Telangana High Court

Goda Krishna vs Pidiseti Vasantha Kumar on 6 September, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

      THE HONOURABLE Dr. JUSTICE G. RADHA RANI

                      APPEAL SUIT No.57 of 2024

JUDGMENT:

This appeal is filed by the appellant - defendant No.6 aggrieved by the

judgment and decree dated 06.11.2023 passed in O.S.No.783 of 2019 by the

Principal District Judge, Rangareddy District at L.B.Nagar, Hyderabad.

2. The respondent No.1 is the plaintiff.

3. The plaintiff filed the suit for declaration of title over the suit schedule

property and for cancellation of registered sale deed document No.10178 of

2018 dated 24.10.2018 executed between defendants 1 and 2 and to cancel the

registered sale deed document No.3612 of 2019 dated 04.04.2019 executed

between defendants 2 and 6 by declaring the same as null and void and not

binding on him and for recovery of possession of the suit schedule property by

awarding costs of the suit.

4. The plaintiff stated that he purchased a plot bearing No.165 admeasuring

267 square yards equivalent to 223.3 square meters situated in Survey Nos.48

and 49, Bandlaguda Village, Rajendranagar Taluk, Rangareddy District by

virtue of a registered sale deed document No.614 of 1982 registered in the

office of the Joint Sub-Registrar-I, RO, Rangareddy District on 21.01.1982.

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The plaintiff purchased the same after verifying the layout of defendant No.3.

The defendants 3 and 4 delivered the physical and actual possession and from

the date of registration, the plaintiff had been in continuous possession. It was

an open plot. The plaintiff was a resident of Australia and a Non-Resident

Indian (for short "NRI"). Whenever he visited Hyderabad, he used to visit the

suit schedule property. On 16.02.2019, when he visited the suit schedule

property, he found that someone had dug a trench around the property. The

plaintiff obtained Encumbrance Certificate (for short "EC") from the Joint Sub-

Registrar-II, Rangareddy District and found that there was Nil Encumbrance.

The plaintiff found that there were no encumbrances for the period from

01.01.1980 to 31.12.1982 except showing the names of defendant No.3 and the

plaintiff. He went to the office of the Sub-Registrar, Rajendra Nagar and found

Nil Encumbrance. Then, he obtained Encumbrance Certificate from the Sub-

Registrar, Gandipet and found that a sale transaction took place between

defendants 1 and 2 in the office of the Sub-Registrar, Gandipet. Therefore, the

plaintiff obtained a certified copy of the registered sale deed document

No.10178 of 2018 dated 24.10.2018 and found that it was appearing on the face

of the said document that it was forged and created with a malafide intention to

knock away the suit schedule property since the plaintiff was an NRI. Hence,

the said registered sale deed was liable to be cancelled and prayed to declare his

title over the suit schedule property.

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4.1. The plaintiff further contended that the defendant No.5 had misused the

power in registering the plot on presenting the document by defendants 1 and 2

without perusing the link documents. Taking advantage of his NRI status, the

said document was created / fabricated by defendants 1 and 2 in collusion with

defendant No.5 to knock away the property. As such, he gave a General Power

of Attorney (for short "GPA") in favor of his brother Sri P.Vinod Kumar to act

on his behalf and requested his advocate to issue a legal notice to all the

defendants. The plaintiff got issued a legal notice dated 02.03.2019 to all the

defendants to take necessary steps to cancel the registered sale deed document

No.10178 of 2018 dated 24.10.2018 with immediate effect. The legal notices

sent by the plaintiff's counsel to the defendants 1 to 5 were received by them.

But they did not choose to give reply, hence, filed the suit.

4.2. The plaintiff further submitted that on filing I.A.No.90 of 2020 by

defendant No.6, he came to know that the defendant No.6 had purchased land

bearing Plot No.165 in Survey Nos.48 and 49 admeasuring 267 square yards

situated at Bandlaguda Jagir Village and Gram Panchayat, Gandipet Mandal,

Rangareddy District. In the sale deed document No.10178 of 2018 dated

24.10.2018, it was stated and claimed that the defendant No.1 was the absolute

owner and possessor of the plot bearing No.165 in Survey No.48 and 49 having

purchased the same vide registered sale deed dated 28.05.1982 bearing

document No.3501 of 1982, Book I. Volume No.1056, Pages 19 to 20

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registered at Registrar Office, Rangareddy District. The plaintiff obtained the

certified copy of the said sale deed and found that it was executed by one

Preetam Das in favor of Smt.K.Jyothi in respect of agricultural land

admeasuring Ac.4-15 guntas or Ac.1-75 hectors covered by Survey Nos.127

and 132 together with a well situated at Vattinagulapalli Village, Rajendranagar

Taluk, Rangareddy District. Therefore, the claim and statement of defendant

No.1 as mentioned in the sale deed executed by him was absolutely false and

incorrect. There was no registered sale deed document No.3501 of 1982 dated

28.05.1982, Book I, Volume No.1056 registered at Registrar Office,

Rangareddy District in favor of defendant No.1 to claim the property described

in the sale deed executed by him in favor of defendant No.2. Thus, the

defendant No.1 had no title to the property alleged to have been purchased by

him and the defendant No.1 had no right or authority to execute the sale deed

bearing document No.10178 of 2018 dated 24.10.2018 in favor of defendant

No.2 and consequently the defendant No.2 had no right in the property to

execute the sale deed bearing document No.3612 of 2019 dated 04.04.2019 in

favor of defendant No.6. Under the guise of false and fabricated sale deeds, the

property of plaintiff was occupied by defendants 2 and 6. Therefore, the sale

deeds claimed by defendants 2 and 6 were liable to be declared as null and void

and not binding on the plaintiff and the plaintiff was entitled for declaration of

title and recovery of possession of suit schedule property.

