Delhi District Court
Mrs Sarabjeet Kaur vs Sh Tarsem Singh Saini on 4 September, 2024
In the court of Shri Naresh Kumar Laka
District Judge - 07, Central District,
Tis Hazari Courts, New Delhi
RCA DJ 76/23
CNR No. DLCT01007598-2023
In the matter of:
Mrs Sarabjeet Kaur
W/o Late Sh. Ram Saroop
R/o: H. No. E-181, Gandhi Vihar,
Village Gopalpur, Delhi-110009
.........Appellant
vs.
Sh Tarsem Singh Saini
S/o Sh. Nand Lal Saini
R/o: H. No. E-181, Ground Floor,
Gandhi Vihar, Delhi-110009
..........Respondent
Date of Institution of appeal : 01.06.2023
Arguments concluded on : 20.08.2024
Date of decision : 04.09.2024
Result : Appeal allowed
APPEAL UNDER SECTION 96 CPC
JUDGEMENT
The present appeal has been preferred under Section 96 CPC challenging the judgement/decree dated 29.04.2023 passed by Ms. Kirandeep Kaur, Ld. Civil Judge (Central), Tis Hazari Court, Delhi in Civil Suit No. 98805/16 titled 'Sarabjeet Kaur vs. Tarsem Singh Saini'. I RCA No. 76/23 Page no.1 of 14 Sarabjeet Kaur vs. Tarsem Singh Saini have heard argument on the said appeal from Sh. D.B. Yadav, Ld. Counsel for the appellant and Ms. Usha Srivastava, Ld. Counsel for the respondent. Record perused.
2. Ld. Counsel for the appellant argued that the Ld. Trial Court did not appreciate the evidence and passed the judgment without following established principles of law. On the other hand, Ld. Counsel for the respondent supported the impugned judgment.
Reasons for decision
3. The present appeal arose out of suit which was filed by the appellant/plaintiff for claiming the relief of mandatory and permanent injunction against the respondent/defendant for directing him to remove himself from the ground floor of the property bearing No. E-181, Gandhi Vihar, Village Gopalpur, Delhi-110009 (suit property) and to restrain him to create any third party interest in the said property. The plaintiff claimed that said property was purchased by the husband of the plaintiff, namely, Sh. Ram Swaroop on 28.06.1999 and after the death of husband of plaintiff, all the legal heirs relinquished their share in favour of the plaintiff. It was further claimed that the husband of the plaintiff permitted defendant who is his nephew (bhanja) to live in the suit property and in that capacity defendant was a licensee. After death of the husband of the plaintiff, the defendant continued residing on the ground floor of the abovesaid property and on account of marriage of son of the plaintiff, she requested defendant to vacate it but instead of vacating the suit property, family members of defendant assaulted son of the plaintiff, for which a RCA No. 76/23 Page no.2 of 14 Sarabjeet Kaur vs. Tarsem Singh Saini separate criminal complaint was filed. Therefore, the plaintiff filed the said suit.
4. In the written statement filed by defendant, he claimed that he was residing in the suit property in his independent right as owner. He further stated that from his employment with the husband of the defendant, a huge amount of Rs. 2,50,000 was accumulated which was taken by the husband of the plaintiff on the promise that he will transfer the said property in his name but before execution of the transfer documents, the husband of the plaintiff died.
5. Ld. Counsel for the appellant argued that in the cross- examination dated 13.01.2020, the defendant admitted that the husband of the plaintiff was the owner of the suit property and that he had never executed any document in favour of the defendant. He further argued that the respondent is a licensee of the appellant and Ld. Trial Court also decided the issue no. 7 with a finding that the defendant was licensee of the husband of the plaintiff which also indicates that a licensee cannot have right of ownership.
6. On the contrary, the Ld. Counsel for the respondent argued that the suit property was not allotted to the husband of the appellant and it was allotted to Smt. Lajwanti by the DDA on leasehold basis and the DDA is the owner of the property and Smt. Lajwanti had no right/authority to sell/transfer the ownership of suit property allegedly in favour of Smt. Santosh Rani who further transferred the property in favour of Sh. Jagdish Chander and thereafter, Sh. Jagdish Chander executed the documents like RCA No. 76/23 Page no.3 of 14 Sarabjeet Kaur vs. Tarsem Singh Saini GPA, deed of will, agreement to sell etc. in favour of husband of the appellant. In this regard, he relied on the famous case of Suraj Lamp & Industries (P) Ltd. v. State of Haryana, (2012) 1 SCC 656 decided by Hon'ble Apex Court.
