Rajesh Kumar Pandey vs Shanti Devi & Anr

Prathiba M. Singh, J

This hearing has been done through video conferencing.

CM APPL. 17914/2021 (for exemption)

Allowed, subject to all just exceptions. Application is disposed of.

CM APPL. 17913/2021 (for stay) in RSA 55/2007 and Review Petition 256/2019

The present application is for stay and suspension of the operation of judgment dated 13th March, 2015 passed in RSA 55/2007 titled Rajesh Kumar

Pandey v. Shanti Devi & Anr.

The ground on which suspension is sought is that the Executing Court has passed an order on 5th April, 2021 that unless and until there is a stay on

the order granted by this Court, the Court would proceed as per law. Thus, there is a likelihood of the suit property, being property No. 223/22-E, Gali

No. 8, Railway Colony, Mandawali, Delhi - 110092 (hereinafter, “suit propertyâ€), being either disposed of, partitioned or sold as per the final

judgment dated 13th March, 2015.

The Respondent is duly represented before the Court. The next date before the Executing Court is stated to be 16th June, 2021. Considering that

the decree which was originally passed was dated 25th November, 2005 and the judgment passed by this Court, of which review is sought, is dated

13th March, 2015, instead of hearing the application for stay, this Court proceeded to hear the review petition itself on merits.

The brief background to this litigation is that Mr. Jagdish Prashad Pandey, who was the owner of the suit property, had two sons - Mr. Rajesh

Kumar Pandey and Mr. Ram Milan Pandey. Mr. Jagdish Prashad Pandey passed away in 1996. Following his death, a suit for partition and

permanent injunction was filed by the Plaintiff - Mr. Rajesh Kumar Pandey against his brother, Mr. Ram Milan Pandey and his wife, Mrs. Shanti

Devi. The Trial Court, vide judgment dated 25th November, 2005, passed a decree for partition in the following terms:

“RELIEF:-

In the light of aforesaid discussion and my findings given on the aforesaid issues, it is held that the plaintiff has successfully proved that he

is entitled for ½ share in the property bearing No. 230/22-E, Gali No.8, Railway Colony, Mandawali, Delhi-92.

That a decree of permanent injunction is also hereby passed in favour of the plaintiff and against the defendant No.1 and 2 restraining

thereby both the defendants from selling and creating any third party interest in the suit property and both the defendants, their associates

and representatives shall also not interfere in the possession of the plaintiff in the suit property.

That Sh. D.K. Singh Advocate, address Seat No.43, KKD Court, First Floor, Delhi, Mobile No. 9811108641 is hereby appointed as Local

Commissioner to divide the aforesaid property in two equal shares by metes and bounds and records the objection if any, in this regard.

The fees of the Ld. Local Commission if Rs.3,000/- which shall be paid by the plaintiff. Thereafter, Ld. Local Commissioner shall file his

report within the 15 days from the receipt of his fees as Local Commissioner.

Preliminary decree be drawn accordingly.â€​

The reasoning given by the Trial Court was that Defendant No.2 i.e., Ms. Shanti Devi - the daughter-in-law, was not able to prove any right or title

in the suit property. Moreover, the documents which were the basis of the claim of Defendant No.2 i.e., the General Power of Attorney, Will etc.,

were found to be doubtful and accordingly, the Trial Court held that there would be no ownership recognised in favour of Defendant No.2.

This judgment was carried in appeal by the Appellant. The Appellate Court, vide judgment dated 18th November, 2006, modified the order of the

Trial Court in the following terms:

“8. It should be noted that even though defendant has set up the defense that Jagdish Parsad had sold 42 sq yards of land to defendant

No 2 on the basis of agreement to sell, will, power of attorney and receipt, nevertheless that plaintiff had not sought any relief regarding

cancellation of the documents nor has claimed any declaration that the documents are void or inoperative. Secondly, defendants have

examined DW-2 Kedar Nath Tiwari who was an attesting witness. He has specifically stated that in his presence as well in the presence of

