For NRIs and Their Indian Attorneys - Part II

This is in continuation of my earlier post.

Having hit a wall in my efforts to get the flat booked by my son and daughter-in-law registered in their name as their POA (Power of Attorney) holder,  I talked to the Chief Legal Adviser (CLA) who was reluctant to provide my any formats for any additional documents to be obtained.  After much persuasion he dropped a few hints and asked me to consult a lawyer in the matter.  I also did some research on my own.

Finally it was decided to get an Irrevocable Special Power of Attorney executed by both the applicants jointly from USA.  It was deemed prudent to give complete references to the earlier two General POA instruments executed in my favor by each of the two applicants individually. I will publish the draft of the document in my blog later on.

Inquiries showed that this document will have to be notarized in USA and further apostilled by the state secretary of California - the state where the executants reside.  I also checked with an acquaintance who is an officer in the UP government on this.  He gave me some valuable advice.  He said this document has to be further countersigned by the Indian Consulate and that it does NOT require registration in India.  However a small stamp duty has to be paid on it to legalize it for use in India.  He advised me that for this purpose I should take the sealed cover as received from USA to the office of ADM (Revenue) in my district who will authorize the payment of stamp duty.  If you want to read more on this topic you may read this post.

It seems that people in similar circumstances do make the mistake of taking such documents directly to authorities like LDA without getting them legalized as stated in the preceding para.  I wonder what price they are made to pay for this blunder.

So next I took this legalized document to LDA.  It took a long time to traverse the short but tortuous path from the dealing clerk to CLA's table.  As I sat across from CLA, I requested him to take a look at my file.  He took out the document and straightaway looked for the evidence of payment of stamp duty without paying any attention to the contents.  He looked a little crestfallen when he saw that the document had been properly legalized.

This cleared the deck for execution of the deed by LDA and its registration in the sub-registrar's office.  The registration unfortunately took two visits.  It will make the subject matter of a later blog.

Ignorance of Law excused?

Ordinary mortals are often told in stern words that ignorance of law is no excuse.  However it seems that this dictum is not applicable to higher mortals who are in the business of enforcing laws!  Here is an example.  India has subscribed to Hague convention, an international convention.  Under this a legal document executed in a foreign country and meant to be used in another country can be certified (apostilled, a French word, as used in the treaty) by recognized state authorities in the country of execution and then the documents become legal.  There is no need for any further legalization in the country where it is to be used.

Normally a document to be apostilled is first notarized in the country where it is executed and then apostilled by the recognized government authorities there.

However my personal experience in the state of Uttar Pradesh shows that at least two more layers are added post apostille.  The first layer is the requirement of an apostilled document being certified / countersigned by the local Indian consulate.  Here is what the site of the Indian Consulate at San Francisco says:

• Apostille Convention: the Hague Convention, to which India and USA are signatories, abolishes the requirement of legalization for Foreign Public Documents. With the certification by the Hague Convention 'Apostille', the document is entitled to recognition in India and vice versa and no certification by the Embassy/Consulates of India is required. The convention applies to public documents which have been executed in the territory of one Contracting State and which have to be produced in the territory of another Contracting State.   
• However in many places in India, they would easily recognize the attestation by the Indian Embassy/Consulate and hence may ask for attested copy despite the document already being apostilled.  Hence, to avoid any inconvenience, if you wish to have the apostilled document also attested by the Consulate, you may apply to the Consulate.    
• The Consulate will attest the documents only after they have been first apostilled by the state authorities concerned in the US. Apostilling is done at the offices of the Secretary of State where the applicant resides.

Emphasis added by the author. Does this not condone the ignorance of authorities in India?

Things don't end at this.  Once the documents are received in India you have to approach the local revenue authorities.  The envelope containing the document has to be opened in their presence.  The idea is to make sure that the documents were actually shipped from abroad and not fabricated locally!  On top of this you submit an affidavit to the effect that the documents are truly genuine, submit an application requesting legalization, grease appropriate palms for sanction and finally pay a stamp duty of Rs.50/=.  The payment is certified by the Superintendent of Stamps.  Only now will the document be accepted as valid in India by authorities in India.

Apart from questions of harassment, does this requirement of countersignature and payment of stamp duty not violate the Hague convention to which the country is a signatory.

For NRIs and their Indian Attorneys

My son gave me a General Power of Attorney (GPOA) before he left for a job in USA.  That was a little over a decade ago.  Later on my daughter-in-law too gave me a GPOA.  I could register a property in my son's name in Pune on the basis of GPOA without any hassles.  However I had yet to have an encounter with the redoubtable LDA (Lucknow Development Authority.)

My son and daughter-in-law booked a flat with LDA in 2010, the year of my retirement.  The idea was that it may be a better option for my wife and me to live in a flat rather than an independent house.  We waited four long years and paid for serious cost escalations before the letter of allotment finally came through.

Undeterred by the scary stories I had heard, I marched into LDA's office armed with the letter of allotment and the two GPOAs .  I approached the concerned clerk and asked for the formats of the affidavit and declaration etc. that were to be furnished by the allottee.  I was told that these can be had from the notary who sits outside the building.  I got the affidavit etcetera made and appeared before the clerk.  He expressed doubts about how could the registration be done on the basis of GPOAs.  Several observation were made about the age of the documents, the two GPOAs being registered at different places, lack of the phrase "registration of property" in the the documents and so on.

I called on the concerned officer who sought the opinion of a retired supervisor on whom he relies.  This person came through as a very practical man and opined straight away that it would be perfectly in order for me to sign the deed conveying the property to my son and daughter-in-law.

I made inquiries with the clerk a week later.  I was told that notwithstanding the retired person's advice, the matter had been referred to CLA (Chief Legal Adviser) who in his wisdom had opined that the GPOAs were too old and hence it may not be proper to register the property on the basis of these!  A remarkable observation indeed considering the fact that GPOAs never get time barred.  As regards any revocation, the POA holder has to sign an affidavit affirming that the POA is still valid and I had done that.

I called upon the CLA who showed me an order by the Supreme Court questioning sale of a property through a POA.  When it was pointed out that this was a case of purchase through POA, he retorted, "Oh, so you would like to have an argument!"  He suggested that I call the applicants to Lucknow for executing the documents!  He also wondered if delays might affect the validity of the stamps that had already been purchased.  When told that the parties could not appear in person and that was the reason for giving GPOAs, with much reluctance he suggested that I get a special power of attorney from them and added that getting it from overseas may be a rather difficult task and he could not assure me beforehand that it would serve the purpose.

You must have noted that while he quoted a certain SC order orally, he did not quote it in his written remarks.  In the remarks he merely mentioned that the instruments were old.

I wondered if I should fight back on the ground that a POA doesn't get time barred.  But later thought that probably it would be faster and less expensive to get a special POA from my son and daughter-in-law.

What happened afterwards will appear in a subsequent post.