Karnataka High Court
Kamala vs Sri D Nagendra Kamath on 9 September, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 25.06.2025
Pronounced on : 09.09.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.6408 OF 2022 (GM - CPC)
BETWEEN:
SMT.KAMALA
W/O CHANAPPA,
AGED ABOUT 59 YEARS,
R/AT: NO.4, 6TH MAIN ROAD,
BYRAVESHWARANAGAR, NAGARBHAVI,
BENGALURU - 560 072.
... PETITIONER
(BY SRI SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE)
AND:
1. SRI D.NAGENDRA KAMATH
S/O LATE K.DEVAPPA KAMATH,
AGED ABOUT 71 YEARS,
RESIDIGN AT NO.91, 3RD MAIN,
NHCS LAYOUT, BASAVESHWARA NAGAR,
BENGALURU - 560 079.
2. SRI B.SHIVAKUMARSWAMY
S/O LATE VEERAPPA,
2
AGED ABOUT 47 YEARS,
RESIDING AT NO.25,
ASHTA GRAMA LAYOUT,
MAGADI MAIN ROAD,
BENGALURU - 560 023.
... RESPONDENTS
(BY SRI N.UDAYA KUMAR, ADVOCATE FOR R-1;
SRI N.SHIVA KUMAR, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE JUDGMENT AND
DECREE DTD. 13.03.2015 PASSED BY THE HON'BLE XIV ADDL.
CITY CIVIL JUDGE AND SESSIONS JUDGE, BENGALURU IN O.S.NO.
8495/2014 ANNX-G AND G1; QUASH THE EXECUTION
PROCEEDINGS BEARING NO. 1288/2015 PENDING BEFORE THE
HON'BLE XIV ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-28)
BENGALURU (ANNX-H).
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 25.06.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court calling in question the
judgment and decree dated 13-03-2015 passed by the XIV
Additional City Civil and Sessions Judge, Bengaluru in O.S.No. 8495
of 2014 on the score that they are obtained by fraud and execution
proceedings instituted thereon.
2. Fact, in brief, germane are as follows: -
2.1. The petitioner purchases schedule property by way of a
registered sale deed on 14-02-1991. Pursuant thereto, she has
been put in possession of the property. The subject matter of the
property is site bearing No.25, PID No.18-07-25 measuring 40"x60"
situated at Ashtagrama House Building Cooperative Society
approved layout in Magadi Road, Bengaluru. All the revenue entries
thereafter are in the name of the petitioner. It is a vacant land and
portion of the schedule property is temporarily being used by
Kamakshipalya Traffic Police Station and they are said to have put
4
up asbestos sheet shed measuring 22'6"x31'6" on the schedule
property.
2.2. When things stood thus, it appears respondent No.1, a
total stranger to the property, files a suit in O.S.No.8495 of 2014
against the 2nd respondent depicting him to be the power of
attorney holder from the hands of the petitioner. The suit was
seeking specific performance of sale agreement dated 07-12-1994
and the suit is instituted 20 years thereafter seeking such specific
performance. After institution of the suit, the 2nd respondent and
the 1st respondent enter into a compromise with regard to certain
payments to be made and the concerned Court records the
compromise and accordingly directs drawing up of the decree. The
1st respondent institutes execution case bearing Ex.No.1288 of
2015 under Order XXI Rule 11 of the CPC before the concerned
Court seeking execution of judgment and decree dated 13-03-2015
passed in O.S.No.8495 of 2014. In the said execution, the
petitioner is shown as the power of attorney holder of the 2nd
respondent. Notice reaches the petitioner. It is then, the petitioner
comes to know history of the case.
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2.3. Therefore, the averment in the petition is that a
fraudulent power of attorney is generated by the 2nd respondent
which is of the year 1994 and a suit is filed 20 years thereafter. The
suit gets compromised; execution is filed and in the execution case
the petitioner comes to know about these proceedings. Thereafter,
the petitioner approaches this Court in the subject petition calling in
question the judgment and decree passed in O.S.No.8495 of 2014
as vitiated by fraud.
3. Heard Sri Shivaprasad Shantanagoudar, learned counsel
appearing for the petitioner, Sri N.Udaya Kumar, learned counsel
appearing for respondent No.1 and Sri N.Shiva Kumar, learned
counsel appearing for respondent No.2.
