Kiledar Singh (Deceased) Through Lrs Kalyan Singh & Ors. vs Anil Kumar & Ors.

"(अ) सर्व नं0 1712 रकवा .549 है0, वाके मौजा गोहद के मिन रकवा .158 है0 को प्रतिवादी क्र० 1 अन्य किसी को विक्रय करने का अधिकारी नहीं है यह घोषित किया जावे।

(ब) वादी के हक में प्रतिवादी के विरुद्ध स्थायी निषेधाज्ञा इस आशय की जारी की जावे कि वाद भूमि को प्रति० क्र० 1 अन्य किसी व्यक्ति को अन्तरण न करें।

(स) अन्य सहायता जो वादी के हक में न्यायसंगत हो दिलाई जावे।

(द) वाद व्यय वादी को प्रतिवादी क्र० 1 से दिलाया जावे।

(इ) यह कि प्रतिवादी लाखन ने वादग्रस्त भूमि का जो वयनामा दिनांक 10.10.91 को प्रतिवादी नम्बर 4 किलेदार सिंह के हक में सम्पादित किया है वह वादी के मुकाबले मूलतः व्यर्थ होकर प्रभावहीन है।"

"(i)

Whether both the courts below have committed an error of law in granting decree of declaration and permanent injunction on the basis of Ex.P/1, an agreement to sale.

(ii)

Whether both the courts below were right to granting a decree of declaration in view of Ex.P/1 declaring the sale-deed dated 10.10.1991 as ineffective when on ad valorem court fees on ExP/1 has been filed, declaring sale-deed as void."

Scope of an agreement of sale

16.

Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam [(1977) 3 SCC 247] observed: (SCC pp. 254-55, paras 32-33 & 37)

“32.

A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad v. Ram Mohit Hazra [AIR 1967 SC 744 : (1967) 1 SCR 293] .) The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.

33.

In India, the word ‘transfer’ is defined with reference to the word ‘convey’. … The word ‘conveys’ in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership.

***

37.

… that only on execution of conveyance, ownership passes from one party to another….”

17.

In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [(2004) 8 SCC 614] this Court held: (SCC p. 619, para 10)

“10.

Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party.”

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 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."

"10.

The moot question for consideration is as to whether, the agreement to sell would result in transfer of title or create interest in property in favour of intending purchaser or not?

11.

The question is no more res integra.

12.

The Supreme Court in the case of Indian Overseas Bank Vs. M.A.S Subramanian and Ors. by judgment dated 07.01.2025 passed in Diary No.38616/2018 has held as under:-

“6.

It is well settled that an agreement for sale in respect of an immovable property does not transfer title in favour of the purchaser under the agreement. In view of Section 54 of the Transfer of Property Act, 1882, an agreement for sale does not create any interest in the property. The only mode by which an immovable property worth more than Rs.100/- (Rupees one hundred) can be sold is by a sale deed duly registered in accordance with the Indian Registration Act, 1908.” Thus, it is clear that the agreement to sell does not create any interest or transfers any title in the property. However, the intending purchaser can always protect his possession in the light of Section 53-A of Transfer of Property Act provided he was ready and willing to perform his part of contract or has performed his part of contract. It is not the case of the appellants that they are entitled to protect their possession by virtue of Section 53-A of Transfer of Property Act. Therefore, even otherwise the appellants are not entitled to protect their possession for the simple reason that they have failed to prove the basic ingredients before taking advantage of Section 53-A of Transfer of Property Act."

"9.

For the purpose of considering as to whether plaintiff has prima facie case in his favour, it would firstly be necessary to consider whether the suit instituted by him is legally maintainable. From a reading of the Page 6 of 8 prayer clause of the plaint, it is seen that plaintiff has claimed declaration of his title to the suit land under the agreement to sale dated 20.03.1994 and has further sought permanent injunction. He has not sought for the relief of specific performance of contract dated 20.03.1994. It is well settled in law that a mere agreement to sale by itself is wholly incapable of conferring title in the land and that such title can be conferred only by way of execution of a registered document. Since there is only an agreement to sale in favour of plaintiff, prima facie he does not have any title to the suit land. His relief of declaration of title to the suit land hence has to be excluded from consideration. Consequently, his suit has to be considered as one wherein relief of permanent injunction alone has been claimed.

