Delhi District Court
Sh. Bhagwan Singh vs (1) Sh. Puran Singh on 3 June, 2015
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02, (NE)
KARKARDOOMA COURTS, DELHI
CS No. 155/14
Unique ID No. : 02402C0086772009
IN THE MATTER OF:
Sh. Bhagwan Singh
S/o Late Sh. Nekse Ram
R/o D18, Gali No. 3,
Brijpuri, Delhi. ..............Plaintiff
V E R S U S
(1) Sh. Puran Singh
S/o Late Sh. Nekse Ram
R/o D18, Gali No. 3,
Brijpuri, Delhi.
(2) Smt. Tofa Devi
W/o late Sh. Nekse Ram
R/o D18, Gali No. 3,
Brijpuri, Delhi.
(3) Sh. Mahaveer Singh
S/o Late Sh. Nekse Ram
H. No. 191, Gali No. 6,
Phase4, Shiv Vihar, Karawal Nagar
Delhi110094.
(4) Smt. Janki Wati
CS No. 155/14
Bhagwan Singh V/s Puran Singh & Ors. 1/31
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
W/o Sh. Vijender Kumar
D/o Late Sh. Nekse Ram
R/o Village Bhush Ka Nangla
Post Mitai, PS Chandpa
Teh. Hathras, Distt. Hathras, UP.
(5) Smt. Vimla Kumari
W/o Sh. Bhagwan Singh
D/o Late Sh. Nekse Ram
R/o Village Bhush Ka Nangla
Post Mitai, PS Chandpa
Teh. Hathras, Distt. Hathras, UP.
(6) Pappu
S/o Late Sh. Nekse Ram
R/o H. No. 92, Gali No. 5,
D Block, Brijpuri, Delhi94.
(7) Smt. Ram Pyari
W/o Late Sh. Maharam
(8) Ms. Mithlesh
W/o Sh. Raju D/o Late Sh. Maharam
R/o Village Gijroli, Teh. Hathras
Distt. Hathras, UP.
(9) Sh. Titoo
S/o Late Sh. Maharam
(10) Sh. Ravinder
S/o late Sh. Maharam
Petitioner No.7 to 10 are resident of
Village Chamanpura,
Post Rashgavan,
Teh. Shadabad, Distt. Hathras UP.
(11) Smt. Rajo
CS No. 155/14
Bhagwan Singh V/s Puran Singh & Ors. 2/31
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
W/o Sh. Ishwari
D/o late Sh. Maharam
(12) Smt. Kallo
W/o Sh. Hardesh
D/o late Sh. Maharam
Petitioner No. 11 & 12 are resident of
Village Birona, Teh. Mahawan,
Post Jharota, Distt Mathura, UP.
(13) Smt. Guddi
W/o Sh. Puran Singh
R/o D18, Gali No. 3,
Brijpuri, Delhi. ..............Defendants
Date of Institution : 19.03.2009
Received in this Court : 11.02.2014
Date of Arguments : 03.06.2015
Date of Judgment : 03.06.2015
Decision : Suit is decreed
Suit for partition & permanent injunction
J U D G M E N T
1. This is suit for partition and permanent injunction in respect of property bearing H. No. D18, Gali No. 3, Brij Puri, delhi94( hereinafter called the suit property) measuring 50 sq. yards filed by plaintiff against the defendants.
2. As contended, plaintiff is the real brother of defendant No. 1, 3, 4, 5, CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 3/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 6 and 7 and son of defendant No. 2. The suit property was purchased by father of plaintiff and Nekse Ram and the construction was raised. The property is enjoyed jointly by all the parties. Nekse Ram expired on 01.11.2000 intestate. The plaintiff and defendants have 1/ 8th share each in the suit property. In February, 2009, the defendant No. 1 in collusion with his wife and defendant No. 2 tried to sell the suit property dishonestly. Plaintiff requested the defendants to partition the suit property but of no avail and therefore this suit is filed by the plaintiff against the defendants.
3. WS has been filed by the defendant No. 1 wherein preliminary objections are taken to the effect that this suit is not maintainable; plaintiff has no right, title or interest in the suit property; plaintiff has suppressed the material facts and this suit is filed without cause of action. As contended, the suit property belongs to wife of defendant No. 1 who purchased the same from his father and defendant No. 1 in 1997. The defendant No. 1 further claimed that suit property was purchased in the name of his father by him only and defendant No. 2 to 7 never resided in the suit property at any point of time. The suit property was purchased by his wife from his father and suit of the plaintiff is not maintainable. While denying rest of the material contentions of the plaintiff in the plaint, the defendant No. 1 prayed to dismiss this suit with costs.
