An unregistered power of attorney cannot legally transfer property, and the issue of title based on such a transaction should be pursued separately from a partition suit.

Jayant Nath, J.

This suit is filed by the plaintiffs seeking a preliminary decree of partition in favour of the plaintiffs and against the defendants declaring the share of plaintiff No. 1 as 15% and plaintiff Nos. 2 to 4 as 7.5% each in respect of the property No. 174, Block E, Kalkaji, New Delhi.

2. The case of the plaintiffs is that plaintiff No.1 purchased 15% undivided share in the suit property vide sale deed dated 15.12.2012 along with defendants No.1 and 2 who had 42.5% undivided share each in the suit property. Subsequently, on 29.11.2013, plaintiffs No. 2 to 4 purchased 7.5% each in the suit property from defendant No. 1 vide registered sale deed. Hence, the present suit for partition.

3. It appears that there is no dispute amongst the parties regarding the share of the plaintiffs and defendants.

4. I may only note that defendant No.1 despite service is not appearing in the present case. Learned counsel for the plaintiffs and defendant No.2 submit that they have no objection, in case a preliminary decree of partition is passed as above regarding the suit property and the property be sold and the proceeds thereof be divided in terms of the aforenoted shares.

5. I may only note that an application has been filed under Order 1 Rule 10 CPC being IA No. 12067/2018 on behalf of Sh. Anees Jeelani, Sh. Prem Singh and Sh. Dinesh Kumar claiming that defendant No. 1 has sold 20% undivided share in the suit property to the applicants and hence, they may be impleaded as necessary and property parties to the suit. It is claimed that by registered sale deed dated 23.03.2018 this transaction took place.

6. Learned counsel appearing for defendant No.2 has however pointed out that the said defendant No.1 has absconded long back from the country on account of pending criminal cases. He has pointed out that the sale deed which is relied upon by the applicants in IA No. 12067/2018 dated 23.03.2018 is signed by one Sh. Omar Zahoor Shah, General Power of Attorney Holder of defendant No. 1/Harish Arora. Copy of the GPA has not been filed by the applicants. However, defendant No. 2 has filed a copy of the GPA dated 04.07.2017 along with his reply which is an unregistered general power of attorney. Learned counsel for defendant No. 2 states that no sale could have been affected on behalf of defendant No.1 through an unregistered general power of attorney and that the applicants are nothing but interlopers/local builders who are trying to jump into the property on noticing that defendant No. 1 is absconding. He has relied upon the judgments of this court in Smt. Indu Gulani@ Indu Pahuja & Anr. Vs. Sh.Sant Pal Singh, CRP No. 145/2014 dated 24.09.2014 and Hira Singh Rawat vs. State of NCT of Delhi, Bail Application No. 1860/2010 dated 25.02.2011 to state that attorney holder of an unregistered power of attorney cannot transfer a property.

7. The present suit of partition is filed based on the sale deed dated 05.12.2012 by which the suit property was bought by plaintiff No. 1 and defendants No. 1 and 2 respectively. Subsequently, plaintiff Nos. 2 to 4 have vide sale deed executed by defendant No. 1 himself bought 7.5% undivided share respectively in the suit property. There is no dispute on these facts.

8. There is, however, a controversy as to the title of the applicants in the suit property. Applicant claims title based on a sale deed executed by an unregistered power of attorney holder of defendant No.1.

9. I may look at the judgments relied upon by learned counsel for defendant No.2 to plead that such a post holder cannot sell the property. This court in Smt.Indu Gulani@ Indu Pahuja & Anr. Vs. Sh.Sant Pal Singh(supra) held as follows:-

"6. .... In my opinion, this deliberate concealment is because obviously in the general power of attorney, no consideration would have been shown to have been received by means of a cheque by the father of the respondent/plaintiff, also on the basis of an unregistered power of attorney a sale deed cannot be leg