Delhi District Court
Laxmi Yadav vs Ramakant Yadav And Ors on 27 February, 2025
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IN THE COURT OF MS. GUNJAN GUPTA,
DISTRICT JUDGE-04, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
In the matter of
CS DJ 1233/2017
1. LAXMI YADAV,
W/o Late Sh. Ramanad Yadav,
2. BABY KRITIKA (MINOR)
D/o Late Sh. Ramanand Yadav,
(Through her natural mother i.e. Plaintiff No.1)
Both Residents of :-
M-106/14, Saurav Vihar,
Jaitpur, Badarpur, New Delhi. .... Plaintiffs
VERSUS
1. RAMAKANT YADAV,
S/o Sh. Late Satya Dev Yadav,
R/o M-106/14, Saurav Vihar,
Jaitpur, Badarpur, New Delhi.
2. MS. LAL MATI,
D/o Late Sh. Satya Dev Yadav,
R/o Village Araji Amani, District Azamgarh,
Uttar Pradesh
CS DJ 1233/2017
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Also at : M-106/14, Saurav Vihar,
Jaitpur, Badarpur, New Delhi.
3. MS. SUSHILA,
D/o Late Sh. Satya Dev Yadav,
W/o Sh. Upender,
R/o Bhainsade, District Azamgarh,
Uttar Pradesh.
Also at : M-106/14, Saurav Vihar,
Jaitpur, Badarpur, New Delhi. ....Defendants
Date of Institution : 22.08.2013
Date of judgment : 27.02.2025
DECISION : Dismissed
Suit For Partition, Possession, Declaration, Permanent
And Mandatory Injunction
JUDGMENT
1. This is a suit for partition, possession, declaration, permanent and mandatory injunction filed by the plaintiffs against the defendants.
The family tree of the parties to the suit is as follows:
CS DJ 1233/2017 -3- Sh. Satyadev Yadav Smt. Rajpati
(deceased) (deceased)
|________________________________|__________________|________________|_______ Sh. Ramanand Yadav Sh. Ramakant Yadav Smt. Sushila Smt. Lal Mati (pre-deceased son) (son) (daughter) (daughter) |____________________| (defendant no. 1) (defendant no. 2) (defendant no.3) Smt. Laxmi Yadav Ms. Kritika (wife ) (daughter) (plaintiff no.1) (plaintiff no. 2)
2. THE CASE OF PLAINTIFFS Brief facts of the case, as set out in the plaint, are -
2.1 The Plaintiff no. 1 got married to son of Sh. Satyadev Yadav, namely Sh. Ramanand Yadav on 09.02.2000 as per Hindu rites and ceremonies and Plaintiff no. 2 (Kritika) was born out of the wedlock in 2003. The plaintiffs are residing in the property admeasuring 60 sq yards bearing no. M-106/14, Saurav Vihar, Jaitpur, Badarpur, New Delhi (hereinafter referred to as suit property).
2.2 A portion of 30 Sq. Yards out of 60 Sq. Yards of the suit property was purchased by Late Sh. Satyadev Yadav in his own name by way of written Agreement to Sell, General Power of Attorney, Receipt & Affidavit. Another portion of 30 Sq. Yards was purchased by the husband of the Plaintiff No. 1 and his brother/Defendant No. 1 in joint names as the owner in equal ratio, out of their funds for a consideration of Rs. 62,500/- from one Sh. Rajender CS DJ 1233/2017 -4- Yadav, by way of an agreement to Sell, General Power of Attorney, Receipt, Affidavit dated 06.08.1996. It is averred that the whole of property measuring 60 Sq. Yds. is joint and undivided property till date.
2.3 The original ownership documents of the aforesaid suit property are in possession of the Defendant No. l and 2.
2.4 The husband of plaintiff no.1 expired on 24.11.2004. After the death of the husband of the Plaintiff No. 1, all the defendants started misbehaving with plaintiff no.1 and also tortured her physically and mentally and also used to threaten the Plaintiffs that they will throw them out of suit property. It is averred that Defendant No. 1 and 2 also created obstruction in opening the window towards the staircase for fresh air to the room of the Plaintiff and also did not allow the Plaintiffs the access to the roof of the suit property. 2.5 Sh. Satyadev Yadav, the father-in-law of the Plaintiff No. 1 expired on 30.09.2012, intestate leaving behind his legal-heirs i.e. his wife Smt. Rajpati, the defendants and the plaintiffs (being the legal heirs of his pre-deceased son late Sh. Ramanand Yadav).
