Bangalore District Court
Sri.Varadaraja vs Smt. Nanjamma on 25 January, 2022
1 O.S.4587/2018
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 25 th DAY OF JANUARY, 2022.
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu,
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.4587/2018
PLAINTIFF/S: Sri.Varadaraja,
S/o Late Yamaiah,
aged about 48 years,
R/at No.14/1, 10 th cross,
12 th Main road,
Hosakere road,
Ganapathi Layout,
Bytarayanapura,
Mysore road,
Bangalore - 560 026.
(By Sri.PD, NH, Advocates)
Vs.
DEFENDANT/S: Smt. Nanjamma,
W/o Late Yamaiah,
Aged about 66 years,
2 O.S.4587/2018
2. Smt.Hemavathi,
W/o Channappa,
Aged about 40 years,
3. Sri.Ullas.C
S/o Channappa,
Aged about 23 years,
All the defendants are
R/at No. 14/1, 10 th cross,
12 th main road,
Hosakere road,
Ganapathi Layout,
Byatarayanapura,
Mysore road,
Bangalore - 560 026.
(By Sri.MNA, Advocate)
* * * * *
Date of institution of suit : 27.06.2018
Nature of suit : Declaration &
possession
Date of commencement
of recording of evidence : 13.03.2020
Date on which the judgment
was pronounced : 25.01.2022
Duration of the suit :Year/s Month/s Day/s
03 06 28
3 O.S.4587/2018
JUDGMENT
1. This is a suit filed by the plaintiff for the relief of declaration of ownership and for relief of declaration and permanent injunction with cost. The plaintiff has filed this suit against the defendants no.1 to 3 praying to pass a judgment and decree declaring that the plaintiff is the absolute owner and in possession of the suit schedule property and to pass a judgment and decree declaring that the alleged fraudulent GPA dated 04.10.2017 is an out come of fraud and forgery and to pass a Judgment and decree to declare that gift deed dated 13.10.2017 executed by the defendant No.2 as a GPA holder of the plaintiff registered as document No.CMP/1/04608/2017/18 and stored in CD.No.CMPD187 before the Sr.Sub-register, Basavanagudi, Chamarajpet, Bangalore as null and 4 O.S.4587/2018 void and it is an outcome of fraudulent transaction and not binding on the plaintiff and to pass judgment and decree that the alleged fraudulent gift deed dated 27.03.2018 executed by defendant No.1 registered as document No.CPM/1/08894/2017-18 and stored in CD.No.CMPD197 before the Sr.Sub-register, Basavanagudi, Chamarajpet(Bangalroe as null and void and it is not biding on the plaintiff. The plaintiff also prayed to pass permanent injunction to restrain the defendants No.1 to 3 and their agents, servants, or any person claiming under/through them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property.
2. The suit schedule property is the part and parcel of residential immovable property along with 5 O.S.4587/2018 residential house constructed in property bearing site No.14, having PID No.41-72-14, situated at Ganapathingar (Ganapathi Layout), Bytarayanapura, Mysuru Road, Bengaluru, within the revenue jurisdiction of Old ward No.14, new ward No.158, BBMP, Bengaluru, measuring East to West: 40 ft and North to South : 15 feet along with residential building measuring 600 sqft.
3. The plaint averments briefly as stated as follows:
The plaintiff is the only son of late Yamaiah and the defendant No.1 Smt.Nanjamma. The defendant no.2 is the daughter of Yamaiah and defendant No.1 and sister of the plaintiff. The genealogy of the family of the plaintiff and defendant given below.
6 O.S.4587/2018
Late :Yamaiah
Nanjamma(Mother)
(DefendantNo.1)
Varadaraja(son) Hemavathi(Daugher)
(Plaintiff) (Defendant No.2)
Ullas.C.
(Grandson)
(Defendant No.3)
4. The plaintiff father died at the very young age of plaintiff thereafter entire responsibility of taking care of his mother and sister fell on the shoulder of plaintiff. After demise of the plaintiff's father the plaintiff and defendants No.1 and 2 were living in a rented house. After few years the plaintiff intended to purchase a property, hence out of plaintiff's savings as well as hand loan obtained from his friends the plaintiff had purchased the suit schedule property under registered sale deed in the name of his mother 1 st defendant in the year 1993. The 7 O.S.4587/2018 plaintiff is involved in social service activity and is providing security and self employment options for many needy people students etc., After few years the plaintiff intended to construct a house in the suit schedule property. In order to go ahead with the such an option the defendant no.1 had agreed to pass on the title of the schedule property in favour of the plaintiff. By that time the defendant No.2 was already married to one Chennappa and was residing separately at Matrimonial house. Hence defendant no.1 had executed an absolute sale deed dated 28.03.2005 in favour of plaintiff. In pursuant to the registration of absolute sale deed plaintiff became the absolute owner of the suit schedule property. All the revenue documents were changed in his name. He was also paid property tax. The plaintiff approached the concerned municipal 8 O.S.4587/2018 authority and obtained sanction to built a house in the said site and has built two storied residential building in the suit schedule property. The plaintiff by that time was married and he along with his wife and mother were residing in the said property. Facts being so, on account of some marital discord the defendant no.2 had differences with her husband and therefore she came back to the plaintiff with a request to allow her to stay with them until everything settles in her marital life. By considering her plight the plaintiff was gracious enough to allow her to stay with them. Once the defendant No.2 started residing with defendant No.1 she came to know that her brother plaintiff has became absolute owner of the suit schedule property. Hence the defendant no.2 has hatched a plan to grab the property either for herself or to family defeating the 9 O.S.4587/2018 rights of the plaintiff as an absolute owner. With these ill-motive she some how managed to brain wash the defendant No.1 to take her side and on regular basis asked the plaintiff to reconvey the entire property into the name of the defendant No.1.
At all those discussions plaintiff has convincingly explained the entire sale consideration was borne by him at the time of purchase of the suit schedule property in the name of his mother and also about the construction of residential building and he became the sole and absolute owner of the entire schedule property. Inspite of such explanation and proof the defendants were adamant to grab the property and defendant No.2 and 3 openly challenged the plaintiff that they will get hold of the property by hook and crook. Ever since the construction in the suit schedule property the 10 O.S.4587/2018 plaintiff and his wife are residing in the suit schedule property. The plaintiff is so busy that he cannot take care of his interest over the schedule property. Recently when the plaintiff went to pay annual tax of the property and when he checked the computer his name was not reflecting in the owners column as the same showed the name of defendant No.1 in its entries. The plaintiff was shocked to notice the same and approached the revenue authorities of BBMP. Upon enquiry he came to know that the Katha of the property has been recently changed from his name into the name of his mother by way of registered conveyance deed. When he approached Sub-register office by way of RTI application he came to know that on the basis of an unregistered GPA purported to have been executed by him in favour of defendant no.2 she has acted on 11 O.S.4587/2018 plaintiff's behalf and reconveyed the entire property from his name to his mother defendant No.1 name by way of registered gift deed dated 13.10.2017. In the said gift deed the defendant No.2 had represented the plaintiff as GPA holder. When the plaintiff obtained the true copy of the said so called GPA executed by him, prima-facie it is the evident that the defendant No.2 has forged his signature in the said document dated 14.10.2017. The said GPA which empowers the attorney holder to execute any conveyance deed was not registered as per the dictum of the Hon'ble Supreme court but it was only executed on E-stamp paper and notarized. The said document is false and fabricated document and the signature appears in the said document is forged signature of the plaintiff. On the strength of said forged and fabricated GPA the defendant No.2 got 12 O.S.4587/2018 executed a gift deed dated 13.10.2017 in favour of defendant no.1. On the strength of the said gift deed the defendant no.2 also got changed the katha of the property into the name of 1 st defendant. Immediately after the change of katha into the name of 1 st defendant, the defendant no.2 saw to it that entire property is conveyed to her family i.e., is in the name of her son defendant no.3 by way of gift deed dated 27.03.2018. On the strength of gift deed dated 27.03.2018 the defendants are trying to change the revenue Katha into the name of the defendant no.3. At no point of time, the plaintiff has executed the alleged GPA dated 04.10.2017. Now the defendants are trying to sell the entire schedule property and to enjoy its fruits by defeating the legitimate rights of the plaintiff. The plaintiff came to know about the illegal acts of the defendants 13 O.S.4587/2018 recently after he obtained the copy of the documents from the Sub-register office under RTI. On 26.04.2018 even though the plaintiff approached to the jurisdictional police to lodge the complaint against the defendants the police authorities directed him to redress the remedy before the competent Civil Court. Hence on these grounds the plaintiff prayed to decree the suit.
5. On service of summons the defendants entered appearance by engaging counsel and resisted the claim of the plaintiff by filing their WS which is briefly stated as follows.
