Pushpa Devi Bharti & Ors vs Harish Arora & Anr
2019 Latest Caselaw 2424 Del

$~OS-9
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                         Date of decision: 08.05.2019
+      CS(OS) 459/2017 and IA Nos. 11078/2017 & 12067/2018
       PUSHPA DEVI BHARTI & ORS               ..... Plaintiffs
                       Through    Mr.D.R.Bhatia and Ms.Vasundhara
                       Nayar, Advs.
                versus
       HARISH ARORA & ANR                     ..... Defendants
                       Through    Mr.Siddharth Khattar and Mr.Vikas
                       Sharma, Advs. for D-2.
                       Mr.Pradeep Kumar, Adv. for the proposed
                       defendant.
       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH. J. (ORAL)

1.     This suit is filed by the plaintiffs seeking a preliminary decree of
partition in favour of the plaintiffs and against the defendants declaring the
share of plaintiff No. 1 as 15% and plaintiff Nos. 2 to 4 as 7.5% each in
respect of the property No. 174, Block E, Kalkaji, New Delhi.
2.     The case of the plaintiffs is that plaintiff No.1 purchased 15%
undivided share in the suit property vide sale deed dated 15.12.2012 along
with defendants No.1 and 2 who had 42.5% undivided share each in the suit
property. Subsequently, on 29.11.2013, plaintiffs No. 2 to 4 purchased 7.5%
each in the suit property from defendant No. 1 vide registered sale deed.
Hence, the present suit for partition.
3.     It appears that there is no dispute amongst the parties regarding the
share of the plaintiffs and defendants.
4.     I may only note that defendant No.1 despite service is not appearing



CS(OS)459/2017                                                           Page 1
 in the present case. Learned counsel for the plaintiffs and defendant No.2
submit that they have no objection, in case a preliminary decree of partition
is passed as above regarding the suit property and the property be sold and
the proceeds thereof be divided in terms of the aforenoted shares.
5.     I may only note that an application has been filed under Order 1 Rule
10 CPC being IA No. 12067/2018 on behalf of Sh.Anees Jeelani, Sh.Prem
Singh and Sh. Dinesh Kumar claiming that defendant No. 1 has sold 20%
undivided share in the suit property to the applicants and hence, they may be
impleaded as necessary and property parties to the suit. It is claimed that by
registered sale deed dated 23.03.2018 this transaction took place.
6.     Learned counsel appearing for defendant No.2 has however pointed
out that the said defendant No.1 has absconded long back from the country
on account of pending criminal cases. He has pointed out that the sale deed
which is relied upon by the applicants in IA No. 12067/2018 dated
23.03.2018 is signed by one Sh.Omar Zahoor Shah, General Power of
Attorney Holder of defendant No. 1/Harish Arora. Copy of the GPA has not
been filed by the applicants. However, defendant No. 2 has filed a copy of
the GPA dated 04.07.2017 along with his reply which is an unregistered
general power of attorney. Learned counsel for defendant No. 2 states that
no sale could have been affected on behalf of defendant No.1 through an
unregistered general power of attorney and that the applicants are nothing
but interlopers/local builders who are trying to jump into the property on
noticing that defendant No. 1 is absconding.        He has relied upon the
judgments of this court in Smt.Indu [email protected] Indu Pahuja & Anr. Vs.
Sh.Sant Pal Singh, CRP No. 145/2014 dated 24.09.2014 and Hira Singh
Rawat vs. State of NCT of Delhi, Bail Application No. 1860/2010 dated



CS(OS)459/2017                                                           Page 2
 25.02.2011 to state that attorney holder of an unregistered power of attorney
cannot transfer a property.
7.     The present suit of partition is filed based on the sale deed dated
05.12.2012 by which the suit property was bought by plaintiff No. 1 and
defendants No. 1 and 2 respectively. Subsequently, plaintiff Nos. 2 to 4 have
vide sale deed executed by defendant No. 1 himself bought 7.5% undivided
share respectively in the suit property. There is no dispute on these facts.
8.     There is, however, a controversy as to the title of the applicants in the
suit property. Applicant claims title based on a sale deed executed by an
unregistered power of attorney holder of defendant No.1.
9.     I may look at the judgements relied upon by learned counsel for
defendant No.2 to plead that such a post holder cannot sell the property. This
court in Smt.Indu [email protected] Indu Pahuja & Anr. Vs. Sh.Sant Pal
Singh(supra) held as follows:-
       "6. .... In my opinion, this deliberate concealment is because
       obviously in the general power of attorney, no consideration
       would have been shown to have been received by means of a
       cheque by the father of the respondent/plaintiff, also on the

basis of an unregistered power of attorney a sale deed cannot be legal vide Sections 32 & 33 of the Registration Act, 1908 and if the General Power of Attorney in favour of the petitioner no.2, allegedly executed by Sh. Giri Lal is unregistered then the sale deed registered in favour of the petitioner no.1 is illegal and void. ....."

10. This court in Hira Singh Rawat vs. State of NCT of Delhi h(supra) held as follows:-

"3. .... It is settled law that in order to transfer a property on the basis of a Power of Attorney, the Power of Attorney itself must be a registered Power of Attorney and an unregistered Power of

CS(OS)459/2017 Page 3 Attorney does not entitle Power of Attorney holder to transfer the property. A Power of Attorney giving power to sell is as good as a conveyance deed and under Registration Act it is necessary that if a document transfers property of more than ` 100/-, it must be registered."

11. In my opinion, the above controversy regarding the claim of the applicant cannot be made subject matter of the present suit proceedings. It is alien to the present proceedings. The plaintiff is dominius litis. This suit cannot be converted into a title suit between defendant No.1 and the applicants. By impleading the applicants the nature of the controversy would completely change.

12. I accordingly dismiss IA No. 12067/2018.

13. Accordingly, a preliminary decree of partition is passed declaring the share of plaintiff No.1 as 15%, plaintiff Nos. 2 to 4 as 7.5% each and the share of defendant No. 2 as 42.5% and the share of defendant No. 1 as 20%. It is agreed that the property be sold. Accordingly, a final decree of partition is passed for sale of the property and division of the sale proceeds as per the share.

14. I may only clarify that the issue raised by the applicants is kept open for them to file appropriate proceedings against defendant No. 1 to claim their title as per law.

15. The suit stands disposed of. All pending applications also stand disposed of.

                                                      JAYANT NATH, J
MAY 08, 2019/rb




CS(OS)459/2017                                                             Page 4