Holding

The documents relied upon by the plaintiff do not constitute a valid conveyance of title, and he cannot claim protection under Section 53A as he lacks possession; therefore the suit is dismissed.

Summary

The plaintiff claimed title to a Delhi property on the basis of an agreement to sell, a general power of attorney, a receipt of consideration, an affidavit and a registered will executed by his father, Kundan Lal. The trial court and High Court had upheld his claim, but the Supreme Court examined whether these documents constitute a valid conveyance under the Transfer of Property Act, 1882 and whether the plaintiff could invoke Section 53A (part performance). The Court held that an agreement to sell, a power of attorney, a receipt, an affidavit, and a will do not transfer title unless a registered sale deed is executed, and the will was not proved according to the Succession and Evidence Acts. Moreover, the plaintiff had not taken possession of the property, so Section 53A could not be invoked. Consequently, the plaintiff's suit was dismissed and the appeal was allowed, while the rights of the second defendant were left untouched.

Issues considered

Whether an agreement to sell, a general power of attorney, a receipt of consideration, an affidavit and a registered will confer a valid title over the suit property
Whether the plaintiff can claim any benefit under Section 53A of the Transfer of Property Act (part performance)
Whether the will and power of attorney were duly proved in accordance with the Succession Act, 1925 and the Evidence Act, 1872
Whether the plaintiff is entitled to possession, mesne profits, declaration and mandatory injunction

Legislation cited

Evidence Act, 1872s. 67, s. 68
Indian Succession Act, 1925s. 59, s. 63
Transfer of Property Act, 1882s. 5, s. 53A, s. 54

Headnote

Issue for Consideration I) Whether the impugned documents, i.e., Agreement to Sell, General Power of Attorney, Receipt of Consideration and the registered Will, allegedly entered into by K, father of the appellant/ defendant no.1 and respondent no.1/plaintiff in favour of the plaintiff would suit property; II) Whether the plaintiff can claim any benefit u/s.53A of TP Act, which deals with Part Performance. Headnotes† Transfer of Property Act, 1882 – s.54 – Succession Act, 1925 – s.63 – Evidence Act, 1872 – s.68 – Respondent no.1/plaintiff

Subjects

SuitPossessionMesne profitDeclarationMandatory injunctionGeneral Power of AttorneyWillPart performanceConveyanceSale deedAgreement to sellTransfer of ownershipSpecific performance of the contractExecution of sale deedMode of execution of sale deed

Judgment

[2025] 9 S.C.R. 339 : 2025 INSC 1059

Ramesh Chand (D) Thr. Lrs.
v.
Suresh Chand and Anr.
(Civil Appeal No. 6377 of 2012)
01 September 2025
[Aravind Kumar* and Sandeep Mehta, JJ.]

Issue for Consideration
I) Whether the impugned documents, i.e., Agreement to Sell,
General Power of Attorney, Receipt of Consideration and the
registered Will, allegedly entered into by K, father of the appellant/
defendant no.1 and respondent no.1/plaintiff in favour of the plaintiff
would confer a valid title over the suit property; II) Whether the
plaintiff can claim any benefit u/s.53A of TP Act, which deals with
Part Performance.

Headnotes†
Transfer of Property Act, 1882 – s.54 – Succession Act, 1925 –
s.63 – Evidence Act, 1872 – s.68 – Respondent no.1/plaintiff
filed suit no. 613/1997 for possession, mesne profit, declaration,
mandatory injunction against the appellant/defendant no. 1 and
respondent no.2/defendant no.2 – The plaintiff claims that he
had acquired title to the suit property from his father by virtue
of a Agreement to sell, General Power of Attorney, Registered
Will and Receipt of Consideration – It was further claimed
that in order to gain wrongfully, the defendant no.1 sold half
the portion of the suit property to the defendant no.2 – The
Trial Court decreed the suit in favour of the respondent no.1/
plaintiff – In an appeal, the High Court upheld the decision
of the Trial Court and dismissed the appellant’s appeal –
Thereafter, the Civil Appeal No. 9012/2011 came to be filed
before this Court assailing the said dismissal by the High
Court – Vide order dated 31.10.2011 this court remanded the
matter back to the High Court for fresh consideration – Matter
was restored in the High Court – However, the High Court by
the impugned order dismissed it – Correctness:
Held: In the instant matter, undisputedly plaintiff claims that there
is only an Agreement to sell, and there is no sale deed executed
* Author
340 [2025] 9 S.C.R.

