Delhi District Court
Smt. Bimla vs Sh. Prem Pal on 15 February, 2018
In the Court of Ms. Priya Mahendra, Additional District Judge04,
South District, Saket Courts, New Delhi.
Civil Suit No. 6532/2016.
Smt. Bimla,
W/o Sh. Salauddin,
R/o H. No.168, New Basti,
Okhla, New Delhi.
.....Plaintiff.
Versus
1.Sh. Prem Pal, S/o Sh. Prasadi Lal, R/o Khasra No. 331, Shiv Mandir wali Gali No.1, Nai Basti, Jamia Nagar, Okhla, New Delhi.
2. SHO, PS Jamia Nagar, New Delhi.
.....Defendants.
Date of institution of the suit : 24.01.2013.
Date reserved for judgment : 16.01.2018.
Date of pronouncement of judgment : 15.02.2018.
Suit for Possession
1. The brief facts of the case as stated in the plaint are that the plaintiff was earlier married to Sh. Rajender, S/o Prem Pal for last about 20 years. The marriage between the plaintiff and Sh. Rajender was solemnized according to Hindu Rites and Customs and out of said wedlock C.S. No. 6532/2016, Bimla v. Prem Pal and Anr. Page No.1 of 13 four children namely Vineeta, Ravi, Suman and Pinki were born. The plaintiff alongwith her husband Rajender and four children resided at H. No. 10, Khasra No.413/212, Post No.331, JJ Colony, Nai Basti, Okhla, New Delhi. The defendant no.1 is father of deceased husband of plaintiff.
1.1 The grandfather of late Sh. Rajender namely late Sh. Prasadi Lal had purchased a property bearing House No.10 (Old Number), Khasra No.413/212, Post No.331, JJ Colony, Nai Basti, Okhla, New Delhi measuring about 25 Square Yards (hereinafter be called as 'the suit property') specifically shown in red colour in the site plan, from Smt. Savitri Devi, w/o late Sh. B. Dutta, R/o 5, Ishwar Nagar (East), New Delhi vide General Power of Attorney, Agreement to Sell and Will dated 02.05.1987 executed by her in favour of Sh. Prasadi Lal. Sh. Prasadi Lal had sold the suit property to the husband of the plaintiff namely Sh. Rajender, who is also the grandson of Sh. Prasadi Lal, by executing General Power of Attorney (General Power of Attorney), Relinquishment Deed and Will all dated 29.05.1993 in favour of the husband of plaintiff Sh. Rajender. After purchase of suit property by the husband of the plaintiff, the plaintiff and her husband Sh. Rajender resided together in the suit property and since then the plaintiff is in use and possession of the suit property. Sh. Rajender died in the year 2005 leaving behind five Legal Heirs namely (1) Smt. Bimla, wife, (2) daughter Vineeta, aged 20 years, (3) son Ravi, aged 18 years, (4) daughter Suman, aged 15 years and (5) daughter Pinki, aged 12 years. After demise of Sh. Rajender in 2005, the suit property devolved upon his five Legal Heirs having 1/5th undivided C.S. No. 6532/2016, Bimla v. Prem Pal and Anr. Page No.2 of 13 share each in the suit property.
1.2 After demise of her husband Sh. Rajender, the plaintiff got married with one Sh. Salahuddin, S/o Mohd. Rafiq, R/o E13, Gali No.5, Madanpur Khadar ExtensionIII, Near Makki Masjid, New Delhi according to Muslim Rites and Custom and the plaintiff also converted her religion from Hindu to Islam and since then, she was residing with said Salahuddin at the suit property alongwith her abovementioned children and said Salahuddin has been maintaining and looking after her four children. The plaintiff was in continuous use and possession of the suit property. Sh. Salahuddin is in the business of Transport work and he is having two trucks and since there was not sufficient space for the parking of his two trucks in the suit property, the plaintiff alongwith her husband Salahuddin and children shifted to Madanpur Khadar ExtensionIII, New Delhi in the year 2009 and let out the suit property on rent. The suit property remained in possession of the said tenant for about 3 years without any interruption and obstruction. One floor of the suit property was in possession of one of the relative of plaintiff's husband and ground floor was occupied by the tenant.
