Karnataka High Court
Sri Channegowda vs Sri N S Vishwanath on 8 December, 2023
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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RSA No. 193 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.193 OF 2011 (DEC)
BETWEEN:
1. SRI. CHANNEGOWDA
S/O KEMPAIAH,
AGED ABOUT 34 YEARS,
R/AT NO.2/A, 3RD BLOCK,
8TH CROSS, 7TH 'A' MAIN ROAD,
NANDINI BADAVANE,
BANGALORE - 560 096.
2. SRI GANGADHARA MURTHY,
S/O KEMPAIAH,
AGED ABOUT 39 YEARS,
R/AT NO.2/A, 3RD BLOCK,
8TH CROSS, 7TH 'A' MAIN ROAD,
NANDINI BADAVANE,
BANGALORE - 560 096. ...APPELLANTS
(BY SRI. S.BASAVARAJU., SENIOR ADVOCATE FOR
Digitally signed by SRI.L.SRINIVASA BABU., ADVOCATE)
THEJASKUMAR N
Location: HIGH
COURT OF AND:
KARNATAKA
1. SRI N.S.VISHWANATH
S/O S.SUNDARARAJ,
AGED ABOUT 51 YEARS,
R/AT 200, 2ND MAIN ROAD,
INDUSTRIAL TOWN, RAJAJINAGAR,
BANGALORE - 560 004.
2. SMT.G.RAMAMANI
W/O S.KUMAR,
AGED ABOUT 45 YEARS,
R/AT NO.49, HOUSING BOARD,
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RSA No. 193 of 2011
ASTAGRAMA BADAVANE,
BANGALORE - 560 079.
3. SMT.MUNIYAMMA,
W/O LATE KRISHNAPPA,
SINCE DECEASED :
R4(a) TO R4(d) ARE TREATED
AS LRs OF DECEASED R3.
4. SRI VENKATESH
S/O LATE KRISHNAPPA,
SINCE DECEASED BY LRs.
4(a) SMT.JAYAMMA
W/O LATE VENKATESH,
AGED ABOUT 48 YEARS.
4(b) MISS LAKSHMAMMA
D/O LATE VENKATESH,
AGED ABOUT 25 YEARS.
4(c) MISS REKHA
D/O LATE VENKATESH,
AGED ABOUT 23 YEARS.
4(d) SRI CHANDRASHEKAR
S/O LATE VENKATESH,
AGED ABOUT 20 YEARS,
R4(a) TO R4(d) ALL ARE
R/AT GURUVE BOVI PALYA,
BYCHAGUPPE, TAVARAKERE HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE DISTRICT.
5. SRI NARAYANA
S/O LATE KRISHNAPPA,
SINCE DECEASED :
R4(a) TO R4(d) ARE
TREATED AS THE LRs OF DECEASED R5
VIDE ORDER DATED:12.07.2013.
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RSA No. 193 of 2011
6. SRI K.RAMESH
S/O KALE GOWDA,
AGED ABOUT 38 YEARS,
R/AT KADABAGERE VILLAGE,
MAGADI MAIN ROAD,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK - 560 039.
...RESPONDENTS
(BY SRI.R.VIJAYAKUMAR., ADVOCATE FOR
SRI.M.R.RAVEENDRA., ADVOCATE FOR R1 & R2;
R4(a), (b), (c), (d) AND R6 ARE SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.
THIS REGULAR SECOND APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 21.11.2023, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THIS COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Sri.Basavaraju., learned Senior counsel on behalf of
Sri.L.Srinivasa Babu., for the appellants and Sri.R.Vijaya
Kumar., learned counsel on behalf of Sri.M.R.Raveendra., for
respondents 1 & 2 have appeared in person.
2. For convenience's sake, the ranking of the parties
shall be referred to as per their status and ranking before the
Trial Court.
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3. This is an appeal from the Court of ADHOC, District
and Sessions Judge, FTC-I, Bangalore Rural District, Bangalore.
4. The plaint averments are these:
It is stated that defendants 1 to 3 were the original
owners of the suit schedule property. It is said that they sold
the property to the second plaintiff on 01.03.1991. Due to the
Fragmentation Act, they executed an affidavit in favor of the
second plaintiff regarding receipt of consideration and transfer
of their vested right with possession regarding the scheduled
property on 01.03.1991. The affidavit cum sale of the
scheduled land was duly sworn before the Notary Advocate
Sri.Sangameswara and Advocate by name B.Gangappa
identified the signatures of defendants 1 to 3 and the execution
of the affidavit and sale transaction entered in favor of the
second plaintiff. The contents of the affidavit is very clear that
defendants 1 to 3 received the full consideration of Rs.20,000/-
(Rupees Twenty Thousand only) and that apart, gave an
undertaking that at no point of time, the said property will be
sold or transferred to any third parties. They also agreed that
they would come and execute the sale deed in favor of the
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second plaintiff or at her discretion at any point of time. It is
stated that the defendants also executed an irrevocable
General Power of Attorney in favor of the second plaintiff on
01.03.1991 and a liberty was given to the second plaintiff to
deal with the property as per her will and wish either to sell or
to develop the same. As such the second plaintiff continued her
possession of the property and she has paid the requisite taxes.
