Telangana High Court
M/S. Kumar And Co vs A. Hanumanthu on 26 July, 2021
Bench: M.S.Ramachandra Rao, T.Vinod Kumar
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T. VINOD KUMAR
Civil Miscellaneous Appeal No.470 of 2020;
Civil Miscellaneous Appeal No.473 of 2020;
Civil Miscellaneous Appeal No.503 of 2020;
Civil Miscellaneous Appeal No.504 of 2020;
Civil Miscellaneous Appeal No.507 of 2020;
Civil Miscellaneous Appeal No.508 of 2020;
Civil Miscellaneous Appeal No.509 of 2020;
Civil Miscellaneous Appeal No.510 of 2020;
Civil Miscellaneous Appeal No.511 of 2020;
Civil Miscellaneous Appeal No.512 of 2020;
Civil Miscellaneous Appeal No.517 of 2020;
and
Civil Miscellaneous Appeal No.518 of 2020
COMMON JUDGMENT : (Per Sri Justice M.S.Ramachandra Rao)
Since common issues of fact and law arise for consideration in
these Civil Miscellaneous Appeals, they are being disposed of by this
Common Order.
2. The suits out of which these Appeals arise are filed in the Court
of the XV Additional District Judge - cum - II Additional Family
Judge, Ranga Reddy District, at Kukatpally for cancellation of
registered Agreements of Sale - cum - General Power of Attorney
bearing different dates in respect of alleged undivided shares of vacant
land of various extents in Sy.No.1011/10 of Kukatpally, Balanagar
Mandal, Ranga Reddy District. Relief of perpetual injunction
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restraining the defendants from alienating the suit schedule property
by executing registered documents in the Office of the Sub-Registrar,
Kukatpally in any form to any third party or creating any third party
rights or interest over the said land is also sought in these suits.
3. We shall mention the details of the Interlocutory Applications,
the suits out of which these Appeals arise, the parties who have filed
these Appeals, the dates of the registered Agreements of Sale - cum -
General Power of Attorney and its Document numbers, and the date of
the registered Sale Deeds in the following table :
C.M.A. I.A. O.S. Date Registered Registered sale
No. No. No. Agreement of sale- deed Doc. No.
cum-GPA &
Doc. No. & Date Date
470 523/17 369/17 17.10.2019 Doc.No.3337/08 1770/2017
dt.25-06-2008 dt.28-02-17
473 488/17 331/17 17.10.2019 Doc.No.3938/2008 1755/2017
dt.29.07.2008 dt.28.02.2017
503 489/17 332/17 17.10.2019 Doc.No.1843/2008 1704/2017
dt.09.04.2008 dt.28.02.2017
504 488/17 330/17 17.10.2019 Doc.No.3938/2008 1755/2017
dt.29.07.2008 dt.28.02.2017
507 523/17 369/17 17.10.2019 Doc.No.3337/08 1700/2017
dt.25-06-2008 dt.28-02-17
508 408/17 266/17 17.10.2019 Doc.No.1603/2008
dt.25.03.2008
509 489/17 332/17 17.10.2019 Doc.No.1843/2008 1704/2017
dt.09.04.2008 dt.08.02.2017
510 524/17 370/17 17.10.2019 Doc.No.4709/2008 1756/2017
dt.17.09.2008 dt.28.02.2017
511 490/17 333/17 17.10.2019 Doc.No.1796/2008 1701/2017
Dt.02.04.2008 Dt.28.02.2017
512 407/17 267/17 17.10.2019 Doc.No.1645/2008
Dt.27.03.2008
517 490/17 333/17 17.10.2019 Doc.No.1796/2008 1701/2017
Dt.02.04.2008 Dt.03.03.2017
518 524/17 370/17 17.10.2019 Doc.No.4709/2008 1756/2017
dt.17.09.2008 dt.28.02.2017
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The case of the plaintiffs / respondents in the CMAs
4. The plaintiffs in the suits are different individuals but
essentially their pleading is that they are owners of the plaint schedule
properties in the suit; that they or their predecessors in title were
allotted certain land by the Urban Land Ceiling authorities; they were
all illiterates and innocent persons who did not have worldly
knowledge and used to eke out livelihood by selling milk to near-by
residents; one of their relatives by name A. Maisaiah who was an
educated person having worldly knowledge hatched a plan to grab
their properties; and on the pretext that he would develop land after
obtaining permissions from the Hyderabad Urban Development
Authority and the Greater Hyderabad Municipal Corporation and
other Public Authorities. They alleged that he requested them to
execute a Development Agreement cum General Power of Attorneys
in his favour; but he obtained from them registered Agreement of Sale
- cum - General Power of Attorney on various dates in 2008 without
consideration in respect of their undivided share of land in favour of
M/s. Kumar and Co. of which he was the Managing Partner.
