Delhi District Court
Sh. Mool Chand Jain vs Mr. Shariful Hasan on 24 March, 2014
In the Court of Sh. Gorakh Nath Pandey,
Additional District Judge02, (NE),
Karkardooma Courts, Delhi
CS No. 160/14
In the matter of:
Sh. Mool Chand Jain
S/o Sh. Moti Lal Jain
R/o 43C, F. G1 Vikas Puri
New Delhi 110018 .............. Plaintiff
Versus
Mr. Shariful Hasan
S/o Mohd. Hasan
R/o C25/19, Rishi Kardam Marg,
Chauhan Bangar, Gali No. 2
Delhi 110053 .............. Defendant
Date of Institution : 24.05.2010
Unique ID No. 02402C00143392010
Date of Arguments: 24.03.2014
Date of Judgment : 24.03.2014
Suit for possession and damages / mesne profits
J U D G M E N T
1. This is suit for recovery of possession of property bearing no. C25/19, Rishi Kardam Marg, Chauhan Bangar, Delhi ( hereinafter called the suit property) as shown in the site plan attached with the plaint and decree of Rs. 10,000/ as damaged/mesne profits with effect from 20.03.10 to 19.04.10 alongwith pendente lite mesne profits/ damages made by the plaintiff against the defendant.
2. It is stated in the plaint that the plaintiff is the absolute owner of the suit property having purchase from the defendant vide registered irrevocable GPA Mool Chand Vs. Shariful Hussain CS No. 160/14 1 of 27 with consideration alongwith other documents executed by the defendant d. 01.06.07. The property is measuring 52 sq. yards consisting of two storeys as shown in the site plan. On 01.02.06 when the suit property was purchased by plaintiff, physical possession was handed over to plaintiff by defendant. Thereafter the defendant requested the plaintiff for premises in the property as to arrange alternative accommodation and the plaintiff granted permission to the defendant to reside in the suit property as licensee. Despite assurance, the defendant failed to vacate the suit property on false ground. Legal notice dt. 24.02.10 was also issued by the plaintiff vide registered post and UPC terminating the license of the defendant. Despite service of the notice, defendant failed to comply and therefore defendant is liable to pay damages @ 10 % per month for use and occupation of the suit property after the license was terminated and thereafter the suit is filed by plaintiff against the defendant.
3. The suit is contested by the defendant by way of a written statement of defence wherein preliminary objections are taken to the effect that the plaintiff has suppressed the material facts and not approach with clean hands; this suit is false and liable to be dismiss u/o 37 CPC. As contended the plaintiff is neither the owner nor in possession of suit property and defendant is the lawful owner in possession of the property; the suit is false and fabricated without any consideration and plaintiff has no right and locus standi to file the suit,. The defendant further denied all the relevant and material contentions of the plaintiff in the plaint contended that defendant has executed some documents in the garb of security towards loan documents and loan of Mool Chand Vs. Shariful Hussain CS No. 160/14 2 of 27 Rs. 50,000/ was taken by defendant from plaintiff. Defendant further denied that he has sold the suit property to plaintiff contending that this suit is filed without any ground. As further mentioned the possession of suit property was never handed over to plaintiff. It is further stated in the written statement that the suit is liable to be dismissed.
4. To the written statement of the defendant, a rejoinder was filed on behalf of the plaintiff wherein the defence taken by the defendant in the written statement are traversed and the averments made in the plaint are reiterated.
5. In view of the pleading of the parties, following issues were settled vide order dt. 28.05.12:
(i) Whether the plaintiff has purchased the suit property from the defendant, and if so, whether the plaintiff is entitled to decree for possession of the suit premises? OPP.
(ii) Whether plaintiff is entitled to recovery of Rs. 10,000/ towards mesne profits w.e.f. 20.03.10 to 19.04.10 and future mesne profits at the rate of Rs. 10,000/ per month from the date of filing of the suit till the date of handing over possession ? OPP
(iii) Whether the defendant is the owner in possession of the suit property? OPD.
(iv) Relief.
And the case was fixed for plaintiff's evidence.
