Delhi District Court
Ram Ashrey vs Sulekh Chand Singhal on 10 December, 2014
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
RCA No. 43/14
Case I.D. Number : 02402C0319292013
IN THE MATTER OF :
Ram Ashrey
S/o Late Sh. Basant Lal Patwa
R/o X182/13, Gali No. 9,
Brahampuri, Shahdara,
Delhi110053. .......Appellant
VERSUS
Sulekh Chand Singhal
S/o Sh. Kishan Lal Singhal
R/o H. No. G289, Preet Vihar,
Delhi110092. ......Respondent
Date of Institution of Appeal :30.09.2013
Received in this Court :18.02.2014
Date for Arguments :16.09.2014
Date of Judgment/Order :10.12.2014
Decision :Appeal dismissed with cost
RCA No. 43/14 page 1 of 25
Ram Ashrey V/s Sulekh Chand Singhal
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
J U D G M E N T
1. The present appeal impugns the judgment and decree dated 27.08.13 passed by Ld. ACJ Cum ARC (NE), Karkardooma Courts, Delhi in Civil suit No. 573/07 whereby the suit for recovery of possession , recovery of rent and damages / mesne profits in respect of property bearing No. X182/13, Gali No. 9, Brahampuri, Delhi53 as shown in the site plan Ex. PW1/F in red colour ( hereinafter called the suit property ) filed by the defendant/ respondent has been allowed and a decree has been passed in favour of defendant for possession, arrears of rent and mesne profits/ damages @ of Rs. 5,000/ per month. The parties are hereinafter being referred to by their respective status before the trial court.
2. The brief and relevant facts in the background of which the suit was filed by the respondent who is the defendant in the original suit is reproduced from the impugned judgment as follows:
(i) The plaintiff has stated that he had purchased the property bearing No. X182/13, Gali No. 9, Brahampuri, Delhi53( herein referred to as the suit property) from Ms. Jai Devi, wife of the defendant, in a sum of Rs. 1,50,000/ and in this regard Ms. Jai Devi executed registered GPA, registered will, receipt, agreement to sell and affidavit all dt. 24.04.04 in favour of plaintiff. Ms. Jai Devi also handed over the physical possession of the property to the plaintiff on 24.04.04. The husband of the erstwhile owner/ the defendant requested the RCA No. 43/14 page 2 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. plaintiff to give the suit property on rent so the plaintiff gave the suit property on rent to the defendant @ Rs. 5,000/ per month excluding the electricity and other charges and in this regard rent agreement dt. 24.04.04 had been executed between the parties. Again rent agreement dt. 24.03.06 was executed between the parties. It has been alleged that the defendant is in arrears of rent since November, 2006 and the plaintiff had been demanding rent from the defendant, but the defendant avoided to make the payment of rent with malafide intention. The plaintiff had sent the legal notice dt. 13.07.07 to the defendant but the defendant failed to comply with the terms of the notice and had sent a false reply. The plaintiff, thereafter, sent a rejoinder to the reply thereby terminating the tenancy of the defendant. The plaintiff has claimed that the defendant is liable to hand over the vacant physical possession of the suit property and the plaintiff is entitled to rent for the period November, 2006 till October, 2007 @ Rs. 5,000/ per month and also to mesne profits @ Rs. 5,000/ per month alongwith electricity charges.
(ii) Written statement was filed. The suit was resisted submitting that the suit was based on false and frivolous facts, without cause of action and the plaintiff has concealed material and true facts from this court. The defendant has averred that the had borrowed a sum of Rs. 30,000/ from the plaintiff in the month of April, 2004 and had mortgaged the property papers of the suit property. In the month of June, 2004, the plaintiff visited the house of the defendant and told him that the blank papers, which were signed by the RCA No. 43/14 page 3 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. defendant have been destroyed by him and he requires new security for the loan advanced, accordingly, defendant's son namely Ram Kishore handed over three blank cheques bearing No. 488843, 488844 & 488845 drawn on Delhi Nagrik Sehkari Bank Ltd., Bhajanpura, Delhi. It has been stated that on receiving the legal notice on 20.07.07, the defendant became shocked to know that in the said legal notice the plaintiff has claimed himself to be the owner of the suit property and had demanded arrears of rent from the defendant. The defendant and his son namely Ram Kishore have already filed a suit for declaration, mandatory and permanent injunction against the plaintiff which is pending adjudication. In the said suit, the plaintiff has sought the relief that the signed blank papers of the defendant be declared null and void, defendant be handed over the property documents, three blank cheques and the plaintiff be restrained from dispossessing the defendant from the suit property. The defendant has denied the execution of registered GPA, Will, Receipt and agreement to sell by is wife in favour of plaintiff. The defendant has also denied the execution of the rent agreements dt. 24.04.04 and 24.03.06. The defendant had averred that as his wife never executed any document in favour of the plaintiff, the question of payment of arrears of rent and handing over the possession of the suit property to be plaintiff does not arise. The defendant has prayed for the dismissal of the present suit with heavy cost.
