Karnataka High Court
Raju vs Vishwanath on 13 December, 2023
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RFA No. 929 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2023
PRESENT R
THE HON'BLE MR JUSTICE SREENIVAS HARISHKUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 929 OF 2017
BETWEEN:
1. RAJU S/O KAPOORCHAND BORANA,
AGE:45 YEARS, OCC:BUSINESS,
R/AT C/O HANUMAN SWEET MART,
NO.3569, SHANIWAR KHOOT,
KAKATIVES, BELGAUM-590002.
2. GHEVARCHAND
S/O MOTIJI BORANA,
AGE:65 YEARS, OCC:BUSINESS,
R/AT: C/O HANUMAN SWEET MART,
NO.3569, SHANIWAR KHOOT,
KAKATIVES, BELGAUM-590002
Digitally signed
...APPELLANTS
by
SHIVAKUMAR
HIREMATH
Date:
(BY SRI. G BALAKRISHNA SHASTRY AND
2024.01.12
15:31:39 +0530 SRI. CHETAN MUNNOLLI, ADVOCATES)
AND:
1. VISHWANATH S/O ISHWARAPPA BALEKUNDRI,
AGED ABOUT 58 YEARS,
OCC:ENGINEERING CONSULTANCY,
R/AT: NO.140/1A, 4TH CROSS,
IST N-BLOCK, RAJAJINAGAR,
BANGALORE-560010.
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RFA No. 929 of 2017
2. MAHADEV S/O. LUMANNA MULIK & MALIK,
AGE:MAJOR, OCC:PENSIONER,
R/AT III CROSS, SHIVAJINAGAR,
BELGAUM-590001
3. SURESH S/O LUMANNA MULIK & MALIK,
AGE:MAJOR, OCC:AGRICULTURE,
R/AT NO.244/98, GULBAG GALLI,
BELGAUM-590001.
4. BABU S/O SOMANNA MULIK & MALIK,
AGE:MAJOR, OCC:BUSINESS,
R/AT NO.2025/2, GANAPAT GALLI,
BELGAUM-590001.
5. SHRI I. KALANJIAM,
AGE: 54 YEARS, OCC: BUSINESS,
R/O: 4TH CROSS, SHIVAJINAGAR,
BELAGAVI.
6. SHRI. I. KUBENDRAM,
AGE: 50 YEARS, OCC: BUSINESS,
R/O: 4TH CROSS, SHIVAJINAGAR,
BELAGAVI.
7. SHRI. I. MUHAGAN,
AGE: 47 YEARS, OCC: BUSINESS,
R/O: 4TH CROSS, SHIVAJINAGAR, BELAGAVI.
...RESPONDENTS
(BY SRI.MRUTHYUNJAY TATA BANGI, ADVOCATE FOR R1;
SRI. RAVI S. BALIKAI, ADVOCATE FOR R6 AND R7;
NOTICE TO R2 AND R4 IS DISPENSED WITH (V/O/DATED:
21/1/2019); NOTICE SERVED TO R3 AND R5)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET
ASIDE THE JUDGEMENT AND DECREE DATED 28/01/2017 IN
OS NO. 396/2005 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE AT BELAGAVI, OS NO. 396/2005 BE
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RFA No. 929 of 2017
DISMISSED AND THIS APPEAL BE ALLOWED WITH COSTS
THROUGHOUT IN THE INTEREST OF JUISTICE.
THIS APPEAL, COMING ON FOR HEARING AND THE
SAME HAVING BEEN HEARD AND RESERVED FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY
RAMACHANDRA D. HUDDAR, J, DELIVERED THE
FOLLOWING:
JUDGMENT
This is a peculiar case wherein the son has made
allegations against his own father arrayed as defendant
No.3 (now deceased) of misusing the power of attorney
executed in his favour by him for executing the sale deed
in respect of suit property in favour of defendant Nos.1
and 2.
2. Being aggrieved by the judgment and decree
passed by the III Addl.Sr.Civil Judge and CJM, Belagavi
in OS No. 396/2005 dated 28.1.2017, defendants have
preferred this appeal.
3. In this appeal, defendant nos. 1 and 2 are the
appellants, and the plaintiff and defendants nos.4 to 6
are the respondents.
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4. For the purpose of convenience, the parties
are referred to as per their rank before the trial Court.
Brief facts for the purpose of disposal of this appeal
are as under:
5. That plaintiff filed a suit against defendants
with a prayer to declare him as absolute owner in
possession of the suit properties by holding that "the sale
deed dated 28.07.2005 purported to have been executed
by defendant no.3 in favour of defendant nos. 1 and 2 in
respect of suit properties is not binding on him and also
for granting consequential relief of permanent injunction
against defendants 1 and 2 from interfering with his
peaceful possession and enjoyment of suit properties and
some other reliefs for which the plaintiff is found
entitled".
6. Plaintiff has described the suit properties in
the schedule appended to the plaint (hereinafter referred
to as `suit properties' for the purpose of convenience).
According to plaintiff, he purchased CTS no.2025/1B/1F
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and 2025/1B/1G from one Smt.Ratnawwa Wife of
Krishna Badakundri under registered sale deed dated
05.10.1995. So also, CTS NO.2025/2 and 2025/1B/1H
were owned by his grandfather by name Gurusiddappa
Shankareppa Balekundri and his grandfather gifted the
properties in his favour bearing CTS No.2025/2,
2025/1B/1H, 2025/3, 2025/4A, 2025/5 part of 2025/4B
and 2025/4C under registered gift deed dated
25.02.1981. Thus, the plaintiff became the owner of the
aforesaid properties.
7. It is the specific case of the plaintiff that the
property bearing CTS No.2025/2 was initially leased in
favour of father of defendant nos.4 and 5 by name
Lumanna Mulik alias Malik. He died leaving behind his
sons i.e. defendant nos.4 and 5. He had a brother by
name Somanna. He also died survived by his son
defendant no.6 Babu. Defendant no.6 claimed to be in
possession of the property as a tenant along with
defendant nos.4 and 5.
