Bangalore District Court
Sharma H D vs Brunda C on 1 April, 2025
KABC010242482014
IN THE COURT OF THE XXVII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-9) AT BENGALURU.
Dated this the 01st day of April, 2025.
PRESENT:
Sri HAREESHA A., B.A., LL.B.,
XXVII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.9233/2014
PLAINTIFFS : H.D. Sharma,
S/o. Sariya Sharma,
Aged about 65 years,
Residing at No.786/748, 'B'
Main, B.M. Shankarappa
Indl. Estate, Sunkadakatte,
Viswaneedam Post,
Bengaluru - 560091.
Also at:
No.651, 1st Cross, 4th Main,
B.E.M.L. Layout, R.R.Nagar,
Bengaluru - 560098.
(By Sri S.M., Advocate)
-VERSUS-
DEFENDANTS : 1. Smt. C.Brunda,
W/o. Late. M.V. Prakash,
Aged about 48 years,
Resident at No.62-F, 6th
Main, 5th Block, Jayanagar,
Bengaluru - 560041.
2. Smt. Shashikala M.V.,
W/o. S.V. Suresh,
Major,
Cont'd..
-2- O.S. No.9233/2014
Residing at No.10/12, 1st
Cross, 1st Block, Jayanagar,
Bengaluru - 560011.
Smt. Suma M.V.,
W/o. J. Ashwathnarayana,
Major,
Residing at No.62/F, 1st
Floor, 6th Cross, 5th Block,
Jayanagar, Bengaluru -
560011.
Smt. Srilatha M.V.,
W/o. Ravindranath,
Major,
Residing at No.285, 6th
Cross, 1st Stage,
Indiranagar, Bengaluru -
560038.
(By Sri T.N.C., Advocate)
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Date of Institution of the Suit : 28-11-2014
Nature of the Suit : Declaration and
Injunction Suit.
Date of the commencement : 25-03-2019
of recording of the evidence
Date on which the Judgment : 01-04-2025
was pronounced
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Year/s Month/s Day/s
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Total duration : 10 year/s, 4 months, 3 days.
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(HAREESHA A.)
XXVII Additional City Civil and Sessions Judge,
Bengaluru.
Cont'd..
-3- O.S. No.9233/2014
JUDGMENT
The instant suit instituted for the following reliefs;
(i) Declaring that the plaintiff is the absolute owner of the suit schedule property as per Sale Deed dated: 29.12.2005;
(ii) Directing the 1st defendant to execute a Confirmation Deed in favour of plaintiff confirming the Sale Deed dated: 29.12.2005;
(iii) For a permanent injunction restraining the defendants, their men, agents or anybody claiming under them from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff;
(iv) Grand such other reliefs.
2. The plaintiff's case, succinctly, are as follows:
The subject matter of the present suit pertains to a residential property bearing Site No.3, Kaneshumari No.1125/3, Khata No.1102, Assessment No.39/3, situated at Hegganahalli, Yeshwanthpura Hobli, Bengaluru North Taluk, which presently falls within the jurisdiction of the Bruhat Bengaluru Mahanagara Palike (BBMP). The said property measures 40 feet from East to West and 79 feet on the Eastern side, 76 feet on Cont'd..
-4- O.S. No.9233/2014 the Western side, aggregating to a total area of 3,100 square feet, as more fully described in the schedule annexed to the plaint (hereinafter referred to as the "suit schedule property").
3. The plaintiff has averred that the suit schedule property was acquired by the husband of defendant No.1, late M.V. Prakash, through a registered Sale Deed dated 22.08.1997 from its erstwhile owner, Sri Y.M. Krishnamurthy, utilizing joint family funds. Subsequently, on 17.03.2001, the husband of defendant No.1 executed an unregistered General Power of Attorney (GPA) and an Affidavit in favor of his mother, Smt. S.V. Kamalamma. Pursuant to the said GPA, the revenue records were mutated in the name of Smt. Kamalamma. It is further averred that Smt. Kamalamma passed away intestate on 20.05.2005, and defendants No.2 to 4, being her daughters, claim that the suit schedule property devolved upon them by virtue of an alleged oral partition among the legal heirs of Smt. Kamalamma. Relying on such devolution, defendants No.2 to 4 executed a registered Sale Deed in favor of the plaintiff on 29.12.2005, assuring that in Cont'd..