It is also said that the second plaintiff entered into an
agreement of sale in favor of the first plaintiff on 05.04.1991
and hence she requested defendants 1 to 3 to execute the
absolute sale deed in her favor.
It has been specifically pleaded that the second plaintiff
sold the property in favor of the first plaintiff under a registered
sale deed dated 20.05.2004. Thus, it is contended that the first
plaintiff is in possession and enjoyment of the suit schedule
property. The first plaintiff also contended that when he started
to put up construction on the suit property, defendants 5 & 6
obstructed the construction work contending that they were the
owners of the property in question. On verification, it was found
that defendants 1 to 3 sold the suit schedule property in favor
of defendant No.4, who in turn sold it to defendants 5 and 6.
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Hence, the plaintiffs filed the suit to declare that plaintiff No.1
is the absolute owner of the suit scheduled property and to
declare that the sale deed executed by defendants 1 to 3 in
favor of defendant No.4 was void and for a permanent
injunction restraining defendants 1 to 6 or their agents from
interfering in the affairs of the suit schedule property.
On the service of the suit summons, defendants 1 to 4
remained absent and did not contest the suit. They were placed
ex-parte. Defendants 5 and 6 appeared through their counsel,
filed a written statement, and denied the plaint averments.
They contended that defendants 1 to 3 who were the original
owners of the suit schedule property sold the same in favor of
defendant No.4 under a registered sale deed dated 08.10.2003.
In turn, the fourth defendant being the absolute owner
executed two registered sale deeds in favor of defendants 5
and 6 on 26.04.2004. Hence, they contended that the fifth
defendant purchased a portion of the suit schedule property
bearing Assessment No.19/165, Site bearing No.21 of
Andrahalli Village, Yeshwanathpura Hobli, Bangalore North
Taluk measuring East to West 30 feet and North to South 40
feet from the fourth defendant under a registered sale deed
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dated 26.04.2004 for valuable consideration and the sixth
defendant - the brother of the fifth defendant purchased the
remaining portion of the suit scheduled property bearing
Assessment No.19/165, Site bearing No.12 of Andrahalli
Village, Yeshwanathpura Hobli, Bangalore North Taluk
measuring East to West 30 feet and North to South 40 feet
from the fourth defendant under a registered sale deed dated
26.04.2004 for valuable consideration and they are in
possession of the same. Among other grounds, they prayed for
the dismissal of the suit.
Based on the above pleadings, the Trial Court framed
issues; parties led evidence and got marked documents. On the
trial of the action, the suit came to be decreed vide Judgment
and Decree dated 13.03.2009. Aggrieved by the Judgment and
Decree of the Trial Court, defendants 5 and 6 preferred an
appeal before the First Appellate Court. On appeal, the First
Appellate Court vide Judgment and Decree dated:14.09.2010
dismissed the appeal and confirmed the Judgment and Decree
of the Trial Court. Hence, this Regular Second Appeal is filed by
defendants 5 & 6 under Section 100 of CPC.
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5. Learned counsel for the appellants and respondents
1 & 2 have urged several contentions. Heard the contentions
urged on behalf of the respective parties and perused the
appeal papers and the records with utmost care.
6. This Court vide order dated:23.07.2019 admitted
the Second Appeal and framed the following substantial
questions of law:
1. Whether the doctrine of priority of interest as
contemplated under Section 48 of the Transfer
of Property Act, 1882 is applicable to the case
on hand?
2. Whether the power of attorney was
inadmissible in evidence?
7. Learned Senior Counsel Sri.Basavaraj in presenting
his argument strenuously urged that both Courts failed to
consider the interpretation of the documents Ex.P1 and
Exhibits.D1 to D3. He argued by saying that the alleged
affidavit, irrevocable General Power of Attorney cannot confer
the right of ownership over the suit schedule property. Learned
Senior Counsel vehemently contended that the first plaintiff
purchased the property from a person who had no subsisting
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right, title or interest to sell the property as such the same will
not have any consequence on the right of defendants 5 and 6
who had a valid right of ownership over the suit schedule
property. He drew the attention of the Court to Section 48 of
the Transfer of Property Act. To substantiate his contentions
learned Senior counsel relied on the following decisions:
1. NARAYAN MADHAVRAO WARKHINDE
DECEASED THROUGH LR'S MATHURABAI W/O
NARAYANRAO WARKHINDE AND OTHERS VS
MOGIYA LALYA - 2010(4) MH.L.J 986.