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8. It is the further case of the plaintiff that, as
the plaintiff wanted to evict the said tenant from the said
property, he filed an ejectment suit against defendant
nos.4 and 6 in Small Cause Suit No.24/2003 on the file of
the III Addl.Civil Judge(Jr. Dvn.), Belagavi. In the said
suit, defendant nos.4 to 6 were impleaded as necessary
parties. It is the assertion of the plaintiff that he is
working as a Consultant Engineer at Bengaluru. He
wanted to initiate the proceedings against defendant nos.
4 to 6 seeking possession of CTS no.2025/2. Therefore,
he authorized his father defendant no.3 by executing a
"Power of Attorney" to conduct the court proceedings.
Accordingly, in the capacity of power of attorney of the
plaintiff, his father i.e. defendant no.3 filed the small
cause suit against defendant no.6 in small cause suit No.
24/2003. Plaintiff authorized defendant no.3 to conduct
court proceedings only. It is alleged that defendant no.1
and 2 are businessmen running a business in Mahadev
Arcade under the Name and Style of `Hanuman Sweet
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Mart'. They have no right, title or interest in the said
property.
9. It is alleged by the plaintiff that, defendant
no.3 without there being any authority, executed the sale
deed in respect of the suit properties in favour of
defendant nos.1 and 2 for a consideration of
Rs.18,00,000/- on 28.7.2005 styling himself as "Power of
Attorney" holder of the plaintiff. It is alleged that, he
never authorized his father defendant no.3 to sell any of
his properties including the suit properties in favour of
anybody much less, against defendant nos.1 and 2. The
said power of attorney was given to him for specific
purpose of conducting Court proceedings only in respect
of the properties owned by him. Thus, defendant nos.1
and 2 have not acquired any right, title, or interest over
the suit properties. It is alleged that sale deed dated
28.07.2005 stated to have been executed by defendant
no.3 in favour of defendant nos.1 and 2 did not confer
any right, title in their favour. The said sale deed did not
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extinguish the title and interest of the plaintiff over the
suit properties. The Sub-Registrar ought not have
registered the sale deed in favour of defendant nos.1 and
2 executed by defendant no.3. Thus, defendant no.3
misused his power of attorney and executed the sale
deed. The contents of the sale deed dated 28.7.2005 are
incorrect.
10. It is asserted that, it is the plaintiff who is in
actual possession and enjoyment of the suit properties
except CTS NO.2025/2. It is in possession of defendant
nos. 4 to 6. He is in symbolical possession of the said
Property. He never parted with the possession of the
northern portion of the property bearing CTS
Nos.2025/1B/1H, 2025/1B/1G and 2025/1B/1F to
anybody including defendant nos.1 and 2.
11. It is alleged that, based the said sale deed
dated 28.7.2005, these defendants are asserting their
right over the property. There was no passing of any
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consideration in favour of the plaintiff. The plaintiff
resisted the illegal acts of defendant nos.1 and 2. After
strong protest, defendant nos.1 and 2 went away saying
that, they would come after a few days and dispossess
the plaintiff from the suit properties.
12. It is alleged that on 30.11.2005, they tried to
interfere with his possession and enjoyment of the suit
properties. Immediately, he rushed to the Sub-Registrar
Office, Belagavi and made an enquiry. He came to know
of the foul play of defendant no.3 defendant nos.1 and 2.
He applied for the certified copy of the sale deed dated
28.7.2005. He obtained the same and filed the present
suit for the aforesaid reliefs. It is prayed by the plaintiff
to decree the suit.
13. Pursuant to the suit summons, contesting
defendants 1 to 3 appeared. Defendant nos. 1 and 2 filed
the joint written statement and defendant no.3 filed his
independent written statement. During the pendency of
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the suit, defendant no.3 the power of attorney holder of
the plaintiff died.
14. Each and every assertion made by the plaintiff
with regard to the execution of the sale deed based upon
the alleged power of attorney stated to have been
executed by the plaintiff in favour of defendant no.3 is
denied. So far as ownership of suit properties with the
plaintiff by way of sale deed and gift deed, it is admitted
by defendant nos.1 and 2. It is contended that,
defendant no.3 as the power of attorney of plaintiff, has
executed the valid sale deed in favour of defendant nos.1
and 2. By virtue of the sale deed, they have become the
owners of the suit properties. It is further stated that,
the plaintiff has demanded to pay Rs.12,00,000/- in cash
as advance sale consideration. Prior to the said sale
deed, there was agreement of sale in between them.
Accordingly, on 31.3.2003 defendant nos.1 and 2 paid
Rs.12 lakhs towards advance sale consideration and the
plaintiff agreed to sell the suit properties for a sum of Rs.
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32,50,000/-. There was an agreement of sale on
31.3.2003 to that effect. It was the plaintiff who agreed
to the terms and conditions incorporated in the said
agreement of sale. Now the plaintiff cannot contend that
the said sale deed is invalid in the eyes of law and it is
not binding on him.
15. The brother of the plaintiff attested the said
document as a witness. It is admitted that, plaintiff is
resident of Bengaluru and doing consultancy business.
Defendant nos.1 and 2 paid the consideration amount by
raising a loan from various banks and tendered the
amount by way of DD drawn on Daivadnya Sahakara
Bank Niyamit, Belagavi to the power of attorney of the
plaintiff i.e. defendant no.3. The entire sale consideration
of Rs.32,50,000/- was paid and accordingly, defendant
no.3 executed the sale deed in the capacity of power of
attorney of the plaintiff.
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16. The suit in the present form is not at all
maintainable in the eyes of law and the Court has no
jurisdiction to try the suit. Valuations made by the
plaintiff is incorrect.
