Validity of GPA, Agreement to Sell transactions after Suraj Lamp Decision.

Comment : A Landmark Judgment that has outlawed GPA/Will/Agreement to Sell as means of conveyance of properties. The judgement has a prospective effect so as not to disturb earlier transactions.

Court took notice of the fact that properties were being sold through the above instruments to save up on stamp duty and thereby state revenue was being hurt. The Court held that such GPA/Will/A to S did not create any right title/interest in property in anybody’s favour – and therefore did not convey ownership.

Transactions entered into through the above documents cannot now be relied upon to effect mutations, convert property from leasehold to freehold or for any other purpose

Though limited purpose of obtaining Specific Performance – and protecting possession by virtue of part possession theory was held proper.

Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana (2011 SC) 
Special Leave Petition (C) No.13917 of 2009-Decided on 11-10-2011.

Transfer of Property – Power of attorney – Sale Agreement – Will

R. V. Raveendran J.-

By an earlier order dated 15.5.2009 [reported in Suraj Lamp & Industries

Pvt.Ltd. vs. State of Haryana & Anr. – 2009 (7) SCC 363], we had referred to the ill – effects of
what is known as General Power of Attorney Sales (for short `GPA Sales’) or Sale
Agreement/General Power of Attorney/Will transfers (for short `SA/GPA/WILL’ transfers). Both
the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor
can there be a transfer by execution of an agreement of sale and a power of attorney and will. As
noticed in the earlier order, these kinds of transactions were evolved to avoid
prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and
registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to
invest unaccounted money (`black money’) and to avoid payment of `unearned increases’ due to
Development Authorities on transfer.

2. The modus operandi in such SA/GPA/WILL transactions is for the vendor or person claiming
to be the owner to receive the agreed consideration, deliver possession of the property to the
purchaser and execute the following documents or variations thereof:
(a) An Agreement of sale by the vendor in favour of the purchaser confirming the terms
of sale, delivery of possession and payment of full consideration and undertaking to
execute any document as and when required in future. Or An agreement of sale agreeing
to sell the property, with a separate affidavit confirming receipt of full price and delivery
of possession and undertaking to execute sale deed whenever required.
(b) An Irrevocable General Power of Attorney by the vendor in favour of the purchaser or
his nominee authorizing him to manage, deal with and dispose of the property without
reference to the vendor. Or A General Power of Attorney by the vendor in favour of the
purchaser or his nominee authorizing the attorney holder to sell or transfer the property
and a Special Power of Attorney to manage the property.
(c) A will bequeathing the property to the purchaser (as a safeguard against the
consequences of death of the vendor before transfer is effected).

These transactions are not to be confused or equated with genuine transactions where the owner
of a property grants a power of Attorney in favour of a family member or friend to manage or sell
his property, as he is not able to manage the property or execute the sale, personally. These are
transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance
gets a SA/GPA/WILL as a mode of transfer, either at the instance of the vendor or at his own
instance. Ill-Effects of SA/GPA/WILL transactions

3. The earlier order dated 15.5.2009, noted the ill-effects of such SA/GPA/WILL transactions
(that is generation of black money, growth of land mafia and criminalization of civil disputes) as
“Recourse to `SA/GPA/WILL’ transactions is taken in regard to freehold properties, even
when there is no bar or prohibition regarding transfer or conveyance of such property, by
the following categories of persons:
(a) Vendors with imperfect title who cannot or do not want to execute registered
deeds of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable
properties without any public record of the transactions. The process enables
them to hold any number of properties without disclosing them as assets held.
(c) Purchasers who want to avoid the payment of stamp duty and registration
charges either deliberately or on wrong advice. Persons who deal in real estate
resort to these methods to avoid multiple stamp duties/registration fees so as to
increase their profit margin.
Whatever be the intention, the consequences are disturbing and far reaching, adversely
affecting the economy, civil society and law and order. Firstly, it enables large scale
evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the
benefit of such revenue to the government and the public. Secondly, such transactions
enable persons with undisclosed wealth/income to invest their black money and also earn
profit/income, thereby encouraging circulation of black money and corruption.

