Recognition of General
Power of Attorney and Will
as documents conferring
right in any immovable
property is in violation of
statutory law: SC 

PUBLISHED ON: 13-05-2023

The Hon’ble Supreme Court, in the matter of Ghanshyam vs Yogendra Rathi [Civil Appeal No. 7527-7528 of 2012] held that the fact that: (i) the parties had executed an agreement to sell; (ii) entire sale consideration as mentioned in the agreement to sell was paid; and (iii) the Plaintiff-Respondent was put in possession of the property proved that the Plaintiff-Respondent was de-facto having possessory right over the property. In this case, the Hon’ble Supreme Court while dealing with the issue of possessory rights on basis of an agreement to sell also observed as under:

 

• A Will comes into effect only after the death of the executant and not before it. Therefore, the Will has no force during the lifetime of the testator or any person making.
• The practice, if any, prevalent in any State or the High Court recognizing a Will and a general Power of Attorney as document of title or document conferring right is any immovable property is in violation of the statutory law.
• An agreement to sell on its own is not a document conferring title upon the purchaser in view of Section 54 of the Transfer of Property Act, 1882 however, in light of the Plaintiff- Respondent having performed his part of contract and lawfully in possession acquires a possessory title which is liable to be protected in view of Section 53A of the Transfer of Property Act, 1882.

The aforementioned Order dated June 2, 2023 can be accessed here.