2018 Supreme(Mad) 4406

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S. BASKARAN, J.
M. Karuppannan and Ors. - Appellants
Versus
Mariyammal and Ors. - Respondents
S.A.(MD) No. 309 of 2013
Decided On : 29-10-2018

Headnote:

Indian Contract Act - Sections 202 and 209 - TNCF & SC Act - Section 30 - Suit for Partition - Suit for land possession - Sale Deed - Suit property originally belonged to one - Plaintiff is wife of said - Defendants are sons of said - Defendant is wife of deceased son of - After death of Plaintiff and Defendants are jointly in possession and enjoyment of Suit property - Plaintiff is entitled to share in Suit property - Defendants have no right in Suit property - Defendants are attempting to create false and frivolous documents after death of over Suit property and said documents if any will not bind upon Plaintiff - There is no possibility for joint possession and enjoyment of Suit property - Plaintiff demanded Partition but Defendants are evading same and also trying to disturb possession of Plaintiffs - Hence Plaintiff was constrained to send Legal Notice to Defendants demanded Partition of Suit property - Even then Defendants refused to come forward for Partition - Hence Plaintiff has come forward with Suit for Partition of her share in Suit property - On other hand Defendants Defendants set ex parte - Defendant filed separate Written Statement and stated that Plaint allegations are all false - Said proposed to sell Suit property to Defendant for a sum of lakhs and agreed to sell same and received lakhs from Defendant and executed a Power of Attorney - To avoid Stamp Duty and Registration charges Defendant obtained Power of Attorney from said and also obtained Receipt for lakhs - Above said facts are known to Plaintiff and Defendants - On date of Power of Attorney possession of Suit - Whether Suit for Partition is maintainable against parties who claim title adverse to Plaintiff? - Whether Suit for Partition can be decreed against Third parties who are in possession of Suit property without a prayer for recovery of possession and payment of appropriate Court fee under Section 30 of TNCF & SC Act? - Whether Courts below were right in deciding dispute between Co-Defendants in absence of any issue in Suit and irrelevant for disposal of Suit? - Whether Courts below committed a grave error in deciding validity of Sale Deed in favour of Fifth Defendant when there was no prayer for setting aside same? - Whether Courts below were right in granting a Decree for Partition when admittedly husband of Plaintiff had already received entire Sale price and handed over possession of Suit property to Fourth Defendant long prior to Suit and no relief was specifically sought against Fourth Defendant - Whether -General Power of Attorney Deed is one coupled with interest or not and when it was analysed - Held, Court therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered Deed of Conveyance - Transactions of nature of GPA sales or SA/GPA/WILL transfers do not convey title and do not amount to transfer nor can they be recognized or valid mode of transfer of immoveable property - Courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property - They cannot be recognized as Deeds of Title except to limited extent of Section 53-A of T.P. Act - Such transactions cannot be relied upon or made basis for mutations in Municipal or Revenue Records - What is stated above will apply not only to Deeds of Conveyance in regard to freehold property but also to transfer of Leasehold property - A Lease can be validly transferred only under a registered Assignment of Lease - It is time that an end is put to pernicious practice of SA/GP A/WILL transactions known as GPA sales - Court have merely drawn attention to and reiterated well-settled legal position that SA/GPA/WILL transactions are not transfers or sales and that such transactions cannot be treated as completed transfers or conveyances - They can continue to be treated as existing Agreement of Sale - Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title - Said SA/GPA/WILL transactions may also be used to obtain Specific Performance or to defend possession under Section 53-A of T.P. Act - If they are entered before this day they may be relied upon to apply for regularization of allotments/leases by Development Authorities - Court make it clear that if documents relating to SA/GPA/WILL transactions has been accepted acted upon by DDA or other Developmental Authorities or by Municipal or Revenue authorities to effect mutation they need not be disturbed merely on account of this decision - Second Appeal Allowed