Bangalore District Court
Narasimhan T M vs Prism Lights on 11 March, 2025
KABC170023812022
IN THE COURT OF LXXXVI ADDL. CITY CIVIL & SESSIONS
JUDGE, (COMMERCIAL COURT) BENGALURU (CCH-87)
Dated this the 11th day of March, 2025
Present: SRI. JITHENDRANATH C.S., B.A., LL.M.,
LXXXVI ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
Com.O.S.No.1276/2022
BETWEEN:
PLAINTIFFS : T. M. Narasimhan
S/o Late Thammaiah
No.17, 1st Cross, Srinivasa Colony,
K.H. Road, Bengaluru - 560 027.
Rep. by his GPA holders
Sri. S.Raghavendra and
Sri. R. Manjunath.
Since deceased represented by his LRs
1. Lakshmi
W/o Eshwar,
Aged about 82 years
2. Parvathi
W/o Shamanna,
Since deceased by LRs
2(a). S.R.Eshwari
D/o Parvathi
Aged about 56 years
2(b). S.R. Devi
D/o Parvathi,
Aged about 51 years
2 Com.OS.No.1276/2022
3. Anjana Devi
W/o H. Rajanna,
Aged 76 years,
4. Bhavani,
W/o H.N.Somashekar
Aged about 68 years
All R/at:
17, 1st Cross, Srinivas Colony,
K.H.Road, Bengaluru - 560 027
(By Sri.Anil Kumar Shetty, Advocate)
- AND -
DEFENDANTS : 1. Prism Lights
No.64, Richmond Road,
Bengaluru - 560 025
Rep. by its Partners
Arpith Baliya and Sunitha Baliya
2. Arpith Baliya
Partner Prism Lights,
No.64, Richmond Road,
Bengaluru - 560 025
3. Sunitha Baliya (Dead)
Partner Prism Lights
No.64, Richmond Road,
Bengaluru - 560 025
4. Suma Srinivas
W/o T.M.Srinivas,
Aged about 53 years
5. Deepthi Srinivas
D/o T. M. Srinivas,
Aged about 26 years
Defendants No.4 and 5 are
R/at No.12, 1st Floor, 2nd Cross,
Srinivasa Colony, Mission Road,
Bengaluru - 560 027
(D1, 2, 4 & 5 by Sri.Praveen R., Advocate;
D3 - Dead)
3 Com.OS.No.1276/2022
Date of Institution : 07.09.2022
Nature of the suit : For ejectment and damages
Date of the commencement
of recording of the evidence : 11.03.2024
Date on which Judgment
: 11.03.2025
was pronounced
Total Duration : Year/s Month/s Day/s
02 06 04
(JITHENDRANATH C.S.)
LXXXVI Addl. City Civil & Sessions Judge
(Commercial Court), Bengaluru
JUDGMENT
Late Sri.T.M.Narasimhan had filed this suit through his GPA holders Sri. S.Raghavendra and Sri. R.Manjunath against defendants No.1 to 5 seeking a judgment and decree to direct the defendants No.1 to 3 along with defendants No.4 and 5 to vacate and hand him over a vacant possession of the suit schedule property bearing Corporation No.36/1 and 36/2 situated at Richmond Road, Bengaluru-25. The deceased plaintiff had also sought for a direction to the defendants to pay him Rs.1,00,000/- per month from the date of the suit till handing over of the possession.
4 Com.OS.No.1276/2022
2. The deceased plaintiff's case in a nut shell was that, he was the absolute owner of the entire land and building known as 'N.R.Chambers', situated at No.36, Richmond Road, Bengaluru. The deceased plaintiff was the lessee under the erstwhile owners of the suit property under a registered Lease Deed dated 10.12.1982 for a period of 38 years commencing from 15.01.1983. The leasehold rights of the plaintiff was subjected to contribution to the partnership firm under the name and style 'N.R.Chambers'. One Sri.T.M.Srinivas, the husband of defendant No.4 and father of defendant No.5 was one of the partners of the said firm. The partnership firm was dissolved on 31.03.1996. In terms of the Dissolution Deed the lease hold rights of the suit property was allotted to Sri.T.M.Srinivas. The said T.M.Srinivas inducted the defendant No.1 another partnership firm as his sub-tenant with effect from 21.11.2005 on a monthly rent of Rs.39,000/- to be enhanced periodically. Defendants No.2 and 3 are the partners of defendant No.1 firm.
