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2014 DIGILAW 1444 (DEL)

Ashok Indoria v. Vidyawanti

2014-05-07

VALMIKI J. MEHTA

body2014
Valmiki J. Mehta, J. (Oral):-- 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 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. 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. v. 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:- “13. After hearing the arguments and going through the record, I found that respondent is claiming his right under the documents Ex.PW1/21 to Ex. PW1/28. These documents are agreement to sell un-registered, the receipt of Rs. 1,00,000/- Ex.PW1/22, GPA which is registered document Ex. PW1/23, affidavit Ex. PW1/25, indemnity bond Ex. PW1/25, SPA Ex. PW1/26, Will Ex. PW1/27, but the witness to this Will has not been examined, therefore it cannot be said to have been proved, even otherwise, the testator is alive, therefore, there is no question to rely upon this Will, the possession letter Ex.PW1/28. However, it is submitted that the possession was not delivered as in the plaint itself it is mentioned by the plaintiff that the possession was never delivered. The Supreme Court of India in case titled as Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana, (2012) 1 SCC 656 , it has already been held that on the basis of un-registered documents that is agreement to sell etc. and on the basis of Power of Attorney, the immovable property cannot be transferred and it does not confer any right, title on the purchasers. and on the basis of Power of Attorney, the immovable property cannot be transferred and it does not confer any right, title on the purchasers. However, Section 53A protects the right of the purchaser if the possession has been delivered to him, the condition which are required to be fulfilled before the purchaser can claim protection u/Section 53A as laid down by the Supreme Court in case titled FGP Ltd. v. Saleh Hooseini Doctor, (2009) 10 SCC 223 as under: Section 53-A of the Transfer of Property Act has certain ingredients and, in our judgment, those are :- (1) A contract to transfer immovable property; (2) The transfer should be for consideration; (3) the contract must be in writing; (4) it should be signed by or on behalf of the transferor; (5) the terms of the contract can be ascertained with reasonable certainty form the writing; (6) the transferee takes possession of the whole or part of the property or if already in possession continues in possession; (7) such taking of or continuance in possession should be in part performance of the contract; (8) the transferee should do some act in furtherance of the contract; and (9) he should have performed, or be willing to perform, his part of the contract. It is well settled principle of law that Section 53A can be used only as the defence and not to institute a suit to claim right. The Supreme Court of India in case titled Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi (dead) by Lrs, Air 2002 Supreme Court 960 wherein it was held: “It is open to defendant in a suit for recovery of possession brought by the transferor to take a plea in defence of part performance of the contract ot protect his possession, though, he may not been able to enforce that right through a suit or action”. In the present case, according to the evidence and documents, it is not clear as to what was the consideration amount payable by the plaintiff to the defendant as Ex. PW1/21, the agreement to sell is silent about this aspect and is also silent as to how the payment is the be made. According to the receipt,Rs. 1,00,000/- was paid to plaintiff when appeared in the witness box at one place stated that he purchased a property for consideration of Rs. PW1/21, the agreement to sell is silent about this aspect and is also silent as to how the payment is the be made. According to the receipt,Rs. 1,00,000/- was paid to plaintiff when appeared in the witness box at one place stated that he purchased a property for consideration of Rs. 2,50,000/- which he has paid by wasy of cheque of Rs. 1,50,000/-but on the same day at other place he stated that he paid Rs. 3,50,000/- to the defendant towards consideration, but there is no such evidence that he has paid this amount. Even otherwise, to fall within the purview of Section 53-A, it was required that he takes the possession of the property which admittedly was not delivered. Therefore, protection u/S 53A of the Transfer of Property Act is not available to him for that purpose and even otherwise as held by the apex court it can be used only as a defence and cannot be used to claim right. 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 DW2 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. 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 appellant-defendant 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. 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. 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. 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. 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. 9. The first appellate court has also again committed an illegality and perversity in holding that there is a confusion on the aspect of consideration because the receipt Ex.PW1/22 categorically mentions the receipt of Rs. 1 lac by the respondent/defendant. Though the appellant plaintiff claimed to have paid Rs. 3 ½ lacs however that cannot create doubt for negating payment of consideration. Since there is no doubt as to the payment of consideration, consequently disbelieving, the set of documents Ex.PW1/21 to Ex.PW1/28 is clearly a perverse finding merely on account of some confusion existing as regards consideration and this cannot take away the fact that the documents Ex.Pw1/21 to Ex.PW1/28 are admittedly signed by the respondent/defendant and also contain the signatures as a witness of the son-in-law of the respondent-defendant. Also, if there was any doubt that consideration was not received by the respondent-defendant under the documents dated 31.1.2001, respondent-defendant would have questioned the documents if not immediately after 31.1.2001, then in a reasonable period thereafter, but admittedly, no challenge ever was laid by the respondent/defendant to the documents dated 31.1.2001 till the filing of the subject suit in November 2003. Therefore, merely because there is some confusion with respect to consideration cannot take away the fact that the documents Ex.PW1/21 to Ex.PW1/28 were executed by respondent-defendant in favour of the appellant-plaintiff transferring the rights in the suit property to the appellant plaintiff. 10. In view of the above, all the substantial questions of law are answered in favour of the appellant-plaintiff and against the respondent-defendant. 10. In view of the above, all the substantial questions of law are answered in favour of the appellant-plaintiff and against the respondent-defendant. The judgment of the first appellate court dated 11.3.2013 is set aside and the judgment of the trial court dated 20.2.2008 will stand restored and the appellant-plaintiff will be entitled to possession of the suit property as also the damages as granted by the relevant paragraphs of the trial court in the judgment dated 20.2.2008. Parties are left to bear their own costs.