6. The genealogy shown in para no.3 of the plaint is admitted. The contention of the plaintiff is that he had purchased the suit schedule property in the 14 O.S.4587/2018 name of the defendant no.1 is denied as false. The contentions of the plaintiff is that second defendant after her marriage residing separately is denied as false. The contentions of the plaintiff is that the defendant No.1 had is executed an absolute sale deed dated 28.03.2005 in his favour is denied as false. It is contended that only to facilitate raising of loan the suit schedule property was transferred to the name of the plaintiff. It does not mean that the suit schedule property was absolutely belongs to the plaintiff. The contentions of the plaintiff is that he became the absolute owner and all the revenue documents changed to his name and he was paying taxes are all denied as false. The contentions of the plaintiff is that he has constructed the house by obtaining sanction plan and he alone contributed the amount for construction are denied as false. The 15 O.S.4587/2018 contentions of the plaintiff is that he was allowed the defendant to reside in the suit schedule property are all denied as false. The contentions of the plaintiff is that the defendants have openly challenged the plaintiff that they will get hold of the property by hook and crook are all denied as false. The contentions of the plaintiff is that he and his wife are residing in the suit schedule property ever since the date of construction are denied as false. The contentions of the plaintiff is that his signature was forged in GPA by the defendant No.2 is denied as false. It is the GPA executed by the plaintiff and on the basis of the said document the gift deed was executed in favour of the 1 st defendant as clearly agreed by plaintiff himself at the time of taking sale deed in his name from defendant No.1. There is nothing fishy about the execution of the gift deed. 16 O.S.4587/2018 The contentions of the plaintiff is that on the basis of forged documents the defendant no.2 executed gift deed in favour of 1 st defendant and defendant no.2 got changed the Katha in favour of 1 st defendant and got further gift deed in favour of 3 rd defendant are all denied as false. As a grand mother out of her love and affection and as the plaintiff deserted and neglected to look after the aged mother and the defendant no.2 is looking after her mother, grandmother has executed gift deed in favour of the 3 rd defendant as she is assured that she would be looked after her by daughter and grand son in her old age. The plaintiff is not entitled to any share in the property having deserted the aged mother and having failed to take care of her mother. The contentions of the plaintiff is that he has not at all executed GPA in favour of defendant no.2 is denied 17 O.S.4587/2018 as false. The plaintiff has not approached the jurisdictional police. There is no cause of action to file the suit. The valuation of the suit and the court fee paid are not proper. Even at the time of purchasing the site no.14 there was a construction there on and it was not a vacant site as contended by the plaintiff. The plaintiff has not approached this court with clean hands. The plaintiff is not at all entitled to any relief. The plaintiff has filed this suit with oblique motive to grab the property which is for the welfare of the defendant as a security for their life. The plaintiff is well off not looking after the defendants. The defendant no.2 is deserted from her husband. She has no source for her livelihood. Hence on all these grounds the defendants prayed for dismissal of the suit.
18 O.S.4587/2018
7. Based on the pleadings of the parties the following issues were framed:
(1) Whether the plaintiff proves his right, title, interest and possession over the suit schedule property ?
(2) Whether the plaintiff proves that GPA dated:04.10.2017 is an outcome of fraud and forgery?
(3)Whether the plaintiff proves that gift deed dated:13.10.2017 executed by defendant No.2 as a GPA holder of him is null and void and not binding upon him ?
(4)Whether the plaintiff proves that gift deed dt:27.03.2018 executed by defendant No.1 is null and void and not binding upon him?19 O.S.4587/2018
(5) Whether the defendants prove that the plaintiff has executed GPA dated:04.10.2017 in favour of defendant No.2 and on basis of the same he has executed gift deed in favour of defendant no.1 as contended by them in their written statement ?
(6) Whether the plaintiff proves the alleged interference/act of the defendants ?
(7)Whether the defendants prove
that the plaintiff has not
property valued the suit and
the court fee paid by the
plaintiff is insufficient?
(8)Whether the plaintiff is entitled for the relief's as sought by him?
(9) What Decree or Order?20 O.S.4587/2018
8. In order to prove the case of the plaintiff the plaintiff is examined as PW1 and documents Ex.P.1 to 17 are marked on the side of the plaintiff. The documents Ex.P.13 and 14 are marked during the course of cross examination of DW1. After closure of the evidence on the side of defendant, defendant No.3 is examined himself as DW1 and documents Ex.D.1 to 13 are marked.
9. I have heard the arguments on the side of the learned counsel for the plaintiff and learned counsel defendant. Both sides counsel have filed written arguments.
10. My findings to the above issues are as under:
Issue No.1: In the Negative
Issue No.2: In the Affirmative
Issue No.3: In the Affirmative
21 O.S.4587/2018
Issue No.4: In the Affirmative
Issue No.5: In the Negative
Issue No.6: In the Negative
Issue No.7: In the Negative
Issue No.8: Partly in the Affirmative
Issue No.9: As per the final order
for the following:
REASONS
2. Issue No.2 to 5: All these issues are taken up together for discussion for the sake of convenience and in order to avoid repetition of facts and evidence.
3. The plaintiff has filed this suit praying to declare him as the absolute owner and in possession of the suit schedule property and praying to pass the judgment and decree declaring that the alleged fraudulent General Power of Attorney dated 22 O.S.4587/2018 4.10.2017 is an outcome of fraud and forgery. He prayed to pass the judgment and decree that gift deed dated 13.10.2017 executed by defendant No. 2 as a General Power of Attorney holder of plaintiff which is registered in Senior Sub-Registrar, Basavanagudi (Chamarajpet), Bangalore as null and void and is outcome of fraudulent transaction and not binding on the plaintiff and to pass the judgment and decree that alleged fraudulent gift deed dated 27.3.2018 executed by defendant No. 1 in favour of defendant No. 3 which registered before the Sub- Registrar, Basavanagudi (Chamarajpet) Bangalore as null and void and is not binding on the plaintiff. Since the plaintiff has mainly taken contention that he has not executed any such General Power of Attorney dated 4.10.2017 in favour of defendant No. 2 and the said General Power of Attorney is an 23 O.S.4587/2018 outcome of fraud and forgery, hence this court has to firstly decide whether the General Power of Attorney dated 4.10.2017 is genuine or fraudulent document. If this court holds that the General Power of Attorney dated 4.10.2017 is an outcome of fraud and forgery and it is not valid document then the remaining document gift deed dated 13.10.2017 executed by defendant No. 2 as General Power of Attorney holder of plaintiff and the gift deed dated 27.3.2018 executed by defendant No. 1 in favour of defendant No. 3 are all goes away and becomes null and void.
4. In this suit there is no dispute about the relationship between the parties. Defendant No. 1 is the mother of plaintiff and defendant No. 2. The defendant No. 3 is the son of defendant No. 2. The 24 O.S.4587/2018 plaintiff and defendant No. 2 are the brother and sister. Defendant No. 2 is the younger sister of the plaintiff. One Yamaiah is the husband of defendant No. 1 and father of plaintiff and defendant No. 2. it is the case of the plaintiff is that his father Yamaiah died at the very young age of plaintiff. Thereafter he was taken care of his mother and sister. It is the contention of the plaintiff is that after the death of his father he and defendant No. 1 and 2 were living in rented house. After few years the plaintiff intended to purchase the property. Hence out of his savings as well as hand loan obtained from his friends the plaintiff had purchased the suit schedule property in the year 1993 but it was registered in the name of his mother defendant No. 1. It is the contention of the plaintiff is that few years later he intended to construct a house in the suit schedule 25 O.S.4587/2018 property. Hence in order to go ahead with such construction the defendant No. 1 had agreed to pass on the title of the suit schedule property in favour of the plaintiff. Hence the defendant No. 1 had executed an absolute sale deed dated 28.3.2005 in favour of the plaintiff. In pursuant to the same the plaintiff became the absolute owner of the suit schedule property and all the revenue documents were changed in his name. It is the contention of the plaintiff is that defendant No. 2 who was deserted from her husband started to stay with the plaintiff and defendant No. 1 and she came back to the plaintiff with a request to allow her to stay with them until everything settles in her marital life. Hence plaintiff was allowed her to stay with them. But defendant No. 2 who came to know that the plaintiff became the absolute owner of the suit 26 O.S.4587/2018 schedule property, hence she hatched a plan to grab the suit schedule property. With this ill motive she somehow managed to brain wash the defendant No. 1 to take her site. It is the contention of the plaintiff is that recently when he went to pay the annual property tax and checked the computer entries his name was not reflecting in the owners column and same was showed in the name of defendant No. 1. Hence he approached the revenue authorities attached to BBMP. Upon enquiry he came to know that the Khatha of the property has been recently changed into the name of his mother by way of registered conveyance. When he approached the Sub-Registrar office by way of RTI application he came to know that on the basis of an unregistered General Power of Attorney purported to have been executed by him in favour of defendant No. 2 she 27 O.S.4587/2018 has acted on plaintiffs behalf and has reconveyed the entire property from his name to his mother defendant No. 1 by way of registered gift deed dated 13.10.2017. In turn the defendant No. 1 executed registered gift deed dated 27.3.3018 in favour of her grand son defendant No. 3. It is the contention of the plaintiff is that when he obtained the true copy of so called General Power of Attorney executed by him prima facie it is evident that defendant No. 2 has forged his signature in the said document dated 4.10.2017. The said alleged General Power of Attorney is not registered. It was only executed on e-stamp paper and notarised. The said General Power of Attorney is a false and fabricated document. He has not executed any such General Power of Attorney in favour of 2 nd defendant at any point of time.