2. SURAJ LAMP AND INDUSTRIES PRIVATE
LIMITED THROUGH DIRECTOR VS STATE OF
HARYANA AND ANOTHER - (2012) 1 SCC 656.
3. STATE OF ANDHRA PRADESH AND OTHERS VS
STAR BONE MILL AND FERTILISER COMPANY -
(2013) 9 SCC 319.
By way of answer to this contention learned counsel
Sri.R.Vijaya Kumar., appearing on behalf of the first plaintiff
firstly contended that Section 48 has no application to the facts
and circumstances of the present case. Secondly, he argued by
saying that based on the General Power of Attorney coupled
with interest, the second plaintiff sold the property in favor of
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the first plaintiff. Thirdly, he contended that defendants 1 to 3
had executed the power of attorney in favor of the second
plaintiff earlier to the sale deed dated 26.04.2004 and the
power of attorney is not compulsorily registrable. Learned
counsel, therefore, submitted that both Courts extenso referred
to the material on record and were justified in decreeing the
suit; the scope to interfere with the concurrent finding is very
much limited. Accordingly, he prayed for the dismissal of the
appeal. He relied on the following decisions.
1. SYED ABDUL KHADER VS. RAMI REDDY AND
OTHERS - AIR 1979 SC 553.
2. MOHAMMAD @ PODIYA VS ASSISTANT
COMMISSIONER - ILR 1993 KAR 2306.
3. ICICI BANK LTD (SINCE SUBSTITUTED BY
STANDARD CHARTERED BANK) VS SIDCO
LEATHERS LTD AND OTHERS - (2006) 10 SCC
452.
8. The facts are sufficiently stated and do not require
reiteration. It is an admitted fact that defendants 1 to 3 were
the original owners of the property in question. To answer the
substantial questions of law, it is relevant to refer to the
documents namely, the affidavit dated 01.03.1991 (Ex.P6), the
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General Power of Attorney dated 01.03.1991 (Ex.P5), the
agreement of sale dated 05.04.1991 (Ex.P7), the sale deed
dated 08.10.2003 (Ex.D3), Two sale deeds both dated
26.04.2004 (Exs.D1 and D2) and another sale deed dated
20.05.2004 (Ex.P1).
Defendants 1 to 3 have sworn to a declaration of facts
that they have sold the property for a consideration of
Rs.20,000/- (Rupees Twenty Thousand Only) to the second
plaintiff. In the General Power of Attorney, the power of
alienation is conferred on the second plaintiff. It is relevant to
note that the declaration of facts or statement of facts in the
form of an affidavit and the General Power of Attorney both
were executed on the 1st day of March, 1991 and after one
month four days, i.e., on the 5th day of April, 1991, the second
plaintiff appears to have entered into an agreement of sale with
the first plaintiff for the sale of the property based on the
General Power of Attorney.
The first plaintiff was examined as PW1. In his evidence,
he states that his vendor purchased the property on
01.03.1991. The second plaintiff was examined as PW2. In her
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evidence, she states that she purchased the scheduled property
for a valuable consideration of Rs.20,000/- (Rupees Twenty
Thousand only) on 01.03.1991.
In this background, what is required to be considered is
whether the sale of immovable property could be made by way
of a declaration of facts, and by General Power of Attorney. The
law is well-settled that there are only two modes of transfer by
sale, and they are (1) transfer by a registered instrument, or
(2) transfer by delivery of property when the value thereof is
less than one hundred rupees and a sale cannot be affected in
any way. An agreement of sale is not a document of transfer,
nor because of execution of a power of attorney, can the right,
title or interest of an immovable property be transferred.
Reverting to the facts of the case, it is the specific
contention of the plaintiffs that defendants 1 to 3 sold the suit
property in favor of the second plaintiff on 01.03.1991. But it is
relevant to notice that there is no sale deed. The plaintiffs
placed reliance on two documents viz., the declaration of facts
(affidavit) and the General Power of Attorney both dated
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01.03.1991. They are marked as Ex. P6 and P5. Both are
unregistered instruments.
An attempt is made on behalf of the plaintiffs to contend
that the second plaintiff has sold the property as a General
Power of Attorney Holder and not as a title holder. It is argued
that the Power of attorney is not compulsorily registrable. The
submission is noted with care. Suffice it to note that a deed of
power of attorney is not one of the instruments specified under
Section 17 of the Registration Act compulsorily registrable.
