Delhi High Court
Smt. Gurmeet Kaur vs Shri Harbhajan Singh And Anr. on 25 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.155/2016
% Reserved on: 22nd May, 2017
Pronounced on: 25th May, 2017
SMT. GURMEET KAUR ..... Appellant
Through: Mr. Rakesh Dahiya, Advocate
with Mr. Brig. M.L. Khatter,
Advocate.
versus
SHRI HARBHAJAN SINGH AND ANR. ..... Respondents
Through: Ch. Rabindra Singh, Advocate
for Respondent no.2 with
Respondent no.2 in person.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal under Section 100 of Code
of Civil Procedure, 1908 (CPC) is filed by the legal heir of the plaintiff
Sh. Sarwan Singh impugning the concurrent judgments of the courts
below; of the Trial Court dated 10.4.2008 and the First Appellate Court
dated 29.1.2016; by which the suit for possession and damages filed by
the plaintiff has been dismissed. Since the plaintiff expired pendente
lite and was now substituted by his legal heir, reference to the
appellant/plaintiff as per the context will be reference to the present
legal heir or the original plaintiff.
2. The subject suit for possession and damages was filed by
the appellant/plaintiff for possession of a portion of flat bearing no.C-
3/132, Plot no.25, Saraswati Kunj, Patparganj, IP Extension, Delhi.
The suit flat comprises of three bed rooms, two bathrooms, one
drawing room, balcony and kitchen. The portion in occupation of the
defendants/respondents was shown as in blue color in the site plan filed
with the plaint. The respondent no.1/defendant no.1 is the son of the
original plaintiff and the respondent no.2/defendant no.2 is the wife of
the respondent no.1/defendant no.1 i.e respondent no.2/defendant no.2
is the daughter-in-law of the original plaintiff Sh. Sarwan Singh.
3. The case set out in the plaint was that the plaintiff Sh.
Sarwan Singh purchased the suit property in terms of the
documentation dated 19.4.1995 executed by the erstwhile owner Sh.
Pawan Kumar in favour of the plaintiff. The documents dated
19.4.1995 are agreement to sell, payment receipt and general power of
attorney. The plaintiff allowed the respondent no.1/defendant no.1 to
stay in a portion of the suit property as he was the son of the plaintiff.
Respondent no.1/defendant no.1 is a divorcee and he married the
respondent no.2/defendant no.2 on 9.7.2000 and therefore respondent
no.2/defendant no.2 also started living with the respondent
no.1/defendant no.1 in the portion of the suit property. As per the
plaint, the plaintiff was harassed by the respondents/defendants and
consequently he went to reside with his daughter at Ambala in April,
2003. Plaintiff's wife had expired on 12.4.2002. The plaintiff
subsequently came back to reside in the suit property when he asked
the respondents/defendants to vacate the suit property. Ultimately on
failure of the respondents/defendants to vacate the suit property a legal
notice dated 24.9.2003 was served upon the respondents/defendants
terminating the licence and which notice was served on 15.10.2003.
The subject suit was ultimately filed for possession and damages
against the respondents/defendants.
4. The respondent no.1/defendant no.1 did not contest the
suit and admitted to the case of the plaintiff. The suit was contested by
the respondent no.2/defendant no.2. Firstly it was pleaded on behalf of
the respondent no.2/defendant no.2 that it was not the plaintiff but it
was the respondent no.1/defendant no.1 who was owner of the suit
property. It was also pleaded that the subject suit was filed on account
of collusion between the respondent no.1/defendant no.1/son and the
plaintiff/father. The suit was alleged to have been filed as a
counterblast to the suit for injunction which was filed by the
respondent no.2/defendant no.2 against the plaintiff and the respondent
no.1/defendant no.1 as also a complaint filed under Section 125
Cr.P.C.
5. After pleadings were complete, the trial court framed the
following issues:-
"1. Whether the plaintiff is entitled for relief of possession as
prayed for in the plaint? ....OPP
2. Whether the plaintiff is entitled for a decree of damages?
if yes, at what rate? and for which period? ....OPP
3. Relief."
6. The courts below have dismissed the suit by referring to
the fact that in addition to the documents which were proved by the
plaintiff as Ex.PW1/2 to Ex.PW1/4 being the agreement to sell, general
power of attorney and receipt, the respondent no.2/defendant no.2
proved the general power of attorney dated 19.4.1995 executed by the
original owner Sh. Pawan Kumar in favour of the respondent
no.1/defendant no.1 and which was duly registered before the Sub-
Registrar. It was held by the courts below that this document being the
registered general power of attorney Ex.DW3/1 was concealed from
the Court by the plaintiff and which showed that the respondent
no.1/defendant no.1/son was the owner of the suit property and not the
plaintiff/father. It was held by the courts below that the suit has been
filed in collusion between the plaintiff/father and the respondent
no.1/defendant no.1/son and was therefore bound to be dismissed. The
first appellate court has admittedly held that the documents executed in
favour of the appellant/plaintiff being Ex.PW1/2 to Ex.PW1/4 are not
registered, and therefore, by virtue of these documents no title in the
suit property had passed to the appellant/plaintiff, and that these
documents Ex. PW1/2 to Ex. PW1/4 are void being in violation of
Section 17 (1)(b) read with Section 49 of the Registration Act, 1908
thereof.
