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2025 (9) TMI 254
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....onvenience, the parties are referred as per their rank before the Trial Court. FACTUAL MATRIX: 3. Facts necessary for adjudication of the controversy on hand are as follows: 4. The suit property bearing No. 563, at Ambedkar Basti near Balmiki Gate, Delhi - 110053 was originally owned by Shri. Kundan Lal, father of the Appellant/Defendant No. 1 and Respondent No. 1/Plaintiff. The plaintiff claims that he had acquired title to the suit property from his father, Shri. Kundan Lal by virtue of a General Power of Attorney, Agreement to Sell, Affidavit, and a Receipt. He also claimed that his father had executed a registered Will dated 16.05.1996 bequeathing the suit schedule property in his favour. He further claims that defendant No. 1 has been living in the suit property as a licensee and after purchase of the suit property by the plaintiff, the defendant No. 1 was residing in the suit property as a mere trespasser. He further claims that in order to gain wrongfully, the defendant No. 1 sold half the portion of the suit property to the defendant No. 2, who is the Respondent No. 2 before us. Hence, the plaintiff filed a suit against the defendant No.1 and defendant No. 2 for th....
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....itle of ownership conferred merely on the basis of Agreement to Sell, GPA, Affidavit, Receipt, Will etc. without there being any possession thereof. • That the original title deeds of suit schedule property are in possession of the defendant No.1. • That the Will has not been proved in accordance with law. • Section 53A of the Transfer of Property Act is not attracted if the possession of the property is not delivered. • That Will is not an instrument of sale under Section 54 of Transfer of Property Act. As per Section 54, immovable property can be sold by a registered instrument only. • That the alleged Attesting Witnesses PW-3 and PW-4 could not prove the execution of the documents filed by the plaintiff such as GPA, Agreement to Sell, Receipt, Will as required by Section 3 of Transfer of Property Act, Section 68 of Indian Evidence Act and Section 63 of Indian Succession Act. • That the Courts below have failed to appreciate that in the previous suit which is OS No. 294/1996 the plaintiff himself admitted in his replication filed on 12.10.1996 that the father, Shri Kundan Lal is owner of the suit proper....
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....ey dated 16.05.1996, affidavit dated 16.05.1996, receipt dated 16.05.1996, and a registered Will dated 16.05.1996. Admittedly, no sale deed was executed in favour of the plaintiff by his father. Hence, this court is called upon to see whether these documents confer a valid title on him. In order to ascertain the same, it is essential for us to expound on the position of law with respect to the same. Agreement of Sale 12. The Transfer of immovable property inter vivos is governed by the Transfer of Property Act, 1882 (hereinafter referred to as "the TP Act"). Section 5 of the said TP Act defines "transfer of property" as follows: "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 or to himself and one or more other living persons and 'to transfer property' is to perform such act." 13. The TP Act envisages five different modes for transferring a property but for the purpose of the present appeal we are only concerned with one of the modes i.e., by way of "Sale" and the same is dealt under section 54 of....
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....ds executing a sale deed, the buyer can proceed to file a suit for specific performance of the contract. 16. The scope of an agreement for sale has been highlighted by this court in the case of Suraj Lamp and Industries Private Limited (2) through Director v. State of Haryana and Another ((2012) 1 SCC 656), wherein this Court observed that "16. Section 54 of the 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 [(1977) 3 SCC 247] observed: "32. 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 Ram Baran Prasad v. Ram Mohit Hazra [AIR 1967 SC 744]). The fiduciary character of the personal obligation created by a contract for sale is recognised 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 owner....
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....ntiff to seek for specific performance for the execution of a sale deed and does not create an interest or charge on the suit property. General Power of Attorney 18. A power of attorney is a 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. It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. A General Power of Attorney does not ipso facto constitute an instrument of transfer of an immovable property even where some clauses are introduced in it, holding it to be irrevocable or authorizing the attorney holder to effect sale of the immovable property on behalf of the grantor. It would not ipso facto change the character of the document transforming it into a conveyance deed. (Dr. Poonam Pradhan Saxena, Property Law, Third Edition, 2017 (Lexis Nexis), p. 66) 19. A power of attorney is not a sale. A sale involves transfer of all the rights in the property in favour of the transferee but a power of attorney simply authorises the grantee to do certain acts with respect to the property including i....
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....does not have the effect of transferring title to the grantee." 22. Having discussed the position of law, it is essential to peruse the recitals of the General Power of Attorney, which is on record and pressed into service by plaintiff. The said GPA merely authorises the grantee to manage the affairs of the suit property, which includes the power to let out the property on rent, and create a mortgage of the same, etc. However, it is silent on the aspect of conveyance. Be that as it may. The recitals of the power of attorney would indicate the intent of the grantor is to limit the powers of the grantee to only manage the suit property, and not to create any interest in his favour, which is in consonance with the settled position of law as discussed above that a power of attorney is an agency by which the agent derives the authority or the right to enter into transactions on behalf of the principal. Even if we accept the validity of the Power of Attorney in favour of the plaintiff, still it does not confer a valid title on him with respect to the suit property. Will 23. The third document that the plaintiff has relied upon to claim his title over the property is a Registered....
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....or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by....
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....orm of attestation is necessary; (c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures; (d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required; 10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; 10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator; 10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with; 10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to suppl....
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....ll, has gone on a different tangent and has erroneously held that the requirement of examining the attesting witnesses springs into action only in cases of disputes between legal heirs. Such an observation is quite contrary to law, for Section 68 of the Evidence Act makes it mandatory to examine at least one of the attesting witnesses of the Will. Mere fact that the Will was registered will not grant validity to the document. Besides that, the will propounded by plaintiff is surrounded with suspicious circumstances, in as much as the alleged propounder of the Will, Lt. Sh. Kundan Lal, had four children, including the plaintiff and the defendant No. 1. There is not even a whisper of reasoning as to why the propounder of the Will choose to exclude other three children from the bequest, and whether any other properties or assets were given to them. It is highly unlikely that a father would grant his entire property to one of his children, at the cost of three others, without there being any evidence of estrangement between the father and the children. This suspicious circumstance surrounding the will has not been removed by the plaintiff either. Hence, for these cumulative reasons, th....
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....ting and the transferee has in part performance of the contract taken the possession of the property or part thereof, then notwithstanding that the transfer has not been completed in the manner prescribed by law, the transferor will be debarred from taking the possession of the property. The essential conditions for invoking the doctrine of part-performance as envisaged u/s 53A of TP Act have been enunciated by this Court in the case of Nathulal v. Phoolchand ((1969) 3 SCC 120) thus: "9. The conditions necessary for making out the defence of part performance to an action in ejectment by the owner are: (1) that the transferor has contracted 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; (2) that 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; (3) that the transferee has done some act in furtherance of the contract; and (....