Bangalore District Court
Mr. R.S. Rajendran S/O. Y. Sellamuthu vs ) Smt. A. Arokiamary W/O Mr. S. P. Francis on 14 November, 2019
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S.No.10846 / 1997
Dated this 14th day of November 2019
Plaintiff/s:- Mr. R.S. Rajendran S/o. Y. Sellamuthu,
aged about 33 years, 4th cross,
Thammanna Layout, Lingarajapuram,
Bangalore 560 084.
(Rep by Sri M.A. George, Advocate )
V/S
Defendant/s:- 1) Smt. A. Arokiamary W/o Mr. S. P. Francis,
aged about 51 years, residing at 5th Main,
Hennur Main Road, St. Thomas Town Post,
Bangalore 84
2) Mr. Parken Joo S/o Late Parken Kynghe, aged
about 82 years, residing at Byrathi Bande,
Bande Church Compound, Bagalur Main Road,
Kothanur Post, Bangalore 77.
3) [The Sub-Registrar,
Bangalore North Taluk,
Basaveshwaranagara, Bangalore]
(Defendant No.1 by Sri. M. Madan Gopal, Advocate,
Defendant No.2 exparte,
Defendant No.3 deleted vide orders dated 13/03/2008)
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O.S.No. 10846 / 1997
Date of Institution of the suit 21/08/1997
Nature of the (Suit or pro-note, suit for declaration and Permanent injunction
possession, suit for injunction, etc.) Partition
Date of the commencement of recording of the Evidence. 01/04/2009
Date on which the Judgment was pronounced. 14/11/2019
Year/s Month/s Day/s
Total duration 22 02 23
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
.
Mayohall Unit: Bengaluru
3
O.S.No. 10846 / 1997
:J U D G M E N T:
The plaintiff filed suit against the defendants for partition and seperate possession, specific performance and for permanent injunction
2) The Brief facts of plaint averments is as under:
The plaintiff submits that he and defendant No.2 jointly purchased the suit schedule property mentioned below on 8/10/1996.
SUIT SCHEDULE PROPERTY All that piece and parcel of the property bearing No.4, Khatha No.27-A, 27-B, 27-
C, 27-D, 4th Cross, Lingarajapuram, Bangalore 560 084, measuring East to West 69 feet and North to South 31 feet and bounded on East by Road, West by Private Property, North by Private Property, South by Mariappa Reddy's property with all buildings and structures standing thereon.4
O.S.No. 10846 / 1997
3) Since the registration of the revenue properties were stopped by the State Government, the 1 st defendant sworn to an affidavit and executed registered power of attorney dated 08/10/1996 and by virtue of the same he is administering and managing the schedule property. The 2 nd defendant is a foreign national and he has left for Korea. After demolishing existing structures new Church was constructed called 'CAMEL TAESUNG PRESBYTERIAN CHURCH'. It is agreed that the plaintiff should be the Pastor of the Church.
He has spent about Rs.2,00,000/- towards construction of Church. Some of the local residents were successful in bringing mis understanding between the plaintiff and 2 nd defendant. On 20/08/1997 the 1st defendant met him and informed that the advocate for 2nd defendant offered more money and requested defendant No.1 to register and execute sale deed in favour of 2nd defendant. The plaintiff submits that the 1st defendant cannot do so in law, but he can execute the sale deed jointly in favour of him and 2 nd defendant. 5
O.S.No. 10846 / 1997 Since the 2nd defendant is foreign national he cannot purchase properties in India without complying with the provisions of Foreign Exchange Regulations Act. The sale deed may be registered before the 3rd defendant. The plaintiff further submits that they have jointly purchased the schedule property for a total sale consideration of Rs.5,66,835/- and the plaintiff along with 2 nd defendant constructed the church over the schedule property by spending Rs.2,00,000/- and plaintiff is the joint owner of the schedule property along with defendant No.2. In fact the 2nd defendant may not come to India at all because of his old age and other commitments in his country. The plaintiff being joint owner is entitle to registration of the sale deed in respect of the schedule property as joint owner to an extent of 50% undivided share. The defendant No.1 is bound to execute and register the sale deed in respect of the schedule property as owner to the extent of 50% undivided share. Therefore the plaintiff is entitle for partition and separate 6 O.S.No. 10846 / 1997 possession in respect of the schedule property allotting 50% share to the plaintiff.
4) The plaintiff further submits that cause of action for the suit arose on 20/08/1997 when defendant No.1 informed the plaintiff that she is going to execute and register the sale deed in respect of schedule property in the name of 2 nd defendant and forms continuity of cause of action. The plaintiff prays to decree the suit for permanent injunction restraining defendant No.1 from executing and registering the sale deed in favour of 2 nd defendant only. The plaintiff prays to direct the defendant No.1 to execute and register sale deed in respect of the schedule property in favour of the plaintiff to an extent of 50% undivided share in the schedule property and as joint owner thereof, failing which the Court to execute and register the sale deed in favour of the plaintiff as joint owner, since he is entitled to 50% share in 7 O.S.No. 10846 / 1997 the schedule property and also pass judgment and decree for partition and separate possession of schedule property.