5. According to them, there was no partition by metes and bounds
and only undivided share of land was mentioned in the Agreements of
Sale - cum - General Power of Attorney, that all the plaintiffs are co-
owners along with other family members; that the agreements of sale
recited that consideration was paid on 05.04.1985, though the
registered Agreement of Sale - cum - General Power of Attorney was
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executed in 2008; that this is ridiculous and not true, though stamp
duty was paid by their relative as per the prevailing rate in the Office
of the Sub-Registrar as on the date of the registration of the said
Agreement - cum - General Power of Attorney.
6. It is their contention that they did not receive any consideration
at the time of execution or at any point of time under the said
Agreement of Sale - cum - General Power of Attorneys for the land
transferred under the said Document; if such documents were proper
documents, the 1st defendant would have paid to plaintiffs at least the
Sub-Registrar rate per sq.yd. on the date of execution of the said
document; such documents are typed in English and the contents were
not read over to them in Telugu and not explained to them by the 1st
defendant as well as the Sub-Registrar; and so, those documents are
sham, fraudulent, and created to cheat them.
7. They also contended that A. Maisaiah misled them by making
them think that they had executed a Development Agreement for
development, that no prudent person would sell the land for a small
consideration said to have been paid on 05.04.1985, more than 23
years back, and they were fabricated to defraud them and to grab their
properties.
8. According to them, they questioned A. Maisaiah about the
progress of development on 25.11.2010, 02.12.2013, 31.01.2014 but
he assured that the land is vacant and if it was not developed, and he
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will give it back to them. They contended that one of the executants
of the Agreements of Sale - cum - General Power of Attorney died,
and so they became unexecutable, that A. Maisaiah, even the General
Power of Attorney holder died on 13.02.2014, and the Agreements of
Sale - cum - General Power of Attorneys became unenforceable.
9. They also contended that possession of the property was not
delivered to the defendant; that they got issued legal notice to the
defendant regarding cancellation of the Agreements of Sale - cum -
General Power of Attorneys in February, 2017, and after the said date,
the Firm M/s. Kumar and Co. executed registered sale deed in favour
of other defendant / defendants except in O.S.No.266 and 267 of
2017.
The I.A.s filed under Order XXXIX Rules 1 and 2 of C.P.C.
10. The plaintiffs filed different Interlocutory Applications under
Order XXXIX Rules 1 and 2 of Civil Procedure Code, 1908 in each of
the suits for grant of temporary injunction restraining the respondents
from alienating the plaint schedule property to third parties, pending
disposal of the suit. The plaintiffs reiterated the contents of the plaint
and contended that they have prima facie case, balance of
convenience is in their favour, and irreparable loss would be caused to
them if temporary injunction sought by them was not granted.
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Counter-affidavit of the Firm - M/s. Kumar and Co. (defendant in each of
the suits) :
11. It is the case of the Firm M/s.Kumar and Co. that A. Maisaiah
was the family head and looked after the family of the plaintiffs; that
all the existing rights of family members including the plaintiffs were
transferred title of the subject property of the suits to the Firm after
receiving valuable consideration in 1985 itself, and after that, the
plaintiffs have no right over the land and they are not in possession
thereof. It is contended that the plaintiffs voluntarily executed
Agreements of Sale - cum - General Power of Attorneys and had
never raised any issue about it. They contended that the suit is barred
by limitation and the plaintiffs have no prima facie case, and are not
entitled to relief of temporary injunction.
The orders dt.17.10.2019 in the I.A.s filed under Order XXXIX Rules 1 and 2
of C.P.C.
12. In the Court below, the plaintiffs marked documents in each of
the I.A.s in each of the suits.
13. By separate order dt.17.10.2019, the Court below allowed all
the I.A.s filed for temporary injunction and restrained the defendants
from alienating the plaint schedule properties.
14. After referring to the contentions of the plaintiffs, it opined that
the documents i.e., Agreements of Sale - cum - General Power of
Attorneys were executed in 2008, and since they mentioned that sale
consideration was paid on 20.04.1985 and it appears to be meagre, it
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suggests that fraud was played upon the plaintiffs. It then observed
that the circumstances prima facie show that the plaintiffs have raised
triable issues which have to be decided after full-fledged trial; prima
facie, the points raised by them prove their claim over the plaint
schedule property; contentions of parties show that alienations are
being made; and so, they have balance of convenience and irreparable
would be caused; and so they are entitled to temporary injunction till
disposal of the suit.