1.3 On 12.07.2012 at about 5.00pm, the husband of the plaintiff was informed over his mobile that 67 persons including the defendant no.1 and some police officials have illegally trespassed into the suit property and they illegally got vacated the suit property from the tenant after giving him beatings and they took over the possession of the suit property forcibly. When plaintiff alongwith her husband reached the spot, the tenant was C.S. No. 6532/2016, Bimla v. Prem Pal and Anr. Page No.3 of 13 found standing outside the house and his luggage was also lying outside the house. The plaintiff further found her valuable articles including truck parts were robbed by defendant no.1 and his associates. When the defendant no.1 and his accomplices saw the plaintiff and her husband, they started abusing and beating the plaintiff as well as her husband in the presence of police officials. The plaintiff requested the police officials to save her husband, but police also gave beatings to beaten her husband. The husband of the plaintiff sustained grievous injuries and fell on the road after becoming unconscious. The defendant no.1 thought that he has died and the defendant no.1 alongwith his accomplices fled from the spot. Thereafter, plaintiff lodged a complaint with the local police of PS Jamia Nagar but no action was taken by them. Then plaintiff filed a complaint u/s 200 Cr.P.C. alongwith an application under Section 156 (3) Cr.P.C. against the defendant no.1 and his accomplices which is still pending. Thereafter, plaintiff approached the defendant no.1 to handover the possession of the suit property to her but defendant no.1 flatly refused stating that since the plaintiff has converted her religion, she has no right in the suit property. The defendant after forcibly taking over the possession of the suit property, created a third party interest in the suit property. It is further stated by plaintiff that she converted her religion only after the demise of her first husband and she, being his legally wedded wife, has all rights, title and interest in the suit property. The defendant no.1, in connivance with his accomplices, has forcibly taken over the possession of the suit property from the plaintiff. Having no alternative efficacious remedy, the plaintiff filed the present suit for grant a decree of possession in favour of the C.S. No. 6532/2016, Bimla v. Prem Pal and Anr. Page No.4 of 13 plaintiff and against the defendants directing the defendant no.1 to handover the peaceful and vacant physical possession of the suit property to the plaintiff.
2. Written statement was filed on behalf of defendant wherein it is denied by the defendant no.1 that late Prasadi Lal (grandfather of deceased Rajender) had sold the suit property to the deceased husband of the plaintiff Sh. Rajender and he had also executed General Power of Attorney, Relinquishment Deed and Will dated 29.05.1993 in favour of deceased husband of the plaintiff. It is stated that the plaintiff has created a false and fabricated story by claiming on one hand that the Prasadi Lal sold the suit property to husband of the plaintiff but on the other hand relying on General Power of Attorney, Relinquishment Deed and Will allegedly executed by late Prasadi Lal in favour of Sh. Rajender. It is also stated that during the lifetime of Sh. Rajender, the plaintiff got married with one Salahuddin, S/o Mohd. Rafiq and left the suit property and is residing with Salahuddin at her new matrimonial house at E13, Gali No.5, Madanpur Khadar ExtensionIII, Near Makki Masjid, New Delhi. It is denied that Sh. Rajender died in the year 2005 and it is claimed that Sh. Rajender died on 03.08.2006 and plaintiff got married with Salahuddin prior to the death of her husband Sh. Rajender. It is denied that there was not enough space for parking of two trucks, therefore the plaintiff alongwith her children shifted to her new matrimonial home in the year 2009 and let out the suit property on rent. It is also denied that the suit property was in possession of the tenant for about three years without any interruption and obstruction and one floor of the suit was in the possession one of the relative of the C.S. No. 6532/2016, Bimla v. Prem Pal and Anr. Page No.5 of 13 plaintiff's husband and ground floor was occupied by the tenant. It is further stated that plaintiff got married with one Salahuddin against the wishes of her husband, without taking divorce from him. All other averments made in the plaint are denied.
