Delhi District Court
Gopal Singh vs (1) Mahabeer Singh on 24 March, 2014
IN THE COURT OF SH. GORAKH NATH PANDEY
ADDITIONAL DISTRICT JUDGE02, (NE)
KARKARDOOMA COURTS, DELHI
CS No. 58/14
In the matter of:
Gopal Singh
S/o Moti Singh
R/o E567, Gali No. 12, Jagjeet Nagar,
New Usmanpur, Delhi110053. .............. Plaintiff
Versus
(1) Mahabeer Singh
S/o Not Known
R/o Khasra No. 22/2/1
Situated At Village Karawal Nagar,
In Abadi of C Block, Mukand Vihar,
Shahdra, Delhi94.
(2) Sahab Singh
S/o Not Known
R/o Khasra No. 22/2/1
Situated At Village Karawal Nagar,
In Abadi of C Block, Mukand Vihar,
Shahdra, Delhi94.
(3) Ganga Dhar
S/o Lekh Raj
R/o C1/268,
Yamuna Vihar, Delhi110053.
At present:
Khasra No. 22/2/1
Situated At Village Karawal Nagar,
CS No. 58/14 1/30
Gopal Singh V/s Mahabeer Singh & Ors.
In Abadi of C Block, Mukand Vihar,
Shahdra, Delhi94.
(4) Munesh Kumar Sharma
S/o Not known
R/o Khasra No. 22/2/1
Situated At Village Karawal Nagar,
In Abadi of C Block, Mukand Vihar,
Shahdra, Delhi94.
Also At
A40, Gali No. 5, West Karawal Nagar,
Delhi110094 .............. Defendants
Date of Institution : 16.07.2009
Unique ID No. : 02402C00203542009
Date of Arguments : 19.03.2014
Date of Judgment : 25.03.2014
Suit for possession, declaration, permanent injunction & damages
JUDGMENT
1. This is suit for possession, declaration, permanent injunction and damages regarding property bearing no. C4, Khasra No. 22/211, Gali No. 9, Mukund Vihar, Karawal Nagar, Delhi94 measuring 50 sq. yards consisting of ground floor and first floor ( hereinafter called the suit property) filed by plaintiff against the defendants.
2. It is stated in the plaint that the plaintiff purchased the suit property from Smt. Chandrawati vide sell documents ie GPA, agreement to sell, receipt, possession letter etc. duly registered before the sub registrar vide registration No. 7635 dt. 05.02.02. It is the case of the plaintiff that at that point of time, CS No. 58/14 2/30 Gopal Singh V/s Mahabeer Singh & Ors.
when plaintiff was working in the MTNL and was residing as where. On the request of defendant No. 1 (who was his colleague in the MTNL) pointed the defendant No. 2 as care taker and residing him into the suit property. Later on, plaintiff know that the defendant No. 3 was living in the suit premises and when questioned raised to defendant No. 1 and 2 about the same, they had asked defendant No. 3 reside in the suit premises and assured the plaintiff that defendant No. 3 vacate the same shortly. As further contended, some time in July, 2008, defendant No. 1, 2 and 3 asked the plaintiff to hand over the GPA dt. 05.02.02 for facilitating installation of electricity connection in the suit premises. Subsequently when the plaintiff asked defendants No. 1 to 3 to return the original GPA dt. 05.02.02, the defendant No. 1 to 3 stated to have informed the plaintiff that said original documents have been misplaced. However they offered to plaintiff to get prepare in other set of original documents in the office of Sub Registrar Seelampur. It Is alleged that on that pretext, defendant's No. 1 to 3 took signatures and thumb impression of plaintiff on plain/ blank stamp paper from the plaintiff. It is further submitted that defendant No. 1 and 3 did not hand over the new original documents though the plaintiff found that electricity meter installed in the suit premises was in the name of defendant No. 3. Plaintiff made complaint to Police at PS karawal nagar dt. 19.02.09 and 20.02.09. As no action was taken by the police on the complaint of the plaintiff, this suit was originally filed against defendants No. 1 and 3.
