TMI Blog2001 (10) TMI 1149X X X X Extracts X X X X X X X X Extracts X X X X ..... he registered documents of sale is not executed but a set of documents consisting of agreement to sell, General Power of Attorney, Special Power of Attorney Will etc. are executed. In view of the fact that the property in question was a lease hold property and transfer would not be recognised by the Lesser without consent and without payment of unearned increase, only a power of attorney sale took place. Reliance is also placed on behalf of the appellant on a notice published in the 'Statement' of 30.7.1987 bringing to the notice of the public a resolution dated 22.7.1987 adopted by the Delhi Metropolitan Council for treating sale transactions effected through such power of attorney sale as valid sale, purchase or transfer of interest for all practicable purposes and for necessary amendments to be carried out in law for the necessary amendments to be carried out in law for the said transactions completed prior to the date of resolution. 3. The property in question was purchased through the documents executed by one Shri N.K. Duggar, respondent No. 3, who was the allottee of the flat in question in pursuance to the conveyance deed registered on 23.8.1984. This is so set o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Vannarakkal Kallalathil Sreedhran v. Chandramaath Balakrishnan and Anr. wherein it has been held that if a contract for sale was entered into before attachment, the conveyance after attachment in pursuance of the contract passes on a good title in spite of the attachment. This judgment is noticed by the learned Single Judge in the impugned order but has been distinguished on the ground that in the present case no registered sale deed in respect of the property in question was executed even thereafter. Learned counsel for the appellant also referred to a recent judgment of the Supreme Court in Rajender Singh v. Ramdhar Singh and Ors., , to the same effect that the agreement for sale creates an obligation attached to the ownership of property and since the attaching creditor is entitled to attach only the right, title and interest of the judgment-debtor, the attachment cannot be free from the obligations incurred under the contract for sale. 8. Mr. Ravi Gupta, learned counsel for the appellant further referred to the judgment of the Calcutta High Court in Purna Chandra Basak v. Daulat Ali Mollah, AIR Calcutta 432 to advance the submission that though a contract for sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Act, 1882 which reads as under: 53A. 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, 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 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 therefore 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court to the same effect in Ram Baran Prasad v. Ram Mohit Hazra and Ors. which was relied upon by the Calcutta High Court in Amulya Gopal Majumdar's case (Supra). 13. In order to appreciate the true nature of the controversy it is necessary to examine the transactions which are called the power of attorney sales in Delhi, normally executed in respect of lease hold properties due to restrictive nature of covenants of the terms of lease or the terms of allotment. 14. The Delhi Development Authority undertook the task of land development of Delhi and in the process constructed a large number of flats. The property in question is one such flat. Registered documents were not executed in respect of sale transaction because of the liability to pay unearned increase. The unearned increase is a difference between the market value of the sale and the original cost of purchase a part of which is required under the terms of allotment or conveyance to be paid to the perpetual Lesser. The nature of such transaction has been considered by the Delhi High Court in different judgments. In Harbans Singh v. Shanti Devi, 1977 Rajdhani Law Reporter 487, it was held that if a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. AIR 1965 Supreme Court 1856 and Indira Kaur and Ors. v. Sheo Lal Kapoor, , where it was held that in order to arrive at a real nature of transaction, it is open to the Court to look into the attendant and surrounding circumstances and contemporary documents. The learned Single Judge also relied upon the observations in the case of Usha Malhotra v. G.S. Uppal in 1991 Rajdhani Law Reporter 223 dealing with the issue of construction agreement which are camouflage for agreement to sell. 17. We have considered this aspect taking into consideration these judgments and we are in agreement with the view that the concept of power of attorney sales have been recognised as a mode of transaction. These transactions are different from mere agreement to sell since such transactions are accompanied with other documents including General Power of Attorney, Special Power of Attorney and Will and affidavits and full consideration is paid. This is what also has happened in the present case. There are two general power of attorneys, special power of attorney and the Will apart from the agreement to sell. One of the general power of attorney is registered. Further the will is also registered. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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