Gujarat High Court
Manilal Ratnabhai Solanki vs Shankarbhai Raisinh Solanki on 24 February, 2026
NEUTRAL CITATION
C/SA/48/2026 JUDGMENT DATED: 24/02/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 48 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-
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Approved for Reporting No Yes
No
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MANILAL RATNABHAI SOLANKI
Versus
SHANKARBHAI RAISINH SOLANKI & ORS.
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Appearance:
NATASHA SUTARIA(7907) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/02/2026
JUDGMENT
1. The unsuccessful plaintiff is in second appeal under
Section 100 of the Code of Civil Procedure, 1908 (hereinafter
referred to as ‘the Code’), raising the following questions as
substantial question of law:-
“1. Whether the Appellate Court erred by ignoring the
material evidence produced by the Appellant
2. Whether the Appellate Court has committed an error by
coming to a conclusion and finding contrary to the
examination of the wife of the appellant without any cogent
and justifiable reasons.
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3. Whether the Appellate Court has materially erred in law
without providing any cogent and just reasons for
discrediting the proof of sale by way of document dated
27.04.2002.
4. Whether the Appellate Court has materially erred in law
in observing that the appellant is required to comply section
14 of Specific Relief Act without providing any cogent and
just reasons.
5. Whether the Appellate Court has materially erred in
causing findings on the conduct of the respondents about
revenue being paid from 2002 in absence of evidence
without providing any cogent and just reasons.
6. Whether the Appellate Court committed an error by failing
to consider that there is no error in the appreciation of
evidence by the trial court.
7. Whether the Appellate Court has erred by holding that the
sale is violative of section 43 of Tenancy Act without
providing any cogent and just reasons.
8. Whether the Appellate Court has committed an error by
not following the procedure as laid down under Order 41
Rule 25 of the Code of Civil Procedure, 1908 in its true intent
and spirit.”
2. The appellant, who was the plaintiff, filed the Regular
Civil Suit No.16 of 2022 before the learned Senior Civil Judge,
Kalol for the relief claimed under Sections 34, 36 and 37 of the
Specific Relief Act, 1963 to the effect that the plaintiff be
declared as a title holder and possessor of the suit land and that
the defendant’s title is extinguished on the subject land of by
executing a Vechan Karar (Agreement to Sale) on 27.04.2002 and
further declare that the defendants has no whatsoever right to
get any compensation from the National Highways Authority of
India (NHAI, for short) for acquisition of the subject land and
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further, defendants be directed to pay back the compensation of
Rs.6,66,852/-, which they have received from the NHAI and also
be directed to pay the additional amount of compensation which
the defendants have acquired on 03.12.2021.
3. Plaintiff has claimed the relief on the basis that the
Amarsinh Bharatsinh Solanki and Shankarsinh Raisinh Solanki
were holding the land of Survey No. 662/2, New Survey No.2784
admeasuring 8 Guntha and 12 Guntha land, and have sold the
same to the plaintiff by executing a Vechan Karar on 27.04.2002.
The land was registered under the Gujarat Tenancy and
Agricultural Lands Act, 1948 (hereinafter referred to as the
‘Tenancy Act‘).
4. Therefore, firstly, the unregistered Vechan Karar was
executed with the intention to execute the sale deed, once
permission under Section 43 of the ‘Tenancy Act‘ is received.
However, the seller being a defendant Nos. 1 and 2 have handed
over the possession of the suit land to the plaintiff and as such,
the plaintiff is in possession of the said land since 27.04.2002.
The plaintiff, thus, became the owner on the basis of the Vechan
Karar dated 27.04.2002 and defendant has no whatsoever right
over the suit land.
5. It is further the case of the plaintiff that, the NHAI
has published the Notification on 13.07.2019 for acquisition of
the suit land for the purpose of construction of Bombay-Delhi
National Highway No.148 and subsequent thereto, the
Acquisition Officer has deposited Rs.6,66,852/-. Plaintiff
approached the NHAI in July, 2019 and raised the objection that
since the Vechan Karar is standing in his name, the
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compensation has to be paid to him, but the NHAI ignoring such
objection, followed the revenue entry and paid the amount of the
compensation to the defendants No.1 and 2. In the premises of
the aforesaid argument, plaintiff came out with the aforesaid
relief.
