SA/GPA/Will Do Not Convey Title; Will Must Be Strictly Proved; Section 53A Is a Shield Only With Possession

Commentary on RAMESH CHAND (D) THR. LRS. v. SURESH CHAND (2025 INSC 1059)

Introduction

In Ramesh Chand (D) thr. LRs v. Suresh Chand and Anr., Civil Appeal No. 6377 of 2012, decided on 1 September 2025, the Supreme Court of India (per Aravind Kumar, J. and Sandeep Mehta, J.) set aside concurrent findings of the Trial Court and the Delhi High Court that had recognized title in favour of the plaintiff based on a suite of documents — an Agreement to Sell, General Power of Attorney (GPA), Affidavit, Receipt of consideration, and a registered Will — allegedly executed by the parties’ father, late Kundan Lal, on 16.05.1996.

The case concerns a family dispute over property No. 563, Ambedkar Basti near Balmiki Gate, Delhi. The plaintiff (Suresh Chand) claimed ownership through the aforesaid documents and sought possession, mesne profits, declaration, and a mandatory injunction. Defendant No. 1 (Ramesh Chand, since deceased and represented by LRs) denied the plaintiff’s title, pleaded an earlier oral transfer from the father in 1973, continuous possession since 1973, and counter-claimed for a declaration that the documents relied on by the plaintiff were void. Defendant No. 2 claimed to be a bona fide purchaser of 50% share from Defendant No. 1.

Central issues included: (i) whether SA/GPA/Receipt/Will could confer title in absence of a registered sale deed; (ii) whether the Will was proved in law; (iii) whether Section 53A of the Transfer of Property Act (TPA) could be invoked by the plaintiff; and (iv) the extent of protection available to a transferee from a co-heir.

Procedural backdrop is important. The High Court had originally dismissed the appeal in 2012 relying on Asha M. Jain v. Canara Bank (Delhi HC), which recognized SA/GPA/Will transactions. In 2011, the Supreme Court, in the wake of Suraj Lamp & Industries (2) v. State of Haryana (2012) 1 SCC 656 — which overruled that line of authority — remanded the matter to the High Court for fresh consideration. The High Court again dismissed the appeal on 09.04.2012. The Supreme Court has now allowed the appeal, dismissing the plaintiff’s suit.

Summary of the Judgment

• Agreement to Sell, GPA, Affidavit, and Receipt do not constitute a conveyance under Section 54 TPA. Without a registered sale deed, no title passes.
• A GPA is merely an instrument of agency; even an “irrevocable” GPA does not transfer ownership.
• The registered Will dated 16.05.1996 was not proved in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872; registration alone is insufficient. Suspicious circumstances (exclusive bequest to one child without explanation) were not dispelled.
• Section 53A TPA (part performance) requires possession with the transferee; it is a shield, not a sword. The plaintiff, suing for possession, was not in possession and thus could not invoke Section 53A.
• Consequently, late Kundan Lal remained owner during his lifetime. With the Will unproved and no sale deed, succession opened on his demise; the suit property devolves upon his Class-I legal heirs under intestate succession.
• Defendant No. 2’s purchase from Defendant No. 1 is protected only to the extent of Defendant No. 1’s share, consistent with the Court’s interim protection and the principle that a transferee from a co-heir acquires only that heir’s undivided share.
• The Supreme Court set aside the High Court’s and Trial Court’s decrees and dismissed the plaintiff’s suit, leaving parties to work out their shares and rights in accordance with law. No order as to costs.

Analysis

Precedents Cited and Their Influence

• Suraj Lamp & Industries (2) v. State of Haryana, (2012) 1 SCC 656:
  • Core authority reaffirmed that transfer of immovable property by sale must be only by a registered conveyance; SA/GPA/Will arrangements do not transfer ownership.
  • Clarified the distinct roles of Agreement to Sell (no title; at most right to specific performance), GPA (agency; no transfer), and Will (posthumous disposition; not inter vivos transfer).
  • Also cited Narandas Karsondas v. S.A. Kamtam (1977) 3 SCC 247 and Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra (2004) 8 SCC 614 to underscore that title passes only on execution of a registered conveyance and that Section 53A is only a shield, not a sword, and does not vest ownership.
• State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77:
  • Reiterated that a GPA is an instrument of convenience creating agency; except where coupled with interest in a manner known to law, it is revocable and does not transfer title.
• H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443:
  • Seminal statement on proof of Wills: the propounder must prove due execution and attestation in the manner contemplated by Section 63 of the Succession Act and Section 68 of the Evidence Act; the court’s conscience must be satisfied, especially where suspicious circumstances exist.
• MEENA PRADHAN v. KAMLA PRADHAN, (2023) 9 SCC 734:
  • Consolidated the essential checklist for proving Wills: execution, attestation by two witnesses, examination of at least one attesting witness, and removal of suspicious circumstances.
• Nathulal v. Phoolchand, (1969) 3 SCC 120:
  • Outlined the ingredients of Section 53A TPA; notably, possession with the transferee is a condition precedent.
• Asha M. Jain v. Canara Bank (Delhi HC):
  • The High Court had earlier relied on this now-overruled decision to uphold SA/GPA/Will transactions; Suraj Lamp displaced this line decisively. The Supreme Court’s current ruling operationalizes that shift in this fact-pattern.

Legal Reasoning

1) SA/GPA/Affidavit/Receipt do not confer title

Section 54 TPA mandates that sale of tangible immovable property valued at over Rs. 100 can be “made only by a registered instrument.” An Agreement to Sell merely creates a right to obtain a conveyance (i.e., to sue for specific performance); it does not itself create an interest or charge in property. A GPA evidences agency; it does not convey title, even if it authorizes management, letting, mortgage, or even sale. An Affidavit and a Receipt (acknowledging consideration) cannot substitute for a registered sale deed. The Court carefully noted the GPA’s recitals limited the grantee’s authority to managing the property; it was silent on any direct conveyance and, even if it weren’t, a GPA is not a conveyance.

2) Will: registration is not proof; attesting witness must be examined; suspicious circumstances unexplained

A Will is a posthumous disposition; it is neither a sale nor a transfer inter vivos. To be acted upon, it must be proved per Section 63 of the Succession Act (execution and attestation by two witnesses) and Section 68 of the Evidence Act (examination of at least one attesting witness). The Trial Court failed to rigorously evaluate compliance with these statutory requirements; the High Court compounded the error by suggesting that examination of an attesting witness is required only in disputes between legal heirs — a proposition the Supreme Court held to be contrary to law. The Court emphasized that registration does not cure deficiencies in execution/attestation, nor does it dispense with Section 68 Evidence Act.

The Court also identified “suspicious circumstances”: late Kundan Lal had four children (including both parties), yet the alleged Will favored only one son without any recorded reason or evidence of estrangement or compensating bequests. The propounder failed to dispel these suspicions. Consequently, the Will could not be relied upon to exclude other Class-I heirs.

3) Section 53A TPA: a shield contingent on possession

The doctrine of part performance under Section 53A protects a transferee who is in possession in part performance of a contract and is ready and willing to perform his part. It debars the transferor (and those claiming under him) from dispossessing the transferee. It neither passes title nor creates an estate. Crucially, it presupposes possession with the transferee. Here, the plaintiff sued for possession — an admission that he was not in possession. Therefore, Section 53A was inapplicable.

4) Consequence: devolution by intestate succession; transferee from co-heir protected only to that heir’s share

With no valid conveyance and the Will unproved, late Kundan Lal continued as the owner during his lifetime; upon his death on 10.04.1997, succession opened. In the absence of a proved Will, the property devolves on his Class-I legal heirs under the Hindu Succession Act, 1956. Defendant No. 1 had sold 50% to Defendant No. 2. Recognizing earlier interim protection, the Supreme Court protected Defendant No. 2’s rights only to the extent of Defendant No. 1’s share, thereby aligning with the established principle that a purchaser from a co-heir acquires only that heir’s undivided interest, to be worked out in partition. The Court left all parties at liberty to pursue appropriate proceedings to crystallize shares.

Impact and Significance

• Reaffirmation and operationalization of Suraj Lamp:
  • In jurisdictions where “SA/GPA/Will” practices proliferated, this ruling reinforces that such bundles are not titles. Conveyance must be by a registered sale deed. Municipal mutations, utility transfers, or bank acceptances based on such documentation cannot substitute for legal title.
• Evidentiary rigour for Wills:
  • Trial courts and appellate courts must insist on strict adherence to Section 63 Succession Act and Section 68 Evidence Act. Registration does not lighten the propounder’s burden. Suspicious circumstances — such as exclusion of natural heirs without explanation, feeble health of testator, active participation of the beneficiary — must be affirmatively dispelled.
• Section 53A circumscribed:
  • Part performance cannot be used to found a cause of action for recovery of possession. It is a defense available to a transferee in possession. Litigants cannot convert Section 53A into a sword when they are out of possession.
• Co-heir transfers:
  • Purchasers from co-heirs acquire only the seller’s undivided share and must seek working out of rights in partition. This safeguards bona fide purchasers while preserving other co-heirs’ interests.
• Litigation strategy and drafting:
  • Parties relying on Wills must ensure examination of an attesting witness and be prepared to address potential suspicions. Those relying on pre-conveyance documentation should either obtain a registered sale deed or seek specific performance in time; interim arrangements (GPA/Agreement/Affidavit/Receipt) are inadequate for title.

Complex Concepts Simplified

• Agreement to Sell vs. Sale Deed:
  • An Agreement to Sell is a promise that a sale will occur; it does not transfer ownership. A Sale Deed is the registered instrument that transfers ownership.
• GPA (General Power of Attorney):
  • A document authorizing someone to act on your behalf. It does not, by itself, transfer ownership of property.
• Will:
  • A document stating how a person’s property should be distributed after death. It takes effect only after death and must be proved by examining at least one attesting witness. Registration is optional and does not automatically make it valid.
• Section 53A TPA (Part Performance):
  • A defense available to a buyer in possession under an unregistered contract of sale. It prevents the seller from evicting the buyer, provided the buyer has performed or is willing to perform the contract. It does not give title and cannot be used to sue for possession if the buyer is not already in possession.
• Mesne Profits:
  • Profits or rental value that a person in wrongful possession of property is deemed to have received or might reasonably have received. Claim collapses if title/possession claim fails.
• Class-I Legal Heirs:
  • Immediate heirs under the Hindu Succession Act (e.g., widow, sons, daughters, mother) who inherit when a Hindu dies intestate (without a valid Will).
• Suspicious Circumstances (in Will cases):
  • Facts that cast doubt on the genuineness of the Will (e.g., unnatural exclusion of heirs, beneficiary’s dominance in execution, shaky signatures). The propounder must dispel these.

Practical Takeaways for Stakeholders

• For buyers: Do not treat SA/GPA/Will/Affidavit/Receipt as title. Insist on a registered sale deed. If you purchased from one co-heir, recognize you have only that heir’s share; partition may be necessary.
• For sellers and families: If a Will is intended, ensure compliance with execution and attestation requirements, and maintain medical/independent evidence where capacity may be questioned. Consider explaining reasons for unequal dispositions.
• For litigators: In Will suits, lead an attesting witness to prove execution and attestation; anticipate and rebut suspicious circumstances. For Agreement to Sell cases, if title is disputed, file for specific performance rather than a possession/declaration suit premised on SA/GPA.
• For courts and authorities: Avoid mutating or recognizing title based on SA/GPA/Will bundles. Demand registrable conveyances for title transfers, consistent with Suraj Lamp.

Conclusion

This decision consolidates three settled yet frequently misunderstood propositions in Indian property law. First, the so-called “SA/GPA/Will” route cannot substitute for a registered conveyance under Section 54 TPA; it does not create or transfer title. Second, a Will, even if registered, must be strictly proved through attesting witnesses under Section 68 of the Evidence Act and Section 63 of the Succession Act, with any suspicious circumstances satisfactorily explained. Third, Section 53A’s protection is available only to a transferee in possession and cannot be invoked as a basis to recover possession.

Applying these principles, the Supreme Court dismantled the plaintiff’s claim, restored the property’s devolution to intestate succession among Class-I heirs, and pragmatically preserved the rights of a bona fide purchaser only to the extent of the selling co-heir’s share. The ruling provides vital guidance for transactional hygiene, evidentiary standards in testamentary cases, and the proper scope of equitable defenses in property disputes. It will likely reduce reliance on non-conveyance documentation as purported title and nudge parties toward formal conveyancing and timely recourse to specific performance where appropriate.