Bangalore District Court
Sri G.S. Puttaraju vs Smt. M.R. Sathyabhama on 1 April, 2022
KABC010018592013
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26).
Dated this the 1st day of April, 2022
Present
Smt.SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.8985/2013
Plaintiff: Sri G.S. Puttaraju,
S/o Sri G. Subbarao,
Aged about 56 years,
Re/at No. 6/23/7,
Annaiah Reddy Layout,
Behind Anjanadri High School,
Doddakanahalli, Carmel ram post,
Bangalore-560035.
(By Sri S.D.Ashwath, Adv.)
v/s
Defendants: 1. Smt. M.R. Sathyabhama,
W/o Late M.S. Raghavendra Bhat,
Aged about 61 years,
2. Sri M.S. Rajaram,
S/o Sri M. Subbarao
Aged about 58 years,
3. Sri M.R. Rohit,
S/o Late M.S. Raghavendra Bhat,
Aged about 32 years,
All are residing at.
No.4, J.M.Lane, Ballepet,
Bangalore-560053.
(By Sri S. Gangadhara Aithal,
Adv.)
2 O.S.No.8985/2013
Date of institution of the suit 10.12.2013
Nature of the suit For declaration and
possession
Date of the commencement 23.03.2017
of recording of evidence
Date on which the judgment 01.04.2022
Pronounced
Total duration Years Months Days
08 03 21
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of declaration and possession.
2. The brief facts leading to the plaintiff's case are summarized as under:-
The subject matter of the suit is detailed in the schedule of the property which is said to be an immoveable property bearing khatha No.368/359/340/65/2B/4/2, site No.4/2, new site No.72/2 situate at Bommanahalli village, Begur Hobli, Bengaluru south. The plaintiff claims to be the absolute owner in possession of the schedule property which he claims to have purchased under a registered sale deed dated 29.09.1988 from one Smt.Lakshamma. It is further stated that the original sale deed is in the custody of defendant No.1. The plaintiff further submits that he was a KSRP employee and during 1992 as he was unable to look after the schedule property on account of his avocation and busy schedule since he used to shift for the work from one place to another, he approached defendant No.2 requesting him to manage the schedule property and accordingly he executed a 3 O.S.No.8985/2013 power of attorney in his favour. It has been further carved out that after sometime defendant No.2 expressed his inability to manage and supervise the schedule property and requested the plaintiff to appoint defendant No.1 who is the relative of the defendant No.2 as his power of attorney and as per his suggestion the plaintiff said to have executed a notarized GPA dated 13.03.1992 in favour of defendant No.1 to look after the schedule property and the original is said to be in her custody. The plaintiff has further stated that on many occasions he requested defendant No.1 not to deal with the schedule property either by alienating or raising loan on the said property and not to approach any authority for transfer of khatha in her name, but inspite of it the defendant No.1 with a malafide intention by playing fraud on him got the khatha transferred in her name as holder khatha. It has been further alleged that when he came to know about this fraudulent act of defendant No.1 he said to have approached defendant No.2 requesting him to advise defendant No.1 not to mismanage or misuse power of attorney and not to act detrimental to his interest, but defendant No.2 by colluding with defendant No.1 did not heed to his request. It is further stated that the plaintiff who was to return to Bengaluru from his official duty, approached and requested defendant No.2 to cancel and return the GPA executed in his favour as well as one executed in favour of defendant No.1 since the plaintiff was able to manage himself and to deal with the schedule property. It is further alleged that despite his repeated requests and demands, defendant Nos.1 & 2 did not bother about the same nor they returned the power of attorney. It is further alleged that defendant No.1 had tried to enter into an agreement of sale in order to alienate the schedule property in collusion with defendant No.2 and both started acting against the interest of the plaintiff. The plaintiff has further stated that in order to revoke the 4 O.S.No.8985/2013 GPA dated 13.03.1992 he got issued a legal notice to defendant No.1 & 2 by cancelling power of attorney and instructing them not to deal with the schedule property and to return the original GPA. It is further alleged that on receiving the said notice, defendant No.2 with a malafide intention by colluding with defendant No.1, received both the notices for himself and also on behalf of defendant No.1 since both are residing in the same address. It is further alleged that though the legal notice was served upon the defendant Nos.1 & 2 on 20.12.2010 but despite having knowledge of cancellation of the said GPA with a malafide intention by colluding with each other, defendant No.1 transacted for alienation of the schedule property even though the said power of attorney was revoked by the plaintiff. It is further alleged that they have not even issued any reply to his legal notice and in order to deprive the plaintiff of his legitimate right over the schedule property, the defendant No.1 alleged to have executed a registered sale deed in favour of defendant No.3 who is none other than her son and thereby defendant Nos.1 & 2 alleged to have played fraud and misrepresentation despite knowing the fact that as on the date of alleged sale deed, the GPA was already revoked by the plaintiff. It is further alleged that after coming to know of such fraudulent acts of defendant No.1 & 2, he applied for encumbrance certificate on 29.06.203 and came to know the sale transaction between defendant Nos.1 & 3 to which defendant No.2 had signed as a witness and thereby the defendants alleged to have fraudulently created the said sale deed in order to grab the schedule property. Thus the plaintiff having left with no other alternative, said to have come up with the present suit seeking declaration regarding the nullity of the said sale deed executed in favour of defendant No.3 by defendant No.1 and on their failure to comply with the directions of the court, to get executed and 5 O.S.No.8985/2013 registered the cancellation of sale deed dated 22.12.2010 through the process of court. He has also sought for relief of mandatory injunction against defendant No.3 directing him to deliver the vacant possession of the schedule property along with all the original documents pertaining to suit schedule property.
3. In pursuance of the service of suit summons all the defendants appeared through their counsel and filed their written statement denying the claim of the plaintiff. At the very outset they have made counter allegation that the present suit has been filed by the plaintiff with an oblique motive to harass and to extract money from them. It is further contended that the plaintiff has purposely not disclosed the existence of earlier sale agreement entered into between the plaintiff and defendant No.2 and later another agreement to sell dated 13.03.1993 between the plaintiff and defendant No.1 and about the receipt of entire sale consideration amount of Rs.1,40,000/- by the plaintiff from defendant No.1 and about the delivery of vacant possession of the schedule property to defendant No.1 by delivering all the original documents of title to her. The defendants have further questioned the maintainability of the suit for want of payment of sufficient court fee on the grounds that the court fee has not been paid on all the reliefs which are distinct and independent to each other and therefore according to the defendants the plaintiff has to separately value and pay separate court fee on each of the reliefs claimed. It is further denied that as on the date of the suit the plaintiff was not at all the owner of the schedule property though earlier he was the owner of the said property. On the other hand it is their defence that presently defendant No.3 is the absolute owner of the schedule property having purchased the same under a registered sale deed dated 22.10.2010 executed 6 O.S.No.8985/2013 by defendant No.1 in his favour as GPA holder of the plaintiff. It is further contended that though the plaintiff was in possession of the schedule property for some times and the khata was also standing in his name, but later on the possession of the schedule property was delivered to defendant No.1 and thereafter all the revenue records were standing in her name till the execution of the sale deed in favour of defendant No.3. It is further contended that it is not as if the plaintiff was unable to manage the schedule property he had executed GPA in favour of defendant No.2, but on the other hand he had executed the said GPA after receiving the amount and agreeing to sell the schedule property for a sum of Rs.1,40,000/- by delivering the previous title deeds and other documents to the custody of defendant No.2. It is further contended that as defendant No.2 did not execute the sale deed due to some reasons he requested the plaintiff to execute GPA in favour of defendant No.1 and accordingly the plaintiff executed irrevocable GPA in her favour by receiving the entire sale consideration amount of Rs.1,40,000/- and also executed an agreement to sell dated 13.03.1993 in her favour and had also admitted the receipt of the above said amount under the said agreement. It is further contended that the plaintiff had specifically authorized defendant No.1 to get transferred the khata of the schedule property in her favour and accordingly it was transferred in her name long back and the plaintiff was aware of the said fact and therefore it is not the holder khata as stated by the plaintiff. It is further denied that after execution of GPA, defendant No.1 started mismanaging the schedule property and fraudulently got transferred the khata into her name as alleged by the plaintiff. It is further denied that thereafter the plaintiff approached defendant No.2 and requested both defendant No.1 & 2 not to act detrimental to his interest but that they did not heed to their 7 O.S.No.8985/2013 request and started creating fraudulent documents to grab the schedule property, etc., as alleged by the plaintiff. On the other hand it is specifically contended by the defendants that the plaintiff had no right to revoke or cancel the GPA executed in favour of defendant No.1 and even the alleged notice of cancellation of GPA is not sustainable under law in view of the fact that it was an irrevocable GPA. It is further contended that the said notice was not even served upon the defendant No.1 and the defendant No.2 had no right to receive the said notice on behalf of defendant No.1 as she had never authorized him to receive the said notice. It is further contended that even defendant No.1 was not in the house when the said notice was served upon defendant No.2 and as such she pleads ignorance about the contents of the said notice. It is further categorically refuted by the defendants that they had got created the disputed sale deed in favour of defendant No.3 by playing fraud and misrepresentation on the plaintiff as alleged by him. It is their defence that the plaintiff was well aware of the fact of payment of betterment charges by the defendants, the improvements made by them to receive schedule property and also the transfer of khata in the name of defendant No.1 and later payment of tax by the defendants and therefore they have contended that having kept quiet for all these years now the plaintiff has come up with this frivolous suit on imaginary grounds in order to make illegal monetary gains. It is further contended that the suit is also barred by limitation and for want of cause of action and for these reasons the defendants have sought for dismissal of the suit.
