Power Of Attorney Is Of No Consequence If Neither Sale Deed Is Executed Nor Any Action Is Taken By Its Holder: SC

The Supreme Court while dealing with a batch of appeals has observed that the power of attorney is of no consequence if neither sale deed has been executed nor any action pursuant thereof is taken by the power of attorney holder.

The two-Judge Bench of Justice Dipankar Datta and Justice Pankaj Mithal held, “It goes without saying that the power of attorney executed by the defendant-appellant is of no consequence as on the strength of said power of attorney, neither sale deed has been executed nor any action pursuant thereof has been taken by the power of attorney holder which may confer title upon the plaintiff-respondent. Non-execution of any document by the general power of attorney holder consequent to it renders the said general power of attorney useless.”

The Bench also said that similarly, the will comes into effect only after the death of the executant and not before it and that it has no force till the testator or the person making it dies.

Advocate Rajul Shrivastav appeared for the appellant while none appeared for the respondent.

In this case, after having lost from all the courts, the appellant i.e., the defendant to the suit preferred an appeal before the Apex Court. The respondent i.e., the plaintiff instituted a suit for eviction of the appellant from the suit premises and for mesne profits on the averment that he was the owner of the property by virtue of an agreement to sell, power of attorney, a memo of possession and a receipt of payment of sale consideration as well as a “will” of the appellant bequeathing the said property in his favour.

The possession of the suit premises was handed over to the respondent pursuant to the agreement to sell subsequently on the request of the appellant and the respondent allowed the appellant to occupy the ground floor and one room on the first floor of it for a period of 3 months as a licencee but the appellant failed to vacate the suit premises despite the expiry of the licence period and termination of licence vide notice. The appellant contested the suit on the ground that the said documents were manipulated on blank papers.

The Supreme Court in the above context noted, “… even the aforesaid will in no way confers any right upon the plaintiff-respondent. … In connection with the general power of attorney and the will so executed, the practice, if any, prevalent in any State or the High Court recognizing these documents to be documents of title or documents conferring right in any immovable property is in violation of the statutory law. Any such practice or tradition prevalent would not override the specific provisions of law which require execution of a document of title or transfer and its registration so as to confer right and title in an immovable property of over Rs.100/- in value.”

The Court further noted that legally an agreement to sell may not be regarded as a transaction of sale or a document transferring the proprietary rights in an immovable property but the prospective purchaser having performed his part of the contract and lawfully in possession acquires possessory title which is liable to be protected in view of Section 53A of the Transfer of Property Act, 1882 and hence, the said possessory rights of the prospective purchaser cannot be invaded by the transferer or any person claiming under him.

“… the plaintiff-respondent has rightly been held to be entitled for a decree of eviction with mesne profits, we do not find any error or illegality in such a decree being passed”, said the Court.

Accordingly, the Apex Court dismissed the appeals.

Cause Title- Ghanshyam v. Yogendra Rathi

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