Delhi District Court
Smt. Shahida Parveen vs Gayyur & Ors on 15 December, 2016
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE-02 (NE)
KARKARDOOMA COURTS, DELHI
RCA No. 61/16
IN THE MATTER OF :-
Smt. Shahida Parveen
W/o Sh. Mohd. Azad
R/o E285, Street No. 8/5, Subhash Vihar,
Delhi110053 ... Appellant
V E R S U S
(1) Gayyur
S/o Sh. Shakil @ Khalil Ahmed
R/o H. No. 2173, Gali Kassin Jaan,
Hatta Gali Sahab, Balli Maidan,
Delhi110006.
(2) Ch. Mannavar Hassan
S/o Sh. Ahmad Hassan
R/o E285, Street No. 8/5,
Subhash Vihar, Delhi110053. ... Respondents
Date of Institution of Appeal : 09.07.2016 Date of Arguments : 07.12.2016 Date of Judgment/Order : 15.12.2016 Decision : Appeal is dismissed with cost.
J U D G M E N T-
1. The present appeal impugns the order dated 14.05.2016 of Ld. SCJ- Cum-RC (E), Karkardooma Courts, Delhi in suit No. 8951/06 whereby the suit for possession and mesne profits in respect of suit property i.e. one big RCA No. 61/16 1/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
hall on the ground floor of the property bearing No. E285, Street No. 8/5, Subhash Vihar, Delhi53 (hereinafter called the suit property ) filed by the plaintiff / appellant against the defendants / respondents has been dismissed.
( Parties are referred as per their status before Ld. Trial Court).
2. The brief and relevant facts in the background of which the present suit was filed by the appellant who is the plaintiff in the original suit is reproduced from the impugned judgment as follows:
(i) By this judgment, the suit for possession and mesne profits as filed by the plaintiff against the defendants shall be finally disposed of. The plaintiff has submitted the he is the owner of property bearing No. E228, Street No.8/5, Subhash Nagar, Delhi110053. Plaintiff has purchased the property on 21.01.2004. It has emerged from the facts of the case that plaintiff has purchased the property from her husband who has also deposed in the case as PW4/ Mohd. Azad @ Alizaz Ahmed. The PW4 had purchased the suit property from the defendant No. 2 who is Chaudhary Mannavar Hassan on 24.10.2003. Plaintiff has purchased the property from her husband PW4/ Mohd. Azad on 21.01.2004. Thereafter, the plaintiff has filed the present suit submitting that on 16.03.2006 they had let out the ground floor to defendant No. 1 for a sum of Rs. 5000/ excluding other charges. The defendant No. 1 in collusion with defendant No. 2 entered the premises to let the defendant no. 2 to take the possession of the property of the ground floor. Plaintiff and her husband noticed the presence of defendant no. 2 in the tenanted premises on which they asked him to vacate the premises and on not doing the same, a police RCA No. 61/16 2/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
complaint was lodged at P. S. Bhajanpura on 19.03.2006 and FIR No. 113/06, dated 31.03.2006, U/s. 448/506 IPC was registered at police station. It is submitted that both the defendant are jointly and severally liable for the mesne profit @ Rs. 5000/ per month and interest @ Rs. 24% per month. Rs. 1,15,000/ are claimed occupation charges from 16.04.2006 to 15.03.2008 and vacant possession of the premises are claimed. Mesne profits @ Rs. 5000/ per month from 16.03.2008 till vacation of the suit premises are claimed along with cost of the suit.
(ii). Defendant no. 1 had filed the written statement who has stated that he had taken the premises on rent on asking of defendant no. 2 to jointly run a factory which had to be financed by the defendant no. 2. The defendant no. 2 had failed to honour his commitment and suffered financial loss. Defendant No. 1 has submitted that nothing is due against him on the tenanted premises as the premises is in possession of defendant no. 2.
