RFA 748/2018 Page 1 of 48

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 09

th

December, 2025

Pronounced on: 28

th

January, 2026

+ RFA 748/2018

ANAND VERSHA & ANR . .....Appellants

Through: Mr. Jai Wadhwa and Mr. Ronak

Karanpuria, Advocates

Mob: 9599651116

Email: A1lawrooms@gmail.com

versus

NARENDER KUMAR SHARMA (DECEASED) THR LRS &

ORS. .....Respondents

Through: Ms. Namita Roy and Ms. Gopa

Biswas, Advocates

Mob: 9810748178

Email: namitaroy11@gmail.com

CORAM:

HON'BLE MS. JUSTICE MINI PUSHKARNA

JUDGMENT

Background of Appeal

1. Through the present Regular First Appeal, the appellants (defendant

nos. 3 and 4 before the Trial Court) assail the correctness of the judgment

and decree dated 05

th

May, 2018 (“impugned judgment”) passed by the

Additional District Judge – 05 (South-West), Dwarka Courts, New Delhi in

CS No. 724/2017, captioned “Sh. Narender Kumar Sharma (Deceased)

through LRs Versus Devender Kumar & Others”, whereby, the suit

instituted by the respondent no. 1 (plaintiff before the Trial Court) was

decreed.

RFA 748/2018 Page 2 of 48

2. The respondent no. 1/plaintiff had filed CS No. 724/2017 seeking

possession of a property admeasuring 60 sq. yds, bearing No. RZ-35A,

Khasra No. 9/5, Village Asalatpur (now known as Indra Park), Uttam

Nagar, New Delhi-110059 (“suit property”) and for permanent injunction

restraining the defendants from alienating or creating third party interest in

the suit property. There was further prayer for award of damages to the tune

of Rs.10,000/- (Rupees Ten Thousand only) per month from July, 2017 till

handing over of possession of the suit property, along with 18% interest

thereon.

3. By way of the impugned judgment, the Trial Court has decreed the

suit of the respondent no. 1/plaintiff (who passed away during the course of

hearing before the Trial Court) in favour of his Legal Representatives

(“LRs”), holding them entitled to possession of the suit property and

permanent injunction against the defendants in respect thereof. As per the

findings of the Trial Court, the defendants did not have any right, title or

interest in the suit property as they had failed to prove the „sale documents‟

relied upon by them.

Proceedings before this Court

4. While issuing notice in the present appeal on 07

th

September, 2018,

this Court had ordered a stay on the operation of the impugned judgment,

based upon the submission of the appellants that the signatures of

respondent no.1 on the „sale documents‟ dated 15

th

December, 2015,

exhibited by the appellants, had not been disputed by respondent no. 1, or

his LRs, in the replication filed before the Trial Court. The said interim

order was made absolute vide order dated 17

th

December, 2018.

RFA 748/2018 Page 3 of 48

5. During the course of the present appeal, the respondent no. 2

(defendant no. 1 before the Trial Court) passed away on 18

th

January, 2023.

This Court was informed on 25

th

August, 2025 that out of respondent no. 2‟s

two LRs, one (his wife) had also expired on 03

rd

April, 2025, and thus, the

appeal stood abated against respondent no. 2/defendant no. 1.

Factual Matrix

6. The facts, leading up to the filing of this appeal and relevant for the

present adjudication, are as follows:

Pre-filing of suit:

6.1 The suit property belonged to one Late Smt. Chander Wati, who was

the mother of respondent nos. 1 to 3, the mother-in-law of appellant no. 1

and grandmother of appellant no. 2. Smt. Chander Wati passed away

intestate in the year 2001. Thereafter, one of the sons of Smt. Chander Wati,

i.e., Shri Umesh Kumar Sharma (husband of appellant no. 1 and father of

appellant no. 2) passed away in the year 2006, leaving behind the appellants

as his legal heirs.

6.2 On 30

th

November, 2015, a Relinquishment Deed, bearing

Registration No. 17488, registered in Book No. I, Vol. No. 994 on Page

Nos. 129 to 134, before the Sub-Registrar, Janakpuri, Delhi (marked as Ex.

PW1/2), was executed amongst the parties before this Court, along with

other co-sharers of the suit property, in favour of the respondent no.

1/plaintiff, making him the absolute owner of the suit property.

6.3 It is the case of the appellants that the Relinquishment Deed was

executed by the defendants and other co-sharers of the suit property under

an express understanding that post execution of the Deed, the respondent no.

RFA 748/2018 Page 4 of 48

1/plaintiff would get the suit property reconstructed in collaboration with

some builder, in the shape of parking at Ground Floor (“GF”), upper GF,

First Floor (“FF”), Second Floor (“SF”) and Third Floor (“TF”).

Subsequently, the respondent no. 1 would transfer the entire FF of the

reconstructed suit property without roof/terrace rights in the name of

defendant no. 3 (appellant no. 1). Upper GF was to be transferred to

defendant no. 1 (respondent no. 2) and SF was to be transferred to aforesaid

builder in lieu of costs, whereas, TF was to be retained by respondent no. 1

along with defendant no. 2 (respondent no. 3).

6.4 It is also the case of the appellants that the respondent no. 1, on 15

th

December, 2015, executed a set of documents – General Power of Attorney

(“GPA”), Agreement to Sell, Affidavit, Possession Letter, Receipt and a

Deed of Will (collectively referred to as “sale documents”) – in respect of

FF of suit property in favour of appellant no. 1. Furthermore, a similar set of

sale documents of the even date were executed in favour of respondent no.

2/defendant no. 1 in respect of GF of the suit property.

6.5 In contrast, as per respondent no. 1/plaintiff, the defendants were

merely inducted as licensees in the suit property, based upon an oral license

between the parties and the said license was revoked by the respondent no. 1

by duly serving a Legal Notice dated 29

th

May, 2017 (marked as Ex. PW1/3)

upon the defendants and seeking possession of the suit property. However,

despite receiving the said Notice, the defendants did not vacate the suit

property.

6.6 Apprehensive, that the defendants/appellants herein were intending to

sell off the suit property/create third-party interest therein, the respondent

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no. 1 instituted the suit being CS No. 724/2017.

Post-filing of suit:

6.7 Before the Trial Court, vide order dated 22

nd

August, 2017, the

defendant no. 2/respondent no. 3 before this Court, was proceeded ex-parte.

Further, the defendants were directed to maintain status quo.

6.8 A written statement came to be filed by defendant nos. 3 and

4/appellants, which was adopted by defendant no. 1 (respondent no. 2).

Further, the statement of all these three defendants had been recorded in the

order dated 19

th

September, 2017 that they shall maintain status quo in

respect of the suit property, till disposal of suit.

6.9 It was the case of the contesting defendants in their written statement

that respondent no. 1/plaintiff was not the owner of the suit property.

6.10 Thereafter, based upon the pleadings of the parties, vide order dated

26

th

September, 2017, the following issues were framed by the Trial Court:

―i). Whether the Relinquishment deed dated 30.11.2015 was executed

between the parties with the understanding that the plaintiff would get

an exclusive title to the suit property and get the same reconstructed in

a collaboration agreement with some builder? (OPD- 1, 3 & 4).

ii). Whether the plaintiff has executed GPA, Agreement to sell, Affidavit,

Possession Letter, Receipt and Deed of Will, dated 15.12.2015 in favour

of defendant nos. 1 & 3? (OPD 1 & 3)

iii). Whether the plaintiff is entitled to a decree of possession, as prayed

for? (OPP).

iv). Whether the plaintiff is entitled to a decree of permanent injunction,

as prayed for? (OPP).

v). Whether the plaintiff is entitled to a decree of Rs. 10,000/- per month

as mesne profits/ damages till handing over peaceful and vacant

possession of the suit property alongwith interest @ 18% per annum

against the defendants? (OPP).

vi) Relief.‖

RFA 748/2018 Page 6 of 48

6.11 On behalf of respondent no. 1/plaintiff, his son, i.e., respondent no.

1(4) before this Court, deposed as PW1, based upon a Power of Attorney

(“PoA”) dated 23

rd

November, 2017 (marked as Ex. PW1/1), on the ground

that the respondent no. 1 was aged 75 years and was unwell. PW1 exhibited

a total of 10 documents and the plaintiff‟s evidence was closed on 11

th

December, 2017.

6.12 Subsequently, the respondent no. 1/plaintiff demised on 18

th

January,

2018 and vide order dated 06

th

February, 2018, the LRs of respondent no.

1/plaintiff were brought on record.

6.13 On behalf of the defendants, defendant no. 1 (respondent no. 2)

deposed as DW1 and defendant no. 3 (appellant no. 1) deposed as DW2.

Two separate set of sale documents were exhibited by DW1 and DW2, along

with other documents, in respect of their claims to GF and FF of the suit

property, respectively. It is pertinent to note that the sale documents were

exhibited as OSR (Original Seen and Returned) before the Trial Court.

Thereafter, the defence evidence was closed on 15

th

February, 2018.

6.14 Accordingly, the impugned judgment came to be passed on 05

th

May,

2018, whereby, LRs of respondent no. 1 were held entitled to possession of

suit property being RZ-35A, Khasra No. 9/5, Village Asalatpur (now known

as Indra Park), Uttam Nagar, New Delhi-110059, admeasuring 60 sq. yards.

Permanent injunction was granted and defendants were restrained from

alienating or creating third party interest in the suit property. In the absence

of any positive evidence as regards the claim that the suit property can fetch

Rs. 10,000/- per month as rent, the respondent no. 1‟s claim for mesne

profits/damages was rejected.

RFA 748/2018 Page 7 of 48

Submissions of the Parties in Appeal

7. On behalf of the appellants, the impugned judgment has been assailed

on the following grounds:

7.1 Respondent no. 1 executed a Deed of Will dated 15

th

December, 2015

(Ex. DW2/11) in favour of appellant no. 1, bequeathing the entire FF of the

suit property, without roof/terrace rights. The said Deed of Will was duly

exhibited as Ex. DW2/11 (Original Seen and Returned – ―OSR‖) and proved

during the trial proceedings. Needless to state, the Deed of Will was

executed after the Relinquishment Deed dated 30

th

November, 2015.