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4.3. The plaintiff further submitted that the Sub-Registrar, SRO, Gandipet

filed a complaint with PS Narsingi on 13.10.2021 regarding the fraudulent

registration of suit schedule property under document bearing No.10178 of

2018 dated 24.10.2018 and an FIR was registered on 13.10.2021 as Crime

No.1248 of 2021 and the same was under investigation by Police.

5. The defendants 1 to 5 were set ex-parte, as they failed to appear before

the Court despite service of summons on them.

6. The defendant No.6 filed written statement contending that he purchased

the suit schedule property from defendant No.2 under a registered sale deed on

the file of the defendant No.5 vide document No.3612 of 2019 dated

04.04.2019. The defendant No.2 purchased the suit schedule property from

defendant No.1 under registered sale deed on the file of defendant No.5 vide

document No.10178 of 2018 on 24.10.2018.The defendant No.1's father by

name M.Venkat Rao S/o.Bhaskarudu purchased the suit schedule property from

defendants 3 and 4 under registered sale deed document No.3501 of 1982 dated

28.05.1982 on the file of the Sub-Registrar, Asif Nagar, Hyderabad.

6.1. He further contended that as per the sale deed document of the plaintiff

marked under Ex.P2, the age of the plaintiff was shown as 20 years. But in the

cause title, the plaintiff admitted that his age was 51 years, as such, it was false

to say that in 1982, the plaintiff's age was 20 years. The plaintiff executed a

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GPA to his brother by name Pidisetti Vinod Kumar vide document No.44/Book

No.IV/2019 dated: Nil on the file of the Sub-Registrar, Gandipet, exhibited as

Ex.P7. In the said Ex.P7, the plaintiff admitted his age as 51 years in the year

2019. Hence, his age was 14 years at the time of execution of sale deed to the

plaintiff in the year 1982. Hence, the plaintiff was minor in the year 1982. The

plaintiff must file the suit after attaining the age of majority within 3 years i.e.

in the year 1986, the plaintiff would become major and within 3 years it means

on or before 1989, the plaintiff must file the suit for declaration, but not in the

year 2019. Hence, the suit was barred by limitation under Order VII Rule 11(c).

The claim of the suit for recovery of possession has to be filed within 12 years

of attaining majority by the plaintiff on or before 1998. But the suit was filed

belatedly in the year 2019. Hence, the suit was liable to be dismissed under

Article 65 of the Limitation Act. The period of limitation for setting aside the

deed of sale would start from the date of his attaining majority. The plaintiff's

brother P.Vinod Kumar ought not to have attested on the plaint copy, since he

was only a GPA holder and only a representative of the plaintiff. But the GPA

holder attested the suit on behalf of the plaintiff. Hence, the suit was liable to

be dismissed under Order VII Rule 11(a). The registered GPA document was

not attested by the notary in each page with his office seal. Hence, the

document was not maintainable and prayed to dismiss the suit.

7. Basing on the said pleadings, the trial court framed the issues as follows:

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i) Whether the plaintiff is entitled to seek the cancellation of the registered sale deed dated 24.10.2018 vide document No.10178 of 2018 executed in between defendants 1 and 2 as null and void and not binding on the plaintiff?

ii) Whether the plaintiff is entitled to seek the cancellation of the registered sale deed dated 04.04.2019 vide document No.3612 of 2019 executed by defendant No.2 in favor of defendant No.6 as null and void and not binding on the plaintiff?

iii) Whether the plaintiff is entitled to seek declaration that he was the absolute owner of the suit schedule property by virtue of registered sale deed dated 21.01.1982 vide document No.614 of 1982?

iv) Whether the plaintiff is entitled to seek delivery of possession of the suit schedule property by defendants 1 and 2 and the persons claiming under them?

v) Whether the suit claim was barred by time?

vi) Whether the suit as framed is not maintainable?

vii) To what relief?

8. The GPA of the plaintiff was examined as PW.1 and Exs.A1 to A32 were

marked on behalf of the plaintiff. One B.Nirmal Roy, a third party was

examined as PW.2. The defendant No.6 was examined as DW.1. Another third

party by name C.Srinivas Rao was examined as DW.2. Ex.B1 to B9 were

marked on behalf of the defendant No.6.