-5- O.S. No.9233/2014 the event any defect in the title was found, they would undertake to rectify the same.
4. The plaintiff has contended that upon execution and registration of the Sale Deed, he approached defendants No.2 to 4, requesting their cooperation for effecting mutation of revenue records in his favor. However, defendants No.2 to 4 persistently postponed the plaintiff's request to provide the necessary No Objection Certificate (NOC), thereby preventing the plaintiff from obtaining khata in his name. The plaintiff further alleges that when he commenced renovation work by dumping construction materials near the suit schedule property, defendant No.1 unlawfully obstructed him from proceeding with the construction. Subsequently, defendant No.1 instituted a suit in O.S. No.2746/2009 before the City Civil Court, Bengaluru, in respect of the suit schedule property. The plaintiff asserts that defendants No.2 to 4, after receiving summons in the said suit, procured his signature on a blank Vakalatnama under the pretext of engaging legal representation to contest the case. However, defendants No.2 to 4 failed to contest the suit, resulting Cont'd..
-6- O.S. No.9233/2014 in an ex parte decree being passed against the plaintiff. Aggrieved by the said decree, the plaintiff preferred a Miscellaneous Petition seeking restoration of the suit; however, the said petition was dismissed. Left with no other alternative, the plaintiff approached the jurisdictional police, seeking intervention. However, the police authorities declined to entertain the complaint, citing the dispute as civil in nature and advising the plaintiff to seek redress before the appropriate civil forum. Therefore, the plaintiff has filed present suit for the aforesaid reliefs.
5. Upon service of summons, defendant No.1 entered appearance through her counsel and filed a written statement, vehemently refuting the averments made in the plaint. She has asserted that the suit schedule property is the absolute and exclusive property of her deceased husband, M.V. Prakash, who passed away on 03.05.2003. Defendant No.1 has categorically disputed the alleged execution of the GPA and Affidavit in favor of her late husband's mother, as claimed by the plaintiff. Defendant No.1 has further contended that in O.S. No.2746/2009, instituted by her against the Cont'd..
-7- O.S. No.9233/2014 plaintiff and others, despite due service of summons, the plaintiff failed to appear, leading to the suit being decreed ex parte in her favor vide judgment and decree dated 05.08.2011. By virtue of the said decree, the plaintiff was permanently restrained from interfering with her peaceful possession and enjoyment of the suit schedule property. Additionally, defendant No.1 has alleged that defendants No.2 to 4, in collusion with the plaintiff, have fabricated and forged documents pertaining to the suit schedule property with the fraudulent intent of unlawfully divesting her of her rightful ownership. It is further contended that, based on such alleged forged documents, defendants No.2 to 4 executed sale deeds in favor of the plaintiff and Smt. Mahalakshmi on 15.04.2011 and in favor of M.C. Channaiah on 15.04.2001. In light of these allegations, defendant No.1 has asserted that the plaintiff's claim is predicated on fraudulent and fabricated documents, and accordingly, she has prayed for the dismissal of the suit with costs. Meanwhile, defendants No.2 to 4 failed to enter appearance despite service of summons, and consequently, they have been placed ex parte.
Cont'd..
-8- O.S. No.9233/2014
6. On an earlier occasion, due to the default of the defendants in contesting the suit, this Court decreed the suit in favor of the plaintiff vide judgment and decree dated 20.06.2019. However, upon an application filed by defendant No.1 in Miscellaneous Petition No. 634/2019, this Court, vide order dated 27.08.2024, set aside the said judgment and decree, thereby restoring the suit for fresh adjudication.
7. In light of the rival contentions advanced by the parties, my learned predecessor in office had originally framed several issues for consideration. However, at the stage of final arguments, the issues were recast as follows:
RECASTED ISSUES
1. Whether the plaintiff proves that, the suit schedule property was acquired in the name of the deceased husband of defendant No.1 by utilizing joint family funds?
2. Whether the plaintiff proves that, the suit schedule property was allotted to defendants No.2 to 4 in an oral partition allegedly Cont'd..
-9- O.S. No.9233/2014 effected among Smt. S.V. Kamalamma and defendants No.2 to 4?
