Simmi Bhalla vs Gautam Johar And Ors.
2018 Latest Caselaw 7513 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 1027/2018

%                                                 19th December, 2018

SIMMI BHALLA
                                                       ..... Appellant
                          Through:       Mr. Ashok Bhalla, Advocate
                                         with Mr. Rajeev Kumar,
                                         Advocate.
                          versus

GAUTAM JOHAR AND ORS.
                                                       .....Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No. 53698/2018 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RFA No. 1027/2018 and C.M. No. 53697/2018 (stay)

2. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the trial court dated 28.09.2018 by which

the trial court has dismissed the suit for injunction, mesne profits etc.

filed by the appellant/plaintiff. In the suit there were a total of four

defendants. Respondent no.1/Defendant no.1 was the brother of the

appellant/plaintiff. Respondent nos. 2 and 3/Defendant nos. 2 and 3

are the sisters of the appellant/plaintiff i.e. appellant/plaintiff and

defendant nos.1 to 3 are brother and sisters. Defendant no. 4 in the suit

was the purchaser of the suit property from defendant no. 1. The suit

property is an LIG flat bearing no. BB-35C, Shalimar Bagh (West),

Delhi. Respondent no. 5/Defendant no.5/Mr. Saleem Raj Usmani was

deleted from the array of defendants in terms of the Order of the trial

court dated 03.06.2008. Therefore, there remained only four

defendants in the suit as stated above.

3. The facts of the case are that it was pleaded by the

appellant/plaintiff that the suit property was purchased by her father

for an amount of Rs. 4,38,000/- and the Power of Attorney dated

07.04.1994 was accordingly executed by the seller Ms. Abha Mathur

in favour of the father of the appellant/plaintiff, namely Late Mr. Bal

Kishan Johar. It was pleaded that the father Late Mr. Bal Kishan

Johar died intestate, and therefore, the suit property will be co-owned

to the extent of 1/4th share each by the appellant/plaintiff and

respondent no. 1-3/defendant nos. 1-3. Hence, the suit seeking

partition etc. was filed.

4. Respondent no. 1/Defendant no.1 appeared in the suit, but

after filing the written statement, he withdrew the same, as recorded in

the Order of the trial court dated 21.05.2015. Respondent nos.2 and

3/defendant nos.2 and 3 were also proceeded ex-parte in the suit vide

Order of the trial court dated 23.10.2010. The suit was mainly

contested by the respondent no.4/defendant no.4 pleading that the suit

property was not owned by the father/ Late Mr. Bal Kishan Johar of

the appellant/plaintiff and the respondent no. 1-3/defendant nos. 1-3,

but the suit property was exclusively owned by the respondent no.

1/defendant no.1 in terms of the Documentation dated 07.04.1994

executed by the erstwhile owner Ms. Abha Mathur in favour of the

respondent no.1/defendant no.1. This documentation included

Agreement to Sell, Power of Attorney, Will, Affidavit etc. It was

pleaded that the respondent no. 1/defendant no.1 had transferred the

suit property to respondent no. 4/defendant no.4 in terms of the

Agreement to Sell dated 08.05.2007 under which a consideration of

Rs. 2,00,000/- was paid to the respondent no.1/defendant no.1 by the

respondent no.4/defendant no.4 and who had received the actual,

physical, vacant possession of the suit property. The registered GPA

was also executed by the respondent no.1/defendant no.1 in favour of

the respondent no.4/defendant no.4 on the same date i.e. 08.05.2007.

The suit was therefore prayed to be dismissed.