9. On considering the oral and documentary evidence on record, the trial

court observed that it was the admitted case of both plaintiff as well as

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defendant No.6 that the suit schedule property was part of a layout developed by

defendants 3 and 4. Both the plaintiff and defendant No.6 were claiming title

through defendants 3 and 4. But the defendants 3 and 4 did not contest the case

nor did defendants 1 and 2, under whom the defendant No.6 was claiming title.

When there were two deeds namely Exs.A1 and B3, both of which were stated

to have been executed by defendants 3 and 4, then the party which is able to

establish the genuineness of their document will succeed and observed that as

the evidence would clearly establish that the document under which the

defendants 1 and 2 and defendant No.6 were claiming title namely Ex.B3 would

not exist and a criminal prosecution was also initiated against defendants 1 and

2 for fabricating Ex.B3, held that the plaintiff was able to prove that Ex.B3 does

not exist and consequently, the flow of title claimed by defendant No.6 would

become suspect. The trial court further observed that though admittedly there

was some doubt about the age of the plaintiff at the time of execution of sale

deed under Ex.A1, the same would not render it void. Since, Ex.A1 document

under which the plaintiff was claiming title was genuine, the plaintiff had to be

held to be in possession and decreed the suit in favor of the plaintiff holding that

the plaintiff was entitled for declaration that Exs.B1 and B2 would not bind

upon him and that he was entitled to be declared as owner of the suit schedule

property and was entitled for recovery of possession. The trial court also

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observed that the limitation would start running from 2019, as the plaintiff had

knowledge of his dispossession in 2019 and the suit was well within time.

10. Aggrieved by the said judgment and decree passed by the learned

Principal District Judge, Rangareddy District in O.S.No.783 of 2019 dated

06.11.2023, the defendant No.6 preferred this appeal.

11. Heard Sri D.Krishna Murthy, learned counsel for the appellant and

Sri Koka Satyanarayana Rao, learned counsel for the respondent - plaintiff.

12. Learned counsel for the appellant contended that the trial court failed to

see that the plaintiff did not even enter the witness box to prove his title to the

plaint schedule land. The Power of Attorney Holder had no authority to give

evidence on behalf of the plaintiff. The trial court failed to see that Ex.A1 sale

deed, the title document of the plaintiff remained not proved. The trial court

ought to have dismissed the suit as barred by limitation having regard to the fact

that the appellant and his predecessors in title had been in uninterrupted

possession and enjoyment of the suit schedule property from 28.05.1982. The

trial court ought not to have permitted PW.1 - the Power of Attorney Holder to

give evidence on behalf of the plaintiff without following the procedure under

Rule 32 of Civil Rules of Practice. The finding recorded by the trial court that

the sale deed Ex.B3 was a fabricated document was without any basis and liable

to be set aside. The trial court erred in holding that Ex.B3 sale deed was a

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fabricated document without even framing an issue in that regard. The court

below decreed the suit contrary to the principle of law that in a suit for

declaration of title, the plaintiff had to succeed on his own strength and not on

the weakness of the defendant. The judgment of the court below was based on

assumptions and presumptions and not based on any legal evidence on record.

The court below failed to see that Ex.A1 sale deed was a void document and did

not create any right in favor of the plaintiff, as admittedly the plaintiff was a

minor as on the date of execution of Ex.A1 and a minor could not enter into a

valid contract as per the provisions of Section 11 of the Indian Contract Act,

1872. The finding recorded by the trial court that the plaintiff was dispossessed

in 2019 from suit schedule property was without any basis. The plaintiff was

out of possession from 28.05.1982 i.e. date of execution of Ex.B3 sale deed.

The trial court ought to have seen that by virtue of Exs.B1, B2 and B3, the

appellant had got title to the suit schedule property and relied upon the

judgment of the Hon'ble Apex Court in Union of India v. Vasavi Co-

operative Housing Society Limited and Others 1 , on the aspect that the

plaintiff in a suit for declaration of title and possession could succeed only on

the strength of its own title. Even if the title set up by the defendants was found

against, in the absence of establishment of plaintiff's own title, the plaintiff

must be non-suited. He relied upon the Division Bench judgment of the High

AIR 2014 SC 937

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Court of Andhra Pradesh in Gokeda Latcharao v. Viswanadham

Bhimayya 2on the aspect that a contract entered into with a minor is a nullity for

want of legal competency. Except otherwise provided by statute, it is not

enforceable and it does not give rise to any rights or liabilities. He also relied

upon the judgment of the Privy Council in Ma Hnit and Others v. Hasim

Ebrahim Meter and another3on the aspect that a contract with a minor is void

and not merely voidable. He further relied upon the judgment of the Hon'ble

Apex Court in Janki Vashdeo Bhojwani and another v. Indusind Bank

Limited and Others 4 on the aspect that a power of attorney could not depose

for principal in respect of matters of which only a principal can have personal

knowledge and further relied upon the judgment of the Hon'ble Apex Court in

Manisha Mahendra Gala and Others v. Shalini Bhagwan Avatramani and

Others 5 on the same aspect that a power of attorney holder can only depose

about the facts within his personal knowledge and not about the facts which are

not within his knowledge or are within the personal knowledge of the person,

who he represents or about the facts that might have transpired much before he

entered the scene.

