Karnataka High Court
R. Sandhyarani W/O. T.A. Panduranga ... vs M. Mylarappa S/O. Late Mylappa on 25 January, 2007
Equivalent citations: 2008(1)KARLJ524, AIR 2008 (NOC) 114 (KAR.) = 2007 (6) AIR KAR R 290, 2007 (6) AIR KAR R 290 2008 AIHC (NOC) 152 (KAR.) = 2007 (6) AIR KAR R 290, 2008 AIHC (NOC) 152 (KAR.) = 2007 (6) AIR KAR R 290, 2008 AIHC (NOC) 152 (KAR.) = 2007 (6) AIR KAR R 290 2007 (6) AIR KAR R 290, 2007 (6) AIR KAR R 290
Author: K. Ramanna
Bench: K. Ramanna
ORDER K. Ramanna, J.
1. This revision petition is filed by the petitioner challenging the order of dismissal of the eviction petition filed by her in H.R.C. 904/01 on the file of the XII Addl. Small Causes Judge, Bangalore, whereby the trial court dismissed the eviction petition filed by her against the respondent Mylarappa under Section 27(2)(a) and (r) of the Karnataka Rent Act.
2. The brief facts of the case are that the petitioner stated to be the absolute owner of the petition schedule premises and the respondent is her tenant as per rental agreement dated 7.6.1999. The rent was Rs. 500/- per month for a period of two years from 7.6.1999 and thereafter the rent was enhanced to Rs. 2000/- per month. The case of the petitioner is that her family consists of six members including her husband, three daughters and son. The present premises in occupation of the petitioner is an old building, hence the petitioner is intending to shift her family to the petition schedule premises. Since the respondent is a chronic defaulter in payment of rents, a legal notice was issued, the same was returned unclaimed. However the certificate of posting was duly served on the respondent for which he has sent untenable reply. Therefore, the petitioner filed H.R.C. 904/2001. The trial court after recording the evidence and after hearing counsel appearing for both parties directed the parties to approach competent court of civil jurisdiction for declaration of their rights. Therefore, the petitioner has come up in this revision petition.
3. Heard the arguments of the learned Counsel for the petitioner Sri Rajanna and Sri R.B. Sadashivappa, for the respondent.
4. It is argued by the learned Counsel for the petitioner that one Hanumanthappa, who was the original owner of the petition schedule premises has executed an irrevocable power of attorney in favour of the respondent Mylarappa and the said Mylarappa in turn executed a registered sale deed in favour of petitioner herein, on 7.6.1999. As a power of attorney the respondent has got every right to sell the property on the basis of the terms and conditions of the power of attorney, therefore the sale deed executed by the respondent is valid in the eye of law, thereafter the respondent himself has taken the premises on lease basis to that effect a rental agreement has been entered into on 7.6.1999, therefore, there is relationship of landlord and tenant between the petitioner and the respondent and the trial court has wholly erred in holding that there is no relationship of landlord and tenant between the petitioner and respondent. In support of his contention the learned Counsel for the petitioner has relied on a decision of this Court reported in the case of Mohammed @ Podiya v. Assistant Commissioner wherein it has been held that:
A power-of-attorney is an authority whereby one is authorised to act for another. Power of attorney is ordinarily construed strictly and general powers are interpreted in the light of the special powers, although they may include incidental powers necessary for carrying out the authority granted. Where a general power is given followed by specific powers, the generality of powers will have to be read in the light of the specific powers granted. Where all the rights and liabilities were made over by a power-of attorney, such power is an agency coupled with interest.
Further he relied on decision of the Apex Court reported in the case of Seth Loon Karan Sethiya v. Ivan E. John and Ors wherein the Apex Court held that:
On the tenor of the document as well as from its terms (i) that the power given to the Bank was a power coupled with interest and same was irrevocable in view of Section 202 of Contract Act.
It is argued that under Section 202 of the Contract Act the agent has got every right to sell the property even after the death of power of attorney. It is argued that the respondent himself has filed an affidavit before the trial court stating that he being the owner of the properly which was sold to the revision petitioner wherein he admits that he is the vendor of the petitioner, who had sold the petition schedule premises to her. Therefore the affidavit filed by the respondent is binding on him.
5. On the other hand the learned Counsel for the respondent submitted that Hanumanthappa was the owner of the premises and he executed a power of attorney in favour of the respondent Mylarappa on 10.4.1987. Hanumanthappa died on 5.8.1987. Therefore, even if any power of attorney executed in favour of Mylarappa he has no right or title to execute the sale deed in favour of the petitioner herein after the death of said Hanumanthappa. Therefore, as soon as the power of attorney dies, even if it is an irrevocable power of attorney, and any sale of the properly by him becomes void sale. Therefore, any rent agreement and resale agreement obtained by threat, coercion and fraud is void. Therefore the trial court has rightly held that there is no landlord and tenant relationship between the petitioner and the respondent. Further there is dispute with regard to the title of the property. Hence prays for dismissal of this revision petition.
6. In support of his contention the learned Counsel relied on a decision reported in the case of R. Shariff and Ors. V. A. Mohammed Noor and Anr. wherein this Court held that:
Section 43 of the new Act is enacted to safeguard the interest of the tenants and they should not be evicted by the persons who have no title to the petition schedule property. It is no doubt true that frivolous applications are made to stall the eviction proceedings, but however in the case on hand the fact that a series of proceedings at undisputed point of time when the title of the vendor of the present petitioner itself was questioned and having been denied by the Courts, the applications maintained by the respondents in the trial court for deferring the eviction proceedings until the title is decided cannot be said to be either frivolous or to drag on the proceedings.
7. It is an admitted that late Hanumanlhaiah was the original owner in whose favour the premises was allotted by the Karnataka Housing Board. During the life lime of Hanumanthaiah he has executed a power of attorney in favour of the respondent Mylarappa. Within a short period i.e., on 5.8.1987 Hanumanthaiah died. Alter the death of Hanumanthaiah respondent herein executed the sale deed in favour of the petitioner. The specific contention taken by the respondent is that the sale deed and other documents taken by the petitioner by playing fraud and coercion. Further it is contended that the person who has no title over the property cannot sell or bequeath the properly to a third party.
8. The learned Counsel contended that as per Section 202 of the Indian Contract Act, even if the principal died after execution of the power of attorney the agent has every right to sell or bequeath the property as per the terms of the power of attorney.
9. It is relevant to quote Section 202 of the Indian Contract Act, 1872, which reads thus:
202. Termination of agency, where agent has an interest in subject-matter. Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
From the plain reading of the above Section it is clear that there is no such wordings as contended by the learned Counsel for the petitioner. Therefore, as soon as the person, who executed the power of attorney, dies the right given to the power of attorney holder also conies to an end. Therefore, any registered sale deed executed by the respondent without any valid title over the property become void. Moreover, this Court cannot go into deciding the title of the property. It is for the Civil Courts to decide. Therefore, I do not find any good ground to interfere with the impugned order.
10. Accordingly, revision petition is dismissed.