4. On the basis of the rival contentions of the parties following issues have been framed:-
8 O.S.No.8985/20131) Whether plaintiff proves that he is the absolute owner of suit schedule property?
2) Whether plaintiff proves that he has executed General Power of Attorney dt:13.03.1992 in favour of first defendant and directed not to deal with the property instead of that the first defendant executed sale deed in favour of 3rd defendant?
3) Whether the plaintiff proves that the sale deed dt:22.12.2010 executed by first defendant in favour of third defendant is not binding and null and void?
4) Whether plaintiff is entitled for delivery of possession from the third defendant?
5) Whether suit is barred by limitation?
6) Whether the defendants prove that plaintiff has not paid court fee for all the reliefs sought for?
7) Whether the defendants prove that the plaintiff has received amount of Rs.1,40,000/- by executing power of attorney in favour of first defendant and also deliver the previous title deeds and other documents in favour of second defendant?
8) Whether the suit is not maintainable?
9) What order or decree?9 O.S.No.8985/2013
5. To substantiate the claim of the plaintiff he has deposed before the court as P.W.1 and has relied on 10 documents marked from Ex.P.1 to P.10. Per contra the defendant No.2 has been examined as D.W.1 and he has also relied on as many as 30 documents marked from Ex.D.1 to D.30.
6. Heard arguments.
7. On hearing and on perusal of the relevant materials and evidence on record, my findings on the above issues are as under:-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the negative Issue No.5: In the affirmative Issue No.6: In the affirmative Issue No.7: In the affirmative Issue No.8: In the affirmative Issue No.9: As per final order for the following:-
REASONS
8. Issue Nos.1, 2 and 7:- Since all these issues are interconnected, they are tried together to avoid repetition of facts.
It is the specific claim of the plaintiff that he is the absolute owner of the suit property by virtue of a registered sale deed dtd. 29.09.1988 and after purchase he got changed all the revenue records of the suit property in his name. It is his further case that since he was a KSRP employee and on account of his avocation as he was to get shifted from one place to another, he was 10 O.S.No.8985/2013 unable to look after the suit property. He has further urged that because of his inability to personally manage the schedule property, he executed a Power of Attorney in favour of the second defendant. However, it is stated that after some times, the second defendant pleading his inability to manage the schedule property, requested the plaintiff to appoint the first defendant to act as the P/A holder of the plaintiff and introduced her to the plaintiff and reposing confidence in the second defendant, the plaintiff appointed the first defendant as his P/A holder by executing a notarized GPA dtd. 13.03.1992 authorizing her to look after the suit property.
9. However, it is the specific grievance and allegation of the plaintiff that though under the aforesaid GPA dtd. 13.03.1992, he had specifically requested the first defendant not to deal with the suit property in any manner either to alienate or raise any loan on it and not to get transferred the Khata into her name, but despite such request she got changed the khata of the suit property into her name in order to defraud him. It is his further allegation that though thereafter many times he along with with the second defendant requested her not to mis-manage the suit property or to mis use the GPA, she did not heed to their requests and started proclaiming herself as the owner of the suit property. It is his further allegation that ultimately when he came to know that the defendants 1 and 2 both were acting detrimental to his interest by colluding with each other, he got issued a legal notice thereby cancelling the Power of Attorney executed in favour of the first defendant and requested the defendants to return the original Power of attorney dtd. 16.12.2010 and though the said notice was served upon the first and second defendants they did not bother to reply to the same. It is further alleged that despite knowing the fact that the plaintiff has cancelled the Power of 11 O.S.No.8985/2013 Attorney executed in favour of D-1, she fraudulently executed a registered sale deed in favour of the third defendant who is none other than her son on 22.12.2010 by colluding with the second defendant.
10. Thus, what could be gathered from the case made out by the plaintiff is that though at an undisputed point of time he had executed the GPA in favour of the first defendant at the instance of the second defendant, but he had never authorized D- 1 to deal with the suit schedule property, but that she acted detrimental to his interest and dealt with the suit property and even after the plaintiff intimating D-1 and 2 about the revocation of the said GPA through a legal notice, they proceeded to transfer the suit property in the name of the third defendant thereby played fraud and misrepresentation on him which has compelled him to come up with this suit seeking the suit reliefs. Per contra, this allegation of the plaintiff has been categorically refuted by the defendants who have put forth their rival claim over the suit property.
11. According to the defence of the defendants, the plaintiff was not at all the owner of the suit property as on the date of the suit in view of the fact that he had already alienated the same in favour of D-1 by receiving the entire sale consideration amount of Rs.1,40,000/- by executing the GPA as well as the agreement thereby authorizing her to deal with the suit property independently and had also delivered the vacant possession of the said property to her and acting on those documents, D-1 has legally and validly transferred the suit property in favour of D-3 under a valid registered document of title and as on the date of the suit till the date it is the third defendant who is the absolute owner in possession of the suit property. Thus, it is the specific 12 O.S.No.8985/2013 contention of the defendants that the plaintiff has lost all rights over the suit property and hence, he is dis-entitled to claim the suit reliefs. In view of these rival contentions, heavy burden is cast on the plaintiff to prove the existence of any legal rights in his favour with respect to the suit property as on the date of the suit.
12. As stated supra, in support of his claim, the plaintiff has deposed before the court as PW1 and produced ten documents marked from Ex.P1 to P10. Per contra, the second defendant has been examined as DW1 and he has also relied on as many as thirty documents marked from Ex.D1 to D30. It is revealed from the records that during the pendency of the proceeding, Ex.P5, P6, Ex.D1 and D3 were referred to Forensic Expert to compare the admitted and disputed signatures of the plaintiff as per the order dtd. 22.10.2019 filed by the plaintiff. The said Forensic Expert accordingly submitted his report on 19.03.2021. However, my predecessor-in-office by his order dtd. 30.03.2021 once again re-referred the documents for scientific examination since the expert was reported to have not examined Ex.D1 and D3. However, the second report was submitted before this court on 18.10.2021. This report was opposed by the plaintiff by filing objections whereas the defendants submitted that they have no objections to accept the said report.
13. On hearing from both sides on the aforesaid Commissioner's Report, this court by its order dtd. 25.01.2022 accepted the said report but however observed that its authenticity and genuineness shall be considered at the time of deciding the case on merits. The said order has not been assailed by the parties to the suit and therefore, in view of the said order, the court has to consider the relevancy of even this Expert's report along with the other available evidence.
13 O.S.No.8985/201314. As regards the documents relied on by PW1, Ex.P1 is the certified copy of his sale deed dtd. 29.09.1988 which is not in dispute by the defendants since they have admitted his previous ownership over the suit property. Ex.P2 is the office copy of the notice dtd. 16.12.2010 under which he claimed to have revoked the GPA executed in favour of D-1. As regards Ex.P3 to P6, they are the postal receipts and acknowledgement slips to evidence the fact that this legal notice was issued to the defendants 1 and 2 through registered post. Ex.P7 is the disputed sale deed dtd. 22.12.2012 said to have been executed by D-1 in favour of her son D-3. As regards Ex.P8 to P10, they are the three Encumbrance Certificates pertaining to the suit property. Ex.P9 and P10 are standing in the name of PW1 prior to Ex.P7 sale deed whereas Ex.P8 is standing in the name of the third defendant after execution of his sale deed.