7. The following substantial question of law was framed by a
learned Single Judge of this Court on 24.3.2017:-
"Whether the findings of the Courts below suffer from perversity
being not based on the pleadings and evidence adducted by the
parties before the learned Trial Court."
8. In addition to the aforesaid substantial question of law, in
exercise of powers under Section 100(5) Proviso CPC, I frame the
following additional substantial questions of law:-
"i) Whether the courts below have not committed a complete
illegality and gross perversity in relying upon the registered general
power of attorney Ex.DW3/1 inasmuch as such general power of
attorney is not pleaded to have been executed for consideration and
therefore as per such general power of attorney no title in the suit
property would have passed to the respondent no.1/defendant no.1 in
view of Section 202 of the Indian Contract Act, 1872?
ii) Whether the courts below have not committed a complete
and gross illegality and perversity in ignoring the complete testimony
of the DW-4 being the witness from the cooperative society where the
suit property is situated and who deposed with respect to the suit
property being of the plaintiff inasmuch as the suit property was
mutated in record of the society in the name of the plaintiff and also
the fact that the plaintiff was shown as an owner by virtue of the
documents Ex.PW1/2 to Ex.PW1/4 being the agreement to sell, general
power of attorney, receipt dated 19.4.1995?
iii) Whether the courts below have not committed a complete
illegality and perversity in dismissing the suit on the ground of the
alleged collusion inasmuch as even assuming there is collusion yet
once the plaintiff was the owner of the suit property and the
respondents/defendants were licencees, then an owner is always
entitled to take back possession from the licencees and any alleged
collusion cannot defeat the right of an owner to take back possession of
the premises in his ownership (being the plaintiff in the present case)
from the licencees?"
9. All the aforesaid substantial questions of law are answered
in favour of the appellant/plaintiff and the reasons for the same are
contained hereinafter.
10. It is an undisputed fact that the appellant/plaintiff proved
the documents being the agreement to sell, general power of attorney
and the receipt as Ex.PW1/2 to Ex.PW1/4. These documents have
been executed prior to amendment of Section 53A of the Transfer of
Property Act, 1882 by Act 48 of 2001 and which came into effect from
24.9.2001. These documents therefore need not have been stamped or
registered so as to create rights in terms of doctrine of part
performance under the then existing Section 53A of the Transfer of
Property Act. It is only by the subsequent amendment of Section 53A
of the Transfer of Property Act w.e.f 24.9.2001, that an agreement to
sell would not confer any rights in terms of the doctrine of part
performance if such an agreement to sell is not registered. Since the
amendment is prospective in nature, therefore, the documents executed
prior to 24.9.2001 being the documents Ex.PW1/2 to Ex.PW1/4 dated
19.4.1995 did not require registration and stamping. This aspect has
been dealt by this Court in detail in the judgment in the case of Shri
Ramesh Chand Vs. Suresh Chand and Anr., 188 (2012) DLT 538 and
in which judgment this Court has referred to the judgment of the
Supreme Court in the case of Suraj Lamps and Industries Pvt. Ltd.
Vs. State of Haryana and Anr., 183 (2011) DLT 1 (SC) , and as per
which Supreme Court judgment agreements to sell, general power of
attorneys and Wills which are validly executed are protected and such
documents will have rights flowing under the same in terms of Section
53A of the Transfer of Property Act, Section 202 of the Indian
Contract Act and the relevant provisions of the Indian Succession Act
pertaining to devolution of properties by a Will i.e only such
documents executed post 24.9.2001 will not have validity if they are
not stamped and registered..
11. In my opinion therefore the courts below have committed
a complete illegality and gross perversity in denying the ownership of
the suit property to the plaintiff in spite of the fact that the documents
Ex.PW1/2 to Ex.PW1/4 proved the ownership of the plaintiff of the
suit property. I may also note that there is no doubt whatsoever as to
the authenticity of Ex.PW1/2 to Ex.PW1/4 inasmuch as a sum of
Rs.2.50 lacs out of the total consideration of Rs.3 lacs was paid by the
plaintiff Sh. Sarwan Singh to the erstwhile owner Sh. Pawan Kumar in
terms of the demand draft no.345960 dated 19.4.1995 drawn on Indian
Bank, Safdarjung Enclave, Delhi-110024 and which fact is mentioned
in the payment receipt Ex.PW1/3. In fact that documents Ex.PW1/2 to
Ex.PW1/4 were duly executed becomes also clear from the fact that
these documents are dated 19.4.1995 and which is the same date when
general power of attorney Ex.DW3/1 was also executed by the
erstwhile owner Sh. Pawan Kumar in favour of the respondent
no.1/defendant no.1/son/Sh. Harbhajan Singh. Of course, the general
power of attorney Ex.DW3/1 will not give any ownership rights to the
respondent no.1/defendant no.1 in the suit property for the reasons
stated hereinafter.
