Ramesh Chand (D) Thr. Lrs. vs Suresh Chand and Anr.

Held: In the instant matter, undisputedly plaintiff claims that there is only an Agreement to sell, and there is no sale deed executed in his favour by the father – As per the settled position of law, this document does not confer a valid title on the plaintiff as it is not a deed of conveyance as per s.54 of the TP Act – As regards General Power of Attorney, the said GPA merely authorises the grantee to manage the affairs of the suit property, which includes the power to let out the property on rent, and create a mortgage of the same, etc. – However, it is silent on the aspect of conveyance – It does not confer a valid title on him with respect to the suit property – The third document relied upon by the plaintiff is registered Will, the same has to be proved in accordance with law – In the trial Court judgment, there is not an iota of discussion about the validity of the Will as contemplated u/s.63 of the Succession Act, 1925 and s.68 of the Evidence Act, 1872 and yet, the validity of the Will has been upheld – Even the High Court, while evaluating the validity of the Will, has gone on a different tangent and has erroneously held that the requirement of examining the attesting witnesses springs into action only in cases of disputes between legal heirs – Such an observation is quite contrary to law – Besides that, there are certain suspicious circumstance surrounding the will, in as much as the alleged propounder of the Will, K had four children and he granted the entire property to one of his children without any reasoning as to why other three children were excluded – Apart from from the aforementioned documents, there is also an affidavit dated 16.05.1996 wherein K is said to have acknowledged receipt of full consideration for the sale of suit property – The said instruments do not confer a valid title upon the plaintiff because as per s.54 of TP Act, only through a deed of conveyance can a title can be transferred and none of the other documents and recitals in the said affidavit are not proved by examining any other independent witnesses – Thus, the impugned judgment is set aside and suit of the plaintiff stands dismissed. [Paras 17, 22, 27, 28, 35] Transfer of Property Act, 1882 – s.53-A – Whether the Plaintiff can claim any benefit u/s. 53A of TP Act, which deals with Part Performance:

Held: According to s.53A of the TP Act, where there is a contract to transfer any immovable property in writing and the transferee has in part performance of the contract taken the possession of the property or part thereof, then notwithstanding that the transfer has not been completed in the manner prescribed by law, the transferor will be debarred from taking the possession of the property – A perusal of s.53A of TP Act, as well as the case law on point, it is forthcoming that one of the main ingredients for taking shelter u/s.53A is the factum of possession – In the instant matter, the very fact that plaintiff has filed the present suit for possession, along with other reliefs, shows that on the date of filing of the suit, plaintiff was not in possession of the entire suit property – Since there was no possession with the plaintiff, he cannot derive any benefit under the doctrine of part-possession. [Paras 30, 31] Transfer of Property Act, 1882 – s.5 and s.54 – Sale of immovable property – Specific mode of execution of sale deed: Held: In sale for an immovable property the value of which exceeds Rs.100/-, the three requirements of law are that the transfer of property of sale must take place through a validly executed sale deed, i.e., it must be in writing, properly attested and registered – Unless the sale deed is in writing, attested and registered, the transaction cannot be construed as sale, or in other words, the property will not be transferred. [Para 14]

Property Law – Difference between Sale Deed and Agreement for sale:

Held: There is a difference between a sale deed and an agreement for sale, or a contract for sale – A contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties – While a sale is a transfer of ownership; a contract for sale is merely a document creating a right to obtain another document, namely a registered sale deed to complete the transaction of sale of an immovable property – s.54 in its definition of sale does not include an agreement of sale and neither confers any proprietary rights in favour of the transferee nor by itself create any interest or charge in the property – If after entering into a contract for sale of property, the seller without any reasonable excuse avoids executing a sale deed, the buyer can proceed to file a suit for specific performance of the contract. [Para 15]

Transfer of Property Act, 1882 – Sale through General Power of Attorney:

Held: A power of attorney is a 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 – It is revocable or terminable at any time unless it is made irrevocable in a manner known to law – A General Power of Attorney does not ipso facto constitute an instrument of transfer of an immovable property even where some clauses are introduced in it, holding it to be irrevocable or authorizing the attorney holder to effect sale of the immovable property on behalf of the grantor – It would not ipso facto change the character of the document transforming it into a conveyance deed – On facts, held that the GPA in question merely authorises the grantee to manage the affairs of the suit property, which includes the power to let out the property on rent, and create a mortgage of the same, etc – However, it is silent on the aspect of conveyance. [Paras 18, 22]