25 June 2013
Keeping in view the Supreme Court judgment in Suraj Lamps Case, does the judgement of the Delhi High Court in the Subject matter allows the 'Sale' of the immovable property by execution of GPA, SPA, Agreement to sell, Will etc. Am I correct in construing that the execution of the document as referred herein above does not convey the title of the property to the transferee de jure, even though the possession of the relevant property may have been passed to the transferee after execution of such documents. 2) Am I correct in that to effect a 'Sale' a proper Sale Deed of Transfer Deed or Conveyance Deed has to be executed? 3)Further, What do we mean by the word 'conveyance'? Is the property 'conveyed' by signing a GPA in favour of other?
25 June 2013
Dear Mr. Gautam, Before comparing any judgement one has to know the context and background in which the decisions have been rendered and the ratio that it settles.
1. As far as the decision of the Supreme Court in Suraj Lamp's case is concerned, it did not lay down any new law. It only reiterated the law that was always existing that the transfer of an immovable property (whose value is Rs. 100/- or more) cannot be done by merely executing GPA/SPA/WILL, without executing the SALE DEED/CONVEYANCE DEED by paying appropriate Stamp Duty and Registration Charges. (However, since mutation of records had been done earlier on the basis of the GPA/SPA/WILL, Supreme Court did not want to disturb already done cases. But such transfers cannot be effected on the basis of simple GPA/SPA/WILL in respect of future cases.)
2. Immediately after receipt of the decision in Suraj Lamp Case, the the Divisional Commissioner, Govt. of NCT of Delhi, issued a circular to all the Sub-Registrars in Delhi stating that they should not register any GPA/SPA/WILL. (THIS CIRCULAR WAS ISSUED BY THE COMMISSIONER WITHOUT PROPERLY UNDERSTANDING THE TRUE MEANING OF THE DECISION OF THE SUPREME COURT). The Commissioner had failed to appreciate that one can genuinely give GPA/SPA in favour of anybody and that the person to whom the GPA/SPA has been given can execute the SALE DEED/Conveyance Deed on the basis of the GPA/SPA.
Because of the said Circular, the Sub-Registrars in Delhi stopped entertaining any GPA/SPA/WILL in regard to immovable property. This resulted in denying the execution of GPA/SPA/WILL even in GENUINE CASES.
Therefore, a writ petition was filed challenging the validity of the Circular.
The Delhi High Court quashed the circular.
Now therefore, one can appoint a GPA/SPA by registering the GPA/SPA and then on the basis of that Registered GPA/SPA the SALE DEED/CONVEYANCE Deed can be registered by paying Stamp Duty and Registration Charges to make the "transfer of immovable property legally perfect".
Therefore, by merely signing GPA/SPA the property cannot be legally transferred in favour of anybody.
It is only when a SALE DEED/Conveyance Deed is executed and registered (this will involve payment of stamp duty and registration charges) that the property will get transferred and not otherwise.