SUNIL BHAREJA vs SHYAM LAL GOEL & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 4th January, 2024
Pronounced on:26th February, 2024

+ CS(OS) 106/2017, I.A.2787/2017 (under Order XXXIX Rules 1 & 2 CPC)

SUNIL BHAREJA ….. Plaintiff
Through: Mr. Sameer Mendiratta, Advocate.

versus

SHYAM LAL GOEL & ORS. …..Respondents
Through: Mr. Prem Garg, Advocate for D-1.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A. 17472/2022 (under Order VII Rule 11 (a) and (d) of CPC on behalf of the defendant No. 1 seeking rejection of plaint)

1. The application under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure, 1908 (hereinafter referred to as the “CPC”), has been filed on behalf of the defendant No. 1, Mr. Shyam Lal Goel for rejection of the suit.
2. Briefly stated, a suit for Partition and Permanent Injunction has been filed by the plaintiff claiming the right and title as an absolute and joint owner of the ground floor, basement and first floor with Roof rights up to sky of Shop No. 423, D Block, New Sabzi Mandi, Azadpur, Delhi-110033, admeasuring 636 square fts. on the basis of a registered Agreement to Sell and registered General Power of Attorney (GPA) dated 18.03.2004 and 25.07.2005; Receipt, Special Power of Attorney (SPA), Undertaking, Indemnity Bond, Affidavit and Possession letter, all dated 25.07.2005, executed in his favour by Shri Anand Goel. The Suit Property is a leasehold property which was allotted to Shri Hari Kishan Dass in the year 1971, by the DDA. Until the leasehold property is converted into a freehold property, no sale and purchase transaction can take place for the same. The only way to create a third party right by way of a registered lease of assignment/sub-lease is executed by the transferor/lessor.
3. It is further submitted by defendant No.1 that the above documents relied upon by the plaintiff do not create any right, title and interest in the suit property, as none of the above documents is a registered Deed of Conveyance and as per Section 17 of the Registration Act, 1908 (hereinafter referred to as the “Act, 1908”) any document for sale of property valued at above Rs. 100 is required to be compulsorily registered. Further, as per Section 54 of the Transfer of Property Act, 1882 (hereinafter referred to as the “TPA”), a transfer of ownership of immovable property can only be made through a registered instrument. Reliance has been placed on Suraj Lamp & Industries Private Limited v. State of Haryana & Another (2012) 1 SCC 656 and Greater Bombay Cooperative Bank Limited v. Nagraj Ganeshmal Jain and Others (2017) 15 SCC 316, in this regard.
4. Thus, it is claimed that there is no cause of action in favour of the plaintiff to seek partition. It is further asserted that the plaintiff also does not have any locus standi.
5. It is also submitted and the same cannot be transferred by the documents relied upon by the plaintiff.
6. Moreover, the defendant Nos. 1 Shyam Lal Goel, defendant Nos. 4 to 6 Smt Kanta Devi, Smt Kamlesh Gupta, Smt Madhu Gupta, deceased husband of defendant No. 3 i.e. Late Shri Pawan Goel and predecessor in interest of defendant Nos. 7 to 11 i.e. Late Shri R.A. Gupta, had filed a suit for Declaration, Possession and Permanent Injunction against the plaintiff in the year 2004, in respect of the Ground Floor of the suit property, which clearly indicates that the title of the plaintiff in the suit property was questioned in the year 2004. The present suit has been filed after ten years, in the year 2017, and is barred by limitation.