CS DJ 1233/2017 -5-2.6 Subsequently, Smt. Rajpati, mother-in-law of the plaintiff no. 1 also expired.
2.7 After the death of Sh. Satyadev Yadav and subsequently of Smt. Rajpati, his 30 sq yards of the suit property fell in equal shares i.e. to the extent of ¼ share each in favour of plaintiffs and defendants and, therefore, the Plaintiff No. 1 & 2 who are the widow and daughter of Late Sh. Ramanand Yadav respectively are entitled to ¼ share of Late Sh. Ramanand Yadav.
2.8 Thus, after the death of Sh. Satyadev Yadav, Sh. Ramanand Yadav and Smt. Rajpati, the Plaintiff No. 1 & 2 are entitled for 22.5 Sq. Yds. portion out of joint & undivided plot of measuring 60 Sq. Yds. as their joint share in the suit property as follows:
i). a share of 15 sq Yds. out of the 30 sq. which is in the name of Sh. Ramanand Yadav and Defendant No. 1 jointly
ii). a share of 7.5Sq. Yds (¼th) out of the portion of property admeasuring 30 Sq. Yds. which is in the name of Sh. Satyadev Yadav.2.9 On numbers of occasions, Plaintiff No. 1
requested the Defendants and their other relatives to give the separate share of the Plaintiff No. 1 & 2, however, they did not pay heed to her requests and threatened to throw them out of the suit-property.
CS DJ 1233/2017 -6-2.10 Various complaints and litigations under DV Act were also launched by the plaintiff no.1 against defendants.
2.11 On 01.04.2013 & 10.04.2013 again the Plaintiff No. 1 approached the Defendants for partition of the suit property and for her share of plot measuring 22.5 Yards, but the Defendant No. 1 & 2 refused to give the share of the Plaintiff and threatened to sell out the suit property. 2.12 The Defendant No. 1 & 2 have been constantly threatening the Plaintiffs that they have forged the documents relating to the suit property and on the basis of the same they will create the third party interest in the suit property.
2.13 Hence, the plaintiffs have filed the present suit seeking the following reliefs:
i). A decree of partition, declaring shares of the Plaintiffs and the Defendants as ¼th share each i.e. 7.5 Sq. Yds. out of the plot/ land measuring 30 Sq. Yds.
in the name of Late Sh. Satyedev Yadav, and another share of Plaintiffs and Defendant No 1 of 15 Sq Yds. each of plot measuring 30 Sq. Yards in the joint name of Late Sh Ramanand Yadav and the Defendant No 1 in the suit property.
ii). A decree of possession in favour of the CS DJ 1233/2017 -7- plaintiffs and against the defendants for possession of their share of land/plot, measuring 22.5 Sq. Yds. out of the suit property.
iii). A decree of permanent injunction infavour of the plaintiffs and against the defendants restraining them from creating any third party interest or parting with the possession of the suit property in part or whole in any manner whatsoever.
iv). A decree of mandatory injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants from misusing in any manner the original ownership papers of the suit property which are in the illegal possession, custody or power of the Defendant No. 1&2 and for directing them to deposit the same with the court in order to avoid the misuse thereof.
3. CASE OF THE DEFENDANTS The defendants filed their joint WS denying the averments in the plaint and stated as follows:-
3.1 Late Sh. Satya Dev Yadav purchased 30 Sq. Yards of the suit property on 24.02.1995 in his own name and another 30 Sq. Yards of the suit property in the name of his sons Sh. Ramakant Yadav i.e. Defendant no.1 and Late Sh. Ramanand Yadav (husband of plaintiff no.1) on 06.08.1996. At the time of purchase in 1996, Late Sh.CS DJ 1233/2017 -8-
Ramanand Yadav was a student and had no source of income at that time.