6. The plaintiff filed his affidavit by way of evidence Ex. PW 1/ A and Mool Chand Vs. Shariful Hussain CS No. 160/14 3 of 27 examined himself as PW 1 in support of the case. He deposed as per averments made in the plaint and tendered in evidence the following documents :
(a) GPA with consideration dt. 01.06.07 as Ex.PW1/1.
(b) Agreement to sell as Ex.PW1/2.
(c) Will as Ex.PW1/3.
(d) Receipt as Ex.PW1/4.
(e) GPA dt. 24.02.03 as Ex.PW1/5.
(f) Agreement to sell dt. 24.06.03 as Ex.PW1/6.
(g) Receipt as Ex.PW1/7.
(h) General Power of Attorney dated 01.03.01 as Ex.PW1/8. (I) Affidavit cum NOC dated 01.03.01 as Ex.PW1/9.
(j) Will dt. 01.03.01 as Ex.PW1/10.
(k) GPA dt. 23.07.90 as Ex.PW1/11.
(l)Agreement to sell dt. 23.07.90 as Ex.PW1/12.
(m) Receipt as Ex.PW1/13.
(n) GPA, agreement to sell and receipt all dt. 14.08.98 as Ex.PW1/14 to PW1/16
(o) Postal receipt dt. 24.02.10 as Ex.PW2/17.
(p) UPC asEx.PW1/18.
(q) Legal notice dt. 24.02.10 as Ex.PW1/19 and site plain as Ex. PW 1/ 20.
Plaintiff examined Mr. Dharam Raj as PW 2 by affidavit of the witness Ex. PW 2/ A to depose that he is one of the witness to documents executed by defendant regarding the sell purchase of suit property Ex. PW 1/ 1 to PW 1/ 4 Mool Chand Vs. Shariful Hussain CS No. 160/14 4 of 27 for Rs. 55,000/ and possession of the property was handed over to plaintiff by defendant on 01.06.07 . the witness further reiterated the testimony/ deposition of PW 1 in one way or other.
As no other witness remained to be examined by the plaintiff, the PE was closed and case was fixed for DE.
7. The defendant on the other hand, filed his affidavit by way of evidence and examined himself as DW1. His evidence was also as per his written statement filed by him and depose that he never sold the suit property to plaintiff nor the possession was ever handed over by him. The DW 1 reiterated that he is the owner of the possession of suit property.
The defendant thereafter summoned and examined the witness from office of sub registrar IV, Seelampur, Nand Nagri , Delhi as DW 2 who proved Ex. PW 1/1 ie irrevocable GPA dt. 01.06.07 executed by defendant in favour of plaintiff and deposed that the documents was registered as documents no. 1596, book No. 4, Volume NO. 10604 at pages 189 195. The witness further deposed the original photographs of plaintiff was affixed while the photographs of defendant is the photocopy.
No other witness was examined by the defendant and hence the DE was closed.
8. I have heard the Ld. counsel for the parties and have gone through the written submissions filed on their behalf. I have also gone through the relevant material on records and the relevant provisions of law.
Having drawn my attention to the pleadings of the parties, testimony of witnesses and materials on records, it is submitted by counsel for the Mool Chand Vs. Shariful Hussain CS No. 160/14 5 of 27 plaintiff that from the evidence led by the plaintiff as well as from the cross examination of DW1 and DW 2, it has been proved that the plaintiff is the owner of the suit property and entitled for the decree as prayed in the suit. It is further argued that the plaintiff has proved that he has purchased the suit property from the defendant and prayed to pass decree in favour of plaintiff and against the defendant.
On the other hand, having drawn my attention to the testimony of the witnesses and documents on records, it is submitted by counsel for the defendant that the plaintiff has failed to prove the case and discharge the onus. It is also submitted by Ld. counsel for the defendant that on the basis of the documents relied by the plaintiff, the plaintiff cannot be considered as owner and the suit is filed to harass the defendant. It is further argued that the plaintiff has no locus standi to file this suit and plaintiff has concealed the material facts and therefore, the suit is liable to be dismissed. It is further submitted by counsel for the defendant that this suit is false and there is no ground for passing decree against the defendant therefore, the suit be dismissed.