4.1. The learned counsel appearing for the petitioner
Sri Shivaprasad Shantanagoudar would vehemently contend that
the petitioner is the absolute owner of the property and is in
possession even today, as it is a vacant land. The 2nd respondent is
in the habit of instituting frivolous petitions/suits on vacant lands.
Concerning the very suit schedule property, a suit in O.S.No.26487
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of 2008 is filed by the 2nd respondent against the petitioner for
permanent injunction. In the said suit, notice is said to be served
upon the petitioner and an ex-parte decree is obtained.
4.2. The 2nd respondent describes himself as power of
attorney holder of the petitioner and claims title over the suit
schedule property by virtue of the said power of attorney. The
learned counsel submits that the petitioner has never executed any
power attorney in her lifetime. This is the ploy of the 2nd respondent
in getting the suit filed by the 1st respondent and describing himself
to be the absolute owner on the strength of power of attorney said
to be executed by the petitioner. The moment suit is filed,
compromise petition is filed and decree is obtained on the said
compromise. Execution case is instituted to execute the decree of
compromise and delivery warrant is issued in the execution petition
directing the petitioner to deliver possession within 8 days. It is
then, the petitioner comes to know of all the proceedings that are
instituted behind her back. It is, therefore, the present petition is
preferred seeking annulment of judgment and decree obtained by
fraud.
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5. Per contra, the learned counsel appearing for the
2ndrespondent would vehemently contend that the petitioner herself
has executed the general power of attorney in the year 1994. A suit
for specific performance is instituted seeking specific performance
of an agreement of sale of the year 1994. The learned counsel
would admit that both the agreement to sell and power of attorney
are unregistered. He would, nevertheless, contend that it is a
matter of trial if fraud has happened at all in the case at hand.
Therefore, he would submit that the subject petition should not be
entertained.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts though not in dispute would
require reiteration. The petitioner is the owner of the schedule
property who comes in possession of the same pursuant to the
registered sale deed dated 14-02-1991. The property is as
8
described in the schedule. All the revenue entries stand in the
name of the petitioner. A suit in O.S.No.8495 of 2014 comes to be
filed against the 2nd respondent depicting him to be the power of
attorney holder from the hands of the petitioner. The suit was
seeking specific performance of a sale agreement dated
07-12-1994. The suit is thus instituted 20 years after the alleged
sale agreement. Immediately after the registration of the suit, the
parties to the lis enter into a compromise and the concerned Court
draws up a decree on the said compromise. The 1st respondent
then institutes an execution case bearing Execution No.1288 of
2015 seeking execution of a judgment and decree dated
13-03-2015.
8. Notice for the first time reaches the petitioner in the
execution case. The petitioner then digs up the issue and comes to
know that the subject property which is in possession of the
petitioner has been sold to someone else, of a fabricated power of
attorney executed in the year 1994. It is then the petitioner gets
all the information and comes to know that the suit schedule
property is the petitioner's. The petitioner is not made a party.
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The 2nd respondent poses himself to be the general power of
attorney holder of the petitioner of a power of attorney said to have
been executed in the year 1994. Therefore, the decree that is
drawn by the concerned Court on a compromise was without the
petitioner being a party. The cause title to the suit is as follows:
"Sri.D. NAGENDRA KAMATH
Son of late K.Devappa kamath,
Aged about 63 years,
Residing at No.91.3rd Main,
NHCS Layout, Basaveswarnagara.
Bangalore -560079
And
SRI. B.SHIVAKUMARSWAMY
Son of late Veerappa
Aged about 40 years
Residing at No.25,
Ashta Grama Layout,
Magadi Main Road,
Bangalore-560079
Represented by
power of Attorney Holder of
Smt kamala
wife of K.Channappa'
Aged about 58 years,
Residing at No.18, 4th A main,
Govindharaja nagara,
Bangalore-560,040."
It is an admitted fact that the petitioner is not a party. The relief
sought in the suit is as follows:
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"WHEREFORE, it is humbly prayed that this Hon'ble Court
be pleased to grant the following relief/s
a) To pass a judgement and decree for specific performance
of the Sale Agreement dated 7-12-1994 and further direct
the defendant to execute the Registered Sale Deed in
respect of the suit schedule property in favour of the
Plaintiff by receiving the balance sale consideration of
Rs.25,000/-;
b) and on his failure to execute the Registered Sale Deed in
favour of the Plaintiff, then this Hon'ble Court be pleased
to execute the Registered Sale Deed in favour of the
Plaintiff through the agency of court and to get registered
the same before the Sub-Registrar's office, Bangalore.
c) And grant such other relief/s as this Hon'ble Court deems
fit to grant in the facts and circumstances of the case and
award cost of the suit to meets the ends of justice.
