Bombay High Court

Bombay High Court

Ramniklal Tulsidas Kotak And ... vs Varsha Builders And Others on 26
August, 1991
Equivalent citations: AIR 1992 Bom 62
Bench: D Dhanuka
ORDER
1. By my order dated 30th July 1991, I have granted injunctions, inter
alia, in respect of flats and shops in the building under construction on
the suit land or any part thereof and also passed a conditional order for
appointment of receiver in respect of the suit land and all the
structures standing on the suit land or any part thereof. The defendant
No. 1 is constructing 51 flats and several shops after amalgamation of
the suit plot with two other plots. I had therefore thought it proper to
direct the parties to file affidavits so as to identify the flats
and shops covered by the above referred order dated 30th July 1991. After
considering the affidavit of defendant No. 2 dated 5th August 1991 and
affidavit of plaintiff No. I dated 8th August 1991 and the submissions of
learned counsel for the plaintiffs and defendants Nos. 1 to 3, I pass
this clarificatory order to the effect that the order dated 30th July
1991 shall be applicable to 39 flats and 4 shops particularised in
Exhibits 1 and 2 to the affidavit of defendant No. 2 dated 5th August
1991 in addition to the same being applicable to the suit plot. On a
prima facie view of the matter, I have decided to accept the identity of
the flats and the shops constructed or being constructed on the suit plot
or part thereof as set out in the affidavit of defendant No. 2. 2. I am
not permitting defendants Nos. 1 to 3 to re-open the matter in respect of
any of the matters already decided by me by may order dated 30th July
1991 and not covered by the liberty granted by the said order. Hence it
is directed that paragraph 4 of the affidavit of defendant No. 2 dated
5th August 1991 and reply thereto shall be treated as deleted. 3. One of
the questions which arose for consideration of the Court while deciding
this notice of motition was about the validity of the certificate of
title appended to the printed agreements of sale in respect of flats and
shops on the suit plot relied upon by defend-ant No. 1 in support of its
plea of bona fides. Having regard to the legal position enunciated in the
later part of this order and overall view of the facts of this case, I
have no hesitation in observing that prima facie the said certificate of
title is unsatisfactory. The said certificate is based inter alia on the
declaration of defendants Nos. 4 to 9 to the effect that the plaintiffs
are not traceable and the plaintiffs are presumed to have died and that
defendants Nos. 4 to 9 are in adverse possession of the suit land as
against the plaintiffs. I have already commented on the said declaration
in my order dated 30th July 1991. M/s Pravin Mehta & Mithi & Co.
Advocates, are lawyers of repute. This fact however is of limited
relevance. As Advocates of experience and repute, they have much larger
responsibilities in the matter they handle. I express my unhappiness in
respect of the said certificate of title. The matter will be examined in
further depth at final hearing of the suit. At the stage of issuing of
certificate of title, order dated 30th August 1968 cancelling Mutation
Entry No. 3072 dated 27th September 1967 was in existence. The said order
dated 30th August 1968 passed by the Tahsildar was set aside by the SubDivisional Officer much later. If the Advocates issuing the certificate
of title inter alia had proceeded on the basis that the transaction of

conveyance of September 1966 in favour of the plaintiffs was vitiated by

reason of the said order dated 30th August 1968 passed by the Tahsildar,
it could be one of the possible views. Possibility of the said Advocates
being misled by their clients cannot be ruled out. However it cannot be
ignored that the registered Deed of Conveyance itself sets out that the
Vendors had handed over vacant possession of the plot to the plaintiffs.
This aspect is not even referred to in the certificate of title. Reliance
on declaration of defendants Nos. 4 to 9 as one of the basis for
certifying the title has disturbed me a lot. I am not going deeper into
the matter. This aspect of the matter is interlinked with professional
reputation of Advocates. I therefore do not wish to say anything more and
leave this aspect open for further investigation at the trial of the
suit. I am therefore refraining from making any adverse comments against
the Advocates personally. However, in view of disturbing features of this
case, it is necessary to consider the provisions of the Maharashtra
Ownership Flats (Regulation of the Promotion of Construction, Sale,
Management and Transfer) Act, 1963 (hereinafter Ramniklal Tulsidas Kotak
And ... vs Varsha Builders And Others on 26 August, 1991

