Ramesh Chand (D) thr. Lrs. v. Suresh Chand & Anr. — Civil Appeal No. 6377 of 2012 — Supreme Court of India — Bench: Aravind Kumar, J. & Sandeep Mehta, J. — Decided: 1 Sept. 2025 — Citation: 2025 INSC 1059.
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Nature of proceedings. Appeal from judgment of the High Court of Delhi dismissing Regular First Appeal No. 358/2000 and confirming decree of the Trial Court in O.S. No. 613/1997 for possession, mesne profits, declaration and mandatory injunction; plaintiff proceeded ex parte in this Court.
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Facts (short). Suit property originally owned by Lt. Sh. Kundan Lal. Plaintiff relied on documents dated 16.05.1996 (Agreement to Sell, General Power of Attorney, Affidavit, Receipt and a registered Will) to claim title. Defendant No.1 (appellant) pleaded oral transfer in July 1973 and long possession and sold 50% to defendant No.2 (respondent). No registered sale deed executed in favour of plaintiff.
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Issue (principal). Whether the documents relied upon by the plaintiff (Agreement to Sell, General Power of Attorney, Affidavit, Receipt and registered Will) conferred valid title to the plaintiff; whether plaintiff could claim protection under Section 53A, Transfer of Property Act; consequential reliefs.
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Agreement to Sell — legal position. An agreement or contract for sale is not itself a transfer of ownership in immovable property and does not create any interest in the property; where value exceeds Rs.100 a sale must be by registered deed. An agreement to sell only gives the buyer a right to seek specific performance; it does not confer title. (Paras 12–17, 16–19.)
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General Power of Attorney — legal position. A power of attorney creates agency and, save in specific cases known to law, does not operate as an instrument of transfer of title in immovable property; it is generally revocable and does not ipso facto transfer ownership. The GPA relied upon did not convey title. (Paras 18–22.)
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Will — proof and effect. A will is ambulatory and revocable in the lifetime of the testator and takes effect only on his death; registration does not dispense with the statutory requirements of execution and attestation (Section 63, Indian Succession Act) and proof (Section 68, Evidence Act). At least one attesting witness must be examined unless the propounder satisfactorily dispels suspicious circumstances. The registered Will in the present case was not duly proved and was surrounded by suspicious circumstances (exclusion of other heirs unexplained); accordingly it did not confer title. (Paras 23–28.)
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Receipt/affidavit and other collateral documents. An affidavit and receipt acknowledging consideration, and ancillary documents, cannot supplant the requirements of Section 54, Transfer of Property Act — title cannot pass except by a duly executed, stamped and registered deed of conveyance. (Para 28.)
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Section 53A — part performance. The doctrine of part performance under Section 53A applies only where the transferee is in possession in part performance of a written contract of transfer. Filing of suit for possession by the plaintiff demonstrates absence of possession and, therefore, plaintiff cannot claim the benefit of Section 53A. (Paras 29–31.)
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Bona fide purchaser and shares. Rights of a purchaser for consideration and without notice are to be protected to the extent of the vendor’s title. The sale by defendant No.1 to defendant No.2 will be protected only to the extent of the share actually vested in defendant No.1. (Paras 33–34.)
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Conclusion and relief. The Will and other documents did not confer valid title on plaintiff; suit of the plaintiff is dismissed; impugned judgment of High Court is set aside; defendant No.2’s rights preserved only to the extent of the appellant’s share; parties left free to work out their rights in accordance with law. No order as to costs. (Paras 32–35.)
2025 INSC 1059 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6377 OF 2012
RAMESH CHAND (D) THR. LRS. …APPELLANT(S)
VERSUS
SURESH CHAND AND ANR. …RESPONDENT(S)
J U D G M E N T
ARAVIND KUMAR, J.
1. Heard.
2. The appellants are aggrieved by the judgment dated 9th April, 2012,
passed by the Hon’ble High Court of Delhi whereby the Regular First
Appeal No. 358/2000 filed by them against the judgment and decree dated
11th May, 2000 came to be dismissed and the judgment and decree passed
in Suit No. 613/1997 by the Additional District Judge, Delhi decreeing the
1
suit for possession, mesne profits, declaration, mandatory injunction filed
by the Respondent No. 1, who was the plaintiff, came to be confirmed, by
dismissing the counterclaim for declaration filed by the Appellant has been
affirmed. For convenience, the parties are referred as per their rank before
the Trial Court.