12.(i) The courts below have relied upon the general power of
attorney Ex.DW3/1 dated 19.4.1995 executed by the erstwhile owner
Sh. Pawan Kumar in favour of the respondent no.1/defendant no.1/Sh.
Harbhajan Singh to hold that such document being a registered
document would have preference over the unregistered documents
Ex.PW1/2 to Ex.PW1/4, but this logic is completely faulty and illegal
in view of the ratio of the judgment of this Court in the case of Shri
Ramesh Chand (supra), and which makes it clear by reference to the
Supreme Court judgment in the case of Suraj Lamps and Industries
Pvt. Ltd (supra) that unregistered and unstamped documents executed
prior to 24.9.2001 will have benefit of doctrine of part performance
under Section 53A of the Transfer of Property Act, and that it is only
those agreements to sell which are executed after 24.9.2001 which
cannot create rights under Section 53A of the Transfer of Property Act
unless they are duly stamped and registered.
(ii) In fact the courts below have completely ignored the law and
caused a gross illegality and perversity in accepting the general power
of attorney Ex.DW3/1 executed by the erstwhile owner Sh. Pawan
Kumar in favour of the respondent no.1/defendant no.1 as conferring
title of the suit property to the respondent no.1/defendant no.1
inasmuch as a general power of attorney before the same can create
rights in an immovable property must be executed for consideration in
terms of Section 202 of the Indian Contract Act. It is only a general
power of attorney which is supported by consideration which has the
effect of being irrevocable and conferring rights in an immovable
property. It was never the case of the respondent no.1/defendant no.1
that the general power of attorney Ex.DW3/1 was executed for
consideration paid by the respondent no.1/defendant no.1/Sh.
Harbhajan Singh to the erstwhile owner Sh. Pawan Kumar. In fact, as
already stated above, consideration was paid by the plaintiff Sh.
Sarwan Singh to Sh. Pawan Kumar as duly recorded in the receipt
Ex.PW1/3, and a sum of Rs.2.50 lacs out of the total consideration of
Rs.3 lacs was paid by a bank draft to Sh. Pawan Kumar by Sh. Sarwan
Singh. Therefore the general power of attorney Ex.DW3/1 cannot be a
basis for claim of any ownership in the suit property by the respondent
no.1/defendant no.1 and therefore the courts below have committed
complete illegality and perversity in dismissing the suit for possession
and damages.
(iii) At this stage the different logics of execution of a general power
of attorney which is accompanying an agreement to sell is required to
be noticed. In the first type of cases by a general power of attorney,
the general power of attorney holder acts for and on behalf of the
original owner and therefore it is a practice in Delhi that sometimes a
general power of attorney is executed in favour of a third person and in
whose name the agreement to sell is not executed, and this is done so
as to enable the third person to act as an independent person on behalf
of the executant of the general power of attorney for the subsequent
execution of the sale deed of the property in favour of the buyer under
the agreement to sell and also for taking further steps with respect to
the property transferred. In second type of cases a general power of
attorney is not executed in favour of a third person but is directly
executed in favour of the transferee under the agreement to sell, and
who then acts in two capacities i.e one as a transferee of the
immovable property having the benefit of the doctrine of part
performance and another as the irrevocable attorney holder of the
original owner and having rights under Section 202 of the Indian
Contract Act. In the third type of cases, two general power of
attorneys are executed by the transferor of an immovable property; one
being in favour of the transferee and another being in favour of a third
person; and which last/third position is the factual position in the
present case. This third position has the advantages of both the first and
second positions as stated above. In any case, and as stated above, any
general power of attorney executed in favour of the respondent
no.1/defendant no.1/Sh. Harbhajan Singh being Ex.DW3/1 will not
give any rights in the suit property to the respondent no.1/defendant
no.1 inasmuch as rights which are created are created in a transferee
under an agreement to sell and which was the plaintiff Sh. Sarwan
Singh, with the fact that as regards a general power of attorney it is
only a general power of attorney given for consideration which is
irrevocable under Section 202 of the Indian Contract Act and in the
facts of this case admittedly no consideration is pleaded or proved to
have been passed from respondent no.1/defendant no.1 to the erstwhile
owner Sh. Pawan Kumar. Hence, no rights in the suit property were
ever transferred or created by the erstwhile owner Sh. Pawan Kumar in
favor of the respondent no.1/defendant no.1.