7. It is further submitted that the registered Agreement to Sell and GPA dated 18.03.2004, in favour of the plaintiff have been declared null and void except to the extent of 1/8th share in respect of the suit property by the learned Additional District Judge, Central District, Tis Hazari Courts, Delhi, vide Judgment dated 27.05.2016 in Civil Suit bearing No. CS(OS) 129/2016, titled “Shyam Lal Goel & Ors. vs. Anand Goel & Ors.” Despite the Agreement to Sell etc., in favour of the plaintiff being declared null and void except to the extent of 1/8th share, the present suit has been filed for partition of the entire property, which is not maintainable. Therefore, the defendant has sought rejection of the suit of the plaintiff.
8. The learned counsel on behalf of Plaintiff had submitted that he does not wish to file a formal Reply to the present IA vide order dated 18.10.2023.
9. Learned counsel on behalf of the plaintiff has argued that a registered Agreement to Sell creates a valid right title in the suit property entitling the plaintiff to seek partition for getting his undivided share demarcated and for division of the property by metes and bounds.
10. It is further argued that the assertion made by the defendants that the suit is barred by limitation, is not tenable as the possession of the plaintiff with the defendants, is joint and severable and the right to seek partition is a continuous cause of action, which survives till the properties are partitioned by metes and bounds. It is submitted that the application is without merit and is liable to be dismissed.
11. Submissions heard.
12. The plaintiff has filed the present suit for Partition seeking division of the suit property by metes and bounds and has claimed a share to be 1/8th of the total property and also for Injunction.
13. Admittedly, the suit property in question is a leasehold property which was allotted to Shri Hari Kishan Dass in the year 1971 by DDA, and upon his demise, the same was inherited equally by his wife/Smt. Savitri Devi and his children i.e. the defendant No. 1 Shyam Lal Goel, defendant No. 2 Shri Madan Lal Goel, defendant No. 4 Smt Kanta Devi, defendant No. 5 Smt Kamlesh Gupta, defendant No. 6 Smt Madhu Gupta, Shri Pawan Goel (deceased husband of defendant No.3), Smt. Shanti Gupta (deceased mother of defendant Nos. 7 to 11) as well as defendant No.12 Shri Anand Goel. Upon the demise of Smt. Savitri Devi, the wife of Late Shri Hari Kishan Dass, her share also devolved upon her children and thus, the defendants Nos. 1, 2, 4, 5, 6, Shri Pawan Goel (deceased husband of defendant No.3), Smt. Shanti Gupta (deceased mother of defendant Nos. 7 to 11) as well as Defendant No.12 Shri Anand Goel became co-owners of the undivided suit property to the extent of 1/8th share each thereof.
14. The plaintiff’s suit is based on the assertion that Shri Anand Goel transferred his undivided 1/8th share in the suit property to him vide a registered Agreement to Sell dated 18.03.2004 and 25.07.2005, registered General Power of Attorney (GPA) dated 18.03.2004 and 25.07.2005, and Receipt, Special Power of Attorney (SPA), etc dated 25.07.2005 and Possession letter dated 25.07.2005, executed in his favour.
15. It does not need any substantiation under law that for claiming a right to maintain the suit for partition, it is necessary to show that the plaintiff is an owner in the suit property. For asserting his ownership in the suit property, the plaintiff has relied upon the documents viz. the registered Agreement to Sell, GPA, Will, Affidavit, Receipt, etc.
16. The question which arises for the consideration of this Court is whether the documents relied upon by the plaintiff, confer any title and ownership rights upon him, in the suit property.
17. Section 5 of the TPA defines the term Transfer of a Property as follows:-
Section 5. “Transfer of property” defined.—In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, 2 [or to himself] and one or more other living persons; and “to transfer property” is to perform such act.