15. As against the documents produced by PW1, the defendants have also produced 30 documents, of which Ex.D1 is the GPA executed by PW1 in favour of D-1 which was got marked by the defence counsel during the course of cross examination of PW1. Ex.D2 is the certified copy of the sale deed dtd. 15.09.1984 pertaining to the suit property executed by the previous owner one Smt. Anasuya and her two sons in favour of P. Venkatappa Reddy. Further, Ex.D3 the original Agreement to sell said to have been executed by PW1 in favour of D-1 on 13.03.1993. Ex.D4 is the original sale deed dtd. 17.09.1987 executed by the said Venkatappa Reddy in favour of one K. Lakshmamma. DW1 has also produced the original sale deed dtd. 29.09.1988 at Ex.D5 executed by the said Lakshmamma in favour of PW1. Ex.D2, D4 and D5 are produced by DW1 to prove that all these original documents of title were handed over to the first defendant by PW1 after alienating the suit property. Ex.D6 is 14 O.S.No.8985/2013 the disputed sale deed executed by the first defendant in favour of D-3.
16. Ex.D7 is the certified copy of the Conversion Order dtd. 27.01.1987. As regards Ex.D8, it is a cash receipt standing in the name of PW1 pertaining to the year 1992. Ex.D9 is the Tax demand register extract and Ex.D10 is the tad paid receipt standing in his name. As regards Ex.D11 is the BBMP certificate and Ex.D12 is the property register extract standing in the name of D-1. Further, Ex.D13 to D22 are the various tax paid receipts standing in the name of D-1 standing in her name which are produced to show that by virtue of the absolute transfer of the suit property in her name by PW1, all the revenue records of the said property were mutated in her name. DW1 has also produced Ex.D23 building tax assessment extract standing in the name of D-1.
17. DW1 has also produced Ex.D24 BBMP certificate standing in the name of D-3 after transfer of the suit property in his name. Further, Ex.D25 is the Uttara Patra issued by BBMP, Ex.D26 is the property register extract, Ex.D27 and D29 E.Cs. and D30 Tax paid receipt standing in his name. As regards Ex.D28, it is the earlier E.C for the period from 01.04.1987 to 03.03.2004 standing in the names of the previous owners including PW1. Thus, what could be gathered from all these documents relied on by the defendants is that since the date of execution of the GPA in favour of D-1, all the material documents including the previous documents of title of the previous owners and all the revenue records pertaining to the suit property have come into possession of D-1 at an undisputed point of time. This fact is also admitted by PW1 in his pleadings itself.
15 O.S.No.8985/201318. In the backdrop of the above oral and documentary evidence placed before the court by both the parties, now it is to be seen whether he could prove before the court with cogent and convincing evidence as to how the defendants 1 and 2 played fraud and misrepresentation on him in getting executed the disputed sale deed in favour of D-3. One material aspect which is to be noted here is that though he has sought for declaratory relief regarding the nullity of Ex.D6 sale deed executed in favour of D-3, but no reliefs have been sought for with respect to the earlier GPA at Ex.D1 executed by him in favour of D1 nor he has whispered anything about Ex.D3 Sale agreement relied on by the defendants under which he said to have sold the suit property by receiving the entire sale consideration amount from her.
19. The learned counsel for the plaintiff vehemently argued that though PW1 has not disputed the execution of GPA, but he had executed it in favour of D-1 only for a limited purpose. It is further submitted that D-1 was not authorized to alienate the suit property nor she was authorized to encumber the said property for availing any loan etc., but in breach of such terms she has dealt with the suit property and ultimately in collusion with DW1 she sold the said property to D-3. By countering this argument, the learned defence counsel has also urged with some vehemence that by executing the said GPA PW1 has not only authorized D-1 to deal with the suit property, but had also authorized her to alienate the same. He has also invited my attention to Ex.D3 Sale agreement dtd. 13.03.1993 and urged that under this document, even PW1 has acknowledged the receipt of entire consideration amount of Rs.1,40,000/- thereby alienating the suit property to D-1. This agreement is seriously disputed by PW1 alleging that his signature on this document has been forged by DW1 and D-1 in order to create this document.
16 O.S.No.8985/201320, Thus, what could be gathered from the stand taken by PW1 is the though he admits Ex.D1, but he has denied that he had ever executed any such agreement to sell as per Ex.D3. Further, it is specifically urged that even under Ex.D1, the first defendant was not having any authority to alienate the suit property. In view of this specific claim put forth by PW1, now it would be relevant to consider Ex.D1 before going into the legality or validity of Ex.D3 agreement. It would be material to refer the terms and conditions incorporated under Ex.D1. There are as many as ten acts which are required to be done by the first defendant as per this GPA. Since PW1 has specifically urged that he had authorized D-1 only to look after the suit property and not to do any other acts, it would be relevant to refer those conditions which run thus:
1. To look after, maintain, manage the schedule property in the best manner as the attorney deems fit.
2. To enter into sale agreement or other agreements in respect of the schedule property with any person for any amount, receive advance amount, issue receipts, apply to the competent authorities seeking permission to execute such deeds, sign all forms, vakalath, deeds etc., apply for permission and execute the deeds, receive amount, issue receipts, apply to necessary authorities and to do the needful.
3. To pay all future taxes, betterment charges in respect of the schedule property, receive, receipts, apply to the competent authorities for transfer of katha.
4. To apply for sanctioned plan for construction of any type of building, to 17 O.S.No.8985/2013 construct such building, use the same as my attorney deems fit, get all rents, issue receipts.
5. To represent me in respect of the schedule property in all Govt. offices, BDA, BWSSB, KEB, Corporation, Sanitary Board apply for necessary records, documents, facilities, receive the same.
6. To engage any other agents as my attorney deems fit.
7. To raise loans on the security of the schedule property finds it necessary and execute necessary documents.
8. To receive compensation amount in case the schedule property is acquired by the Govt. and to sue for enhancement thereof.
9. In case of complications to sue such matters in proper court of law by engaging the services of an Advocate/s sign all forms, vakalath, statements etc., produce any documents in court take any documents from the court, give evidence, obtain decree, execute the same or enter into compromise or to approach higher court.
10. And generally to do all such acts, deeds, and things in respect of the schedule property which are not specifically written hereunder and I do hereby agree to ratify confirm all such acts, deeds and things done by my attorney as the acts, deeds and things done by me in person and this GPA is irrevocable in nature.
21. Thus, from the plain reading of the above terms of Ex.D1 it is abundantly clear that the said powers which PW1 had delegated to D-1 with respect to the schedule property are 18 O.S.No.8985/2013 exhaustive and not limited to any particular acts. Under such circumstances, now he is estopped from retracting from those terms when he has admitted this document. It would be equally relevant to refer the evidence of PW1 in this regard. In his cross examination dtd. 15.06.2017 on page No.8 in para 6 he has categorically admitted as to what were the acts D-1 was authorized to do as per his instructions. This material piece of his admission runs thus:
It is true to suggest that in both GPA I have authorized the GPA holder to get changed the khatha and also to pay taxes and also to sell the property. It is false to suggest that, after taking Rs. 1,40,000/- from the defendants No.1 and 2 I executed GPA.
22. Even in the further cross examination of PW1 dtd. 25.01.2018 in para 9 he has unequivocally admitted that under Ex.D1, he had even authorized D-1 to construction house on the suit property. This material piece of his admission runs thus:
It is true to suggest that, through GPA I authorized for construction of house and to pay Govt. taxes. I did not issue paper publication regarding cancellation of GPA. It is true to suggest that, after GPA property taxes not paid by me.
23. The above admission of PW1 clearly falsifies his claim that under Ex.D1 he had not authorized D-1 to get changed the revenue records or to sell the suit property. Therefore, it is no longer open to him to still urge that under GPA, he had authorized D-1 just to manage or look after the suit property. It is a well 19 O.S.No.8985/2013 settled position of law that where a party admits execution of a deed later he cannot retract from its contents nor he is permitted to contend that the said deed was executed for some other purpose and nor for the one shown in such document. My conception is supported by a decision of the Hon'able Supreme Court reported in Eshwar Dass Jain (dead) by L.Rs V/s Sohanlal (dead) by L.Rs in AIR 2000 S.C 426, wherein the Hon'ble Supreme Court has clearly held while dealing with the provisions of Section 92(1) of the Evidence Act at Head Note 'E' as under;
"Evidence Act - Oral Evidence -
Documentary Evidence - Oral evidence to prove that document is sham and - Is admissible and mortgage deed-plea by defendant mortgagee that real relationship between plaintiff and defendant was of landlord and tenant and mortgage was only a collateral security to ensure vacation of leased premises by mortgagee therefore sham --not tenable since if it is a deed of collateral security by defendant, then the defendant would have had to execute a deed in favour of the plaintiff and not vice-
versa."
