Can non-conveyance documents confer title under the Transfer of Property Act, and does Section 53A protect an unregistered transferee without possession?

LawSikho
September 8, 2025
Category: Supreme Court of India

Summary

Category	Data
Court	Supreme Court of India
Case Number	C.A. No.-006377-006377 – 2012
Diary Number	15252/2012
Judge Name	HON’BLE MR. JUSTICE J.K. MAHESHWARI
Bench	HON’BLE MR. JUSTICE J.K. MAHESHWARI and HON’BLE MR. JUSTICE ARAVIND KUMAR
Precedent Value	Binding
Overrules / Affirms	Affirms existing precedents on sale, GPA, part-performance and testamentary proof Overrules Asha M. Jain v. Canara Bank (2001 SCC OnLine Del 1157)
Type of Law	Property law under the Transfer of Property Act, Succession Act and Evidence Act
Questions of Law	Do an Agreement to Sell, GPA, affidavit, receipt and registered Will confer title over immovable property? Can Section 53A protect a transferee who lacks actual possession? What reliefs follow if none of these documents transfer title?
Ratio Decidendi	Only a registered sale deed executed under Section 54 of the Transfer of Property Act creates or transfers ownership in immovable property—an agreement to sell is merely a contract for sale enforceable by specific performance. A General Power of Attorney is an agency instrument and cannot itself transfer title. A will is ambulatory, revocable in life and must be proved by at least one attesting witness under Sections 63 of the Succession Act and 68 of the Evidence Act. Section 53A protection for part-performance applies only if the transferee, under a written contract, has taken or continues in possession and done further acts in performance—absent possession, no benefit arises.
Judgments Relied Upon	Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana (2012) 1 SCC 656; Narandas Karsondas v. S.A. Kamtam (1977) 3 SCC 247; Ram Baran Prasad v. Ram Mohit Hazra (AIR 1967 SC 744); Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra (2004) 8 SCC 614; State of Rajasthan v. Basant Nahata (2005) 12 SCC 77; Mathai Samuel v. Eapen Eapen (2012) 13 SCC 80; H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443); Meena Pradhan v. Kamla Pradhan (2023) 9 SCC 734; Nathulal v. Phoolchand (1969) 3 SCC 120
Logic / Jurisprudence / Authorities Relied Upon by the Court	Analysis of Sections 5, 54 and 53A of the Transfer of Property Act; Sections 63 of the Indian Succession Act and 68 of the Evidence Act; precedent that an agreement for sale is not a transfer, GPA is not a conveyance, will is ambulatory and requires formal proof; part-performance requires possession.
Facts as Summarised by the Court	The suit property belonged to the appellants’ and respondent’s father. Plaintiff relied on an agreement to sell, GPA, affidavit, receipt and registered will dated 16.05.1996. Defendant counter-claimed oral transfer from 1973. Trial Court decreed plaintiff; High Court dismissed appeal; this Court remanded and on fresh hearing dismissed suit.
Citations	2025 INSC 1059; (2012) 1 SCC 656; (2001) SCC OnLine Del 1157; (2004) 8 SCC 614; (2005) 12 SCC 77; (2012) 13 SCC 80; AIR 1959 SC 443; (2023) 9 SCC 734; (1969) 3 SCC 120

Practical Impact

Category	Impact
Binding On	All courts and tribunals in India
Persuasive For	High Courts and administrative tribunals considering conveyance and part-performance disputes
Overrules	Asha M. Jain v. Canara Bank (2001 SCC OnLine Del 1157)
Follows	Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana (2012) 1 SCC 656

What’s New / What Lawyers Should Note

Agreement to sell, GPA, affidavit, receipt or registered will alone do not transfer title; only a registered sale deed under Section 54 TP Act does.
General Power of Attorney remains an agency instrument, not a conveyance, and cannot create proprietary rights in the attorney.
A registered will is ambulatory and revocable in life; it must be attested by two witnesses and proved by at least one under Section 63 Succession Act and Section 68 Evidence Act. Mere registration does not validate a will surrounded by suspicious circumstances.
Section 53A part-performance protection requires actual or continued possession plus further acts and willingness to perform; absent possession, no shelter under Section 53A.

