.
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