FACTUAL MATRIX:
3. Facts necessary for adjudication of the controversy on hand are as
follows:
4. The suit property bearing No. 563, at Ambedkar Basti near Balmiki
Gate, Delhi - 110053 was originally owned by Shri. Kundan Lal, father of
the Appellant/Defendant No. 1 and Respondent No. 1/Plaintiff. The
plaintiff claims that he had acquired title to the suit property from his
father, Shri. Kundan Lal by virtue of a General Power of Attorney,
Agreement to Sell, Affidavit, and a Receipt. He also claimed that his father
had executed a registered Will dated 16.05.1996 bequeathing the suit
schedule property in his favour. He further claims that defendant No. 1 has
been living in the suit property as a licensee and after purchase of the suit
property by the plaintiff, the defendant No. 1 was residing in the suit
property as a mere trespasser. He further claims that in order to gain
2
wrongfully, the defendant No. 1 sold half the portion of the suit property to
the defendant No. 2, who is the Respondent No. 2 before us. Hence, the
plaintiff filed a suit against the defendant No.1 and defendant No. 2 for the
recovery of possession, mesne profits, declaration of title and mandatory
injunction directing the defendant No. 1 to handover the original
documents to him. In response to the said claim of the plaintiff, the
defendant No. 1 filed a written statement and also raised a counter claim,
contending that the suit property was orally transferred to him by the father
in July 1973. He further contended that the plaintiff had earlier filed OS
No. 294/1996 wherein he admitted that the father, Shri Kundan Lal was the
owner of the property. However, he withdrew the said suit on 06.06.1997.
In the counter claim, defendant sought for declaration that the alleged
documents i.e. Will, Agreement to Sell, GPA etc. in respect of the suit
property by Lt. Sh. Kundan Lal, who expired on 10th April, 1997 was null
and void and not binding on him.
5. The Ld. Addl. District Judge decreed the suit in favour of the
plaintiff and dismissed the counter claim filed by the defendant No.1 on the
ground that the property had been transferred by the Sh. Kundan Lal in
favour of the plaintiff by upholding the validity of the documents. The
defendant No.1 assailed the same by filing Regular First Appeal No. 358 /
3
2000 before the High Court of Delhi, which came to be dismissed by the
High Court by relying upon the judgment of Asha M. Jain v. Canara Bank
and Others 1
which was later on overruled by this court in Suraj Lamp and
Industries Private Limited (2) through Director v. State of Haryana and
Another.2 Against the said dismissal, the defendant No.1 had filed Civil
Appeal No. 9012/2011.
6. Vide the order 31.10.2011 aforesaid civil appeal came to be allowed
in part and the matter was remanded back to the High Court for fresh
disposal with an observation that the Agreement to Sell / General Power of
Attorney / Will Transactions are not ‘transfers’ or ‘sales’ and such
transactions cannot be treated as transfers or conveyances as contemplated
under Transfer of Property Act, 1882. Hence, RFA No.358/2000 came to be
restored to the file of High Court which has been heard afresh, and by the
impugned order, it came to be dismissed on 09.04.2012. Aggrieved by the
same, the defendant no.1 is in appeal before us.
SUBMISSIONS
7. Mr. S.Mahendran, Learned Counsel for the defendant No.1 made
the following submissions:
1 (2001) SCC OnLine Del 1157
2 (2012) 1 SCC 656
4
● That there is no title of ownership conferred merely on the basis of
Agreement to Sell, GPA, Affidavit, Receipt, Will etc. without there
being any possession thereof.
● That the original title deeds of suit schedule property are in possession
of the defendant No.1.
● That the Will has not been proved in accordance with law.
● Section 53A of the Transfer of Property Act is not attracted if the
possession of the property is not delivered.
● That Will is not an instrument of sale under Section 54 of Transfer of
Property Act. As per Section 54, immovable property can be sold by a
registered instrument only.
● That the alleged Attesting Witnesses PW-3 and PW-4 could not prove
the execution of the documents filed by the plaintiff such as GPA,
Agreement to Sell, Receipt, Will as required by Section 3 of Transfer
of Property Act, Section 68 of Indian Evidence Act and Section 63 of
Indian Succession Act.