After the service of summons upon the defendants, on 12.08.09 the CS No. 58/14 3/30 Gopal Singh V/s Mahabeer Singh & Ors.
plaintiff came to know during the pendency of the suit that defendant No. 3 has sold the suit property made a complaint on 14.08.09 at PS Karawal Nagar and impleaded defendant No. 4. This suit is filed by plaintiff against the defendants praying for passing decree of possession, declaration that the documents of title / transfer executed by defendant No. 1 to 3 as null and void, decree of damages @ Rs. 10,000/ per month and decree of permanent injunction for restraining the defendant agents, heirs, administrator and anybody representing on behalf of defendants for creating any third party interest for animating or party with the suit property with cost of the suit.
3. As observed, the defendant No. 1 and 2 did not file the WS despite opportunity and were proceeded ex parte vide order 08.09.09.
The suit is contested by the defendants No. 3 and 4 by way of a written statement of defence. Defendant No. 3 in the WS taken the preliminary objections to the effect that this suit is false and liable to be dismissed with cost , the suit is filed by plaintiff to grab the property of the defendant and is not maintainable. It is contended that the plaintiff has no locus standi to file this suit, plaintiff has suppressed the material facts and the suit is liable to be dismissed u/o 7 Rule 11 CPC. It is further mentioned that market value of property in dispute between 7 Lakhs and plaintiff has not paid the appropriate court fees. The defendant No. 3 mentioned that he has sold the suit property to the defendant No. 4. It is contended that plaintiff is neither owner nor any right, title or interest in the suit property. The defendant No. 3 contended that suit property was given to him by plaintiff after executing the transfer CS No. 58/14 4/30 Gopal Singh V/s Mahabeer Singh & Ors.
documents ie. GPA, agreement to sell, receipt, possession letter, will etc on 18.09.07 for Rs. 2,00,000/ and this suit is false.
Defendant No. 4 filed WS contending that this suit is not maintainable as the defendant No. 4 has purchased the property from defendant No. 3 after paying the consideration and he is possession of the same. The defendant No. 4 further contended that plaintiff has no locus standi to file the suit and further denied rest of the contentions raised by the plaintiff.
4. In view of the pleading of the parties, following issues were settled vide order dt. 22.03.11:
(i) Whether the plaintiff is the owner of suit property bearing No. C4, Khasra No. 22/211, Gali No. 9, Mukund Vihar, Karawal Nagar, Delhi9? ( OPP)
(ii) Whether the plaintiff is entitled to decree of possession in respect of suit property bearing No. C4 Khasra No. 22/211, Gali No. 9, Mukund Vihar, Karawal Nagar, Delhi94 measuring 50 sq. yards consisting of ground floor and first floor?( OPP)
(iii) Whether the plaintiff is entitled to decree for declaration that the title / transfer documents executed by defendant are null and void and be cancelled. ? OPP.
(iv) Whether the plaintiff is entitled to decree for damages @ Rs. 10,000/per month against D1 to D3?( OPP).
(v) Whether the plaintiff is entitled to decree for permanent injunction against D1 and D3 as prayed for? ( OPP) CS No. 58/14 5/30 Gopal Singh V/s Mahabeer Singh & Ors.
(vi) Whether the plain of plaintiff's has correctly valued for the purpose of jurisdiction and court fee? ( OPD3).
(vii) Whether the plaintiff had any cause of action against the defendant's?( OPD4)
(viii) Relief.
And the case was fixed for plaintiff's evidence.
5. The plaintiff filed his affidavit by way of evidence Ex. PW 1/ A and examined himself as PW 1 in support of the case. He deposed as per averments made in the plaint.
As no other witness was examined by the plaintiff, the PE was closed and case was fixed for DE.
6. The defendant No. 3 on the other hand, filed his affidavit by way of evidence Ex. D 3 W1/ A and examined himself as D 3 W1. His evidence was also as per his written statement filed by him.
No witness was examined by the defendant No. 4 and hence the DE was closed.
7. I have heard the Ld. counsel for the plaintiff and defendant No.3 and gone through the relevant material on records. I have also considered written submissions filed on behalf of the plaintiff along with the relevant provisions of law.