5) That summons to defendant No.2 served as per order sheet dated 26/08/1997, he remained absent. [In this regard the office is directed to verify whether defendant No.2 served with suit summons vide order sheet dated 16/07/1998 and the office submitted that suit summons to defendant No.2 served in person as per order sheet dated 26/08/1997]. Though defendant No.3 appeared through his counsel but he did not filed any written statement. Hence written statement of defendant No.3 is taken as not filed on 27/09/1999. Thereafter vide orders passed by this court on 13/03/2008 on IA filed by the plaintiff, the plaintiff is permitted to delete defendant No.3 from the plaint and also prayer in para 11(b) of the plaint against defendant No.3. Consequently, the issue No.2 is also deleted. 8
O.S.No. 10846 / 1997
6) In the meanwhile on 20/02/2007 the previous counsel for defendant No.1 submitted that she has sent notice to defendant No.1 which is duly served on defendant No.1 as per postal acknowledgement and accordingly counsel for defendant No.1 permitted to retire and since defendant No.1 called out absent defendant No.1 was placed exparte on 20/02/2007. Further on 21/07/2008 the court while passing orders on IA observed that 'the entire relief in the suit filed by the plaintiff are against defendant No.1 for specific performance of the agreement of sale and also for partition and separate possession of the alleged share of he plaintiff'. Therefore, the court felt it is just and necessary to issue court notice to defendant No.1 before proceeding with the trial of the suit. Hence court notice issued to defendant on 21/07/2008. Thereafter defendant No.1 appeared through her subsequent counsel Sri C.R.G. on 21/01/2009 and contested the suit.
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O.S.No. 10846 / 1997
7) The defendant No.1 filed written statement submitting that the suit of the plaintiff is not maintainable either in law or on facts. She is an agriculturist and grower of Aracca of coconut in Shimoga taluk. Mostly she will be looking after agricultural operation in Shimoga. The 1 st defendant denies that plaintiff and 2nd defendant jointly purchased the suit schedule property from her and further denied that she has sworn to an affidavit and executed power of attorney. She is not aware whether 2nd defendant is a foreign national and he left for Korea. She further submits that the plaintiff was an employee of 3rd party who has agreed to purchase the schedule property from the 1st defendant and instructed her to execute the general power of attorney in favour of 2 nd defendant and the plaintiff in order to undertake day to day management of church construction work. The power given to the plaintiff and 2nd defendant was without consideration and the same was misused and hence the general power of attorney was revoked after notice to 2nd defendant and the 10 O.S.No. 10846 / 1997 plaintiff. The plaintiff has no manner of right, title or interest in the schedule property. The defendant further submits that the church was constructed by an organization and not by the plaintiff. The plaintiff was long back removed from his employment and hence he is causing nuisance to the church organization and to the 1st defendant. She denied that the plaintiff has spent about two lakhs towards the construction of the church. She denied that the plaintiff is the joint owner of schedule property. She denied the allegation of the plaintiff that she is going to register the sale deed in favour of 2nd defendant. The 3rd defendant is a government official and he is not necessary party to the suit and his name has to be deleted. She denies that on 20/08/1997 the plaintiff has sent any telegraphic notice to her restraining her from executing and registering the sale deed only in the name of the 2 nd defendant. There is no cause of action. Hence she prays to dismiss the suit of the plaintiff .
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O.S.No. 10846 / 1997
8) Afterwards the the defendant No.1 filed additional written statements on 03/06/2003 and 13/01/2004 wherein she has contended that 2nd defendant admittedly a South Korean citizen is not entitled to purchase immovable property in India without prior permission of Reserve Bank of India and also restriction placed under Foreign Exchange Regulation Act. The plaint schedule property is agricultural land and such purchase is prohibited. Further, the agreement to sell is not divisible and there cannot be specific performance of a portion of the agreement. The 2 nd defendant has abandoned the contract and agreement itself has become unenforceable. The suit is not filed for and on behalf of 2nd defendant. The 1st defendant denied that the plaintiff is the joint owner and he has spent Rs.2,00,000/- for construction of church. The 1st defendant prays to dismiss the suit with costs.
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O.S.No. 10846 / 1997
9) On the basis of above pleadings following Issues are framed on 03/06/2003:-
:ISSUES:
(1) Whether the plaintiff proves that the defendant No.1 has to be restrained from executing and registering the sale deed in favour of defendant No.2?
(2) Whether the plaintiff proves that defendant No.3 has to be restrained from registering sale deed in favour of defendant No.2? [deleted vide orders dated 13/03/2008] (3) Whether the plaintiff is entitled to relief of injunction?
(4) What decree or order?
Addl. Issue framed on 04/10/2005 (1) Whether defendant No.1 and 3 proves that the suit is not maintainable in view of 13 O.S.No. 10846 / 1997 the absence of permission from RBI and in view of the fact that agreement to sell is to divisible and that defendant No.2 has abandoned the contract?
25) Thereafter the above Issues were recasted on 21/07/2008 as under:-
:RECASTED ISSUES:
(1) Whether the plaintiff proves that on 8/10/1996 1st defendant has agreed to sell the suit schedule property jointly to the plaintiff and defendant No.2 for a consideration of Rs.5,66,835/-?
(2) Whether the plaintiff proves that 1st defendant has executed GPA and affidavit on 8/10/1996 in their favour by receiving full consideration amount?14
O.S.No. 10846 / 1997 (3) Whether the plaintiff proves that he has paid part of the sale consideration amount to defendant?
(4) Whether the plaintiff proves that he was / is always ready and willing to perform his part of the contract and defendant No.1 fell back from executing the sale deed?
(5) Whether the plaintiff proves that he has got constructed the church building in the suit schedule property and managing the same being in lawful possession?
(6) Whether the plaintiff is entitled for a decree of specific performance against defendant No.1 directing her to execute sale deed in respect of 50% of the suit schedule property as sought for?15
O.S.No. 10846 / 1997 (7) Whether the plaintiff is entitled for partition and separate possession of ½ share in the suit schedule property by metes and bounds as sought for?
