Factual Background and Procedural History
This analysis concerns the Supreme Court’s decision in Civil Appeal No. 6377 of 2012, Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr., dated September 1, 2025. The judgment decisively reiterates the established principles of property law, particularly concerning the inadequacy of an Agreement to Sell or a General Power of Attorney (GPA) to confer title.
The dispute centered on a property in Delhi originally owned by Shri Kundan Lal. The parties were his two sons: the Respondent No. 1 (Plaintiff) and the Appellant (Defendant No. 1).
The Plaintiff claimed title to the property based on a set of documents executed by his father on 16.05.1996: a General Power of Attorney, an Agreement to Sell, an Affidavit, and a Receipt. He also relied on a registered Will, bearing the same date, allegedly bequeathing the entire property to him. He contended that his brother (Defendant No. 1) was merely a licensee and, after the “purchase,” a trespasser. He filed a suit for possession, declaration of title, and other reliefs.
The Defendant No. 1 contested the suit, claiming he had received the property via an oral transfer in July 1973 and had been in continuous possession since. He filed a counterclaim seeking a declaration that the Plaintiff’s documents (Will, GPA, etc.) were null and void. He also pointed to a previous suit (OS No. 294/1996) where the Plaintiff had admitted, after the date of the alleged “purchase,” that their father was still the owner.
The Trial Court decreed the suit in the Plaintiff’s favour. The High Court of Delhi dismissed the first appeal. That judgment was appealed to the Supreme Court, which, citing its own decision in Suraj Lamp and Industries Private Limited v. State of Haryana (2012 1 SCC 656), remanded the case. The Supreme Court observed that such GPA/Agreement to Sell transactions are not ‘transfers’. Despite this, the High Court, upon fresh hearing, dismissed the appeal again on 09.04.2012. This present judgment arises from the appeal against that second dismissal.
Identification of Legal Issues
The Supreme Court framed the following points for consideration:
- Whether the documents relied upon by the Plaintiff (Agreement to Sell, General Power of Attorney, Receipt of Consideration, and the registered Will) could confer a valid title to the suit property.
- Whether the Plaintiff could claim any benefit under the doctrine of part performance (Section 53A of the Transfer of Property Act, 1882).
Arguments of the Parties
For the Appellant (Defendant No. 1):
- Invalid Transfer: It was argued that an Agreement to Sell, GPA, Affidavit, and Receipt do not confer any title of ownership.
- Statutory Requirement: Under Section 54 of the Transfer of Property Act, 1882 (TP Act), the sale of immovable property can only be effected by a registered instrument (sale deed).
- Failure to Prove Will: The Will was not proved in accordance with mandatory legal requirements , specifically Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act.
- Inapplicability of Section 53A: The doctrine of part performance under Section 53A of the TP Act is not attracted, as possession of the property was never delivered to the Plaintiff.
For the Respondent No. 1 (Plaintiff):
- The Respondent No. 1 was duly served but did not enter an appearance and was proceeded against ex-parte.
For the Respondent No. 2 (Purchaser from Defendant No. 1):
- The counsel argued that Respondent No. 2 was a bona fide purchaser of a 50% share from Defendant No. 1 and that her rights, which had been protected by interim orders, should be protected.
Court’s Analysis and Reasoning
The Supreme Court systematically dismantled the Plaintiff’s claim by analyzing each document.
On the Agreement to Sell and Section 54, TP Act
The Court reaffirmed the fundamental distinction between a “sale” and a “contract for sale” as defined in Section 54 of the TP Act.
- Sale: A “sale” is a transfer of ownership. For tangible immovable property valued over Rs. 100, it can be made only by a registered instrument.
- Contract for Sale: An “agreement to sell” is merely a contract that a sale shall take place on settled terms. The provision explicitly states: “It does not, of itself, create any interest in or charge on such property.”
Relying on its authoritative decision in Suraj Lamp , the Court held that an agreement to sell is not a conveyance and does not confer any title. At best, it gives the buyer the right to file a suit for specific performance to compel the seller to execute a proper sale deed. In this case, no sale deed was ever executed. Therefore, the Agreement to Sell did not confer any title on the Plaintiff.
On the General Power of Attorney (GPA)
The Court clarified the legal nature of a GPA.
- A GPA is an instrument of agency. It authorizes the grantee (agent) to perform specified acts on behalf of the grantor (principal).
- Citing Suraj Lamp again, the Court stated that a GPA is not an instrument of transfer in regard to any right, title, or interest in an immovable property.
