No title can be conferred upon the Appellant, based on unregistered documents: Delhi High Court
“No trial would be required as even if these documents are taken on file as evidence, by virtue of them being unregistered documents, they would not be valid and would confer no title.”, this remarkable stand was forwarded by Delhi High Court single judge bench chaired by Hon’ble Justice Mr. Prathiba M. Singh in the criminal appeal case of Vateena Begum V. Shamim Zafar &amp; Anr., [CM APPLs. 21460-63/2020]. The present appeal challenges the impugned order dated 13th August, 2020, by which the Executing Court has rejected the objections filed by the Appellant under Order XXI Rule 97 and 101 CPC. The admitted facts in this case are:- The original owner, in respect of the agreements of both the parties before this court, is Mr. Dilawar Hussain Malik. The Appellant has allegedly entered into certain documents in respect of the property with the original owner. None of the Appellant’s documents are registered. The sale consideration fixed is Rs. 9,00,000/-. The entire amount is purportedly received only in cash. On the other hand, the Respondents/ Decree Holders filed a suit for specific performance on the strength of an Advance Receipt-cum Agreement to Sell and Purchase, dated 21st July, 2012, with the same original owner. The consideration recorded in this agreement is Rs.6,00,000/-. Advance payment of Rs.1,00,000/- is stated to have been made out of which Rs.45,000/- is a cheque payment. There is also a receipt executed by one Mr. Mohd. Javed, who is stated to have received Rs. 2,00,000/- i.e. a part of the remaining sale consideration. The suit for specific performance and permanent injunction was filed by the Respondents/ Decree Holders in September, 2012. A perusal of the trial court record reveals that in the suit, repeated summons were issued to the Defendant/ Original Owner of the property. Thereafter, the decree of specific performance, which was passed by the trial court, was sought to be executed by the Respondents/ Decree Holders After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “The execution of a decree for specific performance does not merely relate to a title of a property, but as in the present case, also involves dispossessing a person who is already in physical possession of the property. At the time when the decree was passed it is not even clear as to who was in possession of the property. Hence, in such a situation, objections would have to be considered in detail by the Executing Court and may require leading of evidence to ascertain factual aspects, with respect to the suit property and the Original Owner.” In lieu of the above made considerations and observations, the bench in this present case rejected the present application stating that, “Accordingly, the impugned order is set aside. The Executing Court would frame issues and adjudicate the objections after receiving evidence. Needless to add this Court has not examined the legality or the validity of the documents relied upon by the Appellant and the Respondents, or any other averments on merits”.
 Signature Not Verified Digitally Signed By:DINESH IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 19th November 2020 Date of decision: 17th December 2020 EX.F.A. 9 2020 & CM APPLs. 21460 63 2020 VATEENA BEGUM Through: Md. Azam Ansari Advocate along Appellant in person with Appellant SHAMIM ZAFAR & ANR. Through: Mr. S.P. Jha Advocate for R 1 on 21st June 2012 by way of General Power of Attorney Agreement to Sell and Purchase Affidavit Will Possession letter and Receipt of Money for a consideration of Rs. 9 00 000 . The said documents were executed by Mr. Dilawar Hussain Malik on 2nd Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 July 2012. Signature Not Verified Digitally Signed By:DINESH On the other hand the case of the Respondents Decree holders is that they had purchased the property from Mr. Dilawar Hussain Malik and his wife Ms. Nazma Malik vide documents dated 2nd July 2012. They had executed an Agreement to Sell and Receipt. The agreed consideration was Rs. 6 00 000 for the said property out of which Rs. 3 00 000 was paid to the seller. The Respondents filed a suit for specific performance and the Defendants i.e. Mrs. and Mr. Malik remained ex parte. They did not file any pleadings and an ex parte decree for specific performance was passed on 11th November 2013 by the Trial Court in favour of the Respondents. The remaining amount of consideration of Rs. 3 00 000 was deposited with the trial court at the time of drawing up of the decree. 