Criminal Procedure – Section 482 Cr.P.C. / Section 528 BNSS, 2023 – Quash petition – A.P. Protection of Depositors of Financial Establishments Act, 1999 – Section 5 – Jurisdiction – Liberty to raise objection before Trial Court – Disposal without adjudication on merits Held:

Criminal Procedure – Section 482 Cr.P.C. / Section 528 BNSS, 2023 – Quash petition – A.P. Protection of Depositors of Financial Establishments Act, 1999 – Section 5 – Jurisdiction – Liberty to raise objection before Trial Court – Disposal without adjudication on merits

Held:
Where the petitioner/accused seeks quashment of proceedings confined to Section 5 of the A.P. Protection of Depositors of Financial Establishments Act, 1999, on the ground of lack of jurisdiction, and during hearing confines the relief to seeking liberty to raise all such grounds before the Trial Court, the High Court may dispose of the Criminal Petition granting such liberty, without adjudicating the issue on merits. On filing of an appropriate application, the Trial Court shall consider and decide the question of jurisdiction in accordance with law.
(Paras 1–4)

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ANALYSIS OF FACTS AND LAW

I. Nature of Proceedings

The Criminal Petition was filed under Section 482 Cr.P.C. / Section 528 BNSS, 2023, seeking partial quashment of proceedings in C.C.No.2 of 2018 pending before the Special Judge under the A.P. Protection of Depositors of Financial Establishments Act, 1999, limited only to Section 5 of the said Act, on the ground of lack of jurisdiction.
(Para 1)

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II. Submission of the Petitioner

At the time of hearing, learned counsel for the petitioner expressly restricted the relief, submitting that the petition may be disposed of by granting liberty to raise all available grounds before the Trial Court by filing an appropriate application.
(Para 2)

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III. Stand of the State

The learned Assistant Public Prosecutor, appearing for the State, did not oppose such course and submitted that the Court may pass appropriate orders.
(Para 3)

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IV. Scope of High Court’s Order

The High Court, considering the limited submission made on behalf of the petitioner, did not enter into the merits of the jurisdictional challenge. Instead, the Court exercised restraint and disposed of the petition by granting liberty to the petitioner to approach the Trial Court.

The Trial Court was directed that, upon filing of such application, it shall take an appropriate decision according to law on the point of jurisdiction.
(Para 4)

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V. Effect of the Order

The Criminal Petition stood disposed of, and all pending miscellaneous petitions, if any, were directed to stand closed as a consequence.
(Para 4)

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RATIO DECIDENDI

1. When a petitioner under Section 482 Cr.P.C. / Section 528 BNSS confines relief to seeking liberty to raise jurisdictional objections before the Trial Court, the High Court may dispose of the petition without adjudicating the issue on merits.

2. Questions relating to jurisdiction under the A.P. Protection of Depositors of Financial Establishments Act, 1999 can be left open to be decided by the Trial Court, upon an appropriate application being filed by the accused.

3. Disposal of a quash petition granting liberty does not amount to affirmation or rejection of the jurisdictional objection and keeps all contentions open.

ADVOCATEMMMOHAN: Civil Procedure – Suit for declaration of title – ...

ADVOCATEMMMOHAN: Civil Procedure – Suit for declaration of title – ...: Civil Procedure – Suit for declaration of title – Burden of proof – Revenue entries – Pattadar passbooks – Cist receipts – Presumption of ow...

Civil Procedure – Suit for declaration of title – Burden of proof – Revenue entries – Pattadar passbooks – Cist receipts – Presumption of ownership – Section 110 Evidence Act (Section 113, BSA, 2023)

Held:
In a suit for declaration of title, the burden of proof lies squarely on the plaintiff to establish title by cogent evidence. The plaintiff must succeed on the strength of his own title and not on the weakness of the defendant’s case. Revenue entries, pattadar passbooks, mutation records and cist receipts are not documents of title and do not confer ownership. Mere possession or alleged cultivation, even if assumed, does not dispense with proof of title. Presumption under Section 110 of the Evidence Act (now Section 113 of the Bharatiya Sakshya Adhiniyam, 2023) is rebuttable and arises only when possession is lawful and no title is shown to vest in any other party. Where revenue records stand in the name of an endowment/Mutt, the maxim “possession follows title” cannot be invoked to grant declaration in the absence of proof of title in plaintiffs’ ancestors. Mere resemblance or identity of surname does not establish ancestral title.
(Paras 21–23, 26–28, 33, 37–48, 54)