However, if a power has been created empowering the attorney
to sell the property i.e., if a document that gives a right to the
attorney holder to sell the immovable property, then it would
be a document creating an interest in immovable property,
which would require compulsory registration. In the present
case, the General Power of Attorney alleged to have been
executed by defendants 1 to 3 in favor of the second plaintiff is
coupled with interest i.e., power of alienation is conferred but it
is not registered. The Apex Court in the SURAJ LAMP's case
has held that the General Power of Attorney Sale, or Sale
Agreements/ Will do not convey title and do not amount to
transfer, nor can they be considered valid modes of transfer of
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immovable property. Therefore, it can be safely concluded that
the declaration of facts/ statement of facts (affidavit) and
General Power of Attorney do not convey title. They are
inadmissible in evidence.
Next, let me consider the argument about Section 48 of
the Transfer of Property Act. One of the substantial questions of
law relates to Section 48 of the Transfer of Property Act of
1886. An attempt is made on behalf of the plaintiffs that
Section 48 has no application to the facts and circumstances of
the case.
Let us quickly glance at Section 48 of the Transfer of
Property Act.
"SECTION 48. PRIORITY OF RIGHTS
CREATED BY TRANSFER. - Where a person
purports to create by transfer at different times
rights in or over the same immoveable property,
and such rights cannot all exist or be exercised to
their full extent together, each later created right
shall, in the absence of a special contract or
reservation binding the earlier transferees, be
subject to the rights previously created."
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This section is based upon the principle enunciated by the
maxim 'qui prior est tempore potier est jure'- he has a better
title who was first in point of time. The section lays down the
general rule regarding the priority of rights created by transfer
by a person at different times in or over the same immovable
property and provides that as between such rights each later
created right is subject to the rights previously created.
The concept of priority is regulated by Section 48 of the
Transfer of Property Act of 1882. In a case where the Court has
conflicting interests, this doctrine helps the Court determine
which party's rights must take priority over the other. The need
for this notion arises when the property transferor subsequently
deals with the same property with two different people. Section
48 of the Transfer of Property Act of 1882 is based on the
essential principle that no one can impart a title greater than
what he has.
The essentials of the doctrine of priority are − The
property should have one owner or transferor and more than
one transferee. It is only applicable to real immovable property.
The transfer should be made at various times, and in each of
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these instances, this right cannot be fully exercised at the same
time.
In this background, let me consider what facts I have
here. The first plaintiff claims ownership based on the sale deed
dated 20.05.2004 executed by the second plaintiff based on an
unregistered General Power of Attorney and affidavit. Already
answered that the General Power of Attorney and the
declaration of facts in the form of an affidavit are inadmissible
in evidence. Now the question of priority between two
registered documents is required to be considered. Where there
is a competition between two registered documents (relating to
the same property) both of which are registered, the question
of priority between them is to be determined with reference to
the provisions of Section 47 of the Registration Act. If there are
successive transfers of the same property, the later transfer is
subject to the prior transfer.
Reverting to the facts of the case, the sale deed in favor
of the fourth defendant is dated 08.10.2003 and the sale deeds
in favor of defendants 5 and 6 are dated 26.04.2004. Whereas
the sale deed in favor of first plaintiff is dated:20.05.2004. The
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registered sale deeds in favor of defendants 4, 5 and 6 were
first in time than the sale deed in favor of the first plaintiff. The
first plaintiff purchased the property already sold, he cannot
question the sale deed to be void and hence to have a mileage
on the situation. Furthermore, there is no prayer regarding the
cancellation of the sale deeds dated:26.04.2004. It is pivotal to
note that Section 48 of the Transfer of Property Act ordains to
accept supremacy on the former sale deed in all the terms of
the latter. The transferor cannot prejudice the rights of the
transferee by any subsequent dealing with the property. Taking
note of the settled proposition of law, the successive transfer of
the same property i.e., transfer by the second plaintiff in favor
of the first plaintiff is subject to the prior transfer that was
made in favor of defendants 4, 5 and 6.
If the foregoing analysis of the relevant law is correct, it
can be summarized by stating that both Courts are not right in
accepting the plaintiff's contention. They overlooked the settled
principles and erroneously went ahead and decreed the suit. I
may venture to say that both Courts failed to have regard to
relevant considerations and disregarded relevant matters. The
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judgments and decrees passed by the Trial Court and the First
Appellate Court are unsustainable in law.
Counsel for the appellants and respondents have cited
several cases, but I do not think that the law is in doubt. Each
decision turns on its facts. The present case is also evaluated
considering the aforesaid decisions.
The substantial questions of law framed by this court are
answered accordingly.
9. The Judgment and Decree dated:13.03.2009
passed by the Court of I Additional Civil Judge (Sr.Dn),
Bangalore Rural District, Bangalore in O.S.No.784/2004 and the
Judgment and Decree dated:14.09.2010 passed by the Court of
ADHOC, District and Session Judge, FTC-I Bangalore Rural
District at Bangalore in R.A.No.83/2009 are set-aside.
10. As a result, the Regular Second Appeal is allowed.
Sd/-
JUDGE
TKN,MRP