7.2 Execution and existence of the Deed of Will - Ex. DW2/11 has never

been disputed by the respondent no. 1 or his LRs, at any stage of the

proceedings. The plaint, as well as the replication, is silent on the point of

said Will. The respondent no. 1 and his LRs have neither made any attempt

to challenge, deny, or revoke the Will, nor is it their case that it has been

obtained by fraud/coercion. Thus, the Deed of Will - Ex. DW2/11 was valid

and operative during the lifetime of the testator and became irrevocable

upon respondent no. 1‟s death.

7.3 During cross-examination of PW1/respondent no. 1(4), upon being

confronted with the Deed of Will - Ex. DW2/11, PW1 has refused to answer

on account of them being “photocopies”. However, the Deed of Will had

already been marked as Ex. DW2/11 (OSR) by the Trial Court, only after

perusal of the original document. It is pertinent to note that PW1 did not

deny the execution of the said Will.

7.4 The respondent no. 1/plaintiff passed away on 18

th

January, 2018,

during the course of suit proceedings before the Trial Court. By the time the

RFA 748/2018 Page 8 of 48

impugned judgment was delivered on 05

th

May, 2018, the appellant no. 1

had already acquired complete title to the suit property by way of the Deed

of Will - Ex. DW2/11.

7.5 Despite framing an issue on the execution of Deed of Will and other

sale documents, the Trial Court has failed to render any finding on the

execution and effect of the Deed of Will being Ex. DW2/11 post death of the

testator/respondent no. 1, which is contrary to Order XIV, Rule 2 of the

Code of Civil Procedure, 1908 (“CPC”). Though the impugned judgment

was delivered on 05

th

May, 2018, i.e., after expiry of respondent no. 1, this

aspect of validity of Deed of Will has not been examined by the Trial Court.

The same strikes at the very root of the impugned judgment.

7.6 Appellant no. 1 has been in continuous, uninterrupted, and peaceful

possession of the suit property since the year 1987 and such a long,

continuous possession, spanning over 30 years, cannot be characterized as

that of a mere licensee. The respondents have failed to prove both animus

possidendi and corpus possessionis.

7.7 The respondents cannot, at the stage of appeal, as an afterthought,

raise the objection of non-probate of Will when they themselves have treated

the Will as admitted by maintaining complete silence. Thus, the principle of

estoppel is applicable.

7.8 Respondent no. 1‟s deliberate abstention from the witness stand

attracts an adverse inference under Section 114(g) of the Indian Evidence

Act, 1872 (“Evidence Act”)/ Section 119(g) of the Bharatiya Sakshya

Adhiniyam, 2023 (“BSA”), and strikes at the root of respondent no. 1‟s case

and renders his claim unsubstantiated.

RFA 748/2018 Page 9 of 48

7.9 The only witness examined on behalf of respondent no. 1/plaintiff

was his son and PoA holder - Hitesh Sharma/respondent no. 1(4), who

admittedly had no personal knowledge of the facts, was not a witness to any

documents executed by respondent no. 1, including the Deed of Will, and

was incompetent to depose regarding the state of mind, intent, or

understanding of respondent no. 1 at the time the Relinquishment Deed, and

the subsequent documents, were executed.

7.10 Non-entering of the witness box by respondent no. 1 and further, his

PoA holder deposing on behalf of actual witness, when actual witness had

been alive, is a material irregularity. The entire evidence of PW1 should be

excluded from consideration as being hearsay, and no reliance should be

placed on the evidence of PW1.

7.11 The failure of the respondent no. 1 to challenge the sale documents

exhibited by defendants, to deny the Deed of Will – Ex. DW2/11, and to

explain the intention behind their execution, shows that the respondent no. 1

did intend to convey rights to the appellant no. 1, particularly, after the

purpose of the Relinquishment Deed had failed.

7.12 The Relinquishment Deed was not an absolute or unconditional

transfer of ownership, but a purpose-oriented family arrangement, wherein,

respondent no. 1 was entrusted to undertake construction, and thereafter, re-

distribute the newly constructed floors in terms of the mutually agreed

family settlement. Once the respondent no. 1 admittedly failed to perform

the very purpose for which the Relinquishment Deed was executed, the

Relinquishment Deed became inoperative and inexecutable in law, as the

underlying purpose for vesting title in respondent no. 1 had failed.

RFA 748/2018 Page 10 of 48

7.13 Under settled law, a suit for possession can be decreed only in favour

of a plaintiff who has a subsisting title on the date of decree. However, on

the date of judgment, the respondent no. 1 had no subsisting title in the suit

property, and his LRs, who did not inherit ownership due to execution of the

Deed of Will – Ex. DW2/11, were incapable of prosecuting a possession suit.

7.14 The observation of the Trial Court that no evidence had been led by

the appellants herein to show the source of amount of Rs. 9.6 lakhs, paid as

consideration to respondent no. 1 by appellant no. 1, is unjustified and

places an unreasonable burden on the appellants. The Receipt dated 15

th

December, 2015, marked as Ex. DW2/10, and signed by respondent no. 1, is

a valid acknowledgment of receipt of consideration amount.

8. Per contra, on behalf of the LRs of respondents no. 1, the following

submissions have been put forth:

8.1 Respondent no. 1/plaintiff and presently, LRs of respondent no. 1, are

the absolute owners of the suit property by virtue of the registered

Relinquishment Deed dated 30

th

November, 2015 – Ex. PW1/2. The said

document stands admitted by all executing parties, and is thus, undisputed.

Only the appellants herein have sought to contest the impugned decree.

8.2 The said Relinquishment Deed does not contain any recital to the

effect that the Deed has been executed for the purpose of reconstruction of

the suit property, as falsely claimed by the appellants.

8.3 The son of respondent no. 1/plaintiff was an attesting witness to the

Relinquishment Deed – Ex. PW1/2 before the Sub-Registrar, and therefore,

had personal knowledge of the same. Therefore, the appellants‟ contention

that a PoA holder cannot lead evidence, as he had no personal knowledge,

RFA 748/2018 Page 11 of 48

has to be rejected.

8.4 All the six sale documents relied upon by the appellants are not

registered and hence, as per settled law, no title can be passed onto appellant

no. 1 by virtue of said unregistered documents, namely the Deed of Will,

Agreement to Sell, Affidavit, Possession Letter and Receipt. Even these sale

documents exhibited by appellants do not contain any recital to the effect of

reconstruction of suit property and transfer of FF to the appellants. Thus,

such a stand is an afterthought and the sale documents are fabricated to put

up a false narrative.

8.5 The appellants neither filed any original documents on which they are

relying with their Written Statement before the Trial Court, nor did they

confront the PW1 with any original document during cross-examination.

They only exhibited the unregistered sale documents as OSR during defence

evidence.

8.6 Further, the appellants have also failed to bring any witness to prove

execution of the said unregistered sale documents.

8.7 The onus to prove these documents was on the appellants/defendants

and they cannot shift the burden/onus of proving these documents onto the

respondent no. 1/plaintiff. The appellants are relying on several documents

and none of them have been proven as per the Evidence Act. A mere

exhibiting of a document during defendants‟ evidence does not mean that

the document stands proven.

8.8 The appellants have failed to prove the Deed of Will dated 15

th

December, 2015 (Ex. DW2/11), i.e., the document on which they seek to

press their entire argument, especially, in light of the fact that when the

RFA 748/2018 Page 12 of 48

appellants have led defence evidence on 15

th

February, 2018, i.e., only after

the demise of respondent no. 1 – Shri Narender Kumar Sharma on 18

th

January, 2018. Even otherwise, the appellants have not proved the disputed

unregistered Will either by filing a probate petition or by bringing any one

of the attesting witnesses to the stand.

8.9 The said alleged Deed of Will dated 15

th

December, 2015 (Ex.

DW2/11), is a fake document which has never been proven by the appellants

and thus, the Trial Court was not required to give any finding in that respect.

8.10 Appellants have failed to show any irregularity or perversity in the

impugned judgment.

9. I have heard the learned counsels for the parties at length and perused

the pleadings, documents and evidence on record.

Findings and Analysis

10. The respondent no. 1, as plaintiff in the suit, has claimed to be the

absolute owner of the suit property by virtue of the registered

Relinquishment Deed. As per the case of respondent no. 1, the appellants,

who were defendant nos. 3 and 4 in the suit, were inducted in the suit

property as licensees, which license was terminated by Legal Notice dated

29

th

May, 2017. Despite the same, the appellants have failed to handover

vacant possession of the suit property.

11. The issue for adjudication before this Court is regards the entitlement

of the parties to the suit property. While the appellants have relied upon

unregistered sale documents viz. the GPA, Agreement to Sell, Affidavit,

Possession Letter, Receipt and Deed of Will dated 15

th

December, 2015 in

their favour, the LRs of respondent no. 1 rely upon a registered

RFA 748/2018 Page 13 of 48

Relinquishment Deed dated 30

th

November, 2015, to claim their title over

the suit property.

12. The main contention raised by the appellants is that the

Relinquishment Deed dated 30

th

November, 2015 was executed with an

understanding that the suit property would be demolished and re-built, and

that the appellants would be entitled to get the FF thereof. It is to be noted

that the validity of the Relinquishment Deed is undisputed and stands

admitted and accepted by all the parties. However, the said Relinquishment

Deed does not contain any recital to the effect that the same had been

executed for the purpose of reconstruction of the suit property.

13. In his Evidence Affidavit dated 06

th

February, 2018, i.e., Ex. DW1/A,

DW1, Shri Devender Kumar, defendant no. 1 (now deceased), stated that he

reserved the right to file a suit for cancellation of the Relinquishment Deed

dated 30

th

November, 2015. Relevant portion of the said Evidence Affidavit

is extracted as below:

―xxx xxx xxx

5. That the relinquishment deed dated 30.11.2015 had been got

executed by the plaintiff by playing an active fraud and cheating the

defendant no. 1 and other co-shares in the suit property and plaintiff

is liable to be booked for the same by way of registration of an FIR.

That defendant no. 1 reserve their right to file a suit for cancellation

of relinquish deed dated 30.11.2015.

xxx xxx xxx‖

(Emphasis Supplied)

14. Similarly, DW2, Ms. Anand Versha (appellant no. 1) has stated in her

Evidence Affidavit dated 06

th

February, 2018 that the Relinquishment Deed

is liable to be cancelled/set aside. The relevant portion of DW2‟s Evidence

Affidavit reads as under:

RFA 748/2018 Page 14 of 48

―xxx xxx xxx

13. I state that the registered relinquishment deed dated 30.11.2015

had been got executed by the plaintiff by playing an active fraud and

cheating upon the deponent and other co-sharers in the suit property

and is therefore liable to be cancelled/ set aside.

xxx xxx xxx‖

(Emphasis Supplied)

15. However, it is pertinent to note that no such remedy has been resorted

to by the appellants or respondent no. 2. Thus, the validity of the

Relinquishment Deed dated 30

th

November, 2015 stands and is established.

