Karnataka High Court
Jossy Rosemary W/Olate Ravishankar vs M Rajappa S/O Late Sri. Mariswamappa on 11 July, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA BANGALORE
DATED THIS THE 11TH DAY OF JULY 2013
BEFORE
HON' BLE DR. JUSTICE JAWAD RAHIM
R.S.A.NO.1961/2008
BETWEEN:
1. JOSSY ROSEMARY,
W/O LATE RAVISHANKAR,
AGED ABOUT 40 YEARS,
R/AT NO.16, MANJULA BUILDING,
VINAYAKA TEMPLE STREET,
VENKATESHAPURAM,
BANGALORE - 560 045.
2. LOVELY ROSE MARY,
W/O RAMAMURTHY,
AGED ABOUT 45 YEARS,
NO.108 & 109, BERATENA AGRAHARA,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE - 71.
..APPELLANTS
(BY SHRI.JANARDHANA G, ADVOCATE)
AND:
M.RAJAPPA,
S/O LATE SRI.MARISWAMAPPA,
AGEED ABOUT 59 YEARS,
R/AT NO.103, 2ND CROSS,
3RD PHASE, J.P.NAGAR,
BANGALORE - 50.
...RESPONDENT
(NOTICE TO RESPONDENT IS DISPENSED WITH)
2
RSA FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 19.7.2008 PASSED
IN RA NO.149/2006 ON THE FILE OF THE PRL.
CIVIL JUDGE (SR.DN) BANGALORE RURAL
DISTRICT, BANGALORE DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE
DATED 6.4.2006 PASSED IN OS NO.1165/2004 ON
THE FILE OF THE PRL.II CIVIL JUDGE (JR.DN),
BANGALORE RURAL DISTRICT, BANGALORE ETC.
THIS APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Unsuccessful plaintiff is in appeal against the concurrent finding recorded by the Trial Court and the Appellate Court to non-suit him for a decree of specific performance.
2. The appeal has been admitted to consider the following substantial questions of law:
" 1) Whether the findings of the Courts below that Ex.P.1 to P.3 does not confer any right, title or interest in respect of suit schedule properties, in favour of the plaintiff 3 is contrary to Section 202 of the Indian Contract Act and the principles of law, laid down by Division Bench of this Court in Mohammad @ Podiya -Vs- Assistant Commissioner, IlR 1993 Karnataka 2306?
2) Whether the judgment of dismissal of the suit passed by the Courts below is contrary to the contents of Ex.P1 to Ex.P3 on record?
2. The respondent though served with the notice of this appeal, has remained unrepresented.
3. Learned Counsel Sri.Janardhan is present. I have heard him and perused the records in supplementation thereto, which reveals:
a) The appellant herein Jossy Rosemary along with one Lovely Rose Mary instituted a suit in O.S.No.1165/2004 on the file of the Principal II Civil Judge (Jr.Dn), Bangalore Rural District, Bangalore, seeking a decree to direct the defendant-Rajappa to execute necessary deeds of conveyance to transfer all 4 the schedule property in terms of the agreement dated 28.12.1989.
b) In support of the relief so sought, the plaintiffs averred that defendant-Rajappa was the absolute owner of the property bearing site No.108 & 109 formed out of survey No.5/2 of Beratena Agrahara, measuring 40X60 feet and had transacted to sell the property to their father-M.M. Perumal and having received Rs.20000/- as sale consideration, he executed a deed of General Power of Attorney in their father's favour conferring upon him all such powers to execute the deeds of sale to enjoy the property or deal with it in any manner he feels proper. He supported the said power of attorney with another declaration in the form of an affidavit declaring that he had received Rs.20000/- towards sale consideration and there was nothing due or owing to be paid to him and thus confirmed the fact of sale in favour of Perummal.5
b) In consideration of the sale price of Rs.20000/- in its entirety, he delivered physical possession of the schedule property to their father- Perumal from which date he continued to be in physical possession and enjoyment.
c) They further averred, upon the death of their father-M.M. Perumal, they (plaintiffs) being his legal heirs continued to enjoy the schedule property as absolute owner thereof and have been in uninterrupted possession and enjoyment from 28.12.1989.
d) According to them, at the time of sale transaction between Rajappa and their father- M.M. Perumal, registration of sale deed in respect of revenue sites was restrained by the Government, consequent to which despite paying entire sale consideration, their father could not obtain the sale deed and Rajappa could not execute the sale deed. There is an affirmative statement in the plaint that Rajappa had not disputed their claim, but in view of the fact that sale deed has not been executed in their 6 favour, it became necessary to direct to execute such deed of conveyance as is required to complete the sale in their favour in terms of the transaction of sale between the defendant and their father dated 28.12.1989
e) The defendant-Rajappa entered contest in the suit and resisted the plaintiffs' claim denying the transaction between the plaintiffs' father and him. He denied he had agreed to sell the property to plaintiffs' father and thus disputed the plaintiffs' claim.
f) Based on the material propositions and the pleadings of the parties, the learned trial Judge framed the following issues for consideration:
1) Whether the plaintiffs prove that the defendant agreed to sell the suit schedule property in favour of their father Sri. M.M.Perumal Samual had executed G.P.A. and affidavit dated 28.12.1989?