24. Though in the case involved in the above cited decision the defendant therein had contended that the real relationship between the parties was that of landlord and tenant but the deed of mortgage was only a collateral security to ensure vacation of leased premises and such contention was discarded which is not the circumstance in the instant case, but the ratio laid 20 O.S.No.8985/2013 down in that decision could aptly be extended to the facts on hand because, as stated supra, PW1 has categorically admitted the execution of Ex.D1 by him, but he has also contended that under the said GPA D-1 was not authorized to deal with the suit property, which is contrary to the terms of Ex.D1. Therefore, he is estopped from taking up such stand having admitted this document. When a document is admitted by a party, he/she has to admit it in entirety, which is the well established position of law.
25. It is further pertinent to note that Ex.D1 has come into existence at an undisputed point of time in the year 1992 and after its execution by PW1, all the revenue records of the suit property were changed in the name of the first defendant which is evident from Ex.D11 to D23. Further, she even started paying tax pertaining to the schedule property in pursuance of Ex.D1. Since 1998 these revenue records are standing in her name which clearly indicates that under Ex.D1 the plaintiff had delegated absolute power to D-1 to deal with the schedule property which also included right to alienate it. If really he had not authorized her to get changed all the revenue records into her name by virtue of Ex.D1, he would have very well taken appropriate action against her at the earliest point of time when she got entered her name in all these revenue records although he has alleged that after execution of Ex.D1 whenever he visited Bengaluru from his place of work, he had requested her not to deal with the sit property in any manner as he can manage the property, but inspite of it she fraudulently got changed the khata in her name. If that was the case, nothing would have prevented him from preventing her from doing such things and he would have very well cancelled Ex.D1 at that time itself.
21 O.S.No.8985/201326. It is further to be noted that as rightly pointed out by the learned counsel for the defendants, in pursuance of Ex.D1, the defendant No.1 exercised her rights over the suit property by paying betterment charges, taxes etc., as could be borne out from the documents which are referred to above and this fact is also not denied by PW1 in his evidence. This conduct of PW1 would once again establish that he had ratified all those acts performed by D-1 pursuant to Ex.D1. It is also material to note that it is not his case that he had paid amount to DW1 towards the payment of tax, betterment charges etc., pertaining to the suit property. Therefore, from all these attending facts and circumstances of the case, it is clinchingly proved that under Ex.D1 he had authorized D-1 to deal with the suit property by doing all those acts which are incorporated in Ex.D1. Consequently from these facts the only inference which has to be drawn is that he had even allowed her to alienate the suit property which itself is sufficient to nullify his claim that under Ex.D1 he had merely authorized her to manage or look after the schedule property and nothing more than that.
27. However, the learned counsel for the plaintiff has sought to rely on a decision reported in Sri. U. Vijaya Kumar and another v/s Smt. Malini V. Rao in ILR 2016 Kar. 2670 wherein the Hon'able High Court while dealing with the provisions of Sec.215 of the Contract Act has held as under:
Sec. 215 of the Indian Contract Act which deals with the right of the principal when the agent deals, on his own account, in business of agency without the principal's consent--
An agent should not deal on his own account in the business of agency, without the consent of the principal. If he has not 22 O.S.No.8985/2013 obtained the principal's consent to do so or has not acquainted him with all the material circumstances within his knowledge, the principal may repudiate the transaction if, any material fact has been dishonestly concealed from him by the agent or, the dealing indulged in by the agent have been disadvantageous to him. obtained the principal's consent to do so or has not acquainted the principal's consent to do so It is further held in the above cited decision that--
What is disadvantageous to the principal and what is not depends upon the facts of each case. Anyone standing in the position of an agent cannot be allowed to put his duty in conflict with the principal's interest. If the principal proves that his consent had not been obtained for such an act and that the agent had not acquainted him with all material circumstances, it is not further necessary for him to establish any dishonest concealment by the agent or that the transaction was to his disadvantage. Any transaction creating conflict between the agent's duty and the interest of the principal, must be presumed to be disadvantageous to the principal who is not informed of the fact. When there is no disclosure, the fairness of the transaction is 23 O.S.No.8985/2013 immaterial and such transaction should be voidable at the principal's option.
28. With due regards to the principles laid down in the above cited decision, it cannot be said that the same could be applied to the facts on hand for the reason that as stated supra, in the instant case, at the first instance PW1 has admitted the execution of Ex.D1. Further, he was well within the knowledge that pursuant to Ex.D1, the first defendant performed many acts with respect to the suit property the performance of which were allowed under Ex.D1 since PW1 had not prevented her from dealing with the schedule property despite having knowledge about such acts done by her. Therefore, the conduct of PW1 in allowing her to deal with the schedule property since 1992 till the issuance of legal notice in the year 2010 itself implies that such acts were done by her with his express consent and knowledge. Therefore, the ratio laid down in the above cited decision would not come to his aid in any manner. Therefore, from the evidence on record, it could squarely be held that he had authorized D-1 to deal with the suit property in the manner as recited in Ex.D1.
29. Now the next material aspect which invites consideration is as to whether PW1 could prove that he had legally and validly revoked Ex.D1 GPA. According to him, immediately after coming to know of the acts of defendants 1 and 2 in dealing with the suit property without his consent and knowledge, he got issued a legal notice to D-1 as per Ex.P2 on 16.12.2010 thereby expressing his intention of cancelling /revoking Ex.D1 GPA executed in favour of D-1. To show that this notice was issued through registered post, he has also produced two postal receipts as per Ex.P3 and 4 and to prove that this 24 O.S.No.8985/2013 notice was duly acknowledged by both the defendants he has produced two postal A.D slips as per Ex.P5(a) and P6(a).
30. It is pertinent to note that both Ex.P5(a) and P6(a) are shown to have been received by DW1. The learned counsel for the plaintiff urged that the notice issued to D-1 was also received by DW1 on her behalf as per Ex.P6(a) and therefore, there is valid service of notice of revocation of Ex.D1. Per contra, the defendants have seriously disputed the alleged service of this notice on D-1. However, DW1 has denied in his cross examination that he has received the legal notice even on behalf of the first defendant and has also denied his signature as per Ex.P6(a). However, the material aspect to be considered here is whether there is valid revocation of Ex.D1 by PW1 in the present facts and circumstances of the case, even if it is accepted that Ex.P2 notice was served upon both DW1 and the first defendant.
31. As rightly pointed out by the learned defence counsel, the relevant provisions of law with regard to revocation of a Power of Attorney are contained under Secs. 201 to 210 of the Indian Contract Act. Sec. 201 of the Act deals with termination of agency by the Principal under certain circumstances where the principal himself revokes it, or where the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming unsound of mind; or by the principal being adjudicated an insolvent under the provisions of any Act.
32. Further, Sec. 202 deals with a case where the agent has himself an interest in the property which forms subject matter of the agency, such agency cannot, in the absence of an express contract, be terminated to prejudice of such interest. In the present case, as discussed supra, admittedly PW1 as per his own 25 O.S.No.8985/2013 admission, had authorized D-1 under Ex.D1 to get changed the khata of the schedule property, to pay taxes and also to sell the property. It is also proved from the evidence on record that in pursuance of such express authority, the first defendant performed many such acts on her own at her own cost by getting changed the khata, by paying tax of the suit property, by paying even the betterment charges etc., thereby an interest was certainly created in her favour with respect to the schedule property. Under such circumstances, PW1 ought not to have terminated such agency in the absence of any such express contract which is the requirement of this provision. Therefore, by invoking this provision, it could be said that the alleged termination of agency under Ex.P2 is bad in law.
33. Further, Sec.203 of the Act authorizes the principal to revoke the agency at any time before the authority has been exercised so as to bind the principal. Again this provision is attracted to the facts on hand because, as held above, in pursuance of Ex.D1 the first defendant had done certain acts as aforesaid pertaining to the suit property even prior to the sale deed in favour of D-3. As already held supra, PW1 has not spent any amount for the improvement of the suit property after execution of Ex.D1 as admitted by him. Therefore it could safely be held that there was due exercise of the authority conferred under Ex.D1 by the first defendant which would certainly bind PW1. Hence, even under this provision, the so-called termination of agency by PW1 is to be held as invalid.
