Delhi District Court
Rca No. 01/2013 vs Raj Singh on 16 May, 2015
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT
JUDGEII (CENTRAL): TIS HAZARI COURTS: DELHI
1. RCA No. 01/2013
Unique Case ID No. 02401C0418922010
2. RCA No. 02/2013
Unique Case ID No. 02401C0427972010
Mahender Singh
S/o Late Sh. Chander Bhan
R/o E40, Laxmi Park,
Nangloi, Delhi110 041.
...... Appellant
VERSUS
Raj Singh
S/o Sh. Om Prakash
R/o C112, Laxmi Park,
Nangloi, Delhi110 041.
...... Respondent
Date of Institution : 15.09.2010
Reserved for orders on : 12.05.2015
Date of Decision : 16.05.2015
JUDGMENT :
(1) Vide this combine Judgment, I shall be disposing off two Regular Civil Appeals i.e. RCA No. 01/13 and RCA No. 02/13 filed by appellant Mahender Singh against the respondent Raj Singh arising out of two different Orders of Ld. Trial Court dated 30.07.2010 in Suit for Recovery of Rs.52,000/ as rent, license fees and damages bearing No. Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 1 of 17 836/2006 titled as 'Raj Singh Vs. Mahender Singh" and Suit for Declaration bearing No. 841/2006 titled as 'Mahender Singh Vs. Raj Singh". Both the suits relate to the same property and same set of facts and hence are being disposed off together vide this combined Judgment. (2) The case of the appellant Mahender Singh is that he had purchased the suit property a piece of land i.e. portion measuring 120 sq yards of the plot (out of total measuring 440 sq yards), out of Khasra No. 63/10 situated in the area of Village Nagloi, New Delhi from its previous owner(s) namely Sh. Balraj s/o Sh. Ram Narayan, r/o 106/126, Nangloi, New Delhi and Sh. Kehar Singh s/o Sh. Tej Singh, r/o 138, Nangloi, New Delhi through an agreement to sell and purchase dated 30.03.1988 for a sum of Rs. 40,000/. The Appellant thereafter raised construction on the said piece of land out of his own money, funds and savings and started residing there along with his family. Further, Sh. Raj Singh S/o Sh. Om Prakash was used to come to the house of the Appellant who is a goldsmith by caste and also running shop of gold jewellery. Sh. Raj Singh used to work as a vegetable vendor, he was later on used to come on and sit at the shop of the Appellant, thereafter he also learned the art of making gold ornaments from the Appellant and had become a god friend of the Appellant by winning his heart and faith. In the month of February 2000, relations between the Appellant and his wife namely Smt. Shanti Devi became strained and one day she also left the matrimonial home and went to her parents house at Village Birhour, Haryana and extended various threats to the Appellant. The inlaws of the Appellant threatened him and Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 2 of 17 also demanded for money. Further, one day the Respondent Sh. Raj Singh came in the room of the Appellant and told him that there is no one in the house perhaps his wife along with her brother has gone to her parent's house, further on checking inside the house, it came to notice that some ornaments and clothes were also missing. It is submitted that, at that particular moment, the Appellant along with the Respondent went to Police Chowki Nihal Vihar of PS Nangloi on 03/03/2000 and lodged a complaint against his wife Smt. Shanti Devi and his brother in law, Sh. Ved Prakash (copy of which complaint has been duly proved by the Appellant). It is further case of plaintiff that the Respondent Sh. Raj Singh thereafter pretending to be well wisher of the Appellant, suggested to the Appellant that he should transfer his property which is the subject matter of the present case in the name of the Respondent Sh. Raj Singh so that he can prevent his wife from taking any action against the Appellant and for grabbing the property. It is further pleaded by the appellant that the respondent further assured him that when the relations between him i.e. the Appellant and his wife become cordial, he would retransfer the papers of the property in the name of the Appellant. According to the Appellant he was already in a disturbed state of mind due to family disputes and he thus came under the influence of the Respondent and believing him to be his best friend, the Appellant acted as per the dictates of the Respondent, pursuant to which the Respondent got the Agreement to Sell, Will, General Power of Attorney (GPA) dated 13.03.2000 executed in his own favour. The Respondent thereafter asked the Appellant to sign those documents in Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 3 of 17 his favour. The Appellant believing the Respondent to be his well wisher signed those documents in respect of the property in favour of the respondent which is now a subject matter of present case. It is stated that no amount was ever paid to the Appellant by the Respondent. Thereafter, when the relations between the appellant and his wife became cordial, he asked the Respondent to hand back the papers and retransfer the property in his name but instead of transferring back the property to him the respondent tried to blackmail the Appellant. The Appellant became suspicious about the activities of the Respondent and being fed up of his deeds, got the documents cancelled by Registered Deeds dated 04.10.2000 and also got a public notice of cancellation published in the Daily Newspaper Veer Arjun dated 10.10.2000.