28 O.S.4587/2018
5. PW1 in his affidavit filed for examination-in- chief has reiterated these contentions taken in the plaint. Since his examination-in-chief is the replica of the plaint averments it need not be reproduced once again as the gist of the contention taken by the plaintiff is already narrated above. In order to substantiate the contention taken by the plaintiff the documents Ex.P1 to Ex.P17 are marked through PW1. Ex.P1 is the original sale deed dated 28.3.2005 executed by defendant No. 1 in favour of plaintiff. Ex.P1(a) and Ex.P1(b) are the signatures of plaintiff. Ex.P2 is the Khatha certificate of the suit schedule property of the year 2015 standing in the name of plaintiff. Ex.P3 is the Khatha extract dated 4.3.2015 of the suit schedule property standing in the name of plaintiff. Ex.P4 are the property tax paid receipts from the year 2012-13 to 2017-18 (six in 29 O.S.4587/2018 number). Ex.P5 is the encumbrance certificate which reflected the sale deed dated 28.3.2005. Ex.P6 is the covering letter issued by the RTI Officer enclosing the document sought by the plaintiff. Ex.P7 is the copy of General Power of Attorney dated 4.10.2017 obtained through RTI. Ex.P8 is the copy of gift deed dated 13.10.2017 obtained through RTI, Ex.P9 is the Khatha certificate standing in the name of defendant No. 1 obtained through RTI. Ex.P10 is the Khatha extract standing in the name of defendant No. 1 obtained through RTI. Ex.P9 and Ex.P10 are Khatha certificate and Khatha extract dated 21.3.2018. Ex.P11 is the copy of gift deed dated 27.3.2018 executed by defendant No. 1 in favour of defendant No. 3. This document also obtained by the plaintiff through RTI. Ex.P12 is the copy of complaint dated 19.6.2018 given by the plaintiff against the 30 O.S.4587/2018 defendants to the police. Ex.P13 and Ex.P14 are marked during the course of cross-examination of DW1. Ex.P13 is the copy of affidavit given by defendant No. 1 and 2 at the time of registration of gift deed dated 13.10.2017. Ex.P14 is the copy of affidavit given by defendant No. 1 and 3 at the time of registration of gift deed dated 27.3.3018. Ex.P15 is the certified copy of the plaint in O.S.No.1564/2012. Ex.P16 is the certified copy of cross-examination portion of deposition of PW1 Nanjamma in O.S.No.1564/2012. Ex.P17 is the information given by RTI Officer to the plaintiff on 25.8.2021.
6. During the course of cross-examination of PW1 he has deposed that in the year 1993 he was aged 21 years. At that time he was working as office boy in 31 O.S.4587/2018 the office of Auditor and he was also working as a driver. He has denied the suggestion that during the year 1993 he was not working anywhere, he was depending on the income of his mother. He has admitted the suggestion that he is having the original document of the suit schedule property of the year 1993 having purchased the same in the name of defendant No. 1. At the first instance in his cross- examination he has admitted the suggestion that he is having original sale deed of the year 1993 in his possession but he further deposed that the document of the year 1993 is not the sale deed, it is the General Power of Attorney standing in the name of his mother. He has denied the suggestion that he has forcibly got executed the document Ex.P1 sale deed through his mother. He has admitted the suggestion that the document Ex.P1 sale deed dated 32 O.S.4587/2018 28.3.2005 got prepared through one Vasantha Madhava, Advocate. He has admitted the suggestion that in Ex.P1 sale deed it is mentioned that this property i.e., the suit schedule property is the self acquired property of his mother. He has admitted the suggestion that at the time of execution of the document Ex.P1 sale deed he, his mother defendant No. 1, his sister defendant No. 2 were all residing in the suit schedule property. He has deposed that now the defendant No. 1 and 2 are residing in the 1 st floor of the suit schedule house. He is residing in the ground floor of the suit schedule house. He has denied the suggestion that in order to execute the General Power of Attorney as per Ex.P7 he was purchased the stamp paper. He has denied the suggestion that in order to give back the suit schedule property in favour of his mother he had 33 O.S.4587/2018 executed the General Power of Attorney in favour of the defendant No. 2. He has admitted the suggestion that he is always used to sign in Kannada. He has denied the suggestion that the signature which is found in Ex.P7 General Power of Attorney is his signature. He claims that the signature found in Ex.P7 is forged signature. He has denied the suggestion that as he voluntarily executed the General Power of Attorney as per Ex.P7 in favour of defendant No. 2, hence on the basis of the said General Power of Attorney defendant No. 2 executed a registered gift deed in favour of defendant No. 1. He has denied the suggestion that in order to execute the General Power of Attorney in favour of his sister defendant No. 2 and in order to execute the gift deed by defendant No. 2 in favour of defendant No. 1 he was handed over the possession of the 1 st floor 34 O.S.4587/2018 of the suit house in favour of defendant No. 1 and 2. He has denied the suggestion that as he was refused to go to the Sub-Registrar office he executed the General Power of Attorney in favour of his sister defendant No. 2 and in turn defendant No. 2 in his favour executed gift deed in favour of defendant No.
1. He has deposed that during the year 2005 he was working as office boy in the private limited company and he was earning monthly salary of Rs.1,500/-. He has admitted the suggestion that prior to 28.3.2005 the suit schedule property was standing in the name of his mother defendant No. 1. He has denied the suggestion that the suit schedule property was purchased by defendant No. 1 from her self earning. He has deposed that the suit property is not involved in O.S.No.1564/2012.
35 O.S.4587/2018
7. The defendant No. 3 who is examined as DW1 in his examination-in-chief has reiterated the written statement contentions. In the written statement as well as in the examination-in-chief affidavit of DW1 he has denied all the para No. 4 to para No. 13 of the plaint. Except the admitting genealogy mentioned in the plaint all other averments made in the plaint are denied as false. DW1 has deposed that only to facilitate raising of loan the suit schedule property was transferred from the name of defendant No. 1 to the name of plaintiff. Hence it did not mean that the suit schedule property was absolutely belongs to the plaintiff. DW1 has deposed that defendant No. 2 was allowed to reside with her own right in the suit schedule property and not at the mercy of the plaintiff as sought to be alleged by the plaintiff. DW1 has deposed that the General 36 O.S.4587/2018 Power of Attorney dated 4.10.2017 executed by the plaintiff is genuine document. On the basis of the said General Power of Attorney defendant No. 2 executed gift deed in favour of 1 st defendant as clearly agreed by the plaintiff himself at the time of taking sale deed in his name from the defendant No.
1. There is nothing fishy about the execution of the gift deed. DW1 has deposed that as the grand mother out of her love and affection and as the plaintiff deserted and neglected to look after his aged mother and the defendant No. 2 is looking after her mother, hence the defendant No. 1 has executed gift deed in his favour as he assured that he and his mother would look after her in her old age. DW1 has deposed that the plaintiff is not entitled to any share in the schedule property having deserted his aged mother and having failed to take care of her. 37 O.S.4587/2018 DW1 has deposed that even at the time of purchasing the suit schedule property there was construction thereon and it was not the vacant site as alleged by the plaintiff. He has deposed that defendant No. 1 and 2 also contributed the amount in construction of the house in the suit schedule property.