Having drawn my attention to the pleadings of the parties, testimonies of witnesses and materials on records, it is submitted by counsel for the plaintiff that plaintiff has purchased the suit property from Smt. Chandravati CS No. 58/14 6/30 Gopal Singh V/s Mahabeer Singh & Ors.
vide registered GPA, Agreement to sell, Receipt and Possession Letter dated 05.02.2002. It is further argued that in July, 2008, signature/thumb impression of the plaintiff was taken by the defendant No. 1 to 3 on plain/blank stamp papers. The learned counsel for the plaintiff argued that the documents executed by defendant No. 3 in favour of defendant No. 4 have no affect upon which the signature and thumb impression of the plaintiff was fraudulently taken and all the documents executed by the defendant No. 3 in favour of defendant No. 4 dated 30.07.09 are unregistered and executed after the filing of this suit and appearance of defendant No. 3 in the court on 27.07.2009. It is further contended that from the evidence led by the plaintiff as well as from the cross examination of D 3 W1, it has been proved that the plaintiff is the owner of the suit property and prayed to pass decree in favour of plaintiff and against the defendants.
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. 3 that the plaintiff has failed to prove the case and discharge the onus. It is also submitted by Ld. counsel for the defendant No. 3 that the suit property was purchased by the defendant No. 3 and possession of the same was handed over by the plaintiff, plaintiff has no locus standi to file this 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 defendant No. 3 that this suit is false and there is no ground for passing decree against the defendants therefore, the suit be dismissed with CS No. 58/14 7/30 Gopal Singh V/s Mahabeer Singh & Ors.
cost.
8. I have given my thoughtful consideration to the submissions made on behalf of the parties. My findings issuewise are as under : ISSUE No. I & III
(i) Whether the plaintiff is the owner of suit property bearing No. C4, Khasra No. 22/211, Gali No. 9, Mukund Vihar, Karawal Nagar, Delhi9? ( OPP)
(ii) Whether the plaintiff is entitled to decree for declaration that the title / transfer documents executed by defendant are null and void and be canceled. ? OPP.
9. As both the issues i.e. regarding ownership of the plaintiff of the suit property and declaration of the documents by the defendants and null and void are interconnected, both these issues are examined together.
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 that "A civil case is decided on balance of probabilities. 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 CS No. 58/14 8/30 Gopal Singh V/s Mahabeer Singh & Ors.
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, in a civil suit " preponderance of probability"
would serve the purpose for obtaining a decree".
10. Section 101 of the Evidence Act, 1872 defines " burden of proof" and 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 able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the CS No. 58/14 9/30 Gopal Singh V/s Mahabeer Singh & Ors.
hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
11. As mentioned, the defendant No. 3 claimed to have purchased the suit property and derived his title through the plaintiff though the plaintiff has denied any such transaction and prayed to declare the documents executed by the defendants as null and void. Moreover, the ownership of the plaintiff is admitted by the defendant No. 3 who claims his title through him. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, wherein it is held that admission in the written statement cannot be allowed to be withdrawn. In view of this legal position of the Evidence Act, it is clear that it is for the defendant No. 3 and 4 to prove that they are owner in possession of the property having purchased the same from the plaintiff.
12. The pleadings of the parties and evidence on record reveals the following:
(a) that the suit property was initially purchased by the plaintiff and the title of the plaintiff is not disputed by the defendants at all.
(b) that the defendant No. 3 allegedly purchased the suit property from the plaintiff by way of unregistered GPA, Agreement to Sell, Possession Letter, Receipt and Will, all dated 18.09.2007.
(c) that defendant No. 3 has transferred the suit property and possession to the defendant No. 4 vide unregistered GPA, Agreement to Seel, Affidavit, Indemnity Bond, Receipt, Possession Letter and Will, all dated 30.07.2009 and CS No. 58/14 10/30 Gopal Singh V/s Mahabeer Singh & Ors.
the defendant No. 4 is in possession of the suit property.
(d) that defendant No. 4 was impleaded as defendant vide order dated 07.06.2010 and the transaction between the defendant No. 3 and 4 took place during the pendency of the suit.
(e) that the plaintiff claimed himself to be the absolute owner of the suit property contenting that he never sold the same to the defendant No. 3 and his signatures/ thumb impression was obtained by the defendants on blank stamp paper on the pretext of preparing GPA.