3.2 The original title documents are in the possession of Sh. Raj Bahadur Yadav in lieu of the loan of Rs. 2,00,000/- given to Late Ramanand Yadav in the year 1999, for opening a shop namely Shivam Telecom and a further loan of Rs. One Lac given to him for his treatment, in the year 2004, when he was hospitalized. 3.3 The defendant no. 1 has helped and incurred all the expenses to the plaintiff no. 1 after the death of her husband and also paid the school fees of plaintiff no. 2. 3.4 Late Sh. Satya Dev Yadav had executed a Will with respect to the land measuring 30 Sq. Yards of the suit property in favour of his daughters-defendant no.2 and 3 on 14.05.2012. After the said Will, the plaintiffs are entitled to ¼ share out of the remaining 30 sq yards of the joint suit property.
4. REPLICATION The plaintiffs filed the replication denying the averments in the W.S and reiterating the contents of the plaint. It is averred that the plaintiff's husband had a source of income at the time of purchase of the suit property and he purchased the above mentioned 30 Sq Yards suit property along with his brother Defendant no.1. It is averred that Will annexed by the defendants is a forged one and in fact no Will was made by Late CS DJ 1233/2017 -9- Sh. Satyadev Yadav during his life time.
5. ISSUES Issues were framed in the matter on 06.01.2016 and then again on 23.01.2018. However, issues no. 1 to 4 framed on both the dates were the same and issue no. 5 & 6 framed on 06.01.2016 and issue no. 5 framed vide order dt 23.01.2018 were deleted with the consent of the parties vide order dated 23.02.2024.
Thus the following issues remain for consideration by this court :
1. Whether the plaintiff is entitled for decree of partition as prayed for? OPP
2. Whether the plaintiff is entitled for decree of possession as prayed for? OPP
3. Whether the plaintiff is entitled for mandatory injunction as prayed for? OPP
4. Whether the plaintiff is entitled for permanent injunction as prayed for ? OPP
5. Relief.
6. PLAINTIFFS EVIDENCE Plaintiffs in support of their case examined the following witnesses:
6.1 PW1- plaintiff no. 1. She tendered her evidence by way of affidavit EX.PW1/1 and relied upon the following documents:-
CS DJ 1233/2017- 10 -
1. Original site plan Ex.PW 1/A.
2. Copy of General Power of Attorney, Receipt, Affidavit Mark A (Colly).
3. Copy of death certificate of Sh.
Ramanand Yadav Mark B.
4. Stamped copy of police complaints dated 23.12.2013 and 27.05.2015 - PW1/C (colly).
5. Copy of police complaints dated 02.12.2012 Mark C.
6. Copy of petition under DV Act Mark D.
7. Affidavit of Evidence u/s 65 B IE Act Ex.PW1/2.
6.2 PW2-ASI Ramakrishnan, Reader to SHO, PS Jaitpur who brought the summoned record and exhibited the following documents:-
1. Copy of DD no. 40 B dated 30.12.2014 at Sr. no. 2850 Ex.PW2/A (OSR).
2. Copy of DD no. 29B dated 27.05.2015 at Sr. no. 1062 is Ex. PW2/B (OSR).
3. The copy of Rojnamcha bearing DD no.
43 B dated 02.12.2012 Ex.PW 2/C (OSR).
4. The copy of Rojnamcha bearing DD no. 27 B dated 23.12.2013 is Ex.PW2/D (OSR).
CS DJ 1233/2017- 11 -
5. Copy of Order dt 16.03.2016 qua destruction of old records of PS Jaitpur Ex.PW2/E.
6. The copy of Rojnamcha bearing DD no. 29 B dated 27.05.2015 Ex.PW2/F (OSR).
7. The copy of Rojnamcha bearing DD no. 40 B dated 30.12.2014 is Ex.PW2/G (OSR). 6.3 PW3-Sh. Ramdaras Yadav, the attesting witness to the Will dt 14.05.2012 of Sh. Satyadev Yadav.