● That the Courts below have failed to appreciate that in the previous
suit which is OS No. 294/1996 the plaintiff himself admitted in his
replication filed on 12.10.1996 that the father, Shri Kundan Lal is
owner of the suit property. On the other hand the present suit is filed
5
by falsely alleging that he had purchased the suit property from the
father on 16.05.1996 which is much prior to the date of filing of the
replication.
● That the vital facts clearly reveal that the alleged documents
pertaining to the suit property had been obtained by the plaintiff on
misrepresentation.
● That ever since 1973, the defendant No.1 has been in continuous,
uninterrupted possession and occupation of the suit property in his
own right and during this period i.e. 1973 to 1997, the father Shri
Kundan Lal neither filed any ejectment proceedings nor served any
notice for his eviction during his lifetime, who died on 10.04.1997.
8. The Respondent No.1 / Plaintiff who was duly served has not
entered appearance and is proceeded ex-parte.
9. Mrs. Rekha Pandey, Learned Counsel for Respondent No.2 /
Defendant No. 2 has made the following submissions:
● That the defendant No. 2 has purchased 50% share of the suit
property from the defendant No.1 / Ramesh Chand.
● That the High Court vide order dated 28.02.2011 in RFA No.
358/2000 as well as this Court vide interim order dated 26.08.2013
in present appeal has protected the right of the Respondent no. 2 as
6
he was a bona fide purchaser of the property and is in possession of
the property.
● That this Court must protect the rights of Respondent No. 2.
10. Upon hearing the Learned Counsels appearing for the parties and
on perusal of the material available on record, the following points would
arise for our consideration:
I. Whether the impugned documents, i.e., Agreement to Sell, General
Power of Attorney, Receipt of Consideration and the registered
Will, allegedly entered into by Mr. Kundan Lal in favour of the
Plaintiff would confer a valid title over the suit property?
II. Whether the Plaintiff can claim any benefit under Section 53A of
TP Act, which deals with Part Performance?
III. To what relief the parties would be entitled to?
FINDINGS:
RE: POINT NO.1
11. It is an undisputed factual position that plaintiff and defendant no. 1
are brothers, and the suit property belongs to their father Lt. Sh. Kundan
Lal. The plaintiff claimed title to the suit property by placing reliance upon
four documents, i.e., agreement to sell dated 16.05.1996, power of attorney
7
dated 16.05.1996, affidavit dated 16.05.1996, receipt dated 16.05.1996, and
a registered Will dated 16.05.1996. Admittedly, no sale deed was executed
in favour of the plaintiff by his father. Hence, this court is called upon to
see whether these documents confer a valid title on him. In order to
ascertain the same, it is essential for us to expound on the position of law
with respect to the same.
Agreement of Sale
12. The Transfer of immovable property inter vivos is governed by the
Transfer of Property Act, 1882 (hereinafter referred to as “the TP Act”).
Section 5 of the said TP Act defines “transfer of property” as follows:
“5. ‘Transfer of property’ defined. —In the following sections
‘transfer of property’ means an act by which a living person
conveys property, in present or in future, to one or more other
living persons, or to himself or to himself and one or more other
living persons and ‘to transfer property’ is to perform such act.”
13. The TP Act envisages five different modes for transferring a
property but for the purpose of the present appeal we are only concerned
with one of the modes i.e., by way of “Sale” and the same is dealt under
section 54 of the TP Act which defines “sale” and a “contract for sale” as
follows:
8
“54. ‘Sale’ defined. — ‘Sale’ is a transfer of ownership in
exchange for a price paid or promised or part-paid and partpromised.
Sale how made. —Such transfer, in the case of tangible
immovable property of the value of one hundred rupees and
upwards, or in the case of a reversion or other intangible thing,
can be made only by a registered instrument.
In the case of tangible immovable property of a value less than
one hundred rupees, such transfer may be made either by a
registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the
seller places the buyer, or such person as he directs, in
possession of the property.
Contract for sale. —A contract for the sale of immovable
property is a contract that a sale of such property shall take place
on terms settled between the parties.
It does not, of itself, create any interest in or charge on such
property.”
