Karnataka High Court
Dr.J.M. Chandra Kishan vs Sri S. Srinatha Rao on 18 September, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL NO. 1427 OF 2013 (DEC/INJ)
BETWEEN:
DR. J.M CHANDRA KISHAN,
S/O LATE SRI J.K MOTI RAO,
AGED ABOUT 47 YEARS,
DEPARTMENT OF CIVIL ENGINEERING,
INDIAN INSTITUTE OF SCIENCE,
BANGALORE-560 003.
....APPELLANT
(BY SRI S.V GIRIDHAR, ADVOCATE)
AND:
1. SRI S. SRINATHA RAO,
SINCE DEAD BY HIS LRS.
1(a) SARAMMA @ SAKAMMA,
AGED ABOUT 60 YEARS.
1(b) MS. SHWETHA,
AGED ABOUT 32 YEARS.
1(c) SWAROOP,
AGED ABOUT 30 YEARS.
RESPONDENTS 1(a) TO 1(c) ARE
R/AT NO. 16/31, NANDI DURGA ROAD, 2 OPPOSITE TO CANARA BANK, JAYA MAHAL EXTENSION, BANGALORE-560 046
2. SMT. RATHNA BAI POLE, W/O LATE SRI RAMACHANDRA RAO POLE, AGED ABOUT 71 YEARS R/AT NO. 514, 5TH CROSS, H.M.T LAYOUT, R.T NAGAR, BANGALORE-560 032.
3. SRI S JAGADEESH, S/O LATE C K SRINIVASA RAO, AGED ABOUT 63 YEARS, R/AT NO.358/7, 4TH MAIN, 6TH CROSS, V R PURAM, PALACE GUTTAHALLI, BANGALORE-560 003.
...RESPONDENTS (SERVICE OF NOTICE IS HELD SUFFICIENT IN RESPECT OF R-1( a TO c) V/O DATED 30.05.2019 SERVICE OF NOTICE TO R-2 AND R-3 ARE HELD SUFFICIENT V/O DATED 28.07.2023) THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SEC 96 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 17.9.2010 PASSED IN O.S.NO.15433/1999 ON THE FILE OF XXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL, BANGALORE, DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION. THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.08.2024, THIS DAY ORDER WAS PRONOUNCED THEREIN, AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM 3 C.A.V. JUDGMENT The captioned appeal is by defendant No.2 assailing the judgment and decree rendered in O.S.No.15433/1999 wherein plaintiff's suit seeking relief of declaration to declare the Will dated 15.10.1997, set up by defendant No.1, alleged to have been executed by S.R. Rao, as a forged Will and the declaration that the GPA dated 21.7.1997 executed by S.R. Rao in favour of plaintiff is a valid document inspite of death of S.R. Rao.
2. For the sake of convenience the parties are referred to as per their rank before the trial Court.
3. Plaintiff instituted a suit seeking following reliefs:
"(a) to declare that the Will dated 15th Oct. 1997 claimed by the first defendant alleged to have been executed by S.R. Rao is a 'Forgery Will'.4
(b) For permanent Injunction restraining the first defendant or anybody claiming under the first defendant from making use of the 'Forgery Will' dated 15th Oct. 1997;
(c) To declare that the General Power of Attorney dated 21.7.1997 executed by S.r. Rao (Late) in favour of the plaintiff is a valid document under the law even after the death of S.R. Rao;
(d) For permanent Injunction restraining the first defendant from causing interference with respect to the schedule property;
(e) To declare that the signature found on the forgery Will dated 15th Oct. 1997 as claimed by the first defendant is not that of S.R. Rao;
(f) And further prays for such other relief or reliefs as this Hon'ble Court deems fit in the circumstances of the case, including the cost of the suit, according to law."