Sh Suresh Kumar Bhardwaj, Sh Madhav Ram and Sh Ram Milan Pandey that Jagdish Parsad Pandey had receipt Rs.1 lac from Shanti Devi

as a consideration for sale of portion of the suit property built on 42 sq yards of land and Sh were also present there. DW-3 Ram Milan

Pandey has also deposed to the same effect. When attesting witness to the documents Ex PW2/1, 1/2 and DW2/2 has been examined, these

documents have been proved by the attesting witnesses. Merely because the defendants failed to produce documents of the suit property in

favour of Jagdish Parsad or she failed to produce her father to prove her father had arranged consideration of Rs 50,000 are hardly of

any consequence in the face of testimony of DW-2. In other words, I am of the view that defendant no 2 has proved on record that Jagdish

Parsad had executed documents Ex DW1/1, DW1/2, 2/1 and 2/2. It is not the case of the plaintiff that these documents were got executed

under coercion or undue influence. There is no evidence that Sh Jagdish Parsad was suffering from any medical order or infirmity.

Therefore, he did not need money is no ground to discard the above documents.

..

Ld counsel for the appellants has relied upon authorities reported as Smt Daya Devi vs Smt Angoori Devi, AIR 2002 Delhi 295, Kuldip

Singh Suri vs Surinder Singh, 1999 RIR 20 and has argued that agreement to sell, Will, receipt and GPA create ownership in the immovable

property in favour of the person in whose favour the documents have been executed. However, in Imtiaz Ali vs Nasim Ahmed, 31(19873 DLT

150, it has been held that sale by GPA, agreement to sell and delivery of possession does not confer any title on the vendee. However, in

Delhi Motor Co vs U.A. Basurekar,. AIR 1968 SC 794, M/s Technicians Studio Pvt Ltd Vs Smt Lila Ghosh and another, AIR 1977 SC 2425 it

has been held that Section 53A of the Transfer of Property Act does not confer any title or interest in the transferee in respect of property in

his possession and only protect the transferee's possession by setting up equity i.e. right to continue in possession.

Counsel of the appellant has relied upon Rama Bai Padmakar Patil Vs Rukminibai Vishnu Vekhande and others AIR 2003 SC 3109 and

has submitted that Jagdish Parasd has died is not disputed, therefore, will has come into force and therefore, defendant no 2 has become

entitled to suit property. In aforesaid authority, it has been held that, when the genuineness of a will is proved, merely because lawyer in

whose presence it was executed, has not been examined is immaterial and the will cannot be discarded. In the present case also, the

attesting witness of the will Ex DW 2/2 has been examined in the court and will has been proved to be genuine. It is not disputed that Sh

Jagdish Parsad has died. By virtue of this will also, defendant no 2 has also become entitled to property built on 42 sq yards of the land. To

my mind, therefore, findings of the trial court as regards documents referred to above is erroneous and cannot be sustained. On the other

hand, it stands proved on record that Jagdish Parsad was owner of the suit property, had delivered possession of portion of suit property

built up on 42 sq yards of land and as shown in site plan, defendant no 2 has become entitled thereto. Even otherwise, on the basis of Will,

defendant No 2 is entitled to this portion and respondent does not have any right, title or interest in this portion of suit property. The suit

property to the extent of remaining 20 sq yards of land is the portion of the property regarding which Jagdish Parsad did not make any

testamentary disposition and to which after his death both plaintiff and defendant no 1 being his sons have succeeded in equal shares

under the provisions of Hindu Succession Act. Findings of trial court on both these issues are accordingly modified.

Relief of injunction granted by the trial Court is also modified to operate only in respect of remaining 20 sq. yards of suit land.

The portion of the suit property other than which is subject matter of document Ex. DW1/1 and Ex.DW1/2, Ex.DW2/1 and Ex. DW2/2

which is remaining portion measuring 20 sq. yards of land will be subject matter of partition equally among plaintiff and defendant No.1 in

equal shares.