34. So far as Sec.204 of the Contract Act, it deals with the revocation of agency where authority has been partly exercised so far as regards such act and obligations as arise from acts already done in the agency. Undoubtedly in the present 26 O.S.No.8985/2013 case, since the date of execution of Ex.D1 from 1992, the first defendant has been dealing with the schedule property independently without any objection from PW1. As already discussed, a wide and vast powers have been conferred on her by PW1 under this GPA and the various revenue records particularly the tax paid receipts which are standing in the name of the first defendant clearly indicate that she has completely exercised the authority conferred on her under Ex.D1. Therefore, even by invoking this provision, it could be said that under Ex.P2 notice, there cannot be a valid termination of agency.
35. As regards Sec.205 of the Act, it may not be applicable to the facts on hand since it deals with a situation where an agency for a fixed period, is terminated without having regard to such fixation of time, the party either the principal or the agent who is responsible for such termination shall compensate the other party. Since it is not the case of either parties herein that they were bound by any such time limit fixed under Ex.D1, this provision cannot be said to be applicable to the present case.
36. As regards Sec. 206 of the Act, it deals with the issuance of reasonable notice of such revocation to either parties otherwise the damage thereby resulting to the principal or the agent, as the case may be, must be made good to the one by the other. Further Sec.207 of the Act refers to the revocation of agency to be either expressed or implied in the conduct of the principal or agent respectively. Sec. 208 of the Act deals with the termination of the authority of an agent does, not so far as regards the agent, take effect before it becomes known to him. In the instant case, no doubt, PW1 has issued Ex.P2 notice regarding the alleged termination of agency of D-1, but in view of the material requirements contained in the above mentioned 27 O.S.No.8985/2013 provisions of the Act in Secs. 202 to 204, it cannot be said that mere issuance of Ex.P2 notice would entitle PW1 to terminate Ex.D1 as per law.
37. However, the learned counsel for the plaintiff has cited a couple decisions reported in Corporation Bank v/s Lalitha H. Holla in ILR 1993 Kar. 3260 and in M. John Kotaiah v/s A. Divakar and others in AIR 1985 Andhra Pradesh 30. In these decisions it has been held that -Assignment of interest in subject matter to agent must be simultaneous with creation of power in favour of attorney and unless agency coupled with interest in favour of agent created or recognized, Power of Attorney not irrevocable though called so--
38. With due regards to the proposition of law laid down in the above cited decisions, it cannot be said that the same could be extended to the facts on hand for the simple reason that from the plain reading of Ex.D1, it is now sufficiently proved before the court that under this GPA, PW1 has clearly authorized D-1 to deal with the suit property by performing all such acts from which it could squarely be held that the agency created under this GPA is coupled with interest in her favour. Therefore, PW1 cannot take shelter under the above said proposition of law since the facts involved in that decision cannot be equated with the facts on hand. Therefore, viewed from all these angles, it cannot be said that there is a valid termination of agency by PW1 under Ex.P2.
39. The counsel for plaintiff in support of his argument has also sought to rely on the decision reported in Ishwarappa v/s Arunkumar in AIR 2004 Kar 417 wherein it is held that where the power of attorney is executed to look after the construction work and the terms of such power of attorney did not specifically 28 O.S.No.8985/2013 authorize the agent to incur the loan liabilities in his personal capacity for the purpose of construction of building and the property not offered as security for pecuniary liability incurred by agent at the time of creation of agency, such power of attorney cannot be said to be coupled with interest and the agent cannot take plea that in view of personal liabilities incurred, agency becomes irrevocable unless accounts are settled and liabilities are discharged and therefore revocation of such power of attorney was proper.
40. With due regards to the principles laid down in the above cited in Ishwarappa's case, it cannot be said that the same could be extended to the facts on hand for the simple reason that in the case involved in that decision the power of attorney did not authorize the agent to incur any personal loan liability for which the schedule property was not offered as security at the time of creation of agency and in that context of the matter the Hon'ble High Court held that such power of attorney cannot be said to be coupled with any interest. The same is not the circumstance in the present case, because as already held above under Ex.D.1 the plaintiff had specifically authorized defendant No.1 to deal with the schedule property and even to the extent of alienating it to third parties. Moreover he has also utterly failed to prove that no consideration was passed either under Ex.D.1 or under Ex.D.3 to him. Therefore the facts involved in the present case being entirely different than the facts involved in this decision, the ratio laid down therein would not help the plaintiff in any manner.
41. As regards Ex.D3 agreement, PW1 has seriously disputed this document by alleging that D1 and 2 have created this document by forging his signature. As discussed supra, the 29 O.S.No.8985/2013 Forensic Expert has submitted his report. So far as the signatures of PW1 found on Ex.D1 he has admitted the same and hence, in his cross examination itself they are marked at Ex.D1(a) to (c). Since these are his admitted signatures, they were referred to the expert for comparison with the disputed signature found on Ex.D3. The Expert has stated that the person who wrote the signatures at Ex.D1(a) to (c) also wrote the questioned signature marked as Ex.D3(a). This report/opinion of the expert has been objected to by the plaintiff alleging that instead of comparing the signatures of PW1, the court commissioner has examined the name written in capital letters at Ex.D3(a).
42. No doubt, the Court Commissioner has though referred to the signatures of PW1 at Ex.D1 (a) to (c), but has examined the name of PW1 written in capital letters on Ex.D3, but it is material to note that in both Ex.D1 as well as in Ex.D3 we find the name of PW1 written in capital letters and below it his signatures and rightly the Court Commissioner has examined and compared the same in both the documents and come to the conclusion that both signatures pertain to PW1. Therefore, now it cannot be alleged that the Court Commissioner has not conducted the commission work in accordance with the Memo of Instructions.
43. It is further to be noted that though the court passed order to the effect that the report of the Court Commissioner shall be considered along with the main matter, still none of the parties have made any effort to summon and examine him. If the plaintiff found himself aggrieved by this report, nothing would have prevented him from examining the Court Commissioner in order to falsify his report. Even otherwise, an opinion of an Expert u/s 45 of the Indian Evidence Act is not a conclusive piece of 30 O.S.No.8985/2013 evidence which is the well settled law and it could be considered as one of the pieces of evidence in order to appreciate the other available evidence on record. Therefore, now it is no longer open to PW1 to question this report. In the instant case, even if this report is eschewed from the records, still the court can decide the disputed issues involved in the suit independently on the basis of the other evidence placed before the court by both the parties.
44. The plaintiff has further alleged that DW1 in collusion with D-1 has created Ex.D3 agreement though he had never agreed to sell the suit property to D-1. How far this allegation of PW1 could be sustained, is the material aspect which requires consideration. As discussed above, under Ex.D1 GPA he is now proved to have authorized the first defendant to deal with the suit property by performing all such acts which an owner of a property is entitled to do. It is also now proved that Ex.D1 was an irrevocable GPA since it is proved from the evidence on record that under this document an interest over the suit property has been created in favour of D-1. Therefore, the crucial aspect which needs consideration is whether he had further transferred the schedule property in her favour for consideration amount as contended by D1 and 2.
45. It is no doubt true that Ex.D3 is an unregistered agreement, but according to the contentions of the defendants this document has also come into existence on the very same day when PW1 executed Ex.D1. However, it is the allegation of PW1 that the first and second defendants have created this agreement by playing fraud and misrepresentation on him. The law requires that whenever a party seeks to base his claim on the pleas of fraud, coercion or misrepresentation, there must be specific averments with regard to such pleas pleas as required 31 O.S.No.8985/2013 U/O VI rule 4 of CPC. If we peruse the pleadings of the plaintiff except seeking the relief of declaration regarding the nullity of the sale deed of D-3, he has not at all sought for its cancellation on the grounds of fraud, coercion or misrepresentation. The plaint is also totally silent as to how and under what circumstances the defendants misrepresented him or played fraud on him in creating Ex.D3.
46. As discussed above, in pursuance of Ex.D1 GPA, the first defendant has performed many acts by dealing with the schedule property in the capacity of an owner such as by getting changed the revenue records in her name, by paying tax pertaining to the suit property etc. It is also not the claim of PW1 that he used to pay her amount for performing such acts on his behalf. On the contrary, as clearly admitted by him, since 1992 he has not paid tax pertaining to the suit property. Had he never intended to alienate the suit property under Ex.D1 and D3, he would not have allowed the first defendant to do all these acts since 1992.