4. When the decree holders sought execution of the decree the Appellant filed objections which were rejected. The reasoning of the Executing Court for rejecting these objections was that all the documents relied upon by the Appellant are unregistered and owing to the judgment of the Supreme Court in Suraj Lamps and Industries v. State of HaryanaDLT 1no title can be conferred upon the Appellant based on unregistered documents. Further the Court held that no trial would be required as even if these documents are taken on file as evidence by virtue of them being unregistered documents they would not be valid and would confer no title. Accordingly the court held that no trial would be required and the objections were dismissed. 5. When the matter was heard at the preliminary stage an apprehension had been expressed by the ld. counsel for the Respondents Decree holders Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH that the documents of the Appellant are forged. As per the RTI records the stamp paper on the basis of which the Appellant claimed to have purchased were sold only on 10th July 2012 and 27th August 2012. Thus the counsel for the Respondents submitted that the date of the documents being 21st June 2012 in fact shows that the documents relied upon are forged and completely illegal. In view thereof the matter was taken up in physical Court and the original documents were summoned. Both the parties have filed their original documents on record and both are retained with the court in a sealed cover. Appellant’s Submissions: 6. Mr. Ansari ld. counsel for the Appellant submits that as per Order XXI Rule 97 read with Rule 101 and 103 of the CPC objections have to be tried like a suit and hence a trial is essentially required. He submits that the prayers of the Appellant in their objections to the execution are in the nature of declaration of right and title in the suit property and the same requires to be adjudicated upon after proper cross examination. He further submits that the Court has to determine as to who holds the better title between the Appellant and the Respondents. Reliance is placed by ld. counsel for the Appellant on Vikas Wadhwa v. Pradeep Kumar & Ors. DLT 787] upheld by the Hon’ble Supreme Court Diary No. 19663 2019] Rajeev Dutta and ors. v. Punjab Waqf BoardAIHC 3144] Noorduddin v. Dr. K.L. Anand 1 SCC 242] Shreenath & Anr. v. Rajesh & Ors. Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal & Anr. 3 SCC 694] Har Vilas v. Mahendra Nath & Ors. 15 SCC 377] and Maya Devi v. Lalta Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH prasadjudgment has been considered by the Trial Court as defeating the Appellant’s rights the same judgment would then be applicable in the case of the Respondents as well. He relies upon two judgments namely Vikas Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH Wadhwaand Maya Deviin support of his case. 12. He further submits that as soon as the Appellant came to know that warrants of possession were issued they entered appearance on 29th May 2018 and informed the Court that they are in possession of the property and have documents in their favour as recorded in the order dated 29th May 2018. He thus submits that the objections of the Appellant could not have been dismissed in a summary manner by the Executing Court. 13. Mr. Ansari ld. counsel for the Appellant finally submits that the sale consideration which was paid by the Appellant in June 2012 is Rs.9 lakhs and two of the witnesses namely Mohd. Aslam and Mr. Irfan Khan are still alive and that he would be able to establish the said payment if given an opportunity before the Executing Court. Respondents’ Submissions 14. Mr. Jha ld. counsel for the Respondents on the other hand submits that the Appellant is not entitled to the benefit of Section 53A of Transfer of Property Act as under Section 17 of the Registration Act unless the agreement to sell or power of attorney is registered the benefit under section 53A of part performance cannot be given. 15. He submits that the judgment in Vikas Wadhwa relates to documents which were executed in 2001 and not post the judgment in Suraj Lamps and thus the same would not benefit the Appellant in any manner. He further submits that since the Appellant has also purchased the property from the same original owner the provisions of Order XXI Rule 97 would not apply. 16. Ld. Counsel further submits that in both the judgments relied by the Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH Appellant i.e. Vikas Wadhwa as well as Maya Devi the documents were executed prior to the rendering of the Suraj Lampsdecision. Suraj Lampsis not to be held applicable in a retrospective manner however in the present case the Appellant’s documents are of 2012 subsequent to the decision in Suraj LampsThe original owner in respect of the agreements of both the parties before this court is Mr. Dilawar Hussain Malik. The Appellant has allegedly entered into the following documents in respect of the property with the original owner: a) a General Power of Attorney by the owner in favour of the Appellant dated 21st June 2012. b) an Agreement to sell and purchase dated 21st June 2012. c) an Affidavit of the owner dated 21st June 2012. d) a Will dated 21st June 2012 purportedly executed by the e) an unsigned Possession Letter which is witnessed by two witnesses and the Petitioner. However there is no signature of the owner in this document f) a Receipt for a sum of Rs.9 00 000 executed by the owner. ii) None of the Appellant’s documents are registered. iii) The sale consideration fixed is Rs. 9 00 000 . iv) The entire amount is purportedly received only in cash. v) On the other hand the Respondents Decree Holders filed a suit for specific performance on the strength of an Advance Receipt cum Agreement to Sell and Purchase dated 21st July 2012 with the same original owner. vi) The consideration recorded in this agreement is Rs.6 00 000 . Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH Advance payment of Rs.1 00 000 is stated to have been made out of which Rs.45 000 is a cheque payment. vii) There is also a receipt executed by one Mr. Mohd. Javed who is stated to have received Rs. 2 00 000 i.e. a part of the remaining sale 21. The suit for specific performance and permanent injunction was filed by the Respondents Decree Holders in September 2012. A perusal of the trial court record reveals that in the suit repeated summons were issued to the Defendant Original Owner of the propertyWhether it was compulsory for the Executing Court to frame issues and adjudicate the objections after trial b) Whether there exists any validity or sanctity in law to the documents which have been put forward by the Appellant and if so to what effect Insofar as the first question is concerned the Executing Court while adjudicating objections filed under Order XXI Rule 97 to 106 of the CPC has the discretion to frame issues and to conduct a trial in the matter. However it is not in every case that the objections would have to be adjudicated after a trial. The discretion given to the executing court is very wide. The Executing Court may decide against holding a trial if according to the court the facts do not require the same. Every question raised by the Objector need not be decided by the Executing Court after trial. It would have to consider as to whether the issues raised even arise in the matter. It is Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH not necessary to call for evidence in every case wherein objections have been raised in an execution proceeding. The discretion purely vests with the Executing Court. The Executing Court has the option to either frame issues while deciding record evidence while adjudicating upon the objections or to merely consider whether such a course of action is even required or not. In Silverline Forum Pvt. Ltd. v. Rajiv Trust and Ors.3 SCC 723 the Hon’ble Supreme Court has held: 10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under rule 97 or rule 99" shall be determined by the executing court if such questions are "relevant to the adjudication of the 11. When a decree holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint. 12 . The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court determine under rule 101 must possess two adjuncts. First is that such questions should have legally arisen is obliged Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH between the parties and the second is such questions must be relevant for consideration and determination between the parties e.g. if the obstructer admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly a third party who questions the validity of a transfer made by a decree holder to an assignee cannot claim that the question regarding its should be decided during proceedings. Hence it is necessary that the questions raised by the resistor or the obstructer must legally arise between him and the decree holder. In the adjudication process envisaged in order 21 Rule 97(2) of the Code execution court can decide whether the question raised by a resistor or obstructer legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub section. 14. … The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary. xxx" It is the settled legal position as held by various High Courts and the Supreme Court that the Executing Court merely needs to appreciate the documents filed on the record apply its mind to the same and decide the objections. It is only if complex facts are put up or on a perusal of the documents relied upon evidence is required that issues need to be framed and evidence may be called for. 30. The short case of the Appellant is that she has various documents in Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH her favour. The Court has seen the original documents. None of the documents are registered. It is however agreed by both counsels for the parties that Mr. Dilawar Hussain Malik and his wife are no longer alive but the date of their death has not been ascertained or produced before the court. The Appellant has a “Will” executed in her favour dated 21st June 2012 along with the other documents. The same is purportedly signed by the owner Dilawar Hussain Malik and is witnessed by