DDA executed perpetual sub-lease deed dated 16.08.1967 in respect of
the suit property in favour of one Sh. Jan Talwar (Defendant No.1 in the
original suit). Jan Talwar by an agreement to sell dated 10.6.1986, agreed
to sell the suit property to Mrs. Raymen Kukreja for a sale consideration
of Rs.20,50,000/-.
Jan Talwar, in respect of the same suit property, also
executed a General Power of Attorney dated 10.06.1986 in favour of Lekh Raj
Kukreja-husband of vendee i.e. Mrs. Raymen Kukreja.
The cause of action
arose in the year 1989, when Jan Talwar refused to execute the sale deed,
even after receiving the complete sale consideration.
This led to the
filing of civil suit being CS (OS) No.2777/1989 for a decree of specific
performance of the aforesaid agreement to sell.
Compromise Decree
"There will be a decree for specific performance of the agreement dated
10th June, 1986 in favour of Plaintiff No.2 and against Defendant No.1 in
respect of property No.N-73, Panchsheel Park, New Delhi. Defendant No.1
shall arrange to have sale deed executed within a period of 30 days from
today. In case he fails to do so the Registrar of this Court shall
nominate or appoint some official of this Court to execute the sale deed
for and on behalf of Defendant No.1 and in favour of Plaintiff No.2 on
payment of requisite stamp duty and registration charges. The official
nominated by the Registrar will be paid a fee of Rs.10,000/-."
Based on the compromise decree in the original suit,
Gaurav Kukreja applied to DDA for the conversion of suit property from
leasehold to freehold.
However, the DDA refused the conversion on the
ground that as per the scheme, Gaurav Kukreja did not possess a good
title.
Learned Single Judge of High Court of Delhi, after considering
material on record allowed the writ petition by holding that the decree
passed in the civil suit stands on a higher footing than any General Power
of Attorney as per Clause 13(a) of the Conversion Policy.
In the suit for specific performance filed by respondent-Gaurav
Kukreja and his father-Lekh Raj Kukreja, DDA was not made a party to the
suit despite the fact that it was within their knowledge that the property
is a leasehold property under the control of DDA and cannot be disposed of
without obtaining a prior permission from the DDA. In terms of Section
15(a) of the Specific Performance Act 1963, the suit for specific
performance can be filed by "any party" to the contract. In the instant
case, suit for specific performance was filed by the respondent and his
father who admittedly were not the parties to the agreement to sell. Jan
Talwar (vendor), during the pendency of suit, remained exparte and the
suit was decreed in terms of a compromise arrived between the parties,
all of whom were family members.
In our considered view, suit for
specific performance is a collusive suit, where the respondent
and his father used the process of the court to get rid of the stamp
duty, registration charges and unearned increase payable to DDA.
Instead of complying with the above order of the High Court and
getting the sale deed executed, after making payment of registration
charges and stamp duty, the respondent applied for conversion of the
property through Lekh Raj Kukreja (father of the respondent and power of
attorney holder) and the same was rejected.
A scheme of conversion from leasehold system of land tenure
into freehold was brought into force and noticed by the Government. The
relevant clause of the Scheme of Conversion i.e. Clause 13 reads as under:-
"13. The conversion shall also be allowed in the cases where
lessee/sub-lessee/allottee has parted with the possession of the property
provided that:
a) Application for conversion is made by a person holding power of
attorney from lessee/sub-lessee/allottee to alienate (sell/transfer) the
property.
b) Proof is given of the possession of the property in favour of the
person in whose name conversion is being sought.
c) Where there are successive power of attorneys, conversion will be
allowed after verifying the factum of possession provided that the linkage
of original lessee/sub-lessee/allottee with the last power of attorney is
established and attested copies of power of attorneys are submitted.
In such cases, a surcharge of 331/3% on the conversion fee would be payable
over and above the normal conversion charges (no unearned increase will be
recoverable)."
We therefore reiterate that immovable property can be legally and
lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of "GPA sales" or "SA/GPA/WILL transfers" do not
convey title and do not amount to transfer, nor can they be recognised or
valid mode of transfer of immovable property. The 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 recognised as deeds of title, except to the limited extent
of Section 53-A of the TP Act. Such transactions cannot be relied upon or
made the 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 the pernicious practice of SA/GPA/WILL
transactions known as GPA sales."
lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of "GPA sales" or "SA/GPA/WILL transfers" do not
convey title and do not amount to transfer, nor can they be recognised or
valid mode of transfer of immovable property. The 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 recognised as deeds of title, except to the limited extent
of Section 53-A of the TP Act. Such transactions cannot be relied upon or
made the 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 the pernicious practice of SA/GPA/WILL
transactions known as GPA sales."
holder of a power of attorney nor had any subsisting right in the suit
property and while so, the High Court was not right in holding that the
respondent is entitled to apply for conversion of the property. Dehors the
scheme of conversion, the respondent is not entitled to apply for
conversion of the property.
In our considered view, the respondent does
not fall within the ambit of Clause 13 of the Conversion Scheme and
therefore the impugned order of the High Court cannot be sustained and is
liable to be set aside and the appeal deserves to be allowed.
In the result, the impugned order is set aside and the appeal
is allowed.
The respondent is at liberty to pursue the matter with DDA in accordance with law.
Respondent is also at liberty to seek for return of money deposited by him/his father-Lekhraj Kukreja and when such application is made for return of money, the appellant/DDA is directed to return the same with 10% interest. No order as to costs. - 2015 S.C. msk law reports.