(8) Whether the suit is not maintainable for want of permission from RBI to purchase the property by defendant No.2 and as such, defendant No.2 has abandoned the contract and the agreement is unenforceable?
(9) Whether the plaintiff is entitled for the relief of permanent injunction against defendant No.1 as sought for?
(10) Whether defendant No.1 proves that she has revoked the power of attorney after issue of notice to plaintiff and defendant No.2?16
O.S.No. 10846 / 1997 (11) Whether defendant No.1 proves that the agreement to sell is not divisible and there cannot be specific performance of part of agreement?
(12) What decree or order?
26) The plaintiff is examined as PW1 on 01/04/2009 and he got marked documents at ExP1 and ExP2 and he was cross examined by the defendant side. Inspite of opportunity given by this court, the defendant has not led any evidence and not marked any documents. Hence the defendant side evidence is taken as closed on 29/11/2018. Thereafter on 30/08/2019 the plaintiff led his further examination in chief and got marked documents ExP3 to Ex47 and and closed the plaintiff side evidence. PW1 is not further cross examined by defendant side. Hence cross examination of PW1 is taken as nil.17
O.S.No. 10846 / 1997
27) Heard arguments of plaintiff counsel on main.
Inspite of opportunity given there is no arguments of defendant side. Perused the records.
28) My finding on the above issues are:-
Issues framed on 03/06/2003 Issue No.1) In Negative Issue No.2) [deleted vide orders dated 13/03/2008] Issue No.3) In Negative Issue No.4) See final orders Addl. Issue framed on 04/10/2005 Addl. Issue No.1) In Negative Recasted Issues on 21/07/2008 Issue No.1) In Negative Issue No.2) In Negative Issue No.3) In Negative Issue No.4) In Negative Issue No.5) In Negative 18 O.S.No. 10846 / 1997 Issue No.6) In Negative Issue No.7) In Negative Issue No.8) In Negative Issue No.9) In Negative Issue No.10) In Negative Issue No.11) In Negative Issue No.12) See final orders for following:
:REASONS:
29) Issue No. 1 and 3, Re-casted Issue No.1 to 7&9:-
The plaintiff Mr. R.S. Rajendran, has filed his affidavit in lieu of examination in chief as PW1 and deposed evidence that himself along with defendant No.2 jointly purchased the suit schedule property on 8/10/1996 bearing No.4, Khatha No.27-A, 27-B, Bangalore 560 084, which is the suit schedule property. He further deposed that since the schedule property is situated within the revenue limits of Bangalore District and during that period the registration of 19 O.S.No. 10846 / 1997 the revenue properties were stopped by the State Government, the 1st defendant sworn to an affidavit and executed registered power of attorney dated 08/10/1996 and by virtue of the same the plaintiff is administering and managing the schedule property. The 2nd defendant is a foreign national and he has left for Korea. He further deposed that the schedule property was purchased jointly by him and 2nd defendant for the purpose of construction of a Church. After demolishing existing structures a new Church was constructed called 'CAMEL TAESUNG PRESBYTERIAN CHURCH'. He further deposed that it is agreed that there should be Pastor for the Church. He further deposed that the church was inaugurated on Saturday the 23rd August 1997 at 4.00 p.m. He is involved in the construction of the church from the beginning to the end engaging labourers, purchasing materials and supervising the construction. He has spent about Rs.2,00,000/- towards construction of Church. He further deposed that some of the 20 O.S.No. 10846 / 1997 local residents were successful in bringing mis understanding between the plaintiff and 2 nd defendant and written to 2nd defendant against him [PW1] and they are successful in bringing discard between him and 2 nd defendant. The 2nd defendant coming to India for inauguration and attend dedication ceremony of Church. He further deposed that on 20/08/1997 the 1 st defendant met him [PW1] and informed that the advocate for 2 nd defendant offered more money and requested defendant No.1 to register and execute sale deed in favour of 2 nd defendant. He further deposed that that the 1st defendant cannot do so in law, but he can execute the sale deed jointly in his [PW1] favour and 2nd defendant, since the 2nd defendant is a foreign national he cannot purchase properties in India without complying with the provisions of Foreign Exchange Regulations Act. He further deposed that they have jointly purchased the schedule property for a total sale consideration of Rs.5,66,835/- and he along with 2 nd 21 O.S.No. 10846 / 1997 defendant constructed the church over the schedule property by spending Rs.2,00,000/- and he is the joint owner of the schedule property along with defendant No.2. In fact the 2nd defendant may not come to India at all because of his old age and other commitments in his country and he [PW1]. being joint owner is entitled to registration of the sale deed in respect of the schedule property as joint owner to an extent of 50% undivided share. The defendant No.1 is bound to execute and register the sale deed in respect of the schedule property as owner to the extent of 50% undivided share. Therefore he is entitled for partition and separate possession in respect of the schedule property allotting 50% share. The PW1 in his further examination in chief filed affidavit evidence on 06/03/2010 stating that on 8/10/1996 after swearing before Notary Sri A. Iddinabba at Mayohall Court Complex, the 2nd defendant took the original affidavit dated 8/10/996 and after xeroxing the same he has handed over copy of the affidavit to him [PW1] and kept original 22 O.S.No. 10846 / 1997 with himself. The PW.1 prays to decree the suit as prayed in the plaint. In support of oral evidence the PW.1 marked documents ExP1 and ExP2.