Summary of Legal Reasoning

Section 54 TP Act distinguishes “sale” (transfer by registered instrument) from “contract for sale” (unregistered agreement enforceable by specific performance); unregistered agreements create no title.
Precedents (Suraj Lamp, Narandas Karsondas, Rambhau) confirm that agreements to sell and registered GPAs do not convey ownership; only conveyance by registered sale deed effects transfer.
General Power of Attorney is governed by the Contract Act and Powers of Attorney Act, creating agency, not proprietary rights; even irrevocable GPAs cannot transfer title.
A will is a testamentary, ambulatory instrument revocable during life; Section 63 Succession Act and Section 68 Evidence Act mandate attestation by two witnesses and proof by at least one; high suspicion (exclusion of other heirs) must be dispelled.
Section 53A TP Act requires (a) a written contract, (b) transferee’s possession or continued possession, (c) acts furthering the contract, and (d) willingness to perform; plaintiff lacked possession and so Section 53A did not apply.
With none of the documents transferring title, the plaintiff’s suit for possession, mesne profits, declaration and injunction fails; the bona fide purchaser of 50% share retains rights under the interim protection order.

Arguments by the Parties

Petitioner (Defendant No. 1):

Documents (Agreement to Sell, GPA, affidavit, receipt, will) cannot transfer title without sale deed.
Original title deeds remain with defendant.
Will not proved as per Section 63 Succession Act and Section 68 Evidence Act.
Section 53A inapplicable where possession not delivered.
Plaintiff’s prior admission in OS 294/1996 that father was owner contradicts 16.05.1996 documents.
Continuous possession by defendant since 1973, with no eviction notice or proceedings by father until his death.

Respondent No. 1 (Plaintiff):

Proceeded ex parte at Supreme Court stage; no submissions recorded.

Respondent No. 2 (Defendant No. 2):

Purchased 50% share from defendant No. 1 as bona fide purchaser.
High Court and this Court’s interim orders protect his possession and rights.
Urged protection of his title and status.

Factual Background

The dispute concerns a Delhi property originally owned by the parties’ father. The plaintiff relied on an agreement to sell, GPA, affidavit, receipt and a registered will dated 16.05.1996 to claim title, while defendant No. 1 asserted an oral 1973 transfer and long possession. The Trial Court decreed possession and title for the plaintiff; the Delhi High Court dismissed the appeal. This Court had earlier remanded on the nature of those documents and on fresh hearing dismissed the suit for failure to establish transfer, protecting the bona fide purchaser of half the share.

Statutory Analysis

Section 5 TP Act defines “transfer of property” as conveying ownership by a living person.
Section 54 TP Act: “sale” of immovable property (value ≥ ₹100) must be by registered instrument; agreement to sell does not transfer title.
Section 53A TP Act: part-performance protection applies only if written contract exists, transferee has (or continues in) possession, performs further acts and is ready to perform.
Section 63 Succession Act: wills must be signed by testator, attested by two witnesses.
Section 68 Evidence Act: execution of documents requiring attestation (wills) must be proved by at least one attesting witness.

Alert Indicators

🚨 Breaking Precedent – Overrules Asha M. Jain v. Canara Bank (2001 SCC OnLine Del 1157)
✔ Precedent Followed – Reconfirms Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana (2012) 1 SCC 656

Citations

2025 INSC 1059 (Reportable)
C.A. No. 6377 of 2012
(2012) 1 SCC 656
(2001) SCC OnLine Del 1157
(2004) 8 SCC 614
(2005) 12 SCC 77
(2012) 13 SCC 80
AIR 1959 SC 443
(2023) 9 SCC 734
(1969) 3 SCC 120