7. DEFENDANTS EVIDENCE Defendants in support of their case examined the following witnesses :
7.1 DW1-Defendant no.1- Sh. Ramakant Yadav.
He tendered his evidence by way of affidavit EX.DW1/1 and exhibited the Will as Ex. DW 1/A. 7.2 DW2- Smt. Lalmati/defendant no.2. She tendered her evidence by way of affidavit EX.DW2/A. 7.3 DW3-Smt. Sushila/defendant no. 3. She tendered her evidence by way of affidavit EX.DW3/A. 7.4 DW4-Sh. Rajender Yadav, the attesting witness to the Will dt 14.05.2012. In his evidence, he has relied upon the Will Ex.DW1/A. CS DJ 1233/2017
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7.5 DW5-Sh. Raj Bahadur deposed that in the month of February-March, 1999 defendant no. 1 and husband of plaintiff no. 1 approached him for lending some money. He gave a loan of Rs. 2 Lakhs to them and took the document of their house as security. Thereafter in year 2004, father of defendant no. 1 again took Rs. 50,000/- from him. Again after some time Sh. Satyadev Yadav approached him for further loan of Rs. 50,000/- for treatment of Ramanand Yadav. He deposed that original documents of the suit property (30 Sq. yards) were still with him.
8. ARGUMENTS OF LD. COUNSEL FOR PLAINTIFF-
S.P. MISHRA 8.1 It was argued by Ld. Counsel for plaintiff that with respect to 30 sq yards of suit property in the name of Sh. Satyadev Yadav, the defendants have set-up a forged and fabricated Will dt 14.05.2012 Ex.DW1/A and have failed to prove the same as per the provisions of Indian Evidence Act, 1872.
8.2. Ld. Counsel has pointed out that the evidence of the defendants and the attesting witnesses qua execution of the Will is contradictory to each other which are detailed as below:-
i). It was argued that DW1 in his cross-
examination has given contradictory statements by first stating that he was informed by his father that he wished CS DJ 1233/2017
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to execute a Will in favour of his daughters and in the later part of the cross-examination, he stated that the father never told him about the same.
ii). Further DW1 stated that Will was brought by his father which was already typed, whereas DW2 has stated in her evidence that the will was written on the spot by her father.
iii). Ld. Counsel further pointed out that the attesting witness Sh. Rajendra Yadav-DW4 stated in his evidence that he had come for the execution of the Will along-with the testator, whereas it was stated by DW3 in her cross-examination that her father came to the spot for execution all alone and the other people were available even prior to the arrival of her father. Further, DW1 in his chief-examination stated that his father came along- with both the attesting witnesses.
iv). It is also pointed out that DW1 stated that the Will executed by him was retained by his father and was traced later on while searching the documents for the purposes of conversion of the father's pension into family pension, whereas it was stated by DW2 that a copy of the Will was given to her brother on the same day. DW3 also stated that the Will in question was not handed over to anybody and the father kept the documents with himself.
CS DJ 1233/2017- 14 -
v). Ld. Counsel also pointed out that DW4, who is claimed to be attesting witness, had stated in his cross-examination dt 11.02.2020 that the witnesses had put their signatures and their addresses on the Will, whereas the original Will Ex.DW1/A does not contain any address of the attesting witnesses.
vi). It was further argued that DW2 in her cross- examination stated that she is not aware who is in possession of the original title documents of the property whereas in her chief examination, she has stated that the original title documents are in possession of Sh. Rajbir Yadav, from whom the husband of plaintiff no.1 had taken the loan.
8.3 Ld. Counsel further argued that as per the statement made by DW4, he was working in a private job at Ballabhgarh and used to get leave only on Sundays and he used to return home at 6 p.m. It was further submitted that as per the testimony of the said witness, he was called at around 2-2:30 p.m for execution of the Will and thus his presence on the day of execution of the Will is itself doubtful as the said day was not Sunday. It is argued that as per the said witness, he was present at the house of the testator for half an hour whereas it was stated by DW1 that all the persons were there for about 1-1½ hour. The said witness has also deposed that he did not read the Will and signed it without reading it. It CS DJ 1233/2017
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was submitted that in view of the above contradictions, testimony of witnesses of the defendants is not reliable. 8.4 The counsel further argued the other attesting witness of the Will Sh. Ramdarash Yadav was examined by Plaintiff as PW3 whose evidence as to the circumstances of the execution of the Will was contradictory to the evidence of DW4. It was submitted that the said witness deposed that he had signed the Will at the behest of defendant no. 1 and at the time of signing the same, only defendant no.1 and his niece were present. It was argued that this clearly proves that Sh. Satyadev Yadav died intestate and Will Ex.DW1/A is forged and fabricated thus entitling the plaintiff to ¼ share in the 30 sq yards of the suit property in the name of Sh. Satyadev Yadav.