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in his favour by the father – As per the settled position of law, this
document does not confer a valid title on the plaintiff as it is not a
deed of conveyance as per s.54 of the TP Act – As regards General
Power of Attorney, the said GPA merely authorises the grantee to
manage the affairs of the suit property, which includes the power
to let out the property on rent, and create a mortgage of the same,
etc. – However, it is silent on the aspect of conveyance – It does
not confer a valid title on him with respect to the suit property – The
third document relied upon by the plaintiff is registered Will, the
same has to be proved in accordance with law – In the trial Court
judgment, there is not an iota of discussion about the validity of
the Will as contemplated u/s.63 of the Succession Act, 1925 and
s.68 of the Evidence Act, 1872 and yet, the validity of the Will has
been upheld – 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 – Besides that, there are certain
suspicious circumstance surrounding the will, in as much as the
alleged propounder of the Will, K had four children and he granted
the entire property to one of his children without any reasoning
as to why other three children were excluded – Apart from from
the aforementioned documents, there is also an affidavit dated
16.05.1996 wherein K is said to have acknowledged receipt of full
consideration for the sale of suit property – The said instruments
do not confer a valid title upon the plaintiff because as per s.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 – Thus, the impugned judgment is set aside and suit of
the plaintiff stands dismissed. [Paras 17, 22, 27, 28, 35]

Transfer of Property Act, 1882 – s.53-A – Whether the Plaintiff
can claim any benefit u/s. 53A of TP Act, which deals with
Part Performance:
Held: According to s.53A of the TP Act, where there is a contract
to transfer any immovable property in writing and the transferee
has in part performance of the contract taken the possession of the
property or part thereof, then notwithstanding that the transfer has
not been completed in the manner prescribed by law, the transferor
will be debarred from taking the possession of the property –
[2025] 9 S.C.R. 341

Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr.

A perusal of s.53A of TP Act, as well as the case law on point, it
is forthcoming that one of the main ingredients for taking shelter
u/s.53A is the factum of possession – In the instant matter, the
very fact that plaintiff has filed the present suit for possession,
along with other reliefs, shows that on the date of filing of the suit,
plaintiff was not in possession of the entire suit property – Since
there was no possession with the plaintiff, he cannot derive any
benefit under the doctrine of part-possession. [Paras 30, 31]

Transfer of Property Act, 1882 – s.5 and s.54 – Sale of
immovable property – Specific mode of execution of sale deed:
Held: 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. [Para 14]

Property Law – Difference between Sale Deed and Agreement
for sale:
Held: 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 – s.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.
[Para 15]

Transfer of Property Act, 1882 – Sale through General Power
of Attorney:
Held: A power of attorney is a creation of an agency whereby the
grantor authorizes the grantee to do the acts specified therein,
342 [2025] 9 S.C.R.

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on behalf of grantor, which when executed will be binding on the
grantor 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 – On facts, held
that the GPA in question merely authorises the grantee to manage
the affairs of the suit property, which includes the power to let out
the property on rent, and create a mortgage of the same, etc –
However, it is silent on the aspect of conveyance. [Paras 18, 22]

Case Law Cited
Suraj Lamp and Industries Private Limited (2) through Director v.
State of Haryana and Another [2011] 11 SCR 848 : (2012) 1 SCC
656; State of Rajasthan and Others v. Basant Nahata [2005] Supp.
3 SCR 1 : (2005) 12 SCC 77; Mathai Samuel and Others v. Eapen
Eapen (Dead) by Lrs. and Others [2012] 10 SCR 1098 : (2012)
13 SCC 80; H. Venkatachala Iyengar v. B.N. Thimmajamma and
Others [1959] Supp. 1 SCR 426 : AIR 1959 SC 443; Meena
Pradhan and Others v. Kamla Pradhan and Another (2023) 9 SCC
734; Nathulal v. Phoolchand [1969] 3 SCR 120 : (1969) 3 SCC
120 – relied on.

Books and Periodicals Cited
Dr. Poonam Pradhan Saxena, Property Law, Third Edition, 2017
(Lexis Nexis)

List of Acts
Transfer of Property Act, 1882; Succession Act, 1925; Evidence
Act, 1872.