3. Whether the plaintiff proves that defendants No.2 to 4 had a valid, subsisting, and transferable right, title, and interest in the suit schedule property, to vonvey lawful title to the plaintiff under the registered Sale Deed dated 29.12.2005?
4. Whether the defendant No.1 proves that, the Sale Deed dated 15.05.2011 was obtained on the basis of forged and fabricated documents?
5. Whether the plaintiff proves his possession and enjoyment of the suit schedule property?
6. Whether the plaintiff proves alleged interference by the defendants in his possession of the suit schedule property?
7. Whether plaintiff is entitle for the reliefs sought in the suit?
8. What order or decree?
Cont'd..
- 10 O.S. No.9233/2014
8. To establish the claim of the plaintiff, the Special Power of Attorney (SPA) holder of the plaintiff was examined as PW.1, who adduced evidence and produced documentary exhibits marked as Ex.P.1 to Ex.P.14. Upon restoration of the suit, defendant No.1 subjected PW.1 to cross-examination and, in support of her defence, tendered evidence on her behalf, leading to the marking of documents Ex.D.1 to Ex.D.47.
9. I have carefully considered the arguments advanced by the learned counsel for the plaintiff and have meticulously examined the entire evidence adduced by both the plaintiff and the defendants in support of their respective claims.
10. My findings on the above Issues are as under -
RECASTED ISSUE No.1 - In the Negative;
RECASTED ISSUE No.2 - In the Negative;
RECASTED ISSUE No.3 - In the Negative;
RECASTED ISSUE No.4 - In the Affirmative; RECASTED ISSUE No.5 - In the Negative;
RECASTED ISSUE No.6 - In the Negative;
RECASTED ISSUE No.7 - As per final order, Cont'd..
- 11 O.S. No.9233/2014
for the following -
REASONS
11. RECASTED ISSUES No.1 to 4 : For the sake of
coherence and efficiency, all points are consolidated for simultaneous discussion, thus minimizing redundancy in presentation.
The plaintiff asserts that the suit schedule property, though registered in the name of the late M.V. Prakash, husband of defendant No.1, was purchased utilizing joint family funds. Further, it is the plaintiff's case that the said M.V. Prakash executed an unregistered General Power of Attorney and an Affidavit in favor of his mother, Smt. S.V. Kamalamma, on 17.03.2001, in which he acknowledged receipt of ₹4,00,000/- as consideration. The plaintiff further contends that, pursuant to an oral partition among the legal heirs of Smt. Kamalamma, the suit schedule property fell to the share of defendant Nos.2 to 4, who subsequently sold the property to the plaintiff through a registered Sale Deed dated 29.12.2005, after the demise of Smt. Kamalamma. To substantiate the plaintiff's claim, the Special Power of Attorney (SPA) holder of the Cont'd..
- 12 O.S. No.9233/2014 plaintiff was examined as PW.1. He tendered his affidavit in lieu of chief examination, reiterating the averments in the plaint, and produced documentary evidence marked as Ex.P.1 to Ex.P.14. Ex.P1 is the Special power of attorney dated 20.02.2019; Ex.P2 is the original sale deed dated: 22.08.1997; Ex.P3 is the General power of attorney dated: 17.03.2001; Ex.P4 is the Affidavit; Ex.P5 is the Absolute sale deed dated:
29.12.2005; Ex.P6 to P11 are the Tax paid receipt;
Ex.P12 to14 are the Property tax description list.
12. During cross-examination, PW.1 stated that his father could not appear before the court due to ill health. He deposed that his testimony was based on documents provided by his father and pleaded ignorance regarding whether his father had verified the documents at the time of purchasing the suit schedule property. He further admitted that, at the time of purchase, his father verified the names of the khatedars, but acknowledged that the khata of the suit schedule property was not in the name of defendant Nos.2 to 4 at the time of execution of the Sale Deed in favor of the plaintiff. He also admitted that defendant Nos.2 to 4 Cont'd..
- 13 O.S. No.9233/2014 resided separately from Smt. Kamalamma, whereas M.V. Prakash and Smt. Kamalamma resided together, with the latter being under the care of the former. PW.1 admitted that M.V. Prakash passed away on 03.05.2003, and Smt. Kamalamma passed away on 20.05.2005. He further admitted that, in O.S. No.2746/2009 filed by defendant No.1, summons were served upon him and that the said suit was decreed in favor of defendant No.1.