The present CMAs
15. Challenging the same, M/s. Kumar and Co, one of the
defendants in the suits filed these Appeals.
16. Sri Y.Chandra Sekhar, learned Senior Counsel appearing for Sri
M.D.Phaneendra, learned counsel and Sri P.Sriraghu Ram, learned
Senior Counsel appearing for Sri P.Sri Ram, learned counsel for the
appellant/defendant and Sri Kuriti Bhaskara Rao, learned counsel for
the respondents / plaintiffs in each of the suits.
17. It is the contention of the learned counsel for the
appellants/defendants that the execution by respondent Nos.1 to
4/plaintiffs of the agreements of sale-cum-General Power of Attorney
in 2008 in favour of A. Maisaiah who was Managing Partner of the
Firm M/s.Kumar & Co., their relative being an admitted fact, the suits
filed in 2017 for cancellation of the said agreements of sale-cum-
G.P.As. are hopelessly barred by limitation; the plea of the plaintiffs
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that plaintiffs continued to be in possession and enjoyment of the land
is false and the defendants are in possession of the same; that it is not
true to say that the plaintiffs are illiterates and innocent and did not
have worldly knowledge; there was no fraud in the execution of the
agreements of sale-cum-G.P.As. in favour of the Firm; till
13-02-2014, the date of death of A. Maisiah, the plaintiffs never
questioned the agreements of sale-cum-G.P.As. on the ground of
being fraudulent or that they were sham; the appellants invested huge
amounts to develop the land and to extract more money from the
defendants, the plaintiffs have filed the suit. It was denied that the
plaintiffs did not know about the contents of each of the agreements of
sale-cum-G.P.As.; that the said documents are irrevocable powers of
attorney and death of A. Maisaiah /Managing Partner of the Firm does
not effect the rights already passed on to the defendants. It is also
contended that the Court below did not properly appreciate the facts
while granting the interim order in the I.As. filed under Order 39
Rules 1 and 2 C.P.C.
18. Sri Kuriti Bhaskara Rao, learned counsel for the
plaintiffs/respondents refuted the above contentions, and supported
the orders passed by the Court below.
Consideration by the Court
19. It is the admitted case of the plaintiffs that pursuant to
G.O.Ms.No.348 dt.20-03-2007, the State Government exercised
powers under Section 20(1)(a) of the Urban Land (Ceiling and
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Regulation) Act, 1976 and granted exemption of excess land in favour
of 54 persons including the plaintiffs.
20. As per annexure to the said G.O., separate parcels of extents of
land admeasuring 300 sq. mts each were exempted for each of the
individuals and only for A.Maisaiah, the relative of the plaintiffs,
1000 sq. mts was exempted in Sy.No.1011/10 part situated at
Kukatpally village.
21. Prima facie a reading of the said G.O. does not indicate that
the land parcels are undivided shares and that the plaintiffs and other
persons who were given exemption under the said G.O. were holding
the land jointly, though the recital in the agreements of sale-cum-
G.P.As. is otherwise.
22. The contents of each of the registered agreements of sale-cum-
G.P.A. show that each of the plaintiffs had admitted receipt of sale
consideration in cash in 1985. Clause (j) of the said documents
specifically stated that the right, title and interest, easement, liberties,
enjoyment and possessions are transferred in favour of the Firm
absolutely and forever. Clause (1) stated that there is Agency coupled
with interest in favour of the purchaser and he was entitled to transfer
title in favour of prospective buyers, Clause (2) empowered him to
handover possession of the property to the prospective purchaser, and
Clause (4) entitled the purchaser as an Attorney to enter into
agreements with any third parties with respect to the property and to
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receive consideration thereof from time to time. Clause (16) recorded
that the plaintiffs have delivered vacant possession of the property to
the purchaser.
23. These clauses prima facie bind the plaintiffs and it is not open
to them to contend that they are in possession of the property, and that
the General Power of Attorney ceases to have effect on the death of A.
Maisaiah, because it creates an agency coupled with interest.
24. Their plea that they were not aware of the nature of the
transaction when they executed the Agreements of Sale cum General
Power of Attorney as they were illiterate, innocent and not having
worldly knowledge will have to be established during the trial.
25. Admittedly, during the life time of A. Maisiah, who died on
13-02-2014, the plaintiffs never questioned the agreements of sale-
cum-G.P.As. on the ground of being fraudulent or that they were
sham. This silence prima facie indicates their acquiescence to the said
documents transferring title to the Firm.
