Summary
A plaintiff claiming title to his father's house through an agreement to sell, general power of attorney, affidavit, receipt and a registered will, with no sale deed, had no valid title: none of those documents is a conveyance under Section 54 of the Transfer of Property Act, the will was never proved under Section 63 of the Succession Act and Section 68 of the Evidence Act and was surrounded by suspicious circumstances, and Section 53A was unavailable because he was not in possession. The Supreme Court set aside the concurrent decrees, dismissed the suit, and held that succession opened to the father's class-I heirs.
Issues
- Whether an agreement to sell, general power of attorney, affidavit, receipt of consideration and a registered will executed by the father in favour of the plaintiff conferred a valid title to the suit property in the absence of a registered sale deed.
- Whether the registered will was proved in accordance with Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, and whether the surrounding suspicious circumstances were dispelled.
- Whether the plaintiff could claim the benefit of part performance under Section 53A of the Transfer of Property Act, 1882 when he was not in possession and had himself sued for possession.
- What relief followed, including the position of the second defendant who had purchased a 50% share from the first defendant.
Provisions considered
- Sections 5 and 54, Transfer of Property Act, 1882Sale of tangible immovable property worth Rs. 100 or more can be made only by a registered instrument that is in writing, attested and registered. A contract for sale creates no interest or charge; it merely gives a right to obtain a registered sale deed, enforceable by specific performance. The plaintiff's agreement to sell, affidavit and receipt therefore conferred no title. (¶¶ 12, 13, 14, 15, 16, 17, 28)
- Section 53A, Transfer of Property Act, 1882Possession in part performance is an essential ingredient of the doctrine. Because the plaintiff himself sued for possession, he was not in possession of the suit property on the date of suit and could claim no benefit under the section. (¶¶ 29, 30, 31)
- Sections 2(h) and 63, Succession Act, 1925A will is a revocable, ambulatory posthumous disposition, not a transfer inter vivos, and must satisfy the attestation formalities of Section 63; registration does not make it any more effective. The trial court upheld the will without any discussion of Section 63 compliance. (¶¶ 23, 24, 25, 26, 27)
- Section 68, Evidence Act, 1872Examination of at least one attesting witness is mandatory to prove a will. The High Court's view that attesting witnesses need be examined only in disputes between legal heirs was held contrary to law. (¶¶ 25, 27)
Held
- An agreement to sell, whether with or without possession, is not a conveyance and does not transfer any right, title or interest in immovable property; at best it enables the buyer to seek specific performance. Title passes only by a duly stamped and registered deed of conveyance under Section 54 of the Transfer of Property Act. (¶¶ 14, 15, 16, 17)
- A power of attorney creates an agency and is not an instrument of transfer; even an irrevocable power, or one authorising sale, does not transfer title to the grantee. The GPA here merely authorised management of the property and was silent on conveyance. (¶¶ 18, 19, 20, 21, 22)
- A will must be proved in accordance with law by examining at least one attesting witness under Section 68 of the Evidence Act and establishing compliance with Section 63 of the Succession Act; mere registration does not validate it. Where the father had four children and the will bequeathed the entire property to one without any explanation or evidence of estrangement, the suspicious circumstance was not dispelled and the will conferred no title. (¶ 27)
- An affidavit and receipt acknowledging consideration do not transfer title, since only a deed of conveyance can do so, and their recitals were in any case not proved by independent witnesses. (¶ 28)
- The protection of Section 53A is a shield available only to a transferee who proves possession of the property; a plaintiff who sues for possession is by his own showing not in possession and cannot invoke part performance. (¶¶ 16, 30, 31)
- With the will held not proved, succession to the father's property opened on his death and his class-I legal heirs are entitled to shares. The second defendant's purchase from the first defendant stands protected only to the extent of the first defendant's share, all other contentions being left open. (¶¶ 32, 33, 34)
Result
Appeal allowed; High Court judgment dated 09.04.2012 in RFA No. 358 of 2000 set aside; plaintiff's suit dismissed; second defendant's rights protected only to the extent of the appellant's share, with contentions of all parties otherwise left open; no order as to costs; pending applications consigned to records.