17. So far as defendant no.3 is concerned, he
admits the contents of the written statement of
defendant Nos.1 and 2 and according to him, in the
capacity of the power of attorney of the plaintiff, he
executed the sale deed in favour of defendant nos.1 and
2. Earlier to that, there was an agreement of sale. It was
dated 31.3.2003. Defendant nos. 1 and 2 paid the entire
consideration amount to the plaintiff. Thus, according to
defendant no.3, he was the power of attorney holder of
the plaintiff authorized to alienate the properties of
plaintiff, therefore in that capacity, he executed the sale
deed in favour of defendant nos.1 and 2 in respect of suit
properties. The alleged incident dt: 30.11.2005 has not
taken place. It is concocted story of the plaintiff to
deprive the defendant nos.1 and 2 to get their rights in
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the suit properties. The baseless allegations have been
made by the plaintiff against defendant nos.1 and 2 and
also on defendant no.3. Thus, it is prayed by defendant
nos. 1 to 3 to dismiss the suit. So far as other defendants
are concerned, they have not filed any written statement.
18. Based upon the rival pleadings of both the
parties, the learned trial Court framed in all 9 issues.
They read as under:
ISSUES
1. Whether plaintiff proves that he had
authorized his father/defendant No.3 only
to conduct the proceedings on his behalf
in respect of his properties?
2. Whether the plaintiff proves that, sale
deed dated 28-7-2005 is not binding him
and that, he is the absolute owner of suit
properties?
3. Whether plaintiff proves his lawful
possession over the suit properties as on
the date of suit?
4. Whether the plaintiff proves the alleged
interference of defendants?
5. Whether defendants prove that, plaintiff
entered into agreement of sale on
31.03.2003 for sale of suit property for
Rs.32,50,000/- and received
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Rs.12,00,000/- as advance sale
consideration?
6. Whether the defendant No.1 and 2 prove
that, on the instructions of the plaintiff,
defendant No.3 executed the registered
sale deed after receiving balance
consideration of Rs.18,00,000/- through
D.D. and Rs.2,50,000/- in cash?
7. Whether defendants prove that, C.F. paid
is insufficient and suit is not properly
valued?
8. Whether the plaintiff is entitled for
decree?
9. What decree or order?
19. Before the learned trial Court, to substantiate
the case of the plaintiff, plaintiff himself entered into the
witness box as PW.1. He got marked Ex.P1 to P50 and
closed plaintiff's evidence.
20. To rebut the evidence of the plaintiff, one Raju
S/o. Kapoorchand Borana i.e. defendant no.1 entered the
witness box as DW.1. On behalf of defendants 1 and 2,
Ex.D1 to D34 were marked.
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21. On closure of the evidence of both the side, on
hearing the arguments and on perusal of the oral and
documentary evidence, the learned trial Court answered
issue Nos. 1 to 5 and issue no.8 in the affirmative and
issue nos. 6 and 7 in the negative and ultimately decreed
the suit as prayed for. It is this judgment and decree that
has been challenged before this Court by preferring this
appeal by defendant nos. 1 and 2.
22. The learned counsel for the appellants Sri
G.Balakrishna Shastry with all vehemence submits before
the Court that, defendant no.3 was the power of attorney
holder of the plaintiff-his own father and in that capacity,
he sold the suit properties in favour of defendant nos. 1
and 2. The vesting of ownership of the suit properties
with the plaintiff prior to execution of the sale deed is
admitted. It is contended that, the trial Court without
considering the sale deed dated 28.7.2005 as a valid
document, has wrongly decreed the suit believing the
version of the plaintiff. The trial Court has committed
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grave error and failed to note that there was a valid sale
deed dated 28.7.2005 after receiving the balance sale
consideration on the instructions of the plaintiff to
defendant no.3. It was the plaintiff who authorized
defendant no.3 to execute the sale deed. In that
capacity, he executed the sale deed on 28.7.2005. On
that day, plaintiff received the balance sale consideration
amount of Rs.20,50,000/- of which, Rs.18,00,000/- by
way of DD and balance Rs.2,50,000/- by way of cash
through his father i.e. defendant no.3, - General Power of
Attorney.
23. It is further submitted that, there was an
Execution Case No.627/2008 filed by the plaintiff for
execution of decree passed in OS No.96/2008 on the file
of Prl.Civil Judge (Jr.Dvn.), Belagavi seeking possession
of the suit properties in the occupation of the tenants. In
that, the appellants filed an application by invoking the
provisions of Order XXI Rule 99 of CPC for restoration of
possession. There the evidence of plaintiff was recorded.
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24. In the said evidence, the plaintiff (PW.1) has
admitted that his father has received the balance sale
consideration amount. He has denied about the fact of
execution of the sale deed.
25. Thus, it is submitted by the counsel for the
appellants that, when the plaintiff has not disputed about
receipt of balance sale consideration amount, now he has
no voice to say that he has not authorized defendant
no.3, his own father, to execute the sale deed in favour
of defendant nos. 1 and 2. Ex.P5 - certified copy of the
sale deed is produced by the plaintiff himself. Plaintiff did
not cancel the sale agreement as per Ex.D4. The
conducts of the plaintiff do establish that, he is not an
honest person. He wanted to extract more money by
filing the suit. So far as other Civil Proceedings between
the plaintiff and others is concerned, it is admitted. The
main contention of the appellants is that, in view of the
execution of sale deed by defendant no.3, these
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defendant nos. 1 and 2 have become the owners of the
suit properties. Therefore, the plaintiff can not maintain
the suit. It is submitted that the learned trial Court has
committed a grave error in decreeing the suit of the
plaintiff as prayed for. Defendant nos. 4 to 6 surrendered
the actual possession in favour of defendant nos. 1 and 2
by executing the surrender deed dated 30.3.2008 vide
Ex.D34 as per the Surrender Deed. It is defendant nos. 1
and 2 who are in possession of the suit properties by
virtue of said surrender deed. The very prayer made by
the plaintiff is incorrect. The trial Court has erroneously
held that defendant nos. 1 and 2 have failed to prove
that defendant no.3 has executed the sale deed on
receipt of Rs.18,00,000/- by way of DD and
Rs.2,50,000/- by way of cash. As a grave error has been
committed by the trial Court, amongst other grounds
stated in the appeal memo, the learned counsel submits
that the appeal filed by defendant nos. 1 and 2 deserves
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to be allowed and suit of the plaintiff is liable to be
dismissed.
