An unregistered agreement to sell or an unregistered general power of attorney (GPA) can’t be used to transfer the title of an immovable property, the Supreme Court has ruled.
While delivering its order in the Shakeel Ahmad Vs. Syed Akhlaq Hussain case, a two-judge bench of Justice Vikram Nath and Justice Rajesh Bindal, said: “”No title could be transferred with respect to immovable properties on the basis of an unregistered agreement to sell or on the basis of an unregistered general power of attorney. The Registration Act, 1908, clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a court of law on its basis.”
The SC was responding to an appeal filed by Shakeel Ahmad against a Delhi High Court order, which had dismissed his appeal, affirming the judgment and decree of the trial court allowing the suit for possession and mesne profits by the respondent, Akhlaq Hussain.
Ahmad was the defendant in the suit for possession and mesne profits instituted by the respondent with respect to a property. The suit was filed on the basis of a power of attorney, an agreement to sell, an affidavit and a will executed in favour of Hussain.
The appellant was in possession of the property in question. The suit was contested on several grounds that the appellant was the owner of the property having received the same on the basis of a Hiba (oral gift) from its owner Laiq Ahmed his own brother.
Secondly, that the suit was not maintainable as none of the documents on the basis of which the suit was filed were neither admissible nor enforceable under law. Findings recorded by the trial court were that all the issues were decided against the appellant and in favour of the respondent. When an appeal was filed in the high court, confirmed the decree of possession and dismissed the appeal.
Even if these documents were registered, the top court said in its order dated November 1, 2023, it could still not be said that the respondent would have acquired title over the property in question.
“At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings,” the apex court said while the procedure laid under Sections 17 and 49 of the Registration Act and Section 54 of the Transfer of Property Act, 1882.
“Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this court in the case of Suraj Lamps & Industries lays down the same proposition,” it added while also referring to judgments made in the Ameer Minhaj Vs. Deirdre Elizabeth (Wright) Issar and Others case, the Balram Singh Vs. Kelo Devi case and the M/S Paul Rubber Industries Private Limited Vs. Amit Chand Mitra & Anr.
The apex court also said that the argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries would be prospective is also misplaced.
“The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries only approves the provisions in the two enactments. Earlier judgments of this court have taken the same view,” it said.
“In case the respondent wanted to evict the appellant treating him to be a licensee, he could have maintained a suit on behalf of the true owner or the landlord under specific instructions of Power of Attorney as landlord claiming to have been receiving rent from the appellant or as Attorney of the true owner to institute the suit on his behalf for eviction and possession. That being not the contents of the plaint, we are unable to agree with the reasoning given by the high court in the impugned order,” the top court said while allowing the appeal and dismissing the suit.
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