8.5 As to the other part of the suit property measuring 30 sq yards, in the name of defendant no.1 and the husband of plaintiff no. 1, it is argued that the said part of the property was purchased by defendant no.1 and the husband of plaintiff no. 1 in their joint name out of their own funds and thus both are entitled to half share each in the same. It was argued that GPA, Receipt and Affidavit dt 06.08.1996 in the name of defendant no.1 and the husband of plaintiff no.1 were in possession of the defendants which was deliberately not produced by them before the Court and, therefore, copies of the same Mark CS DJ 1233/2017
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A (colly) are to be looked into as secondary evidence. 8.6 It was further submitted that the defendants have failed to prove that the suit property was purchased by father of the parties by paying cash and have also failed to prove that the husband of plaintiff was not earning at the time of purchase of the property. He further argued that the evidence of DW5 -Sh. Rajender Yadav also cannot be relied upon, as he had admitted in his cross- examination that he only had an income of Rs. 1.5 to Rs. 2 lacs per annum and, therefore, it is improbable that he would be able to financially help the husband of plaintiff. It is further submitted that neither any mortgage deed nor any title documents were produced by the said witness and it was admitted that no mortgage deed was executed between him and defendant no.1 and the husband of plaintiff.
8.7 It was argued that in view of the failure of the defendants to prove the Will dt 14.05.2012 and the factum of incapacity of the husband of plaintiff no.1 to purchase the suit property, the plaintiff is entitled to half share in the 30 sq yards of the suit property in the name of defendant no.1 and the husband of plaintiff no.1 and ¼ share in 30 sq yards of suit property owned by Sh. Satyadev Yadav.
CS DJ 1233/2017- 17 -
9. ARGUMENTS OF LD. COUNSEL FOR DEFENDANT NO. 1-SH. SANJEET KUMAR SINGH. 9.1 It was argued by Ld. Counsel for defendants that PW3, who is the attesting witness to the Will, was initially arrayed as a witness in the list of witnesses by the defendants, however, later on he had colluded with the plaintiff due to which he was dropped from the array of witnesses. He argued that the said fact is evident from the order sheet dt 19.10.2022 wherein it was observed that the said witness has appeared even without summons. It was argued that PW1 i.e. plaintiff no.1 has admitted in her cross-examination conducted on 21.05.2018 that she does not have any proof to show that her husband was earning in the year 1996. 9.2 It was further argued that the plaintiff has stated in her cross-examination that her father-in-law had bequeathed his 30 sq yards of the suit property in favour of his two daughters but she does not accept the said Will and has thus filed the present suit. The relevant part of the cross-examination is reproduced hereunder:
"It is correct to say that my father-in-law bequeathed by way of Will in which he shared 15 sq yards equally with his daughters, is not accepted by me and hence, I have filed the suit."
9.3 It was further argued that even PW3 has admitted his signatures on the Will but to support the plaintiffs and in collusion with them, has stated that he had signed the CS DJ 1233/2017
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same at behest of defendant no. 1. It was argued that the evidence of DW5 cannot be discarded merely because 14.05.2012 (i.e. the date of execution of the Will) was not a Sunday as no question was put to the witness as to whether on the said date, he was on leave or not. 9.4 Ld. Counsel has further argued that even in a complaint dt 07.08.2018, made by plaintiff no.1, against her father-in-law, Sh. Satya Dev Yadav, has given a statement before Police that he will equally divide his share amongst his four children and, therefore, the property of 30 sq yards was given to two daughters and another 30 sq yards was in the name of his two sons.
10. I have heard and given my thoughtful consideration to the arguments of both the sides and have carefully gone through the record of the case.
11. FINDINGS ON THE ISSUES 10.1 Issue no.1: Whether the plaintiff is entitled for decree of partition as prayed for ? OPP 10.1.1 The suit property in the present case in total is admeasuring 60 sq yards. Out of the said 60 sq yards, 30 sq yards is alleged to have been purchased by defendant no.1 and the husband of plaintiff No. 1 jointly from one Sh. Rajender Yadav by way of Agreement to Sell, GPA, Receipt and Affidavit all dt 06.08.1996 and the other 30 sq yards of the suit property is alleged to have been purchased by Sh. Satyadev Yadav in his own CS DJ 1233/2017
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name by way of Agreement to Sell, GPA, Receipt and Affidavit dt 24.02.1995.