two witnesses. Though the remaining unregistered documents namely the GPA Agreement to Sell Affidavit etc. would not confer any rights the Will stands on a completely different footing. Unless and until the Will is argued to be forged or fabricated the Petitioner ought to be given a chance to prove the Will as both the owner Dilawar Hussain Malik and his wife Najma Malik are no longer alive. The Executing Court is right to the extent that since the Appellant’s documents are unregistered and they are purportedly executed post the judgment in Suraj Lampsthey may not have any sanctity in law. However the position in respect of the Will would be completely different as it would raise several complexities with respect to the transfer and registration in favour of the Respondents Decree Holders given that the date of death of the Defendant has not been established before this court. The Appellant has filed affidavits of two persons namely Mr. Irfan Khan and Mohd. Islam who are stated to be the witnesses in the Will. 31. The Respondents Decree Holders do have a decree for specific performance in their favour. The objections by the Appellant however do raise an issue as to the right title and interest of the two parties with respect to the suit property. The Appellant is in physical possession of the property. It is Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH extremely surprising that neither at the time of entering into a transaction with the original owners nor during the pendency of the suit did the Respondents ascertain as to who was in possession of the property. In both the Agreements to Sell possession of the property is not handed over. The clauses in the Agreements to Sell qua possession read as under: Agreement dated 21st June 2012 in favour of the Appellant: the FIRST PARTY undertake handover the vacant physical possession of the said Property unto the SECOND PARTY at the spot along with all documents related thereto after receiving full and final sale consideration and registration of GPA Will and all other relevant documents in the office of the Sub Registrar New Delhi. xxx” Agreement dated 2nd July 2012 in favour of the Respondent: That FIRST PARTY shall handover “ 4. peaceful vacant possession of the said property to the SECOND PARTY or his her their nominee(s) along with the photocopy original documents and papers in respect of the said property at the spot. xxx” From the above clauses it is clear that both parties allegedly parted with consideration without insisting on physical possession. The possession letter in favour of the Appellant does not bear the signature of the seller. Neither party got the documents of sale registered. How and when the Appellant came into possession is not clear at this point. 32. As per Order XXI Rule 101 of the CPC any dispute which arises in respect of the right title or interest in a property between the parties in proceedings before the Executing Court i.e. the Decree Holder and the Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 rulings. Signature Not Verified Digitally Signed By:DINESH Objector the same need not be decided by a separate suit. The legislative mandate is that the objections ought to be adjudicated in the execution petition itself in order to avoid multiplicity of proceedings and conflicting 33. It is the settled legal position that the Executing Court cannot go beyond the decree. However the question is whether the Appellant has any right title or interest in the property in view of the documents and the Will dated 21st June 2012. Whether the registered sale deed executed by a Court Commissioner in favour of the Respondent is valid or not would also have to be considered depending upon the date of death of Mr. Malik and his wife i.e. the original owners. It is also the settled legal position that a Will need not be registered in Delhi for being enforced and needs to be only proved in terms of Section 68 of the Indian Evidence Act 1872. 34. The Appellant’s case is also not beyond suspicion in as much as the entire sale consideration of Rs.9 lakhs is purportedly paid in cash and none of the documents are registered. The RTI documents relied upon by the Respondent cannot be straightaway taken as proved. Some evidence will be required on this aspect as well. 35. Thus a perusal of the original documents placed on record by both sides shows that there are several unanswered questions: 1. When did the demise of Mr. Dilawar Hussain Malik take place 2. When did the demise of his wife Ms. Nazma Malik take place 3. Did they have any knowledge of the decree and the sale deed before their demise given the decree was passed ex parte 4. If Mr. Dilawar Malik and Ms. Nazma had passed away prior to the Decree would that vest the rights in the property in favour of the Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH Appellant given the Will in her favour 5. What is the role of Mr. Mohammad Javed who received payments