Karnataka High Court
Smt V R Shanta vs K N Narasimhaiah, Major on 1 June, 2015
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1st DAY OF JUNE 2015
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.1267 OF 2009
BETWEEN:
Smt. V.R.Shanta,
Aged about 54 years,
Wife of C. Subramanyam Naidu,
Residing at No.153,
22nd Main Road, Raghavendra Layout,
Padmanabha Nagar,
Bangalore - 560 070.
... APPELLANT
(By Shri Sreevatsa, Senior Advocate for Shri V. Vishwanath,
Advocte)
AND:
K.N.Narasimhaiah,
Major,
Son of Late Narase Gowda,
Residing in a portion of
No.5, Vidya Peeta Circle,
Banashankari 1st Stage,
Bangalore - 560 050.
...RESPONDENT
(By Shri R.A. Devanand, Advocate )
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This Regular First Appeal filed under Section 96 read with
Order 41 Rule 1 of the Code of Civil Procedure, 1908, against the
judgment and decree dated 7.10.2009 passed in O.S.No.7389/2004
on the file of the III Additional City Civil Judge, Bangalore (CCH-
25), dismissing the suit for possession, damages and damages and
mesne profits.
This Regular First Appeal having been heard and reserved on
20.4.2015 and coming on for pronouncement of Judgment this day,
the Court delivered the following:-
JUDGMENT
Heard the learned counsel for the parties.
2. The appeal is by the plaintiff before the Trial Court. The parties are referred to by their rank before the Trial Court, for the sake of convenience. It was the case of the plaintiff that she was the absolute owner of property bearing Site No.5, Old No.4 formed in Sy.No.21 of Sunkenahalli, Kattariguppe Main Road, Ward No.52, Vidyapeeta Circle, Banashankari I Stage, Bangalore-560 050 measuring East to West on the Northern side 39.6 ft., on the Southern side 32 feet and North to South on the Eastern side 53 feet and on the Western side 40 feet with a small house thereon, the said property is more fully described in the suit schedule. The plaintiff 3 claims to have purchased the same under a registered sale deed dated 18.08.2003. There were alleged to be two tenements on the property, one in the occupation of the defendant herein which is more fully described in the suit schedule and another in the occupation of Ananda Naidu.
It is further stated that the vendors of the plaintiff had originally let out the suit premises in favour of the defendant on a monthly rent of Rs.200/- and had received an advance of Rs.3,000/- under a rental agreement dated 16.06.1983 and as already stated, the other tenement in the occupation of Ananda Naidu was also let out by the same vendor and the tenancy thereof was attorned in favour of the plaintiff and rents were being paid to the plaintiff by Ananda Naidu.
However, the said property in possession of the defendant consisting of a hall, room, kitchen and toilet, had defaulted and after a lapse of one year from the date of inception of the tenancy, had denied rents to the vendor of the plaintiff and on purchase of the suit property by the plaintiff, the defendant is said to have caused 4 nuisance and is said to have harassed the plaintiff as well, in spite of which the defendant had filed a suit in O.S.No.2821/1994 for a decree of permanent injunction. It transpires that the suit was decreed against the General Power of Attorney Holder of the original vendor of the plaintiff not to dispossess the defendant without due process of law.
This strained relationship is said to have continued even thereafter.
In this background, the vendor of the plaintiff had decided to sell the entire suit property and therefore, had entered into a registered agreement of sale dated 17.2.1982 through the General Power of Attorney Holder, agreeing to execute a sale deed in her favour as per the terms and conditions stipulated therein and had received a sum of Rs.4,750/-. Thereafter, a registered sale deed is said to have been executed on 18.08.2003 in favour of the plaintiff in respect of the entire property including the suit schedule property.
The defendant on the other hand, after having obtained a judgment and decree for permanent injunction dated 31.08.1998, is 5 alleged to have created a document styled as 'an agreement of sale' in favour of his own son. It is pointed out that from 1994 till 31.08.1998, the General Power of Attorney holder of the vendor of the plaintiff had contested the suit of the defendant. There was no settlement or negotiation for alienation of the suit property in favour of the defendant or his son and the possibility of the execution of any such agreement of sale in favour of the defendant's son was therefore highly suspicious. However, the son of the defendant had proceeded to file a suit for specific performance of the said agreement in a Civil suit in O.S.No.639/2004 and the said suit was pending consideration at the time the present suit was filed by the plaintiff. That suit was contested.