(3) On the other hand the case of the respondent Raj Singh is that he had purchased the said property from the appellant for a valuable consideration i.e. Rs.3,35,000/. According to the the respondent the entire sale consideration had been paid by him to the appellant and the physical possession of the said property was delivered to the former before the same was let out to the later on rent and also on license. (4) Detailed issues were framed by the Trial Court and after applying the provisions under Section 91 and 92 of the Indian Evidence Act, Section 23 of Indian Contract Act and Section 34 of Specific Relief Act, the Ld. Trial Court vide a detailed judgment dated 30.07.2010 had dismissed the suit of appellant Mahender Singh bearing No. 841/06 and decreed the suit of the respondent Raj Singh bearing No. 836/06. Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 4 of 17 (5) I have gone through the grounds raised in the appeals which are not being repeated for the sake of brevity and also considered the findings of the Ld. Trial Court.
(6) Before coming to the merits of the case, I may observe that in the case of "Suraj Lamp & Industries (P) Vs. State of Haryana & Anr." decided 11 October, 2011, decided on 11.10.2011, the Hon'ble Supreme Court had at length dealt with the transfer of immovable properties / sale by way of General Power of Attorney / Agreement to Sell / Will, etc., the relevant portion of which I quote as under:
"........... 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 [or to himself] and one or more other living persons; and "to transfer property" is to perform such 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 partpromised.
Sale how made. Such transfer, in the case of tangible immoveable 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 immoveable 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.Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 5 of 17
Delivery of tangible immoveable 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 53A of the TP Act defines `part performance' thus :
"Part Performance Where any person contracts to transfer for consideration any immoveable 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 has 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 by 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 rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
8. We may next refer to the relevant provisions of the Indian Stamp Act, 1999 (Note : Stamp Laws may vary Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 6 of 17 from state to state, though generally the provisions may be similar). Section 27 of the 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 affect the chargeability of duty on that instrument. Article 23 prescribes stamp duty on `Conveyance'. In many States appropriate amendments have been made whereby agreements of sale acknowledging delivery of possession or power of Attorney authorizes the attorney to `sell any immovable property are charged with the same duty as leviable on conveyance.
9. Section 17 of the Registration Act, 1908 which makes a deed of conveyance compulsorily registrable. We extract below the relevant portions of section 17.
"Section 17 Documents of which registration is compulsory (1) The following documents shall be registered, namely: xxxxx
(b) other nontestamentary instruments which purport or operate 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 one hundred rupees and upwards, to or in immovable property.
xxxxx (1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.
Advantages of Registration
10. In the earlier order dated 15.5.2009, the objects and Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 7 of 17 benefits of registration were explained and we extract them for ready reference :
"The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of nonregistration.
Section 17 of the Registration Act clearly provides that 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.
Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 8 of 17 enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified."
Registration of documents makes the process of verification and certification of title easier and simpler. It reduces disputes and litigations to a large extent. Scope of an Agreement of sale:
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 interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR.
293. The fiduciary character of the personal obligation created by a contract for sale is recognised 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...." Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 9 of 17 In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held:
"Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from 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 immoveable 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 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 Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 10 of 17 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 Powersof Attorney 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 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.
Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 11 of 17 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......."
(7) In the said case, the Hon'ble Supreme Court further concluded as under :
"............ 15. Therefore, a SA/GPA/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/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/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/GPA/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.Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 12 of 17
Transactions 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 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.
They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP 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 transactions known as GPA sales........."