Indian Kanoon - http://indiankanoon.org/doc/1377792/ 1

Jago Janta Society vs Union Of India & Ors on 30 April, 2010

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

ORDER
DB Civil Writ Petition (PIL) No. 5604/2010
Jago Janta Society Vs Union of India & ors
30.4.2010
Hon'ble the Chief Justice Mr Jagdish Bhalla
Hon'ble Mr Justice MN Bhandari
Mr PC Bhandari for petitioners
BY THE COURT:
By this public interest litigation, grievance has been made that the
Notaries are not maintaining the registers containing details of
documents/ affidavits/ papers etc attested by them. Serial numbers are
not entered on the documents/ affidavits/ papers etc, thereby compliance
of the Notaries Act, 1952 and Notaries Rules, 1956 are not being made by
the Notaries.

Before filing the writ petition, a notice for demand of justice dated
25.3.2010 was served on the respondents for proper implementation of
provisions of the Act, Rules and Regulations made thereunder. The said
notice was served on Union of India apart from Law Secretary, Government
of Rajasthan and others. The prayer in the writ petition is accordingly
to direct the Notaries to enter every document/ affidavit/ paper etc
attested by them in the register after putting serial number and complete
other formalities provided under the Act, Rules and Regulations made
thereunder.
Before filing the writ petition since legal notice dated 25.3.2010 was
served on the respondents, we feel that it would be taken note of by the
competent authorities for seeking compliance of Rules and Regulations in
this regard.
The writ petition has been filed basically for seeking compliance of the
Notaries Act and Rules/ Regulations made thereunder which are otherwise
expected to be followed by every one concerned throughout the State
irrespective of Jaipur City and Jaipur District only.
In view of aforesaid, we dispose of this writ petition with the
observation that provisions of Notaries Act, 1952 and the Rules and
Regulations made thereunder be followed and the competent authorities
will ensure compliance thereof. Registers of the Notaries should be
inspected as per rules. Compliance of the Rules, if not already made, be
ensured by all the concerned throughout the State of Rajasthan so that
not only sanctity of the Act of 1952 is maintained but Rules and
Regulations made thereunder are given effect to.
With above observations, this writ petition stands disposed of.
(MN Bhandari), J. (Jagdish Bhalla) CJ
Regards,
Sanjay Sandhu,
Recovery Manager-DHFL,
201, 2nd Floor, Vipul Agora Building, M. G. Road,
T: 91(0124)4724286 | M +91 9711411122 | F: (0124)
Email: kumar.sanjay@dhfl.com | W: www.dhfl.com |
| www.twitter/dhfl_india
In case of any concern or dis-satisfaction with
please write to vinay.sharma@dhfl.com

Gurgaon -122002
4724 101,
www.facebook/dhfl.india
this response, you may

SC Judgment on SA/GPA/WILL Transfers

Source:
Dhiraj Talaulikar
Modified:
05/06/2012 10:55AM

SC Judgment on SA/GPA/WILL Transfers

The Hon'ble Supreme Court of India has passed a landmark Judgment on

11th October, 2011,
in a Special Leave Petition (C) No. 13917 of 2009
(Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr.) declaring
that the "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 recognized or valid mode of transfer of immoveable property."
The reasons for which this Judgment was passed and gist of the Judgment
in brief is explained hereunder:
What are SA/GPA/WILL Transactions?
(SA - Sale Agreement, GPA - General Power of Attorney & Will)
The modus
operandi
in
such
SA/GPA/WILL
transactions
is
for
the vendor
or
person
claiming
to
be
the
owner
to receive
the
agreed consideration,
deliver
possession
of
the
property
to
the
purchaser
and execute the following documents or variations
thereof:

(a)
An
Agreement
of
sale
by
the
vendor
in
favour
of
the
purchaser confirming
the terms of sale, delivery of possession
and
payment
of full
consideration
and
undertaking
to execute
any document as and when required in future.
Or

An
agreement
of
sale
agreeing
to
sell
the
property, with
a separate affidavit confirming receipt of full price and delivery of
possession
and
undertaking
to
execute
sale
deed
whenever
required,
(b) An Irrevocable General Power of Attorney by the vendor in favour
of
the
purchaser
or
his
nominee
authorizing
him
to
manage,
deal
with
and
dispose
of
the
property
without
reference to the vendor.
Or
A
General
Power
of
Attorney
by
the
vendor
in
favour
of
the purchaser or his nominee authorizing the attorney holder
to
sell or
transfer
the
property
and
a
Special
Power
of
Attorney
to manage the property., and
(c)
A
will
bequeathing
the
property
(as
a safeguard
against
the
consequences
vendor before transfer is affected).