This kind of transactions has disastrous collateral effects also. For example, when the

market value increases, many vendors (who effected power of attorney sales without
registration) are tempted to resell the property taking advantage of the fact that there is no
registered instrument or record in any public office thereby cheating the purchaser. When
the purchaser under such `power of attorney sales’ comes to know about the vendors
action, he invariably tries to take the help of musclemen to `sort out’ the issue and protect
his rights. On the other hand, real estate mafia many a time purchase properties which are
already subject to power of attorney sale and then threaten the previous `Power of
Attorney Sale’ purchasers from asserting their rights. Either way, such power of attorney
sales indirectly lead to growth of real estate mafia and criminalization of real estate
It also makes title verification and certification of title, which is an integral part of orderly
conduct of transactions relating to immovable property, difficult, if not impossible, giving
nightmares to bonafide purchasers wanting to own a property with an assurance of good and
marketable title.

4. This Court had therefore requested the learned Solicitor General to give suggestions on behalf
of Union of India. This Court also directed notice to States of Delhi, Haryana, Punjab, Uttar
Pradesh to give their views on the matter. The four states have responded and confirmed that
SA/GPA/WILL transfers required to be discouraged as they lead to loss of revenue (stamp duty)
and increase in litigations due to defective title. They also referred to some measures taken in that
behalf. The measures differ from State to State. In general, the measures are:
(i) to amend Registration Act, 1908 by Amendment Act 48 of 2001 with effect from
24.9.2001 requiring documents containing contract to transfer for consideration
(agreements of sale etc.) relating to any immoveable property for the purpose of section
53A of the Act, shall be registered; and
(ii) to amend the stamp laws subjecting agreements of sale with delivery of possession
and/or irrevocable powers of attorney in favour of non-family members authorizing sale,
to the same stamp duty as deed of conveyance. These measures, no doubt, to some extent
plugged the loss of revenue by way of stamp duty on account of parties having recourse
to SA/GPA/WILL transactions, instead of executing deeds of conveyance. But the other
ill-effects continued. Further such transaction which was only prevalent in Delhi and the
surrounding areas have started spreading to other States also. Those with ulterior motives
either to indulge in black money transactions or land mafia continue to favour such
transactions. There are also efforts to thwart the amended provisions by not referring to
delivery of possession in the agreement of sale and giving a separate possession receipt or
an affidavit confirming delivery of possession and thereby avoiding the registration and
stamp duty. The amendments to stamp and registration laws do not address the larger
issue of generation of black money and operation of land mafia. The four States and the
Union of India are however unanimous that SA/GPA/WILL transactions should be
curbed and expressed their willingness to take remedial steps.

5. The State of Haryana has however taken a further positive step by reducing the stamp duty on
deeds of conveyance from 12.5% to 5%. A high rate of stamp duty acts as a damper for execution
of deeds of conveyance for full value, and encourages SA/GPA/WILL transfers. When parties
resort to SA/GPA/WILL transfers, the adverse effect is not only loss of revenue (stamp duty and
registration charges) but the greater danger of generation of `black’ money. Reducing the stamp
duty on conveyance to realistic levels will encourage public to disclose the maximum sale value
and have the sale deeds registered. Though the reduction of the stamp duty, may result in an
immediate reduction in the revenue by way of stamp duty, in the long run it will be advantageous
for two reasons:
(i) parties will be encouraged to execute registered deeds of conveyance/sale deeds
without any under valuation, instead of entering into SA/GPA/WILL transactions; and
(ii) more and more sale transactions will be done by way of duly registered sale deeds,
disclosing the entire sale consideration thereby reducing the generation of black money to
a large extent. When high stamp duty is prevalent, there is a tendency to undervalue
documents, even where sale deeds are executed. When properties are undervalued, a
large part of the sale price changes hand by way of cash thereby generating `black’
money. Even when the state governments take action to prevent undervaluation, it only
results in the recovery of deficit stamp duty and registration charges with reference to the
market value, but the actual sale consideration remains unaltered. If a property worth `5
millions is sold for `2 millions, the Undervaluation Rules may enable the state
government to initiate proceedings so as to ensure that the deficit stamp duty and
registration charges are recovered in respect of the difference of `3 millions. But the sale
price remains `2 millions and the black money of `3 millions generated by the
undervalued sale transaction, remains undisturbed.