(iii). Defendant no. 2 has submitted that plaintiff has no locus standi in the case who had colluded with Defendant no. 1 to grab the property. Defendant no.2 has claimed that he is absolute owner of the suit property. The husband of plaintiff Sh. Mohd. Azad had offered to purchase the suit property for a sum of Rs.10,50,000/ and for the said purpose the husband of plaintiff had also agreed to sell his 16 ½ bigha agricultural land situated at village Kheri Kuresh, Tehsil Jansath, District Muzaffarnagar, UP for a consideration of Rs.5,00,000/. The RCA No. 61/16 3/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
said amount of agricultural land had to be adjusted in payment towards purchase of suit property from the defendant. Rs.2,50,000/ had to be paid in cash and Rs. 3,00,000/ had to be paid in February, 2004. An amount of Rs.1,00,000/ was received on 21.10.2003 and Rs.1,50,000/ on 24.10.2003 and thereby a total amount of Rs.2,50,000/ was received in cash. The 16 ½ bigha land referred above had to be mutated in the name of defendant no.2. The husband of plaintiff with dishonest intention got GPA prepared from the defendant no.2 on 24.10.2003 along with agreement and got the GPA registered which were signed in good faith. Only first floor of the suit property was handed over to the plaintiff. The agricultural land at Muzaffarnagar UP referred above was not found free from encumbrance which was already mortgaged with PNB branch Khatauli, Muzaffarnagar UP and other dispute of legal representative was also pending on the said property due to which the property cannot be mutated in the name of defendant no.2 by the Office of Tehsildar. Proceedings were also pending before SDM, Jansath District Muzaffarnagar, UP instituted by Ms. Rabia Begum, PNB Branch Khatauli. Further, Rs.3,00,000/ is not paid and thereby fraud is played upon defendant no.2. Thereafter, on 06.03.2006 the GPA dated 24.10.2003 was cancelled along with the agreement regarding purchase of the suit property by the husband of the plaintiff and he was asked to vacate and handover the first floor of the suit property with damages and other expenses. The said notice was not replied by the husband of the plaintiff. Husband of the RCA No. 61/16 4/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
plaintiff never became owner and he could not have transferred the said suit property to his wife. It is submitted that defendant no.1 has no connection with defendant no.2 and who is agent of plaintiff to grab the suit property. Ex parte order are obtained by plaintiff and defendant no.1 in collusion with each other. The complaint to police was given on 19.03.2006 and FIR no.113/06 was lodged by plaintiff and her husband to create false evidence. It is submitted that plaintiff had knowledge of suit filed for permanent injunction by defendant no.2 and despite that being in collusion with defendant no.1 fraudulently obtained decree when defendant no.2 was in jail in another case. Accordingly, defendant no.2 has prayed for dismissal of the suit of the plaintiff.
(iv). Plaintiff filed the replication therein controverting the averments made in the written statement and reaffirming and reiterating the averments made in the plaint.
(v). Following issues were settled for adjudication and determination vide proceedings dated 22.11.2011:
1. Whether plaintiff is owner of property bearing no. E28, Gali no.8, Subash Vihar, Delhi110053 of which tenanted premises namely one hall on the ground floor is a part? OPP
2. Whether defendant no.2 came in possession of the tenanted premises (i.e. one big hall on the ground floor of the above said property) in the manner as alleged in the plaint? OPP
3. Whether plaintiff is entitled to decree for possession, RCA No. 61/16 5/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
as prayed for? OPP
4. Whether plaintiff is entitled to damages/mesne profits, if so at what rate and for what period? OPP
5. Whether plaintiff has no locus standi to file the present suit as per preliminary objection no.3 in the WS of defendant no.2? OPD2
6. Whether plaintiff has filed this suit in collusion and conspiracy with her husband and defendant no.1 with a view to grab the property of defendant no.2 by creating false, forged and fabricated document of alleged rent deed as alleged in preliminary objection no.4 of WS of defendant no.2? OPD2
7. Whether plaintiff has not approached this court with clean hands and has suppressed material facts? If so to what consequences? OPD2