The defendant No. 2 in the WS supported the case of plaintiff CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 4/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. contended that all the LRs are fully entitled for their share in the suit property and prayed to pass decree for partition as prayed for.
The defendant No. 3, 5, 6 and 7 also supported the case of plaintiff and prayed to pass the decree as prayed for. The defendant No. 7 ,9, 10, 11 and 12 also supported the case of plaintiff.
The WS was filed on behalf of subsequently impleaded defendant No.13/ wife of defendant No. 1 who opposed the case of the plaintiff claiming that the plaintiff is illegal possession of one room and he has no right, title or interest in the suit property. Defendant No. 13 claimed to have purchased the suit property as contended by defendant No. 1 and prayed to dismiss the suit with costs.
4. To the written statement of the defendant No. 1 and 13( who are the only contesting defendants), rejoinder was filed on behalf of the plaintiff wherein the defence taken by the defendants 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 dated 14.05.11: (I) Whether the plaintiff is entitled to decree for partition by metes and bounds of property bearing No. D18, Gali No. 3, Brij puri, Delhi94. ? OPP
(ii) Whether plaintiff is entitled to decree for permanent CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 5/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. injunction in respect of property bearing No. D18, Gali No. 3, Brij puri, Delhi94 ?( OPP)
(iii) Relief.
And the case was fixed for plaintiff's evidence.
6. The plaintiff filed his affidavit by way of evidence Ex. PW 1 and examined himself as PW1 in support of the case. He deposed nothing but as per averments made in the plaint, witness also deposed regarding the relevant documents i.e. Site plan Ex. PW1/6, Notice dated 28.05.11 U/o 12 Rule 8 CPC Ex. PW1/7, postal receipt dt. 28.05.11 Ex. PW 1/ 8, AD card Ex. PW 1/9, complaint dt. 13.04.09 Ex. PW 1/10 and postal / UPC receipt Ex. PW 1/11.
As no other witness was examined by the plaintiff, the PE was closed and case was fixed for DE.
7. The defendant Tofa Devi filed her affidavit by way of evidence Ex. D2W1/A and was examined as D2W1, Mahaveer Singh examined as D3W1 vide affidavit Ex. D3W1/A, Vimla Kumari examined as D5W1 vide affidavit Ex. D5W1/A, Pappu examined as D6W1 vide affidavit Ex.D6W1/A and Ram Pyari examined as D7W1 vide affidavit Ex. D7W1/A supported the case of plaintiff.
The defendant No. 1 who contested the suit filed his affidavit by way of evidence Ex. D1W1/A and was examined as D1W1 in support of CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 6/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. contention as mentioned in the WS.
The defendant No. 13 not examined herself though the affidavit was filed on record and DE was accordingly closed.
8. I have heard the Ld. counsel for the parties and have gone through the relevant material on records. I have also considered 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 plaintiff that from the evidence led by the plaintiff as well as from the cross examination of DW1, it has been proved that the plaintiff is the coowner of the suit property having 1/8th share and prayed to pass decree in favour of plaintiff and against the defendants. The learned counsel for plaintiff further argued that all the defendants except defendant No. 1 and 13 admitted the case of the plaintiff and there is no merits in the defence raised by defendant No. 1 and 13.
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 No. 1 and 13 that the plaintiff has failed to prove the case and discharge the onus. Learned counsel for defendants further submitted that this suit is liable to be dismissed as plaintiff has no right, title or interest in the suit property, plaintiff has no locus standi to file this CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 7/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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 defendants that this suit is false and there is no ground for passing decree against the defendants therefore, prayed that the suit be dismissed.
9. I have given my thoughtful consideration to the submissions made on behalf of the parties.
10. 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 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 CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 8/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 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, CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 9/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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.