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ANALYSIS OF FACTS AND LAW

A. Nature of the Suit and Core Controversy

The appellants/plaintiffs sought declaration of title and consequential permanent injunction over multiple extents of agricultural land, claiming the properties to be ancestral, tracing lineage to one Matam Veera Brahmam Swamy. Their case rested substantially on cist receipts, pattadar passbooks, and alleged long possession and cultivation.
(Paras 3–5)

The second respondent (Mutt) categorically denied plaintiffs’ title, asserting that the suit lands were endowment properties belonging to Sri Pothuluri Veera Brahmendra Swamy Mutt, and that plaintiffs’ predecessors were merely associated with service to the Mutt.
(Paras 7, 30)

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B. Findings on Burden of Proof

The Court reaffirmed the settled principle that in a suit for declaration of title, the plaintiff bears the initial and continuous burden to establish title by reliable evidence. Failure to do so is fatal, irrespective of whether the defendant successfully proves his own title.
(Paras 21–23)

The plaintiffs did not produce any registered document, adangal, RSR entry, or title deed to establish that the suit properties ever belonged to their ancestors.
(Paras 11, 27, 31–33)

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C. Evidentiary Value of Revenue Records

The pattadar passbooks and mutation entries relied upon by the plaintiffs were held to be revenue records meant for fiscal purposes, incapable of conferring or proving title.
(Paras 26–28, 48–53)

Conversely, revenue records including RSR, Adangal, and Endowment entries stood in the name of the Mutt/Endowment Commissioner, which remained unrebutted by the plaintiffs.
(Paras 28, 31–32, 47)

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D. Pleadings and Alleged Admissions

The plaintiffs’ contention that the defendant admitted possession or cultivation was rejected. The Court held that:

• References to “alleged cultivation” do not amount to admissions.

• Pleadings must be read as a whole.

• Pleading “ignorance” regarding issuance of pattadar passbooks or loans does not amount to admission of title or possession.
  (Paras 34–36)

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E. Presumption under Section 110 Evidence Act

The Court exhaustively examined the scope of Section 110 of the Evidence Act (now Section 113, BSA, 2023) and held that:

• Presumption of ownership from possession is rebuttable.

• It applies only where possession is lawful and no competing title exists.

• It cannot be invoked where title is specifically claimed and disputed, and where revenue records show title in another entity.
  (Paras 37–47)

---

F. Surname and Ancestral Claim

The Court rejected the argument that the common use of the surname “Matam” established ancestral ownership, holding that mere resemblance of surname cannot convert Mutt property into private ancestral property.
(Paras 26, 30, 54(vi))

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RATIO DECIDENDI

1. In a suit for declaration of title, the plaintiff must establish title by cogent documentary evidence; failure to do so mandates dismissal, irrespective of weaknesses in the defendant’s case.

2. Revenue records, pattadar passbooks, mutation entries and cist receipts are not documents of title and cannot form the basis for declaration of ownership.

3. The presumption under Section 110 of the Evidence Act (Section 113, BSA, 2023) that possession follows title is rebuttable and arises only when possession is lawful and no title vests in another party.

4. Where revenue records stand in the name of an endowment or Mutt, and plaintiffs fail to prove ancestral title, the maxim “possession follows title” cannot be invoked.

5. Mere identity or resemblance of surname does not establish ancestral ownership of property recorded in the name of a religious institution.

ADVOCATEMMMOHAN: Indian Contract Act, 1872 — Ss. 43, 44 & 128 — Joi...