9. I have given my thoughtful consideration to the submissions made on behalf of the parties. My findings issuewise are as under : ISSUE No. i, ii and iii
1. Whether the plaintiff has purchased the suit property from the defendant, and if so, whether the plaintiff is entitled to decree for possession of the suit premises? OPP.
(ii) Whether plaintiff is entitled to recovery of Rs. 10,000/ towards
Mool Chand Vs. Shariful Hussain
CS No. 160/14 6 of 27
mesne profits w.e.f. 20.03.10 to 19.04.10 and future mesne profits at the rate of Rs. 10,000/ per month from the date of filing of the suit till the date of handing over possession ? OPP
(iii) Whether the defendant is the owner in possession of the suit property? OPD.
10. The onus to prove the issue No. 1 and 2 was on the plaintiff. Issue No.1 regarding purchase of the suit property by the plaintiff from the defendant and entitlement for decree of possession, issue No. 2 regarding damages/mesne profits and the issue No. 3 regarding the defendant being owner of the suit property as prayed in the suit are interconnected and liable to be disposed off together and hence they have been taken up together for adjudication.
11. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe as under: "A civil case is decided on balance of probabilities. The balance of probabilities in the present case shows that the Power of Attorney Ex. PW3/1 and the Will Ex. P1 were duly executed by Mool Chand Vs. Shariful Hussain CS No. 160/14 7 of 27 the deceased Sh. Sohan Singh. The Power of Attorney is after all a registered Power of Attorney, and more importantly, the original title documents of the subject property are in the possession of the respondent No. 1 and which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil Mool Chand Vs. Shariful Hussain CS No. 160/14 8 of 27 suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities.
12. Section 101 of the Evidence Act, 1872 defines " burden of proof" which is reproduced as below: " 101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the Mool Chand Vs. Shariful Hussain CS No. 160/14 9 of 27 burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party.
13. In view of this legal position of the Evidence Act, it is clear that it is for the plaintiff to prove that he is the absolute owner having purchased the property from the defendant. The pleadings of the parties and evidence on record reveals the following:
(a) that the suit property was initially purchased by the defendant.
(b) that the defendant is in possession of the suit property.
(c) that the plaintiff has claimed the ownership of the suit property having purchased the same from the defendant on 01.06.2007 vide documents Ex. PW1/1 ( GPA with consideration ), Ex. PW1/2 (Agreement to Sell ), Ex. PW1/3 ( Will), Ex. PW1/4 ( Receipt ).
(d) the defendant claimed himself to be the absolute owner of the suit property contenting that he never sold the same to the plaintiff and signatures were obtained by the plaintiff and PW2 on blank and printed paper on the pretext of loan documents towards security.
14. Section 5 of the Transfer of Property Act, 1882 ( ' TP Act' for short defines ' transfer of property' as under: " 5. Transfer of Property defined: In the following sections " transfer of property " means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself 9 for to himself) and one or more other living persons; and " to transfer property" is to perform such Mool Chand Vs. Shariful Hussain CS No. 160/14 10 of 27 act." XXX XXX Section 54 of the TP Act defines ' sales' thus :
" Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and part promised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
Section 53 A of the TP Act defines ' part performance ' thus :
Mool Chand Vs. Shariful Hussain CS No. 160/14 11 of 27 " Part Performance. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
And the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and had done some act in furtherance of the contract.
And the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor b the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the Mool Chand Vs. Shariful Hussain CS No. 160/14 12 of 27 rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
15. As held in AIR 1969, SC 1316, the documents of which registration is necessary under the transfer of Property Act ( such as under Section 54 of the TP Act) but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of acting any immovable property comprise therein and do not affect any such immovable property.
As mentioned, the plaintiff claimed to be the owner of the suit property which is denied by the defendant. Since there is no registered sale deed executed in favour of the plaintiff in respect of the suit property in accordance with provisions of Transfer of Property Act, 1882, the plaintiff is not the owner of the suit premises and not entitled for the relief as prayed in the suit.
