Anurag Parashar v. Vidyawanti

1. This second appeal is filed under Section 100 CPC impugning the judgment of the first appellate court dated 11.3.2013 by which the first appellate court set aside the judgment of the trial court dated 20.2.2008. Trial court by the judgment dated 20.2.2008 had decreed the suit filed by the appellant-plaintiff for possession of the suit property being DDA Flat NO. 139, LIG (Ground Floor), B-Block, Pocket-2, Sector 17, Rohini, Delhi-85. Trial court also granted damages at Rs.2000/- per month w.e.f 2.9.2003 till the premises are vacated by the respondent/defendant. In view of the 2014:DHC:2437 judgment of the first appellate court, the suit for possession and damages has been dismissed.

2. The facts of the case as pleaded by the appellant-plaintiff were that the suit property was originally allotted to one Sh. Ashok Kumar son of Sh. T.S.Thakur by the DDA. Sh. Ashok Kumar transferred rights in the suit property to Smt. Shanno Devi by means of usual documents being the agreement to sell, power of attorney etc. Smt. Shanno Devi sold the suit property to the respondent/defendant and the appellant –plaintiff purchased the suit property from the respondent/defendant on 31.1.2001 by means of the usual documents being the agreement to sell, power of attorney, receipt etc.

3. Respondent-defendant contested the suit denying that she had transferred the suit property to the appellant-plaintiff and that the appellantplaintiff in connivance with her son-in-law Sh. Vimal Vohra who had got the thumb impressions of the appellant on some papers on the pretext of giving loan. It was pleaded that nature of the documents was not disclosed when thumb impressions were taken, and which documents dated 31.1.2001 are now being used by the appellant-plaintiff to claim ownership of the suit property.

4. Appellant-plaintiff proved on record the documents by which the rights in the suit property were transferred to her by the respondent/defendant and which are exhibited as Ex.PW1/21 to Ex.PW1/28. Appellant-plaintiff also had in her possession the entire chain of original documents right from Ashok Kumar through Shanno Devi through the respondent-defendant and to the appellant-plaintiff, and all these original documents have been filed and proved before the trial court as Ex.PW1/1 to Ex.PW1/20.

5. The first appellate court has dismissed the suit by arriving at two conclusions. Firstly, it is concluded that the documents being the agreement to sell, power of attorney etc. Ex.PW1/21 to Ex.PW1/28 are unregistered documents and therefore hit by the judgment of the Supreme Court in the case of Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana, (2012) 1 SCC 656, and consequently no rights came to the appellant-plaintiff by these documents. The second reason for dismissing the suit was that what is the amount of consideration paid to the respondent-defendant is not clear because a consideration of Rs. 1 lac was stated in the documents Ex.PW1/21 to Ex.PW1/28 but the appellant-plaintiff stated in his cross-examination that he had paid consideration of Rs.3,50,000/- to the respondent/defendant. The relevant observations of the first appellate court are contained in paras 13 and 14 of the impugned judgment and which read as under:-

14. In the present case, there is an argument to sell, the same is un-registered, no sale documents has been executed in favour of the plaintiff. The defendant has though alleged that the documents were not executed but DW[2] proved the execution of the documents and that the nature of the documents executed is the same as agreed but it is settled law that the agreement to sell by itself does not confer any title in the property. It was for the plaintiff to file a suit for specific performance which has not been filed. According to the well settled law, he should have filed the suit for Specific Performance firstly to get the title over the property and then seek the possession. In order to succeed in a suit for possession the person must prove that he has better title than the one who is claiming possession. Admittedly, in the present case, appellant is the owner. She entered into the agreement to sell with the respondent/plaintiff and also executed the other documents i.e. Power of Attorney, Special Power of Attorney, receipt etc. but those documents does not transfer the title of immovable property in the name of the plaintiff and hence he is not having the better title than the respondent. Under the circumstances, in view of the settled law he should have filed the suit for Specific Performance and not simply the suit for possession. Even otherwise, as there is no evidence of part performance and even if for the sake of arguments that is presumed right u/S 53A can be used as defence and not to claim the right. In view of the above discussion the decree passed by the Trial Court is not sustainable. Accordingly, the Trial Court Order is set aside. Appeal is allowed.”

6. The following substantial questions of law are framed for disposal of this regular second appeal:- “(i) Whether the first appellate court has committed an illegality and perversity in holding that the documents executed by the respondent-defendant in favour of the appellant-plaintiff dated 31.1.2001 are hit by the judgment of the Supreme Court in the case of Suraj Lamps Industries (supra)?

(ii) Whether the first appellate court has committed a grave illegality and perversity in ignoring the fact that the documents Ex.PW1/21 to Ex.PW1/28 executed by respondent-defendant in favour of the appellantdefendant did contain one document being a receipt showing that respondent/defendant had received a sum of Rs.[1] lac from the appellant-plaintiff and hence consideration had flowed to the respondent-defendant and the first appellate court wrongly holds the issue of consideration against the appellant-plaintiff?”

7. So far as the first aspect that whether the documents dated 31.1.2001 which have been executed by the respondent-defendant in favour of the appellant-plaintiff are hit by the ratio of the judgment of the Supreme Court in the case of Suraj Lamps Industries (supra)is concerned, in my opinion, the first appellate court has completely misread the judgment of the Supreme Court in the case of Suraj Lamps Industries (supra). The judgment of Suraj Lamps Industries (supra) by its relevant paragraphs protects rights which have been created by Section 53-Aof the Transfer of Property Act, 1882 (containing the doctrine of part performance) and Section 202 of the Contract Act, 1872 (providing for irrevocability of a general power of attorney executed for consideration). Supreme Court also protects the rights which are created by a Will and which operate on the death of the executant. The relevant paras of the judgment of the Supreme Court in the case of Suraj Lamps Industries (supra) are as under:- “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 Sections 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 immoveable 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 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: 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-of- 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 the 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 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.

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 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 transactions known as GPA sales.” (emphasis added)

8. It may be noted that Section 53-A of the Transfer of Property Act, 1882 was amended by Act 48 of 2001 which came into operation from 24.09.2001. Prior to this amendment there was no requirement of an agreement to sell in the nature of part performance to be stamped and registered. Therefore, once the documents being the agreement to sell, power of attorney etc are executed prior to 24.9.2001, the same can always be looked into for the purpose of Section 53-A of Transfer of Property Act and Section 202 of the Contract Act, although these documents are not stamped and registered, and which requirements came into existence only after 24.9.2001. Accordingly, it is held that the first appellate court has committed a clear illegality and perversity in holding that the documents dated 31.1.2001 executed by the respondent-defendant in favour of the appellant-plaintiff could not be looked into.