30) PW1 was cross examined by the counsel for defendant No.1 on 24/03/2010 and further cross examined on 26/11/2010 and 26/02/2011. Thereafter as per orders on IA 27 to 29 filed by the plaintiff for production of documents and mark the same in evidence, PW1 in his further examination in chief on 30/08/2019 got marked documents ExP3 to Ex47. But, there is no representation of defendant counsel for further cross examination of PW1 on those documents. Even defendant No.1 has not led any oral evidence and not marked any documents.
31) ExP1 is the certified copy of registered General Power of attorney executed by Mrs. A. Arokya Mary [defendant No.1] in favour of Mr. R.S. Rajendran [plaintiff herein] and Mr. Parken Joo [defendant No.2 herein] on 23 O.S.No. 10846 / 1997 8/10/1996, The ExP2 certified copy of registered deed of revocation of power of attorney dated 26/08/1997 under which Mrs. A. Arokya Mary [defendant No.1 herein] has revoked the power of attorney executed on 8 th day of October 1996 in favour of Mr. R.S. Rajendran [plaintiff herein] and Mr. Parken Joo [defendant No.2 herein] in respect of the suit schedule property. The ExP3 is the certified copy of General Power of Attorney dated 8/10/1996 which is the same document produced by plaintiff at ExP1 above. The ExP4 is the encumbrance certificate in respect of suit schedule property in the name of the plaintiff for the period 01/04/1995 to 31/03/2004. The ExP5 is the encumbrance certificate in respect of suit schedule property in the name of the plaintiff for the period 24/05/2004 to 06/03/2019. The ExP6 is the encumbrance certificate in respect of suit schedule property in the name of the plaintiff for the period from 08/10/1996 to 31/03/1994. The ExP7 is the encumbrance certificate in respect of suit schedule property in the name of the plaintiff for the period from 24/052004 to 12/03/2019. The ExP8 is the Khatha 24 O.S.No. 10846 / 1997 Registration and notice of tax issued by Bruhat Bengaluru Mahanagara Palike issued to the plaintiff in respect of the suit schedule property dated 05/04/2019, subsequent to the date of filing of the suit. The ExP9 is the Khatha certificate jointly in the name of the plaintiff and 2 nd defendant issued by Bruhat Bengaluru Mahanagara Palike on 16/05/2019 in respect of property bearing New No.44, 1 st cross, Lingarajapura, Bangalore, subsequent to the date of suit.
The ExP10 is Khatha extract dated 16/05/2019 issued by Bruhat Bengaluru Mahanagara Palike in respect of property New No.44 , 1st cross Lingarajapuram, Bangalore. In examination in chief of PW1, ExP11 is marked as certified copy of agreement of sale executed by defendant No.1. But the document discloses that it is a partition deed between defendant No.1 and her family members. The ExP11 is the certified copy of deed of partition dated 10/11/1976 entered into between (1) Smt. A. Arogyamma W/o. Late C. Anthony Reddy, (2) Sri A. Francis, S/o. Late C. Anthony Reddy, (3) Sri A. Bernard, S/o. Latte C. Anthony Reddy, (4) Sri A. Domnique, son of late C. Anthony Reddy 25 O.S.No. 10846 / 1997 (5) Sri A. Anthony SwamyS/o. C. Anthony Reddy, (6) Smt. A. Philomena, D/o. Late C. Anthnoy Reddy, (7) Smt. Arokyamary, D/o. Late C. Anthony Reddy [1st defendant herein]. ExP12 to ExP23 are photographs and ExP24 is the C.D. ExP25 to ExP35 are tax paid receipts for the years 200/-2009 to 2018-2019 respectively in respect of property No.44, 1st cross, Lingarajapuram, in the name of plaintiff and 2nd defendant jointly. ExP36 is the receipt for payment of improvement charges to Bruhat Bengaluru Mahanagara Palike by the plaintiff. ExP37 to ExP47 are tax paid receipts produced for the period from 2008-2009 to 2018-2019 [Same documents which are already produced at ExP25 to ExP35]
32) The burden is on the plaintiff to prove that he and defendant No.2 have jointly purchased the suit schedule property on 8/10/1996 from the defendant No.1 for valuable consideration of Rs.5,66,835/-. The plaintiff contends that 26 O.S.No. 10846 / 1997 defendant No.1 has executed registered power of attorney in respect of the suit schedule property in favour of him and defendant No.2 and also executed affidavit. Hence, the plaintiff is administering and managing the schedule property in his own right since defendant No.2 is a foreign national and he has left for Korea. The plaintiff further contends that they have spent more than Rs.2,00,000/- and constructed Church 'CAMEL TAESUNG PRESBYTERIAN CHURCH' in the suit schedule property. On 20/08/1997 the 1st defendant informed the plaintiff that the advocate for 2 nd defendant offered more money and requested defendant No.1 to register and execute sale deed in respect of schedule property in favour of 2nd defendant. The plaintiff contends that he is also having 50% share in the schedule property. Defendant No.2 is staying in Korea and he will not come to India. Hence, the defendant No.1 ought to have execute registered sale deed in respect of 50% of the suit schedule property in favour of the plaintiff, for that the plaintiff is 27 O.S.No. 10846 / 1997 ready and willing to perform his part of the contract. The plaintiff in his plaint prayed three reliefs one is for permanent injunction restraining defendant No.1 from executing registered sale deed in favour of defendant No.2, second prayer is direction to defendant No.1 to execute registered sale deed in respect of the schedule property in favour of the plaintiff to the extent of 50% undivided share in the suit schedule property as join owner thereof and third prayer of the plaintiff is for partition and separate possession of his share in the suit schedule property.