(8) Applying the above settled principles of law to the facts of present case, I may observe that assuming that the appellant Mahender Singh did execute the documents i.e. General Power of Attorney, Will, Agreement to Sell, Receipt, etc., the only question for the court is to decide whether these documents convey any valid title to the respondent over the suit property and create any or tantamount to transfer or not. Firstly I may observe that the General Power of Attorney Ex.PW1/1 does not convey any title and any transfer by GPA has held by the Hon'ble Supreme Court in the case of "Suraj Lamp & Industries (P) Vs. State of Haryana & Anr." (supra) does not tantamount to transfer nor it be recognized as valid mode to transfer the property. Further, as per the ratio laid down in the Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 13 of 17 case of Suraj Lamp & Industries (P) Vs. State of Haryana & Anr. (Supra), the court of law will not treat such transactions as contemplated as concluded proceedings or conveyance, since they do not convey any title nor create any interest in the immovable properties. (9) Secondly coming to the Will so executed by the appellant Mahender Singh which is Ex.PW1/2, it is settled law that a Will is intended to come into effect only after the death of the testator (i.e. Mahender Singh) and is revocable at any point of time during his life time. So long Mahender Singh is alive, the Will executed by him has no worth. Mahender Singh has absolute right to revoke the same at any point of time and admittedly the Will in question so executed by Mahender Singh stands revoked, an aspect which has not been disputed by the respondent. (10) Thirdly coming to the Agreement to Sell so executed between the parties which is Ex.PW1/3, I may observe that the said agreement to sell is not a registered document and even otherwise it is only a contract of sale i.e. agreement which does not itself create any interest in, or charge on, the property (reliance is placed in the case of Rambaran Prosad Vs. Ram Mohit Hazra reported in 1967 (1) SCR 293 and Narandas Karsondas Vs. S. A. Kamtam and Anr. reported in 1967 (1) SCC 247. (11) Fourthly this agreement to sell has nothing to do with the ownership of the respondent and it is the appellant Mahender Singh who remains continues to claim the full ownership of the property till it is legally conveyed by executing a registered Will Deed in favour of Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 14 of 17 transferee i.e. Raj Singh and hence in terms of the provisions of Transfer of Property Act this agreement to sell whether it was with possession or without possession is not conveyance. The only remedy available to Raj Singh was to file a suit for Specific Performance where the issue as to whether these documents were executed pursuant to any consideration or not could have been raised and decided, which he i.e. Raj Singh has not done.
(12) Fifthly even otherwise, perusal of the Trial Court Record in Suit No.841/2006 shows that the Mahender Singh has placed on record certain documents which include the police complaints dated 3.3.2000 original copy of which is placed in Suit No. 836/2006 which complaint bears the stamp of Police Post Nihal Vihar of Police Station Nangloi, which confirms the version given by Mahender Singh duly corroborated by his wife and other family members to the extent that in the month of March 2000 Mahender Singh had quarrelled with his wife on account of which his wife Shanti Devi (PW2) had left the house threatening to seek maintenance from him from the Courts at Haryana and would get the house in question sold, thereby lending credence to the same pursuant to which Mahender Singh was induced by Raj Singh to execute the documents in order to safeguard the interest of the property and preempt his wife from claiming any maintenance by showing himself as tenant in the property. On the other hand the respondent has failed to bring on record any material to prove the execution of documents for consideration, Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 15 of 17 so much so that even the Receipt on which he is placing his reliance is an unregistered document (requiring a compulsory registration under the Registration Act since it seeks to create right in respect of an immovable property). It is this which creates a doubt in the version of Raj Singh. (13) Lastly I may observe that in Suit No. 841/2006 the evidence lead by Raj Singh has been taken off the record in view of the fact that the sanctity of the affidavit of evidence of Raj Singh (DW1) and Jai Singh (DW2) no longer remained since Raj Singh (DW1) had stated that the stamps of Oath Commissioner was already present and he had signed on the affidavit later on. Both Raj Singh (DW1) and Jai Singh (DW2) stated that they have not got their affidavit attested. Even the Oath Commissioner Sh. Ajay Kumar Chadha (DW3) has denied his attestation and signatures on the same. Therefore, the entire evidence of the appellant/ plaintiff Mahender Singh before the Ld. Trial Court in this Suit No. 841/2006 has gone unrebutted and uncontroverted. (14) In so far as the Suit No. 841/2006 is concerned, I hereby declare the Agreement to Sell, General Power of Attorney, Receipt, Rent Deed dated 13.3.2000, as illegal and invalid and did not confer any title and interest upon Raj Singh and I further restrain Raj Singh from placing reliance upon these documents as owner thereof. The Suit No. 841/2006 is accordingly decreed. Parties to bear their own costs in this suit. (15) In view of the above discussion, the impugned Judgment and Decree of Ld. Trial Court dated 30.07.2010 in Suit No. 836/2006 and Suit Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 16 of 17 No. 841/2006 are hereby set aside and accordingly having held that the documents did convey valid title upon Raj Singh who is entitled to receive the license fee, rent and damages, does not lie. The Suit No. 836/2006 is accordingly dismissed being without any merits. Parties to bear their own costs in this suit.
(16) Decree sheet be prepared accordingly in both cases. (17) Copy of this Judgment be placed before the SubRegistrar concerned (No. 15216 in Addl. Book No. 4, Volume No. 6917 on Pages 112 to 113) for taking appropriate action on record in accordance with law. (18) Copies of this Judgment be also placed on the Trial Court Records. Appeal files be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 16.5.2015 ADJII(CENTRAL)/ DELHI
Mahender Singh Vs. Raj Singh (RCA Nos. 01/13 & 02/13) Page 17 of 17