16. Furthermore, it is relevant to note that the defendant no. 1, during the

course of his cross-examination, has made various admissions regarding the

fact of execution of the Relinquishment Deed in favour of father of

respondent no. 1(4). DW1 has admitted that he had no document in writing

to show that the father of respondent no. 1(4), elder brother of DW1, would

get the suit property re-constructed in a collaboration agreement with some

builder. The cross-examination of DW1 in this regard, reads as under:

―xxx xxx xxx

……. The Relinquishment deed Ex. PW1/2 bears my signature at

encircled point-A. I have no document in writing to show that it was

agreed between the parties that the plaintiff would get the suit

property reconstructed in a collaboration agreement with some

builder in the shape of parking at ground floor, upper ground floor,

first floor, second floor and third floor and after the re-construction

of the same, plaintiff would get the ground floor of the suit property.

It is further wrong to suggest that no such agreement was ever entered

into between me and the plaintiff. The address on the legal notice Ex.

PW1/3 is my correct address.

xxx xxx xxx‖

(Emphasis Supplied)

17. It is material to note that DW2, Ms. Anand Varsha/appellant no.1

herein, during the course of her cross-examination also admitted to the

RFA 748/2018 Page 15 of 48

execution of Relinquishment Deed, her photograph on the Relinquishment

Deed, as well as her signatures thereupon. She has further deposed that the

Relinquishment Deed was correct and that the same had been signed by her

in her full senses. She has further admitted that the other LRs have not raised

any objection pertaining to the execution of the Relinquishment Deed. She

further admits that she has not given any request in writing to the plaintiff in

the suit, asking the plaintiff/respondent no. 1 herein to re-construct the suit

property. The deposition of DW2 on this aspect reads as under:

―xxx xxx xxx

It is correct that the document Ex. PW1/2 i.e. Relinquishment

deed, my photograph has been affixed in encircled Mark X. It is also

correct that in the same document, I bear my signature in encircled

Mark-Y. It is also correct that in the same document, I bear my

signature and finger impressions in encircled Mark-Z. I have not

given anything in writing to the plaintiff to the effect of the property

pertaining to the Relinquishment Deed Ex. PW1/2. I have not given

anything in writing asking the plaintiff to construct the suit

property. It is correct that on Ex. PW1/2, my daughter also bears her

signature. My daughter did not issue me any objection in writing

pertaining to the subject Relinquishment Deed Ex. PW1/2. The

Relinquishment deed Ex. PW1/2 is altogether correct and I have

signed on the same in my full senses and due diligence. I have not

made any effort to vacate the suit property for its reconstruction.

xxx xxx xxx

It is correct that the children of my sister in law (Nanad) and

my brother in law (Jeth) did not raise any objection pertaining to the

execution of the Relinquishment deed. It is incorrect to suggest that I

am deposing falsely.

xxx xxx xxx‖

(Emphasis Supplied)

18. Thus, on the basis of the depositions and evidences on record, the

veracity of the Relinquishment Deed stands established. Further, the

Relinquishment Deed is a registered document, and the same has not been

RFA 748/2018 Page 16 of 48

challenged by the appellants, in any manner whatsoever. No such prayer

seeking cancellation of the Relinquishment Deed was sought by the

appellants in the proceedings before the Trial Court. No counter claim, or

any separate suit, seeking such cancellation of the Relinquishment Deed, has

ever been filed by the appellants. Further, no such issues were framed before

the Trial Court in this regard.

19. When the Relinquishment Deed has not been challenged by any party

and is a registered written document in favour of the respondent no. 1, no

oral evidence can be led against the said registered written document. When

there are written instruments or contracts, any other evidence is excluded

from being used either as a substitute for such instruments, or to contradict

or alter them. Thus, in the case of Roop Kumar Versus Mohan Thedani,

(2003) 6 SCC 595, the Supreme Court has elucidated on this aspect, as

under:

―xxx xxx xxx

16. The practical consequence of integration is that its scattered parts,

in their former and inchoate shape, have no longer any jural effect;

they are replaced by a single embodiment of the act. In other words,

when a jural act is embodied in a single memorial all other

utterances of the parties on the topic are legally immaterial for the

purpose of determining what are the terms of their act. This rule is

based upon an assumed intention on the part of the contracting

parties, evidenced by the existence of the written contract, to place

themselves above the uncertainties of oral evidence and on a

disinclination of the courts to defeat this object. When persons

express their agreements in writing, it is for the express purpose of

getting rid of any indefiniteness and to put their ideas in such shape

that there can be no misunderstanding, which so often occurs when

reliance is placed upon oral statements. Written contracts presume

deliberation on the part of the contracting parties and it is natural

they should be treated with careful consideration by the courts and

with a disinclination to disturb the conditions of matters as

embodied in them by the act of the parties. (See McKelvey's

RFA 748/2018 Page 17 of 48

Evidence, p. 294.) As observed in Greenlear's Evidence, p. 563, one of

the most common and important of the concrete rules presumed under

the general notion that the best evidence must be produced and that

one with which the phrase “best evidence” is now exclusively

associated is the rule that when the contents of a writing are to be

proved, the writing itself must be produced before the court or its

absence accounted for before testimony to its contents is admitted.

17. It is likewise a general and most inflexible rule that wherever

written instruments are appointed, either by the requirement of law,

or by the contract of the parties, to be the repositories and memorials

of truth, any other evidence is excluded from being used either as a

substitute for such instruments, or to contradict or alter them. This

is a matter both of principle and policy. It is of principle because

such instruments are in their own nature and origin, entitled to a

much higher degree of credit than parol evidence. It is of policy

because it would be attended with great mischief if those

instruments, upon which men's rights depended, were liable to be

impeached by loose collateral evidence. (See Starkie on Evidence, p.

648.)

18. In Section 92 the legislature has prevented oral evidence being

adduced for the purpose of varying the contract as between the

parties to the contract; but, no such limitations are imposed under

Section 91. Having regard to the jural position of Sections 91 and 92

and the deliberate omission from Section 91 of such words of

limitation, it must be taken note of that even a third party if he wants

to establish a particular contract between certain others, either when

such contract has been reduced to in a document or where under the

law such contract has to be in writing, can only prove such contract

by the production of such writing.

19. Sections 91 and 92 apply only when the document on the face of

it contains or appears to contain all the terms of the contract.

Section 91 is concerned solely with the mode of proof of a document

with limitation imposed by Section 92 relates only to the parties to

the document. If after the document has been produced to prove its

terms under Section 91, provisions of Section 92 come into

operation for the purpose of excluding evidence of any oral

agreement or statement for the purpose of contradicting, varying,

adding or subtracting from its terms. Sections 91 and 92 in effect

supplement each other. Section 91 would be inoperative without the

aid of Section 92, and similarly Section 92 would be inoperative

without the aid of Section 91.

20. The two sections, however, differ in some material particulars.

Section 91 applies to all documents, whether they purport to dispose

RFA 748/2018 Page 18 of 48

of rights or not, whereas Section 92 applies to documents which can

be described as dispositive. Section 91 applies to documents which

are both bilateral and unilateral, unlike Section 92 the application of

which is confined to only bilateral documents. (See : Bai Hira

Devi v. Official Assignee of Bombay [AIR 1958 SC 448]) Both these

provisions are based on ―best-evidence rule‖. In Bacon's Maxim

Regulation 23, Lord Bacon said ―The law will not couple and mingle

matters of speciality, which is of the higher account, with matter of

averment which is of inferior account in law.‖ It would be

inconvenient that matters in writing made by advice and on

consideration, and which finally import the certain truth of the

agreement of parties should be controlled by averment of the parties

to be proved by the uncertain testimony of slippery memory.

21. The grounds of exclusion of extrinsic evidence are : (i) to admit

inferior evidence when law requires superior would amount to

nullifying the law, and (ii) when parties have deliberately put their

agreement into writing, it is conclusively presumed, between

themselves and their privies, that they intended the writing to form a

full and final statement of their intentions, and one which should be

placed beyond the reach of future controversy, bad faith and

treacherous memory.

xxx xxx xxx‖

(Emphasis Supplied)

20. In the present case, the appellants, having accepted the execution of

the registered Relinquishment Deed, cannot seek to challenge the same by

way of any oral evidence. Law is settled in this regard that oral evidence of a

written agreement is excluded. Thus, relying upon Sections 91 and 92 of the

Evidence Act, which provides that where terms of the contract have been

reduced in the form of a document and have been proved, no evidence of

any oral agreement between the parties for contradicting, varying, adding or

subtracting from the terms therein shall be admitted, this Court in the case of

Promila Gulati Versus Anil Gulati, 2015 SCC OnLine Del 7406, held as

follows:

RFA 748/2018 Page 19 of 48

―xxx xxx xxx

16. It is a rule of law of evidence, which is also known as the

“best evidence rule” that in case a written document is available, no

oral evidence can be lead in that regard. In the present case, in the

face of a document in writing, the pleas of the defendant cannot be

permitted to be taken and are barred by the provision of Section 92

of the Evidence Act. The following cases are relevant in this regard:

(a) In Kusum Enterprises v. Vimal Kochhar 207 (2014) DLT 172,

it was observed as follows:

―(c) Section 91 of the Indian Evidence Act, 1872 provides that

where the terms of a contract have been reduced in the form of a

document and where the matter is required by law to be reduced in

the form of a document, no evidence shall be given in proof of the

terms of such contract except the document itself; Section 92 of the

Evidence Act provides that where the terms of the contract required

by law to be reduced in the form of a document have been proved

according to Section 91, no evidence of any oral agreement between

the parties for the purpose of contradicting, varying, adding to, or

subtracting from its terms shall be admitted; though there are

exceptions to both the said provisions but the same have not been

invoked by the respondents/plaintiffs or their counsel and the case is

not found to be falling in any of the exceptions;