33) On one stand the plaintiff contended that he and defendant No.2 have purchased the schedule property from defendant No.1 and on the other stand the plaintiff is seeking the relief of specific performance of the contract directing defendant No.1 to execute registered sale deed in respect of his undivided share of 50% in the schedule property. Initially the plaintiff has not produced any 28 O.S.No. 10846 / 1997 documents to show regarding purchase of suit schedule property by him and defendant No.1 jointly from the defendant No.1. ExP1 and ExP3 are similar documents i.e., certified copy of registered General Power of Attorney alleged to have executed by Mrs. A. Arokya Mary [defendant No.1] in favour of Mr. R.S. Rajendran [plaintiff herein] and Mr. Parken Joo [defendant No.2 herein] on 8/10/1996 registered in Book IV, Vol 539, pages 95-97 being No.9548 for the year 96-97 in the office of the Sub- Registrar, Bangalore North Taluk, Bangalore North Taluk, Bangalore. In the said GPA the address of the defendant No.2 is mentioned as resident of Byrathi Bande, Church Compound, Bagalur Main Road, Kothanur Post, Bangalore 560 077. But in the plaint averments the plaintiff contended that the defendant No.2 has left for Korea and he is residing in Korea. Further, as per order sheet dated 26/08/1997 suit summons to defendant No.2 was served, but defendant No.2 is not present before the court. There are no documents 29 O.S.No. 10846 / 1997 produced by the plaintiff to show that defendant No.2 is permanently residing in Korea. Hence the say of the plaintiff that defendant No.2 is not permanently residing in India is not proper to accept.
34) Further, ExP2 is marked in the evidence of PW1, which is the certified copy of registered deed of revocation of power of attorney dated 26/08/1997 under which Mrs. A. Arokya Mary [defendant No.1 herein] has revoked the power of attorney executed on 8th day of October 1996 registered in Book IV, Vol 539, pages 95-97 being No.9548 for the year 96-97 in the office of the Sub-Registrar, Bangalore North Taluk, Bangalore North Taluk, Bangalore, in favour of Mr. R.S. Rajendran [plaintiff herein] and Mr. Parken Joo [defendant No.2 herein] in respect of the suit schedule property, wherein there is reference in respect of the suit schedule property. Under ExP2 registered deed of 30 O.S.No. 10846 / 1997 revocation of power of attorney defendant No.1 has cancelled the GPA at ExP1 and 3 executed by her.
35) The plaintiff is examined as PW1 and in his cross examination he has deposed evidence that "Now ExP1 is shown to me. It is true that defendant No.1 has revoked the General Power of Attorney dated 8/10/1996 on 15/08/1997 as per Ex.P2. I have not taken any legal action against the revocation of General Power of Attorney". Therefore the General Power of Attorney executed by defendant No.1 in favour of the plaintiff and defendant No.2 was already revoked under registered deed of revocation of power of attorney dated at ExP2 in respect of the suit schedule property.
36) The plaintiff counsel while arguing on the aspect of power of attorney relied upon the following decisions reported in;
31
O.S.No. 10846 / 1997 1970 (2) SCC 386 [Jugraj Singh and another V/s. Jaswant Singh and others] Power of Attorney - Proper Power of Attorney duly authenticated as required by law has to be made before power can be conferred on another either to execute a document or to present it for registration.
AIR 2016 SC 609 [Tmt. Kasthuri Radhakrishnan and others V/s. M. Chinniyan and another] Powers of Attorney Act (7 of 1982), S.2- Power of attorney - Always acts as a general rule, in name of his principal-Any document executed or thing done by an agent on strength of power of attorney-Is as effective as if executed or done in name of principal, i.e., by principal himself-An agent, never gets any personal benefit of any nature.
32
O.S.No. 10846 / 1997 AIR 2012 DELHI 73 [Suresh Chand Jain and Sons HUF V/s. Phalphor Builders (P) Ltd., and others] Power of Attorney Act (7 of 1882), S. 2- Evidence Act (1 of 1872), S. 115-Sale deeds executed by Attorney-Cancellation-
Sale deeds executed subsequent to revocation of unregistered power of attorney-Attorney was empowered to sell builder's share-Builder and Attorney permitted to generate funds on strength off POA and benefit received by expectant under construction agreement, even after revocation of POA-Doctrine of approbate, species of estoppel would be attracted - Sale deeds cannot be cancelled.
AIR 1986 P & H 214 [ Punjab Natjional Bank V/s. Parmesh Knitting Works and others] Evidence Act (1 of 1872), S. 85 - Notaries Act (53 of 1952) S. 8-Suit by Bank through person holding power of attorney 33 O.S.No. 10846 / 1997
- Power of attorney executed and attested by Notary public on same date-Held, that execution of power of attorney was valid and institution of suit was legal. Power of Attorney Act (7 of 1882), S. 2 AIR 2013 GUJARAT 9 [Rajiv Maheshkumar Mehta and others V/s.
State] Registration Act (16 of 1908) S. 32, S. 33- Powers of Attorney Act (7 off 1882) S. 2- Constitution of India, Art. 162, Art.
254(2)-Document executed by power of attorney holder-Presentation for registration-Issuance of administrative instructions -Imposing conditions on- Validity-Valid power of attorney made basis for execution of document - Said power of attorney, who is himself expectant of document is present himself- In circumstances of requirement of law of Act of 1882 and Registration.