13. Additionally, PW.1 conceded that following the demise of Smt. Kamalamma, defendant No.1 has been in possession and enjoyment of the suit schedule property and that the khata has been registered in her name. He also admitted that he executed Sale Deeds in respect of the suit schedule property in favor of Mahalakshmi and Channaiah on 15.04.2011, which were subsequently canceled. He asserted that the entire sale consideration was paid to defendant Nos.2 to 4 in cash. However, he admitted that, as per the recitals in Ex.P.5, the entire sale consideration of ₹5,10,000/- was paid to Smt. Kamalamma. He denied the suggestions regarding the alleged fabrication of documents, including Ex.P.5 the Cont'd..
- 14 O.S. No.9233/2014 Sale Deed. In defense, defendant No.1 was examined as DW.1. She tendered her affidavit in lieu of chief examination, reiterating the averments made in the written statement, and produced documentary evidence marked as Ex.D.1 to Ex.D.47. Ex.D1 is the identity Card issued by the Election Commission of India; Ex.D2 is the certified copy of the death certificate of M.V. Prakash; Ex.D3 to D5 are the Aadhar cards; Ex.D6 to D8 are the identity Cards issued by the Election Commission of India; Ex.D9 and D10 are the certified copyies of the Katha Extract, Katha Certificate; Ex.D11 is the Katha Extract; Ex.D12 to D26 are the Tax paid Receipts; Ex.D27 to D31 are the receipts by the BESCOM; Ex.D32 to D37 are the ceceipts issued by the BWSSB; Ex.D38 and D39 are the Encumbrance certificate; Ex.D40 and D41 are the certified copies of the Sale Deeds; Ex.D42 and D43 are the certified copies of the Registered Sale Agreements; Ex.D44 is the certified copy of the Registered Cancellation of Sale Deed dated 11.01.2013; Ex.D45 is the certified copy of the Judgment in OS No. 2746/2009; Ex.D46 is the certified copy of the order passed in Misc No. 576/2014 Cont'd..
- 15 O.S. No.9233/2014 and Ex.D47 is the certificate issued under Sec. 65 B of Indian Evidence Act.
14. During cross-examination, DW.1 deposed that her marriage with M.V. Prakash was solemnized in 1993 and that she resided with him and Smt. Kamalamma, while defendant Nos.2 to 4 lived separately. She denied the suggestion that the suit schedule property was purchased using joint family funds in the name of her husband. She pleaded ignorance regarding any alleged partition among defendant Nos.2 to 4 concerning joint family properties. She denied the execution of the General Power of Attorney dated 17.03.2001 in favor of Smt. Kamalamma but admitted the signature of her husband on Ex.P.3 while denying his signature on Ex.P.4. She pleaded ignorance about the execution of the Sale Deed by defendant Nos.2 to 4 in favor of the plaintiff. She denied the execution of the Sale Deed by defendant Nos.2 to 4 and also denied the plaintiff's claim regarding possession of the suit schedule property.
15. The learned counsel for the plaintiff, though vehemently contended that defendant Nos.2 to 4 had executed a Cont'd..
- 16 O.S. No.9233/2014 registered Sale Deed in favor of the plaintiff on 29.12.2005, has admitted that the suit schedule property was originally purchased in the name of the deceased husband of defendant No.1. However, the learned counsel argued that the said property was acquired using joint family funds and that the deceased husband of defendant No.1 subsequently executed an unregistered General Power of Attorney and an Affidavit in favor of his mother, Smt. S.V. Kamalamma. It is further contended that, pursuant to an oral partition, the suit schedule property fell to the share of defendant Nos.2 to 4. The documents produced by the plaintiff, particularly the tax paid receipts marked as Ex.P.6 to Ex.P.10, indicate that the property stood in the name of the deceased husband of defendant No.1. Although for the period between 2002 and 2004, property tax was purportedly paid in the name of Smt. S.V. Kamalamma, the mother of defendant Nos.2 to 4, it is significant to note that after the demise of M.V. Prakash on 03.05.2003, the property tax was paid in the name of Smt. S.V. Kamalamma on 20.08.2004. Furthermore, Ex.P.11, being the declaration of property tax, was Cont'd..