8. The document Ex.D1 to Ex.D13 are marked through DW1. Ex.D1 is the General Power of Attorney dated 4.10.2017. This is a disputed document as the plaintiff has taken contention that this document is outcome of fraud and forgery and he has not executed this document in favour of defendant No. 2. Ex.P2 is the registered gift deed dated 13.10.2017 executed by defendant No. 2 as a General Power of Attorney holder of the plaintiff in favour of defendant No. 1. Ex.D3 is the 38 O.S.4587/2018 encumbrance certificate of suit schedule property from 1.4.2017 to 16.10.2017. Ex.D4 is the receipt dated 16.3.2018 for having paid fee to transfer of Khatha in the name of defendant No. 1. Ex.D5 is the registered gift deed dated 27.3.2018 executed by defendant No. 1 in favour of defendant No. 3. Ex.D6 is the five documents dated 2.6.2018 showing the transfer of electricity connection from the name of plaintiff to the name of defendant No. 1. Ex.D7 to 9 are the property tax paid receipts of the year 2019-20, 2017-18, 2018-19 respectively. Ex.D10 is the encumbrance certificate dated 27.3.2018. Ex.D11 is the Khatha certificate dated 21.3.2018 standing in the name of defendant No. 1. Ex.D12 is the Khatha extract dated 21.3.2018 standing in the name of defendant No. 1. Ex.D13 is the Uttarapatra dated 16.3.2018 standing in the name of defendant No. 1. 39 O.S.4587/2018
9. During the course of cross-examination of DW1 he has admitted the suggestion that till today the plaintiff and defendants are residing in the same house. He has deposed that since from the year 1993 they are all residing in the same house. He admitted the suggestion that Ex.P1 is the sale deed executed by defendant No. 1 in favour of plaintiff. He states that his mother, i.e., 2 nd defendant's marriage was performed in the year 1991. He has denied the suggestion that on 14.3.1993 plaintiff purchased the site in the name of 1 st defendant. He has denied the suggestion that as per the document Ex.P1 sale deed and Ex.D1 General Power of Attorney it was the plaintiff who was purchased the suit schedule property in the name of 1 st defendant. He has denied the suggestion that as per Ex.P1 sale deed the plaintiff has purchased the suit schedule property 40 O.S.4587/2018 from the 1 st defendant for Rs.3,00,000/-. He has admitted the suggestion that till today the electricity connection and water connection of the suit schedule property standing in the name of the plaintiff. He has denied the suggestion that they have forged the signature of the plaintiff on Ex.D1 General Power of Attorney. He has deposed that the plaintiffs friend who has signed as witness on Ex.D1 General Power of Attorney signed the same in the house of the plaintiff. He has admitted the suggestion that the document Ex.D1 does not contain the signature of defendant No. 1. He has deposed that the plaintiff alone went to the office of notary and got the signature of the notary public on Ex.P1. DW1 has deposed that after repayment of the hand loans borrowed by the plaintiff he has executed the document Ex.D1 General Power of Attorney in favour 41 O.S.4587/2018 of defendant No. 1. He has deposed that he has no impediment to examine the witnesses signed on Ex.D1 and the notary who put his signature on Ex.D1. He has deposed that the plaintiff was executed the document Ex.D1 in order to reconvey the suit schedule property in favour of his mother defendant No. 1. He has denied the suggestion that on the basis of fake document Ex.D1 General Power of Attorney his mother defendant No. 2 executed fake document Ex.D2 gift deed dated 13.10.2017 in favour of defendant No. 1. He has denied the suggestion that on the date of execution of gift deed dated 13.10.2017 the plaintiff was not there in his house. Dw1 has deposed that on the date of execution of General Power of Attorney the plaintiff was there in the house but on the date of execution of gift deed the plaintiff was not there in his house. He has 42 O.S.4587/2018 admitted the suggestion that the plaintiff and his wife and children are still residing the suit schedule house. He pleaded his ignorance to the suggestion that the plaintiff had no other house except the suit schedule house. DW1 has deposed that he was born in the year 1995. He has not produced any document to show that the 1 st defendant was residing in the suit schedule property from the year 1993 to 2005. He has admitted the signature of plaintiff on Ex.P1 sale deed. He has denied the suggestion that there is a difference in the signature of Vardaraju in Ex.D1 and Ex.P1. He has deposed that there exists totally five electrical meters in the suit schedule property. He has admitted the suggestion that the plaintiff was lodged complaint against the defendants to the police. He has deposed that he has no objection to send the document Ex.D1 to 43 O.S.4587/2018 handwriting expert in order to compare the signature found in Ex.D1 with the signature of the plaintiff. He has denied the suggestion that in order to grab the suit schedule property the defendants colluded with each other and have created the document Ex.D1 General Power of Attorney.
10. In this suit the learned counsel for the plaintiff as well as the learned counsel for the defendants have filed their written arguments. I have appreciated the rival contentions. It is undisputed fact that the plaintiff and defendants are all residing in the suit schedule house. It has come in the evidence of PW1 is that he and his wife are residing in the ground floor of the house and the defendant No. 1 and 2 are residing in the 1 st floor of the house. DW1 also admitted the suggestion that 44 O.S.4587/2018 the plaintiff and defendants are all residing in the house situated in the suit schedule property. There is no document on the side of the defendants to show that except the suit schedule property the plaintiff had any other accommodation in order to reside. Defendant No. 1 who is the mother and defendant No. 2 is the sister of the plaintiff. It is very strange that the defendant No. 2 as a General Power of Attorney holder of the plaintiff executed the registered gift deed as per Ex.D2 dated 13.10.2017 in favour of her mother defendant No. 1. When the plaintiff and defendants are residing in the same building what made the plaintiff to executed such General Power of Attorney as per Ex.D1 in favour of defendant No. 2 is not explained by the defendants. In this suit the defendants in their written statement except denying the plaint 45 O.S.4587/2018 averments para-wise the defendants have not set up any defence regarding what was the reason the plaintiff executed General Power of Attorney dated 4.10.2017 in favour of the defendant No. 2. The learned counsel for the plaintiff rightly argued that when the plaintiff himself was available in his house situated in the same building to execute any deed in favour of the defendant No. 1, under such circumstances there was no such requirements to him to execute the General Power of Attorney in favour of his sister defendant No. 2. The defendant No. 2 on the strength of the document Ex.D1 General Power of Attorney dated 4.10.2017 executed the registered gift deed Ex.D2 dated 13.10.2017 in favour of her mother defendant No. 1. The learned counsel for the plaintiff in his written arguments relied on the judgment of Hon'ble Supreme Court in 46 O.S.4587/2018 SLP(C)No.13917/2009 Suraj Lamp and Industries Private Limited Vs. State of Haryana and others to contend that the Hon'ble Supreme Court held that immovable property can be legal and lawfully transferred / conveyed ony by the registered Deed of Conveyance. The transactions of the nature of General Power of Attorney sales or SA / GPA it will transfers do not convey title and do not amount to transfer nor can they be recognised or valid mode of transfer of immovable property. The relevant para of the judgment of Hon'ble Supreme Court in Suraj Lamp case with regarding to the General Power of Attorney is mentioned below:
SCOPE OF POWER OF ATTORNEY.
A power of attorney is not an
instrument of transfer in regard to
47 O.S.4587/2018
any right, title of interest in an
immovable property. The power of
attorney is creation of an agency
whereby the grantor authorizes the
grantee to do the acts specified
therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him ( see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In state of Rajasthan vs Basant Nehata-2005(12) SCC 77, this court held:
" A grant of power of attorney is essentially government by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent 48 O.S.4587/2018 is formally appointed to act for the principal in one transaction or a series of 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, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document o convenience.
Execution of power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power or attorney, we have noticed herein before, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power
of attorney is coupled with interest. It is revocable. The donee is exercise 49 O.S.4587/2018 of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney holder may however
execute a deed of conveyance in
exercise of the power granted under
the power of attorney and convev
title on behalf of the grantor.
Conclusion
Therefore, a SA/GPA/WILL
transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M 50 O.S.4587/2018 Jain V. Canara Bank-94(2001) DLT 841, that the " concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintended misleading the general public into thinking that SP/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be valid substitute for a a sale deed.
Such decisions to the extent they
recognize or accept SA/GPA/WILL
transactions as concluded transfers,
as contrasted from an agreement to
transfer, are not good law.
11. Thus it is clear that the Power of Attorney is the creation of agency whereby the granter authorised the grantee to do the acts satisfied therein on behalf of the granter, it is terminable, refundable 51 O.S.4587/2018 at any time unless it is made irrevocable in a manner known to law, even irrevocable attorney does not have the effect of transferring title to the grantee. It is also well settled law that even after execution of Power of Attorney the member need not take consent to deal with the property because the Power of Attorney is not title deed. It is only creation of agency. In this suit the plaintiff has taken specific contention that he has not executed Ex.D1 Power of Attorney in favour of defendant No. 2 and this is a created document. During the course of cross-examination of PW1 nothing is elicited from his mouth to suggest that he has put his signature on Ex.D1. It is pertinent to note that even though the defendants have got marked the document Ex.D1 original Power of Attorney but they have not marked the disputed signature of the 52 O.S.4587/2018 plaintiff. The defendants have not made any efforts to examine the witnesses who signed on Ex.D1. If at all the document Ex.D1 General Power of Attorney is genuine document in order to prove the case the defendants should have examined the witnesses who signed Ex.D1. The defendants in their written statement have not stated in which place the plaintiff has put his signature on the General Power of Attorney. The defendants have also not stated regarding who was typed and taken print out of this document Ex.D1 General Power of Attorney. DW1 in his cross-examination deposed that the witnesses who signed on Ex.D1 General Power of Attorney are the friends of the plaintiff but he do not know their names. DW1 has deposed that the plaintiff was signed to Ex.D1 General Power of Attorney in their house. The witnesses have also signed on Ex.D1 in 53 O.S.4587/2018 the house of plaintiff. DW1 has deposed that the plaintiff took the General Power of Attorney to the notary public and got the signature of the notary public. The learned counsel argued that the document Ex.D1 does not contain the Register number of the notary public in order to say that it was executed before the notary public. The learned counsel for the plaintiff rightly argues that as the document Ex.D1 General Power of Attorney does not contain the Register number the notary public that itself creates doubt about this document Ex.D1 General Power of Attorney. First of all the defendants have not made any efforts to examine the witnesses who signed on the document Ex.D1 General Power of Attorney. The defendants have also not made any efforts to examine the notary public who put the signature and seal on Ex.D1. It 54 O.S.4587/2018 is mandatory requirement to any notary who put seal and signature on General Power of Attorney to mention his Register serial number on the General Power of Attorney. But on perusal of the document Ex.D1 there is no Register number is mentioned by the notary in this document. Since the plaintiff has denied his signature on Ex.D1 the burden is on the defendants to prove that the signature ವವದರವಜ found in Ex.D1 is of plaintiff. But in this suit the defendants neither got marked the signatures found in Ex.D1 nor made any efforts to prove those signatures found on Ex.D1 is that of the plaintiff.