34
O.S.No. 10846 / 1997
22) But as discussed above, the registered General Power of attorney executed by Mrs. A. Arokya Mary [defendant No.1] in favour of Mr. R.S. Rajendran [plaintiff] and Mr. Parken Joo [defendant No.2] on 8/10/1996, certified copy of which is produced as per Ex.P1, is revoked by the defendant No.1 as per the registered deed of revocation of power of attorney dated 26/08/1997, certified copy of which is produced as per ExP2. Therefore the plaintiff has no authority to act as GPA holder of defendant No.1 from the day of execution of revocation of power of attorney dated 26/08/1997 by defendant No.1. Further, in the decision reported in AIR 2012 DELHI 73 [Suresh Chand Jain and Sons HUF V/s. Phalphor Builders (P) Ltd., and others] it is held that cancellation of Sale deeds executed subsequent to revocation of unregistered power of attorney, Doctrine of approbate, species of estoppel would be attracted and hence Sale deeds cannot be cancelled. But in the present case on hand the registered power of attorney dated 8/10/1996 35 O.S.No. 10846 / 1997 [certified copy of which is produced as per ExP1] is cancelled by way of revocation of power of attorney by defendant No.1. Therefore, the citations referred by the plaintiff counsel relating to power of attorney are not applicable to the present case on hand since the facts narrated in the said cases are different from the present suit. Therefore the said citations are not applicable to the case on hand.
23) The plaintiff counsel while arguing relating to the aspect of specific performance of contract relied upon decisions reported in AIR 1988 MP 152 [Madan Mohan Appellant V/s. Gauri Shankar and another] Specific Relief Act (47 of 1963), S. 10, S. 16, S.38 - Civil P.C. (5 of 1908), O.39 R.2
-Transfer of Property Act (4 off 1882), S. 54, S. 53A-Unregistered document treated 36 O.S.No. 10846 / 1997 by plaintiff as agreement to sell land -
Document found to be complete sale -
Suit for specific performance is not maintainable-plaintiff in possession would be entitled to permanent injunction. (2) AIR 1987 GUJARAT 30 [Shivaram Antaiah Shetty V/s. Himanlal Ambalal Trivedi and others] Suit for possession and interim injunction
-Plaintiff prima facie proved to be in possession of suit shop- Merely because in some other suit possession of the suit shop was given to receiver by court dealing with that case, plaintiff cannot be denied relief-Court must be guided by considerations in suit before it and not by extraneous considerations.
(B) Civil P.C. (5 of 1908), O. 39 R. 1, O.39 R.2, O.39 R. 4 - Suit for possession and interim injunction - Plaintiff purchasing suit shop from defendant under oral agreement - Plaintiff primafacie 37 O.S.No. 10846 / 1997 proved to be in possession of suit shop -
Merely because defendant did not execute proper document of transfer and kept licenses in his own name cannot be permitted to take unfair advantage -
Exparte injunction granted earlier by trial court resorted.
(3) AIR 1998 DELHI 384 [Rajeev Singh V/s. Gurmeet Singh and another] Civil P.C. (5 of 1908), O 39 R 1, O 39 R 2
- Interim Injunction - Defendant having received total consideration as earnest money put plaintiff into actual physical possession of schedule property -
Defendant refusing to execute sale deed on plea that said agreement to sell was executed to protect property from their sister also refusing receipt of any payment
-Numerous documents on record showing possession of plaintiff-Local Commissioner's report also confirm possession of plaintiff - Plaintiff entitled 38 O.S.No. 10846 / 1997 for ad interim injunction restraining defendant from transferring, creating any charge or entering into agreement with third person and also dispossessing plaintiff from suit property.
24) The citations referred to by the plaintiff counsel reported in AIR 1988 MP 152 [Madan Mohan Appellant V/s. Gauri Shankar and another] and AIR 1987 GUJARAT 30 [Shivaram Antaiah Shetty V/s. Himanlal Ambalal Trivedi and others] and AIR 1998 DELHI 384 [Rajeev Singh V/s. Gurmeet Singh and another] on the aspect of specific performance of the contract is not applicable to the present case on hand. As in the said citations it is held that unregistered document treated by plaintiff as agreement to sell land and document found to be complete sale and hence the suit for specific performance is not maintainable and the plaintiff in possession would be entitled to permanent injunction. But, in the present suit, the plaintiff has not produced agreement of sale said to have been executed by 39 O.S.No. 10846 / 1997 defendant No.1 on 26/08/1996 in respect of the suit schedule property as contended by the plaintiff in his evidence. Further in the entire pleadings in the plaint the plaintiff has not contention that the plaintiff along with defendant No.2 has entered into sale agreement with defendant No.1 in respect of the suit schedule property.
25) Further in the cross examination of the plaintiff / PW1 he has deposed that "An amount of Rs.1,00,000/- was paid from bank account of my wife" He further deposed that "Defendant No.2 paid Rs.1,00,000/- on the date of agreement through cheque. The agreement was executed on 26/08/1996. The balance sale consideration was paid in cash by myself and defendant No.2. I do not know the exact amount paid by me, but I have paid about Rs.2,00,000/- and the remaining amount was paid by defendant No.2. I have not produced any documents to show the payment of remaining amount of Rs.50,000/- by me. I have not produced the original agreement of sale dated 26/08/1996. The original agreement is in the custody of defendant No.2. The agreement of sale as prepared in the office of Sri Anand Leo Advocate near 40 O.S.No. 10846 / 1997 Frazer Town Police Station. On going through my plaint I stated that I have not mentioned the execution of the agreement of sale dated 26/08/1996 in my plaint. The bank cheques mentioned in the affidavit of defendant No.1 belongs to defendant No.2". Therefore the evidence of PW1 discloses that there was agreement of sale taken place between plaintiff, defendant No.2 and defendant No.1 in respect of the suit schedule property. But the said agreement of sale is not produced by the plaintiff to show the said transaction taken place between the plaintiff and defendant No.2 with defendant No.1. In the plaint averments the plaintiff's prayer is also for specific performance of the contract in respect of the execution of the sale deed in respect of 50% of share in the suit schedule property to the plaintiff. Moreover, the GPA executed by defendant No.1 in favour of the plaintiff and defendant No.2 was revoked as per ExP2 registered revocation of power of attorney dated 26/08/1997. The plaintiff has to prove the allegation regarding the sale transaction taken place between 41 O.S.No. 10846 / 1997 the plaintiff and defendant No.2 with defendant No.1. But except plaintiff there are no other witnesses examined in favour of the plaintiff to prove the alleged sale transaction.