to
of

the
death

purchaser
of
the

These
transactions
are
not
to
be
confused
or
equated
with
genuine transactions
where
the
owner
of
a
property
grants a
power of Attorney
in favour of a family member or friend
to manage or sell his property, as he is not able to manage the property
or execute the sale,
personally. These are transactions, where a
purchaser pays the full price, but instead of getting a deed of
conveyance gets a SA/GPA/WILL as a mode of transfer, either at the
instance of the vendor or at his own instance.
Ill- Effects of SA/GPA/WILL Transactions
Some of the important ill effects of these transactions are Generation of
black money, growth of land mafia and criminalization of civil disputes.
Following categories of persons indulge in such type of transactions:
1.
Vendors with imperfect title who cannot or do not want to
execute registered deeds of conveyance.
2.
Purchasers who want to invest undisclosed wealth/income in
immovable properties without any public record of the transactions. The
process enables them to hold any number of properties without disclosing
them as assets held.
3.
Purchasers who want to avoid the payment of stamp duty and
registration charges either deliberately or on wrong advice. Persons who
deal in real estate resort to these methods to avoid multiple stamp
duties/registration fees so as to increase their profit margin.
Supreme Court has observed as under:
Whatever be the intentions, the consequences are disturbing and far
reaching, adversely affecting the economy, civil society and law and
order.
Firstly, it enables large scale evasion of income tax, wealth
tax, stamp duty and registration fees thereby denying the benefit of such
revenue to the government and the public.
Secondly, such transactions

enable persons with undisclosed wealth/income to invest their black money

and also earn profits/ income, thereby encouraging circulation of black
money and corruption.
Further it also makes title verification and certification of title,
which is an integral part of orderly conduct of transactions relating to
immovable property, difficult.
Advantages of Registration
The Registration Act, 1908, was enacted with the intention of providing
orderliness, discipline and public notice in regard to transactions
relating to
immovable
property
and
protection
from
fraud
and
forgery
of documents of
transfer.
This
is
achieved
by
requiring compulsory registration of certain types of documents /
instruments and providing for consequences of non-registration.
Registration
provides
safety
and
security
to
transactions
relating
to immovable
property,
even
if
the
document
is
lost
or
destroyed.
It
gives publicity and public exposure to
documents thereby preventing forgeries
and
frauds
in
regard
to
transactions and
execution
of
documents.
Registration provides
information to people who may deal with

a property, as to the nature and extent of the rights which persons may
have, affecting that property.
In other words, it enables people to
find out whether any particular property with which they are concerned,
has been subjected to any legal obligation or liability and who is or are
the person/s presently having right, title, and interest in the property.
Suggestions from State Governments
The Supreme Court had also directed notice to States of Delhi, Haryana,
Punjab, Uttar Pradesh to give their views on the matter. The four states
have responded and confirmed that SA/GPA/WILL transfers required to
discouraged as they lead to loss of revenue (stamp duty) and increase in
litigations due to defective title.
Legal Position
Agreement of Sale
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 Transfer of Property Act and will not confer any
title nor transfer any interest in an immovable property.
It is thus
clear that a transfer of immoveable 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 immoveable property can be transferred.
Power of Attorney

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 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 (see section 1A and
section 2 of the Power of Attorney Act, 1882).
It is revocable or
terminable at any time unless it is made irrevocable in a manner known to
law.
Will
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 life time of the testator. It is said that so long as the testator
is alive, a will is not be worth the paper on which it is written, as the
testator can at any time revoke it. Registration of will does not make
it any more effective.
Conclusion
Therefore based on the Judgment and Observations made therein, a SA/GPA/
WILL transaction does not convey any title nor create any interest in an
immovable property. 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.
This judgment shall not apply to SA/GPA/WILL
transactions already executed prior to date of judgment, this judgment
shall be made applicable prospectively.

Dhiraj V. S. Talaulikar
Deputy Manager
Corporate Legal Department