7. As far as ownership or title in an immovable property on the basis of registered sale deed is concerned, hardly any dispute arises. But disputes are invariably raised when ownership or title is claimed on the basis of standard set of documents, namely, the GPA/SPA, Agreement to sell, Will, Possession Letter, Receipt etc. An argument is frequently raised that after the judgment of the Hon'ble Supreme Court of India in the famous case of Suraj Lamp & Industries (P) Ltd. v. State of Haryana, (2012) 1 SCC 656, no ownership right in the immovable property can be recognized without a registered sale deed. The ratio decendi of the said judgment and the legal interpretation of the aforesaid standard documents can be understood from the following series of judgements.
8. The SLP No.5804/2009 in the case of Suraj Lamp & Industries (P) v. State of Haryana & Anr was filed before Hon'ble Supreme Court of India. The facts of the said SLP were - 'A' claimed that 'B' had sold 2.5 acres of land in Gurgoan to 'A' by means of an Agreement of Sale, General Power of Attorney and a Will in the year 1991 for a consideration of Rs.716,695/-. Thereafter 'A' verbally agreed to sell a part of the said property to 'C' for Rs.60 lakhs in December 1996. But 'C', instead of proceeding with 'A', directly got in touch with 'B' in 1997 and got executed and registered a GPA in favour of C for the entire 2.5 acres of RCA No. 76/23 Page no.4 of 14 Sarabjeet Kaur vs. Tarsem Singh Saini land and also illegally got cancelled the earlier GPA in favour of 'A'. In the year 2001, 'A' lodged a criminal complaint against 'B' and 'C'. When no action was taken, 'A' filed an RTI application to the police agency but finding contradictory replies, 'A' approached CIC and High Court and being aggrieved, he filed the above SLP before the Hon'ble Apex Court.
9. On 15.05.2009, Hon'ble Supreme Court observed that the matter involves an issue whose seriousness was underestimated and direction was given to the States of Punjab, Haryana, Delhi, Uttar Pradesh and Maharashtra to file a report about PoA-sale and the steps being taken or to be taken to deal with the chaotic situation and confusion arising from such transactions.
10. On 11.10.2011, in the aforesaid case, Hon'be Justices R.V. Raveendran, A.K. Patnaik and H.L. Gokhale, three Judges Bench of Hon'ble Apex Court passed inter alia the following order:
"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 the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of 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.
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 authorises 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 1-A and RCA No. 76/23 Page no.5 of 14 Sarabjeet Kaur vs. Tarsem Singh Saini 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. 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.
Therefore, an SA/GPA/will transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain v. Canara Bank [(2001) 94 DLT 841] that the "concept of power-of-attorney sales has been recognised as a mode of transaction" when dealing with transactions by way of SA/GPA/will are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/will transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/will transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law."
11. Soon after passing of the aforesaid judgment, a case, namely, Ramesh Chand v. Suresh Chand, came up for hearing before Hon'ble Apex Court and after hearing the matter, it was remanded back to the High Court of Delhi for giving a fresh decision in view of the observations as made in the case of Suraj Lamp case (supra).
12. On April 9, 2012, Hon'ble Justice Valmiki J. Mehta, High Court of Delhi decided the said case of Ramesh Chand v. Suresh1 and observed as under:
"2. Before I proceed to dispose of the appeal, and which would turn substantially on the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra), it is necessary to reproduce certain paras of this judgment of the Supreme Court, which read as under:
"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 Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property (except to 1 RFA No.: 358/2000 decided on 09.04.2020, High Court of Delhi.
RCA No. 76/23 Page no.6 of 14 Sarabjeet Kaur vs. Tarsem Singh Saini 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 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.
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.
3. 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.
4. 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 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
RCA No. 76/23 Page no.7 of 14
Sarabjeet Kaur vs. Tarsem Singh Saini
(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 consigns 1,000 bales of cotton to B, who has 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.
The summarization is that the documents which were executed by the father-Sh. Kundan Lal in favour of the respondent No. 1/plaintiff/son dated 16.5.1996 would not stricto sensu confer complete ownership rights, however, the said documents would create rights to the extent provided for by Section 202 of Contract Act, 1872 and ownership on account of devolution in terms of the Will after the death of the testator in terms of relevant provisions of Indian Succession Act, 1925. Of course, I hasten to add that so far as the facts of the present case are concerned, I am not giving the benefit of the doctrine of part performance under Section 53A of the Transfer of Property Act, 1882 to the respondent No. 1/plaintiff inasmuch as learned counsel for the appellant is correct in arguing that the benefit of the said doctrine cannot be given as the physical possession of the property was not transferred to the respondent No. 1/plaintiff by the father-Sh. Kundan Lal under the agreement to sell dated 16.5.1996.