26) The plaintiff has filed IA 24 for recall of witness and issue summons to witnesses namely Sri Idinabba, Notary and Advocate, Sri Anand Leo, Advocate, Bangalore for leading the evidence and also filed IA-22 and IA-23 to recall the orders and reopen the case for plaintiff's evidence. IA-22 to IA-24 rejected by this court by giving finding that already on 01/08/2016 this court passed orders on application filed by the plaintiff U/o. 16 Rule 1(3) of CPC seeking to examine witnesses Sri Iddinabba, advocate and notary and Sri Anand Leo, Advocate Bangalore. This court has passed detailed orders on 01/08/2016 rejecting the application of the plaintiff filed U/o. 16 Rule 1(3) of CPC, by giving finding that "In the absence of production of the alleged affidavit sworn to by defendant No.1, the question 42 O.S.No. 10846 / 1997 of summoning the aforesaid witnesses does not arise at all. Since the alleged affidavit is not forthcoming on the file". Since the plaintiff wants to recall those witnesses to examine the witnesses relating to the affidavit and GPA said to have been executed by defendant No.1, hence the said IA was rejected on 1/8/2016. Thereafter on 09/04/2019 again IA 25 and 26 filed by the plaintiff praying permission to lead evidence of witness Mr. Anand Leo, Advocate, who drafted the power of attorney marked as ExP1 and another witness Mrs. P. Kumari, attesting witness of the said document. The said IA-25 and 26 was also rejected by giving finding. That since the alleged GPA said to have been executed by defendant No.1 was cancelled as per ExP2 by defendant No.1 which is admitted by PW1 in his cross examination as discussed above, there is no value in the eyes of law to ExP1 GPA. Hence on the basis of said ExP1 GPA the plaintiff cannot claim right over the suit schedule property, since the plaintiff has failed to establish that 43 O.S.No. 10846 / 1997 defendant No.1 has executed agreement of sale in respect of the suit schedule property, on 26/08/1996 as deposed in the oral evidence and in the entire plaint there is no averment regarding agreement of sale by defendant No.1 in respect of the suit schedule property in favour of plaintiff and defendant No.2 on 26/08/1986.
27) The plaintiff has produced some other documents Khatha extract, encumbrance certificate, tax paid receipts but those documents does not tally with the suit schedule property numbers mentioned in the plaint schedule property since there is no document regarding transfer of the suit schedule property by defendant No.1 in faovur of the plaintiff, defendant No.2 i.e., any title deeds. Hence the entry of the name of the plaintiff and defendant No.2 in the revenue records without any documents as mentioned in ExP8 to ExP10 are not proper to accept.
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28) Further, the photographs produced and marked by the plaintiff at ExP12 to 24 are not sufficient to come to conclusion that plaintiff is in possession of ½ portion of the suit schedule property. There is no documents on record produced by the plaintiff to show that there was sale transaction between him, defendant No.2 and defendant No.1 relating to the suit schedule property. Therefore, the plaintiff is not entitled for the relief of specific performance of the contract as prayed by him. Further, the plaintiff has prayed for partition of ½ share in the suit schedule property. But, primafacie to show that suit schedule property is standing in the name of the plaintiff and defendant No.2, there is no any specific documents i.e., title deed. Hence, the plaintiff is also not entitle for the relief of partition and separate possession of the suit schedule property as prayed by him. As discussed above the plaintiff has failed to prove his possession and enjoyment over the suit schedule property by way of documentary evidence. Therefore the 45 O.S.No. 10846 / 1997 plaintiff is not entitle for the relief of specific performance of the contract and partition and separate possession of the schedule property and also for permanent injunction as prayed. Therefore the plaintiff has failed to prove issue No.1 and 3, re-casted Issues 1 to 7 and 9. Hence I answer issue No.1 and 3 in the negative and re-casted Issue No.1 to 7 and 9 in the Negative.
29) Recasted issue No 10 and 11:- The burden to prove these issues were cast upon defendant No.1 to prove that she [defendant No.1] has revoked the power of attorney after issue of notice to plaintiff and defendant No.2 and also to prove that agreement to sell is not divisible and there cannot be specific performance of part of agreement, since the defendant No.1 in her written statement taken contenton that the power given to the plaintiff and 2 nd defendant was without consideration and the same was misused and hence the general power of attorney was revoked after notice to 2 nd 46 O.S.No. 10846 / 1997 defendant and the plaintiff. And the defendant No.1 further taken contention in her additional written statements that the agreement to sell is not divisible and there cannot be specific performance of a portion of the agreement. But On these aspects, defendant No.1 has not entered into the witness box and not deposed any oral evidence nor marked any documents, in support of her contentions made in the written statement. Whereas the plaintiff himself has marked ExP2 certified copy of registered revocation of power of attorney dated 26/08/1997 under which Mrs. A. Arokya Mary [defendant No.1 herein] has revoked the power of attorney executed on 8th day of October 1996 registered in Book IV, Vol 539, pages 95-97 being No.9548 for the year 96-97 in the office of the Sub-Registrar, Bangalore North Taluk, Bangalore North Taluk, Bangalore, in favour of Mr. R.S. Rajendran [plaintiff herein] and Mr. Parken Joo [defendant No.2 herein] in respect of the suit schedule property. The power of attorney itself is revoked by 47 O.S.No. 10846 / 1997 registered document as discussed above by defendant No.1 and it is within the knowledge of the plaintiff that the said power of attorney revoked and he has also not challenged the said document of revocation of power of attorney. Further, defendant No.1 has not adduced either oral or documentary evidence to show that earlier to revocation of power of attorney she has issued notice to the plaintiff and defendant No.2. Hence, defendant No.1 failed to prove recasted issue No.10. Further neither plaintiff nor defendant No.1 have not produced any agreement of sale said to have been taken place between the plaintiff defendant No.2 and defendant No.1 in respect of suit schedule property. Hence defendant No.1 failed to prove re-casted issue No.11 also. Hence, I answer re-casted Issue No.10 and 11 in the Negative.