47. It is further relevant to note that initially PW1 had executed GPA in favour of DW1 to manage the schedule property as per his own case. Thereafter he executed Ex.D1 in favour of the first defendant though according to him, since DW1 had pleaded inability to manage the suit property and introduced D-1 to him asking to execute fresh GPA in her favour. Even in his evidence he has clearly admitted in his cross examination dtd. 15.06.2017 that he was not having any differences with the GPA holder. In his further cross examination dtd. 25.01.2018 he has even admitted that there was no any dispute between himself and defendants 1 and 2 before cancellation of GPA. When there was no such ill-will or difference between the parties even prior to the 32 O.S.No.8985/2013 alleged cancellation of Ex.D1 then a reasonable suspicion certainly arises as to what was the necessity for defendants 1 and 2 to act detrimental to his interest or to play fraud on him.
48. It is also not open to PW1 to contend that he was not at all aware of the state of affairs of the schedule property after executing Ex.D1. On the other hand as per his own admission, he was visiting Bengaluru as and when time permitted. Therefore, he cannot allege that behind his back the first defendant dealt with the schedule property by playing fraud on him. The conduct of the parties also assumes relevance in this case. As held above, Ex.D1 came into existence in the year 1992 and the documents placed before the court make it abundantly clear that the first defendant did/performed all such acts with respect to the suit property for which she was authorized by PW1 under this GPA since 1992 without any objection or resistance from PW1. He has also categorically admitted in his cross examination that under Ex.D1 he had authorized her to get changed the khata, to pay tax and also to alienate the suit property. It is pertinent to note that Ex.D1 nowhere recites that she was required to do such acts on his behalf nor does this GPA required her to sell the suit property and to pay the sale proceeds to PW1.
49. It is also significant to note that as already discussed in the preceding paras of this judgement, PW1 has even admitted that he had even authorized the first defendant under Ex.D1 to construct house and to pay government taxes and that he had not paid tax after execution of GPA. One cannot infer that no person would authorize any stranger to deal with his property independently without any reasons. It is material to note that though P.W.1 in his cross-examination has admitted that he and defendant No.1 & 2 belong to Brahmin community but he do not 33 O.S.No.8985/2013 remember for the first time when he did meet defendant No.1 & 2. It is also his specific statement that he came in contact with defendant No.1 & 2 when they had gathered in the meeting organized by Vidya Vilasina Sabha.
50. Thus what could be gathered from the own case made out by P.W.1 is that he was not knowing defendant Nos.1 & 2 since beginning nor they are related to him in any way although they belonged to the same community. Under such circumstances as rightly argued by the learned counsel for defendants, knowing fully well that he had intention of transferring the schedule property absolutely in the name of defendant No.1, he had executed Ex.D.1 & D.3. The very conduct of P.W.1 of not taking any action against defendant No.1 since 1992 till the date of issuance of legal notice at Ex.P.2 in the year 2010, itself is the indication of the fact that he had infact intended to alienate the schedule property under Ex.D.1 & D.3.
51. It is further relevant to note that initially PW1 had executed GPA in favour of D.W.1 and later on he executed fresh GPA in favour of defendant No.1 even according to his own case. Under such circumstances, a reasonable suspicion certainly arises as to how he had reposed confidence in defendant No.1 without any reason by executing Ex.D.1 GPA when he had no prior contact with her. As rightly pointed out by the defence counsel as per his own statement in his cross-examination he came in contact with defendant No.2 accidentally and after long time he realized that defendant No.2 is a good person and hence he executed GPA in his favour even though he had got many relatives residing at Bengaluru.
52. Even in his further cross-examination in para-7 PW1 has stated that during the year 1992-93 he was staying in KSRP 34 O.S.No.8985/2013 Barrack at Koramangala and the distance between Koramangala and the suit site may be around 10 kms whereas the distance between the residence of defendants and the suit site is about 16 kms. Therefore, what emerges from these aspects is that if really he had never intended to sell the schedule property to defendant No.1 certainly he would not have executed GPA in favour of defendant No.1 & 2 who are admittedly residing about 16 kms away from the schedule property when he himself was staying within a short distance of about 10 kms from the schedule property. Again this circumstance would clearly establish his clear intention of disposing off the schedule property absolutely in favour of defendant No.1. Under such circumstances Thus, the conduct of the parties would clearly imply that by executing Ex.D.1 & D.3, P.W.1 had transferred the schedule property in the name of defendant No.1 by creating interest in her favour. Therefore now he is not permitted to turn around and disown these documents.
53. However the learned counsel for plaintiff vehemently argued that Ex.D.3 being an unregistered sale agreement which is totally inadmissible in evidence and under such inadmissible document no rights have been transferred in favour of defendant No.1. How far this contention could be sustained, is the material aspect which requires consideration. The learned counsel for defendants by countering this claim of P.W.1 and even the arguments of the plaintiff's counsel in this regard, has also urged with some vehemence that even though Ex.D.3 is an unregistered sale agreement, but from the evidence on record it is now proved that even under this sale agreement the possession of the schedule property was delivered in favour of defendant No.1 by the plaintiff. Though he has denied this fact in his cross-examination, but the documents themselves speak 35 O.S.No.8985/2013 about the said fact as the various revenue records which have come into existence much prior to the disputed sale deed clearly establish that pursuant to Ex.D1 & D.3 sale agreements, defendant No.1 came into possession of the suit schedule property and dealt with it by doing many acts which were proved to have been ratified by the plaintiff himself since 1992.
54. Therefore what could be gathered from the evidence on record placed before the court by both the parties is that at an undisputed point of time P.W.1 did execute Ex.D.1 in favour of defendant No.1 thereby delegating vast powers on her to deal with the property which fact could not be falsified by him. However though he has made a desperate attempt to disprove the fact of his receiving entire sale consideration amount from her under Ex.D.3 agreement, the same also could not be disproved by him for the simple reason that as already held above the conduct of the parties since the date of execution of these documents till the date in dealing with the schedule property clearly establish that Ex.D.1 was executed along with Ex.D.3 by P.W.1 thereby agreeing to sell the schedule property.
55. Merely because there are no specific materials placed before the court by the defendants with regard to his receipt of Rs.1,40,000/- towards the sale consideration amount from defendant No.1, that itself would not invalidate Ex.D.3, because had really P.W.1 no intention to alienate the schedule property to defendant No.1 as per Ex.D.3, certainly he would have made all best efforts to get back the possession of the schedule property and also all the original documents which were admittedly handed over to D.W.1 even as per his own admission. As discussed supra in para-10 of his cross-examination he has unequivocally admitted that he had handed over original 36 O.S.No.8985/2013 documents of suit property to the defendants. He has also not denied the fact that as on the date of Ex.D.1 there was a Govt ban on registration of sites. When he had no such intention to sell the schedule property to defendant No.1 as per his allegations, he would not have handed over those original documents to D-1 in the year 1993.
56. Moreover as held above, PW1 had issued Ex.P.2 legal notice revoking Ex.D.1 GPA in the year 2010. Therefore a reasonable suspicion arises as to what had prevented him since 1993 till 2010 in not cancelling Ex.D.1 or in not getting back the schedule property from defendant No.1. Though he has denied that he had delivered the possession of suit schedule property to her under Ex.D.1 & D.3, but not a single scrap of paper is finding place in the records by P.W.1 to show that he was in actual physical possession of the schedule property subsequent to 1992. On the contrary all the materials placed before the court both by P.W.1 as well as the defendants clearly establish that pursuant to Ex.D1, it is the defendant No.1 who has been in possession of the schedule property which is also supported by the mutation of her name to all the revenue records. These circumstances would clinchingly prove that because P.W.1 had agreed to sell the schedule property and had already received consideration amount under Ex.D.3, he had not taken any prudent steps to get back the schedule property till this date. Under such circumstances now he is estopped from questioning the credibility of Ex.D.3 agreement.
57. No doubt Ex.D.3 is an unregistered document but it is to be noted that as stated above already an interest has been created with respect to suit schedule property in favour of defendant No.1 both under Ex.D.1 & Ex.D.3. In other words under 37 O.S.No.8985/2013 these documents the interest of P.W.1 in the subject matter of the suit has been transferred in favour of defendant No.1. Under such circumstances under Ex.D.1 & D.3 it is squarely be held that the physical possession of the property has been conveyed in favour of defendant No.1 at the first instance and subsequently in favour of defendant No.3 under Ex.D.6. The learned counsel for plaintiff has vehemently argued that no legal and valid title could be passed on to either defendant No.1 or defendant No.3 under Ex.D.1 and D.3 which are not the documents of tile much less the registered deeds. In this regard it would be relevant to refer the proceedings of this court.