- 17 O.S. No.9233/2014 submitted on 30.08.2004, subsequent to the death of M.V. Prakash. However, the plaintiff has failed to produce any documentary evidence to establish that Smt. S.V. Kamalamma acquired title over the suit schedule property through any legally recognized means or procedure.
16. The plaintiff's entire case is predicated upon an unregistered General Power of Attorney dated 17.03.2001, through which the plaintiff asserts that the deceased, M.V. Prakash, transferred the subject property to his mother, S.V. Kamalamma, and executed an affidavit marked as Ex.P.4, acknowledging the receipt of Rs.4,00,000/- as consideration. However, during the cross-examination of PW.1, it was admitted that, as per Ex.P.5, an amount of Rs.5,35,000/- was paid to Defendant Nos.2 to 4 and their mother. This assertion appears to be false, as the mother of Defendant Nos.2 to 4 had predeceased the execution of the Sale Deed. It is an undisputed fact that the mother of Defendant Nos.2 to 4 passed away intestate and did not execute any document based on the alleged unregistered General Power of Attorney.
Cont'd..
- 18 O.S. No.9233/2014
17. It is a well-settled principle of law that the transfer of immovable property can only be effectuated through registered instruments or in accordance with the prescribed legal procedures. A General Power of Attorney does not confer ownership or title over immovable property; rather, it merely authorizes the attorney-in-fact to administer the property on behalf of the principal. In State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, while adjudicating upon the constitutional validity of Section 22A of the Registration Act, the Hon'ble Supreme Court elaborated on the nature and legal implications of a power of attorney, characterizing it as a document of convenience that enables the agent to act on behalf of the principal or manage the principal's affairs. The relevant observations are as follows:
"Power of attorney
13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of Cont'd..
- 19 O.S. No.9233/2014 transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
14. Besides the Contract Act, the Powers-of- Attorney Act, 1882 deals with the subject. Section 1-A of the Powers-of-Attorney Act defines power of attorney to include any instruments empowering a specified person to act for and in the name of the person executing it. Section 2 of the said Act reads, thus:
"2. Execution under power of attorney.--The donee of a power of attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and Cont'd..
- 20 O.S. No.9233/2014 his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.
This section applies to powers of attorney created by instruments executed either before or after this Act comes into force."
Execution of a deed of power of attorney, therefore, is valid in law and subject to the provisions of the Act is not compulsorily registerable."
(Emphasis supplied) Thus, it is a well-settled principle of law that a power of attorney constitutes an agency relationship, whereby the grantor (donor/executant) delegates authority to the grantee (donee/holder/attorney) to perform certain acts on his behalf, which, if done within the scope of the authority conferred, shall be legally binding upon the Cont'd..
- 21 O.S. No.9233/2014 grantor as though they were performed by him personally.
18. It was contended on behalf of the plaintiff that a conjoint reading of the GPA and the Affidavit marked as Ex.P.3 and 4, establishes that the power of attorney was executed for valuable consideration and that possession of the suit property was delivered to the attorney-holder. It was further submitted that since both documents were executed contemporaneously, in favor of the same person, they must be read in pari materia and construed harmoniously. By virtue of this reasoning, the power of attorney holder acquires a vested interest in the subject matter of the agency, thereby rendering the agency irrevocable by operation of Section 202 of the Indian Contract Act, 1872.I am of the considered view that the arguments advanced by the plaintiff would have held significant weight had the mother, as the holder of the General Power of Attorney, executed any Sale Deed or Conveyance Deed in favor of the plaintiff. However, it is evident that no such document was executed by her, even after the death of the principal.
Cont'd..
- 22 O.S. No.9233/2014
19. Section 201 of the Contract Act delineates the various modes by which the authority conferred upon an agent by the principal may be revoked. Ordinarily, a principal retains the prerogative to terminate the agency unless such revocation is expressly precluded by the application of Section 202 of the Contract Act. Section 202 operates as an exception to the general rule enshrined under Section 201, providing that where an agent possesses an independent and subsisting interest in the property constituting the subject matter of the agency, such agency shall not be revocable to the prejudice of that interest, unless there exists an express stipulation to the contrary.
