Delhi High Court - Orders
Mohd Asif & Anr vs Asifa Bano & Anr on 9 April, 2021
Author: Jyoti Singh
Bench: Jyoti Singh
$~54
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EX.F.A. 9/2021
MOHD ASIF & ANR. ..... Appellants
Through: Mr. Rajat Kumar, Advocate
versus
ASIFA BANO & ANR. ..... Respondents
Through
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 09.04.2021 Hearing has been conducted through Video Conferencing.
CM APPL. 13654/2021 (Exemption) Allowed, subject to all just exceptions.
Application stands disposed of.
CM APPL. 13655/2021 (Delay) Issue notice to the Respondents, through all permissible modes, on the Appellants taking requisite steps, returnable on 9th July, 2021.
EX.F.A. 9/2021Appellants herein are aggrieved by the order dated 26.07.2018 passed by the Executing Court in Execution No. 35A/2014, dismissing the objections filed by the Appellants as well as by the order dated 28.02.2020 dismissing the review petition. The Executing Court has issued warrants of possession qua the subject property.
At the outset, it is stated by learned counsel for the Appellants and it is also averred in the appeal that the Appellants have already been dispossessed from the suit property after the warrants of possession were executed and therefore at this stage the interim relief is restricted to stay of the operation of the judgment and decree dated 01.05.2014 to the extent of recovery of damages/ mesne profits @ Rs. 5,000/- per month from the date of filing of the suit till handing over the possession.
Decree holder filed an execution petition seeking recovery of possession and mesne profits @ Rs. 5,000/- per month against Appellant No.
1. Pending the execution proceedings according to Appellant No. 1, (who was Judgment Debtor No. 1 in the execution proceedings), he and his wife, Appellant No. 2 entered into a settlement agreement dated 28.10.2016 with the decree holder. As per the said agreement, the decree holder agreed to transfer all her rights in the subject property in favour of the Appellants for a total consideration of Rs. 6 Lacs. Pursuant to the settlement agreement, the decree holder also executed documents such as General Power of Attorney (GPA), Will, Letter of Possession etc. in favour of the Appellants, out of which GPA was the only registered document. However, according to the Appellants, the decree holder subsequently turned dishonest and in collusion with Judgment Debtor No. 2 sought warrants of possession of the property.
Learned counsel for the Petitioner contends that learned Executing Court failed to appreciate that the present lis was between Respondent No. 1 herein and the Appellants and not against the licensor and any plea of imperfect title in favour of the Appellants would be a ground for the licensor to evict the Appellants and not the decree holder, who had willingly and against consideration executed the documents of transfer. The Court has also failed to appreciate that under Section 202 of the Indian Contract Act documents in the nature of transfer of rights in immovable properties for consideration cannot be unilaterally cancelled by the executants i.e. Respondent No. 1 herein.
Learned counsel for the Appellants has drawn the attention of the Court to the judgement of a Coordinate Bench of this Court in RSA 394/2015 titled Gopi Chand vs. Geeta Devi & Ors., decided on 29th April, 2020, more particularly paragraphs 13 and 14, which are as follows:
"13. The undersigned, after the hearing of this Second Appeal on 13th July, 2018 had observed that the appeal was entitled to be allowed, being of the view that once the land had been allotted to the father of the parties as far back as in the year 1968 and the father of the parties had raised construction of a permanent nature thereon and continued in occupation thereof till his demise in 1975 and that further since after his demise his heirs had been allowed to continue in occupation for 30 years, at least till the institution of the suit and even thereafter, without any disturbance from the grantor i.e. the DDA, the allotment even if any by way of a license, was of a right and the license was not of such a nature which was determinable by demise of the licensee. Even a license with respect to immovable property, once allowed to continue after the demise of the licensee, is valuable property even if not immovable property and is partible among the legal heirs of the licensee. In this context, I have in Shyam Behari Vs. Ram Kishan (2013 SCC OnLine Del 4110) and Surjit Singh Vs. Ekta Gulati (2012 SCC OnLine Del 4233, appeal whereagainst was dismissed by the Supreme Court in its order dated 3rd March, 2016 in Civil Appeal No. 7332/2013 titled " Inderjit Kaur Vs. Ekta Gulati") held that the law of inheritance / succession covers all assets of the deceased including possessory rights of the deceased to any movable and immovable property. Parity was also drawn with tenancy / leasehold rights, which also are determinable by nature and with respect whereto also it is settled law [Iresh Duggal Vs. Virender Kumar Seth 2015 (221) DLT 216, Dalip Kumar Vs. Om Prakash 2015 SCC OnLine Del 11768 Ram Lal Sachdev Vs. Sneh Sinha 1999 SCC OnLine Del 917, UOI Vs. Mohinder Pratap Soni 2016 SCC OnLine Del 2600, Madan Lal Vs. Kuldeep Kumar 2013 SCC OnLine Del 4008, Pragun Buildtech (P) Ltd. Vs. Sarla Aggarwal 190 (2012) DLT 164, Surendra Pal Singh Vs. Ravindra Pal Singh 2014 SCC OnLine Del 2959, Satish Kumar Chojar Vs. Subhasini Chopra 2014 SCC OnLine Del 3403] that the said rights are partible. It was also felt that the Trial Court as well as the First Appellate Court had fallen in error in dismissing the claim of the appellant/plaintiff for partition for the reason which was not pleaded by the respondents/defendants in the written statement and on which no issue had been framed.