(d) it is also the settled position in law (See Chandrakant

Shankarrao Machale v. Parubai Bhairu Mohite (2008) 6 SCC

745 and S. Saktivel v. M. Venugopal Pillai (2000) 7 SCC 104) that the

terms of a registered document can be varied/altered by a registered

document only; in Raval & Co. v. K.G. Ramachandran (1974) 1 SCC

424 it was specifically held that any variation of rent reserved by a

registered lease deed must be made by another registered

instrument;‖

(b) In the case of Roop Kumar v. Mohan Thedani (2003) 6 SCC

595, it was held as follows:

―Section 91 relates to evidence of terms of contract, grants and

other disposition of properties reduced to form of document. This

section merely forbids proving the contents of a writing otherwise

than by writing itself; it is covered by the ordinary rule of law of

evidence, applicable not merely to solemn writings of the sort named

but to others known some times as the ―best evidence rule‖. It is in

really declaring a doctrine of the substantive law, namely, in the case

of a written contract, that of all proceedings and contemporaneous

oral expressions of the thing are merged in the writing or displaced by

RFA 748/2018 Page 20 of 48

it. (See Thaver's Preliminary Law on Evidence p. 397 and p. 398;

Phipson Evidence 7

th

Edn. p. 546; Wigmore's Evidence p. 2406.) It has

been best described by Wigmore stating that the rule is no sense a rule

of evidence but a rule of substantive law. It does not exclude certain

data because they are for one or another reason untrustworthy or

undesirable means of evidencing some fact to be proved. It does not

concern a probative mental process - the process of believing one fact

on the faith of another. What the rule does is to declare that certain

kinds of facts are legally ineffective in the substantive law; and this of

course (like any other ruling of substantive law) results in forbidding

the fact to be proved at all. But this prohibition of providing it is

merely the dramatic aspect of the process of applying the rule of

substantive law. When a thing is not to be proved at all the rule of

prohibition does not become a rule of evidence merely because it

comes into pay when the counsel offers to ―prove‖ it or ―give

evidence‖ of it; otherwise any rule of law whatever might reduced to a

rule of evidence. It would become the legitimate progeny of the law of

evidence. For the purpose of specific varieties of jural effects - sale,

contract etc. there are specific requirements varying according to the

subject.‖

(c) In Far East Marketing (P) Ltd. v. Khurana Electricals (in I.A.

Nos. 17592/2011 and 17593/2011 in CS (OS) No. 303/2011, Decided

On : 10.11.2014), this court observed that:

―13. No evidence of any oral agreement or statement can be

admitted when the terms of any such contract have been reduced in

the form of a document. Thus, the grounds mentioned in the

application for leave to defend as defence, it is merely a moonshine

defence. The said grounds have no application in law.‖

xxx xxx xxx‖

(Emphasis Supplied)

21. It is apparent from the record that the plea of oral family agreement

between the parties qua execution of the Relinquishment Deed has not been

established by the appellants in the present case, by means of any cogent

evidence, documentary or otherwise. It has not been established that the

Relinquishment Deed was executed by the appellants and other co-sharers of

the suit property under an express understanding that post execution of the

said Deed, the respondent no. 1/plaintiff in the suit would get the suit

RFA 748/2018 Page 21 of 48

property reconstructed for the benefit of all. It is also material to note that

eight persons had executed the Relinquishment Deed. However, no

proceedings have been initiated by any other party raising challenge to the

Relinquishment Deed.

22. The contention of the appellants that they relinquished their share in

favour of the respondent no. 1/plaintiff in the suit, as a mark of respect as he

was eldest in the family is doubtful, as in terms of the Relinquishment Deed,

the age of defendant no. 1 in the suit, Devender Kumar is shown as 74 years,

whereas, the age of plaintiff in the suit, Narender Kumar was 71 years at the

time of execution of the said Relinquishment Deed. The recital of the age of

the various parties, as reflected in the Relinquishment Deed, is extracted as

follows:

―xxx xxx xxx

xxx xxx xxx‖

23. From the deposition of the appellant no. 1 as DW2 and respondent no.

2 as DW1 on record, it is established that there is no document in writing to

show that it was agreed amongst the parties that the plaintiff/father of

respondent no. 1(4) herein, would get the suit property reconstructed in

RFA 748/2018 Page 22 of 48

collaboration with some builder. Further, there is no document in writing to

show that the appellants ever requested the plaintiff/father of respondent no.

1(4) herein, for reconstruction of the suit property. Thus, it has not been

established that any oral agreement was as such entered into between the

parties for reconstruction of the suit property. The respondent no. 1(4)

herein, Hitesh Sharma, in his capacity as PW1, has categorically denied that

the Relinquishment Deed was executed with the intention of having the suit

property reconstructed by way of a collaboration agreement. The relevant

portion of the cross-examination of PW1, reads as under:

―xxx xxx xxx

It is wrong to suggest that Ex. PW1/2 i.e. Relinquishment

Deed dated 30.11.2015 had been executed by defendant nos.3 & 4

alongwith other defendants and releasors qua the suit property

under the distinct understanding that my father i.e. plaintiff, after

execution of the said relinquishment deed will enter into a

Collaboration Agreement with some builder and will get the same

reconstructed in the form of parking at ground floor, upper ground

floor, first floor, second floor and third floor and thereafter, entire

first floor in the reconstructed property without roof rights would be

given to the defendant no.3. It is further wrong to suggest that

intentions of my father after execution of the aforesaid Relinquishment

deed have become dishonest and he is deliberately not honouring his

commitments and understandings with the defendant nos. 3 & 4. Voltr.

My father did not give any commitment and understanding of such

nature qua the suit property. ……

xxx xxx xxx‖

(Emphasis Supplied)

24. No other witnesses have been produced by the appellants in order to

prove the fact of any oral agreement between the parties. Thus, the

appellants have been unable to establish that the Relinquishment Deed was

executed with a view to reconstruct the property and to hand over respective

portions to the various parties thereafter.

RFA 748/2018 Page 23 of 48

25. In this regard, it would be fruitful to refer to the judgment of a

Division Bench of this Court in the case of Dr. Suraj Munjal Versus

Chandan Munjal and Others, 2022 SCC OnLine Del 1717, wherein, it has

been held that an oral agreement, which has not been established by some

cogent evidence, cannot be considered by the Court and such plea has to be

rejected. Thus, it has been held as follows:

―xxx xxx xxx

52. There is no dispute about the proposition that an oral agreement

may be acted upon by the parties without its formal registration

provided it is established by some cogent evidence. However, what

has been raised by the appellant is merely a vague plea of oral

agreement. He claims, ―That as regard the shareholding in the

Defendant No 6 Company and the joint properties, the same was

matter between the Plaintiff and the Defendant No. 1, both in fact

stood settled long ago but made effective w.e.f. January, 2017”. No

date of alleged Oral settlement is pleaded by the appellant except

claiming it be have been done ―long ago‖ but interestingly, the same

is claimed to have been made effective from January, 2017. Once a

fact itself is not pleaded and is absolutely vague it cannot be

considered by the court and merits rejection.

xxx xxx xxx‖

(Emphasis Supplied)

26. Since the appellants have been unable to prove the existence of any

oral agreement to show modification of terms of the registered

Relinquishment Deed, and further, the execution of the Relinquishment

Deed having been accepted and the said registered document having been

validly proved, no oral understanding between the parties, as alleged by the

appellants, can be accepted by this Court. Thus, holding that terms of

registered document can be altered, rescinded or varied only by subsequent

registered document and not otherwise, the Supreme Court in the case of S.

Saktivel (Dead) by LRs Versus M. Venugopal Pillai and Others, (2000) 7

RFA 748/2018 Page 24 of 48

SCC 104, held as follows:

―xxx xxx xxx

5. Learned counsel appearing for the appellant urged that the view

taken by the High Court in decreeing the suit of the plaintiff was

erroneous inasmuch as the settlees under Ext. A-1 got the suit

property and by the subsequent oral arrangement, they agreed to

work out their rights without varying or substituting the terms of Ext.

A-1 and, therefore, the High Court was not right in not considering

the oral arrangement as pleaded by the defendant-appellant. It is not

disputed that disposition under Ext. A-1 in the present case is by way

of grant and under the said disposition all the sons of Muthuswamy

Pillai acquired rights. It is also not disputed that the settlement deed

is a registered document and by virtue of alleged subsequent oral

arrangement, the other sons of Muthuswamy Pillai were divested of

the rights which they acquired under the settlement deed. Under such

circumstances the question that arises for consideration is as to

whether any parol evidence can be let in to substantiate subsequent

oral arrangement rescinding or modifying the terms of the document

which, under law, is required to be in writing or is a registered

document, namely, Ext. A-1. Section 92 of the Evidence Act reads as

thus:

―92. Exclusion of evidence of oral agreement.—When the terms

of any such contract, grant or other disposition of property, or

any matter required by law to be reduced to the form of a

document, have been proved according to the last section, no

evidence of any oral agreement or statement shall be admitted,

as between the parties to any such instrument or their

representatives in interest, for the purpose of contradicting,

varying, adding to, or subtracting from, its terms:

* * *

Proviso (4).—The existence of any distinct subsequent oral

agreement to rescind or modify any such contract, grant or

disposition of property, may be proved, except in cases in which

such contract, grant or disposition of property is by law

required to be in writing, or has been registered according to

the law in force for the time being as to the registration of

documents.‖

A perusal of the aforesaid provision shows that what Section 92

provides is that when the terms of any contract, grant or other

disposition of property, or any matter required by law to be reduced

in the form of a document, have been proved, no evidence of any

oral agreement or statement is permissible for the purpose of

contradicting, varying, adding or subtracting from the said written

RFA 748/2018 Page 25 of 48

document. However this provision is subject to provisos (1) to (6) but

we are not concerned with other provisos except proviso (4), which is

relevant in the present case. The question then is whether the

defendant-appellant can derive any benefit out of proviso (4) to

Section 92 for setting up oral arrangement arrived at in the year 1941

which has the effect of modifying the written and registered

disposition. Proviso (4) to Section 92 contemplates three situations,

whereby:

(i) The existence of any distinct subsequent oral agreement to

rescind or modify any earlier contract, grant or disposition of

property can be proved.

(ii) However, this is not permissible where the contract, grant

or disposition of property is by law required to be in writing.

(iii) No parol evidence can be let in to substantiate any

subsequent oral arrangement which has the effect of

rescinding a contract or disposition of property which is

registered according to the law in force for the time being as to

the registration of documents.

6. In sum and substance what proviso (4) to Section 92 provides is

that where a contract or disposition, not required by law to be in

writing, has been arrived at orally then subsequent oral agreement

modifying or rescinding the said contract or disposition can be

substantiated by parol evidence and such evidence is admissible.