14. Perusal of above said provisions lays down a specific mode of
execution of sale deed with respect to immovable property for concluding
the sale of a property. In sale for an immovable property the value of which
exceeds Rs. 100/-, the three requirements of law are that the transfer of
property of sale must take place through a validly executed sale deed, i.e., it
must be in writing, properly attested and registered. Unless the sale deed is
in writing, attested and registered, the transaction cannot be construed as
sale, or in other words, the property will not be transferred.
15. There is a difference between a sale deed and an agreement for sale,
or a contract for sale. A contract for sale of immovable property is a
contract that a sale of such property shall take place on terms settled
9
between the parties. While a sale is a transfer of ownership; a contract for
sale is merely a document creating a right to obtain another document,
namely a registered sale deed to complete the transaction of sale of an
immovable property. Section 54 in its definition of sale does not include an
agreement of sale and neither confers any proprietary rights in favour of the
transferee nor by itself create any interest or charge in the property. If after
entering into a contract for sale of property, the seller without any
reasonable excuse avoids executing a sale deed, the buyer can proceed to
file a suit for specific performance of the contract.
16. The scope of an agreement for sale has been highlighted by this
court in the case of Suraj Lamp and Industries Private Limited (2)
through Director v. State of Haryana and Another3
, wherein this Court
observed that
“16. Section 54 of the TP Act makes it clear that a
contract of sale, that is, an agreement of sale does not, of itself,
create any interest in or charge on such property. This Court in
Narandas Karsondas v. S.A. Kamtam [(1977) 3 SCC 247]
observed:
“32. A contract of sale does not of itself create any interest
in, or charge on, the property. This is expressly declared in
Section 54 of the Transfer of Property Act. (See Ram
Baran Prasad v. Ram Mohit Hazra [AIR 1967 SC 744]).
The fiduciary character of the personal obligation created
by a contract for sale is recognised in Section 3 of the
Specific Relief Act, 1963, and in Section 91 of the Trusts
Act. The personal obligation created by a contract of sale
is described in Section 40 of the Transfer of Property Act
as an obligation arising out of contract and annexed to the
3 (2012) 1 SCC 656
10
ownership of property, but not amounting to an interest or
easement therein.
33. In India, the word ‘transfer’ is defined with reference
to the word ‘convey’. … The word ‘conveys’ in Section 5
of the Transfer of Property Act is used in the wider sense
of conveying ownership.
***
37. … that only on execution of conveyance, ownership
passes from one party to another….”
17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra
[(2004) 8 SCC 614] this Court held:
“10. Protection provided under Section 53-A of the Act to
the proposed transferee is a shield only against the
transferor. It disentitles the transferor from disturbing the
possession of the proposed transferee who is put in
possession in pursuance to such an agreement. It has
nothing to do with the ownership of the proposed
transferor who remains full owner of the property till it is
legally conveyed by executing a registered sale deed in
favour of the transferee. Such a right to protect possession
against the proposed vendor cannot be pressed into service
against a third party.”
18. It is thus clear that a transfer of immovable property
by way of sale can only be by a deed of conveyance (sale deed).
In the absence of a deed of conveyance (duly stamped and
registered as required by law), no right, title or interest in an
immovable property can be transferred.
19. Any contract of sale (agreement to sell) which is not
a registered deed of conveyance (deed of sale) would fall short
of the requirements of Sections 54 and 55 of the TP Act and will
not confer any title nor transfer any interest in an immovable
property (except to the limited right granted under Section 53-A
of the TP Act). According to the TP Act, an agreement of sale,
whether with possession or without possession, is not a
conveyance. Section 54 of the TP Act enacts that sale of
immovable property can be made only by a registered
instrument and an agreement of sale does not create any interest
or charge on its subject-matter.”
11
17. In the instant matter, undisputedly plaintiff claims that there is only
an agreement to sell, and there is no sale deed executed in his favour by the
father. As per the settled position of law, this document does not confer a
valid title on the plaintiff as it is not a deed of conveyance as per Section 54
of the TP Act. At best, it only enables the plaintiff to seek for specific
performance for the execution of a sale deed and does not create an interest
or charge on the suit property.