14. In this context I may notice that a perusal of the file of the First Appellate Court shows that the counsel for the appellant/plaintiff had been seeking adjournments to place a notification before the First Appellate Court, entitling occupants of jhuggi jhopri colonies developed by the DDA to rights of permanent nature in the property in their occupation, though did not place such notification before the First Appellate Court till the pronouncement of the judgment. Even after the First Appellate Court pronounced the judgment, the record shows the counsel to have protested in this regard. Though the counsel for the appellant/plaintiff here also has not placed any notification in this respect but it is found that the Department of Urban Development of Government of NCT of Delhi vide Order No. F.234(7)/UD/BSUP/2012/17270-17281 dated 20th June, 2013 has activated the earlier order dated 9th September, 1998 of conversion of rights of eligible occupants of 45 Jhuggi Jhopri Resettlement Colonies developed from 1950 onwards by the DDA, in favour of allottees thereof. The same also is indicative of the rights of allotment of the plot in favour of father of the parties constituting a valuable right capable of being partitioned between the heirs. It is thus evident that both the Courts below have terribly misdirected themselves."
Reliance is also placed on the judgement of a Coordinate Bench of this Court in RFA 648/2006 titled Harbir Kaur vs. Kailash, decided on 18th May, 2012, more particularly paragraph 24, relevant portion of which is as follows:
"24. Findings Applying the aforesaid principles of law to the facts of the present case, the findings of this Court are as under:-
xxx xxx xxx
(iii) The words "an interest in property which forms the subject matter of the agency" in Section 202 of the Contract Act, 1872 are of wider amplitude than the words "an interest in or charge on such property" in Section 54 of the Transfer of Property Act, 1882. Where the seller has received the sale consideration in pursuance of the agreement to sell and has delivered the possession to the purchaser, the purchaser would have interest in the property within the meaning of Section 202 of the Contract Act.
(iv) The Power of Attorney has been conferred not for the benefit of the plaintiff but for the benefit of the agent representing the purchaser and not as representing the principal and, therefore, it is irrevocable. The reason to appoint Surinder Jit Singh, the son and nominee of the purchaser, obviously was that the attorney was regarded as a person interested in the purchaser rather than in the plaintiff whose interest was opposed to that of the purchaser. It is only in law that the attorney became an agent of the plaintiff. But this agency was only with a view to serve the purpose of the purchaser. His interest in this transaction was the same as that of the purchaser. It was, therefore, the interest of the attorney that the property which was the subject-matter of the agency should be conveyed by the plaintiff to the purchaser.
(v) The Power of Attorney was granted only because an agreement to sell was entered in favour of the purchaser. The attorney no less than the purchaser was, therefore, interested in the subject-matter of the agency, namely, the suit property. If the agency was to be terminated, prejudice would have been caused to the interest not only of the purchaser but also of the attorney.
(vi) The agreement to sell, General Power of Attorney, receipt, affidavit, will and indemnity bond executed contemporaneously constitute one transaction and they have to be read and interpreted together as if they are one document. The true nature of the transaction between the parties is the agreement to transfer the suit property by the plaintiff to defendant No.1. There is no clause in any of the documents that the plaintiff can claim back the possession of the suit property in any situation. Rather, the plaintiff has agreed not to cancel/revoke any document and not to claim back the possession under any circumstances. The plaintiff is, therefore, not entitled to recover the possession of the suit property. If the plaintiff was aggrieved by any unauthorised construction, the plaintiff's remedy was to seek injunction to stop the alleged unauthorized construction or to have approached the Municipal Authorities to take action against the unauthorized construction.
(vii) The plaintiff has argued that the purchaser and her attorney are two different persons in the eye of law. This may be so. But their interests are identical. It cannot be said that the attorney had no interest in the property which is the subject-matter of the agency.
The interest does not mean ownership or title in the immovable property. It means an advantage or a benefit or a legally enforceable right. The Power of Attorney was executed only to facilitate the execution of the sale deed in favour of the purchaser and, therefore, the attorney was interested in the subject-matter of agency, namely, the suit property.
(viii) 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.
(ix) The purchaser 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 plaintiff. 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.
(x) All the conditions of irrevocability are satisfied in the present case. The authority to the agent was given for valuable consideration which proceeded from Mohinder Kaur. It was given to Surinder Jit Singh, son and nominee of Mohinder Kaur to ensure and secure the performance of the contract by the plaintiff in favour of Mohinder Kaur.
(xi) The General Power of Attorney dated 5 th June, 1989 is irrevocable in view of Section 202 of the Contract Act. The plaintiff, therefore, had no right to terminate the said General Power of Attorney. The General Power of Attorney is legal, valid and subsisting. The revocation of the General Power of Attorney by plaintiff is, therefore, of no consequence.
(xii) The defendants are protected by Section 53A of the Transfer of Property Act, 1882 and, therefore, the plaintiff is not entitled to the recovery of possession of the suit property.
(xiii) The mere fact that the defendants did not file a Counter- claim or suit for specific performance cannot lead to a conclusion that they have given up all their rights in the suit property. It can, at best, be said that the defendants have lost the opportunity of perfecting their title but it would not entitle the plaintiff to claim the possession."
I have heard the learned counsel for the Appellants. Issue notice to the Respondents, through all permissible modes, on the Appellants taking requisite steps, returnable on 9th July, 2021. CM APPL. 13653/2021(stay) Issue notice to the Respondents, through all permissible modes, on the Appellants taking requisite steps, returnable on 9th July, 2021.
In the meantime, operation of the decree is stayed to the extent of damages/mesne profits, till the next date of hearing.
JYOTI SINGH, J APRIL 9, 2021 rd