- Even if a GPA contains “irrevocable” clauses or authorizes the attorney to sell the property, it does not transfer title to the grantee. The grantee, in exercising such power, acts in a fiduciary capacity for the grantor.
- The Court found that the GPA in this case merely authorized the Plaintiff to “manage” the suit property, and even if it were valid, it did not confer any title on him.
On the Registered Will
The Court found significant and fatal flaws in the Plaintiff’s reliance on the Will.
- Failure of Proof: The Court highlighted the mandatory provisions for proving a Will: Section 63 of the Indian Succession Act (attestation by two or more witnesses) and Section 68 of the Indian Evidence Act (requiring at least one attesting witness to be examined in court).
- The Court admonished the lower courts, noting there was “not an iota of discussion” on this in the Trial Court judgment and that the High Court’s reasoning for waiving this requirement was “quite contrary to law”.
- The Court reiterated that the mere registration of a Will does not grant it validity or dispense with the mandatory requirement of proving its due execution.
- Suspicious Circumstances: The Court invoked the doctrine of “suspicious circumstances”. The fact that the Will excluded three of the testator’s four children without any stated reason was a “highly unlikely” and unjust disposition. The Plaintiff, as the propounder who received a substantial benefit, had a heavy onus to remove this suspicion, which he failed to do.
For these reasons, the Court held the Will was not proved and conferred no title.
On the Doctrine of Part Performance (Section 53A, TP Act)
The Court addressed the Plaintiff’s final claim under Section 53A.
- The doctrine of part performance is a defence or a “shield”. It allows a transferee to protect their possession against a transferor if they have taken possession in furtherance of a written contract.
- An essential condition for invoking Section 53A, as laid down in Nathulal v. Phoolchand , is that the transferee must have taken or continued in possession of the property.
- The Court noted the fatal contradiction in the Plaintiff’s case: he had filed the suit for recovery of possession. This was a clear admission that he was not in possession.
- Since the Plaintiff was not in possession, he could not derive any benefit from the doctrine of part performance.
Final Conclusion and Holding
The Supreme Court concluded that none of the documents relied upon by the Plaintiff—the Agreement to Sell, the GPA, the Receipt, the Affidavit, or the unproven Will—was sufficient to confer valid title to the property.
Consequently, the Court held:
- The appeal was allowed.
- The judgments of the High Court and the Trial Court were set aside, and the Plaintiff’s suit was dismissed.
- As the Will was not proved, the property of the deceased, Shri Kundan Lal, opened for succession.
- All Class-I legal heirs, including the Appellant/Defendant No. 1, are entitled to their respective shares in the suit property.
- The rights of Respondent No. 2 (the bona fide purchaser) were protected to the extent of the share of the Appellant only.
FAQs:
1. Does an “agreement to sell” make me the owner of a property?
No. An agreement to sell is only a contract that a sale will happen in the future. It does not, by itself, create any ownership right or title in the property. Ownership is only transferred upon the execution and registration of a formal sale deed, as required by Section 54 of the Transfer of Property Act.
2. What is the difference between an agreement to sell and a sale deed?
An agreement to sell is a promise to transfer ownership in the future, creating a right for the buyer to sue for specific performance if the seller backs out. A sale deed is the actual transfer of ownership. A sale deed must be registered to be valid (for properties over Rs. 100) , whereas an agreement to sell does not transfer title.
3. Can I get ownership of a property through a General Power of Attorney (GPA)?
No. A GPA does not transfer ownership. It is an instrument of agency where one person (the principal) authorizes another (the attorney-holder) to act on their behalf. Even if the GPA is “irrevocable” or gives the power to sell, the attorney-holder does not become the owner.
4. How do you legally prove a Will in court?
To prove a Will, it’s not enough to just show the document. Under Indian law (Section 63 of the Indian Succession Act and Section 68 of the Evidence Act), you must:
- Show the Will was signed by the testator.
- Show it was attested by at least two witnesses.
- Crucially, you must bring at least one of those attesting witnesses to court to testify and prove its execution.
- If there are “suspicious circumstances” (like an unfair disinheritance), the person presenting the Will has a heavier burden to prove it was genuine and remove those suspicions.
5. What is the “doctrine of part performance” in property law?
The doctrine of part performance (under Section 53A of the Transfer of Property Act) is a form of legal protection. It acts as a shield (a defence), not a sword. It means if a person has a written agreement to buy property, has paid for it, and has taken possession of it, the seller cannot later try to evict them just because the final sale deed wasn’t registered. However, this protection cannot be used by someone who is not in possession of the property.
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