18. Section 54 of the TPA provides for the Sale of a Property and reads as under:-
Section 54. “Sale” defined.—“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.—Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.

19. The use of the word ‘convey’ in Section 5 read with Section 54 of the TPA makes it clear that the title in a property valued at more than Rs.100/-, can be conveyed only by executing a registered instrument i.e. a Deed of Conveyance. Further, Section 54 of the TPA specifically states that a mere Agreement/Contract for sale would not in itself, create any interest or charge on such property.
20. In the case of Narandas Karsondas vs. S.A. Kamtam, (1977) 3 SCC 247, it was held that the Agreement of Sell does not qualify the requirements of Sections 54 and 55 of the TPA and does not confer any right title and interest in the immovable property. It was explained that the personal obligation created by a contract for sale is recognised in Section 40 of the TPA which states that the same does not amount to an interest or easement therein but is only an obligation arising from the Contract and annexed to the ownership of the property.
21. This judgment was referred to by the Apex Court in the case of Suraj Lamp & Industries Private Limited vs. State of Haryana & Another (2012) 1 SCC 656 and the Scope of Agreement to Sell and the right, title and interest created thereunder was explained. It was held that the Agreement to Sell coupled with other documents namely Special Power of Attorney, General Power of Attorney are not transactions of transfer of sale and cannot be treated as a complete sale or conveyance. They may continue to be treated as an existing Agreement to Sell and nothing prevents the affected parties from getting registered Deeds of Conveyance to complete their title. These documents may even be used to obtain Specific Performance or to defend possession under Section 53A of the TPA, 1882 or may also be used to apply for regularization of allotments/leases by Development authorities. However, the Agreement to Sell independently continues to be only an agreement and does not creates any valid transfer of ownership in the suit property. It was therefore, concluded that the immovable property could only be legally and lawfully transferred/conveyed by a registered Deed of Conveyance.
22. It is thus, evident that Section 54 of the TPA, restricts the scope of Agreement to Sell and the same cannot bestow the person with any legal right; till the registered Deed of Conveyance is executed, it does not mature into ownership of the new purchaser.
23. In the present case, it is rightly agitated that there is no mention of the execution of a Conveyance Deed in favour of the Plaintiff, by Shri Anand Goel and it is clear that on the basis of Agreement to Sell, the suit property (to the extent of 1/8th share) is yet to be transferred in the name of the plaintiff.
24. Admittedly, the defendants in the present suit, had filed a suit for Declaration, Recovery, Possession and Permanent Injunction against the plaintiff herein. A Declaration was sought that a Sale Agreement executed by Shri Anand Goel (defendant no.12 in the present suit), one of the co-owners in favour of the plaintiff, was null and void. By the detailed Judgment dated 27.05.2016, the learned Civil Judge observed that a co-owner can no doubt sell his undivided share to a third party, but such right is limited only to the extent of his share. Shri Anand Goel, predecessor in interest of the plaintiff had only 1/8th share in the suit property and consequently, the Agreement to Sell and other ancillary documents, were held valid only to the extent of 1/8th share in the suit property. The RFA No. 839/2016 may be pending, but the authenticity of the documents executed in favour of the plaintiff is not being challenged.
25. The next pertinent question which arises is whether the plaintiff has any locus standi to maintain the present Suit to seek partition. It cannot be overlooked that in addition to the Agreements to Sell dated 18.03.2004 and 25.07.2005, the General Power of Attorney dated 18.03.2004 and 25.07.2005 and Special Power of Attorney dated 25.07.2005 were also executed in his favour by the erstwhile owner Anand Goel to the extent of his 1/8th share in the suit property, the validity of which has been upheld by the learned Civil Judge vide judgement dated 27.05.2016.
26. Undeniably, the Agreement to Sell, even if it is valid, merely creates a right to seek a document for Sale in favour of the plaintiff, but the GPA and the SPA created in favour of the plaintiff to represent Sh. Anand Goel, the admitted owner of 1/8th share in suit property, cannot be overlooked at this stage. The execution of a Power of Attorney coupled with interest is irrevocable and cannot be revoked as per Section 202 of the Indian Contract Act, 1872 and subsists even after the death of the executant. Shri Anand Goel, defendant No 12’s right to file the Written Statement was closed vide Order dated 25.10.2018 implying thereby that he has neither questioned the right of the plaintiff from claiming 1/8th share on the basis of GPA/SPA, nor is he claiming any right to the extent of his share in the suit property. There is no contest to the execution of the documents such as GPA and the SPA. It necessarily follows that at this stage, it cannot be said that there is no cause of action in favour of the plaintiff who has stepped into the shoes of defendant no.12 to claim his share as his GPA holder.
27. Moreover, the property may be a leasehold property allotted originally to Shri Hari Kishan Dass in the year 1971 by the DDA which was inherited by their children under the Hindu Succession Act, 1956, but that in itself cannot be considered as a ground to non-suit the plaintiff from claiming the partition at this stage, though its final implementation would obviously can be done after the property is made freehold as permitted under law.
28. It is, therefore, concluded that it cannot be said that the suit does not disclose any cause at this stage, and the application under Order VII Rule 11 CPC is hereby, dismissed.
I.A.2787/2017
29. List for completion of pleadings before the learned Joint Registrar in IA. 2787/2017 on 14.3.2024.

(NEENA BANSAL KRISHNA)
JUDGE

FEBRUARY 26, 2024
RS

CS (OS) 106/2017 Page 1 of 9