ADVOCATEMMMOHAN: Indian Contract Act, 1872 — Ss. 43, 44 & 128 — Joi...: advocatemmmohan Indian Contract Act, 1872 — Ss. 43, 44 & 128 — Joint promisors and sureties — Distinction — Applicability of S.44 Sectio...

advocatemmmohan

Indian Contract Act, 1872 — Ss. 43, 44 & 128 — Joint promisors and sureties — Distinction — Applicability of S.44

Sections 43 and 44 of the Indian Contract Act, 1872, operate only in relation to joint promises falling under Chapter IV of the Act. The principle that release of one joint promisor does not discharge the others is confined to contracts where all promisors stand on equal footing with respect to performance of the promise. The said principle cannot be extended to contracts of guarantee governed by Chapter VIII of the Act. A surety does not stand in the position of a joint promisor; his liability is secondary and dependent upon the subsistence of the liability of the principal debtor. Application of Sections 43 and 44 to sureties, without maintaining this statutory distinction, is legally impermissible.
(Paras 26–27, 33–37, 41–44)

Guarantee — Co-extensive liability — Limits

Though Section 128 declares that the liability of the surety is co-extensive with that of the principal debtor, such co-extensiveness operates subject to the provisions governing discharge of surety. Where the principal debtor is discharged by acts or omissions of the creditor, or where the creditor enters into arrangements amounting to composition, giving time, or agreeing not to sue, the surety stands discharged under Section 135.
(Paras 33–37, 41–44)

Execution — Sureties — Selective execution — Limits

While a creditor may choose to proceed against the surety or the principal debtor, such choice does not obliterate the statutory protections available to the surety. Presence of the principal debtor in execution proceedings becomes necessary to examine whether circumstances attracting discharge under Chapter VIII have arisen. In the absence of a contract to the contrary, co-sureties are governed by Sections 146 and 147 and cannot be fastened with the entire liability selectively.
(Paras 41–44)

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CASE DETAILS

M. Venkataramanaiah v. M/s. Margadarsi Chit Fund Limited and Others
Civil Revision Petition No. 5357 of 2007
Decision dated: 15-11-2008
Court: High Court of Telangana 

pasted

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ANALYSIS OF FACTS

1. The 2nd respondent was a prized subscriber in a chit conducted by the 1st respondent. The petitioner and respondents 3 to 7 stood as sureties for payment of instalments.

2. On default by the principal debtor, the 1st respondent obtained a money decree against all defendants.

3. In execution, the decree-holder selectively proceeded against only three judgment-debtors (all sureties), including the petitioner, seeking arrest under Order XXI Rule 37 C.P.C., without effectively proceeding against the principal debtor or other sureties.

4. The executing Court ordered arrest of the petitioner alone, holding that he possessed sufficient means.

5. The petitioner challenged the order contending that:

   • Sureties are not joint promisors;

   • Liability cannot be imposed selectively and wholly on one surety;

   • Acts of the creditor subsequent to the decree had the effect of discharging the sureties.

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STATUTORY FRAMEWORK CONSIDERED

• Chapter IV — Performance of Contracts (Ss. 37–45): Joint promisors (Ss. 43 & 44)

• Chapter VIII — Indemnity and Guarantee (Ss. 126–147): Suretyship

• Section 128 — Co-extensive liability of surety

• Sections 133–135 — Discharge of surety

• Sections 146–147 — Contribution among co-sureties

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RATIO DECIDENDI

1. Joint Promisors v. Sureties — Foundational Distinction (Paras 26–27, 33–37)

The Court held that:

• Joint promisors are bound equally and primarily to perform the contract.

• Suretyship is fundamentally different: the principal debtor bears the primary obligation, and the surety’s obligation is secondary and conditional.

Therefore:

• Sections 43 and 44, which govern joint promisors, cannot be bodily lifted and applied to contracts of guarantee.

2. Inapplicability of Section 44 to Sureties (Paras 33–37, 41–44)

• Section 44 states that release of one joint promisor does not discharge others.

• In contrast, under Chapter VIII:

  • Discharge of the principal debtor, or arrangements such as composition or giving time, automatically discharge the surety.

• The Court held that applying Section 44 to sureties destroys the statutory safeguards expressly enacted for them.

3. Effect of Creditor’s Conduct Post-Decree (Paras 41–44)

• The decree-holder accepted instalments from the principal debtor after decree and collected compound interest.

• Such conduct amounted to an arrangement giving time or composition, attracting Section 135, thereby discharging the sureties.

