Delhi High Court
Vimala Mukandan vs T Gopi Krishna Prasad Gopi on 18 July, 2011
Author: J.R. Midha
2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.307/2010
% Date of decision: 18th July, 2011
VIMALA MUKANDAN ..... Appellant
Through : Ms. Priya Kumar, Adv.
versus
T GOPI KRISHNA PRASAD GOPI ..... Respondent
Through : Mr. Mir Akhtar Hussain, Adv.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether Reporters of Local papers may NO
be allowed to see the Judgment?
2. To be referred to the Reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
JUDGMENT (ORAL)
1. The appellant filed a suit for possession, recovery of
damages and mesne profits against the respondent relating to
flat bearing No.1/13, Naraina Vihar, New Delhi-110028. The
case set up by the appellant before the learned Trial Court was
that the appellant purchased the suit property vide agreement
to sell, general power of attorney, receipt and Will, all dated
20th August, 1992 from Gopal Krishna Shanbhog. The
respondent is the younger brother of the appellant and the
appellant permitted the respondent as well as her mother to
stay in the suit property. However, the respondent ill treated
his mother whereupon the plaintiff filed a Habeas Corpus
Petition bearing No.625/1999 before this Court and by order
dated 14th July, 1999, mother of the parties was produced
before the Court and sent to the Nari Niketan. Vide notice
dated 11th April, 2000, the appellant terminated the licence of
the defendant and called upon the defendant to vacate the suit
property. The respondent defended the suit on various
grounds inter alia that the suit property was purchased Benami
in the name of the appellant from the joint family funds.
2. The following issues were framed by the learned Trial
Court on 21st August, 2004:-
"1. Whether the plaintiff is guilty of breach
of trust and used the family money to by the
suit property in her name and is not the
absolute owner thereof? OPD.
2. Whether the defendant is a co-owner
or a mere licencee in the suit property? OPD.
3. Whether the plaintiff is entitled to the
possession of the suit premises together
with damages and mesne profits? If so, at
what rate and from when?
4. Relief."
2. The onus of issues No.1 and 2 was on the respondent.
However, the respondent did not lead any evidence to prove
the said issues. With respect to issue No.3, the learned Trial
Court held that the appellant had no locus standi to file the
suit. The learned Trial Court further held that though the
original agreement to sell, receipt, general power of attorney
and Will have been duly proved by the appellant as Ex.P-1, P-2,
P-3 and P-6 but the agreement to sell and the receipt were
held to be invalid as being unregistered.
3. The learned counsel for the appellant submits that the
appellant is the owner of the suit property on the basis of
irrevocable registered power of attorney coupled with the sale
agreement and receipt. It is submitted that the aforesaid
power of attorney is irrevocable under Section 202 of the
Contract Act. The learned counsel for the appellant refers to
and relies upon the following judgments:
3.1. In the case of Asha M. Jain v. Canara Bank, 94 (2001)
DLT 841 (DB), the Division Bench of this Court held as under:-
"16. We have considered this aspect taking
into consideration these judgments and we
are in agreement with the view that the
concept of power of attorney sales have
been recognised as a mode of transaction.
These transactions are different from mere
agreement to sell since such transactions
are accompanied with other documents
including General Power of Attorney,
Special Power of Attorney and Will and
affidavits and full consideration is paid. This
is what also has happened in the present
case. There are two General Power of
Attorneys, Special Power of Attorney and
the Will apart from the agreement to sell.
One of the General Power of Attorney is
registered. Further the Will is also
registered. Thus there are two
contemporaneous documents which are
registered and they lend authenticity to the
date of execution of documents. The power
of attorneys' are for consideration within
the meaning of Section 202 of the
Contract Act, 1872. Thus there is no doubt
that interest has been created in the
property in favor of the appellant.
Possession is also been handed over. Thus
the provisions of Section 53A of the
Transfer of Property Act would also come
into play."
3.2. In Sparsh Builders Pvt. Ltd. v. Maharishi Ayurveda
Products Pvt. Ltd., 163 (2009) DLT 411, this Court held as
under:
"25. Turning to the facts in the present
case, it is not in dispute that several of the
documents through which the Plaintiff
claims to have purchased the suit property
from the Defendant are registered
documents. Prior to the amendment to the
Delhi Stamp Act, 2008, the agreement to
sell, a leasehold property along with other
documents like GPA, Will, letter of
possession etc., were not being
compulsorily registered. An amendment
brought about to the Delhi Stamp Act now
envisages that stamp duty on 90 per cent
of the sale consideration should be paid for
registration or the agreement to sell, the
GPA, Will etc. In the instant case, therefore,
the agreement to sell dated 30th December
2004, GPA of the same date, the receipt,
Will, possession letter being registered
documents, cannot be brushed aside as if
they do not constitute documents of title.
Likewise the lease agreement is also a
registered document. The Defendant
assailing the contents of such documents
while admitting the signatures thereon, will
have a very heavy burden to discharge in
order to prove that the said documents
were in fact written up later on blank stamp
papers got signed by the Defendant.
Intention of parties has to be ascertained
from the documents themselves"
4. The learned counsel for the appellant also refers to and
relies upon the judgments of Seth Loon Karan v. I.E. John,
AIR 1969 SC 73, Harbans Singh v. Shanti Devi, 1977 RLR
487, Prem Raj v. Babu Ram, 1991 RLR 458, Ramesh
Mohan v. Raj Krishan, 1984 PLR 211, H.L. Malhotra v.
Nanak Jai Singhani, 1986 RLR 89, Shikha Properties (P)
Ltd. v. S. Bhagwant Singh & Others, 74 (1998) DLT 113
and Kuldip Singh Suri v. Surinder Singh Kalra, 76 (1998)
DLT 232.
5. The learned counsel for the appellant further submits
that there was no issue with respect to the authority of the
appellant to file a suit on the basis of the aforesaid documents
as well as the registration of the sale agreement. It is
submitted that the appellant being the owner of the suit
property was competent to institute the suit. It is further
submitted that the sale agreement was not compulsorily
registerable document at the relevant time.
6. In the facts and circumstances of this case, this Court is
of the opinion that the findings of the learned Trial Court are
contrary to the well settled law laid down in the aforesaid
judgments. The learned Trial Court gravely erred in holding
that the appellant had no authority to file a suit and that the
sale agreement and the receipt were invalid being
unregistered. The findings of the learned Trial Court are,
therefore, liable to be set aside.
7. In the facts and circumstances of this case, the appeal is
allowed and the judgment of the learned Trial Court is hereby
set aside. The case is remanded back to the learned Trial
Court for fresh adjudication.
8. The parties are directed to appear before the learned
Trial Court on 16th August, 2011 when the learned Trial Court
shall fix the date for hearing the final arguments on the basis
of the pleadings and evidence already on record.
9. The Trial Court record be returned back immediately
through a special messenger.
J.R. MIDHA, J
JULY 18, 2011
mk