11. Section 101 of the Evidence Act, 1872 defines " burden of proof". 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 burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party. My findings issuewise are as under :
ISSUE No. I & II (I) Whether the plaintiff is entitled to decree for partition by metes and bounds of property bearing No. D18, Gali No. 3, Brij puri, Delhi94. ? OPP
(ii) Whether plaintiff is entitled to decree for permanent injunction in respect of property bearing No. D18, Gali No. 3, Brij puri, Delhi94 ?( OPP) CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 10/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
12. The onus to prove these issues was upon the plaintiff. It is noted that the none of the defendant except defendant No. 1 and 13 had denied the claim of the plaintiff. The ownership of the father of the plaintiff and Nekse Ram is also not denied. The only defence of defendant No. 1 and 13 is that the suit property was purchased by defendant No. 1 in the name of his father and defendant No. 13 has purchased the property from his father. It is observed that the contentions of the defendant No. 1 regarding purchasing of the suit property in the name of his father is without any basis as nothing is either produced or proved in this respect. The defendant No. 13 claimed to have purchased the suit property from father of the parties but she also did not examine herself before this court nor proved the documents in this respect. Merely oral and bald averments in this respect is not sufficient to deny the claim of the plaintiff.
13. The defendant No. 13 claimed that late Nakse Ram, admitted original owner of the suit property transferred his right by virtue of will, GPA, agreement to sale, receipt and SPA, all dt. 03.01.97 in favour of defendant No. 13 and therefore plaintiff has no right, title or interest in the suit property. As noted, defendant No. 1 to 12 supported the case of plaintiff. I have gone through the said photocopies of documents which is on record relied by Smt. Guddi i.e defendant No. 13 in support of her contentions of ownership. The testimony of defendant No. 1 was shattered CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 11/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. regarding purchasing the suit property in the name of his father during cross examination. It appears that the issue to be adjudicated remained as to whether the defendant No. 13 have become the owner of the suit property ? even on the alleged documents as stated above. The contentions of the defendant No. 13 that Nakse Ram has transferred the suit property to her appears to have no basis.
14. The Defendant No. 13 claimed to have purchased the suit property and derived her title through late Sh. Nakse Ram. It is appropriate and relevant to note the relevant legal provisions and authorities for proper examination and adjudication of the issues.
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 act." XXX XXX Further 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 CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 12/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 :
" Part Performance. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 13/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 rights of a transferee for consideration who has no notice of the contract or of the part performance CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 14/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
thereof."
Section 17 of the Indian Registration Act, 1908: " 17. Documents of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 ( 20 of 1866), or the Indian Registration Act, 1871 ( 8 of 1871), or the Indian Registration Act, 1877 ( 3 of 1877), or this Act came or comes into force, namely
(a) Instrument of gift of immovable property;
(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.
15. It is settled law that title of immovable property above the value of Rs. 100/ can only be transferred by way of a registered instrument as prescribed Under Section 17 of the Indian Registration Act, 1908 and by way of documents of sale as recognized under Section 54 of the Transfer of CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 15/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. the Property Act. 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.
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 AIR 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.
CS No. 155/14
Bhagwan Singh V/s Puran Singh & Ors. 16/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
17. This court is guided in view of the judgment of Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) . As held, the document of title 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 illaffects 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 ( 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 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 CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 17/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 disturbing the possession of the proposed transferee who is put in possession in pursuance to such an CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 18/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 immovable 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 immovable property can be made only by a registered instrument and an agreement of sale does CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 19/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 done by him and subject to the limitations contained in CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 20/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 21/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 53A of the Transfer of Property Act. Such transactions CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 22/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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 Hon'ble 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).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.
Therefore, no doubt, a person strictly may not have complete CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 23/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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. It is settled 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 nor possession of the suit property was ever handed over to the defendant in pursuance of the provisions of the Transfer of Property Act.
20. 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, 1908 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 CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 24/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. in an immovable property can be transfered. With regard to the legal validity of such documents i.e. agreement to sell, GPA, Will and receipt, the Hon'ble Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana reported in AIR 2009 SC 3077 has held that such documents cannot create any right in respect of immovable property. The only way a contract of sale can create title to immovable property is by way of a deed of conveyance as defined under Section 54 of the Transfer of Property Act and registered in pursuance of the provisions of Section 17 of The Registration Act, 1908. No such document has been executed in favour of defendants by plaintiff.
21. This Court is conscious of the judgment of the Hon'ble High Court in the case of Sh. Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 in which the judgment in the case of Suraj Lamps (supra) was interpreted. In the case of Ramesh Chand (supra) the Hon'ble High Court was pleased to hold that right to possess immovable property arises not only from a complete ownership right but also by having a better title.
22. As discussed, defendant No. 13 cannot be considered as owner on the basis of the documents executed by late Sh. Nakse Ram in her favour( though no such documents are either produced or proved by defendant No. 1 and 13 in accordance with the provision of Indian Evidence Act, 1872). There is nothing on record except the bald averments CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 25/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. of the defendant regarding purchase of the suit property. The defendant No. 13 by no stretch of imagination can be considered to be the owner of the suit property on the basis of documents executed by late Sh. Nakse Ram in her favour. The defendant No. 13 failed to prove regarding any transfer of property in her favour as claimed in the written statement. Neither Section 53 A of the Transfer of Property Act, 1882 nor Section 202 of the Contract Act, 1872 is applicable for ownership of defendants and 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.