The plaintiff claimed that the suit property in the occupation of the defendant was required by her along with the other tenements in the occupation of Ananda Naidu. The plaintiff intended to convert the property into a single unit and wanted to use the same for her own purposes. In this regard, Ananda Naidu is said to have agreed to quit and deliver vacant possession whenever the plaintiff 6 called upon him to do so. It is also stated that the son of the defendant was residing elsewhere and not in the suit schedule property. The plaintiff further has stated that after obtaining the registered sale deed dated 18.08.2003, the plaintiff had approached the defendant as regards rents to be paid in her favour and that he was also in arrears from the month of January 2002 onwards, till the date of payment. The defendant had stoically refused to accept the plaintiff as the owner and therefore, the plaintiff had got issued a legal notice staking her claim to the property. The defendant is said to have replied by notice dated 13.08.2004 denying the relationship of landlord and tenant as well as the claim for arrears of rent. Hence, the suit. The plaintiff sought the relief of ejectment and damages for use and occupation from the defendant, from January 2002 onwards.
The defendant on entering appearance, had filed written statement denying the plaint averments. Though there is a seeming admission in Paragraph 2 of the written statement as to the ownership of the plaintiff to the suit property, the subsequent 7 statement in the written statement would indicate that the defendant was vehemently disputing the correctness of the plaint averments since there is a wholesale denial of all the averments in the plaint.
The defendant, apart from denying the plaint averments, has stated that the vendor claimed by the plaintiff is none other than the father of the plaintiff. Her father had inducted the defendant as a tenant in respect of the suit premises and there were attempts to illegally dispossess the defendant from the suit property. Therefore, he had filed the suit for injunction as stated by the plaintiff and there was a decree of permanent injunction in favour of the defendant against the father of the plaintiff. After the suit was decreed, it is claimed that the father of the plaintiff offered the defendant and his son to purchase the entire property and accordingly, an agreement of sale dated 25.11.1998 was entered into between the father of the plaintiff and the defendant's son for a sale consideration of Rs.8,00,000/- and had received a sum of Rs.5,00,000/- as advance on 25.11.1998. It is contrary to the terms of the said agreement that 8 the plaintiff claims to have purchased the property to deny the just due of the defendant and to illegally dispossess him.
It is further stated that the sale deed in favour of the plaintiff is subject to the agreement in favour of the defendant's son and the alleged sale would not bind the defendant and the plaintiff cannot be construed as a bona fide purchaser for value, as the sale deed is executed in the knowledge that there was an agreement executed already in favour of the defendant's son and it is in that background that the suit for specific performance has been filed in O.S.No.639/2004.
3. On the basis of the above pleadings the court below had framed the following issues :
"1. Whether the plaintiff proves the existence of relationship of landlord and tenant between the plaintiff and the defendant?
2. Whether plaintiff legally and validly terminated the tenancy of the defendant in respect of the suit schedule property?9
3. Whether plaintiff is entitled to recover possession of the schedule premises from the defendant?
4. Whether plaintiff is entitled to recover Rs.6,400/- by way of damages from January 2002 till August 2002?
5. Whether plaintiff is entitled to mesne profits by way of damages from the date of the suit till delivery of vacant possession of the schedule property by the defendant to the plaintiff?
6. Whether plaintiff is entitled to the reliefs as sought?
7. What decree or order?"
The trial court had answered Issue Nos.1, 3, 4, 5 and 6 in the negative, Issue No.2 as it does not necessitate any findings and Issue No.7 as per the final order and consequently dismissed the suit. It is that which is under challenge in this appeal.
4. The learned Senior Advocate, Shri S. Shreevatsa, appearing for the counsel for the plaintiff would contend that though the admission by the defendant in the written statement about the 10 source of title and her absolute ownership of the suit schedule property. And further the admission of the defendant that her vendor had let out the property to him on a monthly rent of Rs.200/-, under a rental agreement dated 16.6.1983; And that there was even a civil suit filed by the defendant against her vendor for the relief of injunction from being dispossessed otherwise than under the due process of law, the trial court was not justified in denying the relief to the plaintiff, on the basis of material which was wholly extraneous.
It is contended that the court below was not justified in holding that the plaintiff was not entitled to any relief on account of the singular circumstance that having regard to a death certificate of the original owner of the suit property, which indicated that the owner of the property was dead, as on the date of the sale deed in favour of the plaintiff, and therefore the transaction was a nullity in the eye of law and hence the plaintiff could not claim any right under the same. It is contended that the sale deed had been executed by a duly constituted agent, a power of attorney holder, and the same if 11 executed without notice of the death of the principal, would be valid and would convey good title to the purchaser, notwithstanding the fact that the principal, on whose behalf the conveyance was made, was not alive at the relevant point of time.