20. The illustrations appended to Section 202 elucidate the principle of irrevocability in the following terms:
Illustration: (a) contemplates a scenario where 'A' (the principal) grants authority to 'B' (the agent) to sell his land and appropriate the proceeds towards the discharge of a debt owed by 'A' to 'B'. Illustration (b) envisages a situation where 'A' consigns 1,000 bales of cotton to 'B', who has advanced funds against the consignment. 'A' subsequently requires 'B' Cont'd..
- 23 O.S. No.9233/2014 to sell the consignment and recover his advance from the sale proceeds.
In both cases, 'A' is precluded from unilaterally revoking the agency, and the agency does not stand extinguished upon his death or insanity. A crucial aspect emerging from these illustrations is that the existence of an interest or security in favor of the agent does not imply that a mere entitlement to remuneration constitutes an interest in the subject matter of the agency. Rather, such interest must extend beyond the mere right to receive commission or remuneration. Where a power of attorney is coupled with an interest, it acquires the character of an irrevocable agency, unless expressly provided otherwise. The essential conditions for the application of Section 202 of the Contract Act, firstly, there must exist a legal relationship in the nature of a principal-agent arrangement between the parties. Secondly, the agent must possess a proprietary interest in the subject matter of the agency. Once these twin conditions are satisfied, the agency attains the character of irrevocability and cannot be rescinded unilaterally at the instance of the principal. Since the Cont'd..
- 24 O.S. No.9233/2014 first condition itself is under dispute in the present case, the crucial inquiry pertains to whether, upon a holistic construction of the GPA, the power of attorney holder can be said to possess a vested interest in the subject matter of the agency, namely, the suit property.
21. The principle of irrevocable agency finds further affirmation in Bowstead on Agency, 14th Edition, page 423, wherein it has been expounded as follows:
(i) Where the authority of an agent is conferred by deed or for valuable consideration, for the purpose of effectuating a security or safeguarding an interest of the agent, such authority remains irrevocable for the duration of the subsistence of such security or interest.
However, mere possession of an interest in the exercise of such authority, or a lien for advances, does not render the agency irrevocable unless the authority was expressly granted for the purpose of securing such interest or advances.
(ii) Where a power of attorney, at the time of its creation, is expressly declared to be irrevocable and is granted to secure a proprietary interest of the donee of the power, or to ensure the performance of an obligation owed to Cont'd..
- 25 O.S. No.9233/2014 the donee, the power remains irrevocable for as long as the donee continues to hold such interest or the obligation remains undischarged.
(iii) An authority that is deemed irrevocable under the foregoing principles is not extinguished by the death, insanity, or insolvency of the principal. Similarly, in cases where the principal is a corporate entity, such authority does not stand annulled by its dissolution or winding up, nor can it be revoked unilaterally by the principal without the agent's consent.
22. Applying the aforesaid principles to the present case, the determination of whether the power of attorney in question is indeed coupled with an interest necessitates a meticulous examination of the GPA, the Affidavit, and the surrounding circumstances upon which the plaintiff's claim is predicated. It is an admitted fact that the plaintiff has not examined any attesting witnesses to the GPA or the Affidavit, both of which have been disputed by Defendant No.1. Furthermore, the signature of Defendant No.1's husband in Ex.P.4 has not been duly proved. Notably, there is no recital within the GPA affirming its irrevocable nature or evidencing the Cont'd..
- 26 O.S. No.9233/2014 passing of consideration or as it is granted to secure a proprietary interest of the donee of the power, or to ensure the performance of an obligation owed to the donee and only in such circumsatnces the power remains irrevocable for as long as the donee continues to hold such interest or the obligation remains undischarged. Given the close familial relationship between the principal and the alleged attorney-in-fact, specifically, that of a son and mother and the undisputed fact that they resided under the same roof until their demise, the execution of such a GPA in exchange for a monetary consideration appears to be a highly dubious transaction.
23. The law recognizes two modes of transfer by sale, first, through a registered instrument, and second, by delivery of property if its value is less than Rs. 100/-. This principle was recently elaborated by the Hon'ble High Court of Karnataka in Channegowda v. N.S. Vishwanath, reported in 2023 SCC OnLine Kar 153. The relevant portion is reproduced as under:--
"14. An attempt is made on behalf of the plaintiffs to contend that the second plaintiff has sold the Cont'd..