12. The document Ex.D1 is the unregistered document. The General Power of Attorney which gives right to the General Power of Attorney holder to deal with the property gives right to alienate the 55 O.S.4587/2018 property by way of sale, release deed, gift, etc. then under such circumstances the stamp duty payable on the General Power of Attorney as per conveyance.
Article 41 of the Karnataka Stamp Act is very clear that the General Power of Attorney which gives right for alienation the stamp duty payable shall be as per conveyance. The document Ex.D1 is in Rs.200/- e- stamp paper. No doubt in Ex.D1 there is no mention regarding actual market value of the suit schedule property. But there is mention in Ex.D1 regarding authorising the General Power of Attorney holder to deal with the property including to sell, execute release deed, will, gift etc. Since under this document Ex.D1 the right of alienation is given to the General Power of Attorney holder hence this General Power of Attorney should have registered in the concerned register office by paying prescribed 56 O.S.4587/2018 stamp duty as required under the Stamp Act. When the plaintiff and defendants are residing in the same building under such circumstances it is very difficult to believe that the plaintiff has executed the General Power of Attorney dated 4.10.2017 as per Ex.D1 in favour of defendant No. 1. It has come in the evidence of DW1 is that his mother defendant No. 2 and his grand mother defendant No. 1 are not much educated. DW1 has deposed that defendant No. 1 studied upto 4 th standard. He has deposed that he do not know the education qualification of DW1. During the course of cross-examination of PW1 he has admitted the suggestion that defendant No. 1 and 2 are uneducated persons. Suggestions is also made to PW1 is that as his sister is not educated she has no worldly knowledge of the business. Under such circumstances it is very difficult to believe that the 57 O.S.4587/2018 plaintiff by giving General Power of Attorney in favour of his sister intends to convey the suit schedule property in favour of defendant No. 1. When the plaintiff himself available in the same house, he would have executed the gift deed directly in favour of defendant No. 1 if he intends to do so. In this suit for obvious reasons best known to defendant No. 1 and 2 they have not stepped into the witness box. The defendants have not examined the attesting witnesses of the document Ex.D2 gift deed dated 13.10.2017, Ex.D5 gift deed dated 27.10.2018. The gift deed is compulsorily attestable document as required under section 68 of the Indian Evidence Act. Since the defendants have not examined the attesting witnesses of these documents Ex.D2 and Ex.D5 it cannot be held that based on these documents the title of the suit schedule 58 O.S.4587/2018 property transferred in favour of defendant No. 1 thereafter defendant No.3. Issue No. 5 framed casting burden on the defendants to prove that the plaintiff has executed General Power of Attorney dated 4.10.2017 in favour of defendant No. 2 and on the basis of the same he has executed gift deed in favour of defendant No. 1. The burden is upon the defendants to prove issue No. 5 and to prove that the plaintiff has executed General Power of Attorney dated 4.10.2017 in favour of defendant No. 2 and on the basis of the same the defendant No. 2 as a General Power of Attorney holder of the plaintiff has executed gift deed in favour of the defendant No. 1. In order to prove the issue No.5 except defendant No. 3 / DW1 no independent witnesses including the attesting witnesses to the gift deed dated 13.10.2017 are examined in this suit. The defendant No. 1 and 59 O.S.4587/2018 2 who are the best witnesses to say about the document General Power of Attorney dated 4.10.2017 and gift deed dated 13.10.2017 and 27.3.2018 are not stepped into the witness box to say that these documents General Power of Attorney dated 4.10.2017, gift deed dated 13.10.2017 and gift deed dated 27.3.2018 are all genuine documents. The provision under section 68 of the Indian Evidence Act is very clear that if the document is required by law to be attested it shall not be used as evidence unless one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to process of the court and capable of giving evidence. It is not the contention of the defendants is that the attesting witness who are signed on the gift deed dated 13.10.2017 and 27.3.2018 are not alive. The 60 O.S.4587/2018 plaintiff has taken specific contention that the General Power of Attorney dated 4.10.2017 and gift deed dated 13.10.2017 and 27.3.2018 are all fraudulent documents and are all null and void and not binding on the plaintiff. When the defendants are taken contention that all these documents are genuine documents it is the defendants to prove that General Power of Attorney dated 4.10.2017 gift deed dated 13.10.2017 and 27.3.2018 are all genuine documents. But the defendants have not examined any attesting witnesses of the gift deed dated 13.10.2017 and 27.3.2018 as contemplated under section 68 of the Evidence Act. Hence this court cannot use the gift deeds dated 13.10.2017 and 27.3.2018 in evidence as the defendants have not examined one of the attesting witnesses of these documents. The learned counsel for the plaintiff in 61 O.S.4587/2018 his written arguments relied on several judgments of Hon'ble Supreme Court which are reported in (1) (2012) 11 SCC 574 (Badami Vs. Bali) (2) AIR 1992 SC 1555 Srisht Dawan Vs. Sha brothers (3) (2005)6 SCC 149 State of A.P. Vs. T.Suryachandra Rao, to contend that fraud unreveals everything. Fraud vitiates all transactions known to law. He also relied on the judgment of Hon'ble High Court of Judicature of Rajasthan at Jodhpur in Sawanth Singh Rator and another Vs. Banwar Kanwar @ Banwar Kumar, wherein it is held that when the Power of Attorney itself is under the cloud the subsequent execution to gift deed by the 1 st petitioner in favour of 2 nd petitioner cannot be prima facie presumed to be the document executed by the respondent - plaintiff. It is in these circumstances the respondent - plaintiff is well within her right to seek a declaration that gift 62 O.S.4587/2018 deed is null and void vis-a-vis her right, title and interest over the disputed property. The learned counsel for the defendants relied on the judgment of Hon'ble Supreme Court reported in AIR 2003 SC 4351 (Krishna Mohan Kaul @ Nanicharan Kul and another) Vs. Prathima Maity and others. I have gone through the decision cited by the learned counsel for the plaintiff and the learned counsel for the defendant. In my humble view the decision cited by the learned counsel for the defendants can be distinguished on facts. In my humble view the principles of decision cited by the learned counsel for the plaintiff which are reported in 2012(11) SCC 574, AIR 1992 SC 1555 (2005) 6 SCC 149 and decision of Hon'ble Supreme Court of Rajasthan at Jodpur in Sawanth Singh Rator and another case and the decision of Hon'ble 63 O.S.4587/2018 Supreme Court in Suraj Lamp and Industries Private Limited case is aptly applicable to the present suit.
13. DW1 in his cross-examination admitted the suggestion that prior to the year 2005 the suit schedule property was standing in the name of defendant No. 1. The plaintiff has produced the document Ex.P2 Khatha certificate, Ex.P3 Khatha extract, Ex.P4 property tax paid receipts - six in number, Ex.P5 encumbrance certificate of the year 2004-05 to show that after the defendant No. 1 executed the sale deed as per Ex.P1 the Khatha of the suit schedule property changed in the name of the plaintiff. The defendant has produced the document Ex.D10 encumbrance certificate dated 27.3.2018, Ex.D 11 Khatha Certificate, Ex.D12 Khatha extract to show that after the defendant No. 2 64 O.S.4587/2018 executed the gift deed dated 13.10.2017 in favour of defendant No. 1 as the General Power of Attorney holder the Khatha of the suit schedule property transferred in the name of defendant No. 1. The revenue documents such as Khatha certificate, Khatha extract, property tax paid receipts are does not confer any title over the suit property either to the plaintiff or to the defendant No. 1. All these revenue documents are for collection of the property taxes. When the plaintiff and defendants are residing in the same building the doubt arises regarding the General Power of Attorney dated 4.10.2017. Defendant No. 1 and 2 who are the best persons to say about General Power of Attorney dated 4.10.2017 have not stepped into the witness box. This court framed issue No.5 casting burden on the defendants to prove that the plaintiff has executed General 65 O.S.4587/2018 Power of Attorney dated 4.10.2017 in favour of defendant No. 2 and on the basis of the same he has executed gift deed in favour of defendant No. 1. The plaintiff has disputed these documents. But the defendants have not examined the witnesses who signed on the document Ex.D1 General Power of Attorney and also not examined the notary public who attested this document. The defendants have also not examined the attesting witnesses to the gift deed dated 13.10.2017 to show that this gift deed is genuine document. The defendants also not examined the attesting witnesses of the gift deed dated 27.3.2018 executed by defendant No. 1 in favour of defendant No. 3. The oral evidence of PW1 is sufficient to hold that the General Power of Attorney dated 4.10.2017 is outcome of fraud and forgery. The plaintiff has proved that General Power 66 O.S.4587/2018 of Attorney dated 4.10.2017 is outcome of fraud and forgery and proved that the gift deed dated 13.10.2017 executed by defendant No. 2 as General Power of Attorney holder is null and void and not binding upon him. The plaintiff has also proved the gift deed dated 27.3.2018 executed by defendant No. 1 in favour of defendant No. 3 is null and void and not binding upon him. The defendants have failed to prove that the plaintiff has executed General Power of Attorney in favour of defendant No. 2 and on the basis of the same he has executed gift deed in favour of defendant No. 1 as contended by them in their written statement. Hence I answer issue No.2 to 4 in the Affirmative, issue No. 5 in the Negative.