7. Accordingly, even if we do not give the benefit of Section 53A of the Transfer of Property Act, 1882 to the respondent No. 1/plaintiff, the respondent No. 1/plaintiff however would be entitled to benefit of Section 202 of the Contract Act, 1872 and the fact that ownership had devolved upon him in terms of the Will executed by the father in his favour on 16.5.1996. The argument urged on behalf of the appellant by his counsel that power of attorney, Ex. PW 1/6 ceased to operate after the death of the father is an argument without any substance in view of the provision of Section 202 of the Contract Act, 1872 alongwith its illustration and which shows that power of attorney given for consideration operates even after the death of the executant.
RCA No. 76/23 Page no.8 of 14 Sarabjeet Kaur vs. Tarsem Singh Saini
12. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.5.1996, the respondent No. 1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant No. 1. In fact, I would go to the extent saying that by virtue of para 14 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) taken with the fact that Sh. Kundan Lal has already died, the respondent No. 1/plaintiff becomes an owner of the property by virtue of the registered Will dated 16.5.1996. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof."
13. May be the husband of the plaintiff did not acquire the absolute ownership on the basis of agreement to sell and GPA but on the basis of a Will, a right can be acquired when the testator of the Will expires. Even certain kind of rights are also created on the basis of agreement to sell and GPA, as narrated in the aforesaid case-laws and it cannot be said that the said documents are not valid. In the instant case, the civil suit was required to be decided on the basis of better right/title/claim between the two contesting parties i.e. the plaintiff and the defendant and it is a settled law that the parties who has superior right can be held entitled to the relief of possession except where such dispute is raised by the true owner.
14. In order to understand as to what constitutes a license, it is appropriate to refer to Section 52 of the Indian Easement Act which define the terms 'licence' as under:
"Section 52: Where one person grants to another, or to a definite number of other persons, a right to do or continue to do in or upon the RCA No. 76/23 Page no.9 of 14 Sarabjeet Kaur vs. Tarsem Singh Saini immoveable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence."
15. From the judgment passed by Ld. Trial Court, it is observed that Ld. Trial Court gave finding that the plaintiff duly proved the relationship between her husband and the defendant as granter and licensee but thereafter, an observation was given which is reproduced as under:
"It is settled law that a licence is only a personal privilege and it is neither transferable nor heritable. It is not annexed to the property in respect of which it is enjoyed, nor is it a transferable or heritable right but is a right purely personal between the grantor and licensee. Therefore, wife of the Ram Saroop i.e. plaintiff cannot step into shoes of grantor of licensee and claim herself as grantor of license."
16. The aforesaid observations of the Ld. Trial Court is without quoting any provision of statutory law or the precedents. The relevant provisions with regard to specific rights or incidents of the granter and the licensee have been enacted in the Indian Easement Act, 1882 from Section 52 to 64. From the perusal of the said provisions, this court does not find that the right/permission of granter and licensee is not inheritable or transferable. Even there is no provision which provides that a licence terminates or is revoked when granter expires. In the opinion of this court, this may apply to a licensee but not to granter. The Section 62 of the said Act provides that a licence can be revoked in specified circumstances. For a ready reference, said Section is reproduced as under:
"Sec.62. License when deemed revoked:
.A license is deemed to be revoked -
(a) when, from a cause preceding the grant of it, the grantor ceases to have any interest in the property affected by the license;
RCA No. 76/23 Page no.10 of 14 Sarabjeet Kaur vs. Tarsem Singh Saini
(b) when the licensee releases it, expressly or impliedly, to the grantor or his representative;
(c) where it has been granted for a limited period , or acquired on condition that it shall become void on the performance or non-
performance of a specified act, and the period expires, or the condition is fulfilled;
(d) where the property affected by the license is destroyed or by superior force so permanently altered that the licensee can no longer exercise his right;(
e) where the licensee becomes entitled to the absolute ownership of the property affected by the license;
(f) where the license is granted for a specified purpose and the purpose is attained, or abandoned, or becomes impracticable;
(g) where the license is granted to the licensee as holding a particular office, employment or character, and such office, employment or character ceases to exist;
(h) where the license totally ceases to be used as such for an unbroken period of twenty years, and such cessation is not in pursuance of a contract between the grantor and the licensee;
(i) in the case of an accessory license, when the interest or right to which it is accessory ceases to exist.