• Failure to effectively proceed against the principal debtor, particularly when insolvency was pleaded, attracted adverse consequences against the creditor.

4. Co-sureties — No Selective Burden (Paras 41–44)

• Even assuming execution was otherwise permissible, Sections 146 and 147 mandate equal contribution among co-sureties.

• There was no legal basis to saddle the entire decretal liability on the petitioner alone.

5. Procedural Illegality in Execution

• The executing Court failed to follow mandatory safeguards under Order XXI C.P.C. before directing arrest.

• On this ground also, the order was unsustainable.

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FINAL HOLDING

• The Civil Revision Petition was allowed.

• The order directing arrest of the petitioner was set aside.

• No order as to costs.

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DOCTRINAL SIGNIFICANCE

This decision qualifies and limits the broad observations made in earlier cases such as M.G. Brothers Finance Ltd. v. J. Badarinath by restoring the statutory boundary between joint promises (Chapter IV) and guarantees (Chapter VIII). It authoritatively holds that Sections 43 and 44 cannot be applied to sureties, and that selective execution against a surety must always be tested against the discharge provisions and contribution principles embedded in the law of guarantee.

Comparative Table

Aspect	Andhra Pradesh High Court – M.G. Brothers Finance Ltd. v. J. Badarinath (21-08-2006)	High Court of Telangana – M. Venkataramanaiah v. Margadarsi Chit Fund Ltd. (15-11-2008)
Nature of Liability Considered	Treated liability as joint liability of judgment-debtors, including guarantor	Treated liability as suretyship under a contract of guarantee
Primary Statutory Provisions Applied	Sections 43 and 44, Indian Contract Act, 1872	Sections 126–128, 133–137, 146–147, Indian Contract Act, 1872
Conceptual Framework	Joint promisors under Chapter IV (Performance of Contracts)	Principal debtor–surety relationship under Chapter VIII (Guarantee)
Status of Surety	Considered on par with other judgment-debtors for execution purposes	Held distinct from joint promisor; liability is secondary
Applicability of Section 44	Applied — release or non-proceeding against one does not discharge others	Held inapplicable to sureties; confined to joint promises
View on Section 128 (Co-extensive liability)	Used to justify unrestricted execution against guarantor	Applied subject to discharge provisions (Sections 133–135)
Decree-holder’s Right in Execution	Decree-holder has absolute discretion to proceed against any judgment-debtor for entire amount	Creditor’s choice is qualified by statutory protections available to surety
Selective Execution	Permitted; Court cannot dictate sequence or proportion of recovery	Selective fastening of entire liability on one surety impermissible
Role of Principal Debtor in Execution	Not mandatory to proceed first or simultaneously	Presence necessary to examine subsistence of liability and discharge events
Effect of Creditor’s Conduct (post-decree)	Not treated as affecting execution rights	Acceptance of instalments / giving time attracts Section 135 → discharge of surety
Right of Judgment-Debtor / Surety	Only right is contribution from co-judgment-debtors or recovery from principal	Right to discharge + contribution limited by Sections 146–147
Approach to Earlier Case Law	Relied on Indexport Registered to expand execution discretion	Distinguished Indexport; confined its application to mortgage / non-surety context
Final Outcome	Execution against selected judgment-debtor upheld	Execution against single surety set aside
Doctrinal Emphasis	Creditor-centric execution autonomy	Statutory balance between creditor rights and surety protection

ADVOCATEMMMOHAN: Negotiable Instruments Act, 1881 — Ss. 138 & 141 —...

ADVOCATEMMMOHAN: Negotiable Instruments Act, 1881 — Ss. 138 & 141 —...: advocatemmmohan Negotiable Instruments Act, 1881 — Ss. 138 & 141 — Partnership Firm — Dishonour of cheque — Liability of partners Partne...