26. In support of his submission, he relied upon
the pleadings, oral and documentary evidence produced
by both side and also provisions of Indian Contract Act,
1872 and following judgments:
1. R. L. PINTO AND ANOTHER V.P.F
- AIR 2001 KAR 141
2. CLIFFORD GEORGE PINTO V.
M.R.SHENAVA AND OTHERS -
AIR 2005 KAR 167
27. As against this submission, the learned
counsel for the respondents Sri Mruthyunjay Tata Bangi,
Advocate for R1 and Sri. Ravi S. Balikai, Advocate for R6
and R7 advanced their respective arguments.
28. The counsel for the respondent no.1 has
submitted that, the trial Court has rightly decreed the
suit of the plaintiff. It is submitted that, as there was no
power given to defendant no.3 to alienate the suit
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properties, but even then, Defendant no.3 executed the
sale deed without any power. It is submitted by the
counsel for the respondent no.1 that, the learned trial
court has given sound reasons to decree the suit of the
plaintiff. It is submitted that, plaintiff never empowered
his own father to execute the sale deed. The power of
attorney executed for the limited purpose of conducting
the court proceedings in respect of properties owned by
him. In that capacity, with limited power defendant no.3
initiated the court proceedings. There was no permission
or power given to defendant no.3 to execute the sale
deed. It is submitted that, the learned trial court has
considered the evidence placed on record both oral and
documentary threadbare and has rightly come to the
conclusion that defendant no.3 has misused the power
vested in him to conduct the court proceedings and has
executed the sale deed exceeding his powers. In support
of his submission, he too relied upon the evidence placed
on record, the oral and documentary and relied upon the
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judgment rendered by the Hon'ble Supreme Court in
Mrs. Umadevi Nambiar v. Thamarasseri Roman
Catholic Diocese rep. by its Procurator Devssia's
son Rev. Father Joseph Kappil1.
29. It is submitted by learned counsel Shri. Ravi
Balikai for other respondents that the trial court has
committed illegality in passing a decree.
30. We have given our anxious consideration to
the arguments of both side advocates and meticulously
perused the records. The points that would arise for our
consideration are as under:
1. Whether the finding of the trial
Court that defendant no.3 was not
empowered to execute the sale deed
in favour of defendant nos.1 and 2 is
incorrect?
2. If so, whether, the judgment and
decree passed by the trial Court
requires interference by this Court?
2022 Live Law (SC) 338
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3. What order?
31. Before adverting to the other aspects of the
case, let us analyze the events that have taken place in
this case. So far relationship between the plaintiff and
defendant no.3 is concerned, it is admitted. Plaintiff is the
son of defendant no.3.
32. As per the case of the plaintiff, he executed a
general power of attorney as per Ex.P41. A certified copy
of it is produced at Ex.P15 dated 03.05.1997. As a power
of attorney of plaintiff, it was defendant no.3 who filed
the suit in OS No.256/1997 against Lumanna Malik and
Babu S/o. Somanna Malik for permanent injunction
restraining the defendants from putting up any
construction or causing damage or removing him from
the suit property. To that effect, the plaintiff has
produced Ex.P16 the certified copy of the judgment
passed in OS NO.256/1997 dated 4.12.2006 by the IV
Addl.Civil Judge (Jr.Dvn.)JMFC, Belagavi. Also defendant
no.3 filed Small Causes Suit No.24/2003 against
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defendant nos. 4 to 6 for eviction from of CTS
NO.2025/2. It is stated by the plaintiff that, he had
instructed his father defendant no.3 to file the said suit.
It is a fact that, plaintiff sold CTS No.2025/1-B/1-F,
2025/1-B/1-G, 2025/1-D/1-F, 2025/4-B and 2025/4-C to
one Ayyathurai Subbaihnavar through power of attorney
holder Zia Jafar Sajan. The said sale deed is dated
07.08.2003. On the same day, the plaintiff independently
sold CTS Nos. 2025/4-A, 2025/3 and 2025/2 situated at
Ganapat Galli, Belagavi to him during the subsistence of
Power of Attorney in favour of defendant No.3. As per
Ex.D4 the plaintiff executed agreement of sale on
31.3.2003 in favour of defendant no. 2 and father of
defendant no.1 agreed to purchase the suit properties for
sale consideration of Rs.32,50,000/-. Plaintiff received
Rs.12,00,000/- advance sale consideration. He also
agreed to evict defendant nos. 4 and 5, the tenants from
the portion of the suit property and hand over the actual
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physical possession at the time of execution of the sale
deed within seven months.
33. It is the allegation of the defendants No.1 and
2 that, they have paid balance consideration of
Rs.18,00,000/- through Demand Draft and cash of
Rs.2,50,000/- to defendant No.3.
34. It is a fact stated by appellants-defendant nos.
1 and 2 that, defendant no.3, on 28.7.2005, executed the
sale deed in respect of suit property as a "Power of
Attorney" holder of the plaintiff. The said document is
marked at Ex.P5. Through his father, he filed a suit in
OS No.96/2008. The plaintiff obtained the decree in the
said suit against defendant nos. 4 to 6. He also filed
Execution Petition No. 627/2008 as per Ex.P19. Plaintiff
filed application as Exp.20 for breaking open the lock and
pulling him in possession of suit property As per Ex.P23,
the Court bailiff handed over the possession of CTS No.
2025 to the plaintiff by breaking open the lock. Plaintiff
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leased the suit property to one Kubendran
S/o.S.Iyyadurai Nadar who purchased the southern
portion as per Ex.P6. Defendant nos. 1 and 2 also filed
application in Execution Petition by invoking the provision
of Order XXI Rule, 99 and 100 of CPC on 6.12.2008
seeking delivery of actual possession of the suit property
as per Ex.P25. To that, plaintiff filed objections as per
Ex.P26. Defendant no.3 died during the pendency of the
suit and the death extract is produced as per Ex.P8.
These are all the events that have taken place in respect
of the properties.