13. Learned counsel for the respondent - plaintiff on the other hand

contended that the trial court considered the case of the respondent that the

AIR 1956 Andhra 182

AIR 1919 PC 129

(2005) 2 SCC 217

2024 (3) ALD 153

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plaintiff was able to establish glaring malfeasance on the part of the appellant in

proving the fact that Ex.B3 was manufactured. There was no record of

existence of the said document on the file of the SRO, Hyderabad or SRO,

Rangareddy District or SRO, Gandipet. The trial court also observed that a

police complaint was registered on the existence of the said document. The

findings of the trial court that the sale deed document No.10178 of 2018 dated

24.10.2018 and sale deed document No.3612 of 2019 dated 04.04.2019 were

null and void and would not bind upon the plaintiff, did not suffer from any

infirmity. The contention of the appellant that the suit was barred by limitation

was illegal and untenable. The appellant had not made out any case to interfere

with the judgment and decree passed in O.S.No.783 of 2019 dated 06.11.2023.

The GPA was also given power to give evidence and relied upon the judgments

of the High Court of Allahabad in Munni Kunwar v. Madan Gopal6 and The

Collector of Meerut in charge, Court of Wards, Meerut and Special

Manager of Estate of Bibi Naushaba Begum v. Lala Hardian Singh and

Others 7 on the aspect that even though a person may be disqualified to enter

into a contract, such disqualification does not debar that person from being

transferee under a conveyance and a sale deed executed in his favor is valid and

enforceable. He also relied upon the Division Bench judgment of the High

Court of Andhra Pradesh in Secretary to Government of India, Ministry of

AIR 1915 Allahabad 107

AIR 1945 Allahabad 156

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Defence, New Delhi and another v. Indira Devi and another 8 on the aspect

that when once a person files a suit on behalf of the party, as a GPA holder he

enters into the shoes of that party and except to the extent of personal

knowledge, he is entitled to depose on other facts. He also relied upon the

Division Bench judgment of the High Court of Andhra Pradesh in Podelly

Chinna Chinnanna v. Bandari Pedda Bhumanna and Others9 on the aspect

that a party in a suit can appear and act through his power of attorney holder.

Power of Attorney Holder is also competent to give evidence on behalf of the

party.

14. Now the points for consideration in this appeal are:

(i) Whether the suit filed by the plaintiff through his GPA is maintainable?

(ii) Whether the plaintiff was a minor at the time of entering into Ex.A1 and whether the said sale deed was void?

(iii) Whether the plaintiff is entitled for declaration that he was the absolute owner of the suit schedule property?

(iv) Whether the plaintiff is entitled to seek cancellation of the registered sale deed document No.10178 of 2018 dated 24.10.2018 executed in between respondents 1 and 2 and the registered sale deed document No.3612 of 2019 dated 04.04.2019 executed by defendant No.2 in favor of defendant No.6 as null and void and not binding upon him and whether he is entitled to seek recovery of possession from defendants 1, 2 and 6 or any persons claiming through them?

2003 (4) ALD 302 (DB)

2004 (1) ALD 241 (2) (DB)

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(v) Whether the suit filed by the plaintiff was barred by limitation?

(vi) To what result?

P O I N T No.(i):

Whether the suit filed by the plaintiff through his GPA is maintainable?

15. As seen from the record, the plaintiff is a resident of Australia, an NRI

and filed the suit through his brother, his GPA holder Sri P.Vinod Kumar. The

GPA document was marked as Ex.A6. It was a registered document bearing

No.44/Book No.IV/2019 registered in the Office of the Sub-Registrar, Gandipet

on 22.02.2019. In that document, the plaintiff authorized his brother to appear

on his behalf and act in all courts, civil, criminal, revenue, whether original or

appellate, in all offices of the State and Central Government and of local bodies

in relation to the schedule property i.e. plot bearing No.165 in Survey Nos.48

and 49 admeasuring 267 square yards equivalent to 223.3 square meters situated

at Bandlaguda Jagir Village and Gram Panchayat, Gandipet Mandal,

Rangareddy District. He also authorized his brother, the GPA holder to depose,

file affidavits on his behalf and to give evidences before judicial and quasi-

judicial forums of law and to sign and verify plaints, written statements,

petitions of claims and objections, execute petitions, appeal, enter into

compromise and settle the matter amicably and file them in such courts and

offices and to appoint advocates and other legal practitioners.