13. At this stage, I would like to reproduce the entire
examination-in-chief and cross-examination of the DW-4 who
appeared on behalf of the society where the subject flat is situated and
which shows that it was the plaintiff who was the owner of the suit
property/flat and that the general power of attorney executed in favour
of the respondent no.1/defendant no.1 was only to enable the
respondent no.1/defendant no.1 to stay in the suit property. This
examination in chief and cross examination of DW-4 Sh. A.K. Sharma
reads as under:-
"Statement of DW-4 A.K. Sharma-S/o Sh. Krishan Dev Sharma Secretary of
Saraswati Kung Housing Co-operative Society, Age about 40 years.
On S.A.
I have brought the summoned record pertaining to GPA dt.19.04.95 executed
by Pawan Kumar in favour of Sh. Harbhajan Singh in respect of Flat no.132,
Saraswati Kung, Cooperative housing society submitted by Harbhajan Singh
in the society office. (official record seen and return). Harbhajan Singh also
submitted a letter dt. 19.04.95 for occupation of the aforesaid flat addressed
to the society duly signed by Harbhajan Singh and verified by Pawan Kumar.
I cannot identify the signature either Harbhajan Singh or of Sh. Pawan Kumar
on letter dt. 19.04.1995. The record produced by me are maintained by the
society in its routine course at its office. The photocopy of same is mark-A
(official record of the same is seen and returned).
xxxxx by Sh. K.K. Malhotra-Ld. counsel for plaintiff.
Objected to the chief examination of DW4 by the counsel for the plaintiff.
Sd/- sd/-
20.08.2005 C.J./Delhi
RO & AC. 20.08.2005
DW4 Statement of Sh. A.K. Sharma S/o Krishan Dev Sharma
Recalled for cross examination
On S.A.
xxxxx By Sh. K.K. Malhotra, advocate for the plaintiff.
I have brought the record. The maintenance of the society as per the record is
being paid by the plaintiff. In as per our record the property i.e. the flat in
dispute is muted in the name of the plaintiff. There is a letter dated
06/05/1999 from Harbhajan Singh in our records and alongwith the same the
documents of the sale i.e. Power of attorney, Sale agreement, Will, Receipt
for payment have been filed and have been executed by the earlier owner Sh.
Pawan Kumar in favour of the plaintiff dated 19/04/1995. We have also
given a no objection for free hold of the flat in the name of the plaintiff on the
basis of a letter dated 07/12/04.
Sd/- sd/-
RO & AC. C.J./Delhi
09.12.2005 09.12.2005"
(underlining added)
14. In my opinion therefore the respondent no.2/defendant
no.2 cannot take any benefit of the statement of DW-4 in the
examination-in-chief with respect to the respondent no.1/defendant
no.1/Sh. Harbhajan Singh submitting a letter dated 19.4.1995,
inasmuch as that letter will only give a right to respondent
no.1/defendant no.1 as a licencee to occupy the suit property and that
no ownership rights were or could ever have been conferred upon the
respondent no.1/defendant no.1/Sh. Harbhajan Singh in the suit
property by virtue of the general power of attorney Ex.DW3/1.
15. In view of the above discussion, and since all the
substantial questions of law are answered in favour of the
appellant/plaintiff and against the respondent no.2/defendant no.2, this
regular second appeal is accordingly allowed and the suit for
possession will stand decreed in favor of the appellant/plaintiff and
against the respondents/defendants. The suit is also decreed for
damages at Rs.6,000/- per month pendente lite and future till vacation
of the suit property by the respondent no.2/defendant no.2 inasmuch as
this rate of Rs.6,000/- per month is proved and affidavit by way of
evidence of the plaintiff Sh. Sarwan Singh and there is no cross-
examination to this rate of rent on behalf of respondent no.2/defendant
no.2. I may also note that same is the position with respect to proof of
rate of rent as per the evidence of PW-2 Sh. Kulwant Singh and who
again has not been cross-examined on the rate of rent of Rs.6,000/- per
month of the suit flat.
16. This regular second appeal is accordingly allowed and the
suit for possession and damages filed by the appellant/plaintiff is
decreed against the respondent no.2/defendant no.2 and the respondent
no.2/defendant no.2 is directed to remove herself and hand over
possession of the portion marked in blue colour in the site plan
Ex.PW1/1 to the appellant/plaintiff in the suit property bearing no. C-
3/132, Plot no. 25, Saraswati Kunj, Patparganj, IP Extension, Delhi,
and also pay the appellant/plaintiff damages at Rs.6,000/- per month
pendente lite from the date of filing of the suit and in future till
possession of the decreed property is handed over to the
appellant/plaintiff. Parties are left to bear their own costs.
MAY 25, 2017 VALMIKI J. MEHTA, J
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