35. To decide this appeal, keeping in mind the
aforesaid factual events, we have to assess oral and
documentary evidence. As this is the first appellate Court,
it is the duty of the first appellate Court to re-appreciate
the facts as the last fact finding Court.
36. PW.1 is none other than the plaintiff in this
case. He has reiterated the plaint averments in his
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evidence on oath. He has been intensively cross-
examined by the counsel for the defendant nos. 1 and 2.
So far execution of the agreement of sale in favour of
defendant nos.1 and 2 on 31.3.2003 is concerned,
plaintiff PW.1 admits in the cross-examination dated
05.01.2016. He admits that, he agreed to sell suit
properties for a consideration of Rs.32,50,000/-. He also
admits that, he received Rs.12,00,000/- as balance
consideration amount from one Borana. He admits that,
there is an endorsement for receipt of Rs.12,00,000/-.He
admits that defendant nos. 4 to 6 were tenants under
him and they used to pay rent at the rate of Rs.20/- per
month. He admits that, after eviction of defendant nos.4
to 6 from the suit properties, it was agreed by him to
hand over the possession of the said tenanted properties
to defendant nos. 1 and 2. It is suggested to him that,
defendant nos. 4 to 6 were not evicted from the schedule
properties in which they were tenants. It is further stated
by PW.1 that, he asked his father to get the sale deed
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cancelled. So far as proceedings in EP No.627/2008 is
concerned, PW.1 admits that, there is no prayer for
cancellation of the agreement of sale before the
Executing Court by him. He deposes ignorance of the
receipt of Rs.18,00,000/- by way of DD so also receipt of
Rs.2,50,000/- by cash. He gave a guessing answer
stating that, his father might have executed the sale
deed as his power of attorney in favour of defendant
nos.1 and 2. He admits that he had not paid tax in
respect of the suit properties to the Corporation from
2005. Though intensive cross-examination is directed to
PW.1, he is consistent that, without any power, his father
executed sale deed in favour of defendant nos.1 and 2
which is illegal according to him.
37. So far as documentary evidence produced by
the plaintiff, he has produced CTS extract from Ex.P1 to
P4 in respect of the suit properties in which what we find
is, initially the name of the plaintiff was appearing and
thereafter the name of defendant nos. 1 and 2 were
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entered. Ex.P5 is the sale deed which is challenged in the
suit.
38. On scrupulous reading of this Ex.P5 the
certified copy of the sale deed, it shows that, defendant
no.3 Ishwarappa S/o. Gurusiddappa Balekundri sold the
property on behalf of the plaintiff Vishwanath as his
"Power of Attorney". But, this certified copy of the sale
deed is not accompanied by the copy of the power of
attorney which is mandatory under the provisions of The
Registration Act, 1908 with regard to registration of the
document before the Sub-Registrar. To show that there
was an agreement of lease dated 5.12.2008 executed by
plaintiff in favour of tenants by name Kubendran Nadar, it
is produced at Ex.P6. To show that, in the tenanted
property, a cloth shop was being run, photographs were
also produced but, they were not marked. Ex.P7 is the
decree passed in OS NO.96/2008 filed by the plaintiff
through his power of attorney against tenants Mahadeva,
Suresha, Babu. In the said suit, defendants remained
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exparte and the suit was decreed as prayed for. Ex.P8 is
the death extract of defendant No.3 Ishwarappa who died
on 3.9.2014 during the pendency of the suit. Ex.P9 is
another gift deed in Marathi Language and the translation
of which is produced at Ex.P9(a). It was executed by
power of attorney of plaintiff i.e. defendant no.3. Ex.P.10
is another sale deed in favour of the plaintiff executed by
Ratnawwa in respect of the properties stated supra.
Ex.P11 is the agreement of lease. Ex.P12 is the certified
copy of plaint in OS NO.256/1997 which shows that it
was plaintiff's father i.e., defendant no.3 who filed that
suit as a power of attorney against Lumanna Malik and
Babu S/o.Somanna Malik for eviction. In that, Ex.P13
written statement was filed by defendant nos. 1 and 2.
Ex.P15 is the power of attorney set up by defendant
nos.1 and 2.
39. On scrupulous reading of the contents of this
power of attorney, we find that there is no clause
empowering defendant no.3 to execute the sale deed in
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favour of anybody much less, in favour of defendant
nos.1 and 2. The learned counsel for the
appellants/defendant nos. 1 and 2 relied upon the said
power of attorney stating that, these is a general clause
mentioned in the power of attorney which empowered
defendant no.3 to execute the sale deed. The clauses in
the Power of Attorney reads as under:
CLAUSES MENTIONED UNDER
GENERAL POWER OF ATTORNEY
(EX.P.15)
1. To look after the day-to-day
affairs of my property about it's
repairs, maintenance, collect on of
rents, payment of taxes and other
dues on my behalf.
2. To appear and act either
personally or through an agent in
all courts, civil, Revenue, Criminal
and before all authorities,
tribunals and offices of the
Government including semi-
government bodies, Tax
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authorities, local authorities and
individuals including arbitrators
and Tribunals of all kinds.
3. To sign, verify the plaints, written
statements, claims and objections
and memorandum of all kinds and
to present them in courts.
4. To appoint advocates or other
practitioners, agents, attorneys to
appear and act in the courts
including tribunals and other
authorities in connection with my
above said property and to sign
the vakalathnama and to swear to
all affidavits.
5. To compromise, compound or
withdraw the cases in respect of
my said property on my behalf.
6. To file applications, to file and
receive back the documents, to
deposit and withdraw money, to
obtain refund of stamp duty or
court fee in and from courts of any
offices.
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7. To file applications, obtain any
interim order, and to file execution
petitions and to sign and verify
applications, if any, in any courts
or offices.
8. To receive any money due to me
in the decree and to apply for
inspection of documents and
inspect the documents and
records.
9. To produce or summons or to
receive back any documents.
10. To appear before all courts or
offices and to give evidence in my
name and on my behalf.
11. To prefer any appeal/appeals
against the judgment and decree
relating to my above said property
to engage advocates for that
purpose on behalf.
12. To appear or lodge any complaint
before the police.