3. The original lease dated 10.12.1982 was expired on 14.01.2021 by efflux of time. On 16.10.2003 and 24.03.2005, the erstwhile owners of the suit property had executed registered 5 Com.OS.No.1276/2022 Sale Deeds in favour of the deceased plaintiff conveying their rights, title and interest over the suit property in his favour absolutely forever. T.M.Srinivas died intestate on 13.05.2020 leaving behind him the defendants No.4 and 5 as his sole surviving legal heirs. After demise of T.M.Srinivas, the defendants in connivance with each other started protracting the vacation of the schedule property and therefore, deceased plaintiff was compelled to issue a termination notice dated 18.01.2022. On receipt of the notice, defendants issued a reply, but, they did not vacate the premises. The deceased plaintiff, therefore, had filed the present suit.
4. The defendants No.4 and 5 have filed the written statement, the defendants No.1 and 2 have adopted the same. The defendant No.3 was no more even at the time of filing of the suit. The version of defendants No.4 and 5 is that, the present suit is based upon the Lease Deed dated 21.11.2005 and the deceased plaintiff was not a party to the said Lease Deed, as such the present suit is not maintainable. They contended that, the dispute between the parties is not a commercial dispute. They contended that, the termination notice was not issued to the partners of reconstituted partnership firm. They disputed 6 Com.OS.No.1276/2022 the authenticity of general power of attorney said to have executed by deceased plaintiff Sri.T.M.Narasimhan. They contended that, the suit is not properly valued and the court fee paid is insufficient. In the para wise reply the defendants No.4 and 5 have admitted that, T.M.Srinivas had inducted the defendant No.1 as his tenant under Lease Deed dated 21.11.2005 on a monthly rent of Rs.39,000/-. They averred that, deceased plaintiff was not the owner of suit property and therefore, he is not entitled for any of the reliefs as sought for. Hence, they prayed to dismiss the suit.
5. During the pendency of the suit, the original plaintiff T.M.Narasimhan died. He was unmarried and issueless. Therefore, his sisters being class-II heirs came on record. They, however, have not filed any further pleadings consequent upon their arrival as LRs.
6. On the basis of the above pleadings, the court has framed the following Issues:
ISSUES (1) Whether the LRs of deceased plaintiff proves that defendants 1 & 3 were sub-tenants under T.M.Srinivas and after his demise under the 7 Com.OS.No.1276/2022 defendants 4 & 5 and hence defendants 1, 3, 4 & 5 are required to vacate and hand over the vacant possession of schedule property to the LRs of deceased plaintiff?
(2) Whether the LRs of deceased plaintiff further proves that they are entitle for damages at Rs.1,00,000/- per month from defendants from the date of suit till realization of possession of Suit Schedule Property?
(3) Whether defendants 1, 2, 4 & 5 proves that suit filed by plaintiff being not a party to the lease deed dated 21.11.2005 is not at all maintainable? (4) Whether defendants 1, 2, 4 & 5 proves that there is no cause of action for the plaintiff to file this suit against defendants?
(5) What order or decree?
7. The LRs of the plaintiff examined their GPA holder Sri.Raghavendra as PW1 and marked Ex.P1 to P14 documents. On behalf of all the defendants, defendant No.5 Smt.Deepthi Srinivas examined as DW1 and marked Ex.D1 to D6 documents.
8. The court has heard the arguments.
9. The findings of the court on the above issues are as under:
Issue No.1 : In the affirmative Issue No.2 : Partly in the affirmative Issue No.3 : In the negative Issue No.4 : In the negative 8 Com.OS.No.1276/2022 Issue No.5 : As per the final order for the following:
REASONS Evidence before the Court:
10. Sri.Raghavendra, the power of attorney holder of the LRs of the plaintiff in his evidence affidavit deposed on par with the plaint averments. Ex.P1 is the GPA executed by the LRs of the plaintiff in favour of Sri.Raghavendra and Sri.R.Manjunath. Ex.P2 is the certified copy of Lease Deed dated 10.12.1982 executed by Smt.Maimunnisa and Feroz Ahmed in favour of Late Sri.T.M.Narasimhan and leased out the suit property in favour of the latter. Ex.P3 is the copy of Partnership Deed dated 10.11.1988 which confirms that, late T.M.Narasimhan and seven others (inclusive of late Sri.T.M.Srinivasa) were the partners of the partnership firm named after 'N. R. Chambers'. Ex.P4 is the Deed of Dissolution dated 31.03.1996 through which the partnership deed dated 10.11.1988 was dissolved with effect from the date of Dissolution Deed. The suit property was allotted to the share of late T.M.Srinivasa. Ex.P5 is the Sale Deed dated 16.10.2003 executed by Zeenathunnisa in favour of late T.M.Narasimhan by which she conveyed the property 9 Com.OS.No.1276/2022 bearing Nos.35 and 36 situated at Richmond Road, Bengaluru in his favour for a valuable sale consideration. Ex.P6 is the copy of Sale Deed executed by Smt.Faheemunnisa and four others in favour of T.M.Narasimhan conveying suit property in his favour. Ex.P7 and P14 are the copies of Lease Deed dated 21.11.2005 executed by Late T.M.Srinivas in favour of defendant No.1. Ex.P8 is the legal notice dated 18.01.2022 issued by the GPA holders of late T.M.Narasimhan to the defendants calling upon them to vacate the suit property. Ex.P9 and P10 are the postal receipts and acknowledgments to ensure the service of notice to the defendants. Ex.P11 is the Non Starter report. Ex.P12 is the GPA executed by T.M.Narasimhan appointing Sri.S.Raghavendra and Sri.R.Manjunath as his agents to deal with the suit property. Ex.P13 is the GPA executed by LRs of Late Parvathi (LR No.2 of deceased plaintiff).