3. Replication filed on behalf of the plaintiff. In the replication, the plaintiff has denied the averments made in the written statement and reiterated and reaffirmed the contents of the plaint.
4. From the pleadings of the parties, the following issues were framed on 19.01.2015:
1. Whether Prasadi Lal, grandfather of first husband of the plaintiff sold the suit property i.e. property bearing No. 10, Khasra No.413/212, Post No.331, JJ Colony, Nai Basti, Okhla, New Delhi, admeasuring 25 sq. yards to his grandson Rajender? OPP.
2. Whether first husband of the plaintiff namely Rajender died leaving behind the plaintiff as his legal heir and the plaintiff got a right in the suit property? OPP.
3. Whether the plaintiff had let out the suit property and the defendant alongwith accomplices forcibly took possession of the suit property from the tenant? OPP.
4. Whether the plaintiff is entitled to any relief?
5. In support of her case, the plaintiff examined herself as PW1, and tendered her affidavit in evidence as Ex.PW1/A and has relied upon following documents :
1. Site Plan Ex.P1.
2. Copy of Agreement to Sell and Will dated 02.05.1987 Mark A, B and C. C.S. No. 6532/2016, Bimla v. Prem Pal and Anr. Page No.6 of 13
3. Original General Power of Attorney Ex.P2 dated 29.05.1993.
4. Original Relinquishment Deed Ex.P3 dated 29.05.1993.
5. Original Will dated 29.05.1993 Ex.P4.
6. Copy of Complaint filed U/s 200 Cr.P.C. Mark D.
7. Copy of Medical Record of husband of the plaintiff Mark E and
8. Copy of Complaint dated 13.07.2012 to SHO, PS Jamia Nagar Mark F.
5.1 No other PW was examined and PE was closed vide order dated 19.12.2016.
6. In support of his case, the defendant no.1 examined himself as DW1 and tendered her affidavit in evidence as Ex.DW1/A. Defendant no.1 has not relied on any documents.
6.1. No other DW was examined and DE was closed vide order dated 06.09.2017.
7. I have heard the final arguments and carefully perused the record.
8. My findings on the issues are as follows:
Issues Nos.1:
Whether Prasadi Lal, grandfather of first husband of the plaintiff sold the suit property i.e. property bearing No. 10, Khasra No.413/212, Post No.331, JJ Colony, Nai Basti, Okhla, New Delhi, admeasuring 25 sq. yards to his grandson Rajender? OPP.
C.S. No. 6532/2016, Bimla v. Prem Pal and Anr. Page No.7 of 13
9. Admittedly, deceased Sh. Prasadi Lal, who is father of defendant no.1 and grandfather of first husband of plaintiff namely deceased Rajender, was the owner of the suit property. The plaintiff is claiming that the suit property was sold by late Sh. Prasadi Lal to late Sh. Rajender and thus the plaintiff, who was wife of deceased Sh. Rajender during lifetime of late Sh. Rajender, is entitled to exclusive possession of the suit property. On the other hand, the defendant no.1 has specifically denied that Prasadi Lal sold the suit property to deceased Rajender.
10. In support of her contention, the plaintiff has relied on all unregistered documents namely General Power of Attorney Ex.P2, Relinquishment Deed Ex.P3 and Will Ex.P4, all dated 29.05.1993. According to Section 17 of Indian Registration Act, 1908, any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future "any right, title or interest" whether vested or contingent of the value of Rs.100/ and upwards to or in immovable property, has to be compulsorily registered. Section 49 of the Registration Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence or any transaction affecting such property, unless it has been registered. So, no right, title or interest in any immovable property of value of more than Rs.100/ transfers unless the transfer is affected by the registered documents.
In Suraj Lamp & Industries (P.) v. State of Haryana & Anr., 183(2011) DLT 1 (SC), the Hon'ble Supreme Court held:
C.S. No. 6532/2016, Bimla v. Prem Pal and Anr. Page No.8 of 13 "12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance.
Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.