58. It is revealed from the records that since the counsel for plaintiff had raised objections from marking Ex.D.1 & D.3 on the ground of inadmissibility for insufficiency of Stamp duty, as the recitals in these documents would amount to conveyance and in view of the recital regarding delivery of possession of the property, the documents amount to conveyance deed and therefore the said documents are required to be impounded. By accepting the said objections, the court had impounded these documents and directed the defendants to pay the deficit duty and penalty and accordingly a sum of Rs.1,53,780/- was paid by them towards duty and penalty on 19.12.2018. Therefore when the defendants have already made good the said deficiency, now the plaintiff is estopped from questioning their admissibility. Furthermore as already held above since Ex.D.1 is coupled with interest, the same cannot be revoked by P.W1 for the reasons which are assigned supra.
59. The Hon'ble Supreme Court in a decision reported in Suraj Lamp & Industries Pvt. Ltd. v/s State of Haryana and anr. in Spl.Leave Petition No.13917/2009 has clearly dealt with 38 O.S.No.8985/2013 the issue as to whether the properties could be transferred under GPA and affidavits on sale agreement. No doubt the Hon'ble Apex Court in this decision has held that under such document there shall be no legal transfer of property U/S 5 of the Transfer of Property Act, but at the same time the Apex Court has made it clear in its judgment in para-18 as under:-
"We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said 'SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of T.P. Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to 'SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need 39 O.S.No.8985/2013 not be disturbed, merely on account of this decision.
We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions..... Our observations regarding 'SA/GPA/WILL transactions' are not intended to apply to such bonafide/genuine transactions".
60. Further the Hon'ble Supreme Court in the above cited decision has once again held that an attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the granter. The learned counsel for plaintiff has also referred to the very same decision and held that in view of the proposition of law laid down in this decision now it cannot be said that under Ex.D.1 & D.3 there is any valid and legal transfer of title over the schedule property either in favour of defendant No.1 or defendant No.3. Since the Hon'ble Supreme Court in the said decision has made it clear that any transfer which has taken place under such documents prior to the date of this decision cannot be invalidated. Since in the present case Ex.D.1 & D.3 have come into existence in the year 1993, i.e., prior to the date of this decision, it cannot be said that by virtue of this decision these deeds are to be invalidated or held as illegal.
61. The plaintiff has vehemently urged that defendant No.1 & 2 have played fraud and misrepresentation in bringing Ex.D.1 & 3 deeds in existence. As already discussed supra, in the absence of any specific circumstances made out in the pleadings 40 O.S.No.8985/2013 and in the evidence of P.W.1 about these pleas of fraud, coercion or misrepresentation, it cannot be said that such ground is available to P.W.1 to be urged before this court. Moreover since 1993 till the date of issuance of legal notice in 2010, no effort has been made by P.W.1 to take any legal action either civil or criminal against the defendants. On the contrary by his own in- action and conduct he himself allowed the defendants to deal with the schedule property as per their wish and accordingly defendant No.1 had performed all such acts in respect of schedule property as an owner of the property thus. All such acts of defendant No.1 which have been performed in furtherance of Ex.D.1 & 3 have been impliedly ratified by P.W.1. Under such circumstances now he is estopped from alleging that any fraud or misrepresentation has been played against him by the defendants.
62. Furthermore, in the evidence itself PW1 has clearly admitted as to what are the powers given by him under Ex.P.1 to defendant No.1 which also included the major acts like getting changed the revenue records into her name, payment of tax and other charges pertaining to schedule property and more significantly right of alienation of the schedule property. All those powers have been expressly given by P.W.1 under Ex.D.1 and this fact is also unequivocally admitted by him in his cross- examination which is already discussed supra. Under such circumstances absolutely there is no room for inferring that such acts were done by defendant No.1 fraudulently or by misrepresenting him. Therefore even these allegations of fraud, misrepresentation, etc. as sought to be raised by P.W.1 cannot be sustained. Ultimately it is to be held that he has expressly authorized defendant No.1 to deal with the schedule property and also to alienate the same to third parties since it is not recited in 41 O.S.No.8985/2013 Ex.D.1 that all such acts are to be strictly performed as per his own or with his consent nor it is stated that after alienating the schedule property the entire sale proceeds are to be given to him. Therefore in the absence of any such specific recitals in Ex.D.1, it cannot be said that there is such limited power conferred on defendant No.1 under Ex.D.1. Consequently it is to be held that he no longer remains as the owner of the schedule property as on the date of filing of the suit. Hence all these issues are accordingly answered thereby answering issue No.1 & 2 against the plaintiff in the negative and issue No.7 in favour of defendants in the affirmative.
63. Issue No.3:- In view of the findings given on preceding issues now it is to be proved that Ex.D.1 & D.3 have been executed at the instance of P.W1 thereby authorizing defendant No.1 to alienate the schedule property including the right to do such other acts which are recited in Ex.D.1. P.W.1 having admitted the execution of Ex.D.1 in her favour, is estopped from retracting from the contents of this GPA. When such express authority was given to defendant No.1 under Ex.D.1 then it cannot be said that she has committed any illegality in alienating the schedule property in favour of defendant No.3.
64. It has been vehemently argued by the counsel for the plaintiff that even under Ex.D.6 no consideration has been passed on to the vendor or to him or to defendant No.1 since defendant No.3 is none other than the son of defendant No.1. My attention was also invited to the contents of Ex.D.2 which shows that this absolute sale deed was executed in favour of defendant No.3 by defendant No.1 as the GPA holder of P.W.1. No doubt from the plain reading of this document it is apparently shown that the present P.W.1 is the vendor of the schedule property, but on 42 O.S.No.8985/2013 page-3 it has been specifically recited that on 13.03.1992 P.W.1 had executed Ex.D.1 in favour of defendant No.1 authorizing her to execute the sale deed and accordingly she has exercised the said right and sold the schedule property to defendant No.3 for consideration of Rs.1,40,000/- and it is further clearly stated that the vendor of P.W.1 has received the entire sale consideration amount. From the very fact that under Ex.D.1 and D.3 agreement the schedule property was already agreed to be sold for the said consideration amount, it clearly indicates that Ex.D.6 came into existence on 22.12.2010 but under Ex.D.3 itself it is shown that the entire consideration amount was already given to P.W.1. In other words, as rightly pointed out by the counsel for the defendants this Ex.D.3 itself amounts to a conveyance and therefore no illegality has been committed in executing Ex.D.6 by defendant No.1. Therefore it is safely be held that under Ex.D.6 there is a legal and valid transfer in favour of defendant No.3. Accordingly even this issue will have to be answered against the plaintiff in the negative.
65. Issue No.4:- P.W.1 has also sought for recovery of possession of the schedule property from the defendants. In view of the findings rendered on all the preceding issues it is now proved that the actual possession of the schedule property was already delivered to the defendant No.1 under Ex.D.1 & D.3. As stated above, no effort has been made by P.W.1 to recover the said possession from the defendants. The documents on record also indicate that the defendants continued to be in possession of the schedule property subsequent to 1992. Under such circumstances as argued by the defence counsel, how far P.W.1 could maintain even his claim against defendant No.3 for recovery of possession of the schedule property, is to be seen. Since Ex.D.6 is proved to be a legal and valid deed in favour of 43 O.S.No.8985/2013 defendant No.3 there is no question of holding P.W.1 entitled to recover the possession of the schedule property. Moreover no independent witnesses are also examined on behalf of P.W1 to show that even after execution of all these deeds the physical possession of the schedule property continued with the plaintiff since 1992 till the execution of Ex.D.3.
66. One more material aspect which requires consideration is as to whether P.W.1 could seek for recovery of vacant possession of the schedule property in the absence of any specific pleading as to when exactly he was dis-possessed from the schedule property by the defendants. As stated above, at the first instance he has not produced any supporting materials to prove his possession over the schedule property even after execution of Ex.D.1, because in Ex.D.1 he has given vast power to the defendant No.1 to deal with the schedule property. Furthermore it is also not his allegation that after creating Ex.D.3 or D.6 the defendants have forcibly obtained possession of the schedule property from him. Therefore even on this count it cannot be said that he is entitled to seek even the possessory relief with respect to schedule property. Therefore in view of the findings and the reasons assigned while discussing the preceding issues, it cannot be said that the plaintiff is entitled even to this relief. Accordingly this issue is also answered against him in the negative.