11. Smt.Deepthi Srinivas, who examined as DW1 in her evidence affidavit deviated from her written statement. She has stated that, the GPA said to have executed by late Sri.Narasimhan is the forged and fabricated document, for the reason that, late Narasimhan has not signed in the notary register. She stated that, T.M.Narasimhan had three brothers 10 Com.OS.No.1276/2022 and five sisters and all of them have not been brought on record. Since she is one of the legal heirs, suit against her is not maintainable. Her father and Sri. T.M. Narasimhan had invested money to purchase a suit property and therefore, T.M.Narasimhan could not have sought for relief against co- owner. Ex.D1 is death certificate of defendant No.3 which confirms that, even before institution of the present suit, she was died. Ex.D2 is the certified copy of Partition Deed dated 30.03.2000. The suit property was not the subject matter of partition. Ex.D3 is the acknowledgment issued by the Ashok Nagar Police for having receipt of a complaint. Ex.D4 is the Khata extract of the suit property. Ex.D5 is the ಉತ್ತರ ಪತ್ರ issued by the Assistant Revenue Officer, BBMP. Ex.D6 is the tax paid receipt.
Arguments:
12. Learned counsel for the plaintiff argued that, undisputedly late Narasimhan was the lessee under erstwhile owners of the suit property. Upon constitution of partnership firm, the late Narasimhan thrown the suit property into the hatch-pot of the partnership. When the partnership was 11 Com.OS.No.1276/2022 dissolved, the leasehold rights were assigned to T.M.Srinivas who in turn put the defendant No.1 firm into the possession over the suit property as a tenant. On efflux of time, the tenancy of T.M.Narasimhan was expired. Subsequent thereto, T.M.Narasimhan purchased the suit property and hence, he had a right to evict the tenants of erstwhile owners and he issued an eviction notice. The defendants have not complied the said notice and therefore, the plaintiff T.M.Narasimhan was entitled for decree as sought for. Since T.M.Narasimhan is no more, his LRs are certainly entitle for the decree as sought for.
13. Learned advocate for defendant submits that, there is a cloud on the authenticity of GPA said to have executed by Narasimhan and the LRs of the plaintiff and their GPA holders have not proved the GPA to the satisfaction of the court. The alleged GPA is liable to be discarded due to violation of the notary rules as held by the Hon'ble Delhi High Court in Sunil Jain Vs Zamiruddin in Ex.S.A.No.5/2015. Learned counsel further submits that, when the suit was filed, defendant No.3 Smt.Sunitha Baliya was no more and therefore, suit against dead person is not maintainable. To his proposition, the learned counsel has cited the following decisions: 12 Com.OS.No.1276/2022
(i) Ashok Transport Agency Vs Awadhesh Kumar & Anr. reported AIR 1999 SC 1484;
(ii) S.Krishnamurthy Vs H.P.Nagaraj (CRP
No.342/2023)
(iii) B. Srinivas Vs State of Karnataka
(W.P.No.32150/2016)
14. Bearing in mind the arguments addressed by the learned counsel for the respective parties, let the court record its reasons for the Issues framed.
Issue Nos.1, 3 and 4:
15. Though these three issues as seems to be distinct, they are inter connected and over lapping on each other, therefore, these three issues have been taken up for common discussion to avoid repetition of reasoning.