14. Issue No.1:- In this suit the plaintiff has claimed that he is the absolute owner of the suit 67 O.S.4587/2018 schedule property. The plaintiff has taken contention that he had purchased the suit schedule property in the year 1993 out of his own earnings but the suit schedule site was registered in the name of his mother defendant no.1. There is no pleading either on the side of plaintiff or defendants with regarding from whom the suit schedule property bearing site no.14 was purchased. In order to declare ownership over any property flow of title of the property is very important aspect. In this suit there is absolutely no evidence to show that how the suit schedule property came to the family of the plaintiff and defendants. PW.1 in his examination-in-chief deposed that he had purchased the souther portion of property bearing site no.14 measuring 40X15 feet i.e., suit schedule property. The suit schedule property purchased by him but it was registered in 68 O.S.4587/2018 the name of his mother defendant no.1. According to PW.1 he was purchased the suit schedule property in the name of defendant no.1 in the year 1993. PW.1 has deposed that with an intention to construct the house in suit schedule property hence defendant no.1 had agreed to pass on the title of the suit schedule property accordingly the defendant no.1 executed registered sale deed dated 28.03.2005 in his favor. It is pertinent to note that PW.1 has not deposed any thing about he had purchased the suit schedule property for valuable consideration. PW1 has not whispered any thing about whether he had paid consideration amount to the defendant no.1 at the time of defendant no.1 executed sale deed dated 28.03.2005 as per Ex.P.1 in his favor. Mere marking of the document Ex.P.1 sale deed is not sufficient to hold that consideration amount which mentioned in 69 O.S.4587/2018 Ex.P.1 was passed from plaintiff to defendant no.1. It is the contention of the defendants is that only to facilitate raising of loan the suit schedule property was transferred in the name of the plaintiff. DW1 in his examination-in-chief deposed that only to facilitate raising of loan the suit schedule property was transferred to the name of the plaintiff and it did not mean that the suit schedule property was absolutely belonging to the plaintiff only.
15. During the course of cross examination PW1 he has admitted the suggestion that the original sale deed of the year 1993 for having purchased the suit schedule property by the defendant no.1 is in his possession. PW1. has further voluntarily deposed that in the year 1993 no sale deed was registered only GPA is there. He has deposed that he has produced 70 O.S.4587/2018 the GPA of the year 1993 standing in the name of his mother. He has denied the suggestions that there is no such GPA of the year 1993 standing in the name of defendant no.1. The plaintiff in his plaint has taken contention that he had purchased the suit schedule site in the name of defendant no.1 in the year 1993. He has not specifically stated in his plaint the type of document through which the suit schedule property site was purchased in the name of the defendant no.1. When the plaintiff approached this court with specific pleadings that he had purchased the suit schedule site in the name of the defendant no.1 in the year 1993 heavy burden on the plaintiff to show that under which document and from whom and when the suit schedule site was purchased. Even in Ex.P.1. sale deed dated 28.03.2005 also there is no specific mention 71 O.S.4587/2018 regarding the source of title. In Ex.P.1 it is simply mentioned that the vendor is absolute owner of the schedule property having acquired the same in the year 1993. In Ex.P.1 there is no mention about the date of acquisition, mode of acquisition, and the name of the person from whom such acquisition is made. The plaintiff who approached this court for the relief of declaration of ownership suppressed the fact regarding the name of person whom the property originally belongs. It is not the contention of the plaintiff is that suit schedule site was ancestral property. When it is the case of the plaintiff is that he had purchased the suit schedule property in the year 1993 it is his duty to disclose from whom he was purchased the property and total consideration amount. Any such purchase without consideration would become void. Since in this suit there is no 72 O.S.4587/2018 pleading and evidence on the side of plaintiff to show the consideration was passed through him to purchase the suit site in the name of defendant no.1 it cannot be held that the suit schedule site was purchased by the plaintiff. Even if it is presumed that suit site was purchased in the name of defendant no.1 it would become her separate property in view of provision under section 14 of the Hindu Succession Act.
16. PW.1 in his cross examination deposed that in the year 1993 he was aged about 21 years. Even though PW.1 in his cross examination deposed that he was working as office boy in Auditor Office and was working as a driver in the year 1993 but in order to substantiate his contention he has not produced any documents. PW.1 has not deposed any 73 O.S.4587/2018 thing about at what age he started the earing. Firstly there is no documents on the side of the plaintiff to show that he was earning sufficient income in the year 1993 in order to purchase the suit schedule property site in the name of the defendant no.1. Secondly, plaintiff has not stated the total consideration amount invested to purchase the suit schedule site. Thirdly there is no specific pleading and evidence to show through which document the suit schedule property was purchased in the year 1993. Fourthly, there is no pleading and evidence to show who was the original owner of the suit schedule site and from whom the suit schedule property was purchased in the year 1993 and what was the total consideration amount. In the absence of these evidence based on the document Ex.P.1 sale deed dated 28.03.2005 it cannot be held that the 74 O.S.4587/2018 title of the property transferred from defendant no.1 in favor of plaintiff under this document.
17. During the course of cross examination of PW.1 he has deposed that in the year 2005 he was working as Office boy and earning salary of Rs.1500/-. There is absolutely no evidence on the side of plaintiff to show that he had sufficient amount in order to purchase the suit schedule property under sale deed as per Ex.P.1. In the cross examination of DW1 he has denied the suggestion that plaintiff had purchased the suit schedule property under Ex.P.1 sale deed by praying consideration amount of Rs.3,00,000/-. When it is the specific defense of the defendant that sale deed is only nominal one then it is the burden on the plaintiff to show that he was purchased the suit schedule property by paying valid 75 O.S.4587/2018 consideration amount. First of all the plaintiff in his plaint has not admitted that the defendant no.1 was owner of the suit schedule property. It is the specific contention of the plaintiff that he was purchased the suit schedule property in the year 1993 in the name of defendant no.1. If at all the plaintiff by admitting the title of the defendant purchased the suit schedule property as per Ex.P.1 then matter would have different. In Ex.P.1 it is mentioned that defendant no.1 is the absolute owner having acquired the same in the year 1993. But quite contrary to the document Ex.P.1 sale deed the plaintiff has taken contention that he had purchased the suit schedule site in the name of the defendant No.1. For obvious reasons best known to the plaintiff he has not produced any such document of the year 1993. PW1 in his cross examination admitted the suggestion that he is 76 O.S.4587/2018 possessing the document of the year 1993. With holding of such document is sufficient to hold that since that document of the year 1993 goes against the plaintiff hence he withheld the same without producing the same before the court. Hence adverse inference can be drawn that as there is no valid title to show that suit schedule site transferred to the family of plaintiff and defendants hence the document of the year 1993 is withheld in this suit. Since the plaintiff has approached this court claiming ownership over the suit schedule property it is for the plaintiff to prove the source of title. No doubt PW.1 in his cross examination admitted the suggestion that the revenue records of the suit schedule property was standing in the name of defendant no.1 prior to 28.03.2005. It is now settled principle of law is that the revenue documents are 77 O.S.4587/2018 not the documents of title. The revenue records are meant for collection of property taxes. Non production of title documents of the year 1993 is fatal to the case of the plaintiff. There is no cogent evidence on the side of the plaintiff to show that sale consideration which is mentioned in Ex.P.1 i.e., Rs.3,00,000/- was given by the plaintiff to the defendant no.1. The pleading and evidence of plaintiff is that as he was purchased the suit schedule site in the name of defendant no.1 in the year 1993 hence in the year 2005 as the plaintiff intended to construct the house in suit schedule property hence the defendant no.1 reconveyed same to the plaintiff under registered sale deed dated 28.03.2005 as per Ex.P.1. There is no pleading and evidence to show that sale consideration amount passed from plaintiff to defendant no.1. Since there 78 O.S.4587/2018 is no cogent evidence to show that sale consideration was passed from plaintiff to defendant no.1 hence the document Ex.P.1 become invalid document and on the basis of this document Ex.P.1 the plaintiff cannot become absolute owner of the suit schedule property. The plaintiff has not produced any documents to show that he alone invested the money in order to construct the house in the suit schedule property.
18. It is come in the evidence of PW1 that defendants are residing in first floor of the suit schedule building and plaintiff and his wife and children are residing in the ground floor of the suit schedule building. PW1 has deposed that he and his mother and sister i.e., defendant no.1 and 2 are all residing in the suit schedule property. It is not the contention of the plaintiff is that he after purchasing 79 O.S.4587/2018 the suit schedule property on 28.03.2005 allowed defendant no.1 and 2 to continue in the suit schedule property. There is absolutely no evidence on the side of the plaintiff to show that he has taken the possession of the entire suit schedule property from the defendant no.1 by virtue of Ex.P.1 sale deed dated 25.03.2018. Under such circumstances it cannot be held that this document Ex.P.1 sale deed was acted upon.