4. Plaintiff and defendant No.1 are brother and sister respectively and defendant No.2 is the purchaser of the suit property, which is the subject matter of the suit. Plaintiff submits that his brother 5 S.R. Rao is the owner of the suit property and during his life time executed an agreement of sale on 24.11.1995 for valuable sale consideration of Rs.4 lakhs and delivered vacant possession to plaintiff. Plaintiff alleged that he has paid the entire sale consideration to his brother S.R. Rao. The plaintiff also contended that in the event of non-registration of sale deed due to any inevitable circumstances, plaintiff alone is entitled to succeed to the property as absolute owner. Plaintiff also contended that his brother S.R. Rao has executed a GPA in his favour on 21.7.1997.
5. Plaintiff submits that he has in turn executed an agreement of sale on 28.1.1998 and as per the terms of agreement, defendant No.2 agreed to purchase the property for sale consideration of Rs.8,70,000/- and in terms of the agreement, defendant No.2 paid a sum of Rs.1,00,000/- and the 6 balance sale consideration of Rs.7,70,000/- was agreed to be paid at the time of registration of sale deed before the Sub-Registrar. The plaintiff further contended that defendant No.2 has totally paid Rs.5,00,000/- after execution of agreement to sell and further a sum of Rs.70,000/- was agreed to be paid at the time of registration of the sale deed and balance sale consideration of Rs.3,00,000/- was agreed to be paid at the time of change of katha.
6. The cause of action for the plaintiff to file the present suit is on the ground that defendant No.1/sister has filed objections to the application filed by plaintiff seeking issuance of katha and the disclosure in the objection that she has succeeded to the estate of S.R. Rao based on a Will. Hence, the present suit.
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7. Defendant No.1 filed written statement and asserted title on the basis of the Will alleged to have been executed by S.R. Rao in her favour and accordingly, sought for dismissal of the suit.
8. Defendant No.2 filed written statement and disputed the payment made by him to plaintiff. Defendant No.2, on the contrary, claimed that he has paid the entire sale consideration of Rs.8,70,000/- and therefore, asserted title over the property in question.
9. The trial Court framed following issues:
"1) Whether the plaintiff proves that he purchased the suit schedule property from his brother S.R. Rao?
2) Whether the defendant No.1 proves that a Will was executed in her favour to claim the suit schedule properties?
3) Whether the plaintiff is entitled for the relief of declaration and consequential injunctions ought?
4) What order or decree?
ADDL. ISSUES:
1) Whether plaintiff proves that there was an agreement of sale with second defendant in respect of schedule property?8
2) Whether plaintiff proves that the second defendant paid only a sum of Rs.5,70,000/- towards the sale consideration of Rs.8,70,000/-?
3) Whether defendant No.2 proves that he is the bonafide purchaser of the sale property for valuable consideration?
4) Whether the plaintiff proves that the Will dated 15.10.97 claimed by the 1st defendant executed by S.R. Rao is forged?
5) Whether the plaintiff proves that the GPA dated 21.7.97 is a valid document even after the death of S.R. Rao?
10. Plaintiff and defendant No.1 have let in oral and documentary evidence. Defendant No.2 has not chosen to lead any evidence and no documents are produced by defendant No.2.
11. The trial Court on appreciation of oral and documentary evidence answered issue No.1 in the negative and held that plaintiff has failed to prove that he has purchased the suit property from his brother S.R. Rao. Defendant No.1 having set up the Will failed to substantiate the same and issue no.2 is answered in the negative. Though defendant No.2 9 claimed to be the bonafide purchaser, he has failed to lead evidence and no sale deed is produced and additional Issue No.3 is answered in the negative. Accordingly, the trial Court has dismissed the suit filed by the plaintiff.
12. Plaintiff has not challenged the judgment and decree rendered by the trial Court. Defendant No.2 has preferred the present appeal.