26. The fact that all the plaintiffs are selling milk indicates that they
are familiar with ordinary business concepts such as "consideration"
for a sale, and they cannot prima facie be presumed to be unaware of
the same.
27. Under Section 2(d) of the Contract Act, 1872, a thing done in
the past can also be good consideration for a contract. It states :
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"Section 2. Interpretation clause
2. Interpretation clause.--In this Act the following words and expressions
are used in the following senses, unless a contrary intention appears from the
context:--
(a) ... .... ...
(b) ... ... ....
(c) ... ... ...
(d) When, at the desire of the promisor, the promisee or any other
person has done or abstained from doing or does or abstains from
doing, or promises to do or to abstain from doing, something, such
act or abstinence or promise is called a consideration for the
promise;
... ..." (emphasis supplied)
28. Under Indian Law, thus even past consideration is good for the
purpose of a contract, and the mere fact that in the instant cases, the
plaintiffs had received payments in 1985, by itself cannot be a ground
prima facie to contend that the Agreements of sale - cum - General
Power of Attorney, are not supported by consideration.
29. Inadequacy of consideration would not render a contract void as
per Explanation 2 to Section 25 of the Contract Act, 1872 and it is not
open to the plaintiffs to seek cancellation of the Agreements of Sale -
cum - General Power of Attorney on the said ground.
30. Under Section 59 of the Limitation Act, 1963, the limitation for
filing a suit to cancel an instrument or for rescission of a contract is
three years when the facts entitling the plaintiff to have it cancelled or
rescinded first became known to him. The burden of proof would lie
on each of the plaintiffs in the suits to establish that the suits, filed
nine years after the Agreements of sale - cum - General Power of
Attorney were executed, were within time.
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31. Whether proper stamp duty was paid on the Agreements of sale
- cum - General Power of Attorney at the time of their execution is an
issue which is required to be gone into at the time of trial since the
Sub-Registrar, Kukatpally has not disputed the stamp duty and
registration fee paid thereon.
32. In our opinion, the Court below overlooked the above
circumstances and erred in allowing the applications for temporary
injunction merely because some triable issues are raised by the
plaintiff, which require a full-fledged trial. In our opinion, there is no
prima facie case made out by the plaintiffs for grant of temporary
injunction pending suits restraining the firm or the purchasers from
the firm from alienating the suit schedule properties.
33. That apart, any alienation made in the subject properties
pending the suits will attract the doctrine of lis pendens under Section
52 of the Transfer of Property Act, 1882, and so, no serious prejudice
is thereby caused to the plaintiffs.
34. Accordingly, all the Civil Miscellaneous Appeals are allowed;
the orders - dt.17.10.2019 passed in I.A.No.523 of 2017 in
O.S.No.369 of 2017; dt.17.10.2019 passed in I.A.No.488 of 2017 in
O.S.NO.331 of 2017; dt.17.10.2019 passed in I.A.No.489 of 2017 in
O.S.No.332 of 2017; order dt.17.10.2019 passed in I.A.No.488 of
2017 in O.S.No.331 of 2017; order dt.17.10.2019 passed in
I.A.No.523 of 2017 in O.S.No.369 of 2017; order dt.17.10.2019
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passed in I.A.No.408 of 2017 in O.S.No.266 of 2017; order
dt.17.10.2019 passed in I.A.No.489 of 2017 in O.S.No.332 of 2017;
order dt.17.10.2019 passed in I.A.No.524 of 2017 in O.SN.o.370 of
2017; order dt.17.10.2019 passed in I.A.No.490 of 2017 in
O.S.No.333 of 2017; order dt.17.10.2019 passed in I.A.No.407 of
2017 in O.S.No.267 of 2017; order dt.17.10.2019 passed in
I.A.No.490 of 2017 in O.S.No.333 of 2017; and order dt.17.10.2019
passed in I.A.No.524 of 2017 in O.S.No.370 of 2017 on the file of XV
Additional District Judge - cum - II Additional Family Judge, Ranga
Reddy District, at Kukatpally are all set aside, and the said I.A.s are
dismissed.
35. It is made clear that any alienations made by the appellants /
defendants pending the suits, shall abide by the result of the suits.
The Court below is directed to decide the suits, uninfluenced by any
observations made in its order dt.17.10.2019 in each of the I.A.s or in
this order of this Court allowing the Appeals. No costs.
36. As a sequel, miscellaneous petitions pending if any in these
Appeals, shall stand closed.
____________________________
M.S. RAMACHANDRA RAO, J
___________________
T.VINOD KUMAR, J
Date:26.07.2021
Vsv/Ndr