List of Keywords
Suit; Possession; Mesne profit; Declaration; Mandatory injunction;
General Power of Attorney; Will; Part performance; Conveyance;
Sale deed; Agreement to sell; Transfer of ownership; Specific
performance of the contract; Execution of sale deed; Mode of
execution of sale deed.
[2025] 9 S.C.R. 343

Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6377 of 2012
From the Judgment and Order dated 09.04.2012 of the High Court
of Delhi at New Delhi in RFA No. 358 of 2000

Appearances for Parties
Advs. for the Appellant:
S. Mahendran.
Advs. for the Respondents:
Mrs. Rekha Pandey, Shiv Prakash Pandey, Raghav Pandey,
Ms. Gauri Pandey, Ms. Sharmishtha Chowdhury.

Judgment / Order of the Supreme Court

Judgment

Aravind Kumar, J.

1. Heard.
2. The appellants are aggrieved by the judgment dated 9th April, 2012,
passed by the Hon’ble High Court of Delhi whereby the Regular
First Appeal No. 358/2000 filed by them against the judgment
and decree dated 11th May, 2000 came to be dismissed and the
judgment and decree passed in Suit No. 613/1997 by the Additional
District Judge, Delhi decreeing the suit for possession, mesne
profits, declaration, mandatory injunction filed by the Respondent
No. 1, who was the plaintiff, came to be confirmed, by dismissing
the counterclaim for declaration filed by the Appellant has been
affirmed. For convenience, the parties are referred as per their
rank before the Trial Court.

FACTUAL MATRIX:
3. Facts necessary for adjudication of the controversy on hand are as
follows:
4. The suit property bearing No. 563, at Ambedkar Basti near Balmiki
Gate, Delhi - 110053 was originally owned by Shri. Kundan Lal,
father of the Appellant/Defendant No. 1 and Respondent No. 1/
344 [2025] 9 S.C.R.

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Plaintiff. The plaintiff claims that he had acquired title to the suit
property from his father, Shri. Kundan Lal by virtue of a General
Power of Attorney, Agreement to Sell, Affidavit, and a Receipt. He
also claimed that his father had executed a registered Will dated
16.05.1996 bequeathing the suit schedule property in his favour.
He further claims that defendant No. 1 has been living in the suit
property as a licensee and after purchase of the suit property by the
plaintiff, the defendant No. 1 was residing in the suit property as a
mere trespasser. He further claims that in order to gain wrongfully,
the defendant No. 1 sold half the portion of the suit property to the
defendant No. 2, who is the Respondent No. 2 before us. Hence,
the plaintiff filed a suit against the defendant No.1 and defendant
No. 2 for the recovery of possession, mesne profits, declaration
of title and mandatory injunction directing the defendant No. 1 to
handover the original documents to him. In response to the said
claim of the plaintiff, the defendant No. 1 filed a written statement
and also raised a counter claim, contending that the suit property
was orally transferred to him by the father in July 1973. He further
contended that the plaintiff had earlier filed OS No. 294/1996 wherein
he admitted that the father, Shri Kundan Lal was the owner of the
property. However, he withdrew the said suit on 06.06.1997. In the
counter claim, defendant sought for declaration that the alleged
documents i.e. Will, Agreement to Sell, GPA etc. in respect of the
suit property by Lt. Sh. Kundan Lal, who expired on 10th April, 1997
was null and void and not binding on him.
5. The Ld. Addl. District Judge decreed the suit in favour of the
plaintiff and dismissed the counter claim filed by the defendant
No.1 on the ground that the property had been transferred by the
Sh. Kundan Lal in favour of the plaintiff by upholding the validity
of the documents. The defendant No.1 assailed the same by filing
Regular First Appeal No. 358 / 2000 before the High Court of Delhi,
which came to be dismissed by the High Court by relying upon the
judgment of Asha M. Jain v. Canara Bank and Others 1 which
was later on overruled by this court in Suraj Lamp and Industries
Private Limited (2) through Director v. State of Haryana and

1 (2001) SCC OnLine Del 1157
[2025] 9 S.C.R. 345

Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr.

Another.2 Against the said dismissal, the defendant No.1 had filed
Civil Appeal No. 9012/2011.
6. Vide the order 31.10.2011 aforesaid civil appeal came to be allowed
in part and the matter was remanded back to the High Court for fresh
disposal with an observation that the Agreement to Sell / General
Power of Attorney / Will Transactions are not ‘transfers’ or ‘sales’
and such transactions cannot be treated as transfers or conveyances
as contemplated under Transfer of Property Act, 1882. Hence, RFA
No.358/2000 came to be restored to the file of High Court which
has been heard afresh, and by the impugned order, it came to be
dismissed on 09.04.2012. Aggrieved by the same, the defendant
no.1 is in appeal before us.