10.1.2 The claim of the plaintiff in both the parts of the suit property is discussed herein separately. A. 30 Sq yards of the property in the name of defendant no. 1 and the husband of plaintiff no.1 The plaintiff claims to have inherited half share of 30 sq yards of the suit property from her husband, who allegedly was the joint owner with defendant no.1 and has sought a decree of partition declaring her share of 15 sq yards in the said part of the suit property. However, the plaintiff has only placed on record the copy of GPA, Receipt and Affidavit dt 06.08.1996. It was averred that the original title documents were in possession of the defendants. The defendants on the other hand, denied having possession of the same and averred that the said documents are in possession of Sh. Raj Bahadur Yadav- DW5 with whom the defendant no. 1 and the husband of plaintiff no.1 had mortgaged the property in lieu of loan of Rs. 2 lacs. The said witness stated in his cross-examination that he is in possession of the originals but no cross-examination on the said aspect was done by the plaintiff neither the production of the originals was insisted upon. Further no amount of secondary evidence was led by the plaintiff to prove the said documents, as per the provisions of Indian CS DJ 1233/2017
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Evidence Act, 1872 (now BSA, 2023). Even though, the defendants admit that 30 sq yards of the suit property was purchased in the joint name of defendant no.1 and the husband of plaintiff no.1, yet the fact remains that the said documents were never produced before this court for perusal. Though admitted facts need not be proved, yet the court may require the same to be proved. In the instant case there is nothing on record except admission of defendants, that the 30 sq yards of the suit property was purchased in the name of defendant no.1 and husband of plaintiff no. 1. There is no document to show previous chain of title nor any public record of title with respect to the said part of the suit property. Even the vendor has not been examined. Thus in the absence of any primary or secondary evidence as to the ownership of defendant no. 1 and the husband of plaintiff no.1, the rights of the plaintiff in the suit property cannot be decided. Even otherwise, it has been held by Hon'ble Supreme Court in judgment of Suraj Lamp & Industries (P) Ld.Tr.Dir vs State Of Haryana & Anr decided on 11 October, 2011, that GPA, Receipt and Affidavit are not documents of title and a property can be conveyed only by way of a registered sale deed as per section 54 of Transfer of Property Act, 1882. Relevant part of the judgment is reproduced hereunder:
"15.Therefore, a SA/GPA/WILL transaction does not CS DJ 1233/2017
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convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.
They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
The effect of General Power of Attorney has also been discussed in Suraj Lamps Case (supra) and it was held as under:-
"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 CS DJ 1233/2017
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property. It 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 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 power of attorney does not have the effect of transferring title to the grantee." In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held :
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the CS DJ 1233/2017
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grantor."
Further, no amount of evidence has been produced before the court to show that even the property was mutated in the name of defendant no.1 and the husband of plaintiff no.1 so as to be covered in para 18 of the Suraj Lamps case (supra) - which is reproduced here under:
"18. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said 'SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to 'SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision."
emphasis supplied.
Thus there is no evidence whatsoever to enable this court to decide/declare the rights of the plaintiffs in the 30 sq yards of suit property allegedly owned by the defendant no.1 and the husband of plaintiff no.1.
Further, 'partition' is merely a redistribution of pre-existing rights and only a person having a share and interest in the suit property is entitled to seek partition. In CS DJ 1233/2017
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this regard, it would be appropriate to refer to para 4 of the judgment passed by Hon'ble Supreme Court in Shub Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna and Ors- MANU/SC/1607/2009 which is as under :-
"4. `Partition' is a re-distribution or adjustment of pre-existing rights, among co- owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. `Separation of share' is a species of 'partition'. When all co-owners get separated, it is a partition. .... In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/properties should be divided by metes and bounds ?"
(emphasis supplied) Since pre-existing rights of plaintiffs are not proved, no decree of partition can be passed. The plea of the defendants that this 30 sq yards of the suit property belongs to Sh. Satyadev Yadav because sale consideration was paid by him, is not required to be CS DJ 1233/2017
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delved into as there is nothing before this court to even enable it to arrive at a conclusion that property was purchased in the name of defendant no.1 and the husband of plaintiff no. 1.