6. The learned trial Court by judgment and decree dated
01.11.2024 decreed the suit and passed the decree in favour of
the plaintiff and declared that the defendants are not the owner
and possessor of the suit land as they have sold the suit land on
27.04.2002 by an unregistered Vechan Karar and further that,
the defendants are not entitled to receive the compensation of
Rs.6,66,852/- as they have sold the suit land to the plaintiff.
Therefore, the learned Civil Judge, Kalol directed the defendants
to pay Rs.6,66,852/- to the plaintiff.
7. Being aggrieved and dissatisfied by the judgment and
decree passed by the learned Civil Court, Kalol, the defendants
of the suit filed the Regular Civil Appeal No.48 of 2024 under
Section 96 of ‘the Code’. The Additional District Judge
Panchmahal at Halol by judgment and order dated 30.08.2025
allowed the appeal, reversing the judgment and decree passed by
the learned trial Court and consequently, dismissed the civil suit
filed by the plaintiff. Being aggrieved, plaintiff is before this
Court by way of this second appeal.
8. Seeking admission of the second appeal, learned
advocate Ms. Natasha Sutaria, referring to the question of law
framed and reproduced hereinabove, mainly would submit that
the learned appellate Court has committed serious and manifest
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error in believing that the Vechan Karar dated 27.04.2002 is not
proved.
8.1 She would submit that the learned appellate Court
failed to notice that this Vechan Karar has been produced by the
defendants themselves in the suit and the plaintiff has admitted
those documents. Rather, the plaintiff’s suit is entirely based
upon that document and therefore the document dated
27.04.2002 styled as a Vechan Karar is a proved document and
it is a relevant document.
8.2 She would submit that the plaintiff undisputedly was
in possession since 27.04.2002, his possession has been set up
as a settled possession and setting up a possessive title of the
property. Plaintiff’s possession also created interest within the
meaning of Land Acquisition Act, and therefore, plaintiff alone
was entitled to receive the compensation for acquisition of the
suit land from the NHAI. She would further submit that the
learned appellate Court has committed serious error in raising
doubt on the disputed facts and reversed the judgment and
decree. Therefore, she has submitted that the appeal deserves
consideration. It involves the substantial question of law.
8.3 Upon above submissions, she submits to entertain
the second appeal on the above noted questions of law.
8.4 In support of her submissions, she tendered the
Notes of arguments. It is taken on record. She also referred to
the following authorities to buttress her contentions:-
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(i) Sunder Lal v. Paramsukhdas, reported in AIR
1968 SC 366.
(ii) Sukhbir v. Ajit Singh, reported in (2021) 6 SCC 54.
(iii) Dossibai Nanabhoy Jeejeebhoy v. P.M. Bharucha,
reported in AIR 1958 Bom. 1208.
(iv) Ghanshyam v. Yogendra Rathi, reported in (2023)
7 SCC 361.
(v) Nair Service Society v. Rev. Father K.C.
Alexander, reported in 1968 SCC OnLine SC 97.
(vi) Rame Gowda (Dead) by LRs v. M. Varadappa
Naidu (Dead) by LRs and Anr., reported in (2004) 1 SCC
769.
9. Having heard learned Advocate Ms. Natasha Sutaria
and going through the impugned judgment, in background of the
question of law posed by the appellate Court, I find that none of
the question of law are substantial questions of law.
10. What can be a substantial question of law is no more
res-integra in view of the recent judgment of the Full-Bench of
this Court in the case of Shaikh Ismailbhai Hushainbhai
(Dead) by L.Rs. v. Vankar Ambalal Dhanabhai, reported in
2024(1) GLH 222.
11. The scope of Second Appeal has been discussed by
the Supreme Court in the case of Nazir Mohamed v. J. Kamala
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& Ors., reported in AIR 2020 SC 4321. The relevant para 37
thereof reads as under:-
“37. The principles relating to Section 100 CPC relevant for
this case may be summarised thus :
(i) An inference of fact from the recitals or contents of a
document is a question of fact, but the legal effect of the
terms of a document is a question of law. Construction of a
document, involving the application of any principle of law,
is also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a
question of law.
(ii) The High Court should be satisfied that the case involves
a substantial question of law, and not a mere question of
law. A question of law having a material bearing on the
decision of the case (that is, a question, answer to which
affects the rights of parties to the suit) will be a substantial
question of law, if it is not covered by any specific provisions
of law or settled legal principle emerging from binding
precedents, and, involves a debatable legal issue.
(iii) A substantial question of law will also arise in a
contrary situation, where the legal position is clear, either on
account of express provisions of law or binding precedents,
but the Court below has decided the matter, either ignoring
or acting contrary to such legal principle. In the second type
of cases, the substantial question of law arises not because
the law is still debatable, but because the decision rendered
on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere
with the concurrent findings of the Courts below. But it is not
an absolute rule. Some of the well-recognised exceptions are
where (i) the courts below have ignored material evidence or
acted on no evidence; (ii) the courts have drawn wrong
inferences from proved facts by applying the law
erroneously; or (iii) the courts have wrongly cast the burden
of proof. A decision based on no evidence, does not refer
only to cases where there is a total dearth of evidence, but
also refers to case, where the evidence, taken as a whole, is
not reasonably capable of supporting the finding.”
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12. In Hero Vinoth v. Seshammal, reported in (2006) 5
SCC 545, the Apex Court set out the phrase ‘substantial
question of law’ as occurring in the amended Section 100 of “the
Code”, as under:-
“21. The phrase ‘substantial question of law’, as occurring in
the amended Section 100 CPC is not defined in the Code.
The word substantial, as qualifying ‘question of law’, means
of having substance, essential, real, of sound worth,
important or considerable. It is to be understood as
something in contradistinction with-technical, of no
substance or consequence, or academic merely. However, it
is clear that the legislature has chosen not to qualify the
scope of ‘substantial question of law’ by suffixing the words
‘of general importance’ as has been done in many other
provisions such as Section 109 of the Code or Article 133(1)
(a) of the Constitution. The substantial question of law on
which a second appeal shall be heard need not necessarily
be a substantial question of law of general importance. In
Guran Ditta v. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928
PC 172] the phrase substantial question of law as it was
employed in the last clause of the then existing Section 100
CPC (since omitted by the Amendment Act, 1973) came up
for consideration and their Lordships held that it did not
mean a substantial question of general importance but a
substantial question of law which was involved in the case.
In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC
1314] the Constitution Bench expressed agreement with the
following view taken by a Full Bench of the Madras High
Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR
1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case
[1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557)
‘When a question of law is fairly arguable, where there is
room for difference of opinion on it or where the Court
thought it necessary to deal with that question at some
length and discuss alternative views, then the question
would be a substantial question of law. On the other hand if
the question was practically covered by the decision of the
highest court or if the general principles to be applied in
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determining the question are well settled and the only
question was of applying those principles to the particular
fact of the case it would not be a substantial question of
law.’ “
13. In Narayanan Rajendran and Anr. v. Lekshmy
Sarojini and Ors., reported in (2009) 5 SCC 284, the Apex
Court has examined the scope of Second Appeal prior to
amendment and post amendment of Section 100 of “the Code”,
after referring to a catena of judgments. The relevant paras 38 to
42 are reproduced as under:-
“38. “66.The primary cause of the accumulation of arrears of
second appeal in the High Court is the laxity with which
second appeals are admitted without serious scrutiny of the
provisions of Section 100 C.P.C. It is the bounden duty of the
High Court to entertain second appeal within the ambit and
scope of Section 100 C.P.C.
67. The question which is often asked is why should a
litigant have the right of two appeals even on questions of
law? The answer to this query is that in every State there
are number of District Courts and courts in the District
cannot be final arbiters on questions of law. If the law is to
be uniformly interpreted and applied, questions of law must
be decided by the highest Court in the State whose decisions
are binding on all subordinate courts.”
Rationale behind permitting second appeal on question of
law:
39. ’68. The rationale behind allowing a second appeal on a
question of law is, that there ought to be some tribunal
having a jurisdiction that will enable it to maintain, and,
where necessary, re-establish, uniformity throughout the
State on important legal issues, so that within the area of
the State, the law, in so far as it is not enacted law, should
be laid down, or capable of being laid down, by one court
whose rulings will be binding on all courts, tribunals and
authorities within the area over which it has jurisdiction.
This is implicit in any legal system where the higher courts
have authority to make binding decisions on question of law.
69. The analysis of cases decided by the Privy Council and
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this court prior to 1976 clearly indicated the scope of
interference under Section 100 C.P.C. by this Court. Even
prior to amendment, the consistent position has been that
the courts should not interfere with the concurrent findings
of facts.
70. Now, after 1976 Amendment, the scope of Section 100
has been drastically curtailed and narrowed down. The
High Courts would have jurisdiction of interfering under
Section 100 C.P.C. only in a case where substantial
questions of law are involved and those questions have been
clearly formulated in the memorandum of appeal. At the time
of admission of the second appeal, it is the bounden duty
and obligation of the High Court to formulate substantial
questions of law and then only the High Court is permitted
to proceed with the case to decide those questions of law.
The language used in the amended section specifically
incorporates the words as “substantial question of law”
which is indicative of the legislative intention. It must be
clearly understood that the legislative intention was very
clear that legislature never wanted second appeal to become
“third trial on facts” or “one more dice in the gamble”. The
effect of the amendment mainly, according to the amended
section, was:
(i) The High Court would be justified in admitting the second
appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such
question;
(iii) A duty has been cast on the High Court to formulate
substantial question of law before hearing the appeal;
(iv) Another part of the Section is that the appeal shall be
heard only on that question.
71. The fact that, in a series of cases, this court was
compelled to interfere was because the true legislative
intendment and scope of Section 100 C.P.C. have neither
been appreciated nor applied. A class of judges while
administering law honestly believe that, if they are satisfied
that, in any second appeal brought before them evidence
has been grossly misappreciated either by the lower
appellate court or by both the courts below, it is their duty to
interfere, because they seem to feel that a decree following
upon a gross misappreciation of evidence involves injustice
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and it is the duty of the High Court to redress such injustice.
We would like to reiterate that the justice has to be
administered in accordance with law.
72. When Section 100 C.P.C. is critically examined then,
according to the legislative mandate, the interference by the
High Court is permissible only in cases involving substantial
questions of law.
73. The Judicial Committee of the Privy Council as early as
in 1890 stated that there is no jurisdiction to entertain a
second appeal on the ground of an erroneous finding of fact,
however, gross or inexcusable the error may seem to be and
they added a note of warning that no Court in India has
power to add to, or enlarge, the grounds specified in Section
100.
74. The High Court seriously erred in interfering with the
findings of facts arrived at by the trial court and affirmed by
the first appellate court.
40. The scope of interference by the High Court in second
appeal under section 100 CPC after 1976 Amendment is
strictly confined to cases involving substantial questions of
law. The High Court would not be justified in dealing with
any second appeal without first formulating substantial
question of law. The High Court would not be justified in
dealing with any second appeal without first formulating
substantial question of law. The legislative intention has
been clearly spelt out in a series of cases of this court.’
41. In Gurdev Kaur (supra), this court exhaustively dealt
with the cases before and after 1976 Amendment of CPC.
This court clearly observed that the scope and ambit of
section 100 CPC has been drastically changed after the
amendment.
42. It is a matter of common experience in this court that
despite clear enunciation of law in a catena of cases of this
court, a large number of cases are brought to our notice
where the High Court under section 100 CPC are disturbing
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the concurrent findings of fact without formulating the
substantial question of law.”
14. Considering the aforesaid scope of Second Appeal,
which is confined only to substantial question of law, the finding
of fact is not open to challenge the Second Appeal, even if the
appreciation of evidence is erroneous from the point of view of
the appellant or finding of fact are view as incorrect, as held by
the Apex Court in the case of R. Ramachandran Ayyar v.
Ramalingam Chettiar, reported in AIR 1963 SC 302.
15. Considering the settled principle of law established
by the Honourable Supreme Court in the series of the
authoritative pronouncement, the question arises that, whether
on the basis of the Vechan Karar (Agreement to Sale), plaintiff
can claim any interest in the suit land?, and consequently, is
entitled to the compensation assessed by the NHAI for
acquisition of the suit land. The facts, which is no more res-
integra, that the defendant No.1 and 2 have not executed any
registered sale deed in favor of the plaintiff at any point of time,
the plaintiff’s case relies upon the unregistered Vechan Karar
dated 27.04.2002, which has no value more than the agreement
to sale defined in Section 54 of the Transfer of Property Act.
What needed to examine that, whether such agreement to sale
creates any title in favor of the plaintiff, which enables the
plaintiff to secure the peripheral decree for recovery of the
amount of compensation awarded by the NHAI for the
acquisition of suit land.
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16. In Vinod Infra Developers Ltd. v. Mahaveer Lunia
& Ors., reported in 2025 LiveLaw (SC) 630, the Supreme Court
countered the identical issue and held that the agreement to sell
or contract for sale of immovable property does not by itself
create any interest in or charge of the property. Even if such
unregistered agreement to sell is coupled with the possession,
they do not convey any kind of the title or create interest in the
immovable property. Para 9.2 and 9.3 are relevant, which reads
as under:-
“9.2. Additionally, Section 54 of the Transfer of Property Act,
1882, categorically provides that a contract for the sale of
immovable property does not, by itself, create any interest in
or charge on such property. In the present case, the appellant
has contended that the agreement to sell dated 24.05.2014
was, in substance, a transaction executed as security for the
loan amount received from Respondent No. 1, and was
effectively in the nature of a mortgage, and they are now
ready and willing to repay the loan amount and redeem the
mortgaged property. As already stated, the agreement to sell,
power of attorney, and other connected documents relied upon
by Respondent No. 1 were unregistered, and therefore, in law,
cannot confer any title, interest, or ownership rights in respect
of the subject property. It is also significant to note that these
documents were expressly revoked by the appellant on
24.05.2022 and 27.05.2022 – prior to the execution of the
impugned sale deeds. Moreover, Respondent No. 1 has not
filed any suit for specific performance of the alleged agreement
to sell, which further renders his claim untenable. In the
absence of a suit for specific performance, the agreement to
sell cannot be relied upon to claim ownership or to assert any
transferable interest in the property. This legal position has
been conclusively laid down by this Court in Suraj Lamp &
Industries (P) Ltd. v. State of Haryana, wherein, it was held
that unregistered agreements to sell, even if coupled with
possession, do not convey title or create any interest in the
immovable property. It was further clarified that such
documents are insufficient to complete a sale unless dulyPage 13 of 21
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registered and followed by appropriate conveyance. The
relevant paragraphs of the said judgment are extracted below:
’16. 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: (SCC pp.254-55, paras 32-33 & 37) ’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 Rambaran Prasad 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.
33. 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…
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:
’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 in service
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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. Scope of
power of attorney
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 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.
21. In State of Rajasthan v. Basant Nehata [2005 (12) SCC
77], this Court held:
’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
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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.
…
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.’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
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
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.
Conclusion
23. 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.
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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.
24. 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 53-A 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.’
9.3. This Court reaffirmed the same position in Cosmos Co.
Operative Bank Ltd v. Central Bank of India & Ors9, where it
was reiterated that title and ownership of immovable property
can only be conveyed by a registered deed of sale. The
following observations are significant:
’25. The observations made by this Court in Suraj Lamp
(supra) in paras 16 and 19 are also relevant.
…..
26. Suraj Lamp (supra) later came to be referred to and
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relied upon by this Court in Shakeel Ahmed v. Syed Akhlaq
Hussain, 2023 SCC OnLine SC 1526 wherein the Court after
referring to its earlier judgment held that the person relying
upon the customary documents cannot claim to be the owner
of the immovable property and consequently not maintain
any claims against a third-party. The relevant paras read as
under:–
’10. Having considered the submissions at the outset, it is
to be emphasized that irrespective of what was decided in
the case of Suraj Lamps and Industries (supra) the fact
remains that no title could be transferred with respect to
immovable properties on the basis of an unregistered
Agreement to Sell or on the basis of an unregistered
General Power of Attorney. The Registration Act, 1908
clearly provides that a document which requires
compulsory registration under the Act, would not confer
any right, much less a legally enforceable right to
approach a Court of Law on its basis. Even if these
documents i.e. the Agreement to Sell and the Power of
Attorney were registered, still it could not be said that the
respondent would have acquired title over the property in
question. At best, on the basis of the registered agreement
to sell, he could have claimed relief of specific performance
in appropriate proceedings. In this regard, reference may
be made to sections 17 and 49 of the Registration Act and
section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or interest in
immovable property can be conferred without a registered
document. Even the judgment of this Court in the case of
Suraj Lamps & Industries (supra) lays down the same
proposition. Reference may also be made to the following
judgments of this Court:
(i). Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar (2018)
7 SCC 639
(ii). Balram Singh v. Kelo Devi Civil Appeal No. 6733 of
2022 2025 SCC OnLine SC 352
(iii). Paul Rubber Industries Private Limited v. Amit Chand
Mitra, SLP(C) No. 15774 of 2022.
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12. The embargo put on registration of documents would
not override the statutory provision so as to confer title on
the basis of unregistered documents with respect to
immovable property. Once this is the settled position, the
respondent could not have maintained the suit for
possession and mesne profits against the appellant, who
was admittedly in possession of the property in question
whether as an owner or a licensee.
13. The argument advanced on behalf of the respondent
that the judgment in Suraj Lamps & Industries (supra)
would be prospective is also misplaced. The requirement
of compulsory registration and effect on non-registration
emanates from the statutes, in particular the Registration
Act and the Transfer of Property Act. The ratio in Suraj
Lamps & Industries (supra) only approves the provisions
in the two enactments. Earlier judgments of this Court
have taken the same view.”
17. I may also refer to the judgment in the case of M.S.
Ananthamurthy & Anr. v. J. Manjula etc., reported in 2025
LiveLaw (SC) 257, whereupon the Supreme Court resurveyed
the statutory provision, precedent and affirmed that an
unregistered agreement to sell does not and cannot by itself
create or transfer any right, title or interest in the immovable
property. The following observations and findings of the
Honourable Supreme Court, which are pertinent in this regard,
are as under:-
“47. It is a settled law that a transfer of immovable property
by way of sale can only be by a deed of conveyance. An
agreement to sell is not a conveyance. It is not a document of
title or a deed of transfer of deed of transfer of property and
does not confer ownership right or title. In Suraj Lamp
(supra) this Court had reiterated that an agreement to sell
does not meet the requirements of Sections 54 and 55 of the
TPA to effectuate a ‘transfer’.
…
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51. Section 17(1)(b) prescribes that any document which
purports or intends to create, declare, assign, limit or
extinguish any right, title or interest, whether vested or
contingent, of the value of one hundred rupees and upwards
to or in immovable property is compulsorily registerable.
Whereas, section 49 prescribes that the documents which
are required to be registered under Section 17 will not affect
any immovable property unless it has been registered.
….
53. Even from the combined reading of the POA and the
agreement to sell, the submission of the appellants fails as
combined reading of the two documents would mean that by
executing the POA along with agreement to sell, the holder
had an interest in the immovable property. If interest had
been transferred by way of a written document, it had to be
compulsorily registered as per Section 17(1)(b) of the
Registration Act. The law recognizes two modes of transfer
by sale, first, through a registered instrument, and second,
by delivery of property if its value is less than Rs. 100/-.”
Accordingly, it is abundantly clear that the unregistered
agreement to sell dated 24.05.2014 cannot, under any
circumstance, create or convey any right, title or interest in
favour of Respondent No.1 under Section 54 of the Transfer
of Property Act, 1882. The subsequent revocation of
authority further nullifies any claim to title based on such
documents.
18. In view of above, the contention that the unregistered
agreement to sale dated 27.04.2002 coupled with the possession
creates a right, title, interest in favor of the plaintiff to enable the
plaintiff to secure the compensation granted in favor of the seller
i.e. defendant Nos.1 and 2 by the NHAI, is totally erroneous.
19. What also deserves to be noted that the Vechan Karar
(Agreement to Sale or Contract for Sale) dated 27.04.2002
claiming to be a base-title document for asking the relief was in
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regards to the new tenure land. The perusal of Section 43 of the
‘Tenancy Act‘ prohibits such agreement to sale or contract for
sale without prior permission of the Collector, consequently does
not create any right in favor of the appellant.
20. Recently, the Full Bench of this Court in the case of
Shaikh Ismailbhai Hushainbhai (Dead) by L.Rs. v. Vankar
Ambalal Dhanabhai, reported in 2024(1) GLH 222 has ruled
that such agreement is barred. The finding and observation of
the Full Bench of this Court in regards to the operation of
Section 43 of the ‘Tenancy Act‘ has been unsuccessfully
challenged before the Supreme Court by way of SLP(C) No. 6812
of 2023.
21. Before parting with the judgment, it is to be said that
the judgments, which learned advocate Ms. Natasha Sutaria
relied upon, are distinguishable on the facts.
22. In the aforesaid circumstances and on the premises
of the reason stated hereinabove, this Court is unable to accept
the appeal filed by the appellant.
Consequently, it is dismissed in-limine at the admission
stage.
Sd/-
(J.C. DOSHI, J.)
Raj
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