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16. Basing on the said document, the GPA holder of the plaintiff filed his

evidence affidavit as PW.1. He stated about the purchase of the property by the

plaintiff from Sri Abhyudaya Cooperative House Building Society Limited

through registered sale deed document bearing No.614 of 1982 dated

21.01.1982. The same was marked as Ex.A1. In his cross-examination, he

stated that he did not know exactly as to how the plaintiff purchased the

property. He stated that as per the Aadhar Card of the plaintiff attached to

Ex.A6, the plaintiff was a minor in the year 1982 and he was also a minor. The

contention of the learned counsel for the appellant was that the plaintiff was a

minor at the time of executing Ex.A1. As such, the same was a void document

and creates no title, the plaintiff failed to enter into the witness box, PW.1 was

also 12 years old at that time. No other witnesses were examined in proof of

Ex.A1, as such the same remained not proved. The suit ought to have been

dismissed on this ground alone, as the plaintiff was a minor, Ex.A1 not proved

and the GPA was not competent to speak about Ex.A1. The trial court decreed

the suit on the presumption that the defendant's document was not correct but

failed to consider that the plaintiff failed to establish his title independently and

relied upon the judgments of the Hon'ble Apex Court in Janki Vashdeo

Bhojwani and another v. Indusind Bank Limited and Others (cited supra)

and Manisha Mahendra Gala and Others v. Shalini Bhagwan Avatramani

and Others (cited supra).

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17. In Janki Vashdeo Bhojwani and another v. Indusind Bank Limited

and Others (cited supra), the Hon'ble Apex Court held that:

"13. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross- examined."

18. But on a perusal of the Power of Attorney marked as Ex.A6 in this case,

it would disclose that the principal authorized the Power of Attorney Holder not

only to sign and verify the plaint but also to give evidence on his behalf before

the judicial and quasi-judicial forums of law.

19. In Manisha Mahendra Gala and Others v. Shalini Bhagwan

Avatramani and Others (cited supra), the Hon'ble Apex Court held that:

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"28. The law as understood earlier was that a General Power of Attorney holder though can appear, plead and act on behalf of a party he represents but he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party. However, subsequently in Janki Vashdeo Bhojwani vs. IndusInd Bank Ltd.[(2005) 2 SCC 217], this Court held that the Power of Attorney holder can maintain a plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question. It was opined that the Power of Attorney holder or the legal representative should have knowledge about the transaction in question so as to bring on record the truth in relation to the grievance or the offence.

However, to resolve the controversy with regard to the powers of the General Power of Attorney holder to depose on behalf of the person he represents, this Court upon consideration of all previous relevant decisions on the aspect including that of Janki Vashdeo Bhojwani (supra) in A.C Narayan vs. State of Maharashtra [(2014) 11 SCC 790] concluded by upholding the principle of law laid down in Janki Vashdeo Bhojwani (supra) and clarified that Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it.The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as

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a witness. The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub-delegation.

29. It is, therefore, settled in law that Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before he entered the scene. The aforesaid Power of Attorney holder PW-1 had clearly deposed that he is giving evidence on behalf of plaintiff Nos. 2 to 4 i.e. the Gala's. He was not having any authority to act as the Power of Attorney of the Gala's at the time his statement was recorded. He was granted Power of Attorney subsequently as submitted and accepted by the parties. Therefore, his evidence is completely meaningless to establish that Gala's have acquired or perfected any easementary right over the disputed rasta in 1994 when the suit was instituted."

20. The Division Bench of this Court in Podelly Chinna Chinnanna v.

Bandari Pedda Bhumanna and Others (cited supra) held that:

10. Order III of the Code of Civil Procedure, contemplating the mode of appearance of parties, under Rule 2, allows recognized agents,

Dr.GRR, J as_57_2024

who include power of attorney to appear, apply and act on behalf of party. There is no embargo as such in making appearance through power of attorney except to the extent of the requirement of prior permission from the Court.

11. Section 1-A of the Powers of Attorney Act, 1882 defines 'power of attorney', which in an inclusive definition, as any instrument empowering a specified person to act for and in the name of the person executing it. Section 2(21) of the Indian Stamp Act, 1899 also defines power of attorney, which is again an inclusive definition and borrows the very same expressions from Section 1-A of the Powers of Attorney Act. Thus it is the declaration of power to act for and in the name of executor. In fact, Rule 2 of Order m CPC and Rule 32 of the Civil Rules of Practice in their procedural ambit, contemplate appearance, application and act.

Though the very expression 'act' is sufficiently wide enough, the procedural format extends to appearance and application. This is because every party has to appear and it is only to enable the power of attorney to surrogate by stepping into his shoes that the apt connotations are brought in. Section 85 of the Evidence Act envisages presumption of execution and authentication of the document where it is authenticated by Notary public, or any Court, Judge, Magistrate, Indian Consul etc. In view of such presumptions, the initial part of proof of document is dispensed with. The document does

Dr.GRR, J as_57_2024

not require registration, except for the purposes of presentation and registration of documents as provided for under Section 32 of the Registration Act. Section 118 of the Evidence Act envisages as to who may testify. All persons are competent unless the Court considers incapacity for situations contemplated therein. Thus, incompetence is only an exception. The competence does not take in the compellability, though certain witnesses like officer of bank are exempted under Banker Books Evidence Act, 1891. It also does not bring a power of attorney in its fold of competency nor specifically prohibits. Therefore, there is no bar for a power of attorney to represent the principal unless the law does not intend, either expressly or impliedly. The provisions of Powers of Attorney Act have to be read with the aforesaid provisions of the Code of Civil Procedure and the Civil Rules of Practice, which amply substitutes the power of attorney in the place of a party. Section 60 of the Evidence Act insists oral evidence to be direct viz., the best evidence available should be brought before the Court.