2) Whether the plaintiffs prove that they are always ready and willing to perform their part of contract in obtaining the 7 registered sale deed from the defendant as they derived title to the suit property by virtue of the Will i.e. declaration dated 22.2.2002?
3) Whether the plaintiffs are entitled for the relief sought?
4) What order or decree? "
and in the enquiry that ensued, the first plaintiff tendered evidence as PW1 and she relied on 7 documents, while the defendant remained out of contest and let no evidence.
g) Despite unchallenged testimony of the plaintiffs and undisputed documents filed by them, the learned Trial Judge found no favour with the plaintiffs' claim and dismissed the suit basically on the ground that the power of attorney executed by the defendant and co-related documents cannot be treated as an agreement to enforce specific performance and thus dismissed the suit.8
h) Assailing the said judgment and decree of the trial court, the plaintiffs were in appeal in R.A.No.149/2006, reiterating the same plea where the Appellate court did not find favour and rejected the appeal by the impugned judgment.
i) Against both the judgments of the trial court, the plaintiffs are in second appeal.
4. Learned counsel Sri. Janardhan for the appellants would submit, the documents produced by the plaintiffs evidences the transaction between their father-M.M. Perumal and the defendant. The recitals of Ex.P.1-General Power of Attorney, Ex.P.2- affidavit as also Ex.P.3- declaration signed and executed by the defendants proclaims that he has sold the property after receiving the entire sale consideration and there was nothing to be paid. He submits in such circumstances, all that remains to be done was to get the sale deed executed in favour of the plaintiffs as legal heirs of the transferring under the General Power of Attorney-Ex.P.1. He submits, no doubt, 9 Ex.P.1,Ex.P.2 and Ex.P.3 are not described as "
agreement of sale". But the recital in each of these documents evidences the transaction of sale and had to be enforced by the court.
5. With regard to the question of limitation, he submits, as the Government had imposed embargo of the registration of sale deeds in respect of revenue lands, sale deed could not be executed. But the defendant had delivered physical possession of the property to plaintiffs' father who continued to enjoy the same and after his demise plaintiffs have continued to exercise their right of ownership. Thus he submits the General Power of Attorney-Ex.P.1 should have been considered by the trial court as the authority conferred by the defendant to complete the sale transaction and it should have been enforced by the court.
6. He further submits, Ex.P.2 and P.3 affirm the intention of the parties and therefore, they had 10 evidentiary value as envisaged under section 202 of the Indian Contract Act.
7. In support of his contention, he relies on the ruling of the Division Bench of this court in the case of Mohammed @ Podiya Vs. Assistant Commissioner, ILR 1993, Kar. 2306.
8. The last contention urged by him is, the plaintiff had not sought from the court a declaration that Ex.P.1-power of Attorney is the deed of conveyance. He submits, under Ex.P.1, defendant- Rajappa had claimed he had received the sale consideration and had conferred absolute authority on M.M. Perumal to deal with the property in the manner he likes, and except that registration of formalities were complete.
9. Thus he submits denial of decree by the trial court and confirmation of the same by the learned First Appellate Judge is erroneous and unjust.
10. In view of the submission of appellant's counsel recorded in paragraphs supra, it is necessary 11 to refer to the scope of applicability of section 202 of the Indian Contract Act, 1872 to Ex.P.1 to Ex.P.1- the power of Attorney, Ex.P.2- the affidavit and Ex.P.3- the declaration said to have been executed by the defendant-Rajappa.
11. At the outset, there was no reason for the court below to disbelieve Ex.P.1,Ex.P.2 and Ex.P.3 executed by the defendant, for the simple reason despite service of summons and entering contest, he did not impeach the testimony of PW1 nor the questioned the genuineness of Ex.P.1P,Ex.P.2 and Ex.P.3. What remains is to see to what extent it is binding and what relief the appellant/plaintiffs could derive from the said documents.
12. Sec.202 of the Indian Contract Act envisages 'wherein agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.' 12
13. The terminology in Sec. 202 of the Indian Contract Act is explicit. It refers to interest which an agency may have in the subject matter i.e., property to which the agency refers. In the instant case, the defendant has appointed the plaintiffs' father-M.M. Perumal as his power of Attorney , which in law has to be treated as his agent. Ex.P.2 and Ex.P.3 show that the defendant has acknowledged the receipt of entire sale consideration and has virtually relinquished his all right, title and interest, affirmed to the fact that in terms of sale transaction he has executed Ex.P.1- General Power of Attorney. Therefore, Ex.P.1-GPA has to be treated as deed executed by Rajappa in consideration of the price in respect of the immovable property in acknowledgement of interest created in favour of the agent vide Ex.P.2 and P3.
14. Therefore, it is evident that M.M. Perumal had an interest in the property in respect of which Ex.P.1 -Power of Attorney has been executed by the defendant-Rajappa(owner of the property/transferor). 13 On the basis of such undisputed facts, sec. 202 of the Indian Contract Act certainly applied and in the absence of express contract to the contrary, Ex.P.1- power of attorney could not have been terminated by the defendant-Rajappa. At this juncture, it is necessary to record that defendant-Rajappa has not taken a plea that he had cancelled Ex.P.1 executed in favour of M.M. Perumal.
15. Now what remains is to consider whether Ex.P.1-Power of Attorney, Ex.P.2 affidavit and Ex.P.3 declaration could be treated as " deeds of transfer of title/conveyance" or they have to be treated as agreement of sale enforceable against the executant.
16. This issue had come up for consideration before the Apex court in the case of SURAJ LAMP AND INDUSTRIES PRIVATE LIMITED (2) THROUGH DIRECTOR -VS - STATE OF HARYANA AND ANOTHER reported in (2012) 1 Supreme Court Cases 656. Before the Apex court, a similar question was raised and when the agent as Power of attorney claimed 14 himself to be the owner of the property treating the deed of power of attorney as document of conveyance/transferor. The Apex court considered the deed so produced and relying on attending circumstances, opined that the documents in the form of affidavit, power of attorney and declaration should be scrutinized for ascertainment as to whether it has created any jural relationship of transferee and transferor and if it is seen from the recital that jural relationship of such a nature is created, then the document by itself cannot be considered as deed of transfer or conveyance conveying by way of sale a immovable property, but such documents are to be treated as "agreements" to be enforced against the executant.
17. The observation of the Apex court to this effect in para-26 of the judgment cited supra is relevant. It reads thus:
" 26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/will transactions are 15 not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said "SA/GPA/will transactions"
may also be used to obtain specific performance or to defend possession under Section 53-A of the T.P. Act. If they are entered before this day, they may be relied upon to apply for regularisation of allotments/leases by development authorities. We make it clear that if the documents relating to "SA/GPA/will transactions" have been accepted/acted upon by DDA or other developmental authorities or by the municipal or Revenue Authorities to effect mutation, they need not be disturbed, merely on account of this decision."
18. From the proposition of law laid by the Apex Court regarding evidentiary value of such documents, two legal aspects have emerge. The first is, the 16 document like the General Power of attorney, affidavit and declarations entered into between the parties before rendition of judgment in the case of SURAJ LAMP AND INDUSTRIES PRIVATE LIMITED, proved to have been acted upon by any statutory authority or company's either to confer title or make allotment of immovable properties, shall not be disturbed. In other words, if on the basis of the General power of Attorneys declaration and affidavits, the statutory authority like BDA or Government instrumentality/statutory authority has granted any allotment or transfer any property, such transactions are saved. However, after rendition of the judgment in the case of SURAJ LAMP AND INDUSTRIES PRIVATE LIMITED, all such documents like GPA/SA, Affidavit by declarations are to be treated as agreements entitling the transferee to enforce it in a court of law for specific performance of the contract covered by it.
19. In this view, I am satisfied the trial court and Appellate court have seriously erred in dismissing 17 the suit treating Ex.P.1, Ex.P2 and Ex.P.3 as merely declarations not amounting to agreement of sale for specific performance. I am further satisfied, the trial court and Appellate court have failed to examine the legal issue about evidence of transaction covered by Ex.P.1, Ex.P2 and Ex.P.3 against the defendant- Rajappa. Thus the questions of law framed above are answered in favour of the appellant and against the defendant-Rajappa.
20. Consequent to it, I am satisfied the judgment of the trial court dismissing O.S.No.116/.2004 filed by the plaintiff and the judgment in appeal RA No.149/2006 on the file of the Prl. Civil Judge,(Jr.Dn.) Bangalore Rural District, Bangalore, impugned in this appeal are unsustainable. However, as the trial court has not recorded finding on the question of nature of the document executed by the defendants, the suit O.SNO.1165/2004 is remanded to the file of the learned Civil Judge (Jr.Dn.) Bangalore Rural District, Bangalore, to treat the 18 agreement Ex.P.1-Power of Attorney, Ex.P.2-affidavit and Ex.P.3 declaration between the defendant and plaintiffs' father M.M. Perumal and then to decide on merit about the plaintiffs' entitlement for specific performance of the said agreement in accordance with law.
The appeal is therefore, disposed of accordingly.
Sd/-
JUDGE Msu/psg*