8. Relief.
3. The appellant has preferred the instant appeal on the ground that the impugned judgment and decree dated 14.05.16 is not sustainable in law and facts and is passed without application of judicial mind. It is further contended that the impugned judgment and decree is not passed on the basis of the admitted and proved facts and the judgment suffers from illegality and infirmity. As mentioned the Ld. Trial Court failed to appreciate the correct facts and contradictions. It is mentioned that respondent No. 2 came in the suit property in collusion with respondent No. 1 who taken rent; appellant is the owner of the suit property on the basis of documents i.e. GPA, agreement to sell, receipt and will Ex. PW 1/1 to Ex PW 1/ 4 having purchased it from PW4 i.e. her husband who purchased it from respondent RCA No. 61/16 6/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
No. 2 for consideration. It is contended that ld. Trial court wrongly held that entire consideration was not paid to respondent No. 2 by PW4 and possession was not handed over to the plaintiff. As contended, the Ld. Trial Court failed to appreciate the facts in proper perspective and reached to wrong conclusion; the Ld. Trial Judge has not applied his mind and disposed off the suit without following due process of law and considering the relevant aspects. This appeal is filed praying to set aside the impugned judgment and decree.
4. The respondent No. 1 was exparte before Ld trial court; memo of appearance was filed by respondent No. 2 but none appeared to address the arguments.
5. I have heard the Ld. Counsel for the appellant and gone through the trial court records.
6. 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. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "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 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 RCA No. 61/16 7/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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".
7. 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. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. 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 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. In view of this legal position of the Evidence Act, it is clear that it is for the appellant to prove that the appellant has right, title and interest in the suit property and she is entitled for the relief of possession as prayed in the suit.RCA No. 61/16 8/25
Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
8. The brief and relevant facts for filing of the case has been mentioned at the outset. There is no admission by defendants regarding claim of plaintiff as well as ownership. The plaintiff on the other hand claimed to have purchased the suit property from her husband who purchased it from defendant No. 2 vide GPA and agreement dt. 24.10.03. The plaintiff claimed to be absolute owner of the property whereas the defendant denied the ownership of the plaintiff. In view of the pleadings of the parties, the plaintiff has to categorically prove that she is the owner of the suit property.
9. I have gone through the documents relied by plaintiff in support of contentions of ownership. The defendant admitted that first floor of the property was handed over to husband of the plaintiff. The main and only question remains to be adjudicated as to whether plaintiff or her husband can be considered to be the owner of the suit property on the basis of documents Ex. PW 5/A to Ex. PW 5/B i.e. GPA, agreement to sell and whether the possession of the ground floor i.e. suit property was handed over to them towards part performance of the agreement. Defendant No. 2 admittedly the owner of the suit property. The plaintiff cannot be considered as owner on the basis of documents relied by her.
10. The parties led their evidence as per the averments made in the pleadings. The plaintiff is claiming her right, title or interest in the suit property. I have gone through the testimony of plaintiff which appears to be totally shattered during cross examination. The claim of the plaintiff accordingly regarding ownership appears to be without any ground.
11. The main and only contentions of the plaintiff remained that the suit property was transferred in the name of plaintiff by her husband and her husband purchased it from defendant No. 2. Even if it is presumed that these documents were executed by defendant No. 2 for consideration, by RCA No. 61/16 9/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
virtue of these documents, the plaintiff cannot be considered to be the owner of the suit property having right, title or interest in respect of the same.
12. Section 17 (1A) of the Registration Act, 1908 was amended with effect from 24.09.01. After the amendment, the agreement to sell for the purpose of part performance U/s 53 (A) of the Transfer of Property Act, 1882 has to be registered and in case, such document is not registered, the same shall have no effect for the purposes of Section 53 (A). In this case, no registered agreement to sell is on record or relied by the plaintiff.
13. It is appropriate and relevant to note the relevant legal provisions and authorities for proper examination and adjudication of the issues.