No other point has been argued.â€​

Thus, the Appellate Court modified the decree declaring that in respect of the 42 sq. yards, Defendant No.2 i.e. the daughter-in-law is the owner

and in respect of the remaining 20 sq. yards, the same would be divided between the two brothers.

This order of the Appellate Court was considered by the ld. Single Judge of this Court in the present appeal, which was disposed of vide judgment

dated 13th March, 2015. The ld. Single Judge clearly disbelieves the version of the Appellant. Owing to the judgment of the Supreme Court in Suraj

Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr., (2012) 1 SCC 656, which was passed during the pendency of this appeal, the Court held

that the Trial Court’s decree is liable to be upheld. Thus, the Appellate Court’s order was set aside. The operative portion of the order under

Review is set out below:

“8. Sh. Rajesh Kumar Pandey, feeling aggrieved, has preferred the present regular second appeal. During the pendency of the present

appeal, the apex court in Suraj Lamp & Industries Pvt. Limited v. State of Haryana & Anr. (2011) 11 SCALE 438 has clearly laid down that

before a right, title or interest in any immovable property is deemed to have been created, the same has to be done by a registered document

and not by an unregistered document and similarly a person who is basing his claim on the documents of such a nature, the first and

foremost principle is that he must prove his title by filing a suit for specific performance against the vendor. In the instant case, there is no

dispute about the fact that the suit property measuring 62 square yards of land was owned by the Sh. Jagdish Prasad Pandey who died

leaving behind two sons namely the present Sh. Rajesh Kumar Pandey and Sh. Ram Milan Pandey. The learned Civil Judge has rightly

disbelieved the version of Sh. Ram Milan Pandey that his wife is purported to have purchased 42 square yards of the aforesaid parcel of

land by a document like general power of attorney and, therefore, she has become the owner of 42 square yards of land. It is totally

strange that in case Sh. Jagdish Prasad Pandey wanted to sell a portion of the suit property to the wife of one of his sons or to his daughter

in law, then why he would not sell the entire parcel of land but only half of that land or slightly well over half the land. All these factors

have been considered by the learned Civil Judge in the light of the evidence which has been produced before it. I do not agree with the

judgment of the first appellate court with regard to holding that the land was validly purchased by Smt.Shanti Devi, wife of Sh.Ram Milan

Pandey to the extent of 42 square yards is suffering from perversity especially in the light of the fact that the respondent/Smt.Shanti Devi in

the light of the judgment of the Apex Court in Suraj Lamp’s case (supra) has not proved all such documents as documents of genuine

transactions with regard to conferment of right, title or interest in any immovable property. If that be so, obviously it could not be

considered to be a valid sale and the finding returned by the learned Civil Judge is perfectly valid that Sh.Rajesh Kumar Pandey has ½

share in the self acquired property of late Sh.Jagdish Prasad Pandey. Accordingly, the judgment of the first appellate court suffers from

perversity and the same is set aside and the judgment and decree passed by the trial court is upheld. The matter is remanded back to the

trial court to apportion the shares in case the property is divisible as may be suggested by the local commissioner failing which the same will

be disposed of and the sale proceeds partitioned.â€​

In the review application heard today, the main submission made by Dr. Gahlaut, ld. counsel, is that the judgment in Suraj Lamp (supra) does not

take away the rights of the daughter-in-law i.e., Defendant No.2, who has obtained rights in the suit property from the original owner i.e., her father-

in-law, by way of a General Power of Attorney, Agreement to Sell, Will etc. Reliance is placed on paragraph 19 of the judgment in Suraj Lamp

(supra) which, according to him, would save bona fide and genuine transactions. His submission is that these documents, even though they are not

registered, would confer title and ownership to the extent that Defendant No.2 could enjoy possessory rights in the suit property.

On the other hand, ld. counsel for the Appellant argues that the entire set of documents are not genuine and are fraudulent. He submits that these

documents cannot be relied upon to confer title or ownership in favour of Defendant No.2.