67. Issue No.5:- The defendants have also questioned the maintainability of the suit on the ground that the claim of the plaintiff is barred by limitation. It is alleged that in para-15 of their written statement they have contended that the suit is barred by limitation even according to the averments made in the plaint. As already held above, as per the admission of P.W.1 in his 44 O.S.No.8985/2013 evidence he executed Ex.D.1 in favour of defendant No.1 on 13.03.1992 and handed over all the original documents to her authorizing her to deal with the schedule property as recited in Ex.D.1. It is also now proved from the evidence on record that pursuant to Ex.D.1 already the defendants came into possession of the schedule property in the year 1992 itself. This fact is also evident from the various revenue records produced by her since 1992 till the date which clearly indicates that even P.W.1 has delivered the possession of the schedule property in her favour in the year 1992 itself. Under such circumstances the suit brought by him after lapse of more than 20 years seeking possession of the schedule property is apparently barred by limitation.
68. No doubt PW1 claims to be in possession of the schedule property, but the very prayer sought for by him for recovery of possession of the schedule property itself is sufficient to hold that he was out of possession of the schedule property. Therefore as rightly contended by the defendants, the claim of the plaintiff has to be rejected even on the ground of limitation. However the counsel for the plaintiff has sought to rely on a decision reported in High Court of Orissa reported in Bivas Chandra Samanta v/s Hira @ Madan Mohan Biswal and others in AIR 2006 ORISSA 1 wherein it is held that in a suit for declaration that the sale deed is invalid where it was executed by the defendant in the year 1987 without the knowledge of the plaintiff and that the plaintiff knows about the same, subsequent to 1993 and the parties have not pressed for such issue before leading evidence, it cannot be said that the suit filed in the year 1993 is barred by limitation since it is brought within 3 years from the date of knowledge.45 O.S.No.8985/2013
69. With due regards to the principles laid down in the above cited decision, it cannot be said that the same would help the case of the plaintiff in any manner for the simple reason that in the instant case has already held above from the evidence placed before the court it is abundantly proved that after 1992 of the execution of Ex.D.1, P.W.1 was very well aware of the act done by the defendants with respect to the schedule property. It is also not his case that he came to know about the alleged transfer of property in the name of defendant No.1 recently. On the other hand in his plaint itself he has stated that after some times after execution of Ex.D.1 on so many occasions he has requested defendant No.1 not to deal with the property in any manner which is detrimental to him. Thus even as per his own pleadings it is clear that even after execution of Ex.D.1 in the year 1992 he was aware of the state of affairs pertaining to the schedule property and also about the acts done by defendant pursuant to Ex.D.1. Therefore there is no question of his filing the suit within limitation from the date of knowledge about the alleged act of the defendants. Therefore the ratio laid down even in this decision cannot be extended to the present case.
70. The second decision relied on by the plaintiffs' counsel is reported in Ningawwa v/s Byrappa Shiddappa Hireknrabar and others in AIR 1968 SCC 956 wherein the Hon'ble Supreme Court while dealing with the case based on the pleas of fraud, misrepresentation, etc., held that in order to reckon the starting point for limitation, it is not the date of execution of gift deed but it is the time when fraud becomes known to the party wronged and it is the date when the plaintiff discovered true nature of the deed and not the date when he escapes from influence by which he was dominated. Again with due respect to the principles laid down in this decision, it cannot 46 O.S.No.8985/2013 be said that the same could be applied to the present case, because Ex.D.1 is not a document about which P.W.1 was ignorant nor it is his allegation in the pleadings that he discovered the fraudulent nature of this document recently. Therefore the facts involved in this decision cannot be equated with the facts on hand. Consequently even this decision is also no help to the plaintiff's case. Hence this issue also needs to be answered in the affirmative.
71. Issue No.6:- The defendants have also questioned the maintainability of the suit for insufficient payment of court fee on the suit reliefs. It is their defence that the plaintiff has sought for multifarious reliefs such as relief of declaration, mandatory injunction and possession but the sufficient court fee is not paid on these reliefs. According to the defendants, the reliefs claimed being distinct, they are to be valued separately and separate court fee has to be paid on each reliefs. The learned counsel for plaintiff in this regard has submitted that if the court fee paid is held insufficient, the plaintiff would be ready to pay deficit court fee.
72. As rightly pointed out by the learned counsel for defendant the suit property is admittedly not an agricultural land. On the contrary it is a vacant site which is coming within the limits of BBMP. If we peruse the valuation slip furnished by the plaintiff in this suit it is the suit reliefs only with regard to declaratory and possessary relief and paid court fee of Rs.9,450/-. Since two additional reliefs of mandatory injunction are also sought for, certainly they are to be valued independently as they are also the distinct reliefs. Therefore apparently it is to be said that the court fee paid thereon on these different reliefs is insufficient. Even otherwise the question of calling upon the plaintiff to pay the 47 O.S.No.8985/2013 deficit court fee would not arise in view of the evidence rendered on the above issues, because it is now proved that the defendant No.3 personally has acquired a legal and valid title over the schedule property under Ex.D.3. Moreover the physical possession of the schedule property is also proved to be with the defendants since past more than 20 years. Therefore even this issue needs to be answered in favour of the defendants in the affirmative.
73. Issue No.8:- In view of the findings given on all the preceding issues now it is proved that the plaintiff knowing fully well that he had already parted with the possession of the schedule property in the year 1992 itself under Ex.D.1 & D.3. In view of the fact that he has already conceded to the fact that under Ex.D.1 he had already authorized defendant No.1 to deal with the acts pertaining to the schedule property independently as a result of which the defendant No.1 has acted legally and conveyed the schedule property in favour of defendant No.3 under Ex.D.3. It is also evident from the materials placed on record that all these events were well within the knowledge of the P.W.1, but despite knowing the fact that he has already lost right over the schedule property by virtue of Ex.D.1 & D.3, still he has made a desperate attempt to file the present suit which is prima facie shown to be unsustainable both on facts as well as under
law. Therefore viewed from all these angles it cannot be said that plaintiff is entitled for any kind of relies. Hence this issue is also answered against the plaintiff in the negative.
74. Issue No.9:- In the light of the findings given on the above issues and as discussed supra from the evidence on record it is clearly proved that the P.W.1 had validly and consciously delivered the possession of the schedule property 48 O.S.No.8985/2013 and had also parted with it by transferring the same in the name of defendant No.1 in the year 1992 itself for valuable consideration. However considering the rise in the price of the property it appears that once again he has made an attempt to lay his hands on the schedule property thereby the defendants are dragged to the court of law to fight this frivolous litigation by incurring monetary expenditure in the form of payment of litigation charges. Therefore the suit deserves to be dismissed with cost. In the result, the court proceeds to pass the following:-
ORDER The suit filed by the plaintiff against the defendants for declaration, possession and for mandatory injunction is hereby dismissed with cost.
Draw decree accordingly.
The temporary injunction granted on 10.12.2013 hereby stands vacated.
(Part of the judgment dictated to the Judgment Writer, transcribed by him on computer and thereafter continued by me on laptop, carried out corrections, printout taken and then pronounced in the Open Court on this the 1st day of April, 2022) (SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Sri G. S. Puttaraju
List of documents exhibited for plaintiff:
Ex.P1 : Certified copy of the sale deed dated.
29.09.1988
49 O.S.No.8985/2013
Ex.P2 : Office copy of the notice dated. 16.12.2010
Ex.P3 & 4 : 2 postal receipts
Ex.P5 & 6 : 2 postal acknowledgements
Ex.P7 : Certified copy of the sale deed dated.
22.12.2012
Ex.P8 to 10: 3 encumbrance certificates
List of witnesses examined for defendant:
D.W1 : M.S. Rajaram,
List of documents exhibited for defendant:
Ex.D1 : GPA
Ex.D2 : Certified copy of sale deed 15.09.1984
Ex.D2(a) : Typed copy
Ex.D4 : Sale deed
Ex.D5 : Sale deed
Ex.D6 : Certified copy of sale deed
Ex.D7 : Certified copy of conversion order
Ex.D8 : Tax paid receipt
Ex.D9 : Demand register extract
Ex.D10 : Receipt
Ex.D11 : Khatha certificate
Ex.D12 : Assessment extract
Ex.D13 : Tax paid receipts
to D17
Ex.D18 : Self Assessment forms
to P22
Ex.D18(a) : Receipts
to P22(a)
Ex.P23 : Assessment extracts
Ex.P24 : Khatha certificate
Ex.P25 : Khatha endorsement
50 O.S.No.8985/2013
Ex.P26 : Assessment extracts
Ex.P27 : Encumbrance certificate 01.04.1997 to 31.03.2010 Ex.P28 : Encumbrance certificate 01.04.1987 to 21.03.2004 Ex.P29 : Encumbrance certificate 01.04.2004 to 06.02.2011 Ex.P30 : Tax paid receipt.
X Addl. City Civil & Sessions Judge, Bangalore.