General Power of Attorney
18. A power of attorney is a creation of an agency whereby the grantor
authorizes the grantee to do the acts specified therein, on behalf of grantor,
which when executed will be binding on the grantor as if done by him. It is
revocable or terminable at any time unless it is made irrevocable in a
manner known to law. A General Power of Attorney does not ipso facto
constitute an instrument of transfer of an immovable property even where
some clauses are introduced in it, holding it to be irrevocable or authorizing
the attorney holder to effect sale of the immovable property on behalf of
the grantor. It would not ipso facto change the character of the document
transforming it into a conveyance deed.4
4 Dr. Poonam Pradhan Saxena, Property Law, Third Edition, 2017 (Lexis Nexis), p. 66
12
19. A power of attorney is not a sale. A sale involves transfer of all the
rights in the property in favour of the transferee but a power of attorney
simply authorises the grantee to do certain acts with respect to the property
including if the grantor permits to do certain acts with respect to the
property including an authority to sell the property.5
20. In the case of State of Rajasthan and Others v. Basant Nahata,
6
it
was held that:
“13. A grant of power of attorney is essentially governed
by Chapter X of the Contract Act. By reason of a deed of power
of attorney, an agent is formally appointed to act for the
principal in one transaction or a series of transactions or to
manage the affairs of the principal generally conferring
necessary authority upon another person. A deed of power of
attorney is executed by the principal in favour of the agent. The
agent derives a right to use his name and all acts, deeds and
things done by him and subject to the limitations contained in
the said deed, the same shall be read as if done by the donor. A
power of attorney is, as is well known, a document of
convenience.
xxxx
52. Execution of a power of attorney in terms of the
provisions of the Contract Act as also the Powers of Attorney
Act is valid. A power of attorney, we have noticed hereinbefore,
is executed by the donor so as to enable the donee to act on his
behalf. Except in cases where power of attorney is coupled with
interest, it is revocable. The donee in exercise of his power
under such power of attorney only acts in place of the donor
subject of course to the powers granted to him by reason thereof.
He cannot use the power of attorney for his own benefit. He acts
in a fiduciary capacity. Any act of infidelity or breach of trust is
a matter between the donor and the donee.”
5 Dr. Poonam Pradhan Saxena, Property Law, Third Edition, 2017 (Lexis Nexis), p.
301
6 (2005) 12 SCC 77
13
21. Further, the position of a power of attorney with respect to
conferment of title was explained by this Court in the case of Suraj Lamp
(supra), thus:
“20. A power of attorney is not an instrument of transfer in
regard to any right, title or interest in an immovable property.
The power of attorney is creation of an agency whereby the
grantor authorises the grantee to do the acts specified therein, on
behalf of grantor, which when executed will be binding on the
grantor as if done by him (see Section 1-A and Section 2 of the
Powers of Attorney Act, 1882). It is revocable or terminable at
any time unless it is made irrevocable in a manner known to law.
Even an irrevocable attorney does not have the effect of
transferring title to the grantee.”
22. Having discussed the position of law, it is essential to peruse the
recitals of the General Power of Attorney, which is on record and pressed
into service by plaintiff. The said GPA merely authorises the grantee to
manage the affairs of the suit property, which includes the power to let out
the property on rent, and create a mortgage of the same, etc. However, it is
silent on the aspect of conveyance. Be that as it may. The recitals of the
power of attorney would indicate the intent of the grantor is to limit the
powers of the grantee to only manage the suit property, and not to create
any interest in his favour, which is in consonance with the settled position
of law as discussed above that a power of attorney is an agency by which
the agent derives the authority or the right to enter into transactions on
14
behalf of the principal. Even if we accept the validity of the Power of
Attorney in favour of the plaintiff, still it does not confer a valid title on
him with respect to the suit property.
Will
23. The third document that the plaintiff has relied upon to claim his
title over the property is a Registered Will dated 16.05.1996 said to have
been executed by his father. The term “Will” has been defined under
Section 2(h) of the Succession Act, 1925 as “the legal declaration of a
testator with respect to his property which he desires to be carried into
effect after his death”. Its essentials have been further enumerated by this
Court in the case of Mathai Samuel and Others v. Eapen Eapen (Dead)
by Lrs. And Others7
thus:
“12. Will is an instrument whereunder a person makes a
disposition of his properties to take effect after his death and
which is in its own nature ambulatory and revocable during his
lifetime. It has three essentials:
(1) It must be a legal declaration of the testator's intention;
(2) That declaration must be with respect to his property; and
(3) The desire of the testator that the said declaration should be
effectuated after his death.