SUBMISSIONS
7. Mr. S.Mahendran, Learned Counsel for the defendant No.1 made
the following submissions:
• That there is no title of ownership conferred merely on the basis
of Agreement to Sell, GPA, Affidavit, Receipt, Will etc. without
there being any possession thereof.
• That the original title deeds of suit schedule property are in
possession of the defendant No.1.
• That the Will has not been proved in accordance with law.
• Section 53A of the Transfer of Property Act is not attracted if
the possession of the property is not delivered.
• That Will is not an instrument of sale under Section 54 of Transfer
of Property Act. As per Section 54, immovable property can be
sold by a registered instrument only.
• That the alleged Attesting Witnesses PW-3 and PW-4 could not
prove the execution of the documents filed by the plaintiff such
as GPA, Agreement to Sell, Receipt, Will as required by Section
3 of Transfer of Property Act, Section 68 of Indian Evidence
Act and Section 63 of Indian Succession Act.

2 (2012) 1 SCC 656
346 [2025] 9 S.C.R.

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• That the Courts below have failed to appreciate that in the
previous suit which is OS No. 294/1996 the plaintiff himself
admitted in his replication filed on 12.10.1996 that the father,
Shri Kundan Lal is owner of the suit property. On the other hand
the present suit is filed by falsely alleging that he had purchased
the suit property from the father on 16.05.1996 which is much
prior to the date of filing of the replication.
• That the vital facts clearly reveal that the alleged documents
pertaining to the suit property had been obtained by the plaintiff
on misrepresentation.
• That ever since 1973, the defendant No.1 has been in
continuous, uninterrupted possession and occupation of the
suit property in his own right and during this period i.e. 1973
to 1997, the father Shri Kundan Lal neither filed any ejectment
proceedings nor served any notice for his eviction during his
lifetime, who died on 10.04.1997.
8. The Respondent No.1 / Plaintiff who was duly served has not entered
appearance and is proceeded ex-parte.
9. Mrs. Rekha Pandey, Learned Counsel for Respondent No.2 /
Defendant No. 2 has made the following submissions:
• That the defendant No. 2 has purchased 50% share of the suit
property from the defendant No.1 / Ramesh Chand.
• That the High Court vide order dated 28.02.2011 in RFA
No. 358/2000 as well as this Court vide interim order dated
26.08.2013 in present appeal has protected the right of the
Respondent no. 2 as he was a bona fide purchaser of the
property and is in possession of the property.
• That this Court must protect the rights of Respondent No. 2.
10. Upon hearing the Learned Counsels appearing for the parties and
on perusal of the material available on record, the following points
would arise for our consideration:
I. Whether the impugned documents, i.e., Agreement to Sell,
General Power of Attorney, Receipt of Consideration and the
registered Will, allegedly entered into by Mr. Kundan Lal in favour
of the Plaintiff would confer a valid title over the suit property?
[2025] 9 S.C.R. 347

Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr.

II. Whether the Plaintiff can claim any benefit under Section 53A
of TP Act, which deals with Part Performance?
III. To what relief the parties would be entitled to?

FINDINGS:

RE: POINT NO.1
11. It is an undisputed factual position that plaintiff and defendant no.
1 are brothers, and the suit property belongs to their father Lt.
Sh. Kundan Lal. The plaintiff claimed title to the suit property by
placing reliance upon four documents, i.e., agreement to sell dated
16.05.1996, power of attorney dated 16.05.1996, affidavit dated
16.05.1996, receipt dated 16.05.1996, and a registered Will dated
16.05.1996. Admittedly, no sale deed was executed in favour of the
plaintiff by his father. Hence, this court is called upon to see whether
these documents confer a valid title on him. In order to ascertain the
same, it is essential for us to expound on the position of law with
respect to the same.