Thus if a party has entered into a contract which is not required to be

reduced in writing but such a contract has been reduced in writing, or

it is oral, in such situations it is always open to the parties to the

contract to modify its terms and even substitute by a new oral contract

and it can be substantiated by parol evidence. In such kind of cases

the oral evidence can be let in to prove that the earlier contract or

agreement has been modified or substituted by a new oral agreement.

Where under law a contract or disposition is required to be in

writing and the same has been reduced to writing, its terms cannot

be modified or altered or substituted by oral contract or disposition.

No parol evidence will be admissible to substantiate such an oral

contract or disposition. A document for its validity or effectiveness is

required by law to be in writing and, therefore, no modification or

alteration or substitution of such written document is permissible by

parol evidence and it is only by another written document the terms

of earlier written document can be altered, rescinded or substituted.

There is another reason why the defendant-appellant cannot be

permitted to let in parol evidence to substantiate the subsequent oral

arrangement. The reason being that the settlement deed is a

registered document. The second part of proviso (4) to Section 92

does not permit leading of parol evidence for proving a subsequent

RFA 748/2018 Page 26 of 48

oral agreement modifying or rescinding the registered instrument.

The terms of registered document can be altered, rescinded or varied

only by subsequent registered document and not otherwise. If the

oral arrangement as pleaded by the appellant, is allowed to be

substantiated by parol evidence, it would mean rewriting of Ext. A-1

and, therefore, no parol evidence is permissible.

xxx xxx xxx‖

(Emphasis Supplied)

27. It is also relevant to note that the Relinquishment Deed dated 30

th

November, 2015, Ex. PW1/2, has been executed by the releasors, i.e., the

appellants/defendants in the suit, and sons and daughter of Smt. Shashi Bala,

the deceased daughter of Late Smt. Chander Wati. The legal heirs of Smt.

Shashi Bala have not challenged the Relinquishment Deed, nor were they

parties in the suit, even though they were also the releasors. It is to be noted

that the Relinquishment Deed, Ex. PW1/2 records in categorical terms that

all the releasors relinquish all their rights, claims and interests in the suit

property in favour of the plaintiff/respondent no. 1 herein, and that the

plaintiff has become the exclusive and absolute owner of the suit property

on account of execution of the Relinquishment Deed. It is further stated in

the Relinquishment Deed that no legal heirs of the releasors shall have any

interest/claim/right in the suit property. Therefore, the right of the

respondent no. 1/LRs of respondent no. 1 to the suit property, by way of the

registered Relinquishment Deed, stands proved. The Relinquishment Deed

is valid and remains in full force and effect.

28. The appellants have relied upon various documents to claim their

entitlement over the suit property. The documents relied upon by the

appellants are in the nature of Electricity Bill in the name of Devender

Kumar/defendant no. 1; Ration Card of Devender Kumar; GPAs;

RFA 748/2018 Page 27 of 48

Agreements to Sell; Affidavits from Late Shri Narender Kumar

Sharma/plaintiff in the suit; Possession Letters from Late Shri Narender

Kumar Sharma; Receipts for Rs. 9.6 Lakhs in cash; Deeds of Will executed

by Late Shri Narender Kumar Sharma, plaintiff in the suit, in favour of

defendant no. 1/respondent no. 2 and defendant no. 3/appellant no. 1.

29. The aforesaid sale documents in the nature of GPA, Agreement to

Sell, Affidavit, Will, etc., all dated 15

th

December, 2015, which have been

relied upon by the appellants, are unregistered documents, and cannot

transfer title in an immovable property, as they hold no evidentiary value

regarding claim of transfer of any proprietary right over an immovable

property. The Court cannot give credence to said unregistered documents.

30. The Supreme Court in the case of Suraj Lamp and Industries Private

Limited (2) Through Director Versus State of Haryana and Another,

(2012) 1 SCC 656, has held in clear terms that a PoA is not an instrument of

transfer in regard to any right, title or interest in an immovable property.

Thus, the Supreme Court has held that transactions in the nature of

GPA/Will do not convey title and do not amount to transfer of immovable

property. Such documents cannot be considered as completed or concluded

transfers or conveyances, as they neither create title, nor create any interest

in the immovable property. Accordingly, Supreme Court in the aforesaid

case has held as follows:

―xxx xxx xxx

18. It is thus clear that a transfer of immovable 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 immovable property can be

transferred.

19. Any contract of sale (agreement to sell) which is not a registered

RFA 748/2018 Page 28 of 48

deed of conveyance (deed of sale) would fall short of the

requirements of Sections 54 and 55 of the TP Act and will not confer

any title nor transfer any interest in an immovable property (except

to the limited right granted under Section 53-A of the TP Act).

According to the TP Act, an agreement of sale, whether with

possession or without possession, is not a conveyance. Section 54 of

the TP Act enacts that sale of immovable property can be made only

by a registered instrument and an agreement of sale does not create

any interest or charge on its subject-matter.

Scope of power of attorney

20. 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 authorises 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 1-A and Section 2 of the Powers of Attorney Act, 1882). It is

revocable or terminable at any time unless it is made irrevocable in a

manner known to law. Even an irrevocable attorney does not have

the effect of transferring title to the grantee.

21. In State of Rajasthan v. Basant Nahata [(2005) 12 SCC 77] this

Court held: (SCC pp. 90 & 101, paras 13 & 52)

―13. A grant of power of attorney is essentially governed by

Chapter X of the Contract Act. By reason of a deed of power of

attorney, an agent is formally appointed to act for the principal

in one transaction or a series of transactions or to manage the

affairs of the principal generally conferring necessary authority

upon another person. A deed of power of attorney is executed by

the principal in favour of the agent. The agent derives a right to

use his name and all acts, deeds and things done by him and

subject to the limitations contained in the said deed, the same

shall be read as if done by the donor. A power of attorney is, as

is well known, a document of convenience.

* * *

52. Execution of a power of attorney in terms of the provisions

of the Contract Act as also the Powers of Attorney Act is valid.

A power of attorney, we have noticed hereinbefore, is executed

by the donor so as to enable the donee to act on his behalf.

Except in cases where power of attorney is coupled with

interest, it is revocable. The donee in exercise of his power

under such power of attorney only acts in place of the donor

subject of course to the powers granted to him by reason

thereof. He cannot use the power of attorney for his own

RFA 748/2018 Page 29 of 48

benefit. He acts in a fiduciary capacity. Any act of infidelity or

breach of trust is a matter between the donor and the donee.‖

An attorney-holder may however execute a deed of conveyance

in exercise of the power granted under the power of attorney

and convey title on behalf of the grantor.

Scope of will

22. 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 lifetime of the testator. It is said that so long as the testator

is alive, a will is not worth the paper on which it is written, as the

testator can at any time revoke it. If the testator, who is not married,

marries after making the will, by operation of law, the will stands

revoked. (See Sections 69 and 70 of the Succession Act, 1925.)

Registration of a will does not make it any more effective.

Conclusion

xxx xxx xxx

24. 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.

xxx xxx xxx‖

(Emphasis Supplied)

31. Likewise, holding that no right, title or interest in immovable property

can be conferred without a registered document, in the case of Shakeel

RFA 748/2018 Page 30 of 48

Ahmed Versus Syed Akhlaq Hussain, (2023) 20 SCC 655, the Supreme

Court has held as follows:

―xxx xxx xxx

12. The Registration Act, 1908 clearly provides that a document

which requires compulsory registration under the Act, would not

confer any right, much less a legally enforceable right to approach a

court of law on its basis. Even if these documents i.e. the agreement

to sell and the power of attorney were registered, still it could not be

said that the respondent would have acquired title over the property

in question. At best, on the basis of the registered agreement to sell,

he could have claimed relief of specific performance in appropriate

proceedings. In this regard, reference may be made to Sections 17

and 49 of the Registration Act and Section 54 of the Transfer of

Property Act, 1882.

13. Law is well settled that no right, title or interest in immovable

property can be conferred without a registered document. Even the

judgment of this Court in Suraj Lamp & Industries [Suraj Lamp &

Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC 656 : (2012)

1 SCC (Civ) 351 : (2011) 183 DLT 1 (SC)] lays down the same

proposition. Reference may also be made to the following judgments

of this Court:

(i) Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar [Ameer

Minhaj v. Dierdre Elizabeth (Wright) Issar, (2018) 7 SCC 639 :

(2018) 3 SCC (Civ) 696]

(ii) Balram Singh v. Kelo Devi [Balram Singh v. Kelo Devi,

(2024) 12 SCC 723 : 2022 SCC OnLine SC 1283]

(iii) Paul Rubber Industries (P) Ltd. v. Amit Chand Mitra [Paul

Rubber Industries (P) Ltd. v. Amit Chand Mitra, (2024) 13 SCC

219 : 2023 SCC OnLine SC 1216]

14. The embargo put on registration of documents would not

override the statutory provision so as to confer title on the basis of

unregistered documents with respect to immovable property. Once

this is the settled position, the respondent could not have maintained

the suit for possession and mesne profits against the appellant, who

was admittedly in possession of the property in question whether as an

owner or a licensee.

xxx xxx xxx‖

(Emphasis Supplied)

32. Similarly, in the case of Ramesh Chand (D) Thr. Lrs Versus Suresh

RFA 748/2018 Page 31 of 48

Chand and Another, 2025 SCC OnLine SC 1879, the Supreme Court

analysed Section 5 and Section 54 of the Transfer of Property Act, 1882

(“Transfer of Property Act”) to hold that for sale of immovable property,

specific mode of execution requires three conditions to be fulfilled, i.e., the

said documents should be in writing, validly attested and registered.

Otherwise, the property will not be transferred. The Court further held that a

PoA does not transfer any title. Further, receipt of consideration and/or

affidavit, also do not transfer valid title in view of Section 54 of the Transfer

of Property Act. The Supreme Court, thus, held as follows:

―xxx xxx xxx

14. Perusal of above said provisions lays down a specific mode of

execution of sale deed with respect to immovable property for

concluding the sale of a property. In sale for an immovable property

the value of which exceeds Rs. 100/-, the three requirements of law

are that the transfer of property of sale must take place through a

validly executed sale deed, i.e., it must be in writing, properly

attested and registered. Unless the sale deed is in writing, attested

and registered, the transaction cannot be construed as sale, or in

other words, the property will not be transferred.