13. The essential quality of a testamentary disposition is
ambulatoriness of revocability during the executant's lifetime.
Such a document is dependent upon the executant's death for its
vigour and effect.”
7 (2012) 13 SCC 80
15
24. Will has also been expounded upon in the case of Suraj Lamp
(supra), thus:
“22. A will is the testament of the testator. It is a
posthumous disposition of the estate of the testator directing
distribution of his estate upon his death. It is not a transfer inter
vivos. The two essential characteristics of a will are that it is
intended to come into effect only after the death of the testator
and is revocable at any time during the lifetime of the testator. It
is said that so long as the testator is alive, a will is not worth the
paper on which it is written, as the testator can at any time
revoke it. If the testator, who is not married, marries after
making the will, by operation of law, the will stands revoked.
Registration of a will does not make it any more effective.”
25. This Court on the issue of the proof of Wills in the case of H.
Venkatachala Iyengar v. B.N. Thimmajamma and Others8
has succinctly
defined the contours as under:
“18. What is the true legal position in the matter of proof
of wills? It is well-known that the proof of wills presents a
recurring topic for decision in courts and there are a large
number of judicial pronouncements on the subject. The party
propounding a will or otherwise making a claim under a will is
no doubt seeking to prove a document and, in deciding how it is
to be proved, we must inevitably refer to the statutory provisions
which govern the proof of documents. Sections 67 and 68 of the
Evidence Act are relevant for this purpose. Under Section 67, if
a document is alleged to be signed by any person, the signature
of the said person must be proved to be in his handwriting, and
for proving such a handwriting under Sections 45 and 47 of the
Act the opinions of experts and of persons acquainted with the
handwriting of the person concerned are made relevant. Section
68 deals with the proof of the execution of the document
required by law to be attested; and it provides that such a
document shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its
execution. These provisions prescribe the requirements and the
nature of proof which must be satisfied by the party who relies
on a document in a court of law. Similarly, Sections 59 and 63 of
the Indian Succession Act are also relevant. Section 59 provides
8 AIR 1959 SC 443
16
that every person of sound mind, not being a minor, may dispose
of his property by will and the three illustrations to this section
indicate what is meant by the expression “a person of sound
mind” in the context. Section 63 requires that the testator shall
sign or affix his mark to the will or it shall be signed by some
other person in his presence and by his direction and that the
signature or mark shall be so made that it shall appear that it was
intended thereby to give effect to the writing as a will. This
section also requires that the will shall be attested by two or
more witnesses as prescribed. Thus the question as to whether
the will set up by the propounder is proved to be the last will of
the testator has to be decided in the light of these provisions.
Has the testator signed the will? Did he understand the nature
and effect of the dispositions in the will? Did he put his
signature to the will knowing what it contained? Stated broadly
it is the decision of these questions which determines the nature
of the finding on the question of the proof of wills. It would
prima facie be true to say that the will has to be proved like any
other document except as to the special requirements of
attestation prescribed by Section 63 of the Indian Succession
Act. As in the case of proof of other documents so in the case of
proof of wills it would be idle to expect proof with mathematical
certainty. The test to be applied would be the usual test of the
satisfaction of the prudent mind in such matters.”
26. Further, in the case of Meena Pradhan and Others v. Kamla
Pradhan and Another9
following essentials to prove a Will were
mentioned:
“10.1. The court has to consider two aspects : firstly, that
the will is executed by the testator, and secondly, that it was the
last will executed by him;
10.2. It is not required to be proved with mathematical
accuracy, but the test of satisfaction of the prudent mind has to
be applied.
10.3. A will is required to fulfil all the formalities
required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the will or it
shall be signed by some other person in his presence and
by his direction and the said signature or affixation shall
9 (2023) 9 SCC 734
17
show that it was intended to give effect to the writing as a
will;
(b) It is mandatory to get it attested by two or more
witnesses, though no particular form of attestation is
necessary;
(c) Each of the attesting witnesses must have seen the
testator sign or affix his mark to the will or has seen some
other person sign the will, in the presence and by the
direction of the testator, or has received from the testator a
personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the will in the
presence of the testator, however, the presence of all
witnesses at the same time is not required;
10.4. For the purpose of proving the execution of the
will, at least one of the attesting witnesses, who is alive, subject
to the process of court, and capable of giving evidence, shall be
examined;
10.5. The attesting witness should speak not only about
the testator's signatures but also that each of the witnesses had
signed the will in the presence of the testator;
10.6. If one attesting witness can prove the execution of
the will, the examination of other attesting witnesses can be
dispensed with;
10.7. Where one attesting witness examined to prove the
will fails to prove its due execution, then the other available
attesting witness has to be called to supplement his evidence.