Agreement of Sale
12. The Transfer of immovable property inter vivos is governed by the
Transfer of Property Act, 1882 (hereinafter referred to as “the TP Act”).
Section 5 of the said TP Act defines “transfer of property” as follows:
“5. ‘Transfer of property’ defined. —In the following
sections ‘transfer of property’ means an act by which a living
person conveys property, in present or in future, to one or
more other living persons, or to himself or to himself and
one or more other living persons and ‘to transfer property’
is to perform such act.”
13. The TP Act envisages five different modes for transferring a property
but for the purpose of the present appeal we are only concerned
with one of the modes i.e., by way of “Sale” and the same is dealt
under section 54 of the TP Act which defines “sale” and a “contract
for sale” as follows:
“54. ‘Sale’ defined. — ‘Sale’ is a transfer of ownership in
exchange for a price paid or promised or part-paid and
part-promised.
348 [2025] 9 S.C.R.

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Sale how made. —Such transfer, in the case of tangible
immovable property of the value of one hundred rupees and
upwards, or in the case of a reversion or other intangible
thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less
than one hundred rupees, such transfer may be made either
by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when
the seller places the buyer, or such person as he directs,
in possession of the property.
Contract for sale. —A contract for the sale of immovable
property is a contract that a sale of such property shall
take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on
such property.”
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.
[2025] 9 S.C.R. 349

Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr.

16. The scope of an agreement for sale has been highlighted by this
court in the case of Suraj Lamp and Industries Private Limited
(2) through Director v. State of Haryana and Another3, wherein
this Court observed that
“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:
“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]). 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:

3 (2012) 1 SCC 656
350 [2025] 9 S.C.R.

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“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.”
17. In the instant matter, undisputedly plaintiff claims that there is only an
agreement to sell, and there is no sale deed executed in his favour by
the father. As per the settled position of law, this document does not
confer a valid title on the plaintiff as it is not a deed of conveyance
as per Section 54 of the TP Act. At best, it only enables the plaintiff
to seek for specific performance for the execution of a sale deed and
does not create an interest or charge on the suit property.
[2025] 9 S.C.R. 351

Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr.

General Power of Attorney
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 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.4
19. A power of attorney is not a sale. A sale involves transfer of all
the rights in the property in favour of the transferee but a power of
attorney simply authorises the grantee to do certain acts with respect
to the property including if the grantor permits to do certain acts with
respect to the property including an authority to sell the property.5
20. In the case of State of Rajasthan and Others v. Basant Nahata,6
it was held that:
“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.
xxxx

4 Dr. Poonam Pradhan Saxena, Property Law, Third Edition, 2017 (Lexis Nexis), p. 66
5 Dr. Poonam Pradhan Saxena, Property Law, Third Edition, 2017 (Lexis Nexis), p. 301
6 (2005) 12 SCC 77
352 [2025] 9 S.C.R.

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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 benefit. He acts in
a fiduciary capacity. Any act of infidelity or breach of trust
is a matter between the donor and the donee.”
21. Further, the position of a power of attorney with respect to conferment
of title was explained by this Court in the case of Suraj Lamp
(supra), thus:
“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.”
22. Having discussed the position of law, it is essential to peruse the
recitals of the General Power of Attorney, which is on record and
pressed into service by plaintiff. The said GPA merely authorises the
grantee to manage the affairs of the suit property, which includes
the power to let out the property on rent, and create a mortgage of
the same, etc. However, it is silent on the aspect of conveyance. Be
that as it may. The recitals of the power of attorney would indicate
the intent of the grantor is to limit the powers of the grantee to
only manage the suit property, and not to create any interest in his
favour, which is in consonance with the settled position of law as
discussed above that a power of attorney is an agency by which the
[2025] 9 S.C.R. 353

Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr.

agent derives the authority or the right to enter into transactions on
behalf of the principal. Even if we accept the validity of the Power
of Attorney in favour of the plaintiff, still it does not confer a valid
title on him with respect to the suit property.

Will
23. The third document that the plaintiff has relied upon to claim his title
over the property is a Registered Will dated 16.05.1996 said to have
been executed by his father. The term “Will” has been defined under
Section 2(h) of the Succession Act, 1925 as “the legal declaration of
a testator with respect to his property which he desires to be carried
into effect after his death”. Its essentials have been further enumerated
by this Court in the case of Mathai Samuel and Others v. Eapen
Eapen (Dead) by Lrs. And Others7 thus:
“12. Will is an instrument whereunder a person makes a
disposition of his properties to take effect after his death
and which is in its own nature ambulatory and revocable
during his lifetime. It has three essentials:
(1) It must be a legal declaration of the testator’s intention;
(2) That declaration must be with respect to his property;
and
(3) The desire of the testator that the said declaration
should be effectuated after his death.
13. The essential quality of a testamentary disposition
is ambulatoriness of revocability during the executant’s
lifetime. Such a document is dependent upon the
executant’s death for its vigour and effect.”
24. Will has also been expounded upon in the case of Suraj Lamp
(supra), thus:
“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

7 (2012) 13 SCC 80
354 [2025] 9 S.C.R.