However, while weighing the evidence, Court can certainly take note of absence or withholding of best evidence and can draw inference. There is no doubt that parties to the proceedings have to appear and give evidence. A Power of Attorney surrogates a party in all aspects, including giving of evidence. As contemplated under Section 18 of the Evidence Act, statements made by an agent constitute a

Dr.GRR, J as_57_2024

valid admission. However, in a given case, depending on facts and circumstances, due credits, presumptions and inferences can be drawn if the power of attorney is examined but not the party. But there is no bar completely against the power of attorney being examined on behalf of the party.

14. In view of the aforesaid principles and the provisions, it cannot be said that any restrictions can be imported which are not contemplated under the law. The very expression 'act' takes in every step by the G.P.A., on behalf of the executant and further it gets buttressed by the preceding expressions 'appearance' and 'applications'. However, the extent of credence to be given to the statement of a General Power of Attorney is totally a different consideration and it turns on each individual case. In a given circumstance, the non-examination of the principal or withholding himself may be fatal but the Court cannot throw out the evidence of a power of attorney on behalf of the principal, which has to be tested on the same lines as any witness subject to the principles under the law of evidence. In a given case, if the statement of a power of attorney cannot be relied on as not being a direct evidence, necessary presumption can always be drawn against the party for not coming before the Court. There is also no bar, if the circumstances warrant, to examine the party himself in the Court on a commission if he is otherwise disabled. But it cannot be said that

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there is any such total bar under law for examining a power of attorney on behalf of the executant. In the decision of this Court in K.Bharathi v. Labor Officer [1999 (3) ALT 428], the attention of the learned Judge was not drawn to the provisions of the Power of Attorney Act and also as to the scope of the expressions used 'appearance' and 'applications' along with 'acts'. Even the other decisions considering the very provisions under Order III CPC and the Civil Rules of Practice have not been brought to the notice of the Court.

15. Therefore, the only requirement for a person to come into the witness box to speak in regard to any facts and circumstances of the case is that he should be competent enough to testify i.e., to speak. The competency as contemplated is very wider in its connotation. There is distinctive feature between one who is said to be competent on behalf of the person to speak and another how far and to what extent the person can speak.

These two aspects cannot be mixed up to reject a person from entering the witness box. As long as one holds proper authority under a Power of Attorney or otherwise, he is fully competent to come as witness on behalf of the said party. The competency as provided for further gets extended under Section 120 there of providing that in any civil proceedings the husband or wife of a party to a suit shall be a competent witness. Therefore, it cannot be said that the Power of Attorney holder cannot be said to be

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incompetent as witness on behalf of the party/executant. Neither the decisions reported in Ramprasad v. Harinarayan and Others[AIR 1988 Raj. 185] or K. Bharathi's case (supra) considered these aspects and as such it has to be held that the aforesaid decision is not correct. It is thus held answering the reference that a Power of Attorney holder is a competent witness on behalf of the party/ executant and further that the effect and relevancy of such evidence has to be considered from proper perspective on the facts and circumstances of each case."

21. Thus, a power of attorney holder is a competent witness to speak on

behalf of the party / executant. But he must be having knowledge about the

transaction in question.

22. In Secretary to Government of India, Ministry of Defence, New Delhi

and another v. Indira Devi and another (cited supra), a Division Bench of

this Court held that:

"16. Therefore, the requirement is that when GPA-holder is representing the party, the Judge is required to record in writing that he is permitted to appear and act on behalf of the party. In the instant case, the procedure prescribed under Rule 32 of Civil Rules of Practice has been followed. The case dealt with by the learned Single Judge of Rajasthan High

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Court was on a different footing. Apart from that, thus when once a person files a suit on behalf of the party, as a GPA holder he enters into the shoes of that party and except to the extent of personal knowledge, he is entitled to depose on other facts. In the instant case, what was relied upon by the plaintiffs is entirely documentary evidence, which are public documents and no personal knowledge was required to be pressed into service to establish the case of Plaintiff."

23. In the present case also, the Power of Attorney Holder was speaking

about Ex.A1, a registered sale deed and no personal knowledge was required to

be pressed into service to establish the case of the plaintiff. As such, the suit

filed by the plaintiff through his GPA is maintainable.

P O I N T No.(ii):

Whether the plaintiff was a minor at the time of entering into Ex.A1 and whether the said sale deed was void?

24. The contention of the learned counsel for the appellant was that the

plaintiff was a minor at the time of entering into Ex.A1 and as such the sale

deed document was void. Ex.A1 is the registered sale deed of the plaintiff

bearing document No.614 of 1982 dated 21.01.1982 registered at the Office of

Sub-Registrar-I, RO, Rangareddy District. The age of the plaintiff was shown

as 20 years in the said document. The said document was executed by Sri

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Abhyudaya Cooperative House Building Society Limited represented through

its President Sri A.N.Abraham and Secretary Sri C.Sarvesham in favor of the

plaintiff with regard to the suit schedule property bearing plot No.165 on

payment of a consideration of Rs.1602/- paid by the purchaser to the Society.