10.

Plaintiff is claiming under the agreement to sale dated 20.03.1994 but has not claimed relief of specific performance of contract. This is a relief which he could have and ought to have claimed but has omitted to do so and has sought relief of permanent injunction alone which would be a negative injunction since the same has been sought for without claiming specific performance of the contract. In this regard, reliance may profitably be placed on the decision of this Court in Ajay Narang (supra) in which it has been held that a suit for mere negative injunction without claiming specific performance is not maintainable. Thus, apparently, the suit of plaintiff itself is not maintainable hence it cannot be held that he is having any prima facie case in his favour."

"15.1.

Undoubtedly, a sale deed, which amounts to conveyance, has to be a registered document, as mandated under Section 17 of the Registration Act, 1908. On the other hand, an agreement for sale, which also requires to be registered, does not amount to a conveyance as it is merely a contractual document, by which one party, namely the vendor, agrees or assures or promises to convey the property described in the schedule of such agreement to the other party, namely the purchaser, upon the latter performing his part of the obligation under the agreement fully and in time. Section 54 of the Transfer of Property Act, 1882 explicitly lays down that a contract for sale will not confer any right or interest. Section 53-A of the Transfer of Property Act, 1882 offers protection only to a proposed transferee who has part performed his part of the promise and has been put into possession, against the actions of transferor, acting against the interest of the transferee. For the proposed transferee to seek any protection against the transferor, he must have either performed his part of obligation in full or in part. The applicability of Section 53-A of the Transfer of Property Act, 1882 is subject to certain conditions viz., (a) the agreement must be in writing with the owner of the property or in other words, the transferor must be either the owner or his authorised representative, (b) the transferee must have been put into possession or must have acted in furtherance of the agreement and made some developments, (c) the protection under Section 53-A is not an exemption to Section 52 of the Transfer of Property Act, 1881 or in other words, a transferee, put into possession with the knowledge of a pending lis, is not entitled to any protection, (d) the transferee must be in possession when the lis is initiated against his transferor and must be willing to perform the remaining part of his obligation, (e) the transferee must be entitled to seek specific performance or in other words, must not be barred by any of the provisions of the Specific Relief Act, 1963 from seeking such performance. The protection under Section 53-A is not available against a third party who may have an adversarial claim against the vendor. Therefore, unless and until the sale deed is executed, the purchaser is not vested with any right, title or interest in the property except to the limited extent of seeking specific performance from his vendor. An agreement for sale does not confer any right to the purchaser to file a suit against a third party who is either the owner or in possession, or who claims to be the owner and to be in possession. In such cases, the vendor will have to approach the court and not the proposed transferee. *** *** ***

15.2.4.

Further, the respondents are not in possession of the property. Whereas, the appellant's possession since 1905 is admitted in the plaint itself. In such circumstances, where the plaintiffs are not in possession and the defendant is in settled possession for over a century, a suit for bare injunction by a proposed transferee is clearly not maintainable. Section 41(j) of the Specific Relief Act, 1963 prohibits grant of injunction when the plaintiff has no personal interest in the matter. In the present case, the respondents, being mere agreement holders, have no personal interest in the suit schedule property that can be enforced against third parties. The “personal interest” is to be understood in the context of a legally enforceable right, as when there is a bar in law, the mere existence of an interest in the outcome cannot give a right to sue. As held by us above, no declaratory relief has been sought as contemplated under Section 34 of the Specific Relief Act, 1963. This principle was clearly established in Jharkhand State Housing Board (supra), in which, this Court emphasized that where title is in dispute, a mere suit for injunction is not maintainable. The relevant portion of the said judgment is reproduced hereunder:— *** *** ***"

"7.

Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act."