Scope of Power of Attorney
13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata 2005 (12) SCC 77, this Court held :
"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the PowersofAttorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is C.S. No. 6532/2016, Bimla v. Prem Pal and Anr. Page No.9 of 13 revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
Scope of Will
14. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. (see sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective. Conclusion
15. Therefore, a SA/General Power of Attorney/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/General Power of Attorney/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/General Power of Attorney/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/General Power of Attorney/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
C.S. No. 6532/2016, Bimla v. Prem Pal and Anr. Page No.10 of 13 Transactions of the nature of `General Power of Attorney sales' or `SA/General Power of Attorney/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property."
11. The Relinquishment Deed Ex.P3 having not been registered is inadmissible in evidence and does not confer any right, title or interest in the suit property in favour of the deceased Rajender. Importantly, no attesting witness has been called by plaintiff to prove the Relinquishment Deed Ex.P3 and General Power of Attorney Ex.P2. The plaintiff has thus failed to prove on record the due execution of Relinquishment Deed Ex.P3 and General Power of Attorney Ex.P2. Even otherwise, the General Power of Attorney Ex.P2 executed without any consideration, ceases to have any legal validity after the death of late Sh. Prasadi Lal. The PW1/plaintiff also relied on the Will Ex.P4. Section 68 of the Indian Evidence Act, 1872 read with Section 63 of Indian Succession Act, 1925 mandates examination of at least one attesting witness for proving Will. The plaintiff without furnishing any plausible reason, has not examined any of the attesting witnesses to the Will. So the plaintiff also failed to prove Will Ex.P4 as per law. Moreover, none of the documents Ex.P2 to Ex.P4 establishes payment of any consideration by deceased Rajender to his grandfather late Prasadi Lal for purchase of the suit property. For the aforesaid reasons, the plaintiff miserably failed to prove that late Prasadi Lal sold the suit property to his grandson late Sh. Rajender and Sh. Rajender was the owner of the suit property. So this issue is decided in favour of the defendant and C.S. No. 6532/2016, Bimla v. Prem Pal and Anr. Page No.11 of 13 against the plaintiff.
Issue No. 2.
Whether first husband of the plaintiff namely Rajender died leaving behind the plaintiff as his legal heir and the plaintiff got a right in the suit property? OPP.
12. In view of findings on Issue No.1, after death of late Prasadi Lal, defendant no.1, who is son of late Prasadi Lal became the owner of the suit property being a first class legal heir of late Prasadi Lal as late Prasadi Lal died intestate. Thus, the plaintiff does not have any right, title or interest in the suit property. So, this issue is also decided in favour of the defendant and against the plaintiff.
Issue No.3 Whether the plaintiff had let out the suit property and the defendant alongwith accomplices forcibly took possession of the suit property from the tenant? OPP.
13. The onus of proving this issue is placed on the plaintiff. It is the case of the plaintiff that she left the suit property in the year 2009 but had constructive possession over the suit property through her tenant. Her tenant was forcefully thrown out of the suit property by the defendant and his accomplices on 12.07.2012. However, the plaintiff has not examined her tenant to corroborate her case without furnishing any cogent reason for nonexamination of her tenant. The complaint filed under Section 200 Cr.P.C. Ex.PW1/D1 and complaint dated 13.07.2012 made by complainant C.S. No. 6532/2016, Bimla v. Prem Pal and Anr. Page No.12 of 13 to SHO PS Jamia Nagar Ex.PW1/D2 are not sufficient to establish that the plaintiff was enjoying constructive possession of the suit property through her tenant and her tenant was dispossessed from the suit property forcefully by the defendant no.1 and his associates.
Issue No. 4Relief.
14. In view of the findings on the above said issues, the plaintiff is not entitled for any relief. Accordingly, the suit of the plaintiff is dismissed.
15. No order as to cost. Decreesheet be prepared, accordingly. File be consigned to the Record Room.
Announced in the open court. (Priya Mahendra)
On 15.02.2017 Additional District Judge04,
Digitally South District, Saket Courts,
signed by
PRIYA
MAHENDRA
New Delhi.
PRIYA
MAHENDRA Date:
2018.02.20
17:06:58
+0530
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