Section 5 of the Transfer of Property Act, 1882 ( ' TP Act' for short) defines ' transfer of property' as under: " 5. Transfer of Property defined: In the following sections " transfer of property " means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself 9 for to himself) and one or more other living persons; and " to transfer property" is to perform such act." XXX XXX Further Section 54 of the TP Act defines ' sales' thus :
" Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised.
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 RCA No. 61/16 10/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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 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 RCA No. 61/16 11/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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."
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, RCA No. 61/16 12/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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. As held in AIR 1969, SC 1316, the documents of which registration is necessary under the transfer of Property Act ( such as under
Section 54 of the TP Act) but not under the Registration Act fall within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of acting any immovable property comprise therein and do not affect any such immovable property.
15. 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."
RCA No. 61/16 13/25Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
The ratio was further reiterated by Hon'ble Delhi High Court in AIR 2003, Delhi 120 titled G. Ram Vs. DDA wherein it is mentioned that transfer of immovable property can only be affected by executing a registered documents. Merely making an agreement of sale or execution of power of attorney could not transfer right, title or interest of any immovable property.
16. This court is guided in view of the judgment of Hon'ble Supreme Court in Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC) . As held, the document of title i.e. GPA , Agreement to Sell, Will and receipt would not confer ownership rights in respect of immovable property in his favour. Hon'ble Supreme court vide order dt. 15.05.09 reported as Suraj Lamps & Industries V/s State of Haryana, 2009(7) SCC (366) referred illaffects of GPA sells or sell agreement/ GPA/ will transfer holding that there cannot be sell by execution of power of attorney nor there can be transfer by execution on agreement to sell and power of attorney and will.
It is relevant and necessary to reproduce relevant paras of judgment of Hon'ble Supreme Court in Suraj Lamps ( supra) reported as Manu/SC/1222/2011 which read as under: Scope of an Agreement of Sell:
11. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas V. S. A. Kamtam and Anr. (1977) 3 SCC 247, observed: "A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of RCA No. 61/16 14/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Property Act. 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 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 RCA No. 61/16 15/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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 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 RCA No. 61/16 16/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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 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 ofAttorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the RCA No. 61/16 17/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.
An Attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of grantor.
Scope of Will
14. A will is the testament of the testator.
It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is 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 RCA No. 61/16 18/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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 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.
17. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Hon'ble Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance ( para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest RCA No. 61/16 19/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
as per Section 202 of the Contract Act, 1872( para 13) and devolution of interest pursuant to a will( para 14).The object of giving validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executant of the power of attorney.
Therefore, no doubt, a person strictly may not have complete 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.
18. It is settled that ownership and possession are two entirely different concepts. It necessarily follows that it is not only possible but also permissible to transfer one without the other. In simple words it is permissible to transfer ownership without transferring possession. Similarly, it is also possible to transfer possession without transferring ownership. It is relevant to note here that in this case neither the ownership had been transferred nor possession of the suit property was ever handed over to the plaintiffs in pursuance of the provisions of the Transfer of Property Act.
19. 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 RCA No. 61/16 20/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
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. With regard to the legal validity of such documents i.e. agreement to sell, GPA, Will and receipt, the Hon'ble Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd. Vs. State of Haryana reported in AIR 2009 SC 3077 has held that such documents cannot create any right in respect of immovable property. The only way a contract of sale can create title to immovable property is by way of a deed of conveyance as defined under Section 54 of the Transfer of Property Act and registered in pursuance of the provisions of Section 17 of The Registration Act, 1908. No such document has been executed in favour of plaintiff by defendant.
20. This Court is conscious of the judgment of the Hon'ble High Court in the case of Sh. Ramesh Chand Vs. Suresh Chand reported in 188 (2012) DLT 538 in which the judgment in the case of Suraj Lamps (supra) was interpreted. In the case of Ramesh Chand (supra) the Hon'ble High Court was pleased to hold that right to possess immovable property arises not only from a complete ownership right but also by having a better title.