(iii) Replication was duly filed by plaintiff. Contrary averments were denied whereas plaint averments were reiterated as true and correct.
RCA No. 43/14 page 4 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
(iv) In view of order dated 25.02.09, following issues were framed by Ld. Trial Court :
(a) Whether defendant is the tenant of plaintiff ? OPP.
(b) If Issue No. 1 is decided in affirmative, whether rate of rent of Rs. 5,000/ per month ? OPP.
( c) Whether the plaintiff is entitled for decree of possession, as claimed ? OPP.
(d) Whether the plaintiff is entitled for recovery of amount, as claimed ? OPP.
(e) Whether the suit has not been properly valued for the purpose of proper court fees and jurisdiction ? OPD.
(f) Relief.
3. The appellant has preferred the instant appeal on the ground that the impugned judgment and decree dated 27.08.2013 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 and the suit was filed by the respondent to grab the property. It is further mentioned that the respondent never purchased the suit property nor came in possession as owner; the possession was never handed over to the respondent. The appellant further mentioned that the suit property was never RCA No. 43/14 page 5 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. sold and the respondent never became the owner of the suit property, the suit for possession, mesne profits/damages filed by the respondent was not maintainable; the respondent has no locus standi to file the suit. The Ld. Trial Court failed to appreciate the facts in property perspective and reached to wrong conclusion; the Ld. Trial Judge has not applied his mind and disposed off the suits without following due process of law and considering the relevant aspects. The suit for possession was not filed on the basis of title was wrongly held by the Ld. Trial Judge accordingly the appeal is filed praying to set aside the impugned judgment and decree.
4. The respondent did not wish to file reply to the appeals.
5. I have heard the Ld. Counsel for the appellant and respondent.
6. Having drawn my attention to the pleadings of the parties, testimony of the witnesses and materials on record, it is submitted by Ld. Counsel for the appellant that the respondent never purchased the suit property and the documents relied by the respondent in support of his owner ship have no value in the eyes of law. It is further argued that the appellant is the owner of the suit property, the impugned judgment and decree is not sustainable in law being passed without application of judicial mind and prayed to allow the appeal. The Ld. Counsel for the appellant relied upon the judgment of Hon'ble Supreme Court in Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr.
7. The Ld. Counsel for the respondent on the other hand supported the impugned judgment and decree and argued that the appeal filed by the appellant RCA No. 43/14 page 6 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. is not maintainable and is filed only to delay the legal proceedings. The Ld. Counsel for the respondent prayed to dismiss the appeal with heavy cost.
8. I have given my thoughtful considerations to the submissions made on behalf of the parties and gone through the trial court records.
9. 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 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 RCA No. 43/14 page 7 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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. 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. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn. In view of this legal position of the Evidence Act, it is RCA No. 43/14 page 8 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. clear that it is for the appellant to prove that the appellant is the owner and the respondent have no right, title or interest in the suit property. The appellant has further to show that respondent is merely tenant in possession of the suit property. The onus to prove the issues regarding the respondent being tenant and entitlement of the relief prayed in the suit was also on the plaintiff/respondent.
11. There is no dispute between the parties that wife of the appellant Smt. Jai Devi was the owner of the suit property. The plaintiff claimed that the suit property was purchased by him from Smt. Jai Devi and after taking possession, the appellant was inducted as tenant. The documents of purchase is placed on record and proved by the plaintiff during evidence. The execution of rent agreement between the parties as well as the execution of the property documents by Smt. Jai Devi in favour of the plaintiff was also proved in view of the testimony of PW1/plaintiff and PW4 i.e. witness from subregistrar office. The defendant had denied the execution of any such document by his wife or any landlord and tenant relationship. The Ld. Counsel for the appellant further vehemently argued that on the basis of the documents the plaintiff even otherwise cannot be considered as owner and reliance is placed upon the judgment title Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana VI (2011) SLT 494. This court does not find itself in consonance with the arguments of Ld. Counsel for appellant.