30) Addl. Issue No.1 and Re-casted issue No.8:-At the first instance Addl issue No.1 was framed by this court and 48 O.S.No. 10846 / 1997 thereafter the same was re-casted as issue No.8, in view of contention taken by defendant No.1 in her written statement that 2nd defendant admittedly a South Korean citizen is not entitled to purchase immovable property in India without prior permission of Reserve Bank of India and also restriction placed under Foreign Exchange Regulation Act and also further contention by defendant No.1 that the agreement to sell is not divisible and there cannot be specific performance of a portion of the agreement and the 2nd defendant has abandoned the contract and agreement itself has become unenforceable. Hence, the suit of the plaintiff is not maintainable. But, neither plaintiff nor defendant No.1 have produced any agreement of sale said to have been taken place between the plaintiff, defendant No.1 and defendant No.2 in respect of suit schedule property. Therefore, defendant No.1 failed to prove Addl. Issue and also re-casted Issue No.11. Hence Addl Issue and Re-casted Issue No.11 are answered in the Negative. 49
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31) Issue No.4 and Re-casted issue No.12:-
In view of above discussion, I proceed to pass following:
:ORDER:
The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected and then pronounced by me in the open court on this 14th day of November, 2019).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1 : Mr. R.S. Rajendran
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DOCUMENTS MARKED FOR THE PLAINTIFFS:
ExP1 Certified copy of registered General Power of attorney executed by Mrs. A. Arokya Mary [defendant No.1] in favour of Mr. R.S. Rajendran [plaintiff herein] and Mr. Parken Joo [defendant No.2 herein] on 8/10/1996, ExP2 Certified copy of registered deed of revocation of power of attorney dated 26/08/1997 ExP3 Certified copy of General Power of Attorney dated 8/10/1996 [same document produced by plaintiff at ExP1 above] ExP4 Encumbrance certificate in respect of suit schedule property in the name of the plaintiff for the period 01/04/1995 to 31/03/2004.
ExP5 Encumbrance certificate in respect of suit schedule property in the name of the plaintiff for the period 24/05/2004 to 06/03/2019.
ExP6 Encumbrance certificate in respect of suit schedule property in the name of the plaintiff for the period from 08/10/1996 to 31/03/1994.
ExP7 Encumbrance certificate in respect of suit schedule property in the name of the plaintiff for the period from 24/052004 to 12/03/2019.
ExP8 Khatha Registration and notice of tax issued by Bruhat Bengaluru Mahanagara Palike 51 O.S.No. 10846 / 1997 ExP9 Khatha certificate jointly in the name of the plaintiff and 2nd defendant issued by Bruhat Bengaluru Mahanagara Palike on 16/05/2019 in respect of property bearing New No.44, 1 st cross, Lingarajapura, Bangalore ExP10 Khatha extract dated 16/05/2019 issued by Bruhat Bengaluru Mahanagara Palike in respect of property New No.44 , 1st cross Lingarajapuram, Bangalore.
ExP11 Certified copy of deed of partition dated 10/11/1976 entered into between (1) Smt. A. Arogyamma W/o. Late C. Anthony Reddy, (2) Sri A. Francis, S/o. Late C.Anthony Reddy, (3) Sri A. Bernard, S/o. Latte C. Anthony Reddy, (4) Sri A. Domnique, sonof late C. anthony Reddy,(5) Sri A. Anthony SwamyS/o. C. Anthony Reddy, (6) Smt. A. Philomena, D/o. Late C. Anthnoy Reddy, (7) Smt. Arokyamary, D/o. Late C. Anthony Reddy [1 st defendant herein].
ExP12 to ExP23 are photographs ExP24 C.D. ExP25 to ExP35 Tax paid receipts for the years 200/-2009 to 2018-2019 respectively in respect of property No.44, 1st cross, Lingarajapuram, in the name of plaintiff and 2nd defendant jointly.
ExP36 Receipt for payment of improvement charges to Bruhat Bengaluru Mahanagara Palike by the plaintiff.52
O.S.No. 10846 / 1997 ExP37 to ExP47 Tax paid receipts for the period from 2008- 2009 to 2018-2019 [Same documents which are already produced at ExP25 to ExP35] WITNESSES EXAMINED FOR THE DEFENDANT/S:
NIL DOCUMENTS MARKED FOR THE DEFENDANT/S:
NIL XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.53
O.S.No. 10846 / 1997 14/11/2019 Plaintiff by Sri MAG defendant No.1 by Sri MMG D2 -exparte D3 Deleted For Judgment Judgment pronounced in the open court (Vide separate detailed Judgment) The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE