Bangalore District Court
Chandra And Chandramma vs Julie on 11 January, 2024
KABC0A0021082019
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Sri S. Sudindranath, LL.M., M.B.L.,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.25810/2019
Dated this 11th day of January, 2024
Plaintiff:- Smt. Chandra @ Chandramma,
D/o Late Doraiswamy,
Aged about 60 years,
No.325, 13th Cross, 'A' Block,
B.D.A Layout, Lingarajapuram Slum,
M.S. Nagar, P.O, Bengaluru-33.
(Rep. By - Sri S.I. Balaguru, Advocate)
V/S
Defendants:- 1) Smt. Julie, W/o Raja,
Aged about 49 years,
No.324, 13th Cross, 'A' Block,
B.D.A Layout, Lingarajapuram Slum,
M.S. Nagar, P.O, Bengaluru-33.
2) The Chairman,
Bengaluru Development Authority (BDA),
T. Chowdaiah Road,
Bengaluru-20.
(D1 by - Sri N.R.R, D2 by - Sri K.S.N, Advocates)
2 OS.No.25810/2019
Judgment
KABC0A0021082019
Date of Institution of the suit 19/06/2019
Nature of the (Suit or pro-note, Declaration Suit
suit for declaration and
possession, suit for injunction,
etc.)
Date of the commencement of 30/08/2022
recording of the Evidence.
Date on which the Judgment 11/01/2024
was pronounced.
Year/s Month/s Day/s
Total duration -04- -06- -22-
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BENGALURU.
:: JUDGMENT ::
This is a suit for declaration, recovery of possession and injunction filed by sole plaintiff against defendant No. 1 and
2.
2. The plaint averments are that, the Suit Schedule Property was leased / allotted to plaintiff's mother Parvathamma by BDA / defendant No. 2 under lease agreement dated 9-10-1990 and she was put in possession by 3 OS.No.25810/2019 Judgment KABC0A0021082019 BDA. The defendant No. 1 has created and forged several documents such as GPA, affidavit and declaration purporting to have been executed by plaintiff's mother in favour of defendant No. 1 and on strength of the same defendant No. 1 has come into unlawful possession of suit schedule property. The plaintiff's mother died on 8-7-2005 and after her death plaintiff has succeeded to the suit schedule property. In spite of approaching BDA on several occasions in respect of the wrongful and unlawful acts of defendant No. 1, BDA has not taken any action and on the other hand BDA has executed sale deed in favour of defendant No. 1 dated 11-7-2018. In fact, there was restriction on transfer in the lease agreement and therefore not only the documents in favour of defendant No. 1 are created but also invalid since plaintiff's mother could not have transferred suit schedule property during the lease period. With these pleadings the plaintiff is before the court for declaration that sale deed dated 11-7-2018 executed by BDA / defendant No. 2 in favour of defendant No. 1 is null and void and not binding on the plaintiff and for 4 OS.No.25810/2019 Judgment KABC0A0021082019 cancellation of same and for recovery of possession of suit schedule property and permanent injunction restraining defendant No. 1 from alienating the suit schedule property.
3. The suit schedule property is described as follows;
All that piece and parcel of immovable property bearing No. 324 block A formed by BDA in Lingarajapuram Extension Slum under Rehabilitation Scheme, MS Nagar Post, Bangalore 560033 and bounded as follows;
East by Road, West by House No. 340, North by Road, South by House No. 385.
4. In response to the suit summons, defendant No. 1 and 2 have entered appearance and filed separate written statements.
5. The defendant No. 1 took up the plea that plaintiff's mother / original allottee of suit schedule property, sold the same to defendant No. 1 for Rs 1 lakh and has executed GPA 5 OS.No.25810/2019 Judgment KABC0A0021082019 dated 28-05-1998 and declaration dated 11-02-2000 in that regard and the said sale was made since plaintiff's mother required money for medical expenses since her children were not looking after her. Thereby defendant No. 1 claimed to be purchaser for valuable consideration of suit schedule property and pleaded that BDA on verification of documents in her favour made spot inspection and ascertaining her lawful physical possession, has executed sale deed in her favour dated 11-07-2018. Thereby denying any right of the plaintiff over suit schedule property, defendant No. 1 prayed for dismissal of the suit.
6. The defendant No. 2 / BDA also filed written statement pleading that, since defendant No. 1 produced original allotment documents and registered GPA affidavit and declaration executed by allottee - Parvatamma in her favour as per the circular dated 7-01-2018 issued by the commissioner BDA, the defendant executed sale deed in favour of defendant No. 1 in respect of suit schedule property 6 OS.No.25810/2019 Judgment KABC0A0021082019 and thereby defendant No. 1 is now the absolute owner of suit schedule property. Denying any wrongdoing on the part of BDA, the defendant No. 2 prayed for dismissal of the suit.
7. On the basis of the above pleadings, this court has framed the following issues;
1) Whether the plaintiff proves that his [sic : her] mother being the original allottee of suit schedule property from BDA under the lease cum sale agreement dated 9-10-1990 has not executed any documents in favour of defendant No. 1 and as such continued as owner of suit schedule property till her death?
2) Whether the plaintiff proves that he [sic: she] is entitled to declaration that sale deed dated 11- 07-2018 executed by defendant No. 2 in favour of defendant No. 1 is null and void and not binding on the plaintiff?
3) Whether the plaintiff is entitled to permanent injunction restraining defendant No. 1 from alienating suit schedule property?
7 OS.No.25810/2019
Judgment KABC0A0021082019
4) Whether the plaintiff is entitled to recovery of possession of suit schedule property from defendant No. 1 by directing defendant No. 1 to vacate and hand over physical possession of suit schedule property to the plaintiff?
5) Whether the defendant No. 1 proves that the plaintiff's mother received consideration amount of Rs.1 lakh and sold the suit schedule property in favour of defendant No. 1 by way of executing registered GPA and affidavit and declaration?
6) Whether the defendant No. 2 proves that the execution of sale deed by defendant No. 2 in favour of defendant No. 1 dated 11-07-2018 is in accordance with law?
7) What order or decree?
8. In the trial, the plaintiff examined herself as PW1 and got marked Ex. P1 to P11. On behalf of the defendants, defendant No. 1 examined herself as DW1 and got marked Ex. D1 to D11. Further, in the cross-examination of DW1 on behalf of the plaintiff, Ex. P12 and P13 were got marked. 8 OS.No.25810/2019
Judgment KABC0A0021082019
9. After closure of evidence of both sides, I have heard the arguments of both sides and perused the records of the case.
10. In addition, Learned Counsel for Plaintiff has filed written arguments along with citations and I have perused the same and the citations relied upon are referred to, at appropriate stage of the judgment.
11. My answer to the issues are as follows;
Issue No. 1 to 4 : In the negative.
Issue No. 5 and 6 : In the affirmative.
Issue No. 7 : As per final order, for the following :-
:: REASONS ::
Issue No. 1, 5 and 6 :-
12. These issues require common discussion and hence considered together.
9 OS.No.25810/2019
Judgment KABC0A0021082019
13. The case of the plaintiff is that, the Suit Schedule Property was leased / allotted to plaintiff's mother Parvathamma by BDA / defendant No. 2 under lease agreement dated 9-10-1990 and she was put in possession by BDA. The defendant No. 1 has created and forged several documents such as GPA, affidavit and declaration purporting to have been executed by plaintiff's mother in favour of defendant No. 1 and on strength of the same defendant No. 1 has come into unlawful possession of suit schedule property. The plaintiff's mother died on 8-7-2005 and after her death plaintiff has succeeded to the suit schedule property. In spite of approaching BDA on several occasions in respect of the wrongful and unlawful acts of defendant No. 1, BDA has not taken any action and on the other hand BDA has executed sale deed in favour of defendant No. 1 dated 11-7-2018. In fact, there was restriction on transfer in the lease agreement and therefore not only the documents in favour of defendant No. 1 are created but also invalid since plaintiff's mother could not have transferred suit schedule property during the 10 OS.No.25810/2019 Judgment KABC0A0021082019 lease period. With these pleadings the plaintiff is before the court for declaration that sale deed dated 11-7-2018 executed by BDA / defendant No. 2 in favour of defendant No. 1 is null and void and not binding on the plaintiff and for cancellation of same and for recovery of possession of suit schedule property and permanent injunction restraining defendant No. 1 from alienating the suit schedule property.
14. In support of her case, the plaintiff has examined herself as PW1 and got marked Ex. P1 to P11. Ex. P1 are the photographs of Suit Schedule property. Amongst them, the first photograph purportedly shows old building on Suit Schedule property and the second photograph shows the new construction being put up thereon by defendant No. 1 and said photograph purports to be taken on 12-12-2018. Ex. P2 is an RTI application filed by the plaintiff. Ex. P3 and 4 are legal notices caused by plaintiff. Ex. P5 and 6 are police endorsements issued by the police in response to complaints lodged by plaintiff against defendant No. 1. Ex. P7 is 11 OS.No.25810/2019 Judgment KABC0A0021082019 acknowledgement of BDA for having received representation of the plaintiff. Ex. P8 and 9 are again legal notices caused by the plaintiff. Ex. P10 is representation given by plaintiff to BDA. Ex. P11 is another legal notice caused to BBMP by plaintiff.
15. In addition to above documents got marked in the chief examination of PW 1, in the cross-examination of DW1, two documents are marked by confronting to her which are Ex. P12 and P13. Ex. P12 is photocopy of possession certificate issued to plaintiff's mother Parvathamma. Ex. P13 is photocopy of GPA purported to be executed by Parvathamma in favour of defendant No. 1, dated 28-05-1998. It is the contention of plaintiff that this GPA is a forged and created document.
16. Per contra, the case of defendant No. 1 is that, the plaintiff's mother / original allottee of suit schedule property, sold the Suit Schedule Property to defendant No. 1 for Rs 1 12 OS.No.25810/2019 Judgment KABC0A0021082019 lakh and has executed GPA dated 28-05-1998 and declaration dated 11-02-2000 in that regard and the said sale was made since plaintiff's mother required money for medical expenses since her children were not looking after her. Thereby defendant No. 1 claims to be purchaser for valuable consideration of suit schedule property and that BDA on verification of documents in her favour made spot inspection and ascertaining her lawful physical possession, has executed sale deed in her favour dated 11-07-2018. Thereby denying any right of the plaintiff over suit schedule property, defendant No. 1 has prayed for dismissal of the suit.
17. In support of her case, the defendant No. 1 has examined herself as DW1 and got marked Ex. D1 to 11. Ex. D1 is encumbrance certificate reflecting the sale deed by BDA in favour of defendant No. 1. Ex. D2 are Katha Certificate and Katha Extract reflecting the name of defendant No. 1 in respect of suit schedule property. Ex. D3 and D4 are tax paid receipts. Ex. D5 is adhar card of defendant No. 1 reflecting 13 OS.No.25810/2019 Judgment KABC0A0021082019 suit schedule property as her address. Ex. D6 is Electricity Bill, Ex. D7 is Gas Bill and Ex. D8 is Ration Card in which the address of defendant No. 1 is reflected as that of suit schedule property. Ex. D9 is the certified copy of Orders granting temporary injunction in favour of defendant No. 1 herein against plaintiff herein in OS 427 of 2019 filed by defendant No. 1. Ex. D10 is the original declaration purported to be executed by plaintiff's mother - Parvatamma acknowledging and admitting that she has sold suit schedule property to defendant No. 1. Ex. D11 is the original sale deed dated 09-7-2018 [registered on 11-07-2018] executed by BDA in favour of defendant No. 1 in respect of suit schedule property.
18. As already noted Supra, the defendant No. 2 / BDA has also filed written statement raising the contention that, defendant No. 1 produced original allotment documents and registered GPA affidavit and declaration executed by allottee - Parvatamma in her favour and as per the circular dated 7-01- 14 OS.No.25810/2019 Judgment KABC0A0021082019 2018 issued by the commissioner BDA, the defendant executed sale deed in favour of defendant No. 1 in respect of suit schedule property and thereby defendant No. 1 is now the absolute owner of suit schedule property. Denying any wrongdoing on the part of BDA, the defendant No. 2 has prayed for dismissal of the suit
19. However, defendant No. 2 has not adduced any evidence.
20. Having considered the rival cases of both sides and the oral and documentary evidence on record, at the outset, it is to be noted that, it is admitted fact between the parties that, plaintiff's mother - Parvathamma was original allottee of Suit Schedule property from BDA and she was also put in possession of the same. In fact, this is also evidenced by the copy of the possession certificate issued by BDA in favour of Parvathamma which is marked as Ex. P-12 by confronting to DW-1.
15 OS.No.25810/2019
Judgment KABC0A0021082019
21. The case of the plaintiff is that since her mother was the original allottee, on death of her mother, the plaintiff has succeeded to the Suit Schedule property.
22. Per contra, the case of the defendants is that, although the suit schedule property was allotted to Parvathamma under the lease agreement executed by BDA, during her lifetime, Parvathamma transferred her interest in the suit schedule property for valuable consideration in favour of defendant No. 1 under registered GPA whose photocopy is marked as Ex. P-13 and affidavit [which is not marked] and declaration as per Ex. D-10 and put defendant No. 1 into possession of suit schedule property and also handed over all original allotment documents to defendant No. 1 and on the strength of the same, defendant No. 1 has approached BDA and after verifying the documents and physical possession of defendant No. 1, BDA has executed sale deed to defendant No. 2 dated 9-7-2018 [registered on 11-07-2018] as per Ex. 16 OS.No.25810/2019
Judgment KABC0A0021082019 D-11 and hence it is defendant No. 1 who is the absolute owner of suit schedule property.
23. Therefore, the following questions will have to be answered by this court;
- Whether Parvathamma transferred her interest in suit schedule property to defendant No. 1?
- Secondly, if above question is answered in the affirmative, whether such a transfer was lawful and could be countenanced by BDA to execute sale deed in favour of defendant No. 1?
24. In so far as the first question is concerned, it is the contention of the plaintiff that her mother Parvatamma never executed any documents in favour of defendant No. 1 and all documents are created by defendant No. 1. In this regard, the registered GPA purported to be executed by Parvatamma in favour of defendant No. 1 is not produced by defendant No. 1 purportedly on the ground that the same was surrendered to BDA for the purpose of getting sale deed in her favour. However, photocopy of the same is confronted to DW-1 and 17 OS.No.25810/2019 Judgment KABC0A0021082019 marked as Ex. P-13. It is the case of plaintiff that LTM purported to be that of Parvatamma on the said GPA is a forgery. In fact, during the trial, an application was filed by plaintiff to refer Ex. P-13 and other documents to FSL for analysis, which was rejected on the ground that although the original of Ex. D-10 is on record, Ex. P-12 and P-13 are photocopies and hence cannot be analysed by FSL. Then, plaintiff had filed another application for summoning the original Possession certificate and original GPA from BDA, which was also rejected for detailed reasons, as per orders of this court dated 11-12-2023.
25. Although the original registered GPA has not been produced by the defendants, I am of the view that, in the facts and circumstances of the case, the finding has to be recorded that Parvatamma did execute the said GPA in favour of Defendant No. 1 and transferred her interest in suit-schedule property to Defendant No. 1 for the following reasons. 18 OS.No.25810/2019
Judgment KABC0A0021082019
26. Firstly, it is to be noted that the GPA at Ex. P-13 is a registered document and there is a presumption under law that a registered document is validly executed. In this regard, reference may be made to the law laid down by Hon'ble Apex Court in the case of Prem Singh v. Birbal, (2006) 5 SCC 353 at page 360:
27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.
(Emphasis Supplied)
27. At the time of arguments, contention was raised that the stamp paper on which Ex. P-13 - GPA is typed is of the year 1978 whereas the GPA is dated 28-05-1998 and therefore it is a forgery. This contention cannot be accepted because there is no restriction for using old stamp paper. In fact, if it had been the converse that i.e. the stamp paper is subsequent to the date of the document, then it would have been possible to hold that the document is a forgery, but if the stamp paper is 19 OS.No.25810/2019 Judgment KABC0A0021082019 dated earlier to the date of execution of the document, only on ground that, stamp paper is very old stamp paper, no inference can be drawn that it is a created document. Merely because the stamp paper is 20 years old does not mean that it could not have been used for preparing the GPA.
28. Apart from this, it is well known that witnesses may lie, but circumstances never lie.
29. In this regard, it is crucial to note that admittedly it is defendant No. 1 who is in possession of suit schedule property. This is because plaintiff herself is seeking the relief of recovery of possession of suit schedule property from defendant No. 1. It is crucial to note that, in the entire plaint, the Plaintiff has not pleaded the date on which defendant No. 1 came into possession of suit schedule property. On the other hand, at paragraph 5 of the Plaint, a statement is made that "defendant No. 1 fraudulently forged a so-called GPA from the lessee / mother of the plaintiff in order to take 20 OS.No.25810/2019 Judgment KABC0A0021082019 possession of the property illegally" which is infact an admission by the Plaintiff that defendant No. 1 came into possession of suit schedule property under the GPA of the year 1998 which is at Ex. P13.
30. A more direct admission is made by Pw1 in her cross- examination dated 12-01-2023 by defendant No. 1 wherein in the very first sentence, she has admitted the suggestion that during the lifetime of her mother Parvatamma itself, defendant No. 1 has been in possession of suit schedule property. Therefore, it is admitted fact that defendant No. 1 came into possession of suit schedule property during the lifetime of plaintiff's mother - Parvatamma itself. Therefore, it follows that, if the documents by Parvatamma in favour of defendant No. 1 are created and Parvatamma never sold suit schedule property to defendant No. 1, surely Parvatamma would have initiated some action against defendant No. 1 for having taken illegal possession of suit schedule property. It is to be noted that Parvatamma died in 2005 as per pleading at 21 OS.No.25810/2019 Judgment KABC0A0021082019 paragraph 6 of the plaint. The fact that Parvatamma did not take any action against defendant No. 1 during her lifetime indicates that Parvatamma had in fact sold suit schedule property to defendant No. 1 and put her in possession and it is for this reason that Parvatamma did not take any action against defendant No. 1.
31. Apart from this, admittedly the original allotment documents in favour of Parvatamma were in the custody of defendant No. 1 which she has handed over to BDA for the purpose of getting sale deed in her name. In this regard, in her cross-examination dated 2-12-2022, PW-1 has answered as follows;
"If I am asked whether I have produced any documents to show that my mother purchased suit schedule property, I say the documents were in a basket in my mother's house and defendant went inside the house and took away the documents."
32. This makes it clear that the original allotment documents were with defendant No. 1. The version of plaintiff that defendant No. 1 stole the documents is far-fetched and 22 OS.No.25810/2019 Judgment KABC0A0021082019 unbelievable because in case it was stolen, surely Parvatamma would have lodged police complaint against defendant No. 1. But Parvatamma never took any action during her lifetime against defendant No. 1, in respect of defendant No. 1 being in possession of suit schedule property nor in respect of defendant No. 1 being in custody of the original allotment documents. This coupled with the registered GPA at Ex.P 13, makes it clear that Parvatamma had sold the suit schedule property in favour of defendant No. 1 for valuable consideration during her lifetime.
33. Apart from this, at paragraph 2 of cross-examination of PW-1 dated 2-12-2022 when it is suggested to her that her mother sold suit schedule property to defendant by way of affidavit dated 28-05-1998 and on the same day her mother had also executed registered GPA in favour of defendant No. 1, PW-1 has not denied the suggestion but professes ignorance regarding the same.
23 OS.No.25810/2019
Judgment KABC0A0021082019
34. The fact of the sale of suit-schedule property by Parvathamma is also admitted by way of putting of certain suggestions by Learned Counsel for the plaintiff to DW1. In this regard, in the cross-examination of DW1 dated 07-10- 2023, the following suggestions are put to DW 1 by Learned Counsel for Plaintiff;
It is true to suggest that, in spite of the said condition [non- alienation clause], Parvathamma sold the property to me. [Paragraph 2] It is false to suggest that I have purchased the property during the period when there was restriction on alienation and Parvathamma had no right to sell the property to me. [Paragraph 4]
35. Thereby, from the said suggestions, it is clear that plaintiff also admits the sale of suit schedule property by Parvathamma in favour of Defendant No. 1, but the only contention is that, the said sale being during the lease period and during operation of non-alienation clause is invalid.
36. Apart from this, there is another circumstance which goes against the plaintiff's case. As already noted supra, the 24 OS.No.25810/2019 Judgment KABC0A0021082019 plaintiff's mother died in the year 2005 as stated at paragraph 6 of the plaint. The present suit is filed in the year 2019. Of course, the suit is filed as a consequence of the execution of sale deed by BDA in favour of Defendant No. 1 in 2018. Be that as it may, if really the plaintiff's mother had never transferred suit-schedule property and if plaintiff succeeded to the suit-schedule property, surely immediately after the death of her mother or soon afterwards, the plaintiff should have filed necessary application to BDA for getting the property in her name and also should have taken steps to get the katha and other documents in her name and started paying the taxes. However, in the cross-examination of PW-1 by Defendant No. 2 BDA dated 12-01-2023, PW-1 has admitted that after death of her mother, she has not filed any application to BDA. In her cross-examination by Learned Counsel for Defendant No. 1 of even date, she has stated as follows;
25 OS.No.25810/2019
Judgment KABC0A0021082019 "If it is suggested to me that electricity connection is in the name of Defendant No. 1, I say since Defendant No. 1 is residing there, it is her duty and responsibility to pay electricity bills. If it is suggested to me that Defendant No. 1 has paid tax to suit-schedule property, I say who asked her to pay tax."
37. Thereby it is admitted by plaintiff that although her mother died in 2005, she has not made any application to BDA to get the property in her name and she has not made any effort to get the katha in her name or to pay tax to the suit-schedule property. This inaction on the part of the plaintiff clearly indicates that Parvatamma had transferred her interest in suit-schedule property to Defendant No. 1 under the registered GPA whose photocopy is marked as Ex. P-13 and for this reason, Plaintiff kept quite without paying taxes or seeking change of Khata.
38. Now let me consider the second question raised supra as to whether such a transfer by Parvatamma in favour of 26 OS.No.25810/2019 Judgment KABC0A0021082019 Defendant No. 1 was legal and valid and could be relied upon by BDA to execute sale deed in favour of Defendant No. 1.
39. In this regard two contentions are raised by the plaintiff. Firstly it is contended that the transfer is during the lease period when the non-alienation clause was in operation and therefore Parvatamma had no right to transfer the property. This contention does not lie in the mouth of the plaintiff because the plaintiff claims through her mother Parvatamma. It is to be noted that plaintiff does not lay any independent claim to suit-schedule property but only claims as legal heir of Parvatamma. Therefore when it is proved that Parvatamma herself transferred her interest for valuable consideration in favour of Defendant No. 1, the plaintiff as legal heir of Parvatamma is estopped from contending that such a transfer could not have been made. If anybody could object for such a transfer during the lease period and during the operation of non-alienation clause, it is only BDA which has allotted the property to Parvatamma but BDA itself has accepted the said 27 OS.No.25810/2019 Judgment KABC0A0021082019 transfer and on that basis executed the sale deed at Ex. D-11 in favour of Defendant No. 1. Therefore it is not open to the plaintiff to challenge the sale deed on the ground that transfer by Parvatamma was during the lease period and when there was non-alienation clause.
40. The second contention raised in this regard is that even conceding that the GPA at Ex. P-13 was validly executed by Parvatamma, on the death of Parvatamma in 2005, the GPA also came to an end and therefore, on the basis of the said GPA, BDA could not have executed the sale deed in the year 2018. This contention cannot be accepted because it is clear that, said GPA is coupled with interest and the law is settled that, under Section 202 of Contract Act, when the contract of agency is coupled with interest, it does not come to an end on the death of the principal. In this regard, reference may be made to the law laid down by Hon'ble High Court of Karnataka in the case of Mohammed v. Assistant 28 OS.No.25810/2019 Judgment KABC0A0021082019 Commissioner, 1993 SCC OnLine Kar 141 : ILR 1993 KAR 2306 : (1993) 3 Kant LJ 331 at page 2311 :
5. Section 202 of the Contract Act provides that 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 any express condition be terminated to the prejudice of such interest. The principle is that when an agreement is entered into on a sufficient authorisation whereby an authority is given for the purpose of giving some benefit to the donee of the authority such an authority is irrevocable. An authority coupled with interest is not determined by death, insanity or bankruptcy of the principal where the agent made advances to the principal and is authorised to sell at best price and recoup advances made by him, the agency is one coupled with interest and is irrevocable. Where all the rights and liabilities under a contract were made over by a power-of-attorney, such power is an agency coupled with interest.
(Emphasis Supplied)
41. Therefore, it follows that Ex. P-13 being coupled with interest, it does not come to an end on the death of Parvatamma and therefore it cannot be said that the said GPA came to an end in 2005 itself.
42. Accordingly, for all the above reasons, I hold that, the admitted original allottee / lessee - Parvatamma, who is 29 OS.No.25810/2019 Judgment KABC0A0021082019 plaintiff's mother, during her lifetime transferred her interest in Suit Schedule property to defendant No. 1 under registered GPA, whose photocopy is marked as Ex. P-13 and under the said transfer, the original allotment documents and possession of the property was handed over to the transferee - defendant No. 1. The said transfer was duly accepted by the Lessor / BDA which executed the sale deed as per Ex. D-11 in favour of defendant No. 1. Therefore, the plaintiff cannot claim any right over the Suit Schedule property. Accordingly I answer issue No. 1 in the negative and issue No. 5 and 6 in the affirmative.
43. Before parting, let me consider the contentions raised in the written arguments filed by Learned Counsel for Plaintiff. Firstly, at paragraph 5 of the written arguments, it is contended that Affidavit and Declaration were only notarized and not registered documents, and the notarial ledger as per Section 7 of the Notaries Act is not produced. In fact, the alleged Affidavit dated 28-05-1998 is not produced by either 30 OS.No.25810/2019 Judgment KABC0A0021082019 side. Defendant No. 1 has not produced the same on the ground that original of the same was handed over to BDA for getting sale deed in her favour. The Declaration which is marked as Ex. D-10 is neither notarized nor registered. However, all these contentions recede to the background in view of the fact that Ex. P-13 which is the GPA executed by Parvatamma in favour of Defendant No. 1 is a registered document.
44. The contention taken at paragraph 6 of written arguments that transfer by Parvatamma was during the non- alienation period has already been considered supra. The contention taken at paragraph 7 of the written arguments that stamp paper on which Ex. P-13 is typed is of the year 1978 has also been considered supra. Another contention is raised at paragraph 7 of the written arguments that LTM of Parvatamma on the possession certificate at Ex. P-12 and the LTM on Ex. P-13 GPA and Declaration at Ex. D-10 do not resemble each other. It is to be noted that although it may be 31 OS.No.25810/2019 Judgment KABC0A0021082019 open for the court to compare signatures, it is certainly not possible for the court to compare LTMs and draw any inference that LTM do not tally with each other, particularly when the original GPA and original possession certificate are not on record. Anyhow for the reasons already discussed in detail supra i.e. Defendant No. 1 has been in possession of suit schedule property and in custody of original allotment documents even during the lifetime of Parvatamma and Parvatamma did not take any action in that regard and also in view of the suggestions put to DW1 by Learned Counsel for plaintiff, I have already held supra that Parvatamma herself during her lifetime transferred suit schedule property to Defendant No. 1 under registered GPA at Ex. P-13. Therefore this contention that LTM of Parvatamma on Ex. P-13 does not tally with LTM of Parvatamma on possession certificate is unacceptable.
45. At paragraph 8 of the written arguments it is contended that Defendant No. 1 deliberately has not produced the 32 OS.No.25810/2019 Judgment KABC0A0021082019 original GPA and affidavit in this case. As already noted supra the stand of Defendant No. 1 is that all original allotment documents were submitted to BDA for obtaining sale deed and therefore she does not have possession of the same. Anyhow this contention recedes to the background because plaintiff herself filed application for summoning the original GPA and affidavit from BDA which has been rejected by this court by detailed orders dated 11-12-2023.
46. The contention taken at paragraph 9 of the written arguments that sale deed is executed after GPA came to an end due to the death of Parvatamma is already considered supra and it is already held that since GPA was coupled with interest it did not terminate with the death of the principal and therefore this contention is also rejected.
47. Now, turning to the citations relied upon by Learned Counsel for plaintiff, firstly Reliance is placed upon AIR 1971 Madras 434. However, the said ruling is in respect of 33 OS.No.25810/2019 Judgment KABC0A0021082019 ratification of acts of agent holding himself as the agent even after termination of his agency and the said principle is inapplicable to the case on hand.
