Smt. Janak Vohra vs Dda
2002 Latest Caselaw 1678 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner has field this petition for mutation in her favor since the petitioner claims to be the only legal heir of the deceased father in whose name the flat stands registered and the Will is stated to have been executed by the late father on 7.3.93 in favor of the petitioner.

2. Learned counsel for the respondent has produced the record and states that the respondent has received two applications. The first application is by the petitioner for mutation of the flat in her name and the second application is for conversion into freehold of the flat by the brother of the deceased owner who is the Uncle of the petitioner and who claims title on the basis of an agreement to sell coupled with power of attorney of 1997.

3. In the counter affidavit filed by the respondent it is further stated that the copy of the Will dated 7.3.1996 submitted by the petitioner mentions the factum of the execution of the earlier Will by the original allottee in favor of the Smt. Kanta Nayar wife of Sh. S.K. Nayar who is the brother of the original allottee being the father of the petitioner. In terms of the Will dated 7.3.1996, the earlier Will is sought to be revoked though the date of the earlier Will is not mentioned. The agreement to sell in favor of Sh. S.K. Nayar is dated 12.4.1997. In view of this fact both the parties were asked to appear in the office of the respondents with the original documents and since it was not possible to sort out the issue both parties were advised to have their disputes decided by the appropriate court of law.

4. It is thus the contention of learned counsel for the respondent as set out in the counter affidavit that on the one hand a little is sought to be set up by Sh. S.K. Nayar on the basis of the agreement to sell for consideration and on the other by the petitioner as being the direct descended as also in terms of the Will executed in her favor. It is thus stated that respondent is not competent to decide the title of the property in question. It is also stated that as per policy guidelines of the respondent for conversion from lease-hold to free-hold in case of disputes between the allottees and the attorney holder application for grant of free hold rights is to be entertained only after the disputes are settled between the parties and till such time no mutation or conversion can be entertained. It is in view thereof that neither the conversion application of Sh. S.K. Nayar is being entertained nor the mutation in the name of the petitioner till the matter is settled by a competent court.

5. I have considered the submissions advanced by learned counsel for the parties.

6. I have perused the original records produced before me by the respondents which show that an agreement to sell for consideration dated 12.4.1977 has been propounded by Sh. S.K. Nayar. The agreement also provides that the same is irrevocable and binding on the parties and that the possession of the flat has been delivered to Sh. S.K. Nayar who will deposit the remaining monthly Installments in terms of the demand of the DDA. This agreement to sell is coupled with the GPA executed by the original allottee in favor of Sh. S.K. Nayar. It is also relevant to note that even the Will being set forth by the petitioner refers to an earlier Will of the deceased allottee in favor of the wife of Sh. Nayar. These documents clearly show that the claim of Sh. Nayar cannot be brushed aside and has to be adjudicated by a competent court. I am thus unable to accept the contention of learned senior counsel for the petitioner that on the demise of the deceased allottee the power of attorney in favor of Sh. Nayar comes to an end and thus Sh. Nayar has no rights in the property. The power of attorney is for consideration as is apparent from the agreement to sell.

7. It may also be noted that no copies of the documents of title being allotment letter, possession letter and possession slip etc. have been filed along with the writ petition.

8. The Division Bench of this Court in Asha M Jain v. Canara Bank and Ors. has held that a GPA, SPA and Will coupled with the agreement to sell creates interest in the property since the nature of these transactions are different from a mere agreement to sell. The Division Bench also referred to the earlier decisions of this court in Harbans Singh v. Shanti Devi 1977 RLR 487 where it was held that in such a nature of transaction of agreement to sell coupled with irrevocable power of attorney the same cannot be cancelled or revoked on account of interest or right created in the subject matter so as to prejudice the said interest. The same was the view in Shikha Properties (P) Ltd. v. S. Bhagwant Singh and Ors. 74 (1998) DLT 173. In Kuldeep Singh v. Surinder Singh 76 (1998) DLT 236 learned Single Judge of this court observed that the power of attorney sales in Delhi is the common mode of sale of immovable property to get over the legislative restrictions of transfer of properties. The learned Single Judge relied upon the judgment of Supreme Court in S. Chattanatha Karagalar v. Central Bank of India Limited and Ors. AIR 1965 SC 1856 and Smt. Indira Kaur and Ors. v. Shri Sheo Lal Kapoor where it was held that in order to arrive at a real nature of transaction, it is open to the Court to look into the attendant and surrounding circumstances and contemporary documents.

9. The aforesaid facts show that there is dispute of title between the petitioner and her Uncle. In view of the conflicting claims of title it would not be possible for the respondent to mutate the property in the name of the petitioner or to convert it into free hold in the name of the Uncle. The dispute of title have to be adjudicated in appropriate civil proceedings and in view thereof no direction can be issued to the respondent to mutate the property in the name of the petitioner. It is open to the petitioner to approach the Civil court for adjudication of the title dispute or for any other relief including the claim of the mutation.

10. Writ petition stands disposed of.