Negotiable Instruments Act, 1881 — Ss. 138 & 141 — Partnership Firm — Dishonour of cheque — Liability of partners

1. Partnership firm — Not a separate juristic entity — Firm only a compendious name for partners
   Partnership firm has no independent legal personality distinct from its partners; partners collectively constitute the firm and are personally liable for acts of the firm.
   (Paras 7.5–7.6, 7.9–7.11)

2. Section 141 — Inclusion of firm within “company” — Purpose and scope
   Inclusion of firm within the definition of “company” under Explanation (a) to Section 141 is a legal fiction adopted for convenience; such fiction does not equate a partnership firm with a body corporate having separate juristic existence.
   (Paras 9.5–9.7)

3. Liability of partners — Joint and several — Not vicarious
   Liability of partners for dishonour of cheque issued in the name of a partnership firm is joint and several, arising from partnership law; concept of vicarious liability applies to companies and not to partnership firms.
   (Paras 6.9, 9.7–9.9)

4. Non-arraignment of partnership firm — Effect on maintainability
   Where partners of a firm are impleaded as accused, non-arraignment of the partnership firm does not render the complaint under Section 138 non-maintainable.
   (Paras 6.9–6.10, 9.9–9.10)

5. Statutory notice — Notice to partners — Whether notice to firm
   Notice issued to partners of a partnership firm can be construed as notice to the firm itself, as the firm acts only through its partners.
   (Paras 6.10, 10)

6. Aneeta Hada principle — Applicability limited to companies
   Requirement of arraigning the company as an accused for fastening vicarious liability on directors does not apply with the same rigour to partnership firms.
   (Paras 6.2, 6.9)

7. Curable defect — Permission to implead firm
   Even if partnership firm was not originally arraigned, court may permit its impleadment; defect not incurable where partners are already before the court.
   (Paras 6.9–6.10, 10)

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ANALYSIS OF FACTS

The appellant advanced a loan of ₹21,00,000 to the respondents, who were partners of the partnership firm Mouriya Coirs (Paras 2.1–2.2).

A cheque issued in the name of the partnership firm and signed by one partner was dishonoured on presentation (Para 2.2).

Statutory notice under Section 138 was issued to both partners, but not to the firm, and the complaint impleaded only the partners (Para 2.4).

The High Court quashed the complaint holding that failure to issue notice to the firm and to arraign the firm as an accused was fatal, relying upon Section 141 of the Act (Para 2.5).

The complainant challenged the said view before the Supreme Court.

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ANALYSIS OF LAW

1. Legal Nature of a Partnership Firm

The Court reiterated settled jurisprudence that a partnership firm is not a legal person and has no existence independent of its partners; the firm name is merely a collective description of partners carrying on business (Paras 7.5–7.6).

2. Liability of Partners under Partnership Act

Under Sections 25 and 26 of the Partnership Act, partners are jointly and severally liable for acts of the firm done in the course of business (Paras 7.19–7.23).
Such liability is direct and personal, not derivative.

3. Interpretation of Section 141 NI Act

Section 141 employs a deeming fiction by including a firm within the expression “company” (Paras 9.5–9.6).
However, the Court clarified that this fiction cannot obliterate the fundamental distinction between a company and a partnership firm (Paras 9.7–9.9).

4. Distinction from Company-based Vicarious Liability

In a company, liability of directors is vicarious and contingent upon the company being arraigned as an accused (Aneeta Hada).
In contrast, in a partnership firm, partners themselves constitute the firm, and liability is joint and several, not vicarious (Paras 6.9, 9.8–9.9).

5. Effect of Notice and Arraignment

Since the firm acts only through partners, notice issued to partners is sufficient compliance with Section 138 (Paras 6.10, 10).
Non-arraignment of the firm is, at best, a curable procedural defect and cannot justify quashing of proceedings (Paras 6.9–6.10).

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RATIO DECIDENDI

In prosecutions under Section 138 of the Negotiable Instruments Act involving a partnership firm, the liability of partners is joint and several, flowing directly from partnership law; consequently, issuance of statutory notice to partners and prosecution of partners alone is sufficient, and non-arraignment of the partnership firm as an accused does not render the complaint non-maintainable.

ADVOCATEMMMOHAN: Mere registration of documents such as agreement t...

ADVOCATEMMMOHAN: Mere registration of documents such as agreement t...: advocatemmmohan Transfer of Property Act, 1882 — Sections 54 & 53-A — Registered documents — Possession — Title (Paras 14–19, 29–31) Me...