6. In this background, we will examine the validity and legality of SA/GPA/WILL transactions.
We have heard learned Mr. Gopal Subramanian, Amicus Curiae and noted the views of the
Government of NCT of Delhi, Government of Haryana, Government of Punjab and Government
of Uttar Pradesh who have filed their submissions in the form of affidavits.

Relevant Legal Provisions
7. Section 5 of the Transfer of Property Act, 1882 (`TP Act’ for short) defines `transfer of
property’ as under:
“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.”
xxx xxx

Section 54 of the TP Act defines `sales’ thus: “Sale” is a transfer of ownership in
exchange for a price paid or promised or part-paid and part-promised. Sale how made.
Such transfer, in the case of tangible immoveable 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 immoveable 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 immoveable 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.”

Section 53A of the TP Act defines `part performance’ thus :
“Part Performance. – Where any person contracts to transfer for consideration any
immoveable 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 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.”

8. We may next refer to the relevant provisions of the Indian Stamp Act, 1999 (Note : Stamp
Laws may vary from state to state, though generally the provisions may be similar). Section 27 of
the Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an obligation to set
forth in the instrument all facts and circumstances which affect the chargeability of duty on that
instrument. Article 23 prescribes stamp duty on `Conveyance’. In many States appropriate
amendments have been made whereby agreements of sale acknowledging delivery of possession
or power of Attorney authorizes the attorney to `sell any immovable property are charged with
the same duty as leviable on conveyance.

9. Section 17 of the Registration Act, 1908 which makes a deed of conveyance compulsorily
registrable. We extract below the relevant portions of section 17. .
“Section 17 – Documents of which registration is compulsory-
(1) The following documents shall be registered, namely:–
(b) other non-testamentary instruments which purport or operate to create, declare,
assign, limit or extinguish, whether in present or in future, any right, title or interest,
whether vested or contingent, of the value of one hundred rupees and upwards, to or in
immovable property.
(1A) The documents containing contracts to transfer for consideration, any immovable
property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882)
shall be registered if they have been executed on or after the commencement of the
Registration and Other Related laws (Amendment) Act, 2001 and if such documents are
not registered on or after such commencement, then, they shall have no effect for the
purposes of the said section 53A.

Advantages of Registration

10. In the earlier order dated 15.5.2009, the objects and benefits of registration were explained
and we extract them for ready reference :

“The Registration Act, 1908, was enacted with the intention of providing orderliness,
discipline and public notice in regard to transactions relating to immovable property and
protection from fraud and forgery of documents of transfer. This is achieved by requiring
compulsory registration of certain types of documents and providing for consequences of
non-registration. Section 17 of the Registration Act clearly provides that any document
(other than testamentary instruments) which purports or operates to create, declare,
assign, limit or extinguish whether in present or in future “any right, title or interest”
whether vested or contingent of the value of Rs. 100 and upwards to or in immovable
property. Section 49 of the said Act provides that no document required by Section 17 to
be registered shall, affect any immovable property comprised therein or received as
evidence of any transaction affected such property, unless it has been registered.

Registration of a document gives notice to the world that such a document has been
executed. Registration provides safety and security to transactions relating to immovable
property, even if the document is lost or destroyed. It gives publicity and public exposure
to documents thereby preventing forgeries and frauds in regard to transactions and
execution of documents. Registration provides information to people who may deal with
a property, as to the nature and extent of the rights which persons may have, affecting
that property. In other words, it enables people to find out whether any particular property
with which they are concerned, has been subjected to any legal obligation or liability and
who is or are the person/s presently having right, title, and interest in the property. It
gives solemnity of form and perpetuate documents which are of legal importance or
relevance by recording them, where people may see the record and enquire and ascertain
what the particulars are and as far as land is concerned what obligations exist with regard
to them. It ensures that every person dealing with immovable property can rely with
confidence upon the statements contained in the registers (maintained under the said Act)
as a full and complete account of all transactions by which the title to the property may
be affected and secure extracts/copies duly certified.”