12. The evidence of the parties led before Ld. Trial Court was somehow on the similar lines as contended in the plaint. The signature of the appellant is RCA No. 43/14 page 9 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. admitted on the rent agreement Ex. PW1/G and no steps was taken by the appellant regarding obtaining his blank signature on any such documents. It appears that the main issue before the Ld. Trial Court to be adjudicated remained as to whether the respondent has become the owner of the suit property ? This question appears mainly relating to law.
13. The respondent claimed to have purchased the suit property and derived his title and received possession. 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 RCA No. 43/14 page 10 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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 transfer can be ascertained with reasonable certainty.
RCA No. 43/14 page 11 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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."
RCA No. 43/14 page 12 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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. As held in AIR 1969, SC 1316, the documents of which registration is necessary RCA No. 43/14 page 13 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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."
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) in this respect as held, the documents of title RCA No. 43/14 page 14 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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 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 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 RCA No. 43/14 page 15 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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 full owner of the property till it RCA No. 43/14 page 16 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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.
RCA No. 43/14 page 17 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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 the said deed, the same shall be read as if done by the donor. A RCA No. 43/14 page 18 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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 directing distribution of his estate upon his death. It is RCA No. 43/14 page 19 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
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 or made the basis for mutations in Municipal or Revenue Records. What is stated RCA No. 43/14 page 20 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. 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 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 RCA No. 43/14 page 21 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. Will.
18. 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. 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 respondent No. 1 by appellant.
19. 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 RCA No. 43/14 page 22 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. right but also by having a better title.
In the present case respondent has claimed title on the basis of GPA, Agreement to Sell, Payment receipt, Affidavit and the Will and the GPA as well as Will is registered. From the record it is also proved that the possession of the suit property was handed over and the rent agreement between the parties was executed vide Ex. PW1/G. 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. In this case the plaintiff proved the documents in support of his contentions. The defendant/appellant on the other hand failed to discharge the onus and rebut the evidence regarding the ownership of the plaintiff and his tenancy. This court does not find any illegality or infirmity in the impugned judgment in this respect and the plaintiff is accordingly entitled for the relief of possession as prayed in the suit along with the arrears of rent.
20. The Ld. Counsel for the appellant argued that the grant of decree regarding the mesne profits @ Rs. 5,000/ p. m. have no basis. This contention of Ld. Counsel for the appellant appears to have no merit.
In the case of Arya Orphanage Vs. Mr. Alfred G Wuerfel reported in MANU/DE/2446/2008, CS (OS) No. 2439/2001 decided on 27.11.2008, the RCA No. 43/14 page 23 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. Hon'ble High Court of Delhi was pleased to hold that mesne profits are to be determined on account wrongful continuation of occupation after termination of tenancy / license and the same should be computed at the rate which the property might have fetched at the relevant time.
In the case of M.C. Aggarawal Vs. Sahara India and Ors. reported in 183 (2011)DLT 105, the Hon'ble High Court of Delhi was pleased to reiterate the same principle and held that while claiming damages / mesne profits, a plaintiff has to prove the market rate of rent of similar properties in the locality.
21. The plaintiff has prayed for the mesne profits from the defendants for using/enjoying the suit property unauthorizedly after termination of the license. In the case of M.C. Aggarawal Vs. Sahara India (Supra), the Hon'ble High Court has been pleased to hold that in such circumstances, the court could take resort to the provisions of Section 57 and 114 of the Indian Evidence Act and grant appropriate relief. In the present matter the suit property consists of ground, first and second floor having two rooms on each floor along with veranda as shown in the site plan Ex. PW1/F. The suit property is being used for residential purpose. In the opinion of this Court, prayer for damages / mesne profits at the rate of Rs.5,000/ per month in respect of the portion in possession of the appellant/defendant is neither unreasonable nor unjustified. I am, therefore, inclined to grant damages / use and occupation charges to the plaintiff as held by Ld. Trial Judge and this Court does not find any illegality or infirmity in this respect.
RCA No. 43/14 page 24 of 25 Ram Ashrey V/s Sulekh Chand Singhal Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
22. 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 learned trial court. I do not find any flaw or infirmity in the impugned order dated 27.08.2013 which is well reasoned and passed in accordance with the provisions of law. The impugned judgment and decree whereby the suit of the plaintiff/respondent was decreed/allowed does not suffer from any illegality or infirmity and appears to be sustainable in view of the aforesaid discussions and findings. The impugned judgment 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.
23. TCR be sent back to the concerned Court along with a copy of this judgment.
24. Decree sheet be drawn accordingly.
25. Appeal file be consigned to the Record Room.
Announced in open Court on this 10th day of December, 2014 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
RCA No. 43/14 page 25 of 25 Ram Ashrey V/s Sulekh Chand Singhal