Santosh Kumari vs Housing Board Haryana and Others

Hemant Gupta, J.

The petitioner has sought a writ of mandamus for directing the respondents to execute a conveyance deed in view of her assertion that she had become owner under the registered irrevocable General Power of Attorney and her continuous possession since 1994. The facts leading to the present writ petition are that on 24.12.1992 one Mr. R.K. Gupta (since deceased) was allotted a Middle Income Group (MIG) House No. 2327, Sector 3, Kurukshetra measuring 72.04 sq. yds. by the Housing Board Haryana. The total consideration of the house was Rs. 1,28,589/- and the allottee had paid a total amount of Rs. 19,067/- at the time of allotment. The balance was to be paid in installments for a period of 13 years. The conveyance deed was to be executed after the entire amount due was paid. Mr. R.K. Gupta agreed to sell his MIG house to one Mohan Lal on 25.01.1993. However, that Mohan Lal also expressed his inability to pay the balance consideration. A deal was said to be arrived at between Mr. Gupta (the original allottee), Mohan Lal (an Attorney) and the petitioner to the effect that the petitioner would pay an amount already paid by Mohan Lal to the allottee and she would continue to pay the installments of the said house. The petitioner paid approximately Rs. 40,000/- to Mohan Lal. The allottee cancelled the Power of Attorney given by him to Mohan Lal (a copy of which has been attached as Annexure P-2 with the present writ petition) and executed fresh registered Power of Attorney in favour of the petitioner. A Will was also said to be executed in favour of the petitioner. On payment of all the installments, the petitioner sought issuance of No Objection Certificate but since no action was taken, the petitioner invoked the writ jurisdiction of this Court for effecting transfer of the rights in her favour.

The original allottee Mr. R.K. Gupta died on 12.01.1999. The petitioner claimed that in terms of arrangement of transfer, through the General Power of Attorney, Will and handing over the possession, the petitioner is owner in terms of Section 202 of the Indian Contract Act, 1872 (for short ''the Act'') and that death of Mr. R.K. Gupta has no effect on the validity of the General Power of Attorney. Reliance is placed upon Single Bench judgment of this court reported as Ramesh Mohan and Another Vs. Raj Krishan and Others--> Division Bench judgment of Delhi High Court reported as Harbas Singh Vs. Shanti Devi, and Single Bench judgments of Delhi High Court reported as 1991 RLR 458 titled as Prem Raj v. Babu Ram, and Hardip Kaur Vs. Kailash and Another, . Reliance is also placed upon Supreme Court judgment reported as Seth Loon Karan Sethiya Vs. Ivan E. John and Others, , where the interest created in an Agent was recognized as not revocable.

We have heard learned counsel for the petitioner and find that no declaration can be given in the present writ petition so as to transfer the rights in the property in favour of the petitioner on the strength of General Power of Attorney. The principal who granted the Attorney had died, therefore, the Attorney no longer survives. The petitioner can claim rights under the attorney, if he is able to establish that an interest was created in his favour. The plain reading of the attorney does: not lead to such inference. It may be possible to return such finding on the basis of documents, which the petitioner may possess to assert that with or/and at the time of execution of power of attorney, an interest in the property was created.

In the absence of the legal heirs of the principal and in the absence of proof of documents to show that an interest was created, we find that no such direction can be given in the writ petition. The judgments referred to arise out of the civil suits. Though in Single Bench judgment of Delhi High Court reported as Shri Ramesh Chand Vs. Suresh Chand and Another, , it was held that the Power of attorney given for a consideration coupled with interest is irrevocable, under Section 202 of the Contract Act, 1872 and subsists even after the death of the executants, but again such judgment arises out of civil suit. In the absence of any legal heir of the original owner on record, the writ jurisdiction is not the appropriate Forum to decide questions of title. In view of the above, the present writ petition is disposed of with liberty to seek remedy such to seek declaration in respect of a title from the competent Civil Court in accordance with law.