48. Next Reliance is placed upon citation in AIR 1993 Allahabad 143 that where the principal is old, weak, mentally infirm and not in a position to think independently, power of attorney becomes worthless. This ruling is inapplicable to the facts on hand because the GPA at Ex. P13 is coupled with interest.
49. Then reliance is placed upon section 209 of Indian Contract Act which lays down that when agency is terminated by death of the principal, the agent is bound to take steps on behalf of legal representatives of his late principal for protection and preservation. The said reliance is misplaced because as already noted Supra, since it is a GPA coupled with interest, it did not terminate on the death of Parvathamma and therefore the question of the agent taking 34 OS.No.25810/2019 Judgment KABC0A0021082019 steps for protecting and preserving the interest of legal representatives does not arise.
Issue no. 2 to 4 :
50. Having already answered Issue No. 1 holding that, Parvathamma, during her lifetime, had transferred her interest in suit schedule property to defendant No. 1, the question of plaintiff, as legal heir of Parvathamma, claiming any right or interest in suit schedule property does not arise. Therefore, plaintiff is not entitled to declaration against the sale deed dated 11-07-2018 executed by BDA in favour of defendant No. 1 and plaintiff is also not entitled to permanent injunction restraining alienation or recovery of possession and accordingly I answer issue No. 2 to 4 in the negative. Issue No. 7. :-
51. Having answered issue No. 1 to 6 as above, I proceed to pass the following :-
35 OS.No.25810/2019
Judgment KABC0A0021082019 :: ORDER ::
The suit is dismissed, with cost.
Office to draw decree accordingly.
[Dictated using Dragon Professional Speech Recognition Software Version 15.3, transcript revised, corrected, signed and then pronounced by me in open court on this the 11th day of January, 2024] Digitally signed by SUDINDRA SUDINDRA NATH S NATH S Date: 2024.01.12 16:40:51 +0530 (Sri. S. Sudindranath) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT; BANGALORE.
-:ANNEXURE:-
WITNESS EXAMINED FOR PLAINTIFF:
P.W.1 : Chandra @ Chandramma DOCUMENTS MARKED FOR PLAINTIFF: Ex.P1 : Photographs (2 Nos) Ex.P2 : Application U/s RTI Act with seal of BDA dt: 09/02/2018 Ex.P3 : Legal notice dt: 26/02/2018 with seal of BDA Ex.P4 : Legal notice dt: 28/12/2018 along with RPAD receipt and acknowledges card Ex.P5 : Endorsement issued by Police 36 OS.No.25810/2019 Judgment KABC0A0021082019 Ex.P6 : Endorsement dt: 06/01/2019 issued by police Ex.P7 : Acknowledgment of BDA dt: 01/03/2019 Ex.P8 : Legal notice dt: 23/03/2019 along with RPAD receipt and acknowledges card Ex.P9 : Office copy of same legal notice issued to D1 herein
along with RPAD receipt and printout of tracking and postal receipt Ex.P10 : Representation to AEE BBMP dt: 01/12/2020 along with seal Ex.P11 : Legal notice dt: 29/01/2021 along with seal of Joint Commissioner for having received the same on 30/01/2021 Ex.P12 : Possession certificate given by BDA to Parwathamma Ex.P13 : Photocopy of GPA dt: 28/05/1998 WITNESS EXAMINED FOR DEFENDANT:
D.W.1 : Smt. Julie W/o Raja DOCUMENT MARKED FOR DEFENDANT: Ex.D1 : Encumbrance Certificate Ex.D2 : Khata Certificate and Khata Extract Ex.D3 : Bank counter foil for payment of tax Ex.D4 : Digital copy of Tax Paid receipt Ex.D5 : Notarized copy of Aadhar Card Ex.D6 : Electricity Bill 37 OS.No.25810/2019 Judgment KABC0A0021082019 Ex.D7 : Attested copy of Gas Bill Ex.D8 : Notarized copy of Ration Card Ex.D9 : Certified copy of Orders in OS.No.427/2019 Ex.D10 : Original declaration of Smt. Parvathamma Ex.D11 : Original Sale Deed dt: 09/07/2018 Digitally signed by SUDINDRA SUDINDRA NATH S NATH S Date: 2024.01.12 16:41:03 +0530
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.