10.8. Whenever there exists any suspicion as to the
execution of the will, it is the responsibility of the propounder to
remove all legitimate suspicions before it can be accepted as the
testator's last will. In such cases, the initial onus on the
propounder becomes heavier.
10.9. The test of judicial conscience has been evolved for
dealing with those cases where the execution of the will is
surrounded by suspicious circumstances. It requires to consider
factors such as awareness of the testator as to the content as well
as the consequences, nature and effect of the dispositions in the
will; sound, certain and disposing state of mind and memory of
the testator at the time of execution; testator executed the will
while acting on his own free will;
10.10. One who alleges fraud, fabrication, undue influence
et cetera has to prove the same. However, even in the absence of
such allegations, if there are circumstances giving rise to doubt,
then it becomes the duty of the propounder to dispel such
suspicious circumstances by giving a cogent and convincing
explanation.
18
10.11. Suspicious circumstances must be “real, germane
and valid” and not merely “the fantasy of the doubting mind
[Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ”.
Whether a particular feature would qualify as “suspicious”
would depend on the facts and circumstances of each case. Any
circumstance raising suspicion legitimate in nature would
qualify as a suspicious circumstance, for example, a shaky
signature, a feeble mind, an unfair and unjust disposition of
property, the propounder himself taking a leading part in the
making of the will under which he receives a substantial benefit,
etc.”
27. Considering the aforementioned cases, it is clear that in order to
rely upon a Will, the same has to be proved in accordance with law. A Will
has to be attested by two witnesses, and either of the two attesting
witnesses have to be examined by the propounder of the will. In the present
matter, we have carefully perused the Trial Court’s judgment. There is not
an iota of discussion about the validity of the Will as contemplated under
Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act,
1872 and yet, the validity of the Will has been upheld. This is contrary to
law. Even the High Court, while evaluating the validity of the Will, has
gone on a different tangent and has erroneously held that the requirement of
examining the attesting witnesses springs into action only in cases of
disputes between legal heirs. Such an observation is quite contrary to law,
for Section 68 of the Evidence Act makes it mandatory to examine at least
one of the attesting witnesses of the Will. Mere fact that the Will was
19
registered will not grant validity to the document. Besides that, the will
propounded by plaintiff is surrounded with suspicious circumstances, in as
much as the alleged propounder of the Will, Lt. Sh. Kundan Lal, had four
children, including the plaintiff and the defendant No. 1. There is not even
a whisper of reasoning as to why the propounder of the Will choose to
exclude other three children from the bequest, and whether any other
properties or assets were given to them. It is highly unlikely that a father
would grant his entire property to one of his children, at the cost of three
others, without there being any evidence of estrangement between the
father and the children. This suspicious circumstance surrounding the will
has not been removed by the plaintiff either. Hence, for these cumulative
reasons, the Will propounded by plaintiff though registered would not
confer any valid title on the plaintiff either.
Receipt of Consideration / Affidavit
28. Apart from the aforementioned documents, there is also an affidavit
dated 16.05.1996 said to have been executed by Sh. Kundan Lal in favour
of the plaintiff, along with a receipt of consideration, wherein Sh. Kundan
Lal is said to have acknowledged receipt of full consideration for the sale
of suit property to the tune of Rs. 1,40,000/- from the Plaintiff. The said
instruments do not confer a valid title upon the plaintiff because as per
20
Section 54 of TP Act, only through a deed of conveyance can a title can be
transferred, and none of the other documents and recitals in the said
affidavit are not proved by examining any other independent witnesses.