5. After the completion of pleadings, the trial court framed

the following issues:

"1. Whether suit of plaintiff is bad for non-joinder and mis-joinder of necessary parties? OPD

2. Whether plaintiff has suppressed material facts or has not come with clean hands and is not entitled for relief as prayed for? OPD

3. Whether plaintiff is entitled for decree of declaration, partition, permanent and mandatory injunction, mesne-profits and damages as prayed for? OPP

4. Relief.

Additional issues

1. Whether agreement-to-sell dated 08-05-2007 entered between defendant no.1 and 4 is null, void and of no legal consequences? OPP

2. Whether General Power of Attorney executed by defendant no.1 in faovur of defendant no.4 which was registered in the office of Sub-Registrar, District North-West is illegal, null, void and are of no legal consequences? OPP

3. Whether plaintiff has pre-imptive right of purchase the share of defendant no.1, if same was intending to sell his share in favour of defendant no.4? OPP"

6. The trial court has dismissed the suit by disbelieving the

case of the appellant/plaintiff that the suit property was purchased by

the father of the appellant/plaintiff and respondent no. 1-3/defendant

nos.1-3. The trial court has held that respondent no. 4/defendant no. 4

has succeeded in proving that the suit property was transferred to and

owned by the respondent no. 1/defendant no.1 only in terms of the

documentation being agreement to sell, receipt, indemnity bond etc.,

and which were proved before the trial court as Ex.D4W-1/6 to

Ex.D4W-1/9 and these original title deeds were in possession of the

respondent no. 4/defendant no. 4. Further, the trial court has held that

the power of attorney of the same date proved as Ex.PW1/4 in favour

of the father Late Mr. Bal Kishan Johar would not confer any rights in

the suit property in favour of Sh. Balkishan Johar as the power of

attorney is not executed for consideration, inasmuch as the

consideration under the transaction dated 07.04.1997 was paid by the

respondent no. 1/defendant no.1 to the seller. I may note that it is only

if a power of attorney is executed for consideration, the same gives

right to an immovable property as per Section 202 of the Contract Act,

1872. The relevant para of the trial court judgment discussing these

aspects is para 34 and this para 34 reads as under:-

"34. In the case in hand, it has not been proved on behalf of the plaintiff that the original title documents of the suit property were found to be in possession of late Shri Balkishan Johar in whose favour, the power of attorney Ex.PW-1/4 was allegedly executed by Smt. Abha Mathur. Moreover Shri H.S. Mathur, father of Smt. Abha Mathur, had executed agreement -to-sale and purchase Ex.D4W-1/6, receipt Ex.D4W-1/7, Will Ex.D4W-1/8, indemnity bond Ex.D4W-1/9 in favour of the defendant no.1 on the same day i.e. 07-04-1994, Smt. Abha Mathur, daughter of Shri H.S. Mathur had allegedly executed GPA Ex.PW-1/4 in favour of late Shri Balkishan Johar. As per agreement-to-sale Ex.D4W-1/6, the sale consideration of the suit property was paid by the defendant no.1 to Shri H.S. Mathur by way of pay orders bearing nos. 494130 and 494129 for a sum of ₹45,000/- each. Therefore, it can not be held that the GPA was executed by Smt. Abha Mathur for consideration. It is not the case of the plaintiff that Will was also executed by Smt. Abha Mathur in favour of late Shri Balkishan Johar. The original title documents such as agreement-to-sale, receipt, registered Will all executed by Shri Adarsh Kalia on 02-05-1984 in favour of Shri H.S. Mathur and agreement-to-sale, receipt, registered Will, indemnity bond all executed by Shri H.S. Mathur on 07-04-1994 in favour of Shri Gautam Johar, defendant no.1 are in possession of defendant no.4. Therefore, plaintiff can not take advantage of the law laid-down in case-law Raj Kumar Singh & anr. Vs Jagjit Chawla & ors. (supra) because the facts of the case in hand are different from the facts of the said case." 2 (Underlining Added)

7. I would also like to state that the subject Documentation

dated 07.04.1994 has been executed prior to the amendment of Section

53A of the Transfer of Property Act, 1882 w.e.f. 24.09.2001 by Act 48

of 2001 whereby the agreement to sell executed after 24.09.2001

could only be looked into if the agreement to sell was stamped as per

90% of the sale consideration and also got registered. The judgment

in the case of Suraj Lamps & Industries (P.) Ltd. v. State of Haryana

and Anr., (2012) 1 SCC 656 does not in any manner cancel

documentation executed prior to 24.09.2001 on the ground that they

are unstamped and unregistered because such documents are protected

as per the observations made by the Hon'ble Supreme Court in the

case of Suraj Lamps & Industries (supra) itself. I have dealt with

this aspect in the judgment in the case of Ramesh Chand v. Suresh

Chand and Anr., (2012) 188 DLT 538, and the relevant paras of the

judgment in the case of Ramesh Chand (supra) are paras 1 to 3 which

read as under:

"1. This Regular First Appeal was dismissed by a detailed judgment on 28.2.2011. A Special Leave Petition was filed in the Supreme Court against the judgment dated 28.2.2011 and the Supreme Court has remanded the matter back for a fresh decision by its order dated 31.10.2011. The order of the Supreme Court dated 31.10.2011 is based on the issue of the Supreme Court passing the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr. 183 (2011) DLT 1 (SC), and as per which judgment the Supreme Court overruled the Division Bench judgment of this Court in the case of Asha M. Jain Vs. Canara Bank 94 (2001) DLT 841. Since the judgment of this Court dated 28.2.2011 had relied upon the Division Bench judgment in the case of Asha M. Jain (supra), and which judgment was over ruled the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra), the matter was therefore remanded back to this Court.

2. Before I proceed to dispose of the appeal, and which would turn

substantially on the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra), it is necessary to reproduce certain paras of this judgment of the Supreme Court, and which paras are paras 12, 13, 14 and 16, and which read as under:-

"12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of Property Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.

Scope of Power of Attorney

13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is 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 (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan v. Basant Nehata MANU/SC/0547/2005 : 2005 (12) SCC 77 this Court held:

"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favor of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.

Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the done to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The done in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers

granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."

An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.

Scope of Will

14. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivo. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. (see Sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.

16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."

(emphasis added)

3. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and

devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will."

8. The Ld. counsel for the appellant/plaintiff further argued

that the respondent no. 1/defendant no.1 was only 20 years of age

when the Documentation dated 07.04.1994 was executed, and

therefore due to his young age, it could be assumed that the

consideration was not paid by him under the Documentation dated

07.04.1994, however, I cannot agree with this argument for two

reasons. Firstly, once it is written in the documentation that a

particular thing has happened, no parol evidence can be looked into in

view of Section 92 of the Indian Evidence Act, 1872. Secondly, and

in any case, even assuming that the consideration was paid by the

father, the consideration paid to the seller would be first by the

moneys being gifted by the father Late Mr. Bal Kishan Johar to the

respondent no. 1/defendant no.1 and who then eventually paid to the

seller, and for this very reason the documentation of the suit property

was executed by the seller in favour of the respondent no. 1/defendant

no.1. This argument of the appellant/plaintiff is therefore rejected.

9. The Ld. counsel for the appellant/plaintiff then in

furtherance of her argument based on the premise that the father, Late

Mr. Bal Kishan Johar, was the owner of the suit property and not

respondent no. 1/defendant no. 1 (subsequently respondent no.

4/defendant no. 4) sought to place reliance upon the Power of

Attorney dated 07.04.1994 executed by the seller in favour of the

father, Late Mr. Bal Kishan Johar, and it was further pleaded that this

original Documentation dated 07.04.1994 was stolen by the

respondent no. 4/defendant no. 4. However, in my opinion, this

argument has to be rejected. It is to be noted that in the absence of

original Documents dated 07.04.1994 and thereafter by merely setting

out a case of the original documents being stolen will not help the

appellant/plaintiff, unless the appellant/plaintiff proved that there was

some documentation other than the proved Documentation dated

07.04.1994, as it was necessary to prove such alleged documents to

support the argument that the respondent no.1/defendant no.1 was not

the owner of the suit property. However, on the contrary, the

respondent no. 1/defendant no. 1 and subsequently respondent no.

4/defendant no. 4 have been able to prove their respective ownerships

vide Documents dated 07.04.1994 and 08.05.2007.

10. In view of the aforesaid discussion, there is no merit in

the appeal. Dismissed.

DECEMBER 19, 2018                         VALMIKI J. MEHTA, J
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