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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. Registration of a will does
not make it any more effective.”
25. This Court on the issue of the proof of Wills in the case of
H. Venkatachala Iyengar v. B.N. Thimmajamma and Others8 has
succinctly defined the contours as under:
“18. What is the true legal position in the matter of proof
of wills? It is well-known that the proof of wills presents
a recurring topic for decision in courts and there are a
large number of judicial pronouncements on the subject.
The party propounding a will or otherwise making a claim
under a will is no doubt seeking to prove a document 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 Indian
Succession Act are also relevant. Section 59 provides
that every person of sound mind, not being a minor, may

8 AIR 1959 SC 443
[2025] 9 S.C.R. 355

Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr.

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.”
26. Further, in the case of Meena Pradhan and Others v. Kamla Pradhan
and Another9 following essentials to prove a Will were mentioned:
“10.1. The court has to consider two aspects : firstly, that
the will is executed by the testator, and secondly, that it
was the last will executed by him;
10.2. It is not required to be proved with mathematical
accuracy, but the test of satisfaction of the prudent mind
has to be applied.
10.3. A will is required to fulfil all the formalities required
under Section 63 of the Succession Act, that is to say:

9 (2023) 9 SCC 734
356 [2025] 9 S.C.R.

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(a) 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 the said
signature or affixation shall show that it was
intended to give effect to the writing as a will;
(b) It is mandatory to get it attested by two or
more witnesses, though no particular form of
attestation is necessary;
(c) Each of the attesting witnesses must have
seen the testator sign or affix his mark to the
will or has seen some other person sign the
will, in the presence and by the direction of the
testator, or has received from the testator a
personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign
the will in the presence of the testator, however,
the presence of all witnesses at the same time
is not required;
10.4. For the purpose of proving the execution of the will,
at least one of the attesting witnesses, who is alive, subject
to the process of court, and capable of giving evidence,
shall be examined;
10.5. The attesting witness should speak not only about
the testator’s signatures but also that each of the witnesses
had signed the will in the presence of the testator;
10.6. If one attesting witness can prove the execution of
the will, the examination of other attesting witnesses can
be dispensed with;
10.7. Where one attesting witness examined to prove
the will fails to prove its due execution, then the other
available attesting witness has to be called to supplement
his evidence.
10.8. Whenever there exists any suspicion as to the
execution of the will, it is the responsibility of the propounder
to remove all legitimate suspicions before it can be
accepted as the testator’s last will. In such cases, the
initial onus on the propounder becomes heavier.
[2025] 9 S.C.R. 357

Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr.

10.9. The test of judicial conscience has been evolved for
dealing with those cases where the execution of the will
is surrounded by suspicious circumstances. It requires
to consider factors such as awareness of the testator as
to the content as well as the consequences, nature and
effect of the dispositions in the will; sound, certain and
disposing state of mind and memory of the testator at the
time of execution; testator executed the will while acting
on his own free will;
10.10. One who alleges fraud, fabrication, undue influence
et cetera has to prove the same. However, even in the
absence of such allegations, if there are circumstances
giving rise to doubt, then it becomes the duty of the
propounder to dispel such suspicious circumstances by
giving a cogent and convincing explanation.
10.11. Suspicious circumstances must be “real, germane
and valid” and not merely “the fantasy of the doubting mind
[Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ”.
Whether a particular feature would qualify as “suspicious”
would depend on the facts and circumstances of each
case. Any circumstance raising suspicion legitimate in
nature would qualify as a suspicious circumstance, for
example, a shaky signature, a feeble mind, an unfair and
unjust disposition of property, the propounder himself taking
a leading part in the making of the will under which he
receives a substantial benefit, etc.”
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
358 [2025] 9 S.C.R.

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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 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.

Receipt of Consideration / Affidavit
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.