21. As discussed, plaintiff cannot be considered as owner on the basis of the GPA and other documents executed by her husband in her favour. I have gone through the section 17(1 A) of the registration Act, 1988 which is amended with effect from 24.09.01. It is reproduced herein for reference: (1A) The documents containing contracts to transfer for consideration any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed or or RCA No. 61/16 21/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
after the commecement of the Registration and other Related laws ( amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A} In view of the aforesaid provisions, the claim of the plaintiff having purchased the suit property from her husband appears to be baseless and have no defence. The contentions of plaintiff regarding the possession in view of the part performance of the agreement to sell have no merits. This court is further guided by judgment of Hon'ble Delhi High Court reported as 222 (2015) DLT 285 titled as Yashvir Singh Tomar V/s Dr. OP Kohli and others in this respect. As held in relevant para No. 4 and 5: " (4) By virtue of the amendment brought about to section 53A of the Transfer of Property Act, 1882 w.e.f. 24.09.2001 by the Act 48 of 2001, an agreement to sell in the nature of part performance cannot create rights unless the agreement is registered and stamped at 90 % of the value of the sale deed as per Article 23 A of the Schedule 1 of the Indian Stamp Act, 1899 as applicable to Delhi which was accordingly amended by the Act 48 of 2001"
" (5) In view of the above, since the Agreement to sell in question is an unregistered and unstamped Agreement to Sell, no rights can be claimed under the same. What cannot be directly done cannot be indirectly done and a power of attorney, merely because it is registered, will not confer rights in the nature of ownership in the property. I may note that in fact a power of attorney which effectively gives RCA No. 61/16 22/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
ownership right of the suit property by allowing the attorney to sell the immovable property by virtue of Article 48 (f) of the Indian Stamp Act as applicable to Delhi will have to have the same duty as a conveyance deed as per Article 23 of the Indian Stamp Act for the amount of consideration"
The ratio of the judgment is squarely applicable in the facts and circumstances of this case. The plaintiff failed to prove regarding any transfer of property in her favour by her husband and her ownership as claimed in the plaint. Neither Section 53 A of the Transfer of Property Act, 1882 nor Section 202 of the Contract Act, 1872 is applicable for ownership of plaintiff and the law laid down the Hon'ble Supreme Court in SLP (C) No. 13917 of 2009 titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana & Ors. also is squarely applicable in the facts of this case. In view of the aforesaid provisions of law, the claim of the plaintiff regarding ownership on the basis of unregistered / notarized agreement to sell, GPA etc is not sustainable.
22. In the present case, plaintiff claimed the title on the basis of GPA and other documents but the execution of these documents not proved in accordance with the provisions of law. Even if these documents were executed by husband of plaintiff in favour of plaintiff, the same would not create any title in her favour. 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. The plaintiff by no stretch of imagination can be considered as owner of the suit property having purchased the same from her husband by virtue of documents.
23. I have gone through the judgment reported as (2003) 8 SCC 752. As RCA No. 61/16 23/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
24. In view of the aforesaid discussions and referred law, this Court is of the considered view that the findings of Ld. Trial Judge is correct appreciation of law and fact led before the Ld. Trial Court. I do not find any flaw or infirmity in the impugned order dated 14.05.16 which is well reasoned and passed in accordance with the provisions of law. The RCA No. 61/16 24/25 Shahida Parveen V/s Gayyur & Ors.
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
impugned judgment whereby the suit of the plaintiff/appellant was dismissed does not suffer from any illegality or infirmity and appears to be sustainable in view of the aforesaid discussions and findings. The impugned order in no manner cause for any interference. No merit is thus found in the appeal filed by the appellant. The appeal is resultantly dismissed with costs.
25. TCR be sent back to the concerned Court along with a copy of this judgment.
26. Decree sheet be drawn accordingly.
27. Appeal file be consigned to the Record Room.
Announced in open Court on this 15th day of December, 2016 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
RCA No. 61/16 25/25Shahida Parveen V/s Gayyur & Ors.