Delhi High Court
Wg. Cdr. (Retd.) Sh. Yeshvir Singh ... vs Dr. O. P. Kohli & Ors on 3 August, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 2128/2015
% 3rd August, 2015
WG. CDR. (RETD.) SH. YESHVIR SINGH TOMAR ..... Plaintiff
Through: Mr. Shakeel Sarwar Wani, Advocate
versus
DR. O. P. KOHLI & ORS ..... Defendants
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
I.A. No.14660/2015 (Exemption)
1. Exemption allowed subject to all just exceptions.
Application stands disposed of.
CS(OS) No. 2128/2015 & I.A. No.14659/2015 (Stay)
2. This is a suit for declaration and possession filed by the plaintiff in
which ownership rights are claimed in the suit property admeasuring 4
Bighas and 3 Biswas in Khasra Nos.1800/4 (0-14), 1802/1 (1-11), 1802/2 (1-
18) along with all super structures/house situated at DLF Farms in revenue
estate of Chattarpur, Tehsil Hauz Khas, New Delhi.
CS(OS) 2128/2015 Page 1 of 3
3. Plaintiff claims ownership rights on the basis of an Agreement to Sell,
Power of Attorney, Will etc. dated 06.11.2006. Admittedly, the document
being the Agreement to Sell is an unregistered document and does not bear
the requisite stamp duty under Article 23A of the Indian Stamp Act, 1899 as
applicable to Delhi.
4. By virtue of the amendment brought about to Section 53A of the
Transfer of Property Act, 1882 w.e.f 24.09.2001 by the Act 48 of 2001, an
Agreement to Sell in the nature of part performance cannot create rights
unless the agreement is registered and stamped at 90% of the value of the
sale deed as per Article 23A of the Schedule I of the Indian Stamp Act, 1899
as applicable to Delhi which was accordingly amended by the Act 48 of
2001.
5. In view of the above, since the Agreement to Sell in question is an
unregistered and unstamped Agreement to Sell, no rights can be claimed
under the same. What cannot be directly done cannot be indirectly done and
a power of attorney, merely because it is registered, will not confer rights in
the nature of ownership in the property. I may note that in fact a power of
attorney which effectively gives ownership rights of the suit property by
allowing the attorney to sell the immovable property by virtue of Article
CS(OS) 2128/2015 Page 2 of 3
48(f) of the Indian Stamp Act as applicable to Delhi will have to have the
same duty as a conveyance deed as per Article 23 of the Indian Stamp Act
for the amount of consideration.
6. In view of the aforesaid position, I put it to the counsel for the
plaintiff that why this Court should unnecessarily dismiss the present suit
and it would be preferable if a correct suit for specific performance be filed,
however, counsel for the plaintiff states that the case be decided on merits.
7. In view of the aforesaid settled position of law, this suit is not
maintainable by virtue of Section 53A of the Transfer of Property Act read
with the amended Article 23A of the Indian Stamp Act as applicable to
Delhi as the Agreement to Sell is unregistered and unstamped and the Power
of Attorney besides not entitling the plaintiff to indirectly achieve what
cannot be directly achieved is also not stamped on the value of the
conveyance deed as required by Article 48 (f) of the Indian Stamp Act as
applicable to Delhi.
8. The suit is accordingly dismissed. All the pending applications also
stand dismissed.
AUGUST 03, 2015 VALMIKI J. MEHTA, J.
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