● RE: POINT NO.2
29. The plaintiff also lays claim to the property by virtue of Section
53A of the TP Act. Section 53-A of the TP Act defines “part-performance”
as follows:
“53-A. Part performance. —Where any person contracts to
transfer for consideration any immovable property by writing
signed by him or on his behalf from which the terms necessary
to constitute the transfer can be ascertained with reasonable
certainty:
and the transferee has, in part performance of the contract, taken
possession of the property or any part thereof, or the transferee,
being already in possession, continues in possession in part
performance of the contract and has done some act in
furtherance of the contract,
and the transferee has performed or is willing to perform his part
of the contract,
then, notwithstanding that, where there is an instrument of
transfer, that the transfer has not been completed in the manner
prescribed therefor by the law for the time being in force, the
transferor or any person claiming under him shall be debarred
from enforcing against the transferee and persons claiming
under him any right in respect of the property of which the
transferee has taken or continued in possession, other than a
right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a
transferee for consideration who has no notice of the contract or
of the part performance thereof.”
30. According to Section 53A of the TP Act, where there is a contract
to transfer any immovable property in writing and the transferee has in part
21
performance of the contract taken the possession of the property or part
thereof, then notwithstanding that the transfer has not been completed in
the manner prescribed by law, the transferor will be debarred from taking
the possession of the property. The essential conditions for invoking the
doctrine of part-performance as envisaged u/s 53A of TP Act have been
enunciated by this Court in the case of Nathulal v. Phoolchand10 thus:
“9. The conditions necessary for making out the defence of part
performance to an action in ejectment by the owner are:
(1) that the transferor has contracted to transfer for consideration
any immovable property by writing signed by him or on his
behalf from which the terms necessary to constitute the transfer
can be ascertained with reasonable certainty;
(2) that the transferee, has, in part performance of the contract,
taken possession of the property or any part thereof, or the
transferee, being already in possession continues in possession
in part performance of the contract;
(3) that the transferee has done some act in furtherance of the
contract; and
(4) that the transferee has performed or is willing to perform his
part of the contract.
If these conditions are fulfilled then notwithstanding that the
contract, though required to be registered, has not been
registered, or, where there is an instrument of transfer, that the
transfer has not been completed in the manner prescribed
therefor by the law for the time being in force, the transferor or
any person claiming under him is debarred from enforcing
against the transferee any right in respect of the property of
which the transferee has taken or continued in possession, other
than a right expressly provided by the terms of the contract.”
31. A perusal of Section 53A of TP Act, as well as the case law on
point, it is forthcoming that one of the main ingredients for taking shelter
10 (1969) 3 SCC 120
22
under Section 53A is the factum of possession. Unless the transferee in the
instrument of agreement to sale is able to prove that he has been in
possession of the suit property, no benefit u/s 53A will be given. In the
instant matter, the very fact that plaintiff has filed the present suit for
possession, along with other reliefs, shows that on the date of filing of the
suit, plaintiff was not in possession of the entire suit property. Since there
was no possession with the plaintiff, he cannot derive any benefit under the
doctrine of part-possession.
● RE: POINT NO.3
32. Thus, the aforestated discussion would indicate that the property
was originally owned by Shri Kundan Lal namely the father of plaintiff and
defendant No.1 and on his demise the succession has opened up. The will
dated 16.05.1996 propounded by the plaintiff having been held not proved
and as such class-I legal heirs of deceased Shri Kundan Lal would be
entitled to the share in the suit schedule property.
33. In the instant case, the appellant herein has sold 50% of the suit
property in favour of the second defendant. This Court by order dated
26.08.2013 had passed the following order:
“In view of the statement contained in para 11 of the impugned
judgment as well as the operative portion thereof, interim order
23
dated 05.09.2012 is modified and it is made clear that the same
shall not prejudicially affect the rights of respondent No.2.”
34. In the light of the said order passed, we are of the considered view
that the right of the second defendant would stand protected to the extent of
the share of the appellant only and except reiterating to this effect
contentions of all parties are kept open, and no opinion is expressed and
they are at liberty to work out their rights if so advised in accordance with
law.
35. In the light of the aforementioned discussion, the impugned
judgment is set aside, and appeal is allowed, and suit of the plaintiff stands
dismissed subject to the observations made herein above. We make no
order as to costs. Pending application(s), if any, shall stand consigned to
records.
.……………………………., J.
[ARAVIND KUMAR]
.……………………………., J.
[SANDEEP MEHTA]
New Delhi;
September 01st, 2025.
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