Delhi District Court
Satpal Venaik vs Mrs. Usha Khurana on 8 February, 2013
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IN THE COURT OF SH. DIG VINAY SINGH
ADDL. DISTRICT JUDGE-04 : CENTRAL : DELHI
Date of institution : 30.05.2006
Based on Written Arguments
Announced on : 08.02.2013
In re :
Suit no. 49/11
Satpal Venaik
S/o Sh. Beli Ram
R/o House No. 566, Dr. Mukherjee Nagar,
Delhi. .... Plaintiff
Versus
1. Mrs. Usha Khurana
W/o Sh. Rajinder Kumar Khurana,
R/o House No. 566, (2-nd Floor),
Dr. Mukherjee Nagar,
Delhi.
2. Sh. Rajinder Kumar Khurana,
S/o Sh. G.D.Mal Khurana,
R/o 566 (2nd Floor)
Dr. Mukherjee Nagar,
Delhi. .... Defendant
JUDGMENT
1. This is a suit for declaration, cancellation of documents and, injunction.
2. The plaintiff admittedly sold the Second Floor of property no. 566, Dr. Mukherjee Nagar, Delhi, on 06-05-1998, to the defendant no.2. Defendant no.
Suit no. 49/11 Pg... 1 of 13 r -2- 1 is wife of defendant no.2. The documents which were executed on 6.5.1998 were; an agreement to sell in favour of the defendant no.2; one General Power of Attorney and one Special Power of Attorney of even date executed by the plaintiff in favour of the defendant no.1, i.e. wife of defendant no.2. Both the attorneys were duly registered before the Sub-Registrar. Admittedly, the defendants were given in possession of the suit property by the plaintiff and the defendants started living there.
3. The plaintiff claims that thereafter the defendants started raising unauthorised and illegal constructions causing damage to the portions of remaining property in order to compel the plaintiff to sell the remaining portion of the property to the defendants at throw away prices. The defendants also allegedly started proclaiming that they were owners of the second floor and they had every right to do whatever they want. Plaintiff claims that till the time a deed of sale is executed by the plaintiff in favour of the defendant no.2, the defendants have no right over the property. Subsequently, plaintiff claims to have cancelled the two attorneys executed in favour of the defendant no.1, vide deeds of cancellation on 18.5.2005. Plaintiff claims that it was done to prevent the defendant no.1 from executing any sale deed in favour of defendant no.2 as an attorney of the plaintiff. After cancellation of the two attorneys, intimation was allegedly sent by the plaintiff to the defendant no.1 about the cancellation, on 25.5.2005.
4. Subsequently, the plaintiff learnt that the defendants were contemplating to sell the property, and on inquiries, plaintiff came to know that the defendant no.1 has executed an unregistered power of attorney in favour of the defendant no.2 and pursuant to that attorney the defendant no.2 has executed a sale deed in Suit no. 49/11 Pg... 2 of 13 r -3- favour of defendant no.1, qua the second floor of the property. Plaintiff claims that he never appointed the defendant no.2 as his attorney and the defendant no. 1 was also not authorised to execute any such attorney in favour of the defendant no.2 for and on behalf of the plaintiff. Sale deed between defendant no.1 & 2 is claimed to be thus illegal.
5. Vide the present suit, the plaintiff seeks a decree of declaration to the effect that the deed of sale, dated 7.12.2005, executed by the defendant no.2 in favour of defendant no.1 is illegal and the same does not confer any right of ownership upon the defendant no.1. Plaintiff also seeks cancellation of the sale deed and a decree of perpetual injunction from selling, transferring, alienating or creating any kind of third party interest in the suit property, by the defendants.