13. It is appropriate and relevant to note the relevant legal provisions and authorities for proper examination and adjudication of the issues framed as above. 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 promised.
CS No. 58/14 11/30 Gopal Singh V/s Mahabeer Singh & Ors.
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 which the terms necessary to constitute the CS No. 58/14 12/30 Gopal Singh V/s Mahabeer Singh & Ors.
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 thereof."
CS No. 58/14 13/30
Gopal Singh V/s Mahabeer Singh & Ors.
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.
14. 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 the Property Act.
15. As held in AIR 1969, SC 1316, the documents of which registration is CS No. 58/14 14/30 Gopal Singh V/s Mahabeer Singh & Ors.
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.
As mentioned, the plaintiff claimed to be the owner of the suit property which is denied by the defendant. Since there is no registered sale deed executed in favour of the plaintiff in respect of the suit property in accordance with provisions of Transfer of Property Act, 1882, the plaintiff is not the owner of the suit premises and not entitled for the relief as prayed in the suit.
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 reAIR 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 CS No. 58/14 15/30 Gopal Singh V/s Mahabeer Singh & Ors.
attorney could not transfer right, title or interest of any immovable property.
17. This court is guided in view of the judgment of Hon'ble Supreme Court in re Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) in this respect. The documents of title relied upon by the defendant such as Ex. PW 1/ 1 to Ex. PW1/4 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 affects 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 & Industries private limited( 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. CS No. 58/14 16/30 Gopal Singh V/s Mahabeer Singh & Ors.
See Rambaran Prasad Vs. Ram Mohit Hazra ( 1967) 1 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 CS No. 58/14 17/30 Gopal Singh V/s Mahabeer Singh & Ors.
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 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 CS No. 58/14 18/30 Gopal Singh V/s Mahabeer Singh & Ors.
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 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. 58/14 19/30 Gopal Singh V/s Mahabeer Singh & Ors.
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 CS No. 58/14 20/30 Gopal Singh V/s Mahabeer Singh & Ors.
directing distribution of his estate upon his death. It is 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 cannot be relied upon CS No. 58/14 21/30 Gopal Singh V/s Mahabeer Singh & Ors.
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 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.
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 CS No. 58/14 22/30 Gopal Singh V/s Mahabeer Singh & Ors.
transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
19. 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. Hon'ble Supreme Court have held that 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 in an immovable property can be transfered.
20. It is reiterated that plaintiff has denied the execution of any GPA or other documents in favour of the defendant No. 3 contending that his signatures were obtained on the blank stamp papers. Further, none of the documents allegedly executed by the plaintiff are registered. The defendant No. 3 came in possession of the suit property in the year 2004 itself i.e. well before the alleged execution of the documents by the plaintiff in favour of defendant No. 3 and therefore neither Section 53 A of the Transfer of Property Act, 1882 nor Section 202 of the Contract Act, 1872 is applicable for ownership of the plaintiff.
21. Whether the plaintiff can be considered as owner of the suit property CS No. 58/14 23/30 Gopal Singh V/s Mahabeer Singh & Ors.
or whether the plaintiff is entitled for decree of declaration that the title/transfer documents executed by the defendants are null and void ?
Admittedly the plaintiff is the owner of the suit property as the defendants claimed their right, title or interest through him only. The parties are not issue at all regarding ownership of the plaintiff. The defendant No. 3 claims to have purchased the suit property from the plaintiff though the plaintiff denied any such transactions. The plaintiff further claimed that the documents of the property have been handed over to the defendants for getting electricity connection and his signatures were obtained on blank stamp paper on the pretext of preparing the GPA which was allegedly misplaced by the defendants. The plaintiff has claimed that he is the owner of the property and denied the transaction of sell purchase qua the suit property on the ground that he never sold the suit property to defendant No. 3 nor ever handed over possession.