Registration of documents makes the process of verification and certification of title easier and
simpler. It reduces disputes and litigations to a large extent.

Scope of an Agreement of sale

11. Section 54 of 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 and Anr. (1977) 3 SCC 247, observed: 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 Rambaran Prosad v. Ram Mohit Hazra [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.” In India, the word `transfer’ is defined with
reference to the word `convey’. The word `conveys’ in section 5 of Transfer of Property Act is
used in the wider sense of conveying ownership… …that only on execution of conveyance
ownership passes from one party to another….” In Rambhau Namdeo Gajre v. Narayan Bapuji
Dhotra [2004 (8) SCC 614] this Court held: “Protection provided under Section 53A 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 in
service against a third party.”

It is thus clear that a transfer of immoveable 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 immoveable property can be transferred.

12. 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 TP Act and will not confer any
title nor transfer any interest in an immovable property (except to the limited right granted under
section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or
without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable
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.

Scope of Power of Attorney

13. 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
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 (see section 1A 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. In State of Rajasthan vs. Basant Nehata – 2005 (12) SCC 77, this Court held :

“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. 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.”

An attorney holder may however execute a deed of conveyance in exercise of the power granted
under the power of attorney and convey title on behalf of the grantor.

Scope of Will

14. 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 intended to come into effect only after the death of
the testator and is revocable at any time during the life time of the testator. It is said that so long
as the testator is alive, a will is not be 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. (see sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.

15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an
immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara
Bank – 94 (2001) DLT 841, that the “concept of power of attorney sales have been recognized as
a mode of transaction” when dealing with transactions by way of SA/GPA/WILL are unwarranted
and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL
transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid
substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL
transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.

16. We therefore reiterate that immovable property can be legally and lawfully
transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of
`GPA sales’ or `SA/GPA/WILL transfers’ do not convey title and do not amount to transfer, nor
can they be recognized or valid mode of transfer of immoveable property. The courts will not
treat such transactions as completed or concluded transfers or as conveyances as they neither
convey title nor create any interest in an immovable property. They cannot be recognized as
deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot
be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated
above will apply not only to deeds of conveyance in regard to freehold property but also to
transfer of leasehold property. A lease can be validly transferred only under a registered
Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL
transactions known as GPA sales.

17. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers
are not legally valid modes of transfer is likely to create hardship to a large number of persons
who have entered into such transactions and they should be given sufficient time to regularize the
transactions by obtaining deeds of conveyance. It is also submitted that this decision should be
made applicable prospectively to avoid hardship.

18. We have merely drawn attention to and reiterated the well-settled legal position that
SA/GPA/WILL transactions are not `transfers’ or `sales’ and that such transactions cannot be
treated as completed transfers or conveyances. They can continue to be treated as existing
agreement of sale. Nothing prevents affected parties from getting registered Deeds of
Conveyance to complete their title. The said `SA/GPA/WILL transactions’ may also be used to
obtain specific performance or to defend possession under section 53A of TP Act. If they are
entered before this day, they may be relied upon to apply for regularization of allotments/leases
by Development Authorities. We make it clear that if the documents relating to `SA/GPA/WILL
transactions’ has been accepted acted upon by DDA or other developmental authorities or by the
Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on
account of this decision.

19. We make it clear that our observations are not intended to in any way affect the validity of
sale agreements and powers of attorney executed in genuine transactions. For example, a person
may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage
his affairs or to execute a deed of conveyance. A person may enter into a development agreement
with a land developer or builder for developing the land either by forming plots or by
constructing apartment buildings and in that behalf execute an agreement of sale and grant a
Power of Attorney empowering the developer to execute agreements of sale or conveyances in
regard to individual plots of land or undivided shares in the land relating to apartments in favour
of prospective purchasers. In several States, the execution of such development agreements and
powers of attorney are already regulated by law and subjected to specific stamp duty. Our
observations regarding `SA/GPA/WILL transactions’ are not intended to apply to such
bonafide/genuine transactions.

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