13. Learned counsel appearing for defendant No.2 reiterating the grounds has vehemently argued and contended that Trial Court erred in declaring that plaintiff has failed to prove his ownership over the property when no relief in that regard was sought by the plaintiff. The counsel would further point out that the trial Court erred in recording a finding on GPA dated 21.7.1997. The counsel for defendant No.2 would submit that the sale deed executed by plaintiff 10 in his favour is ratified and therefore, the same is covered under Section 43 of the Transfer of Property Act. Learned counsel would further point out that after dismissal of the suit, plaintiff has taken undue advantage of the dismissal of the decree and has executed a release deed in favour of defendant No.3. Referring to the prayer sought in the plaint ,he would point out that the core issue which was called upon to be answered by the trial Court was the genuineness of the Will. Therefore, he would contend that the trial Court having answered issue No.2 in the negative and against defendant No.1 ought to have decreed the suit by declaring that the alleged Will set up by defendant No.1 is a forged Will.
14. Heard the learned counsel appearing for appellant/defendant No.2. This Court has re- appreciated pleadings, oral and documentary evidence let in by the parties.
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15. The following points are considered for determination by this Court:
"(i) Whether Defendant No. 2 (the appellant) has locus standi to challenge the judgment and decree passed by the trial court in dismissing the plaintiff's suit?
(ii) Whether Defendant No. 2, in the absence of a counterclaim and having failed to present evidence, can seek an adjudication of his rights when the plaintiff's suit has been dismissed?"
16. Findings on Point No.1:
Before delving into the case, it is essential to extract paragraphs 7 and 8 of the plaint, which reads as follows:
"7. The plaintiff submits that Defendant No. 2 has paid a total sum of INR 5,70,000 out of the agreed amount of INR 8,70,000. The payments were made in the following manner:
a) INR 1,00,000 by cheque No. 210393 dated 28.01.1998.
b) INR 25,000 by cheque No. 234963 dated 24.02.1998.
c) INR 20,000 by cheque No. 210394 dated 17.03.1998.
d) INR 55,000 by cheque No. 210395 dated 07.04.1998.
e) INR 1,00,000 by cheque No. 210397 dated 09.05.1998.12
f) INR 1,00,000 by cheque No. 210398 dated 15.05.1998.
g) INR 1,00,000 by cheque No. 210399 dated 19.05.1998.
(All cheques were drawn on the Indian Overseas Bank, Shivan Chetty Garden Branch, Bangalore, by Defendant No. 2 in favor of the plaintiff.) After paying INR 5,00,000, Defendant No. 2 persuaded the plaintiff that only INR 70,000 would be paid on the date of the registration of the absolute sale deed, and the remaining INR 3,00,000 would be paid after the "khatha" was changed to Defendant No. 2's name. Due to the insistence of Defendant No. 2, the plaintiff agreed to receive the remaining INR 3,00,000 after the khatha transfer, following the registration of the absolute sale deed in Defendant No. 2's favor. The plaintiff wrote a letter to Defendant No. 2 detailing this agreement and requested that the Singapore address of the deceased S.R. Rao not be included in the sale deed, similar to the agreement dated 24.11.1995. This letter was sent by certificate of posting, with a copy and postal acknowledgment enclosed as Documents Nos. 24 and 25. Paragraph 8: On 20th June 1998, Defendant No. 2 brought a pre-prepared sale deed on non-judicial stamp paper, along with his advocate, to the Sub-Registrar's office. The plaintiff was surprised to see that the sale deed mentioned S.R. Rao's address in Singapore. Defendant No. 2 assured the plaintiff that this mention would not cause any issues. As the irrevocable Power of Attorney holder, the plaintiff executed the absolute registered sale deed, also as the successor of S.R. Rao. The plaintiff wrote a letter to Defendant No. 2 requesting the balance payment of INR 3,00,000. A copy of the letter and postal acknowledgment are enclosed as Documents Nos. 26 and 27, and the Xerox copy of the absolute sale deed executed in favor of Defendant No. 2 is enclosed as Document No. 28. 13
17. It is also relevant to extract paragraphs 4 to 7 of the written statement filed by Defendant No. 2:
"4. This Defendant denies all the averments made in Para 5 and puts the Plaintiff to strict proof. This Defendant was not made known by the plaintiff that S.R. Rao sold the schedule property in favour of the plaintiff under an agreement to sell dated 24.11.95 for valuable consideration of Rs.4,50,000/- and he was given all the original title deeds and he further denies that the plaintiff informed to the Defendant that in the said agreement to sell there is a clear recital that in the even of non-execution of the proposed GPA or non- registration of the Absolute Sale Deed due to any inevitable and unforeseen circumstances, the plaintiff is entitled to succeed to the schedule property as absolute owner. These averments are news to this Defendant. This defendant is the bonafide purchaser for valuable consideration and has paid the entire consideration to the plaintiff, as agreed. The plaintiff did not hand over any affidavit of Sri S.R. Rao at the time of Sale. But when the dispute arose between the plaintiff and the 1st defendant, the plaintiff handed over the Affidavit dt.21.7.97 executed by his brother and only at this juncture this defendant came to know that there was some transaction between the plaintiff and his brother.