- 27 O.S. No.9233/2014 property as a General Power of Attorney Holder and not as a title holder. It is argued that the Power of attorney is not compulsorily registrable. The submission is noted with care. Suffice it to note that a deed of power of attorney is not one of the instruments specified under Section 17 of the Registration Act compulsorily registrable. However, if a power has been created empowering the attorney to sell the property i.e., if a document that gives a right to the attorney holder to sell the immovable property, then it would be a document creating an interest in immovable property, which would require compulsory registration. In the present case, the General Power of Attorney alleged to have been executed by defendants 1 to 3 in favor of the second plaintiff is coupled with interest i.e., power of alienation is conferred but it is not registered. The Apex Court in the SURAJ LAMP's case has held that the General Power of Attorney Sale, or Sale Agreements/Will do not convey title and do not amount to transfer, nor can they be considered Cont'd..
- 28 O.S. No.9233/2014 valid modes of transfer of immovable property. Therefore, it can be safely concluded that the declaration of facts/statement of facts (affidavit) and General Power of Attorney do not convey title. They are inadmissible in evidence."
(Emphasis supplied)
24. Therefore, in order to assert an irrevocable interest through a General Power of Attorney, such a document must be duly registered in accordance with Section 17(1)(b) of the Registration Act. In the absence of such registration, the holder of the Power of Attorney cannot validly claim any right, title, or interest in the immovable property. Consequently, upon the demise of the GPA holder I.e mother, Defendant Nos. 2 to 4, as Class-I legal heirs, would not inherit such rights and interests as the deceased predecessor had no lawful title or right over the suit schedule property.
25. The Hon'ble Apex Court in Ghanshyam v. Yogendra Rathi, (2023) 7 SCC 361 has held thus-
"12. It goes without saying that the power of attorney executed by the appellant-defendant Cont'd..
- 29 O.S. No.9233/2014 is of no consequence as on the strength of said power of attorney, neither sale deed has been executed nor any action pursuant thereof has been taken by the power-of- attorney holder which may confer title upon the respondent-plaintiff. Non-execution of any document by the general power-of- attorney holder consequent to it renders the said general power of attorney useless."
The ratio enunciated in the aforementioned decision is squarely applicable to the facts of the present case. As discussed supra, the mere existence of the said General Power of Attorney does not, in itself, confer any title or transferable interest. Notably, no sale deed was executed nor any consequential action was undertaken by the power-of-attorney holder pursuant to the said document that could have vested any legally enforceable title upon the vendors of the plaintiff. Hence, the plaintiff cannot derive any valid claim or right over the suit schedule property based solely on the purported authority under the unregistered General Power of Attorney.
Cont'd..
- 30 O.S. No.9233/2014
26. The defendant has produced substantial documentary evidence to establish her possession and residence in the suit schedule property, along with her minor sons. PW.1 conceded during cross-examination that Defendant No.1, along with her husband, minor son, and Kamalamma, resided in the suit schedule property. The defendant has furnished a certified copy of the Khata Ex.D.10, which evidences that, following the demise of M.V. Prakash, the Khata was duly mutated in her name on the basis of inheritance. Further, Exhibits D.12 to D.26, comprising property tax receipts, substantiate that Defendant No.1 has been remitting property taxes for the suit schedule property since 2008. Exhibits D.27 to D.31 contain receipts issued by BESCOM, confirming the provision of electricity to the building situated on the suit schedule property, while Exhibits D.32 to D.37 are receipts from BWSSB evidencing the supply of water to the said premises. Additionally, the defendant has produced certified copies of a Sale Deed executed by the plaintiff on 15.04.2011 in favor of Smt. Mahalakshmi and M.C. Channaiah, marked as Exhibits D.40 and D.41.
Cont'd..
- 31 O.S. No.9233/2014 Subsequently, a Cancellation Deed was executed by the aforementioned purchasers in favor of the plaintiff. Exhibit D.43 is a certified copy of the Agreement of Sale executed by the plaintiff in favor of Smt. Mahalakshmi. Furthermore, in O.S No.2746/2009, the Hon'ble 24th Additional City Civil and Sessions Judge, Bengaluru, decreed the suit in favor of Defendant No.1, thereby restraining the plaintiff from interfering with her possession of the suit schedule property.