There is also no assertion in the plaint as to the extent of possession of the plaintiff in the suit property and the pleadings are unclear and vague in this regard and it is merely stated that plaintiffs are residing at the address mentioned in the title of the suit which is M-106/14, Saurav Vihar, Jaitpur, Badarpur, New Delhi. The site plan attached merely shows that plaintiff no. 1 is in possession of one room on the ground floor, however, again it has not been defined as to what are the measurements of the said room. It has not been specified whether the plaintiff is in joint possession or separate possession of any part of the suit property, whether she is in possession of any part of the property other than the room shown in the site plan Ex.PW1/A and if so to what extent, it has not been clarified who all are in possession of the suit property. Thus the pleadings with respect to possession are not specific and are incomplete. Thus in the absence of any clear pleadings and evidence as to the extent of possession of the plaintiffs, this court is even unable to decide on the partition of the possessory rights of the plaintiff no. 1 and 2 allegedly inherited from their deceased husband and father respectively.
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B. 30 sq yards of the suit property of Sh. Satya Dev Yadav.
As to the 30 sq yards of the suit property in the name of Sh. Satyadev Yadav, the plaintiffs have claimed 1/4 share alleging that Sh. Satyadev Yadav died intestate. The defendants did not dispute the ownership of Sh. Satyadev Yadav with respect to this part of the suit property, however, claimed that Sh. Satyadev Yadav left behind a Will dt 14.05.2012 Ex.DW1/A bequeathing the said part of the suit property equally in favour of his two daughters. The documents placed on record in support of the ownership of Sh. Satyadev Yadav are the original Agreement to Sell, GPA, Receipt and Affidavit all dt 24.02.1995. (The documents lying in the sealed cover have been opened by the court for their perusal. The same were perused and were again put in the envelope).
Perusal of the said documents shows that the Agreement to Sell is only signed by Sh. Sampooran Singh and it does not bear the signatures of Sh. Satyadev Yadav and thus casts doubt on the claim of the parties that Sh. Satyadev Yadav is the owner of the said part of the suit property.
Further, the legal effect of the GPA has already been discussed in Suraj Lamps Case (supra) which has already been discussed in foregoing part of this judgment under head 'A' of para 10.1.2 above and thus to no CS DJ 1233/2017
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extent of imagination, the said documents confer any title on Sh. Satyadev Yadav.
There is nothing on record to show that Sh. Satyadev Yadav exercised his rights under the GPA dt 24.02.1995. There is no evidence that even the property was mutated in his name, so as to be covered by para 18 of Suraj Lamps judgment (supra), discussed in para head 'A' of para 10.1.2 of this judgment. Even with respect to this part of the suit property, the pleadings of the parties are silent as to the possessory rights. There is no clarity as to who are in possession of this part of the suit property and since when and to what extent. Thus even with respect to this part of suit property, possessory rights are not divisible.
Since the ownership of Sh. Satyadev Yadav is itself not proved, this court does not deem it important and even relevant to discuss any evidence with respect to the Will dt 14.05.2012 Ex.DW1/A, led by both the sides. 10.1.3 In view of the above discussion, this issue is decided against the plaintiffs.
11.2 Issue No.2 Whether the plaintiff is entitled for a decree of possession as prayed for ? OPP and Issue No.3 :Whether the plaintiff for a decree of mandatory injunction as prayed for ? OPP and CS DJ 1233/2017
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Issue No. 4 :Whether the plaintiff for a decree of permanent injunction as prayed for ? OPP In view of the findings on the above issue, these issues are also decided against the plaintiffs.
12. Relief:
In view of the findings on the above issues, the suit of the plaintiff is dismissed.
13. Decree sheet be drawn accordingly. File be consigned to Record Room.
Announced in the Digitally signed
by GUNJAN
open Court on 27.02.2025. GUNJAN GUPTA Date:
GUPTA 2025.03.01 10:06:25 +0530 (GUNJAN GUPTA) District Judge-04 (SE), District Courts, Saket, New Delhi CS DJ 1233/2017