17. In the opinion of this court, the suit property admittedly belonged to the husband of the plaintiff and even defendant also claimed that the husband of the plaintiff was the owner of the said property and the latter agreed to sell/transfer some share of the said property in favour of the defendant which shows that there is no dispute with regard to ownership right of the husband of the plaintiff. The record reveals that the husband of the plaintiff acquired such right on the basis of usual set of documents like GPA, Agreement to Sell, Will etc. but when no dispute is raised with regard to the right of the husband of the plaintiff (even there is no denial in the WS), the same is not required to be considered. Moreover, the said point was not an issue before the Ld. Trial Court and the parties are also RCA No. 76/23 Page no.11 of 14 Sarabjeet Kaur vs. Tarsem Singh Saini did not lead evidence nor the Ld. Trial Court adjudicated the said point. Therefore, in the present appeal, the said argument as raised by the Ld. Counsel for the respondent cannot be considered.
18. Moreover, it is a settled position of law that if a person has any right in a property, may be perfect or imperfect or defective, same cannot be denied or disputed by any other person except the true owner. The defendant is not a true owner to challenge the said right. The defendant claimed that husband of the plaintiff expired before execution of the transfer/sale documents though he had paid consideration amount. As per law, an interest in an immovable property does not transfer unless valid documents are executed and got registered as per Section 17 of the Indian Registration Act, 1908 after payment of requisite stamp duty/charges as per Indian Stamp Act. Therefore, the oral promise of transfer of such right as claimed by the defendant is not admissible under law.
19. The rights of the husband of the plaintiff (whatsoever) are inheritable as per Section 6 of the Hindu Succession Act, 1956 and the plaintiff being his wife, inherited said right. The plaintiff also claimed that a relinquishment deed was executed in her favour by the other legal heirs. The Ld. Counsel for the defendant raised objection on the same. Even if it is presumed that the plaintiff was having joint share in the suit property, then also, the suit was maintainable and there is no need to consider the validity of the said relinquishment deed.
RCA No. 76/23 Page no.12 of 14 Sarabjeet Kaur vs. Tarsem Singh Saini
20. Thus it can be said that the plaintiff became granter after stepping into the shoes of her husband. Even if it is presumed that the licence of the defendant terminated on the death of the granter (though no such provision is found in the Indian Easement Act, 1882 in this regard) then also it can be said that a new relationship came into existence between the plaintiff and the defendant as granter and licensee because the plaintiff also permitted the defendant to live in the suit property. Such permission can be express or implied as per Section 64 of the said Easement Act. Therefore, the right of the defendant to stay in the said property was permissible in nature and it was terminable at the whims and choice of the plaintiff. Even as per the Section 61 of the said Act, a licence can be revoked by express or implied conduct or circumstances.
21. In the instant case, the plaintiff issued a legal notice to the defendant terminating the licence of the defendant and it was a sufficient expression of the will of the plaintiff for revocation of the said licence. The said intention of the revocation of the licence is also reflected by filing of the suit and its prosecution even till today in the present appeal.
22. Therefore, this court holds that observations of the Ld. Trial Court were not correct in view of the aforesaid legal provisions of law. As such, the plaintiff is entitled for the relief of permanent and mandatory injunction as claimed in the suit.
23. The plaintiff also claimed damages against the defendant @ Rs. 7000 from 01.01.2015 for user charges of the suit property but same RCA No. 76/23 Page no.13 of 14 Sarabjeet Kaur vs. Tarsem Singh Saini appears to be on higher side. However, a reasonable amount as damages @ Rs.3000 per month is granted to the plaintiff against the defendant from the date of filing of the suit till the date of realization of amount.
Conclusion
24. In the light of aforesaid findings, the impugned judgment and decree are set aside and the present appeal is allowed. Consequently the suit of the plaintiff is decreed against the defendant for the relief of permanent and mandatory injunction as well as damages, as stated above. Cost of the suit and present appeal are also awarded to the plaintiff. Decreesheet be prepared accordingly. The trial court record be sent back along with copy of this judgment. Appeal file be consigned to record room.
Announced in the open court today i.e. 04.09.2024. NARESH KUMAR LAKA Digitally signed by NARESH KUMAR LAKA Date: 2024.09.06 11:18:40 +0530 (Naresh Kumar Laka) District Judge-07, Central District, Tis Hazari Court, Delhi.
RCA No. 76/23 Page no.14 of 14
Sarabjeet Kaur vs. Tarsem Singh Saini