from the Decree Holder Was he duly authorized to receive the said payments and if so for whose benefit 6. At the time when the Sale Deed was executed by the Court Commissioner in favour of the Respondent Decree Holders were either Mr. Malik or Ms. Malik alive and to what effect 7. Who would be entitled to Rs.3 00 000 which stands deposited by the Respondents in court 8. Are the GPA Agreement to Sell Affidavit Receipt and the Will relied upon by the Appellant genuine or are they forged and fabricated 9. What is the role of the two witnesses who have signed the said documents put forth by the Appellant as witnesses 10. Why is the possession letter in favour of the Appellant not signed by either Mr. Dilawar Hussain Malik or his Wife 11. Can the Appellant rely on these documents to protect her possession if the same are found to be valid 36. Order XXI Rule 101 CPC has been included in the Code to resolve such issues which come up while adjudicating upon objections raised during execution proceedings. The Executing Court ought to consider these issues before dispossessing the Appellant from the suit premises. Merely on the ground that the documents in favour of the Appellant are unregistered applying Suraj Lampsthe Appellant cannot be non suited without a trial especially when the decree for specific performance was an ex parte decree. Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH 37. Moreover it is noticed that in suits seeking specific performance if the actual status of the de facto possession of the property is ascertained prior to passing of a decree such complexities would not arise. The Defendant in the suit for specific performance i.e. the Original Owner was ex parte all along in the suit proceedings. He was only served by means of publication in The Stateman and has never come forth either in the suit or in the execution proceedings. It is not even clear as to why the money with respect to the property was paid to a third party i.e. Mohammed Javed. All these questions could not have simply been brushed aside by holding that the Appellant’s documents are not registered in terms of the decision in Suraj Lampsand hence even if the same are considered genuine no title would be vested in favour of the Appellant. It needs to be noted is that the Petitioner’s documents are stated to have been executed just a few months after the rendering of the Suraj Lampsjudgment. 38. The execution of a decree for specific performance does not merely relate to a title of a property but as in the present case also involves dispossessing a person who is already in physical possession of the property. At the time when the decree was passed it is not even clear as to who was in possession of the property. Hence in such a situation objections would have to be considered in detail by the Executing Court and may require leading of evidence to ascertain factual aspects with respect to the suit property and the Original Owner. 39. While entertaining suits for specific performance and granting interim relief and specifically while passing ex parte decrees for specific performance courts ought to make sure that the property is secured during the pendency of the suit and that the decree which is passed is not merely a Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 Signature Not Verified Digitally Signed By:DINESH paper decree. It would be advisable to ascertain as to who is in physical possession of the property during the proceedings of a specific performance suit in order to ensure that the complexities of the kind that have arisen in the present case do not arise in future. 40. Accordingly the impugned order is set aside. The Executing Court would frame issues and adjudicate the objections after receiving evidence. Needless to add this Court has not examined the legality or the validity of the documents relied upon by the Appellant and the Respondents or any other averments on merits. 41. Considering that the decree in the present case was passed way back in 2002 the Executing Court shall decide the objections within a period of six months. The original documents which were handed over during the court hearing be returned the respective counsel upon proper acknowledgment. The same be produced before the executing court. The Registry of this Court to scan the documents before the same are returned to the Ld. Counsels for the parties. 42. List before the Executing Court on 5th January 2020 for framing of issues and for fixing the schedule for trial. 43. Copy of this judgment to be communicated to the Executing Court in Ex. No. 9939 2016 titled Shamim Zafar and Anr. v. Dilawar Hussain Malik and Anr. i.e. ADJ 05 South East District Saket Courts New Delhi. Copy of this judgement be also sent to the District & Session Judges for circulation amongst the judicial officers. PRATHIBA M. SINGH JUDGE DECEMBER 17 2020 Signature Not Verified By:PRATHIBA M SINGH Signing Date:17.12.2020 13:57 EX.F.A. 9 2020 