The contention of the learned counsel for the appellant was that as per the

Aadhar card annexed to Ex.A6, the date of birth of the plaintiff was recorded as

19.03.1967. Thus, the plaintiff was aged 15 years 3 months by the date of

executing the sale deed, marked as Ex.A1. As such, the same was a void

document and relied upon the judgment of the Privy Council in Ma Hnit and

Others v. Hasim Ebrahim Meter and another (cited supra), wherein it was

held that:

"17. ... Under the Indian Contract Act, where a minor purports to contract, his alleged contract is void and not merely voidable, he is a person who is not competent to contract. [See Mohori Bibi v. Dharmadas Ghose [(1903) 30 Cal.

539], Miv Sarwarjan v. Fakhriddin Mahomed Chouduri [(1911) 39 Cal. 232]. Ali Hashim Meter certainly was a minor and Fatima Bibi apparently was a minor when the promissory note was made. The suit should have been dismissed on the ground if there was no other ground for dismissing it. Although the appointment by a Court of a guardian for the suit of a minor defendant sued on a contract which purported to have been made by him would not

Dr.GRR, J as_57_2024

get over the difficulty that he was incompetent to contract, no guardian for the suit appears to have been appointed by the Court, although each of the Judges below ought to have seen from the proceedings before them that Ali Hashim Meter and Fatima Bibi were minors. They ought to have observed that Hamed Ebrahim Madari described himself in his counter-claim as their guardian. These Judges ought also to have considered the form of the promissory note upon which Fatima Bibi was sued as a principal, and whether, even if she had been of full age, at the date of the promissory note, she had made herself liable on it."

25. He also relied upon the Division Bench judgment of this Court in

Gokeda Latcharao v. Viswanadham Bhimayya (cited supra), wherein it was

held that:

"43. The law may be briefly summarized. A contract entered into with a minor is a nullity for want of legal competency. Except as otherwise provided by statute, it is not enforceable and it does not give rise to any rights or liabilities.

44. It is non est. It follows from this legal position that a person who parted with his goods can trace them into the hands of the quondam minor and recovers them back in specie, for, he has not lost his title to them. But he cannot seek to recover their price or damages for, if allowed, he would be indirectly asking for the enforcement of the contract and to recover

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damages for the breach. Nor can a person, who lends money to such a minor, recover it. If allowed to do so, the court would be enforcing a contract of loan. The English decisions graphically describe this position as " restitution stops where repayment begins. " but, there is another principle of equity, namely, that one who seeks equity must do equity. If a quondam minor as plaintiff seeks relief from a court on the basis that the contract was void, the court could refuse that relief unless he has made good his fraudulent representation. If he seeks to recover through court goods which he parted with after receiving the consideration, the court will not help him except by imposing the condition of returning the consideration amount. The principle is embodied in sections 39 and 41 of the Specific Relief Act. Apart from the fact it statutorily recognizes a well - settled principle of equity, it is not open to extend the limits of the operation of the provisions by stretching the language or otherwise adding to its contents. When a statute specifically provides for the case of a plaintiff seeking to cancel a document, it is not permissible to invoke other equitable principles, which would make the provisions nugatory. Further, this will enable the parties to circumvent the prohibition against dealing with minors and, by clever drafting of pleadings, help them to indirectly enforce a contract which is a nullity. Nor can section 65 be invoked as it pre - supposes the existence of a contract between persons with legal competency."

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26. Learned counsel for the respondent on the other hand relied upon the

judgment of the High Court of Allahabad in Munni Kanwar v. Madan Gopal

(cited supra), wherein it was held that:

"Section 5 of the Transfer of Property Act defines "transfer of property" as an act by which a living person conveys property to one or more other living persons, or to himself and one or more living persons. Section 6, Clause (h), of the same Act sets forth the class of transfers of property which cannot be made. It does not state that a transfer cannot be made to a minor. Section 7 provides that every person competent to contract and entitled to transferable property is competent to transfer such property. Nowhere in the Act is it provided that a minor is incapable of being a transferee of property, and as a matter of practice, we are well aware that transfers of immovable property are everyday made to minors. Section 127 by necessary implication shows that a person who is not competent to contract may be the donee of immovable property, and that even in the case of property burdened with an obligation if after he has become competent) to contract and aware of the obligation he retains the property he becomes bound."

27. The High Court of Allahabad in The Collector of Meerut in-charge,

Court of Wards, Meerut and Special Manager of Estate of Bibi Naushaba

Begum v. Lala Hardian Singh and Others (cited supra), held that:

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"There is ample authority in support of the view that, even though a person may be disqualified to enter into a contract, such disqualification does not debar that person from being transferee under a conveyance. The reason for this view is that totally different considerations apply when a matter passes from the domain of contract into that of a conveyance. It is on this ground that it has been held that even though a minor is incompetent to enter into a contract, no such disability attaches to him in the matter of transfer of property, and a sale deed executed in his favor is valid and enforceable."