Incidentally, it is also pointed out that the written statement did not contain any plea as to the sale being void on account of the circumstance that the vendor of the plaintiff having died prior to the execution of the sale deed. It is during the course of the trial that a death certificate, Exhibit D-1 was produced, which according to the learned Senior Advocate, could not have been looked into, without the necessary pleadings in respect of the same, in the light of Order VI Rule 1 and Order XVIII Rule 2 of the Code of Civil Procedure , 1908.
It is pointed out that there was also the evidence of PW-2, Anand Naidu, a tenant of another tenement of the suit schedule premises, who has endorsed the ownership and the jural relationship of land lord and tenant as between the plaintiff and himself, which has been overlooked by the court below.
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It is also pointed out that in the absence of pleadings as regards the validity or otherwise of the sale deed in favour of the plaintiff and in the absence of an issue in that regard, the trial court having arrived at a primary finding that the sale deed executed by a power of attorney holder, when the principal was dead on the date of execution would be a nullity, does not also address the question whether the said power of attorney was executed for consideration. To wit, it is on record that the entire sale consideration had been paid on the date of an agreement of sale, much prior to the execution of the sale deed. In which event it was possible for the plaintiff to establish that the power of attorney having been executed as one for consideration, would not terminate on the death of the principal and the sale deed executed by such a power of attorney holder would be valid. In any event, it is asserted by the learned Senior Advocate, that the defendant was hardly competent to question the validity of the sale deed in favour of the plaintiff, when there was no claim or objection to the exercise of ownership by the 13 plaintiff, from anybody claiming under the erstwhile owner, who are the only competent persons to raise any such objection.
Hence, it is contended that the appeal be allowed and the suit be decreed.
5. On the other hand the learned counsel for the respondent, happily, seeks to justify the judgment of the trial court.
6. At the outset it is to be taken note that the end result of the judgment of the trial court is that the sale deed of the plaintiff has been declared as a nullity, by implication, and the suit property has been handed over to the defendant, when that was not even his claim.
The trial court has, while deciding Issue no. 1, as regards the existence or otherwise of the jural relationship of land lord and tenant- as between the plaintiff and the defendant, has in effect found all other issues as being redundant and has dismissed the suit
- primarily on a finding that the sale deed in favour of the plaintiff was executed by a power of attorney holder of the owner of the suit property as on 18.8.2003, whereas the principal had died as on 14 11.5.1998. In the result the trial court has concluded that the plaintiff had not derived any right under the sale deed and consequently could not also claim as the landlord of the suit property.
The approach of the trial court in coming to the above conclusion is questionable. There were no pleadings as to the invalidity or otherwise of the sale deed in favour of the plaintiff. There was also no issue on that aspect. There was however, no denial of the ownership of the property by the vendor of the plaintiff. Consequently, a registered sale deed, if not otherwise challenged or questioned in a properly instituted suit for the purpose, by any person who is deprived of the property involved therein, would have to be given due credence. The defendant could at best claim that his tenancy had never been formerly attorned and that he would be liable to pay arrears of rent if any, to his landlord or the legal representatives of the land lord, (that the plaintiff could also claim as a legal representative by virtue of the sale deed, is another matter). Therefore in the absence of pleadings or any issue as to the 15 validity of the sale deed in favour of the plaintiff, a finding to the effect that it is null and void is illegal and results in a miscarriage of justice.
An incidental question that arises for consideration, namely, whether an agent or a power of attorney holder could transact on behalf of the principal even after the principal's death, till such time that he has notice of the death, would have to be answered in the negative.
In that, an agency may be terminated by :
a. revocation of the agent's authority by the principal ;
b. agent renouncing the agency ;
c. completion of the business of agency;
d. death of the principal or agent;
e. the principal or agent becoming of unsound mind;
f. the principal being adjudged an insolvent;
Other than the above modes of termination of the agency as contemplated under the Indian Contract Act, 1872, ( Hereinafter referred to as 'the Contract Act', for brevity) the 13th Law 16 Commission of India, 1958, has recommended the inclusion of the following additional modes of termination :
a. by mutual agreement;
b. completion of the term of agency- by expiry of the time agreed upon;
c. destruction of the subject matter of the agency; d. the agency becoming subsequently unlawful; e. dissolution of the principal firm. More particularly, it is the settled legal position that the death of the principal or the agent terminates the agency at once, whether the other has notice to that effect or not. (Campanari v. Woodburn (1854 ) 15 CB 400; Pool v. Pool (1889 ) 58 LJP 67).