This Court has perused the record and the three judgments in this matter i.e., the judgment of the Trial Court dated 25th November, 2005, the

judgment of the Appellate Court dated 18th November, 2006, as also the judgment dated 13th March, 2015 which is currently under review.

It is important to note that the judgment in this appeal was challenged by the Respondents herein before the Supreme Court which, vide order

dated 27th March, 2017, dismissed the SLP. Thereafter, a review petition was also filed which was again dismissed vide order dated 17th January,

2018. A curative petition was also preferred by the Respondents which was also dismissed on 25th April, 2019 by the Supreme Court.

The present review application was filed on 23rd May, 2019 i.e., after dismissal of the curative petition by the Supreme Court. The primary ground

taken by ld. counsel for the Respondents is that the judgment in Suraj Lamp (supra) does not take away the possessory right of Defendant No.2 and

the ownership thereof, inasmuch as Defendant No.2 is a blood relative and a bona fide and genuine transaction has taken place.

Heard. The documents placed in favour of Defendant No.2 i.e., the daughter-in-law, are unregistered documents that have not been proved in

accordance with law. The said documents are being relied upon to retain possession of the suit property. In the opinion of this Court, such documents

cannot confer any right of ownership or title in respect of the suit property, irrespective of the judgment in Suraj Lamp (supra). Paragraph 19 of Suraj

Lamp (supra) merely saves genuine and bona fide transactions, wherein the sale agreement and power of attorney are registered and are executed

under certain circumstances. The said judgement in Suraj Lamps (supra) cannot be read as recognising rights in immoveable property, purportedly

transferred through unregistered documents. In the present case, none of the documents - the General Power of Attorney, Will or the Agreement to

Sell, have been registered before any authority. Under such circumstances, the transaction cannot be held to be genuine and bona fide.

The Appellate Court has, in paragraphs 8 and 11, given recognition to the documents executed in favour of the daughter-in-law. Paragraphs 8 and

11 of order dated 18th November, 2006 are reproduced above. In the opinion of this Court, the Appellate Court’s approach is contrary to law

inasmuch as sale of immoveable property cannot be recognised, if it is through unregistered documents, even if the documents are proved through oral

evidence. As per the provisions of the Transfer of Property Act, 1882 and the Registration Act, 1908, sale documents relating to immoveable property

need to be registered. This position has also been elaborated on by the Supreme Court in Greater Bombay Coop. Bank Ltd. v. Nagraj Ganeshmal Jain,

(2017) 15 SCC 316, wherein the Court has observed as under:

“15. Immovable property can be transferred only by a registered document. There can be no transfer of any right, title or interest in any

immovable property except by way of a registered document. In this behalf we may make reference to the judgment of this Court in Suraj

Lamp & Industries (P) Ltd. v. State of Haryana, wherein it was held as follows:

“18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the

absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can

be transferred.

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 the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited

right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without

possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable 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.

…

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 recognised or valid mode of transfer of immovable 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 recognised as deeds of title, except to the limited extent of Section 53-A of the TP 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.â€​

This Court clearly held that an agreement to sell which is not a registered deed of conveyance would not meet the requirements of

Sections 54 and 55 of the Transfer of Property Act. With respect to Section 53-A of the Transfer of Property Act, it is well settled that the

same can only be used as a defence in proceedings initiated by the transferor or by any person claiming under him.â€​

Such documents could, under some circumstances, permit the daughter-in-law to enjoy possession of the suit property, if a third party challenges the

same. However, the same cannot confer ownership or title. The daughter in law can be dispossessed in accordance with law, in proceedings instituted

by a legal heir of the original owner, which is what has happened by the decree of partition which has been passed by the Trial Court.

Moreover, the suit was filed in 1999 and more than 20 years have passed. Respondents have successfully avoided execution of the partition

decree which was passed way back in 2005.

The review petition does not disclose any ground for reviewing the judgment. Accordingly, the review petition is dismissed. All pending

applications are also dismissed. The Executing Court shall now proceed in accordance with law.