SCHEDULE
1. All the piece, and parcel of the property bearing Site
No.25. PID No. 18-7-25, situated at Ashtagram Housing Building
co-operative society approved Layout, formed out of Sy
No.68/3, 69/1a2 and 69/1c saneguruvanahalli village
yeshvanthapur Hobli, Bangalore North Taluk, Bangalore District,
now comes under the BBMP ward No. 18(Kamashipalya)
measuring to an extent of East to West 60 feet and North to
South 40 feet, and bounded on
East by : private property,
West by : Society Road
North by : site no.24,
South by : Magadi Road."
Compromise petition is filed on 13-03-2015. The compromise
petition reads as follows:
"Between
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Sri.D.Nagendra Kamath Plaintiff
And
Sri.B.Shivakumarasway Defendant
COMPROMISE PETITION UNDER ORDER XXIII RULE 3 OF
THE CODE OF CIVIL PROCEDURE
The plaintiff and defendant jointly submits as follows:
1. The plaintiff has filed the above suit for the relief of specific
performance of contract and other relief/s against the
defendants.
2. That, at with the intervention of the counsel for the
respective parties, their common friends and relatives, the
parties to the suit have amicably settled the dispute among
themselves and have arrived at a compromise in the above
matter.
3. The defendant hereby admits the execution of the Agreement
of sale dated 7.12.1994 in favour of the plaintiff in respect of
the property bearing site No.25, PID No.18-7-25, situated at
Ashtagram Housing Building Co-operative society approved
layout formed out of Sy.No.68/3, 69/1a2, and 69/1c
Saneguruvanahalli village, Yeshwanthapura Hobli, Bangalore
North taluk, Bangalore district, measuring east to west 60 feet
and north to south 40 feet. It is submitted by the defendant the
plaintiff has to pay the balance sale consideration of Rs.25,000/-
only out of total sale consideration of Rs.5,00,000/-.
4. The defendant has this day received a sum of Rs.25,000/-of
balance sale consideration along with additional amount of
Rs.25,000/-, in total the Defendant has received a sum of
Rs.50,000/- by way of cash from the Plaintiff in the presence of
this Hon'ble court and this defendant has acknowledged the
receipt of total sale consideration of Rs.5,25,000/- from the
plaintiff in respect of the sale of schedule property.
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5. The defendant has No Objection to pass a judgement and
decree in favour of the Plaintiff in the above suit and the
Defendant has no objection to draw the final decree in favour of
the Plaintiff. The plaintiff is at liberty to get the sale deed
registered in his favour in respect of the schedule property
through the Court of law.
6. This compromise is entered into between the plaintiff and
defendant on their own free will and volition and under any
undue influence or coercion.
WHEREFORE, the plaintiff and defendant to the above
suit prays that this Hon'ble court may be pleased to decree the
suit in terms of the above compromise, in the interest of justice
and equity.
Sd/- Sd/-
Advocate for Plaintiff Plaintiff
Sd/- Sd/-
Advocate for Defendants Defendants
VERIFICATION
We the plaintiff and defendant do hereby verify and
declare that the averments made above are true and correct to
the best of our knowledge, information and belief.
Sd/-
Plaintiff
Sd/-
Defendants
Bangalore
Date: 13-3-2015"
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The petitioner is admittedly neither the signatory nor a party. Suit
is decreed in terms of the compromise. Execution is filed. Again in
the execution petitioner is not a party. The cause title in the
execution is as follows:
"Under order 21 Rule 11 of the Code of Civil Procedure..............
Decree Holder's Sri.D.Nagendra Kamath
Name
Number of the Suit O.S. No. 8495/2014
Decree-Holder Sri. D.Nagendra Kamath
aged about 64 years
Son of late K.Devappa Kamath,
Residing at No.91, 3rd Main, NHCS
layout, Basaveshwaranagar,
Bangalore -560079
Judgement-Debtor/s Sri.B.Shivakumaraswamy,
S/o late Veerappa,
Aged about 41 years
R/at No.25, Ashta Grama layout,
Magadi Main Road, Bengaluru -560079
Rpted by Power of Attorney holder
Smt. Kamala,
W/o K.Channappa, aged about 59 years,
R/at No.18, 4th A Main,
Govindarajanagar, Bengaluru -
560040..."