27. Upon a holistic evaluation of the evidence presented by both parties, it is my considered opinion that the plaintiff has failed to establish that his vendor possessed a legally transferable right, title, and interest in the suit schedule property so as to execute a valid Sale Deed warranting a declaration of title in the plaintiff's favor. Moreover, during cross-examination, PW.1 conceded that Defendant No.1 has been in possession of the suit schedule property subsequent to the demise of her husband. The documentary evidence adduced by Defendant No.1 sufficiently establishes her possession and enjoyment of the suit schedule property as its absolute owner. Accordingly, Issues No.1 to 3 are Cont'd..
- 32 O.S. No.9233/2014 answered in the negative, and Issue No.4 is answered in the affirmative.
28. ISSUES No.5 and 6: As discussed supra, during the cross-examination of PW.1, he unequivocally admitted that defendant No.1 has been in possession and enjoyment of the suit schedule property since the demise of her husband. Furthermore, the documentary evidence adduced by defendant No.1, particularly the Khata certificate, tax paid receipts, and utility bills issued by BESCOM and BWSSB, marked as Ex.D.12 to D.37, conclusively establish her possession and enjoyment over the suit schedule property. Additionally, in the previous suit for perpetual injunction filed by defendant No.1, the learned 24th Additional City Civil and Sessions Judge categorically held that defendant No.1 (as plaintiff in that suit) had successfully proved her possession and enjoyment of the suit schedule property. In light of the foregoing, I am constrained to answer Issues No.5 and 6 in the negative.
29. ISSUE No.7 : For the aforesaid reasons and discussion, I proceed to pass the following -
Cont'd..
- 33 O.S. No.9233/2014
ORDER
Suit of the plaintiff is dismissed with cost.
Draw decree accordingly.
(Dictated to the Stenographer Grade-III, transcribed by her, revised by me and after corrections, pronounced in open Court on this the 01st day of April, 2025.) (HAREESHA. A) XXVII Additional City Civil and Sessions Judge, Bengaluru.
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFF:
Examined on:
P.W.1 : Rotesh Sharma 25-03-2019
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P1 : Special power of attorney dated 20.02.2019.
Ex.P2 : Original sale deed dated: 22.08.1997. Ex.P3 : General power of attorney dated:
17.03.2001.
Ex.P4 : Affidavit.
Ex.P5 : Absolute sale deed dated: 29.12.2005.
Ex.P6 : Tax paid receipt.
to P11
Ex.P12
to Property tax description list.
Ex.P14
Cont'd..
- 34 O.S. No.9233/2014
3. WITNESS/ES EXAMINED FOR THE DEFENDANTS:
Examined on:
D.W.1 : C. Brunda 16-01-2025
4.DOCUMENT/S MARKED ON BEHALF OF DEFENDANTS:
Ex.D1 : Identity Card issued by the Election Commission of India.
Ex.D2 : Certified copy of the death certificate of M.V. Prakash.
Ex.D3 : Aadhar cards.
to D5
Ex.D6 : Identity Cards issued by the Election
to D8 Commission of India.
Ex.D9 : Certified copy of the Katha Extract,
and D10 Katha Certificate.
Ex.D11 : Katha Extract.
Ex.D12 : Tax paid Receipts (15 Nos).
to D26
Ex.D27 : Receipts by the BESCOM. (5 Nos.)
to D31
Ex.D32 : Receipts issued by the BWSSB (6 Nos.)
to D37
Ex.D38 Encumbrance certificate (2 Nos.)
and D39
Ex.D40 : Certified copies of the Sale Deeds.
and D41
Ex.D42 : Certified copies of the Registered Sale
and D43 Agreements.
Ex.D44 : Certified copy of the Registered
Cancellation of Sale Deed dated
11.01.2013.
Ex.D45 : Certified copy of the Judgment in OS
No. 2746/2009.
Cont'd..
- 35 O.S. No.9233/2014
Ex.D46 : Certified copy of the order passed in
Misc No. 576/2014.
Ex.D47 : Certificate issued under Sec. 65 B of
Indian Evidence Act.
(HAREESHA A.)
XXVII Additional City Civil and Sessions Judge, Bengaluru.
Cont'd..