15. There is a difference between a sale deed and an agreement for

sale, or a contract for sale. A contract for sale of immovable

property is a contract that a sale of such property shall take place on

terms settled between the parties. While a sale is a transfer of

ownership; a contract for sale is merely a document creating a right

to obtain another document, namely a registered sale deed to

complete the transaction of sale of an immovable property. Section

54 in its definition of sale does not include an agreement of sale and

neither confers any proprietary rights in favour of the transferee nor

by itself create any interest or charge in the property. If after

entering into a contract for sale of property, the seller without any

reasonable excuse avoids executing a sale deed, the buyer can

proceed to file a suit for specific performance of the contract.

xxx xxx xxx

18. A power of attorney is a 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

RFA 748/2018 Page 32 of 48

as if done by him. It is revocable or terminable at any time unless it is

made irrevocable in a manner known to law. A General Power of

Attorney does not ipso facto constitute an instrument of transfer of

an immovable property even where some clauses are introduced in

it, holding it to be irrevocable or authorizing the attorney holder to

effect sale of the immovable property on behalf of the grantor. It

would not ipso facto change the character of the document

transforming it into a conveyance deed. [Dr. Poonam Pradhan

Saxena, Property Law, Third Edition, 2017 (Lexis Nexis), p. 66]

xxx xxx xxx

28. Apart from the aforementioned documents, there is also an

affidavit dated 16.05.1996 said to have been executed by Sh. Kundan

Lal in favour of the plaintiff, along with a receipt of consideration,

wherein Sh. Kundan Lal is said to have acknowledged receipt of full

consideration for the sale of suit property to the tune of Rs.

1,40,000/- from the Plaintiff. The said instruments do not confer a

valid title upon the plaintiff because as per Section 54 of TP Act,

only through a deed of conveyance can a title can be transferred,

and none of the other documents and recitals in the said affidavit

are not proved by examining any other independent witnesses.

xxx xxx xxx‖

(Emphasis Supplied)

33. In the present case, the appellants/defendants in the suit, have not

proved the due execution of the unregistered sale documents by leading any

evidence. Further, in view of the law established by the Supreme Court, such

unregistered documents relied upon by the appellants cannot be held to be

valid instruments for transfer of title in the suit property.

34. Further, in the set of sale documents, the appellants have relied upon a

Deed of Will dated 15

th

December, 2015 as well, stated to have been

executed by the deceased plaintiff/respondent no. 1.

35. However, the son of respondent no. 1, Hitesh Sharma (before this

Court as respondent no. 1(4)), in his deposition as PW1, did not admit to the

execution of the documents as relied upon by the appellants, including, the

RFA 748/2018 Page 33 of 48

Deed of Will and had stated that since the said documents were photocopies,

he would not be able to answer questions in their regard. The relevant

extract of the deposition of PW1 on this aspect, reads as under:

―xxx xxx xxx

………. At this stage witness is confronted with the photocopies

of GPA, Agreement to sell etc. filed by defendant nos. 3 & 4 and

asked whether these documents were executed by his father in

favour of defendant no. 3. Witness states that he will not be able to

answer the said question as these are the photocopies only.

xxx xxx xxx‖

(Emphasis Supplied)

36. Reading of the deposition of respondent no. 1(4)/ PW1 clearly

demonstrates that there were no admissions by PW1 with regard to

execution of any documents by his father (plaintiff/respondent no. 1) in

favour of the appellants. In the absence of any admission to the execution of

Deed of Will dated 15

th

December, 2015 (Ex. DW2/11) in favour of the

appellants, the appellants were enjoined upon to prove and establish the

execution of the disputed Will, in accordance with law.

37. Thus, holding that onus is placed on the propounder of a Will to

dispel all doubts regarding execution of a Will, the Supreme Court in the

case of Murthy and Others Versus C. Saradambal and Others, (2022) 3

SCC 209, held as follows:

―xxx xxx xxx

31. One of the celebrated decisions of this Court on proof of a will,

in H. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443]

is in H. Venkatachala Iyengar v. B.N. Thimmajamma, wherein this

Court has clearly distinguished the nature of proof required for a

testament as opposed to any other document. The relevant portion of

the said judgment reads as under : (AIR p. 451, para 18)

―18. … The party propounding a will or otherwise making a

claim under a will is no doubt seeking to prove a document

RFA 748/2018 Page 34 of 48

and, in deciding how it is to be proved, we must inevitably refer

to the statutory provisions which govern the proof of

documents. Sections 67 and 68 of the Evidence Act are

relevant for this purpose. Under Section 67, if a document is

alleged to be signed by any person, the signature of the said

person must be proved to be in his handwriting, and for

proving such a handwriting under Sections 45 and 47 of the

Act the opinions of experts and of persons acquainted with the

handwriting of the person concerned are made relevant.

Section 68 deals with the proof of the execution of the

document required by law to be attested; and it provides that

such a document shall not be used as evidence until one

attesting witness at least has been called for the purpose of

proving its execution. These provisions prescribe the

requirements and the nature of proof which must be satisfied

by the party who relies on a document in a court of law.

Similarly, Sections 59 and 63 of the Succession Act are also

relevant. Section 59 provides that every person of sound mind,

not being a minor, may dispose of his property by will and the

three illustrations to this section indicate what is meant by the

expression ―a person of sound mind‖ in the context. Section 63

requires that the testator shall sign or affix his mark to the will

or it shall be signed by some other person in his presence and by

his direction and that the signature or mark shall be so made

that it shall appear that it was intended thereby to give effect to

the writing as a will. This section also requires that the will

shall be attested by two or more witnesses as prescribed. Thus,

the question as to whether the will set up by the propounder is

proved to be the last will of the testator has to be decided in the

light of these provisions. Has the testator signed the will? Did

he understand the nature and effect of the dispositions in the

will? Did he put his signature to the will knowing what it

contained? Stated broadly it is the decision of these questions

which determines the nature of the finding on the question of

the proof of wills. It would prima facie be true to say that the

will has to be proved like any other document except as to the

special requirements of attestation prescribed by Section 63 of

the Indian Succession Act. As in the case of proof of other

documents so in the case of proof of wills it would be idle to

expect proof with mathematical certainty. The test to be applied

would be the usual test of the satisfaction of the prudent mind

in such matters.‖

32. In fact, the legal principles with regard to the proof of a will are

no longer res integra. Section 63 of the Succession Act, 1925 and

RFA 748/2018 Page 35 of 48

Section 68 of the Evidence Act, 1872, are relevant in this regard.

The propounder of the will must examine one or more attesting

witnesses and the onus is placed on the propounder to remove all

suspicious circumstances with regard to the execution of the will.

xxx xxx xxx‖

(Emphasis Supplied)

38. The said Deed of Will relied by appellants is an unregistered

document. Even if a Will is not required to be registered, the same has to be

proved in terms of the law. The appellants did not summon any witnesses to

prove the execution of the said Deed of Will, Ex. DW2/11.

39. In contentious proceedings, a propounder of a Will must satisfy the

legal requirements to prove the validity of a Will. In order to rely upon a

Will in contested cases, the same has to be proved in accordance with law,

by examining the attesting witnesses of the Will. Even if a Will is registered,

validity of the said document cannot be presumed in cases of dispute in that

regard. Thus, Supreme Court in the case of Ramesh Chand (D) Thr. Lrs.

Versus Suresh Chand and Another, 2025 SCC OnLine SC 1879, has held

as follows:

―xxx xxx xxx

27. Considering the aforementioned cases, it is clear that in order to

rely upon a Will, the same has to be proved in accordance with law.

A Will has to be attested by two witnesses, and either of the two

attesting witnesses have to be examined by the propounder of the

will. In the present matter, we have carefully perused the Trial Court's

judgment. There is not an iota of discussion about the validity of the

Will as contemplated under Section 63 of the Succession Act,

1925 and Section 68 of the Evidence Act, 1872 and yet, the validity

of the Will has been upheld. This is contrary to law. Even the High

Court, while evaluating the validity of the Will, has gone on a different

tangent and has erroneously held that the requirement of examining

the attesting witnesses springs into action only in cases of disputes

between legal heirs. Such an observation is quite contrary to law, for

Section 68 of the Evidence Act makes it mandatory to examine at

least one of the attesting witnesses of the Will. Mere fact that the

RFA 748/2018 Page 36 of 48

Will was registered will not grant validity to the document. Besides

that, the will propounded by plaintiff is surrounded with suspicious

circumstances, in as much as the alleged propounder of the Will, Lt.

Sh. Kundan Lal, had four children, including the plaintiff and the

defendant No. 1. There is not even a whisper of reasoning as to why

the propounder of the Will choose to exclude other three children

from the bequest, and whether any other properties or assets were

given to them. It is highly unlikely that a father would grant his

entire property to one of his children, at the cost of three others,

without there being any evidence of estrangement between the father

and the children. This suspicious circumstance surrounding the will

has not been removed by the plaintiff either. Hence, for these

cumulative reasons, the Will propounded by plaintiff though

registered would not confer any valid title on the plaintiff either.

xxx xxx xxx‖

(Emphasis Supplied)

40. It is imperative to note that the Deed of Will, Ex. DW2/11 relied upon

by the appellants, is not registered. Further, no evidence has been led by the

appellants to prove its execution, in terms of the Evidence Act. Therefore,

the validity of the said Will cannot be presumed and accordingly, the same

had to be proved by the appellants, in accordance with law.

41. Significantly, even in cases of registered Will, the same has to be

proved by following the due process, in order to dispel doubt as to

genuineness of the Will. Thus, in the case of Dhani Ram (Died) Through

Lrs. and Others Versus Shiv Singh, 2023 SCC OnLine SC 1263, the

Supreme Court has held as follows:

―xxx xxx xxx

21. It is well settled that mere registration would not sanctify a

document by attaching to it an irrebuttable presumption of

genuineness. The observations of this Court in Rani Purnima

Debi v. Kumar Khagendra Narayan Debi [AIR 1962 SC 567 : (1962)

3 SCR 195], which were referred to by the Himachal Pradesh High

Court, are of guidance in this regard and are worthy of extraction.