19. Issue No.1 is framed casting burden on the plaintiff to prove his right, title, interest and possession over the suit schedule property. PW1 in his cross examination clearly admitted the suggestion that defendant no.1 and 2 are also in possession of the suit schedule property. During the course of cross examination of DW1 the learned counsel for the 80 O.S.4587/2018 plaintiff made suggestion that the plaintiff and defendants are all residing in suit schedule property till today. DW1 admitted this suggestion. That itself sufficient to hold that the plaintiff and defendants are in possession of the suit schedule property. Since in this suit the plaintiff sought for the relief of permanent injunction against the defendants the plaintiff shall prove his exclusive possession over the suit schedule property. But an oral evidence of PW1 and DW1 would go to show that the defendants are also in possession of the suit schedule property. The plaintiff has failed to prove his exclusive right, title, interest and possession over the suit schedule property. There is no sufficient evidence to answer this issue in favor of the plaintiff. The plaintiff has failed to prove source of title of the suit schedule property. Since the plaintiff has failed to prove that 81 O.S.4587/2018 how their family including plaintiff and defendant no.1 acquired the suit schedule property hence based on Ex.P.1 sale deed no title could be passed to the plaintiff. There is no cogent evidence to show that consideration amount passed under this document Ex.P.1 sale deed. In Ex.P.1 there is no specific mention regarding how defendant no.1 acquired the title over the suit schedule property. The plaintiff/PW.1 in one stretch taken contention that he had purchased suit schedule property in the name of defendant no.1 in the year 1993 but in another stretch taken contention that there was no such sale deed of the year 1993 existed but only GPA in the name of defendant no.1 is there. The plaintiff neither produced any title deeds of the year 1993 nor produced GPA which he claims is in his possession. Plaintiff has not disclosed from whom the suit 82 O.S.4587/2018 schedule property was purchased in the year 1993. The plaintiff has failed to prove his absolute right, title, interest and possession over the suit schedule property. Hence, I answered issue no.1 in the negative.
20. Issue No.7:- The defendants have taken contention that the plaintiff has not properly valued the suit and the court fee paid by the plaintiff is insufficient. DW1 even though in his examination-in- chief affidavit has deposed that valuation of the suit and the court fee paid on the plaint is not proper but he has not deposed any thing about the actual court fee payable by the plaintiff. In this suit the plaintiff has valued the suit property for the purpose of court fee at Rs.22,20,000/- and by valuing the suit u/s 38(1) of Karnataka Court fee and Suit Valuation 83 O.S.4587/2018 Act paid court fee of Rs.1,18,425/-. For the prayer of injunction the plaintiff has paid court fee of Rs.25/- as required u/s 26 of KCF and SV. Act. In all the plaintiff has paid court fee of Rs.1,18,450/-. During the course of cross examination of PW1 nothing is elicited from his mouth to show that the court fee paid by the plaintiff is insufficient. This court of the opinion that the court fee paid by the plaintiff is sufficient. Hence, I answered issue no.7 i n the negative.
21. Issue No. 6: The plaintiff has taken contention that the defendants are eagerly trying to sell the entire suit schedule property and enjoy its fruits depriving the legitimate rights of the plaintiff. In this suit the plaintiff has also sought for the relief of permanent injunction to restrain the defendant No. 1 84 O.S.4587/2018 to 3, their agents, or servants or any person claiming under / through them from interfering with the peaceful possession and enjoyment of the suit schedule property. In the examination-in-chief of PW1 he has not deposed anything about to whom the defendants are trying to alienate the suit schedule property. PW1 has deposed that he is in possession of the property along with him family members and now there is threat of his dispossession from his property by the defendants. According to the plaintiff their exists multi-storied building in the suit schedule property. It is the contention of the plaintiff is that he had constructed the two storied residential building in the suit schedule property. PW1 in his cross-examination has deposed that his mother defendant No. 1 and his sister defendant No. 2 are all residing in the suit schedule property. He 85 O.S.4587/2018 has deposed that the defendant No. 1 and 2 are residing in the 1 st floor house in the suit schedule property and he is residing in the ground floor house. There is no specific pleading on the side of the plaintiff to say in which portion he is residing in the suit schedule property. There is also no specific pleading regarding the defendants are residing in which portion of the suit schedule property. In the cross-examination of DW1 a suggestion is put to him that the plaintiff and defendants are all residing in the same house till today. DW1 has admitted the suggestion that till today the plaintiff and defendants are residing in the same house. Since it has come in the evidence that the plaintiff and defendants are residing in the same house situated in the suit schedule property, under such circumstances the alleged interference by the defendants is not 86 O.S.4587/2018 believable. More than that the plaintiff has not stated the date on which the defendants are tried to interfere with his possession over the suit schedule property. When the evidence of PW1 and DW1 shows that the plaintiff and defendants are in joint possession of the suit schedule property under such circumstances the contention of the plaintiff regarding the alleged interference of the defendants is not believable. If at all the plaintiff is in exclusive possession over the suit schedule property the matter would have been different. On perusal of the oral evidence of PW1 and DW2 it is very clear that the defendants are also in possession of the suit schedule property. The plaintiff has produced the document Ex.P12 copy of complaint lodged to the police wherein he has stated regarding creation of the General Power of Attorney by the defendants by 87 O.S.4587/2018 forgery. In his complaint as per Ex.P12 there is no such allegation that the defendants are trying to dispossess him from the suit schedule property. While discussing issue No. 2 to 5 this court held that the plaintiff proved that General Power of Attorney dated 4.10.2017 is an outcome of fraud and forgery and gift deed dated 13.10.2017 executed by defendant No. 2 is a General Power of Attorney holder is null and void and not binding upon the plaintiff and the gift deed dated 27.2.2018 executed by defendant No. 1 is null and void and not binding upon the plaintiff. Since the plaintiff has sought for the relief of permanent injunction to restrain the defendant from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property it is for the plaintiff to prove that the defendants were tried to interfere with the 88 O.S.4587/2018 plaintiff's peaceful possession and enjoyment over the suit schedule property and tried to dispossess him from the suit schedule property. There is no cogent evidence on the side of the plaintiff to prove the alleged interference of the defendants even though it is proved that the General Power of Attorney dated 4.10.2017 is an outcome of fraud and forgery and gift deed dated 13.10.2017 and gift deed dated 27.3.2018 are null and void and not binding on the plaintiff. The plaintiff has failed to prove the alleged interference over the possession and enjoyment of the plaintiff over the suit schedule property. Hence I answer issue No. 6 in the Negative.
22. Issue No. 8: In this suit the plaintiff has sought for the relief to declare him as the absolute owner 89 O.S.4587/2018 and in possession of the suit schedule property and to declare that the General Power of Attorney dated 4.10.2017 is an outcome of fraud and forgery and to pass judgment and decree that gift deed dated 13.10.2017 and 27.3.2018 are null and void and outcome of fraud transaction and not binding on the plaintiff. The plaintiff has also prayed for permanent injunction to restrain the defendants from interfering with the possession lawful possession and enjoyment of the plaintiff over the entire suit schedule property. While discussing issue No. 2 to 5 as the plaintiff proved that the General Power of Attorney dated 4.10.2017 is an outcome of fraud and forgery and also proved that the gift deed dated 13.10.2017 executed by defendant No. 2 as the General Power of Attorney holder of him is null and void and not binding upon the plaintiff and also proved that the 90 O.S.4587/2018 gift deed dated 27.3.2018 executed by defendant No. 1 in favour of defendant No. 3 is null and void and not binding on the plaintiff. The plaintiff is entitled for the relief of declaration to declare that the General Power of Attorney dated 4.10.2017 is an outcome of forgery and fraud and the gift deed dated 13.10.2017 executed by defendant No. 2 as General Power of Attorney holder of him is null and void and not binding upon the plaintiff and also proved that the gift deed dated 27.3.2018 executed by defendant No. 1 in favour of defendant No. 3 is null and void and not binding on the plaintiff, hence the plaintiff is entitled for the relief of declaration to declare that the General Power of Attorney dated 4.10.2017 is an outcome of fraud and forgery and the gift deed dated 13.10.2017 executed by defendant No. 2 as General Power of Attorney holder of plaintiff in favour of 91 O.S.4587/2018 defendant No. 1 as null and void and as an outcome of fraudulent transaction and not binding on the plaintiff. The plaintiff is also entitled for the relief to declare that the gift deed dated 27.3.2017 executed by defendant No. 1 in favour of defendant No. 3 as null and void and not binding on the plaintiff.