In this regard Section 201 and Section 208 of the Contract Act are relevant. Section 208 is reproduced hereunder for ready reference :
"208. When termination of agent's authority takes effect as to agent, and as to third persons.--17
The termination of the authority of an agent does not, so far as regards the agent, take effect before it becomes known to him, or, so far as regards third persons, before it becomes known to them.
Illustrations
(a) A directs B to sell goods for him, and agrees to give B five per cent. commission on the price fetched by the goods. A afterwards by letter, revokes B's authority. B after the letter is sent, but before he receives it, sells the goods for 100 rupees.
The sale is binding on A, and B is entitled to five rupees as his commission.
(b) A, at Madras, by letter directs B to sell for him some cotton lying in a warehouse in Bombay, and afterwards, by letter revokes his authority to sell, and directs B to send the cotton to Madras. B after receiving the second letter, enters into a contract with C, who knows of the first letter, but not of the second for the sale to him of the cotton. C pays B the money, with which B absconds. C's payment is good as against A.
(c) A directs B, his agent, to pay certain money to C. A dies, and D takes out probate to his will. B, after A's death but before hearing of it, pays 18 the money to C. The payment is good as against D, the executor."
The section is not restricted to termination by revocation, but as Illustration (c) suggests, also applies to other modes of termination of agency. Its basis is the doctrine of apparent authority. Except as to Illustration (c), which is derived from the Roman law, and which removes an anomaly, this Section is in accordance with the common law. Under the English law, death of the principal automatically terminates the agency, whether the agent had knowledge of the death or not. (Blades v. Free (1829 ) 9 B& C 167; Drew v. Nunn (1879) 4 QBD 661; Yonge v. Toynbee (1910 ) 1 KB 215 ).
Though the agent's authority is terminated by the death or insanity of the principal, it is his duty to take reasonable steps for the protection and preservation of the interests of the principal entrusted to him. He takes these steps on behalf of the legal representatives of the deceased principal.
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In the light of the above settled legal position, the proposition canvassed by Shri Srivatsa, that the termination of the authority of an agent does not, so far as regards the agent, take effect before it becomes known to him or, as regards third persons, before it becomes known to them, is subject to the above exception, in the event of the death of the principal.
Hence, the trial court was justified in holding that on the death of the principal the power of attorney holder had no authority to act on behalf of the principal. But however, this is further subject to Section 202 of the Contract Act , which reads as follows :
"202. Termination of agency, where agent has an interest in subject-matter.--Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustrations:
(a) A gives authority to B to sell A's land and to pay himself, out of the proceeds, the debts due to 20 him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death."
Hence, where an agent has been appointed in respect of a subject matter, and he has an interest in that subject matter, such an agency cannot be terminated in any manner so as to prejudice such an interest, unless there is an express contract to that effect.
7. In the instant case on hand, in the absence of pleadings and an issue as regards the want of authority of the agent, the question whether the agency was coupled with an interest, which made the agency irrevocable has not been addressed. The fact that the entire sale consideration is said to have been paid even at the time of execution of an agreement of sale, prior to the sale deed, and the further circumstance that none of the legal heirs of the deceased 21 vendor have come forward to raise any claim, would lead to a presumption that the agent did posses the authority to convey the property , notwithstanding the death of the principal. In any event if the ownership of the vendor was not in dispute , the subsequent sale deed in favour of the plaintiff could not have been negated by the trial court by an involved deduction, in the suit by the plaintiff and in the absence of any challenge to the said sale deed.
Even assuming that the plaintiff had failed to establish that there was any attornment of the tenancy, the plaintiff was still entitled to the relief of recovery of possession of the property by virtue of title. The claim of the defendant that his son held an agreement of sale in respect of the very property, was wholly extraneous, as rightly held by the trial court.
In the result, the appeal is allowed in part. The judgment and decree of the court below is set aside. The plaintiff is held entitled to recovery of possession of the suit schedule property. The defendant shall quit and deliver vacant possession of the suit 22 property. The plaintiff is not entitled to any rent or damages, in the absence of satisfactory evidence as regards attornment of tenancy.
Sd/-
JUDGE KS*