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High Court of Delhi
J.R. MIDHA
Hardip Kaur
Versus
Kailash & Another
RFA NO. 648 OF 2006
Decided On : 18-05-2012
The plaintiff, the original owner of the property, sold the first, second, and terrace floors to Mohinder Kaur, defendant No. 1, via an agreement to sell, receipt, affidavit, indemnity bond, and irrevocable General Power of Attorney. The plaintiff received the entire sale consideration and handed over vacant possession to Mohinder Kaur. The plaintiff later attempted to cancel the General Power of Attorney and will, claiming unauthorized construction by Mohinder Kaur. The defendants, including subsequent purchasers, claimed possession based on the agreement to sell, General Power of Attorney, and other documents.
Fact of the Case:
The plaintiff, Darshan Kaur, sold the first, second, and terrace floors of property bearing No. E-318, East of Kailash, New Delhi to Mohinder Kaur, defendant No. 1, for a total consideration of Rs. 4,50,000/-. The plaintiff received the entire sale consideration, handed over vacant possession, and executed the agreement to sell, receipt, affidavit, indemnity bond, and irrevocable General Power of Attorney, all dated 5th June, 1989. The plaintiff declared in the agreement that she had no remaining right, title, or interest in the property and authorized Mohinder Kaur to make construction, additions, and alterations. Mohinder Kaur later sold the property to defendants No. 2 and 3. The plaintiff filed a suit for possession and mesne profits, claiming that she had agreed to sell only the first and second floors and that Mohinder Kaur had carried out unauthorized construction. The plaintiff also attempted to cancel the General Power of Attorney and will.
Finding of the Court:
The Trial Court dismissed the plaintiff's suit, holding that the plaintiff had sold the first, second, and terrace floors to Mohinder Kaur, that the Power of Attorney was irrevocable under Section 202 of the Contract Act, 1872, and that the plaintiff was not entitled to possession or mesne profits. The plaintiff appealed to the High Court.
Issues: 1. Whether the plaintiff had agreed to sell only the first and second floors of the property to Mohinder Kaur or the first, second, and terrace floors. 2. Whether the General Power of Attorney dated 5th June, 1989 was irrevocable. 3. Whether the plaintiff was entitled to possession and mesne profits.
Ratio Decidendi: 1. The High Court held that the plaintiff had agreed to sell the first, second, and terrace floors of the property to Mohinder Kaur, as evidenced by the agreement to sell, receipt, affidavit, indemnity bond, and irrevocable General Power of Attorney, all dated 5th June, 1989. The Court found that the plaintiff had received the entire sale consideration and handed over vacant possession to Mohinder Kaur. The Court also found that the plaintiff had declared in the agreement that she had no remaining right, title, or interest in the property and had authorized Mohinder Kaur to make construction, additions, and alterations. 2. The High Court held that the General Power of Attorney dated 5th June, 1989 was irrevocable under Section 202 of the Contract Act, 1872. The Court found that the Power of Attorney was given for valuable consideration and that the agent had an interest in the property, as evidenced by the fact that Mohinder Kaur had sold the property to defendants No. 2 and 3. The Court also found that the Power of Attorney was irrevocable because it was declared to be so in Clause 19. 3. The High Court held that the plaintiff was not entitled to possession or mesne profits because she had sold the property to Mohinder Kaur and had no remaining right, title, or interest in the property. The Court also found that the plaintiff was not entitled to cancel the General Power of Attorney and that the defendants were protected by Section 53A of the Transfer of Property Act, 1882.
Final Decision: The High Court dismissed the plaintiff's appeal, upholding the Trial Court's decision to dismiss the plaintiff's suit for possession and mesne profits.
1. The Trial Court has dismissed the appellant's suit for possession and mesne profits relating to property bearing No.E-318, East of Kailash, New Delhi which is under challenge in this appeal. For the sake of convenience, the appellant and respondent nos.1 and 2 are referred to by their ranks in the suit as plaintiff, defendant nos.2 and 3 respectively. Mohinder Kaur was defendant No.1 in the suit.
2. The dispute between the parties relate to the first, second and terrace floors of property bearing No.E-318, East of Kailash, New Delhi, hereinafter referred as “the suit property”. The suit property is built over leasehold plot measuring 125 sq. yards which was originally allotted to Darshan Kaur. Darshan Kaur sold the said plot to the plaintiff on 19th April, 1973 vide construction agreement dated 19th April, 1973 accompanied by General Power of Attorney in favour of the plaintiff's nominee, T.S. Chadha. The plaintiff constructed a three storey building over the said plot.
3. On 5th June, 1989, the plaintiff sold the first, second and terrace floors to Mohinder Kaur for total consideration of Rs.4,50,000/-. The plaintiff received the entire sale consideration from Mohinder Kaur and handed over the vacant and peaceful possession of the suit property to her. The plaintiff executed following documents relating to the suit property on 5th June, 1989:-
(i) Agreement to Sell.
(ii) Receipt for Rs.4,50,000/-.
(iii) Affidavit.
(iv) Indemnity bond.
(v) Irrevocable General Power of Attorney.
(vi) Will.
4. The agreement to sell, receipt, affidavit, indemnity bond and will are in favour of Mohinder Kaur whereas irrevocable General Power of Attorney is in favour of Surinder Jit Singh, son and nominee of Mohinder Kaur. The receipt, irrevocable General Power of Attorney and will are registered before the Sub-Registrar. Arvinder Singh Arora, son of the plaintiff has witnessed the aforesaid documents. All the aforesaid documents were admitted by the plaintiff before the learned Trial Court and were exhibited as Ex.PW1/D2/1 to Ex.PW1/D2/5 and Ex.D-1. The relevant terms and conditions in the aforesaid documents are as under:-
(i) The agreement to sell dated 5th June, 1989 records that the plaintiff to be the absolute owner in possession of the entire three storey building comprising of first, second and terrace floors built over land ad-measuring 125 sq.yrds. bearing No.E-318, East of Kailash, New Delhi having purchased from the original allottee, Darshan Kaur vide construction agreement dated 19th April, 1973.
(ii) Clauses 1 and 3 of the agreement records that the plaintiff has agreed to sell the entire three storey building comprising of first, second and terrace floors to Mohinder Kaur for a total consideration of Rs.4,50,000/- and the plaintiff has received the entire sale consideration and has handed over the vacant and peaceful possession to Mohinder Kaur.
(iii) Clause 11 of the agreement declares that Mohinder Kaur has become absolute owner of the entire property and she enjoys all rights of ownership and further that the plaintiff is not left with any rights, title, interest or lien in the suit property.
(iv) Clause 12 of the agreement empowers Mohinder Kaur to make any construction on the terrace floor, renovate, make any alteration or addition in the suit property on her own responsibility to which the plaintiff shall have no objection.
(v) In the affidavit dated 5th June, 1989, the plaintiff has solemnly affirmed and declared that she has sold the suit property comprising of first, second and terrace floors to Mohinder Kaur; she has received entire sale consideration of Rs.4,50,000/-; she has handed over the vacant and peaceful possession of the suit property to Mohinder Kaur and further that she has executed agreement to sell, indemnity bond, receipt, affidavit, irrevocable General Power of Attorney and will. The plaintiff further affirmed not to revoke the aforesaid documents under any circumstances and shall not deman
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