23. In the present case, defendant No. 13 claimed the title on the basis of GPA, will, agreement to sale, SPA, receipt but the execution of the documents not proved along with the execution of the will. Even if these documents were executed by late Sh. Nakse Ram in favour of defendant No. 13, the same would not create any title in her favour and the plaintiff is the coshares/ coowner of the suit property. Since there is no registered sale in favour of the defendant No. 13 in respect of the suit property in accordance with provisions of Transfer of Property Act, 1882, the defendant No. 13 is not the owner of the suit premises. Plaintiff is accordingly entitled for relief of partition as prayed in the suit. Issue No. I is decided in favour of the plaintiff against the defendants.
CS No. 155/14
Bhagwan Singh V/s Puran Singh & Ors. 26/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
24. As regards the relief of injunction, the injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied. Sub Section (h) of section 41 mention that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, except in case of breach of trust the injunction cannot be granted. Sub Section (i) mention regarding refusal of injunction when the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the court. Section 38 of the Specific Relief Act enables the court to grant a perpetual injunction to prevent the breach of an obligation existing in favour of applicant whether express or implied. Meaningly the question is to be examined as to whether there exists an obligation in favour of the applicant and thereafter if the answer is yes, if the case falls within section 41 of the Act, an injunction cannot be granted. It is also necessary to mention that rights and obligation are corollary to each other and the right places a corresponding duty also for its existence.
25. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. Issuance of order of an injunction is absolutely discretionary and equitable relief. In a given set of CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 27/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41 (j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence cannot be protected by injunction.
26. The plaintiff has prayed for restraining the defendants, agents, attorneys etc. from creating any third party interest in the suit property. As mentioned, the defendant No. 13 failed to prove her ownership. The defendant No. 1 and 13 therefore cannot have valid title in respect of the suit property on the basis of said documents. Further, defendant No. 13 claimed title of the suit property on the basis of Agreement to Sell, GPA, Will and stated to have been executed by late Sh. Nakse Ram in her favour. In view of the provisions of Section 17 of the Indian Registration Act, 1908 and Section 54 of the Transfer of the Property Act, 1882, no valid title to the suit property can be claimed by the defendants on the basis of these documents. As the defendants have no right, title or interest in the suit property, the plaintiff is entitled for grant of injunction as prayed in the suit. Issue No. II is decided in favour of the plaintiff and against the defendants. The defendants, their agents, assigns, associates are restrained from creating any third party interest or parting with possession of the suit CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 28/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. property.
27. In view of the legal position of the Evidence Act, it is clear that the plaintiff has discharged the burden regarding the property being joint property. It was for the defendants to prove that the plaintiff has no right, title or interest in the suit property but the defendants failed to discharge the onus and prove the contentions as mentioned in the written statement.
28. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 29/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
plaintiff's title ( Para 28,29 and 33).
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this court the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
29. In view of the aforesaid discussions and referred law, this Court is of the considered view that the plaintiff is entitled for the decree of partition of 50 sq. yards ( 1/8th share) and permanent injunction as prayed in the suit. Issue No. 1 is decided in favour of the plaintiff and against the defendants. Further, as the plaintiff is the owner of the 1/8 th share, the defendants will not have any right to transfer the property or create third party interest in the suit property in any manner. The plaintiff is therefore entitled to a decree of permanent injunction as prayed for. Issue No. 2 is accordingly decided in favour of the plaintiff and against the defendants as prayed in the CS No. 155/14 Bhagwan Singh V/s Puran Singh & Ors. 30/31 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. suit.
RELIEF For the reasons recorded above, the plaintiff is found to be entitled to the following reliefs:
(a) The plaintiff is held to be joint owner of 1/8th share in the suit property i.e property bearing H. No. D18, Gali No. 3, Brijpuri, Delhi94.
(b) The plaintiff is granted the decree for permanent injunction restraining the defendants from creating any third party interest in the suit property i.e property bearing H. No. D18, Gali No. 3, Brijpuri, Delhi94.
30. Preliminary decree be drawn accordingly.
Announced in open Court on this 03rd day of June, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 155/14
Bhagwan Singh V/s Puran Singh & Ors. 31/31