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But, notice reaches the petitioner. It is then the petitioner prefers
the subject petition contending that the compromise is a fraud and
fraud unravels everything, as the property of the petitioner is
knocked off, without even the petitioner being named a party to the
proceedings.
9. The strength on which the 1st respondent and the 2nd
respondent enter into a compromise is, one, the general power of
attorney, the other agreement to sell. Both of them are
unregistered. Therefore, it was on the face of it, a fraud played by
respondents 1 and 2 hawking on the property of the petitioner.
10.1. It becomes apposite to refer to the judgment rendered
by a co-ordinate bench of this Court in identical circumstances in
the case of SHAH HARILAL BHIKHABHAI & COMPANY v.
B.MANI1, wherein the coordinate bench holds as follows:
"Petitioner a non-party to the suit proceedings is invoking
the extraordinary jurisdiction constitutionally vested in this
Court for assailing a judgment & decree dated 31.05.2018 in
S.C.No.678/2018 clandestinely obtained by the respondents 1
& 2 herein by fraud.
1
W.P.No.7714 OF 2020 Decided on 04-11-2020
15
2. Service of notice to respondent nos. 1 to 3 is held
sufficient by a co-ordinate Judge of this Court; notice to
respondent no.4- State is dispensed with; respondent no.5
being the Registrar of the Court below is served and
unrepresented.
3. Having heard the learned counsel for the petitioner
and having perused the petition papers, this Court is inclined to
grant indulgence in the matter because:
(a) Petitioner apparently has been in the
possession and enjoyment of the subject property by
virtue of two registered lease deeds both dated
23.01.1954; his assertion as to this is strengthened by
the tax paid receipts for decades, the latest being of the
year 2019-2020; the contesting respondents despite
service of notice having remained unrepresented, the
version of the petitioner which is supported by an
affidavit and the accompanying documents remains
unrebutted.
(b) In respect of subject property the suit
in S.C.No.678/2018 was filed by 1st respondent-
Mr.B.Mani represented by 3rd respondent-GPA
Holder Mr.Sendil Kumar against the 2nd
respondent-Mr.Arun on 26.04.2018; strangely a
compromise decree has been obtained on
31.05.2018, absolutely without any explanation for
this rocket speed, even when the ink on the
pleadings had not yet dried up; what intrigues the
mind of this court is that the learned Judge of the
Court below has not given a thought to this
doubtful swiftness with which the parties to the
suit have acted.
(c) Apparently, petitioner a registered
partnership firm is a huge stakeholder in the matter
and that he has not been impleaded as one of the
defendants to the suit, obviously because it would
have resisted the suit being decreed on the basis of
a fraudulent compromise; as already mentioned
above the allegations of fraud and duplication have
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remained unrebutted, there being no contra
pleadings nor controvertion thereof; in fact, the
parties to the suit as also the 3rd respondent GPA
Holder have chosen to remain unrepresented and
this conduct itself shows prima facie fraud that has
victimized the petitioner.
(d) Learned counsel for the petitioner is more
than justified in banking upon decision of the Apex Court
in S.P.CHANGALVARAYA NAIDU vs. JAGANNATH,
AIR 1994 SC 853 in support of his contention that fraud
vitiates everything; his reliance on MEGHAMALA &
OTHERS vs. G.NARASIMHA REDDY & OTHERS, JT
(2010) 8 SC 658 also aides the case of the petitioner; at
para 33 the Apex Court observed:
"Fraud is an intrinsic, collateral act,
and fraud of an egregious nature would
vitiate the most solemn proceedings of courts
of justice. Fraud is an act of deliberate
deception with a design to secure something,
which is otherwise not due. The expression
"fraud" involves two elements, deceit and
injury to the person deceived. It is a cheating
intended to get an advantage".
(e) Learned counsel for the petitioner submits
and I think it right that the possession of the suit
premises needs to be restored since it was thrown out
from the same on the basis of the impugned judgment &
decree which are a nullity in the eye of law, having been
tainted by fraud and duplicity; he is also justified in
seeking a direction to the respondent-Registrar of the
Court below for initiating police proceedings in the matter
of fraud in a time bound way, inasmuch as several such
fraudulent decrees & orders are stated to have been
obtained.