5. This Defendant denies the averments in para 6 of the plaint and submits that as far as this para is concerned, the plaintiff had advertised the Sale of the Schedule Property in the Newspaper on 26.12.97 and thereafter this Defendant approached the plaintiff for purchase of the property in question. The plaintiff furnished only the title deeds and power of Attorney of his brother dt.21.7.97 executed by S.R. Rao in favour of the plaintiff. The said affidavit and the agreement in favour of the plaintiff were kept in dark at that time. On 14 the face of the original documents and by virtue of the power of attorney the 2nd Defendant agreed to enter into the transaction and agreed to purchase the property and paid the entire sale consideration of Rs.8,70,000/-. It is false to say that the plaintiff furnished the address where the said S.R. Rao is residing during the life time and also the address which he intend to go in Singapore. It is the plaintiff alone who furnished the address of his brother S.R. Rao in Singapore which has been incorporated in the Sale Deed. No letter has been sent by the plaintiff to this Defendant as alleged in the said para. These averments are made only to prejudice the mind of this Hon'ble Court. As already stated earlier, the Defendant has paid full consideration to the plaintiff and thereafter the plaintiff has executed the sale deed in his favour.
6. This Defendant denies the averments in para 7 and puts the plaintiff to strict proof. It is not true to say that this Defendant has paid only a sum of Rs.5,70,000/-; on the other hand he has paid the entire full consideration of Rs.8,70,000/- and therefore the plaintiff has executed the sale deed in his favour. The suit is filed only on apprehension that this Defendant may take up any proceedings against the plaintiff when he came to know that there is some dispute between the plaintiff and the 1* defendant and further the plaintiff has suppressed the fact that on the date of execution of the Sale Deed his brother was no more. The other averments made by the plaintiff in the said para are only to find the cause for this suit. No letter were sent to this Defendant by the plaintiff regarding not to incorporate Singapore address of S.R. Rao.
7. This defendant denies the averments made in para 8 and puts the plaintiff to strict proof of the same. It is not true to say that on 20.01.1988 straightaway got the sale deed prepared on non-judiciary stamp papers and along with his advocate came to the Sub-Registrar office and that there the plaintiff was surprised to see the mention of Singapore address of S.R. Rao. This averment is also a figment of imagination on the part of the plaintiff, as in fact the address in the Sale Deed 15 existed in the draft sale deed which was given for approval of the plaintiff and after his approval the same was typed on stamp paper."
18. On examining pleadings, it is clearly evident that plaintiff has carefully worded his prayers in the plaint, without seeking a declaration of title based on the GPA or relying on the agreement of sale allegedly executed by S.R. Rao. Furthermore, Defendant No. 2 did not file any counterclaim in this suit, nor did he present any title documents to the court. The discrepancies between the plaint and Defendant No. 2's written statement create doubt regarding the completion of the transaction between the plaintiff and Defendant No. 2. Notably, Defendant No. 2 did not produce the sale deed allegedly obtained from the plaintiff.