16. As held in 128 (2006) DLT 407 (DB) titled M. L. Aggarwal Vs. Oriental Bank of Commerce & Ors, : " The petitioner has only produced an agreement to sell, will and a power of attorney and a receipt for payment of money but these in our opinion do not constitute a sale. Under Section 17 (1) (b) of the Registration Act, Sale of an immovable property can only be by a registered deed. In our opinion, the petitioner has no right, title or interest in the suit property as he has not purchased it by any registered sale deed. An immovable property cannot be purchased by a mere power of attorney or agreement to sell."
The ratio was further reiterated by Hon'ble Delhi High Court in reAIR Mool Chand Vs. Shariful Hussain CS No. 160/14 13 of 27 2003, Delhi 120 titled G. Ram Vs. DDA wherein it is mentioned that transfer of immovable property can only be affected by executing a registered documents. Merely making an agreement of sale or execution of power of attorney could not transfer right, title or interest of any immovable property.
17. This court is guided in view of the judgment of Hon'ble Supreme Court in re Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) in this respect. The documents of title relied upon by the defendant such as Ex. PW 1/ 1 to Ex. PW1/4 i.e. GPA , Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property in his favour. Hon'ble Supreme court vide order dt. 15.05.09 reported as Suraj Lamps & Industries V/s State of Haryana, 2009(7) SCC (366) referred affects of GPA sells or sell agreement/ GPA/ will transfer holding that there cannot be sell by execution of power of attorney nor there can be transfer by execution on agreement to sell and power of attorney and will.
It is relevant and necessary to reproduce relevant paras of judgment of Hon'ble Supreme Court in Suraj Lamps & Industries private limited( supra) reported as Manu/SC/1222/2011 which read as under: Scope of an Agreement of Sell:
11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas V. S. A. Kamtam and Anr. (1977) 3 SCC 247, observed: "A contract of sale does not of itself create any Mool Chand Vs. Shariful Hussain CS No. 160/14 14 of 27 interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prasad Vs. Ram Mohit Hazra ( 1967) 1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognized in Section 3 of the Specific Relief Act, contract for sale is recognized in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein."
In India the word ' transfer' is defined with reference to the word ' convey'. The word ' conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership........ ....... that only on execution of conveyance ownership passes from one party to another ..........."
In Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (2004) (8) SCC 614, this court held: " Protection provided under Section 53 of the Act to the proposal transferee is a shield only against the transferor. It disentitles the tranferor from Mool Chand Vs. Shariful Hussain CS No. 160/14 15 of 27 disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party"
It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance ( sale deed). In the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
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 Section 54 and 55 of Transfer of Property 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 Transfer of Property Act).
According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of Mool Chand Vs. Shariful Hussain CS No. 160/14 16 of 27 immovable 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 v. Basant Nehata MANU/SC/0547/2005 : MANU/SC/0547/2005 :
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 favor of the agent. The agent derives a right to use his name and all acts, deeds and things Mool Chand Vs. Shariful Hussain CS No. 160/14 17 of 27 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 Powersof Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The done 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 grantor.
Scope of Will
14. A will is the testament of the testator. It Mool Chand Vs. Shariful Hussain CS No. 160/14 18 of 27 is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivo. 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.
We therefore reiterate that immovable property can be legally and lawfully transferred/ conveyed only by a registered deed of conveyance. Transaction of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transaction as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section Mool Chand Vs. Shariful Hussain CS No. 160/14 19 of 27 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transaction known as GPA sales.
18. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance ( para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872( para 13) and devolution of interest pursuant to a will( para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
19. There is also one other aspect which needs to be clarified before proceeding ahead and which is whether a power of attorney given for consideration would stand extinguished on the death of the executant of the power of attorney. The answer to this is contained in illustration given to Mool Chand Vs. Shariful Hussain CS No. 160/14 20 of 27 Section 202 of the Contract Act, 1872, and the said provision with its illustration reads as under : Section 202. Termination of agency, where agent has an interest in subject matter where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustrations
(a) A gives authority to B to sell A 's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consign 1,000 bales of cotton to B, who had made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death. The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
Mool Chand Vs. Shariful Hussain CS No. 160/14 21 of 27
20. The law laid down the Hon'ble Supreme Court in SLP (C) No. 13917 of 2009 titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana & Ors. is squarely applicable in the facts of this case. Hon'ble Supreme Court have held that Section 27 of Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set forth in the instrument all facts and circumstances which affects the chargeability of duty on that instrument. Section 17 of the Registration Act, 1098 makes deed of conveyance compulsorily registrable. The transfer of an immovable property can only be by a deed of conveyance and in the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transfered. It is reiterated neither Section 53 A of the Transfer of Property Act, 1882 nor Section 202 of the Contract Act, 1872 is applicable for ownership of the plaintiff.
21. On the basis of pleadings and arguments of counsel for the parties, first point which falls for determination is:
whether the plaintiff can be considered as owner of the suit property on the basis of the documents ie. Ex. PW1/1 to Ex. PW1/4 ? The plaintiff claims to have purchased the suit property from the defendant through the defendant denied any such transactions. The defence of the defendant have been mentioned at the outset. The defendant further claimed that the documents of the property have been handed over to the plaintiff and PW2 for obtaining loan of Rs. 50,000/ as security. The defendant has claimed that he is absolute owner in possession of the property and denied the locus standi of Mool Chand Vs. Shariful Hussain CS No. 160/14 22 of 27 the plaintiff to file this suit. The defendant further denied the transaction of sell purchase qua the suit property on the ground that he never sold the suit property to plaintiff nor ever handed over possession.
22. The plaintiff was cross examined by the learned counsel for the defendant. In the cross examination, the plaintiff admitted the giving of loans and his acquaintance with PW2 for 10 years. The witness further admitted the value of the suit property for more than Rs. 12 lakh but claims to have purchased for meager amount of Rs. 55,000/ and therefore, the transaction appears to be unconscionable at the threshold. The witness failed to disclose the status and construction in the property, number of rooms, its locations etc. and the same amounts to conclusion that the property stated to be purchased was in a very casual manner and the manner in which the property is not purchased. It is reasonable to expect that a person inspects the property, its every particular before purchasing the same and the testimony of the PW1 in this respect cast shadow regarding purchase of the suit property. Further, the testimony of the defendant and contention regarding obtaining his thumb impression on blank printed papers appears to be sustainable as admittedly the defendant is illiterate and the contents of any documents allegedly executed by him was not read over as deposed by PW1. The plaintiff claimed that the possession of the suit property was handed over by the defendant on 01.06.2007 but except bald and oral averments in this respect, there is no material on record to come to this conclusion. Like other documents i.e. GPA, Will, Agreement to sell and Receipt, no documents regarding handing over the possession by defendant to the plaintiff or Mool Chand Vs. Shariful Hussain CS No. 160/14 23 of 27 subsequent handing over possession by the plaintiff to the defendant is on record. It also appears absurd and unreasonable that the defendant has sold the suit property to the plaintiff without making any alternative accommodation, handed over the possession and again approached to the plaintiff for the possession of the suit property and the plaintiff thereafter permitted defendants to reside in the suit property just after two hours after purchasing the same. Admittedly the plaintiff permitted the defendant to reside for two months in the suit property but not made any complaint against defendant nor taken any steps for getting the property vacated for about three years when the suit was filed on 24.05.2010. Further, the plaintiff have not claimed any amount from the defendant either as license fee or as rent during the said period being very generous and benevolent. These facts does not inspire confidence and the contentions of the plaintiff does not appears to be sustainable.
23. PW2 claimed himself to be the witness to the documents executed by the defendant in favour of the plaintiff and deposed nothing but as PW1. There is contradictions in the testimony of PW1 and PW2 regarding the presence of the person before Subregistrar at the time of alleged execution of the documents. There is further contradiction regarding putting signature/thumb impression of the defendant on the documents, the dimension of the property, visiting of the property etc. It is relevant to note that the only documents in support of contentions of ownership relied by the plaintiff of which the defendant alleged that his signature/thumb impression was taken in blank. It is interesting that except these documents, the plaintiff did not get executed Mool Chand Vs. Shariful Hussain CS No. 160/14 24 of 27 any other documents regarding taking and handing over the possession, no steps taken for recovery of possession or rent/incense fee after permissive use of two months etc. The defence of the defendant therefore stands corroborated. By no stretch of imagination the plaintiff can be considered as the owner of the suit property.