Mere registration of documents such as agreement to sell, General Power of Attorney or even a Will does not confer title to immovable property in the absence of a registered deed of conveyance and delivery or proof of possession; where the claimant is not in possession, registration alone neither transfers ownership nor attracts protection under Section 53-A of the Transfer of Property Act.

advocatemmmohan

Transfer of Property Act, 1882 — Sections 54 & 53-A — Registered documents — Possession — Title

(Paras 14–19, 29–31)
Mere registration of documents such as agreement to sell, General Power of Attorney, affidavit or receipt does not convey title to immovable property. Transfer of ownership can be effected only through a registered deed of conveyance. In the absence of possession, no right, title or interest accrues, nor can protection under Section 53-A of the Transfer of Property Act be claimed.

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Registration — Effect — Whether cures absence of conveyance or possession

(Paras 18–19, 27–31)
Registration by itself does not validate a transaction nor operate as a transfer of ownership when statutory requirements of conveyance and possession are not satisfied. Registration cannot substitute delivery of possession or execution of a sale deed as required under law.

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Will — Registration — Title — Possession

(Paras 23–27)
A registered Will does not operate as a transfer inter vivos and does not confer title merely by registration. Proof in accordance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act is mandatory, and registration alone does not create ownership or possession.

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Part Performance — Section 53-A — Possession — Mandatory condition

(Paras 29–31)
Protection under Section 53-A is conditional upon the transferee being in possession in part performance of the contract. Where possession is absent, the doctrine of part performance is unavailable, irrespective of registration of the underlying document.

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Suit for possession — Effect

(Para 31)
Filing of a suit for possession itself establishes absence of possession and disentitles the claimant from invoking Section 53-A or asserting title based on registered but incomplete instruments.

ANALYSIS OF LAW AND FACTS

A. Undisputed Facts

1. The suit schedule property admittedly belonged to the father of the plaintiff and defendant No.1.

2. No registered sale deed was executed by the father in favour of the plaintiff during his lifetime.

3. The plaintiff relied upon a set of documents dated 16-05-1996, namely, Agreement to Sell, General Power of Attorney, affidavit, receipt of consideration and a registered Will.

4. On the date of suit, the plaintiff was not in possession of the suit property and had, in fact, sought recovery of possession by filing the suit.

(Paras 11, 17, 29, 31)

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B. Legal Position on Registration and Title

5. Section 54 of the Transfer of Property Act mandates that transfer of ownership in immovable property of value exceeding Rs.100/- can be effected only by a registered instrument of conveyance.

6. An agreement to sell, even if registered, does not create any right, title or interest in the property and merely gives a right to seek specific performance.

7. A General Power of Attorney is an instrument of agency and does not operate as a conveyance or transfer of ownership, irrespective of its registration or recitals.

(Paras 14–19, 18–22)

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C. Registration and Possession — Interplay

8. Registration of documents does not dispense with statutory requirements of conveyance and possession.

9. For invoking protection under Section 53-A of the Transfer of Property Act, possession in part performance is a sine qua non.

10. Absence of possession disentitles the claimant from claiming any equitable protection, notwithstanding registration of the underlying documents.

(Paras 29–31)

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D. Application to the Facts of the Case

11. The plaintiff’s own act of filing a suit for possession conclusively established that he was not in possession of the suit property.

12. Since possession was absent, the plaintiff could neither claim ownership nor invoke Section 53-A of the Transfer of Property Act.

13. Mere registration of documents, including a Will, did not cure the absence of a registered conveyance or possession.

(Paras 17, 27, 29–31)

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E. Consequence

14. In the absence of a valid conveyance and possession, the documents relied upon by the plaintiff did not confer title.

15. Upon failure of proof of the Will, succession opened in accordance with law in favour of Class-I legal heirs.

(Paras 27, 32)

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RATIO DECIDENDI

Mere registration of documents such as agreement to sell, General Power of Attorney or even a Will does not confer title to immovable property in the absence of a registered deed of conveyance and delivery or proof of possession; where the claimant is not in possession, registration alone neither transfers ownership nor attracts protection under Section 53-A of the Transfer of Property Act.

(Paras 14–19, 27, 29–31)