6. The suit was contested by the two defendants on the ground that once the suit property was sold by the plaintiff to the defendant no.2, the plaintiff was left with no right in the suit property and thus has no cause of action. Also, without seeking relief of possession the present suit for declaration and injunction is not maintainable. Defendants claim that the plaintiff had sold the suit property on 12.7.1997 when he executed a receipt cum possession certificate and thereafter another receipt dated 6.5.1998 was executed which was attested by a notary, showing payment of the entire sale consideration of the second floor and one mezzanine floor along with the roof rights. A possession slip dated 6.5.98 was also executed and the two attorneys were also executed. Defendants claim that infact there were two set of attorneys executed, one set was registered and the other set was attested by notary public. Thereafter, concealing the fact of sale of suit property the plaintiff got the entire property Suit no. 49/11 Pg... 3 of 13 r -4- free hold from DDA on 16.10.2000 without knowledge and consent of defendants, despite the fact that he had sold the suit property. Defendants had been requesting the plaintiffs for mutation of the property but the plaintiff did not execute the sale deed. On 5.12.2005, the defendant no. 1 being attorney of the plaintiff executed Special Power of Attorney in favour of the defendant no.2 and thereafter, on 7.12.2005 the defendant no.2 executed registered sale deed of property in favour of the defendant no.1. It is claimed to be in the knowledge of the plaintiff throughout. The defendant subsequently came to know about illegal cancellation of two attorneys dated 6.5.1998. The defendants deny having received the letter dated 25.5.2005 from the plaintiff regarding the cancellation of attorney. Suit is claimed to be barred by limitation and is claimed to be liable to be dismissed due to latches.
7. The plaintiff in its replication reiterated the averments of the plaint while denying the contents of written statement.
8. From the pleading of parties, following issues were framed on 30.03.2007 :-
"1. Whether the present suit is not maintainable U/o.7 R. 11 CPC? OPD.
2. Whether the present suit is within the period of limitation? OPP.
3. Whether the plaintiff has played fraud upon defendants, if so, its effect? OPD.
4. Whether the plaintiff is entitled to the relief claimed? OPP.
5. Relief."
9. In support of its case, plaintiff examined himself as PW1 and proved the two attorneys in question as Ex.PW1/1 and 1/2. The plaintiff also proved a notice Suit no. 49/11 Pg... 4 of 13 r -5- sent to the defendants Under Order 12 Rule 8 CPC for production of original documents, as Ex.PW1/3 along with its postal receipt and AD card Ex.PW1/4 &
5. The certificate of posting was proved as Ex.PW1/6. The two deeds of cancellation are proved as Ex.PW1/7 & 1/8. The letter dated 25.5.2005 is proved as Ex.PW1/9, sent through UPC Ex.PW1/10. The sale deed dated 7.12.2005 is proved as Ex.PW1/11. Testimony of PW1 is in lines to the averments contained in the plaint.
10. On the other hand, the defendant no.2 examined himself as the only witness as DW1. He proved the documents i.e. agreement to sell and General Power of Attorney and Special Power of Attorney dated 6.5.1998 Ex.PW1/DX1 to Ex.PW1/DX4. It may be mentioned here that Ex.PW1/DX1 to DX4 were admitted by PW1 in his cross examination. Testimony of DW-1 is in lines to the averments contained in the written statement.
11. I have perused the written submissions filed by both the sides.
12. Issue wise findings are as follows :-
13. Issue no. 2 is taken up first as to the point of limitation. The relief sought in the present case is regarding declaring the sale deed dated 7.12.2005, executed by defendant no.2 in favour of defendant no.1, as null & void and, cancellation of the said sale deed. The present suit was filed on 29/5/2006. Limitation provided for seeking declaration and cancellation is three years. Present suit is indeed within limitation for the said reliefs. The third prayer as to injunction is also within limitation, as injunction is sought to the effect that the defendants be restrained from selling or creating any kind of third party interest in the suit property based on the sale deed dated 7.12.2005. Accordingly, issue no.2 is Suit no. 49/11 Pg... 5 of 13 r -6- decided in favour of the plaintiff and against the defendant.
14. Issue no. 3 is whether the plaintiff played fraud upon the defendant. Onus to prove this issue was on the defendant. It is not in dispute that the plaintiff was owner of the suit property. The defendants were put in possession of the suit property by the plaintiff. Although the plaintiff did not execute regular sale deed, which might have been for a good number of reasons, but merely because the plaintiff did not execute the sale deed and has approached this court seeking cancellation of sale deeds between the two defendants does not mean that whatever transpired in the year 1997 & 1998, i.e. at the time when the transfer of property from the plaintiff to the defendant no.2 took place was guided by any fraud.