In the above circumstances, this writ petition succeeds:
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(i) a Writ of Certiorari issues quashing the impugned
judgment & decree, and dismissing the subject suit with an
exemplary cost of Rs.1 lakh (rupees one lakh) payable by the
respondents 1 & 2 each, and Rs.50,000/- payable by respondent
no.3;
(ii) the learned Judge of the Court below shall take all
steps for restoring possession of the subject property in favour
of the petitioner-firm within an outer limit of eight weeks, if
necessary, by taking the aid of State Power.
(iii) the 5th respondent-Registrar of the Court below is
directed to institute a police investigation in this serious matter
and cause a domestic enquiry against the suspect officials of the
court, since fraud, forgery and fabrication ordinarily do not
happen without the involvement of insiders.
A copy of this judgment shall be submitted to the
Registrar General of this Court for taking necessary follow up
action in the matter."
(Emphasis supplied)
The said judgment was tossed before the Apex Court only to be
rejected. Apart from the said fact, as observed, two factors have
led to the claim of the 2nd respondent that he is the general power
of attorney holder and is entitled to secure title and the other, it is
an unregistered agreement to sell.
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10.2. The Apex Court in the case of VINOD INFRA
DEVELOPERS LIMITED v. MAHAVEER LUNIA2, has held as
follows:
".... .... ....
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 Haryana8, 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 duly registered and followed by appropriate
2
2025 SCC Online SC 1208
19
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 (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 against a third party."
18. It is thus clear that a transfer of immovable
property by way of sale can only be by a deed of
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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 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
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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. Canara Bank [(2001) 94 DLT
841], that the "concept of power of attorney sales have
22
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 India9, 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 relied upon by this Court in Shakeel Ahmed v. Syed
23
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
(iii). Paul Rubber Industries Private Limited
v. Amit Chand Mitra, SLP(C) No. 15774 of
2022.
12. The embargo put on registration of
documents would not override the statutory provision
so as to confer title on the basis of unregistered
24
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."
9.4. Furthermore, in M.S. Ananthamurthy v. J.
Manjula, this Court undertook a comprehensive analysis
of the statutory provisions and precedents, and
reaffirmed that an unregistered agreement to sell does
not and cannot by itself create or transfer any right, title,
or interest in immovable property. The following
paragraphs are pertinent in this regard:
"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'.
...
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
25
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."
(Emphasis supplied)
The Apex Court holds an unregistered agreement of sale is no
document in the eye of law.
10.3. Likewise, the Apex Court in a later judgment, in the
case of RAMESH CHAND (D) THR. LRS. v. SURESH CHAND3,
3
2025 SCC OnLine SC 1879
26
holds that the power of attorney even if executed in accordance
with law, will not confer any right over the property. The Apex
Court also considers the purport of the agreement of sale.
".... .... ....
Agreement of Sale
12. The Transfer of immovable property inter vivos is
governed by the Transfer of Property Act, 1882 (hereinafter
referred to as "the TP Act"). Section 5 of the said TP Act defines
"transfer of property" as follows:
"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 or
to himself and one or more other living persons and 'to
transfer property' is to perform such act."
13. The TP Act envisages five different modes for
transferring a property but for the purpose of the present appeal
we are only concerned with one of the modes i.e., by way of
"Sale" and the same is dealt under section 54 of the TP Act
which defines "sale" and a "contract for sale" as follows:
"54. 'Sale' defined. -- 'Sale' is a transfer of
ownership in exchange for a price paid or promised or part-
paid and part-promised.
Sale how made. --Such transfer, in the case of
tangible immovable property of the value of one hundred
rupees and upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered
instrument.
In the case of tangible immovable property of a
value less than one hundred rupees, such transfer may be
made either by a registered instrument or by delivery of the
property.
27
Delivery of tangible immovable property takes place
when the seller places the buyer, or such person as he
directs, in possession of the property.
Contract for sale. --A contract for the sale of
immovable property is a contract that a sale of such
property shall take place on terms settled between the
parties.
It does not, of itself, create any interest in or charge
on such property."
14. Perusal of above said provisions lays down a
specific mode of execution of sale deed with respect to
immovable property for concluding the sale of a property.