24. The defendant during crossexamination deposed that the original documents of the title of the suit property including the entire previous chain are with the plaintiff and a loan of Rs. 50,000/ was taken by him from the plaintiff. The witness further deposed that the documents were handed as security of the loan and the defendant has returned the loan amount along with interest about three years ago but no receipt was issued. The witness further deposed that no loan agreement in writing was made and the loan transaction took place in presence of PW2/ Dharam Raj and one Lal Ji. The DW2 proved the Ex. PW1/1 i.e. GPA executed in favour of the plaintiff by the defendant deposing that without no objection certificate from the office of Tehsildar, GPA could not be registered. The witness further deposed that I am not aware whether NOC was required in respect of GPA in question. This testimony of DWs remained uncontroverted and unimpeached. The above circumstances can lead to only one conclusion that the suit property was never sold by defendant to plaintiff nor the plaintiff became owner thereof.
25. Admittedly the defendant is in possession of the suit property. The plaintiff allegedly derived the title through documents Ex. PW1/1 to Ex. PW1/4 executed by the defendant. By no stretch of imagination by virtue of these documents, the plaintiff can be considered as the owner of the suit Mool Chand Vs. Shariful Hussain CS No. 160/14 25 of 27 property having right, title or interest. Moreover, these documents are not sufficient to create interest with respect to the suit property in view of the provisions of Transfer of Property Act.
26. In view of the aforesaid legal provisions, it is clear that ownership and possession are two entirely different concepts. It necessarily follows that it is not only possible but also permissible to transfer one without the other. In simple words it is permissible to transfer ownership without transferring possession. Similarly, it is also possible to transfer possession without transferring ownership. It is relevant to note here that in this case neither the ownership had been transferred in pursuance of the provision of the Transfer of the Property Act nor possession of the suit property was ever handed over to the plaintiff. In fact the plaintiff has failed to prove the execution of the documents Ex. PW1/1 to Ex. PW1/4 in support of claims and contentions as per law. Moreover, even in pursuance of the documents relied by the plaintiff, no title or interest in respect of the suit property is transferred in favour of the plaintiff.
27. In the present case, admittedly the defendant is the owner of the suit property and there is nothing on record to infer that he sold the suit property to the plaintiff or consequently ever handed over the possession. The plaintiff further failed to prove that the possession was handed over as part performance of the agreement to sell and defendant was permitted to use the suit property as permissive user for two months. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the defendant is the owner in possession of the suit property. The plaintiff by no Mool Chand Vs. Shariful Hussain CS No. 160/14 26 of 27 stretch of imagination can be considered as owner of the suit property having purchased the same from the defendant. Issue No. 3 is thus decided in favour of the defendant and against the plaintiff.
28. In view of the aforesaid discussions and referred law, this Court is of the considered view that the plaintiff cannot be considered having right, title or interest in the suit property better than the defendant and the documents Ex. PW 1/1 to Ex. PW1/4 relied by the plaintiff is neither helpful nor sufficient to prove the claim of the plaintiff in the suit. There is merit and substance in the defence raised by the defendant. The plaintiff is therefore not entitled for the decree of the possession and recovery of mesne profits/damages as prayed in the suit. Issue No. 1 and 2 is decided against the plaintiff and in favour of the defendant. The suit of the plaintiff is therefore liable to be dismissed. RELIEF: In view of the aforesaid discussions and findings, this court is of the considered opinion that plaintiff has failed to prove his case. The plaintiff is therefore not entitled for any relief as prayed in the suit. The suit of the plaintiff is dismissed with cost.
29. Decree sheet be drawn accordingly.
30. File be consigned to record room Announced in open Court on this 24th day of March, 2014 Gorakh Nath Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
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