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Generally, to do, execute and perform
all and agree act, matter and thing
whatsoever in any way necessary or
expedient to be done in respect of my
above said property.
40. The general clause, states that "the power of
attorney can execute and perform all and every act,
matter and thing whatsoever in any manner necessary
and expedient to be done in respect of the suit property".
So this does not mean that defendant no.3 was really
empowered to execute the sale deed. In all, there are 12
clauses in Ex.P15. Even the plaintiff is not disputing the
contents of Ex.P15. His only grievance is that he had not
empowered his father to execute the sale deed.
41. Ex.P16 is the judgment passed in OS
No.256/1997 wherein the suit was decreed for eviction.
Voluminous documents are produced by the plaintiff to
show the proceedings initiated by his father as his PA
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holder in OS No. 256/1997, the copy of the plaint, order
sheet, as well as Execution Petition No. 627/2008.
42. Even the Judgment passed in OS No.96/2008
passed by the Civil Judge (Jr. Division) was challenged
before the appellate Court in RA No.248/2008 which was
dismissed by the appellate Court. The certified copy of
the same is produced as per Ex.P30. The other
documents are also produced by the plaintiff to show that
several proceedings have taken place between the
plaintiff and other defendants, JDRs, etc.,
43. So far as oral evidence of defendant nos. 1
and 2 is concerned, defendant no.1 has come before the
trial Court and deposed in line with the contents of
written statement. So many suggestions are directed to
DW.1, but he has denied all the suggestions. The only
consistent defence of defendant nos. 1 and 2 is that, it
was defendant no.3 being the power of attorney of the
plaintiff executed the sale deed. It is a valid sale deed.
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Filing of the criminal complaint against plaintiff has also
been spoken to by DW.1 in his evidence on oath. It is
their case that, entire sale consideration of
Rs.32,50,000/- was paid and therefore, they became the
owners of the suit properties by virtue of the sale deed
which is impugned in the suit. Though lengthy cross-
examination is directed, they remained consistent in their
evidence to state that by virtue of the sale deed, they
became the owners of the said suit properties.
44. Amongst the documents produced by the
defendants, Ex.D4 is agreement of sale executed by
plaintiff independently. This agreement of sale Ex.D4 was
not executed by the power of attorney of the plaintiff. It
is an admitted document between both the parties. So far
as power of attorney is concerned, this power of attorney
is marked at Ex.P15. It is dated 3.5.1997, whereas, the
agreement of sale was entered into by the plaintiff with
defendant 1 and 2 on 31.3.2003. That means, Ex.D4
agreement of sale came into existence subsequent to
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power of attorney executed by the plaintiff in favour of
defendant no.3. If really the plaintiff had authorized his
father to execute the sale deed to alienate his properties,
he would have asked his father to execute the agreement
of sale. But, Ex.D4 was independently executed by
plaintiff in favour of defendant nos. 1 and 2. So, the
conduct of the plaintiff shows that, he never authorized
defendant no.3, his father to execute sale deed in favour
of anybody much less, in favour of defendant nos.1 and
2. Therefore, he independently executed the agreement
of sale Ex.D4 in their favour.
45. The contents of Ex.D4 show that, within 7
months, defendant nos.1 and 2 had to pay the balance
consideration amount and get the sale deed executed. In
case of failure, the advance sale consideration amount
paid to the extent of Rs.12 lakh would be forfeited.
46. Evidently, defendant nos. 1 and 2 have not
taken any steps to get the sale deed executed in their
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favour from plaintiff independently. Several proceedings
were initiated. When plaintiff independently executed the
agreement of sale Ex.D4 in favour of defendant nos.1 and
2, what made defendants nos. 1 and 2 to get the sale
deed directly from defendant no.3 is not explained by
defendants No. 1 and 2. They would have directly
contacted the plaintiff to execute the sale deed. No
doubt, in this case defendant no.3 has filed written
statement admitting the claim of defendant nos. 1 and 2.
He has not supported his own son. But, he died during
the pendency of the suit. Merely because he denied the
case of the plaintiff, that does not mean that his version
is to be accepted. So first of all, as stated supra, power of
attorney marked in this case stated to have been
executed by the plaintiff in favour of defendant no.3 did
not empower defendant no.3 to execute the sale deed.
47. So far as receipt of advance sale consideration
amount is concerned, plaintiff admits. But though
defendant no.3 knew that, he was not empowered to
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execute the sale deed and only he was permitted to
initiate the court proceedings in respect of the properties
owned by the plaintiff, exceeding his power he executed
sale deed by receiving the sale consideration amount. It
is not the case of the plaintiff that, he had received the
entire consideration amount stated in the agreement of
sale. He disputes the same. He deposed ignorance of
payment of the same through DD or by cash. Thus, the
burden is on the defendant nos. 1 and 2 to prove that
they paid the said sale consideration amount. Defendant
No.3 is no more to prove the receipt of balance
consideration alleged to have been paid by defendant
nos.1 and 2. Pleadings in written statement of defendant
no.3 have remained without any proof. So the factual
evidence spoken to by DW.1 cannot be accepted with
regard to the payment of the entire consideration amount
in favour of plaintiff through defendant no.3. The very
getting the execution of sale deed in their favour by the
power of attorney who is not empowered attracts the
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provisions of Indian Contract Act, 1872 as well as the
Power of Attorney Act, 1882.
48. Now we have to read the provisions of Indian
Contract Act, 1872 as well as the provisions of Power of
Attorney Act, 1882.
49. No doubt, it is argued by the counsel for the
appellants-defendant nos. 1 and 2 that, in view of the law
laid down by this Court relating to the provisions of
Indian Contract Act, 1872, in ruling No.1 stated supra,
when the sale deed was executed by third defendant in
favour of defendant nos. 1 and 2, unless it is proved by
the plaintiff that it is a forged document, it cannot be
declared as null and void. In this case, execution of
power of attorney is admitted but there is no power or
authorization given by the plaintiff to execute the sale
deed. It is argued that the conduct of the plaintiff in
ratification of the said sale deed amounts to his consent
of executing the sale deed. The ratio laid down in the said
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judgment cannot be justifiably made applicable to the
present facts of the case.