• RE: POINT NO.2
29. The plaintiff also lays claim to the property by virtue of Section 53A
of the TP Act. Section 53-A of the TP Act defines “part-performance”
as follows:
“53-A. Part performance. —Where any person contracts
to transfer for consideration any immovable property by
writing signed by him or on his behalf from which the terms
necessary to constitute the transfer can be ascertained
with reasonable certainty:
[2025] 9 S.C.R. 359

Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr.

and the transferee has, in part performance of the contract,
taken possession of the property or any part thereof, or
the transferee, being already in possession, continues in
possession in part performance of the contract and has
done some act in furtherance of the contract,
and the transferee has performed or is willing to perform
his part of the contract,
then, notwithstanding that, where there is an instrument of
transfer, that the transfer has not been completed in the
manner prescribed therefor by the law for the time being
in force, the transferor or any person claiming under him
shall be debarred from enforcing against the transferee
and persons claiming under him any right in respect of the
property of which the transferee has taken or continued in
possession, other than a right expressly provided by the
terms of the contract:
Provided that nothing in this section shall affect the rights
of a transferee for consideration who has no notice of the
contract or of the part performance thereof.”
30. According to Section 53A of the TP Act, where there is a contract to
transfer any immovable property in writing and the transferee has in
part performance of the contract taken the possession of the property
or part thereof, then notwithstanding that the transfer has not been
completed in the manner prescribed by law, the transferor will be
debarred from taking the possession of the property. The essential
conditions for invoking the doctrine of part-performance as envisaged
u/s 53A of TP Act have been enunciated by this Court in the case
of Nathulal v. Phoolchand10 thus:
“9. The conditions necessary for making out the defence of
part performance to an action in ejectment by the owner are:
(1) that the transferor has contracted to transfer for
consideration any immovable property by writing signed
by him or on his behalf from which the terms necessary to
constitute the transfer can be ascertained with reasonable
certainty;

10 (1969) 3 SCC 120
360 [2025] 9 S.C.R.

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(2) that the transferee, has, in part performance of the
contract, taken possession of the property or any part
thereof, or the transferee, being already in possession
continues in possession in part performance of the contract;
(3) that the transferee has done some act in furtherance
of the contract; and
(4) that the transferee has performed or is willing to perform
his part of the contract.
If these conditions are fulfilled then notwithstanding that
the contract, though required to be registered, has not
been registered, or, where there is an instrument of
transfer, that the transfer has not been completed in the
manner prescribed therefor by the law for the time being
in force, the transferor or any person claiming under him is
debarred from enforcing against the transferee any right in
respect of the property of which the transferee has taken
or continued in possession, other than a right expressly
provided by the terms of the contract.”
31. A perusal of Section 53A of TP Act, as well as the case law on point,
it is forthcoming that one of the main ingredients for taking shelter
under Section 53A is the factum of possession. Unless the transferee
in the instrument of agreement to sale is able to prove that he has
been in possession of the suit property, no benefit u/s 53A will be
given. In the instant matter, the very fact that plaintiff has filed the
present suit for possession, along with other reliefs, shows that on
the date of filing of the suit, plaintiff was not in possession of the
entire suit property. Since there was no possession with the plaintiff,
he cannot derive any benefit under the doctrine of part-possession.

• RE: POINT NO.3
32. Thus, the aforestated discussion would indicate that the property was
originally owned by Shri Kundan Lal namely the father of plaintiff
and defendant No.1 and on his demise the succession has opened
up. The will dated 16.05.1996 propounded by the plaintiff having
been held not proved and as such class-I legal heirs of deceased
Shri Kundan Lal would be entitled to the share in the suit schedule
property.
[2025] 9 S.C.R. 361

Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr.

33. In the instant case, the appellant herein has sold 50% of the suit
property in favour of the second defendant. This Court by order
dated 26.08.2013 had passed the following order:
“In view of the statement contained in para 11 of the
impugned judgment as well as the operative portion thereof,
interim order dated 05.09.2012 is modified and it is made
clear that the same shall not prejudicially affect the rights
of respondent No.2.”
34. In the light of the said order passed, we are of the considered view
that the right of the second defendant would stand protected to the
extent of the share of the appellant only and except reiterating to
this effect contentions of all parties are kept open, and no opinion
is expressed and they are at liberty to work out their rights if so
advised in accordance with law.
35. In the light of the aforementioned discussion, the impugned judgment
is set aside, and appeal is allowed, and suit of the plaintiff stands
dismissed subject to the observations made herein above. We make
no order as to costs. Pending application(s), if any, shall stand
consigned to records.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Ankit Gyan