These observations read as under:

RFA 748/2018 Page 37 of 48

―There is no doubt that if a Will has been registered, that

is a circumstance which may, having regard to the

circumstances, prove its genuineness. But the mere fact that

a Will is registered will not by itself be sufficient to dispel all

suspicion regarding it where suspicion exists, without

submitting the evidence of registration to a close

examination. If the evidence as to registration on a close

examination reveals that the registration was made in such a

manner that it was brought home to the testator that the

document of which he was admitting execution was a Will

disposing of his property and thereafter he admitted its

execution and signed it in token thereof, the registration will

dispel the doubt as to the genuineness of the Will. But if the

evidence as to registration shows that it was done in a

perfunctory manner, that the officer registering the Will did

not read it over to the testator or did not bring home to him

that he was admitting the execution of a Will or did not satisfy

himself in some other way (as, for example, by seeing the

testator reading the Will) that the testator knew that it was a

Will the execution of which he was admitting, the fact that the

Will was registered would not be of much value. It is not

unknown that registration may take place without the

executant really knowing what he was registering. Law

reports are full of cases in which registered Wills have not

been acted upon ………

Therefore, the mere fact of registration may not by itself be

enough to dispel all suspicion that may attach to the

execution and attestation of a Will; though the fact that there

has been registration would be an important circumstance in

favour of the Will being genuine if the evidence as to

registration establishes that the testator admitted the execution

of the Will after knowing that it was a Will the execution of

which he was admitting.‖

22. We may also refer to Janki Narayan Bhoir v. Narayan Namdeo

Kadam [(2003) 2 SCC 91], wherein this Court held that, to prove that

a Will has been executed, the requirements in clauses (a), (b) and (c)

of Section 63 of the Succession Act have to be complied with. It was

pointed out that the most important point is that the Will has to be

attested by two or more witnesses and each of these witnesses must

have seen the testator sign or affix his mark to the Will or must have

seen some other person sign the Will in the presence of and by the

direction of the testator or must have received from the testator a

personal acknowledgment of his signature or mark or of the

signature or mark of such other person and each of the witnesses

RFA 748/2018 Page 38 of 48

has to sign the Will in the presence of the testator. It was further held

that, a person propounding a Will has got to prove that the Will was

duly and validly executed and that cannot be done by simply proving

that the signature on the Will was that of the testator, as the

propounder must also prove that the attestations were made

properly, as required by Section 63(c) of the Succession Act. These

observations were affirmed and quoted with approval by this Court in

its later judgment in Lalitaben Jayantilal Popat v. Pragnaben

Jamnadas Kataria [(2008) 15 SCC 365].

xxx xxx xxx‖

(Emphasis Supplied)

42. Similarly, holding that the person propounding the Will has to prove

that it was duly and validly executed, the Supreme Court in the case of

Janki Narayan Bhoir Versus Narayan Namdeo Kadam, (2003) 2 SCC 91,

has held as follows:

―xxx xxx xxx

9. It is thus clear that one of the requirements of due execution of a

will is its attestation by two or more witnesses, which is mandatory.

10. Section 68 of the Evidence Act speaks of as to how a document

required by law to be attested can be proved. According to the said

section, a document required by law to be attested shall not be used

as evidence until one attesting witness at least has been called for

the purpose of proving its execution, if there be an attesting witness

alive, and subject to the process of the court and capable of giving

evidence. It flows from this section that if there be an attesting

witness alive capable of giving evidence and subject to the process of

the court, has to be necessarily examined before the document

required by law to be attested can be used in an evidence. On a

combined reading of Section 63 of the Succession Act with Section

68 of the Evidence Act, it appears that a person propounding the will

has got to prove that the will was duly and validly executed. That

cannot be done by simply proving that the signature on the will was

that of the testator but must also prove that attestations were also

made properly as required by clause (c) of Section 63 of the

Succession Act. It is true that Section 68 of the Evidence Act does not

say that both or all the attesting witnesses must be examined. But at

least one attesting witness has to be called for proving due execution

of the will as envisaged in Section 63. Although Section 63 of the

Succession Act requires that a will has to be attested at least by two

RFA 748/2018 Page 39 of 48

witnesses, Section 68 of the Evidence Act provides that a document,

which is required by law to be attested, shall not be used as evidence

until one attesting witness at least has been examined for the

purpose of proving its due execution if such witness is alive and

capable of giving evidence and subject to the process of the court. In

a way, Section 68 gives a concession to those who want to prove and

establish a will in a court of law by examining at least one attesting

witness even though the will has to be attested at least by two

witnesses mandatorily under Section 63 of the Succession Act. But

what is significant and to be noted is that one attesting witness

examined should be in a position to prove the execution of a will. To

put in other words, if one attesting witness can prove execution of the

will in terms of clause (c) of Section 63 viz. attestation by two attesting

witnesses in the manner contemplated therein, the examination of the

other attesting witness can be dispensed with. The one attesting

witness examined, in his evidence has to satisfy the attestation of a

will by him and the other attesting witness in order to prove there

was due execution of the will. If the attesting witness examined

besides his attestation does not, in his evidence, satisfy the

requirements of attestation of the will by the other witness also it

falls short of attestation of will at least by two witnesses for the

simple reason that the execution of the will does not merely mean

the signing of it by the testator but it means fulfilling and proof of

all the formalities required under Section 63 of the Succession Act.

Where one attesting witness examined to prove the will under Section

68 of the Evidence Act fails to prove the due execution of the will then

the other available attesting witness has to be called to supplement his

evidence to make it complete in all respects. Where one attesting

witness is examined and he fails to prove the attestation of the will by

the other witness there will be deficiency in meeting the mandatory

requirements of Section 68 of the Evidence Act.

xxx xxx xxx‖

(Emphasis Supplied)

43. Thus, the contention of the appellants that the Will of the deceased

respondent no. 1 is in their favour, conferring rights over them, and the same

has not been disputed/revoked by the respondent no. 1/LRs of respondent

no. 1, does not hold any water. Production of a document before Court and

proving a document in accordance with law, are two different facets. Mere

production and marking of a document as „Exhibit‟ by Court cannot be held

RFA 748/2018 Page 40 of 48

to be a due proof of its contents. Execution of such document, which has not

been admitted, has to be proved by admissible evidence. [See: Narbada

Devi Gupta Versus Birendra Kumar Jaiswal and Another, (2003) 8 SCC

745]

44. Accordingly, the contention of the appellants that upon demise of

plaintiff/respondent no. 1 herein, the registered and admitted

Relinquishment Deed became inoperative and the unregistered and

unproved Will came into play, thereby, superseding the Relinquishment

Deed, is totally misguided and untenable. The veracity of the Will has not

been proved by established means of evidence. Such unregistered and

unproved document cannot be said to have an overriding effect on a

registered document, which is undisputedly admitted by all parties.

45. The contention of the appellants that the learned Trial Court did not

give any finding with respect to the validity of the Deed of Will (Ex.

DW2/11), as the plaintiff before the Trial Court, who was executor of the

Will had expired during the pendency of the suit, is also without any merit

and is liable to be rejected. The said Will was never proven in terms of

Section 63 of the Indian Succession Act, 1925 (“Indian Succession Act”) or

Section 68 of the Evidence Act, and accordingly, the Trial Court has held

the Issue No. (ii) against the appellants herein/defendant nos. 3 and 4 in the

suit.

46. It is to be noted that in the present case, at the time of institution of

the suit, the respondent no. 1/plaintiff was alive, and thus, the question of

operation of the Deed of Will, Ex. DW2/11, did not arise. Accordingly, the

suit for possession and permanent injunction was validly filed by respondent

RFA 748/2018 Page 41 of 48

no. 1/plaintiff. Moreover, in his replication to the written statement filed by

the appellants before Trial Court, the respondent no. 1/plaintiff had stated,

that the sale documents exhibited by appellants were a nullity in law. Thus,

the Deed of Will had been disputed by the respondent no. 1/plaintiff in the

suit. Once the Will became disputed, for it to come into operation post the

death of respondent no. 1/plaintiff, the appellants were required to prove the

Will in accordance with Evidence Act, i.e., by leading evidence under

Section 68 of the Evidence Act. Having not done so, the Will cannot be said

to be a valid document in the eyes of law.

47. It is pertinent to note that during the lifetime of plaintiff/respondent

no. 1, the appellants failed to call the testator/plaintiff on to the witness stand

before the Trial Court to prove the execution of Deed of Will in terms of

Section 63 of the Indian Succession Act. Furthermore, the defendants‟

(appellants herein) evidence was closed/concluded only after the death of

respondent no. 1/plaintiff. Thus, the appellants/defendants had ample

opportunity to move appropriate application before the Trial Court seeking

adjudication on the aspect of operation and validity of the Deed of Will, Ex.

DW2/11, which they have not done.

48. The appellants have neither led any evidence to prove the unregistered

Will and nor is there any express issue framed on the validity of the Will.

Thus, the Trial Court was not required to go beyond the pleadings and issues

framed to give a categorical finding on the aspect of validity of the Deed of

Will, Ex. DW2/11.

49. Thus, holding that a Court should confine its decision to the question

raised in the pleadings and not grant a relief which is not claimed, Supreme

RFA 748/2018 Page 42 of 48

Court in the case of Bachhaj Nahar Versus Nilima Mandal and Another,

2008 (17) SCC 491, held as follows:

―xxx xxx xxx

8. The High Court also observed that if there was any encroachment

over the said passage by the first defendant, that will have to be got

removed by the ―process of law‖. The High Court also issued a

permanent injunction restraining the plaintiffs from encroaching upon

the suit property (passage) till the plaintiffs got a declaration of their

title over the suit property by a competent court. The first defendant

sought review of the said judgment. The review petition was dismissed

by the High Court by order dated 9-12-2004.

9. The said judgment and order on review application, of the High

Court, are challenged by the first defendant in these appeals by

special leave. The appellant contends that neither in law, nor on

facts, the High Court could have granted the aforesaid reliefs.

10. The High Court, in this case, in its obvious zeal to cut delay and

hardship that may ensue by relegating the plaintiffs to one more round

of litigation, has rendered a judgment which violates several

fundamental rules of civil procedure. The rules breached are:

(i) No amount of evidence can be looked into, upon a plea which

was never put forward in the pleadings. A question which did

arise from the pleadings and which was not the subject-matter of

an issue, cannot be decided by the court.

(ii) A court cannot make out a case not pleaded. The court should

confine its decision to the question raised in pleadings. Nor can it

grant a relief which is not claimed and which does not flow from

the facts and the cause of action alleged in the plaint.

(iii) A factual issue cannot be raised or considered for the first time

in a second appeal.