19. It is crucial to understand the legal principles surrounding the termination of a General Power of Attorney (GPA) upon the death of the 16 principal. Under Section 201 of the Indian Contract Act, 1872, an agency relationship is automatically terminated by the death of either the principal or the agent, unless the agency is "coupled with an interest." The termination of a GPA upon the death of the principal has been a subject of interpretation in various judicial pronouncements.
20. Key Judgments Supporting Termination of GPA upon Death of Principal:
"1. Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana"
[(2012) 1 SCC 656]:
In this case, the Supreme Court of India clarified that a GPA does not convey any title or interest in the immovable property in favor of the agent or attorney-holder. The court stated that a GPA creates only an agency and does not transfer any ownership rights. When the principal dies, the agency ceases to exist unless it is coupled with an interest. The Supreme Court emphasized that once the principal dies, the authority granted to the agent terminates immediately unless there is a clause stating that the agency is irrevocable and coupled with an interest. Thus, if the agency is not coupled with an interest, the death of the principal automatically terminates the agent's authority to act on behalf of the principal.17
"2. A.C. Lakshmipathy v. A.M. Chakrapani Reddiar"
[(2001) 1 SCC 370]:
In this case, the Supreme Court held that when a power of attorney is not coupled with an interest, the death of the principal terminates the authority of the agent. The court explained that a power of attorney must clearly indicate that it is coupled with an interest for the agency to survive the death of the principal. In the absence of such an express provision, the death of the principal brings the authority of the agent to an end.
"3. Vimla Devi v. Pushpa Devi"
[(2019) 3 SCC 240]:
This case further established that a GPA that is not coupled with an interest automatically becomes invalid upon the death of the principal. The court observed that for a GPA to be considered "coupled with an interest," it must grant the agent some personal interest in the property beyond merely acting as a representative of the principal. If the agent derives no independent benefit or interest from the property, the GPA is deemed terminated upon the principal's death.
21. In the current scenario, the GPA (Exhibit P6) dated 21.07.1997 executed by S.R. Rao in favour of the plaintiff authorized the plaintiff to manage, develop, and sell the property. However, S.R. Rao passed away on 15.11.1997. Given the principles established by the aforementioned judgments, it is evident that the GPA would terminate upon the death 18 of S.R. Rao, as there is no indication that the GPA was "coupled with an interest." The recitals in the GPA do not suggest any independent interest of the plaintiff in the property, separate from his capacity as an agent.
22. Further, in light of Section 201 of the Indian Contract Act, 1872, and the Supreme Court's interpretation in cases like Suraj Lamp & Industries Pvt. Ltd. and A.C. Lakshmipathy, it is clear that an agency relationship terminates when the principal dies. Since the plaintiff and S.R. Rao were full brothers, it is highly unlikely that the plaintiff would be unaware of his brother's death. The termination of the GPA would therefore take effect as soon as the plaintiff became aware of his brother's death, invalidating any authority he might have had to execute further transactions based on the now- terminated GPA.
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23. Thus, relying on these judicial precedents, it becomes evident that the GPA (Exhibit P6) ceased to be valid immediately upon the death of S.R. Rao, leaving the plaintiff without authority to act on behalf of the deceased. The plaintiff's argument that the GPA remained valid posthumously is unsupported by the law as interpreted by the courts.