22. The plaintiff was cross examined by the learned counsel for the defendant No. 3. During crossexamination, the plaintiff deposed that defendant No. 3 remained in possession of the suit property in April, 2004 and possession was handed over by defendant No. 2 on his own accountability. The testimony of the plaintiff in this respect remained unimpeached and from the material on records and testimony of PW, it is proved that the defendant No. 3 came in possession of the suit property much before the execution of any documents relied by the defendant No. 3 dated 18.09.2007. The plaintiff further denied the contention during crossexamination that he sold the suit CS No. 58/14 24/30 Gopal Singh V/s Mahabeer Singh & Ors.
property and handed over possession to the defendant No. 3 on 18.09.07 after executing the documents dated 18.09.07 for Rs. 2 lakh. Though the plaintiff admitted his signatures and thumb impression on the documents but explained regarding the same deposing that he never sold the suit property to the defendant No. 3. The testimony of PW1 remained unimpeached and un rebutted. Further, the testimony of the plaintiff and contention regarding obtaining his thumb impression on blank stamp papers appears to be sustainable as admittedly the defendant is illiterate and none of the documents including the GPA is registered. These facts does not inspire confidence and the contentions of the plaintiff appears to be sustainable.
23. The defendant No. 3 during crossexamination admitted his relation with defendant No. 2 along with the ownership of the plaintiff. The defendant No. 3 did not produce any documents either in the court nor proved the same in support of his claim and contentions and there is nothing on record except the bald averments of defendant No. 3 regarding purchase of the suit property from the plaintiff vide documents dated 18.09.07. As stated above, no evidence was led by defendant No. 4 at all and therefore execution of the documents by the plaintiff in favour of defendant No. 3 or execution of documents by defendant No. 3 in favour of defendant No. 4 is not proved at all. It is reiterated that no such documents are either placed on record or proved in accordance with the provisions of law. Further, the defendant No. 4 was put into the possession of the suit property during the pendency of the suit and therefore provisions of Section 52 of the Transfer of Property Act, 1882 is squarely CS No. 58/14 25/30 Gopal Singh V/s Mahabeer Singh & Ors.
applicable in the facts of the case. The above circumstances can lead to only one conclusion that the suit property was never sold by defendant to plaintiff nor the plaintiff became owner thereof. As the defendants failed to prove the execution of any documents, the plaintiff is declared as owner of the suit property i.e. Property No. C4, Khasra No. 22/211, Gali No. 9, Mukund Vihar, Karawal Nagar Delhi 94 measuring 50 Sq. Yards consisting of ground floor and first floor and the documents, if any, executed by the defendant are declared to be null and void and canceled. Issue No. 1 and 3 is decided in favour of the plaintiff and against the defendant.
24. Issue No. VI & VII
(vi) Whether the plain of plaintiff's has correctly valued for the purpose of jurisdiction and court fee? ( OPD3).
(vii) Whether the plaintiff had any cause of action against the defendant's?( OPD4) The onus to prove the issue No. VI was on the defendant No. 3 and Issue No. VII was on the defendant No. 4. As observed no evidence was led by defendant No. 3 on this issue. Further the defendant No. 4 did not lead any evidence in support of contentions and issue No. VII. The plaintiff has valued the suit for the purposes of court fee and jurisdiction and have also paid the appropriate court fees. There is no basis or substance for these issues and it appears that the defendant No. 3 and 4 have failed to discharge the onus and prove these issues respectively. Issue No. VI and VII are accordingly decided against the defendants and in favour of the plaintiff. CS No. 58/14 26/30 Gopal Singh V/s Mahabeer Singh & Ors.
25. Issue No. V
(v) Whether the plaintiff is entitled to decree for permanent injunction against D1 and D3 as prayed for? ( OPP) The plaintiff has prayed for restraining the defendant's agents, attorneys etc. From creating any third party interest in the suit property. It is the case of the defendant No. 3 that he purchased the suit from the plaintiff vide GPA, Agreement to sell, Receipt and Will, all dated 18.09.07. As mentioned above, none of these documents are registered. Further none of these documents were produced or proved by the defendants before this court in support of claim and contentions. The defendants therefore cannot have valid title in respect of the suit property on the basis of said documents. Further, defendant No. 4 claimed title of the suit property on the basis of Agreement to Sell, GPA, Will and Receipt dated 30.07.09, stated to have been executed by defendant No. 3 in his favour. Even these documents are unregistered and not produced or proved before this court for reliance. 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 apparent from the records the defendant No. 3 claims to have sold the suit property to defendant No. 4 by series upon registered documents dated 30.07.09 without seeking permission of the court during the pendency of the suit and after putting his appearance in this matter. Such conduct of the defendant No. 3 in executing any document cannot be considered to be bona CS No. 58/14 27/30 Gopal Singh V/s Mahabeer Singh & Ors.
fide. 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. V 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 property.