15. The issue no. 3 is answered in favour of the plaintiff and against the defendant.
16. Issue no. 1 & 4 being interconnected are taken up together.
17. As mentioned above, it is not in dispute that earlier plaintiff was owner of the suit property. It is also not in dispute that the plaintiff executed document Ex.PW1/DX1 i.e. agreement to sell in favour of the defendant no.2; Ex.PW1/DX2 i.e. receipt evidencing receipt of Rs.3.5 Lakh by the plaintiff from the defendant no.2; Ex.PW1/DX3 i.e. possession slip evidencing handing over possession of the suit property to the defendant no. 2 and; affidavit Ex.PW1/DX4 qua the said transaction. It is also an admitted position that one General Power of Attorney and one Special Power of Attorney were duly executed and registered, in favour of the defendant no.1 by the plaintiff. Though, the plaintiff sought to raise a dispute as to non-receipt of the entire Suit no. 49/11 Pg... 6 of 13 r -7- sale amount from defendant no.2 but the document Ex.PW1/DX1 & 2 reveal that the total sale consideration agreed was Rs.3.5 Lakhs which was received through pay order by the plaintiff.
18. Thus, practically speaking the plaintiff executed the power of attorneys in favour of the defendant no.1 against consideration. Not only that, for all practical purposes, the suit property was sold in 1997/1998. Once the suit property was sold by the plaintiff, the plaintiff was left with no right, title or interest in the suit property.
19. It is argued by the plaintiff that it never authorised the defendant no.1 to execute any attorney in favour of the defendant no.2, nor the defendant no.2 was ever appointed as attorney of the plaintiff to have executed any sale deed in favour of the defendant no.1. It is also argued that after the two power of attorneys executed in favour of defendant no.1 were cancelled in May 2005, there could not have been any sale transaction between the two defendants in December 2005 and therefore, the concerned sale deed has to be declared as null & void and it has to be cancelled.
20. Once the plaintiff executed an attorney against valid consideration in favour of defendant no.1, the plaintiff is divested of any right to cancel the said irrevocable power of attorney in terms of Sec. 202 of Indian Contract Act.
21. Defendants have relied upon the case of Harbans Singh Vs. Shanti Devi 1977 Rajdhani Law Reporter 487, wherein it was held that if a person owning a property executes an agreement to sell in favour of a lady and executes an irrevocable power of attorney in respect of the same property in favour of the husband then he cannot cancel or revoke power of attorney on account of Suit no. 49/11 Pg... 7 of 13 r -8- interest or right created in the subject matter so as to prejudice the said interest.
22. Defendant has also relied upon the case of Ramesh Mohan Vs. Raj Krishan Volume-LXXXVI 1984 Punjab Law Reporter Page 211, wherein it was held that when a vendor has received a sale price in his performance of an agreement to sell and possession of the property has been delivered specifically providing that the power of attorney was irrevocable, it cannot be cancelled. It was held that an agreement to sell was not merely an agreement to sell but more than that because practically, the transaction was completed in all respects except the execution of the regular sale deed and registration thereof. It was held that thus interest was created in the property under the agreement and the provision of Section 202 of The Contract Act applied. It was also held in that case that courts cannot lose sight of equities and thus, the court cannot help a wrong doer on mere technicalities.
23. In the present case also, for all intent and purposes the sale transaction between the plaintiff and the defendant no.2 stood completed in 1978 when after receiving entire sale consideration, the possession of the property was given to the defendant no.2 after execution of all other documents except the sale deed. The sale transaction was thus complete and only sale deed remained to be executed. The subsequent act of the plaintiff in cancelling the power of attorneys in favour of the defendant no.1 seems to be guided by greed and nothing else.
24. Under Section 202 of Contract Act, an attorney executed against consideration is irrevocable. The plaintiff was thus not competent to have cancelled these attorneys in May 2005. The act of cancellation by the plaintiff is non-est. It Suit no. 49/11 Pg... 8 of 13 r -9- does not affect the rights created in the property in favour of the defendant no. 2 or the attorney in favour of the defendant no.1.
25. In any case, the suit of the plaintiff has to be dismissed on another ground that in the present suit for declaration and cancellation of documents, necessary consequential relief has not been sought by the plaintiff, that is, possession of the property back from the defendant.
26. In the case of Ajay Goel Vs. K.K.Bhandari & Ors. 76 (1998) DLT 147, it was held that the plaintiff in that case who was seeking cancellation of certain documents as void failed to establish his title to the disputed property and he was admittedly not in possession of the property, the prayer of the plaintiff that the sale deed, power of attorney and documents of transfer of property in favour of defendant no.1 by other defendants seeking cancellation of documents was held not maintainable since plaintiff should have filed a suit for delivery of possession. It was held that the plaintiff failed to establish his title to the disputed property and even if the documents were held to be void and declared cancelled, still no benefit can be derived by the plaintiff either with regard to the title of the suit property or with regard to the possession and therefore, decree cannot be granted.