11. The Civil Procedure Code is an elaborate codification of the

principles of natural justice to be applied to civil litigation. The

provisions are so elaborate that many a time, fulfilment of the

procedural requirements of the Code may itself contribute to delay.

But any anxiety to cut the delay or further litigation should not be a

ground to flout the settled fundamental rules of civil procedure. Be

that as it may. We will briefly set out the reasons for the aforesaid

conclusions.

12. The object and purpose of pleadings and issues is to ensure that

the litigants come to trial with all issues clearly defined and to

prevent cases being expanded or grounds being shifted during trial.

RFA 748/2018 Page 43 of 48

Its object is also to ensure that each side is fully alive to the

questions that are likely to be raised or considered so that they may

have an opportunity of placing the relevant evidence appropriate to

the issues before the court for its consideration. This Court has

repeatedly held that the pleadings are meant to give to each side

intimation of the case of the other so that it may be met, to enable

courts to determine what is really at issue between the parties, and to

prevent any deviation from the course which litigation on particular

causes must take.

xxx xxx xxx‖

(Emphasis Supplied)

50. Another issue raised by the appellants in the present appeal, though

not raised before the Trial Court, is that the son of respondent no. 1/plaintiff,

i.e., respondent no. 1(4), testified on behalf of his father on the basis of a

PoA (Ex. PW1/1), regarding the execution of the Relinquishment Deed. As

per the appellants, respondent no. 1, late Shri Narender Kumar Sharma,

never entered the witness box during his lifetime to depose in support of his

case. Thus, as per the appellants, the non-appearance of respondent no.

1/plaintiff strikes at the root of the plaintiff‟s case, as he could have given

the best possible evidence regarding the execution and purpose of the

Relinquishment Deed, as well as the subsequent sale documents, i.e., GPA,

Agreement to Sell, etc.

51. The aforesaid contentions raised on behalf of the appellants are again

liable to be rejected. It is to be noted that in the present case, the son of

plaintiff/respondent no. 1 was an attesting witness to the registered

Relinquishment Deed. Thus, he could have testified to the state of mind of

his father at the time of execution of the Relinquishment Deed and its

surrounding circumstances. In this regard, reference may be made to the

judgment in the case of Shyam Kumar Inani Versus Vinod Agrawal and

RFA 748/2018 Page 44 of 48

Others, (2025) 3 SCC 286, wherein, it has been held as follows:

―xxx xxx xxx

2. Plaintiff not entering the witness box

58. Any adverse inference drawn by the High Court for the reason

that the plaintiffs did not enter the witness box to prove the

agreement to sell, in our opinion, was completely misplaced. Mr

K.D. Maheshwari is one of the purchasers and the plaintiff in his

suit for specific performance. He was throughout present in the

transaction which took place on 30-8-1990. He held the power of

attorney from the other plaintiffs and therefore, it was not necessary

for each of the plaintiffs in separate suits to appear and prove the

transaction of 30-8-1990. Mr K.D. Maheshwari, who was examined

as PW 1 in each of the suits whether in his capacity as plaintiff or as

power of attorney from other plaintiffs, was fully justified in

establishing the facts that transpired on 30-8-1990. The trial court

had examined this aspect and had found favour with the plaintiffs. The

finding of the High Court on this aspect is not approved in view of the

above.

xxx xxx xxx

69. The respondents have relied upon the judgment of this Court

in Thiruvengadam Pillai [(2008) 4 SCC 530, para 19] to argue that

the plaintiffs failed to prove the execution of the agreement to sell

dated 30-8-1990 and the general power of attorney dated 4-9-1990. In

that case, the Court dismissed the suit for specific performance

because the agreement was written on old stamp papers purchased

years earlier, the attesting witnesses were close relatives of the

plaintiff and one was not examined, possession was not delivered

despite being stated in the agreement, and there was no expert

verification of the thumb impression alleged to be that of the

defendant. The plaintiff also failed to discharge the burden of proof,

and the appellate court wrongly shifted this burden to the defendants.

70. However, the present case is distinguishable on key facts. Here,

the agreement to sell was executed on appropriate stamp paper

without irregularities, and the plaintiffs diligently discharged their

burden by providing credible evidence, including the testimony of

PW 1 (either the plaintiffs or their power-of-attorney holder with

personal knowledge) and the attesting witness PW 2, who was not a

close relative but an independent witness.

xxx xxx xxx

91. The appellants have further relied upon the judgment in Man

RFA 748/2018 Page 45 of 48

Kaur [(2010) 10 SCC 512, paras 17 & 21 : (2010) 4 SCC (Civ) 239]

to substantiate the argument that a power-of-attorney holder can

depose on behalf of the principal in respect of acts and transactions

that the attorney has personal knowledge of. In this case, this Court

clarified that while an attorney-holder can definitely testify

regarding the acts they have personally carried out on behalf of the

principal, they cannot testify about matters requiring personal

knowledge of the principal, such as the principal's state of mind or

readiness and willingness to perform obligations under a contract.

92. In the present case, the power of attorney K.D. Maheshwari was

himself one of the vendees and all the transactions in the six suits

having taken place simultaneously on the same day, same time and

at the same place he was well aware personally of all the facts.

xxx xxx xxx‖

(Emphasis Supplied)

52. Accordingly, the son of plaintiff/respondent no. 1 could have deposed

regarding the Relinquishment Deed even in his own capacity, as he was a

witness to the said registered transaction, and thus, had personal knowledge

of the same. Accordingly, the objection raised by the appellants in this

regard, for the first time at this appellate stage, cannot be allowed.

53. Considering the evidence and documents on record, it is evident that

the plaintiff in the suit, now represented by his LRs, i.e., respondent nos.

1(1) to (4) herein, has a registered Relinquishment Deed in their favour, duly

admitted by all parties, which confers exclusive and absolute title of the suit

property upon them. Whereas, the contesting defendants, the appellants

herein, have an unregistered Will in their favour, which has not been proved

in terms of the Evidence Act. Undisputedly, the respondents having a

registered Relinquishment Deed in their favour have a better title in their

favour, than the appellants, who have based their claim upon unregistered

documents and an unproven Will.

54. It is undisputed that a document that gives a better legal title shall be

RFA 748/2018 Page 46 of 48

considered by the Court. In this regard, reference may be made to judgment

in the case of Smriti Debbarma (Dead) through Legal Representative

Versus Prabha Ranjan Debbarma and Others, 2023 SCC OnLine SC 9,

wherein, it has been held as follows:

―xxx xxx xxx

36. In the above factual background, for the plaintiff to succeed, she

has to establish that she has a legal title to the Schedule „A‟

property, and consequently, is entitled to a decree of possession. The

defendants cannot be dispossessed unless the plaintiff has

established a better title and rights over the Schedule „A‟ property. A

person in possession of land in the assumed character as the owner,

and exercising peaceably the ordinary rights of ownership, has a

legal right against the entire world except the rightful owner

[See Poona Ram v. Moti Ram, (2019) 11 SCC 309 : (2019) 3 SCC

(Civ) 733 and Nair Service Society Ltd. v. K.C. Alexander, 1968 SCC

OnLine SC 97 : AIR 1968 SC 1165]. A decree of possession cannot be

passed in favour of the plaintiff on the ground that Defendants 1 to 12

have not been able to fully establish their right, title and interest in the

Schedule ‗A‘ property. The defendants, being in possession, would be

entitled to protect and save their possession, unless the person who

seeks to dispossess them has a better legal right in the form of

ownership or entitlement to possession.

xxx xxx xxx‖

(Emphasis Supplied)

55. It is also relevant to note that there are inherent contradictions in the

depositions of DW1 and DW2, as regards the extent of construction in the

suit property. DW1 stated in the cross-examination that during the lifetime

of his mother, Smt. Chander Wati, the suit property consisted only of GF

and the FF was constructed by him later on. The deposition of DW1 in this

regard, reads as under:

―xxx xxx xxx

…….. The suit property is built up upto ground and first floor.

The suit property was consisting of only ground floor during the

lifetime of my mother. The first floor at the suit property was

constructed by me.

RFA 748/2018 Page 47 of 48

xxx xxx xxx‖

(Emphasis Supplied)

56. On the other hand, DW2 in her cross examination has stated that the

suit property consisted of GF and FF even during the lifetime of Smt.

Chander Wati. Her deposition in this regard is reproduced as under:

―xxx xxx xxx

I have been residing in the suit property since 1987 when my

marriage was solemnized. The suit property is consisting of ground

floor and first floor. The suit property was in the same position when

my mother in law was alive. The water connection and the electricity

connection in the suit property are in the name of my mother in law. I

paid Rs. 230/- as electricity charges for the month of January 2018.

xxx xxx xxx‖

(Emphasis Supplied)

57. Accordingly, it is clear that the testimony of the appellant no. 1

(defendant no. 3) and respondent no. 2 (defendant no. 1) does not establish

their case regarding their entitlement to the suit property, in any manner

whatsoever.

58. Moreover, the appellants have not sought cancellation or any

declaration against the Relinquishment Deed by way of separate appropriate

civil proceedings. As noted hereinabove, only a bare statement has been

made in their written statement that the Relinquishment Deed is liable to be

cancelled. Further, the unregistered sale documents, as exhibited and relied

by the appellants before the Trial Court, which have been allegedly executed

post the Relinquishment Deed, bear no mentioning of revocation of the

Relinquishment Deed and/or the effect of its operation. It is also not

understandable as to why the same parties who had executed the

Relinquishment Deed on 30

th

November, 2015 and got the same registered,

would not get the sale documents registered, which were allegedly executed

RFA 748/2018 Page 48 of 48

just 15 days later on 15

th

December, 2015.

59. Thus, the Trial Court has rightly decreed the suit of the

plaintiff/respondent no. 1 herein, as the plaintiff has been able to

demonstrate and establish a better legal title by way of the registered

Relinquishment Deed, Ex. PW1/2, whereas, the appellants have failed to

show, by way of cogent evidence, the execution of the unregistered sale

documents dated 15

th

December, 2015, including the Deed of Will, Ex.

DW2/11, based upon which, they seek to establish their title in the suit

property. Accordingly, no infirmity is found in the impugned judgment

dated 05

th

May, 2018.

60. Considering the detailed discussion hereinabove, no merit is found in

the present appeal. The same is accordingly dismissed.

MINI PUSHKARNA

(JUDGE)

JANUARY 28, 2026

KR/SK/AU/AK