2001 Supreme(Del) 25

High Court Of Delhi
D.R.PURI - Appellant
Versus
KAMLESH SAWHNEY - Respondent
Suit 1575 of 1982
Decided On : 01/10/2001

Headnote:Transfer of Property Act, 1882 - Section :53A — Sale or construction agreement — Transfer of possession for constructing house — Where plaintiff transferred possession of land to defendant after receiving an amount as security for construction, executing a series of documents contemporaneously, a general power of attorney to sell the property, a special power of attorney to sell on behalf of plaintiff both irrevocable, Will of which defendant is the sole beneficiary, affidavits of family members relinquishing their rights in the property, etc. and all originals of the documents and also original sub-lease entered into with DDA in plaintiffs favor were handed over to defendant, the transaction was an outright sale, not a mere construction agreement, and thereforee, after the construction was over, plaintiff not entitled to recover possession not render of accounts.

       Held:

       It is not as if the parties had executed only one document. A series of documents were executed which not only included agreements but also two Powers of Attorney, affidavits of the entire family of the Plaintiff as well as the Plaintiffs Will. If the parties had entered into a simple construction agreement, as alleged by the Plaintiff, there was absolutely no reason for the Plaintiff to execute a Will and hand it over to the Defendants. Similarly, there was absolutely no reason for the family of the Plaintiff to execute affidavits relinquishing their rights in the aforesaid plot of land.

       There is also no reason why the Plaintiff should hand over to the Defendants all the original documents including the sub-lease and correspondence entered into between the Plaintiff and the Delhi Development Authority on the one hand and the Plaintiff and the Society on the other.

       An analysis of the various documents executed by the Plaintiff clearly shows that the transaction between the parties was not a mere construction agreement but was something much more. Indeed, it was nothing short of a sale of the aforesaid plot of land.

       The defendants have been given a general Power of Attorney by the Plaintiff to sell the suit property, which sale is ratified by the Plaintiff. The Special Power of Attorney grants to the Defendants the power to sell off the suit property on behalf of the Plaintiff. Both these Powers of Attorney are irrevocable. One fails to understand why the Plaintiff should permit the Defendants to sell off the aforesaid plot of land and the construction thereon if the Defendants were merely building contractors.

       The Plaintiff and his entire family had inexplicably sworn to an affidavit stating that they have no objection to the Will executed by the Plaintiff. The Will bequeaths all the rights, title, benefits and privileges in the aforesaid plot of land in favor of Defendant No. 1 who is the sole beneficiary of the Will.

       The execution of all these documents, read together as held by the Supreme Court, unmistakably lead to the conclusion that what has actually transpired between the parties is not a mere construction agreement but a transaction for sale of the aforesaid plot of land.

       The Plaintiff is not entitled to recover possession of the suit property.

       The Defendants are not liable to render accounts to the Plaintiff regarding the construction of a building on the plot in dispute.

       The true nature of the transaction between the parties is that there is a transfer of property by an agreement to sell executed by the Plaintiff in favor of Defendant No. 1. The agreement of construction is a sham document.

       The suit is barred under the provisions of Section 53-A of the Transfer of Property Act, 1883.

       The Plaintiff is not entitled to mesne profits.

       The Plaintiff is estopped from going beck on the agreement to sell.

       Section 53A — Part performance — Transferee ready and willing to perform his part — No action for mutation done to perfect title nor counter-claim raised — Does not mean he has given up all his rights.

       The appropriate course of action for the Defendant would have been to either raise a counter claim against the Plaintiff or to file a suit against the plaintiff for specific performance of the agreement to sell. This has not been done by the Defendants.

       However, I am of the view that this by itself is not enough to decree the suit in favor of the Plaintiff. The reason for this is that the right of the Defendants is not extinguished. It is only that the remedy cannot be resorted to by the Defendants because it is barred by time. There is nothing to indicate that the Defendants are not willing to perform their part of the contract. On the contrary, as far as they are concerned, the contract stood concluded when they paid an amount of Rs. 1,40,000/- to the Plaintiff and received possession of the aforesaid plot of land as well as all the original documents pertaining to the aforesaid plot of land. The only other thing which was required to be done was to actually Have the property mutated in the name of Defendant No. 1 and to have the title registered in accordance with law so as to perfect it in favor of Defendant No. I.

       The mere fact that the Defendants did not file a counter claim or a suit for specific performance, cannot lead to any conclusion that they have given up all their rights in the aforesaid plot of land. It can, at best, be said that the Defendants have lost the opportunity of perfecting their title.