27. In the present case also, once the suit property was sold to the defendant no.2, the plaintiff stood divested of all rights in the suit property and after selling the suit property, the plaintiff has no control over further sale/transaction of the suit property by or on behalf of the defendants.
28. In the case of Vikas Jain Vs. Naresh Kumar, RFA No. 492/2001 decided Suit no. 49/11 Pg... 9 of 13 r
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on 08.02.2012, Hon'ble Delhi High Court, observed as follows;
"5. The documents which were executed by Mr. Prem Chand Jain in favour of respondent/plaintiff dated 7.8.2000 were proved and exhibited before the trial Court as Ex.PW1/E (Agreement to sell), general power of attorney (Ex.PW1/B) and affidavit with respect to handing over of possession (Ex.PW1/C) etc. I may state that the rights which are claimed on the basis of these documents arise under Section 53 A of the Transfer of Property Act, 1882 which gives rights in an immovable property pursuant to the doctrine of part performance. Rights are also created in the suit property in favour of the respondent/plaintiff as per Section 202 of the Contract Act, 1872, by which the power of attorney given for consideration is irrevocable. It is relevant to note that these documents were executed before the provision of Section 53A of the Transfer of Property Act, 1882 was amended in the year 2001, and where after rights under Section 53A of the Transfer of Property Act, 1882 can only be claimed if the document is duly stamped and registered. It is relevant to note that the Supreme Court has preserved rights arising from the doctrine of part performance and an irrevocable power of attorney in the decision of Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana and Anr. 183 (2011) DLT 1(SC) as per paras 12, 13 and 16 of the judgment."
29. In the case of Ramesh Chand Vs. Suresh Chand and Anr., RFA NO. 358/2000 decided on 09.04.2012, by Hon'ble Delhi High Court observed as follows, in Para 3, " A reference to the aforesaid paras shows that unless there is a proper Suit no. 49/11 Pg... 10 of 13 r
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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."
30. In the case of Raj Kumari Garg Vs. S.M. Ezaz and Ors., RFA (OS) No. 38/12 and FAO (OS) No.204/2012, decided on 13.08.2012, Delhi High Court observed, "34. Another aspect taken note of in the impugned order and which was canvassed before us arises from the judgment of the Supreme Court in Suraj Lamp & Industries Private Limited (2) Through Director Vs. State of Haryana & Anr. (2012) 1 SCC 656. The execution of Agreement to sell & purchase coupled with collateral documents like GPA, SPA, Will, etc. has been a common practice in Delhi. The validity of such a practice has been examined in the said judgment and it has been held that the bunch of such documents cannot be recognized as deeds of title, "except to the limited Suit no. 49/11 Pg... 11 of 13 r
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extent of Section 53A of the TP Act". In fact, it has been observed in paras 26 & 27 that the observations of the Supreme Court are not intended in any way to affect the validity and powers of attorney executed in genuine transactions and the bunch of documents can continue to be treated as existing agreements of sale which would not prevent the affected parties from getting the registered deeds of conveyance to complete their title. The said bunch of documents can also be used to obtain specific performance or to defend possession under Section 53A of the TP Act. ......."
31. In the present case, the documents of sale executed by the plaintiff are of year 1998. Admittedly, along with the execution of these documents, possession of the property was handed over to the defendants. Entire sale consideration of Rs. 3.5 lakhs stood received by plaintiff and thereafter, possession was transferred. Nothing remained to be done by the defendants. They had performed their part of the contract in Toto.
32. In this view of the matter, not only the suit filed by the plaintiff is misconceived but it is also without cause of action. Issue no.1 has to fail against the plaintiff and it is to be held that there is no cause of action in favour of the plaintiff. Issue no.4 also has to fail against the plaintiff.
33. Plaintiff is not only not entitled to seek declaration or cancellation against the sale deed dated 7.12.2005, but equity also does not lie in his favour to grant any declaration or injunction against the defendants from alienating or creating third party interest in the suit property by the defendants. Both issues no. 1 & 4 are decided against the plaintiff.
Suit no. 49/11 Pg... 12 of 13 r
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Relief
34. Net result is that the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared.
Announced in the open court Dig Vinay Singh
on 08th February, 2013. ADJ-04 (Central)
Delhi
Suit no. 49/11 Pg... 13 of 13 r