In sale for an immovable property the value of which
exceeds Rs. 100/-, the three requirements of law are that
the transfer of property of sale must take place through a
validly executed sale deed, i.e., it must be in writing,
properly attested and registered. Unless the sale deed is
in writing, attested and registered, the transaction
cannot be construed as sale, or in other words, the
property will not be transferred.
15. There is a difference between a sale deed and an
agreement for sale, or a contract for sale. A contract for sale of
immovable property is a contract that a sale of such property
shall take place on terms settled between the parties. While a
sale is a transfer of ownership; a contract for sale is merely a
document creating a right to obtain another document, namely
a registered sale deed to complete the transaction of sale of an
immovable property. Section 54 in its definition of sale does not
include an agreement of sale and neither confers any
proprietary rights in favour of the transferee nor by itself create
any interest or charge in the property. If after entering into a
contract for sale of property, the seller without any reasonable
excuse avoids executing a sale deed, the buyer can proceed to
file a suit for specific performance of the contract.
16. The scope of an agreement for sale has been
highlighted by this court in the case of Suraj Lamp and
Industries Private Limited (2) through Director v. State of
Haryana3, wherein this Court observed that:
28
"16. Section 54 of the 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, [(1977)
3 SCC 247] observed:
"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 Ram Baran Prasad v. Ram Mohit
Hazra, [AIR 1967 SC 744]). 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 the 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 into service against
a third party."
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
29
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."
17. In the instant matter, undisputedly plaintiff claims
that there is only an agreement to sell, and there is no sale
deed executed in his favour by the father. As per the settled
position of law, this document does not confer a valid title on
the plaintiff as it is not a deed of conveyance as per Section 54
of the TP Act. At best, it only enables the plaintiff to seek for
specific performance for the execution of a sale deed and does
not create an interest or charge on the suit property.
General Power of Attorney
18. A power of attorney is a 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.
It is revocable or terminable at any time unless it is made
irrevocable in a manner known to law. A General Power
of Attorney does not ipso facto constitute an instrument
of transfer of an immovable property even where some
clauses are introduced in it, holding it to be irrevocable or
authorizing the attorney holder to effect sale of the
immovable property on behalf of the grantor. It would
not ipso facto change the character of the document
transforming it into a conveyance deed.4
30
19. A power of attorney is not a sale. A sale
involves transfer of all the rights in the property in favour
of the transferee but a power of attorney simply
authorises the grantee to do certain acts with respect to
the property including if the grantor permits to do certain
acts with respect to the property including an authority to
sell the property.5
20. In the case of State of Rajasthan v. Basant Nahata6,
it was held that:
"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 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.
xxxx
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."
21. Further, the position of a power of attorney with
respect to conferment of title was explained by this Court in the
case of Suraj Lamp (supra), thus:
31
"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 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 (see Section 1-A 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."
22. Having discussed the position of law, it is
essential to peruse the recitals of the General Power of
Attorney, which is on record and pressed into service by
plaintiff. The said GPA merely authorises the grantee to
manage the affairs of the suit property, which includes
the power to let out the property on rent, and create a
mortgage of the same, etc. However, it is silent on the
aspect of conveyance. Be that as it may. The recitals of
the power of attorney would indicate the intent of the
grantor is to limit the powers of the grantee to only
manage the suit property, and not to create any interest
in his favour, which is in consonance with the settled
position of law as discussed above that a power of
attorney is an agency by which the agent derives the
authority or the right to enter into transactions on behalf
of the principal. Even if we accept the validity of the
Power of Attorney in favour of the plaintiff, still it does
not confer a valid title on him with respect to the suit
property.
(Emphasis supplied)
In the light of the admitted facts and elucidation of law by the Apex
Court, the fraud played by the parties/respondents 1 and 2 who
admit before this Court that both the general power of attorney and
the agreement were unregistered and that the power of attorney
32
was of 20 years vintage, these admitted facts ought to have borne
consideration before the concerned Court, as the concerned Court
appeared to be in a hurry to record the compromise and close the
proceedings. In that light the petition deserves to succeed.
11. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) The impugned judgment and decree dated 13-03-2015
passed by the XIV Additional City Civil and Sessions
Judge, Bengaluru in O.S.No.8495 of 2014 stands
quashed.
(iii) Consequently, the execution proceedings pending in
Execution Case No.1288 of 2015 before the said Court
also stand quashed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
bkp
CT:MJ