23. In this suit the plaintiff has sought for the relief to declare that the plaintiff is the absolute owner and in possession of the suit schedule property and prayed to grant permanent injunction to restrain the defendants from interfering with the peaceful possession and enjoyment over the suit schedule property. While discussing issue No. 1 this court held that the plaintiff has failed to prove his exclusive right, title interest and possession over the suit 92 O.S.4587/2018 schedule property. The defendants are also found in possession of the suit schedule property. In this suit the plaintiff has not claimed the relief of recovery of possession of the suit schedule property from the defendants. Even though the plaintiff very much knows that the defendants are in possession of the suit schedule property by occupying the same along with the plaintiff the plaintiff has not sought for the relief of recovery of possession of the suit schedule property from the defendants. It is now settled principle of law is that when the parties are out of possession of the property the parties should sue for the recovery of possession over the suit schedule property. Whenever the parties sought for the relief of declaration of title over the suit schedule property if they are out of possession of the property then such a situation the parties should pray for 93 O.S.4587/2018 declaration of their ownership and consequential relief of recovery of possession from the opposite party. In this suit the plaintiff has not sought for recovery of possession of the suit schedule property from the defendants. PW1 in his cross-examination has clearly stated that the defendants are also in possession of the suit schedule property. During the course of cross-examination of DW1 a suggestion is made to him that the plaintiff and defendants are residing in the suit schedule house. The plaintiff knowing very well that the defendants are also in possession of the suit schedule property has failed to seek for the relief of recovery of possession of the suit schedule property. The plaintiff in the cause title of the plaint itself has mentioned the residential address of the defendants as No. 14/1, 10 th cross, 12 th main road, Hosakere road, Gandhi Layout, 94 O.S.4587/2018 Byatarayanapura, Mysore road - 560 026 which is address of the suit schedule property. As per the cause title in the plaint the plaintiff as well as the defendants are residing in the same house, i.e., in the suit schedule property. The Hon'ble Supreme Court in a catena of decisions held that when the plaintiff is out of possession of the property mere suit for declaration of ownership without seeking recovery of possession is not maintainable. In the decision reported in (2008) 4 SCC 594 between Anathula Sudhakar Vs. P.Buchi Reddy (dead) by legal representatives and others by summarizing the position in regard to suits for prohibitory injunction relating to immovable property held that (a) where a cloud is raised over the plaintiffs title and he does not have possession, a suit for declaration and possession, with or without a consequential 95 O.S.4587/2018 injunction is the remedy where the plaintiffs title is not in dispute or under a cloud, but he is out of possession he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiffs lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor. (b) As a suit for injunction simplicitor is concerned only with possession normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where dejure possession has to be established on the basis of title to the property as in the case of vacant sites the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on 96 O.S.4587/2018 title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title ................
24. In view of my findings on issue No. 1 as the plaintiff has failed to prove his exclusive right, title, interest and possession over the suit schedule property and in view of my findings on issue No. 6 that the plaintiff has failed to prove the alleged interference the possession of the plaintiff by the defendants over the suit schedule the plaintiff is not entitled for the relief of declaration of ownership and for the relief of permanent injunction against the defendants as prayed in this suit. Hence I answer issue No. 8 partly in the Affirmative by holding that the plaintiff is entitled for the relief of declaration to declare that the General Power of Attorney dated 97 O.S.4587/2018 4.10.2017 is an outcome of fraud and forgery and to declare that the gift deed dated 13.10.2017 as null and void and is an outcome of fraudulent transaction and not binding on the plaintiff and to pass the judgment and decree that the gift deed dated 27.3.2018 executed by defendant No. 1 in favour of defendant No. 3 as null and void and not binding on the plaintiff but the plaintiff is not entitled for the relief to declare that he is the absolute owner and in possession of the suit schedule property and also not entitled for the relief of permanent injunction to restrain the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property. Accordingly I answer issue No. 8 partly in the Affirmative.
98 O.S.4587/2018
25. Issue No.9: In view of my findings on the above issue No. 1 to 7, I proceed to pass the following:
ORDER The suit of the plaintiff is partly decreed with cost.
It is hereby declared that the alleged fraudulent General Power of Attorney dated 4.10.2017 is an outcome of fraud and forgery.
It is hereby declared that the gift deed dated 13.10.2017 executed by defendant No. 2 as the General Power of Attorney holder of plaintiff registered as document CMP-1-04608-2017-18 and stored in CD No. CMPD 187 before the Senior Sub-Registrar, Basavanagudi (Chamarajpet) 99 O.S.4587/2018 Bangalore as null and void and is outcome of fraudulent transaction and not binding on the plaintiff.
It is hereby declared that the gift deed dated 27.3.2018 executed by defendant No. 1 registered as document No. CMP-1-08894-2017-18 and stored in CD No. CMPD 197 before the Senior Sub-Registrar, Basavanagudi, (Chamarajpet), Bangalore as null and void and is not binding on the plaintiff.
The prayer of the plaintiff to declare him as absolute owner and in possession of the suit schedule property and for the relief of permanent injunction to restrain the defendant No. 1 to 3 from interfering with the peaceful lawful possession and enjoyment of the plaintiff over the suit 100 O.S.4587/2018 schedule property is rejected as the plaintiff has failed to prove his exclusive right, title, interest and ownership over the suit schedule property and failed to prove his exclusive possession over the suit schedule property.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 25th day of January 2022.) (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - Varadaraja Witness examined for the defendant/s :
DW1 - Ullas.C 101 O.S.4587/2018 Documents marked for the plaintiff/s :
Ex.P1 - sale deed
Ex.P1(a) - Signature
Ex.P1(b) - Signature
Ex.P2 - Khatha certificate
Ex.P3 - Khatha extract
Ex.P4 - 6 tax paid receipts
Ex.P5 - encumbrance certificate for 2004-05
Ex.P6 - Covering letter issued by the RTI
Officer enclosing the document
sought by the plaintiff.
Ex.P7 - Copy of General Power of Attorney
dated 4.10.2017 obtained through RTI. Ex.P8 - Copy of gift deed dated 13.10.2017 obtained through RTI, Ex.P9 - Khatha certificate standing in the name of defendant No. 1 obtained through RTI.
Ex.P10 - Khatha extract standing in the name of defendant No. 1 obtained through RTI.102 O.S.4587/2018
Ex.P11 - Copy of gift deed dated 27.3.2018 executed by defendant No. 1 in favour of defendant No. 3.
Ex.P12 - Copy of complaint dated 19.6.2018 given by the plaintiff against the defendants to the police.
Ex.P13 - Copy of affidavit given by defendant No. 1 and 2 at the time of registration of gift deed dated 13.10.2017.
Ex.P14 - Copy of affidavit given by defendant No. 1 and 3 at the time of registration of gift deed dated 27.3.3018.
Ex.P15 - Certified copy of the plaint in O.S.No.1564/2012.
Ex.P16 - Certified copy of cross-examination portion of deposition of PW1 Nanjamma in O.S.No.1564/2012.
Ex.P17 - Information given by RTI Officer to the plaintiff on 25.8.2021.
103 O.S.4587/2018Documents marked for the defendant/s :
Ex.D1 - Ex.D1 is the General Power of
Attorney dated 4.10.2017
Ex.D2 - gift deed dated 13.10.2017
Ex.D3 - encumbrance certificate from 1.4.2017
to 16.10.2017
Ex.D4 - Fee receipt for transfer of Khatha on
16.3.2018
Ex.D5 - gift deed dated 27.03.2018
Ex.D6 - Documents regarding transfer of
electricity connection
Ex.D7-9 - Tax paid receipts
Ex.D10 - encumbrance certificate of 27.3.2018
Ex.D11 - Khatha
Ex.D12 - Khatha extract
Ex.D13 - Uttara patra
(Mohan Prabhu )
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
104 O.S.4587/2018 Late :Yamaiah Nanjamma(Mother) (DefendantNo.1) Varadaraja(son) Hemavathi(Daugher) (Plaintiff) (Defendant No.2) Ullas.C. (Grandson) (Defendant No.3) 105 O.S.4587/2018 Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiff is partly decreed with cost.
It is hereby declared that the alleged fraudulent General Power of Attorney dated 4.10.2017 is an outcome of fraud and forgery.
106 O.S.4587/2018
It is hereby declared that the gift deed dated 13.10.2017 executed by defendant No. 2 as the General Power of Attorney holder of plaintiff registered as document CMP-1-04608-2017-18 and stored in CD No. CMPD 187 before the Senior Sub-Registrar, Basavanagudi (Chamarajpet) Bangalore as null and void and is outcome of fraudulent transaction and not binding on the plaintiff.
It is hereby declared that the gift deed dated 27.3.2018 executed by defendant No. 1 registered as document No. CMP-
1-08894-2017-18 and stored in CD No. CMPD 197 before the Senior Sub-Registrar, Basavanagudi, (Chamarajpet), Bangalore as null and void and is not binding on the plaintiff.
107 O.S.4587/2018
The prayer of the plaintiff to declare him as absolute owner and in possession of the suit schedule property and for the relief of permanent injunction to restrain the defendant No. 1 to 3 from interfering with the peaceful lawful possession and enjoyment of the plaintiff over the suit schedule property is rejected as the plaintiff has failed to prove his exclusive right, title, interest and ownership over the suit schedule property and failed to prove his exclusive possession over the suit schedule property.
Draw decree accordingly.
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
108 O.S.4587/2018SCOPE OF POWER OF ATTORNEY.
13. A power of attorney is not an instrument of transfer in regard to any right, title of interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him ( see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In state of Rajasthan vs Basant Nehata2005(12) SCC 77, this court held:
" A grant of power of attorney is essentially government 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 transactions or to manage the affairs of the principal generally 109 O.S.4587/2018 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, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document o convenience. Execution of power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power or attorney, we have noticed herein before, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest. It is revocable. The donee is exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the 110 O.S.4587/2018 power of attorney and convev title on behalf of the grantor.
Conclusion
15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M Jain V. Canara Bank94(2001) DLT 841, that the " concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintended misleading the general public into thinking that SP/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be valid substitute for a a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law. 111 O.S.4587/2018