50. On the other hand, learned counsel for the
plaintiff relied upon the judgment of Supreme Court of
India in the case of MRS. UMADEVI NAMBIAR CASE2
It is laid down that "the power of attorney as an agent of
the principal and when there is unauthorized sale made
by the agent, it will not tantamount to principal parting
with the possession. The said principle laid down reads as
under:
"14. The reasoning given by the High Court
for holding that the appellant ought to have
challenged the alienations, is that the
appellant was out of possession. Here again,
the High Court failed to appreciate that the
possession of an agent under a deed of Power
of Attorney is also the possession of the
Principal and that any unauthorized sale made
by the agent will not tentamount to the
Principal parting with possession."
51. The provisions of the Power of Attorney Act,
1882 defines power of attorney as on. "Instruments
Supra note 1
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empowering a specified person to act for and in the name
of the person executing it".
52. Basically a person gives another person a legal
right to present himself as his representative to perform
specific tasks on his behalf. This instrument is commonly
used by non-resident Indians (NRIs) as it may not be
possible for the NRIs to visit to the country of origin at
the given time because of his/her business or personal
work.
53. Owing to convenience, a 'Power of Attorney' is
handy for extremely busy people, such as businessmen
and people who cannot perform various personal and
professional tasks.
54. There are two types of power of attorney i.e.
one is General Power of Attorney (GPA). It confers power
on the agent to perform routine tasks on behalf of the
principal Special Power of Attorney (SPA) that gives an
agent the power to perform specific tasks. While GPA
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grants broad powers to a representative, a SPA talks
about a specific act that the representative can carry out,
on behalf of the principal. If you grant someone a GPA,
they can pay your utility bills, collect rents on your
behalf, manage and settle disputes, or carry out all bank
related work, while acting as your representative.
55. On the other hand, if an NRI has to sell his
property in a village, they would get it done through an
agent here by way of an SPA.
56. With regard to validity and empowerment of
power of attorneys to sell the property, the Hon'ble
Supreme Court in Suraj Lamp & Industries Private
Limited (2) Through director. v. State of Haryana
and Another3, has laid down the law as under:
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
(2012) 1 SCC 656
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attorney is creation of an agency
whereby the grantor authorises 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 (Section 1-
A and Section 2, 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 Nahata this court held : (SCC
pp. 90 and 101 paras 13 and 52)
"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
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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.
* *
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
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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."
57. The aforesaid judgment of the Hon'ble Apex
Court is of a three-Judge Bench which after interpreting
various provisions of the law concerning property sales,
held that sale of immovable property through sale
agreement, will, general power of attorney is not valid.
The Hon'ble Supreme Court as stated supra has held
that, these type of transactions are not transfers or sales
and such transactions cannot be treated as completed
transfers or conveyances. However, the Bench said that
the judgment will not affect genuine transactions under
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the general power of attorney. To avoid such
transactions, Bench asked the States to reduce the stamp
duty to encourage the registration of sale deeds.
58. In this case, defendant no.3 being the father
of plaintiff was just empowered to deal with the property
and there is no power given under the GPA to alienate or
create sale of the properties owned by the plaintiff. No
doubt, the seller of the immovable properties in these
indirect sales after receiving agreed consideration,
delivers the possession of the said property and executes
some or all of the documents like irrevocable GPA, the
SPA etc., But when there is no clause permitting the
defendant no.3 to sell the suit properties, the very sale
deed by defendant no.3 in favour of defendant nos. 1 and
2 cannot be termed as valid in view of the law laid down
in Suraj Lamp Industries case by the Hon'ble Apex
Court.
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59. So far as sale is concerned, Section 5 of the
Transfer of Property Act, 1882 defines `Transfer of
Property'. It reads 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] and one or more other living
persons; and "to transfer property" is to
perform such act.
[In this section " living person" includes a
company or association or body of
individuals, whether incorporated or not,
but nothing herein contained shall affect
any law for the time being in force relating
to transfer of property to or by companies,
associations or bodies of individuals.]
60. Section 54 of the Transfer of Property Act,
1872 defines `Sales' as `Sale' is a transfer of ownership
in exchange of price paid or promised or part-paid and
part promised. Such transfer in the case of tangible
immovable property of the value of Rs.100/- or upwards
or in the case of reversion or other intangible thing, can
be made only by registered instrument.
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61. In this appeal, a long deal of argument has
been advanced before us by the defendants alleging that
defendant no.3 was really empowered to execute the sale
deed etc, But, in view of strict provisions of Power of
Attorney Act, 1882 defendant no.3 was not at all
empowered to execute any sale deed in the manner
stated by him.
62. Further, in a recent judgment of Hon'ble
Supreme Court in the case of Ghanashyam vs.
Yogendra Rathi4, while dealing with the case with
regard to agreement of sale, it is observed as under:
14. In connection with the general
power of attorney and the will so
executed, the practice, if any, prevalent
in any State or the High Court
recognizing these documents to be
documents of title or documents
conferring right in any immovable
property is in violation of the statutory
law. Any such practice or tradition
prevalent would not override the specific
provisions of law which require execution
of a document of title or transfer and its
2023 Livelaw (SC) 479
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registration so as to confer right and title
in an immovable property of over
Rs.100/- in value. The decisions of the
Delhi High Court in the case of Veer Bala
Gulati Vs. Municipal Corporation of Delhi
and Anr. following the earlier decision of
the Delhi High Court itself in the case of
Asha M. Jain Vs. Canara Bank and Ors.
holding that the agreement to sell with
payment of full consideration and
possession along with irrevocable poser
of attorney and other ancillary documents
is a transaction to sell even though there
may not be a sale deed, are of no help of
the plaintiff-respondent inasmuch as the
view taken by the Delhi High Court is not
in consonance with the legal position
which emanates from the plain reading of
Section 54 of the Transfer of Property
Act, 1882. In this regard, reference may
be had to two other decisions of the Delhi
High Court in lmtiaz Ali Vs. Nasim Ahmed
and G. Ram Vs. Delhi Development
Authority which inter-alia observe that an
agreement to sell or the power of
attorney are not documents of transfer
and as such the right title and interest of
an immovable property do not stand
transferred by mere execution of the
same unless any documents as
contemplated under Section 54 of the
Transfer of Property Act,1882, is
executed and is got registered under
Section 17 of the Indian Registration Act,
1908. The decision of the Supreme Court
in Suraj Lamp & Industries Pvt. Ltd. Vs.
State of Haryana & Anr (2009)7SCC 363.
also deprecates the transfer of
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immovable property through sale
agreement, general power of attorney
and will instead of registered conveyance
deed."
63. Learned counsel for the respondent-plaintiff
submits that when there is no power given to defendant
no.3 to alienate the suit property, this transfer by
ostensible owner is not a sale in favour of defendant nos.
1 and 2. Therefore, the counsel for the plaintiffs relied
upon the provisions of Section 41 of Transfer of Property
Act. It reads as under:
41. Transfer by ostensible owner-Where,
with the consent, express or implied, of the
persons interested in immovable property, a
person is the ostensible owner of such
property and transfers the same for
consideration, the transfer shall not be
voidable on the ground that the transferor
was not authorized to make it: provided that
the transferee, after taking reasonable care to
ascertain that the transferor had power to
make the transfer, has acted in good faith.
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64. The Hon'ble Supreme Court has also given a
legal maxim Nemo dat quod non habet - No one can
confer a better title than what he himself has in the case
of MRS. UMADEVI NAMBIAR5 in para-17 to 19 of the
said judgment, it is held that:
17. We do not know how the ratio laid
down in the aforesaid decisions could be
applied to the advantage of the respondent. As
a matter of plain and simple fact, Exhibit A1,
deed of Power of Attorney did not contain a
clause authorizing the agent to sell the
property though it contained two express
provisions, one for leasing out the property
and another for executing necessary
documents if a security had to be offered for
any borrowal made by the agent. Therefore, by
convoluted logic, punctuation marks cannot be
made to convey a power of sale. Even the very
decision relied upon by the learned counsel for
the respondent, makes it clear that ordinarily a
Power of Attorney is to be construed strictly by
the Court. Neither Ramanatha Aiyar's Law
Lexicon nor Section 49 of the Registration Act
can amplify or magnify the clauses contained
in the deed of Power of Attorney.
18. As held by this Court in Church of
Christ Charitable Trust and Educational
Charitable Society vs. Ponniamman Educational
Trust, (2012) 8 SCC 706 the document should
expressly authorize the agent, (i) to execute a
Supra note 1
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sale deed; (ii) to present it for registration;
and (iii) to admit execution before the
Registering Authority.
19. It is a fundamental principle of the
law of transfer of property that "no one can
confer a better title than what he himself has"
(Nemo dat quod non habet). The appellant's
sister did not have the power to sell the
property to the vendors of the respondent.
Therefore, the vendors of the respondent could
not have derived any valid title to the property.
If the vendors of the respondent themselves
did not have any title, they had nothing to
convey to the respondent, except perhaps the
litigation.
65. Thus, if this position of law is applied to the
present facts of the case, there was no power at all given
to defendant no.3 to sell the suit properties in favour of
defendant nos. 1 and 2. Even the procedure of
registration is also not properly followed. Under the
provisions of The Registration Act, 1908 and Rules
Section 34 (3)(a), (b), (c) and Sec.32(a) a duty is cast on
the Sub-Registrar (Registering Officer). This Section
34(3)(a) enjoins upon the Registering Officer to enquire
whether or not such a document was executed by
persons by whom it purports to have been executed.
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Section 34(3)(b) further makes it duty to satisfy himself
as to identify the persons appearing before him and
alleging that they have executed the document.
66. That means it is to be read along with Section
32(a). The duty of Registering Officer extends only to
enquire and find that such person is a person who has
executed document and be satisfied about identity of the
person.
67. There is no mention either in the sale deed or
in any other document to show that the provisions of the
Registration Act have been followed by defendant no.3.
Therefore, if all these factual features coupled with
position of law are read together, plaintiff is right in
claiming the relief of declaration that, there is no power
given to defendant no.3 to alienate the property and
beyond his powers, defendant no.3 has acted and sold
the property to defendant nos. 1 and 2.
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68. The learned trial Court, after assessing the
evidence placed on record by both the side, has rightly
come to the conclusion that, there is no power vested
with defendant no.3 to sell the properties to defendant
nos. 1 and 2 and he has acted beyond his powers.
69. At the cost of repetition, it can be stated that,
when defendant nos. 1's father and defendant no.2
entered into agreement directly with the plaintiff and
there was an agreement of sale to that effect, what
prevented the defendants from getting the sale deed
directly executed from the plaintiff is a mystery. There is
no explanation to that effect either in their pleadings or in
their evidence. If that is so, probably to deprive the
plaintiff of his legitimate share in the suit properties,
defendant Nos. 1 and 2 must have ventured to get the
sale deed from defendant no.3. The very conduct of
defendant no.3 has to be taken into consideration that he
filed a consenting written statement in favour of
defendant nos. 1 and 2 and he is no more now to speak
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the real truth before the Court. Therefore, the learned
trial court has evaluated the evidence in proper
perspective and has rightly come to the conclusion to
decree the suit in favour of plaintiff.
70. We do not find any factual or legal error being
committed by the trial Court in decreeing the suit of the
plaintiff. Therefore, the points raised supra have to be
answered in favour of the plaintiffs and against the
defendant nos. 1 and 2. Consequentially, the appeal filed
by the defendants 1 and 2 is liable to be dismissed.
Judgment and Decree passed by the trial Court is
required to be confirmed and now the following:
ORDER
(i) The appeal filed by defendants-appellants is
dismissed.
(ii) Judgment and decree passed in OS No.
396/2005 is confirmed with costs
throughout.
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(iii) Send back the Trial Court records along with
copies of this judgment forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
SK/-