24. Defendant No. 2 did not produce the sale deed that the plaintiff allegedly executed in his favour. The plaintiff submitted an agreement of sale executed in favour of Defendant No. 2, marked as Exhibit P9. The plaintiff also argued that his brother had executed a General Power of Attorney (GPA) marked as Exhibit P6, which remained valid despite S.R. Rao's death. Upon examining the recitals in the GPA dated 21.07.1997, it is evident that the plaintiff was authorized to manage, develop, and sell the property. 20 However, S.R. Rao passed away on 15.11.1997, rendering the GPA invalid as it was not coupled with an interest. Under Section 201 of the Indian Contract Act, 1872, an agency is terminated by the death of either the principal or agent. Thus, the GPA was automatically terminated upon S.R. Rao's death. Given that the plaintiff and S.R. Rao were brothers, it is implausible that the plaintiff was unaware of his brother's death, and therefore, the termination of the GPA took effect as soon as the death became known to him.
25. Defendant No. 2 lacks the locus standi to file the present appeal because he did not file a counterclaim in the original suit, nor did he present any evidence to establish his rights over the disputed property. The dismissal of the plaintiff's suit does not automatically confer any rights or entitlements upon 21 Defendant No. 2, as his defence did not assert any independent cause of action or entitlement that could survive the dismissal. Furthermore, under established principles of law, a party appealing a decision must demonstrate that they have suffered a legal grievance or injury due to the lower court's judgment. In this case, since Defendant No. 2 neither sought any affirmative relief through a counterclaim nor presented evidence to substantiate his own title or claim, he has no legal grievance arising from the trial court's decision. Therefore, without having set forth a direct and enforceable claim, Defendant No. 2 lacks the requisite standing to maintain the present appeal, making it procedurally and legally unsustainable. Accordingly point no.1 is answered in the negative. 22
26. Finding on Point no.2:
Defendant No. 2, having failed to present a counterclaim and not tendering any evidence, cannot seek an adjudication of his rights independently after the dismissal of the plaintiff's suit. In civil litigation, the legal framework under Order VIII, Rule 6-A of the Code of Civil Procedure, 1908, provides that a counterclaim must be specifically raised by the defendant if he wishes to assert any rights or claims against the plaintiff within the same proceedings. This provision allows the defendant to present a claim that could effectively counterbalance the plaintiff's cause of action, enabling the court to settle all issues between the parties in a single suit. In the absence of such a counterclaim, Defendant No. 2 cannot request an independent determination of his rights since the court's jurisdiction is confined to the matters pleaded before it. The mere dismissal of the plaintiff's suit 23 does not automatically entitle Defendant No. 2 to any relief or adjudication of his alleged rights, as there is no substantive counterclaim or assertion of rights placed before the court.
27. Furthermore, Defendant No. 2's failure to produce any evidence to substantiate his alleged rights severely limits his ability to seek any adjudication. Under the general principles of civil procedure, a party that asserts a right or claim bears the burden of proof to substantiate his position. In "Gurbax Singh v. Kartar Singh" [(2002) 2 SCC 611], the Supreme Court emphasized that without adequate pleading and supporting evidence, a court cannot proceed to adjudicate the rights of a defendant independently. Defendant No. 2 has not only refrained from raising a formal counterclaim but has also failed to bring any factual or evidentiary material before the 24 court to establish his alleged entitlement. This lack of evidence means the court has no foundation upon which to make a determination in his favour, even if the plaintiff's suit has been dismissed.
28. Moreover, allowing Defendant No. 2 to seek adjudication of his rights under these circumstances would run contrary to the principles of natural justice and procedural law, which require fairness to all parties involved in the litigation. The court's role is to adjudicate disputes based on the pleadings and evidence presented; therefore, without a counterclaim or evidence, Defendant No. 2's request for a separate determination would undermine the procedural integrity of the litigation process. The dismissal of the plaintiff's suit, in itself, does not establish any right in favour of Defendant No. 2, nor does it imply that his position is legally tenable without due process being 25 followed. Thus, the absence of a counterclaim and lack of evidence render any independent adjudication of rights in favor of Defendant No. 2 procedurally unsustainable and legally impermissible. Accordingly point no.2 is answered in the negative.
29. Accordingly, the appeal stands dismissed.
SD/-
(SACHIN SHANKAR MAGADUM) JUDGE *alb/-