26. Issue No. II
(ii) Whether the plaintiff is entitled to decree of possession in respect of suit property bearing No. C4 Khasra No. 22/211, Gali No. 9, Mukund Vihar, Karawal Nagar, Delhi94 measuring 50 sq. yards consisting of ground floor and first floor?( OPP) In view of the aforesaid discussions and findings, it has been proved that the plaintiff is the owner of the suit property and the defendants have no right, title or interest in respect of the same. There is nothing on record to infer that plaitniff sold the suit property to the defendant No. 3 or consequently ever handed over the possession. Moreover, no such documents allegedly executed by the plaintiff have been proved on record by the defendants. The defendants further failed to prove that the possession was handed over as part performance of the agreement to sell and defendant No.3 was permitted to use the suit property. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the plaintiff is the owner and the defendants have no right of possession. The plaintiff is therefore entitled for the possession as prayed in the suit. Issue No. II is thus decided in favour of the plaintiff and against the defendants.
CS No. 58/14 28/30 Gopal Singh V/s Mahabeer Singh & Ors.
27. Issue No. IV
(iv) Whether the plaintiff is entitled to decree for damages @ Rs. 10,000/ per month against D1 to D3?( OPP).
The onus to prove this issue was upon the plaintiff. The defendant No. 1 and 2 are ex parte and the case is contested only by defendant No. 3. The defendant No. 4 is in possession of the suit property after 30.07.09 on the basis of documents executed in his favour by the defendant No. 3. The plaintiff has prayed for damages @ Rs. 10,000/ PM in his favour and against defendant No. 1 to 3. It appears that this prayer of the plaintiff is vague as knowing that defendant No. 4 is in possession of the suit property, he has not amended the prayer. Further, defendant No. 1 to 3 are not in possession of the suit property. The plaintiff further failed to specify his entitlement for the damages @ Rs. 10,000/ per month and the period for which such claim is made. Moreover, the plaintiff has failed to prove either by way of oral or documentary evidence that he is entitled for the damages @ Rs. 10,000/ per month. The testimony of the PW1 during his crossexamination is contrary to his prayer as the witness admitted and deposed that suit property can fetch Rs. 1,500/ to Rs. 2,000/ as market rate of rent. As mentioned above the prayer is vague and not specific. Further, the plaintiff failed to prove this issue and discharged the onus that he is entitled for the damages @ Rs. 10,000/ pm. Issue No. IV is therefore decided against the plaintiff and it is held that plaintiff is not entitled for damages as prayed in the suit.
CS No. 58/14 29/30 Gopal Singh V/s Mahabeer Singh & Ors.
28. RELIEF: In view of the aforesaid discussions and findings, this court is of the considered opinion that plaintiff has proved his case and therefore, he is entitled for the following relief as prayed in the suit along with cost:
(a) the plaintiff is held to be the owner of the suit property i.e. No. bearing No. C4, Khasra No. 22/211, Gali No. 9, Mukund Vihar, Karawal Nagar, Delhi94 ;
(b) the plaintiff is entitled for decree of possession in respect of the suit property bearing No. C4, Khasra No. 22/211, Gali No. 9, Mukund Vihar, Karawal Nagar, Delhi94 ; measuring 50 Sq. yards.
(c) the plaintiff is entitled for the decree of permanent injunction and the defendants, their agents, assigns, associates are restrained from creating any third party interest or parting with possession of the suit property bearing No. C4, Khasra No. 22/211, Gali No. 9, Mukund Vihar, Karawal Nagar, Delhi94 ; measuring 50 Sq. yards.
29. Decree sheet be drawn accordingly.
30. File be consigned to record room.
Announced in open Court on this 24th day of March, 2014 Gorakh Nath Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 58/14 30/30 Gopal Singh V/s Mahabeer Singh & Ors.