28. Thus, as seen from the above judgments, even though a minor may be

disqualified to enter into a contract, such disqualification does not debar that

minor from being transferee under a conveyance. Even though, a minor is

incompetent to enter into a contract, no such disability attaches to him in the

matter of Transfer of Property and the sale deed executed in his favor is valid

and enforceable. Thus, this Court does not agree with the contention of the

learned counsel for the appellant that since the plaintiff was a minor at the time

of entering into Ex.A1, the said sale deed was a void document. As such, both

these points are answered in favor of the respondent - plaintiff as against the

appellant - defendant No.6.

P O I N T No.(iii):

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Whether the plaintiff is entitled for declaration that he was the absolute owner of the suit schedule property?

29. In a suit for declaration of title and possession, the burden lies upon the

plaintiff to adduce sufficient evidence in proof of his title, irrespective of

whether the defendants have proved their case or not. The plaintiff in discharge

of the said burden got filed the registered sale deed document Ex.A1. Ex.A1 is

a valid document entered in the books of the Sub-Registrar. The same was

earlier in point of time to that of the document marked under Ex.B3, through

which, the father of defendant No.1 was alleged to have purchased from the

same owners defendants 3 and 4 on 28.05.1982. Exs.A3 to A5, the

Encumbrance Certificates also would disclose the name of the plaintiff alone as

found in the record from 01.05.1995 to 30.09.2007.

30. The defendant No.6 was claiming title to the suit schedule property

through a registered sale deed document executed by defendant No.2 in his

favor vide document No.3612 of 2019 dated 04.04.2019. The defendant No.2

sold the suit schedule property to defendant No.6 after receiving the legal notice

from the plaintiff on 02.03.2019. The defendant No.2 was alleged to have

purchased the suit schedule property from defendant No.1 under a registered

sale deed document No.10170 dated 24.10.2018. The defendant No.1's father

by name M.Venkat Rao alleged to have purchased the suit schedule property

from defendants 3 and 4 under registered sale deed document No.3501 of 1982

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on 28.05.1982. The registered sale deed document dated 04.04.2019 was

marked as Ex.B1. The registered sale deed document dated 24.10.2018 was

marked as Ex.B2 and the registered sale deed document dated 28.05.1982 was

marked as Ex.B3. As seen from Ex.B3, it was alleged to be registered in the

Office of the Sub-Registrar, Asif Nagar, Hyderabad. The suit schedule property

is located in Survey Nos.48 and 49 situated at Bundlaguda Shivar Village and

Gram Panchayat, Rajendranagar Taluk, Rangareddy District. Ex.A1, the

registered sale deed document of the plaintiff was registered in the Office of the

Joint Sub-Registrar-I, RO, Rangareddy District. But, this document under

Ex.B3 was containing the seal of the Registrar of Hyderabad. When the

property is located in Rangareddy District, the registration of the document in

the office of the Joint Sub-Registrar of Hyderabad itself raises suspicion over

the said document. In addition to it, the plaintiff also got marked Ex.A29, the

letter addressed by the Sub-Registrar, SRO, Gandipet, Rangareddy District to

the Station House Officer of PS Narsingi that the document No.10178 of 2018

registered at SRO Gandipet on 24.10.2018 was a fraudulent document with a

fabricated link document No.3501 of 1982. The Sub-Registrar in his letter

stated that the presentant of the document Sri M.Srinivas, S/o.late M. Venkat

Rao i.e. the defendant No.1 in this case mislead his office by producing a fake

link document and got executed the sale deed with an ill intention to cause harm

to the present owners of the property and to cheat the Government Officials by

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producing fake and fraudulent material and requested to take action against

them under Section 82(a) of the Registration Act and also under the relevant

provisions.

31. All these aspects would disclose that the title documents of the defendant

No.6 and its link documents are suspicious.

32. As the registered document filed by the plaintiff marked under Ex.A1 is

considered as valid and genuine, the plaintiff is entitled to seek for a declaration

that he is the absolute owner of the suit schedule property. As the suit schedule

property is a vacant plot, as per the maxim 'possessions follows title', the

possession must be deemed to follow title, where there is no definite proof of

possession by anyone else.

P O I N T No.(iv):

Whether the plaintiff is entitled to seek cancellation of the registered sale deed document No.10178 of 2018 dated 24.10.2018 executed in between respondents 1 and 2 and the registered sale deed document No.3612 of 2019 dated 04.04.2019 executed by defendant No.2 in favor of defendant No.6 as null and void and not binding upon him and whether he is entitled to seek recovery of possession from defendants 1, 2 and 6 or any persons claiming through them?

33. As the alleged documents of title filed by defendant No.6 marked under

Ex.A1 and its link documents under Exs.B2 and B3 are considered as

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suspicious documents, the plaintiff is entitled to seek for cancellation of the said

registered sale deed documents as null and void and not binding on him. As the

defendants 1, 2 and 6 are raising their claim over the suit schedule property

basing upon these documents and are alleged to have taken possession of the

plaintiff's vacant plot, the plaintiff is entitled to seek for recovery of possession

from defendants 1, 2 and 6.

P O I N T No.(v):