16. I have carefully gone through the cross examination of PW1, Sri.Raghavendra. In the cross examination, it is nowhere suggested him that, deceased T.M.Narasimhan was not the owner of the suit property. Of course, the defendants have produced the Khata certificate standing in the name of T.M.Srinivasa. The mode of acquisition of the property has neither disclosed by the defendants nor reflected in the Khata 13 Com.OS.No.1276/2022 extract. It is settled law that, Khata extract is not a document of title. The LRs of the plaintiff have produced the registered Lease Deed dated 10.12.1982 through which the erstwhile owners of the suit property leased out the same to Sri.T.M.Narasimhan. It is evident from Ex.P3 that, T.M.Narasimhan, T.M.Srinivas and other four were the partners of N.R.Chambers. It is also evident that, in the Deed of Dissolution dated 31.03.1996, the leasehold rights were assigned to the share of T.M.Srinivas. The defendants have not disputed these documents. Thus, it is clear that, Sri.T.M.Narasimhan was the erstwhile tenant and by the virtue of Dissolution Deed dated 31.03.1996 T.M.Srinivas acquired leasehold rights and entered into the shoes of T.M.Narasimhan. Subsequent to expiry of leasehold rights, T.M.Narasimhan purchased the suit property through Ex.P6 Sale Deed. The contents of Ex.P6 have not been disputed by the defendants. Thus, it is clear that, T.M.Narasimhan on acquiring the titles over the suit property has entered into the shoes of his vendors. In the light of the above facts and circumstances, it can be safely drawn an inference that, as on the date of suit T.M.Narsimhan was the owner of suit property. Even after expiry of the tenancy, the defendant No.1 continued to be in possession 14 Com.OS.No.1276/2022 over the suit property. T.M.Narasimhan being the owner of the suit property issued legal notice dated 18.01.2020 and terminated the lease. Thus, the tenancy came to be an end on service of quit notice to the defendants. The defendants have not issued any reply to the said notice either disputing the titles of T.M.Narasimhan or their jural relationship with him. Soon prior to institution of the suit, a Pre Institution Mediation was initiated before the DLSA before which the defendants did not appear and hence, DLSA issued a Non Starter report in PIM No.306/2022. Thus, it is clear that, for the first time the defendants No.4 and 5 have resisting the case of deceased plaintiff T.M.Narasimhan by filing a written statement. The defendant No.1 and its partners have not filed any independent written statement, but, they simply adopted the written statement of defendants No.4 and 5. During the life time of Sri.T.M.Narasimhan the defendants are not questioned the genuineness or authenticity of GPA. As per Sec.201 of the Indian Contract Act, the GPA expires either on the death of principal or on the death of his agent. In the present case, on the death of T.M.Narasimhan the GPA executed by him expired. On the death of T.M.Narasimhan his surviving legal heirs came on record by 15 Com.OS.No.1276/2022 engaging the same GPA holders to whom T.M.Narasimhan had engaged.
17. Sri.T.M.Narasimhan is proved to be the title holder of the suit property. He was unmarried and issueless. On his death, his sisters as Class-II heirs came on record. As per the rules of succession in Hindus, in the absence of Class-I heirs, the Class-II heirs are entitled to be succeed to the estate of a male Hindu died intestate. The sisters, who came on record being the Class-II heirs found at entry-II of Schedule appended to Hindu Succession Act would have preferential rights over the heirs specified in Class-III and IV. Deceased Sri.T.M.Srinivasa was predeceased to Sri.T.M.Narasimhan. Defendant No.4 being the wife of predeceased brother found place at Entry-VI and whereas the defendant No.5 being the daughter of predeceased brother found place at Entry-IV. In the cases of preferential rights, nearer excludes the farther. The sisters of T.M.Narasimhan being nearer exclude the defendants No.4 and 5 since they are farther. Succession is not kept in abeyance. On the death of T.M.Narasimhan, LR No.2 Smt.Parvathi being his sister was entitled for a share equivalent to her sisters. On the death of LR No.2 Smt.Parvathi, her legal heirs i.e. LR No.2(a) 16 Com.OS.No.1276/2022 and 2(b) are entitled for the share of LR No.2. Viewing from any angle, the defendants No.4 and 5 are not entitled for any share in the suit property. Since the LRs of T.M.Narasimhan, have stepped into the shoes of T.M.Narasimhan, they are entitled to evict the tenants.
18. Defendant No.1 is the partnership firm to which the defendants No.2 and 3 are the partners. Defendant No.3 reportedly died even before filing of the suit. Partnership firm is a legal entity and a juristic person. The defendant No.2 being another partner of defendant No.1 representing the defendant No.1. Death of defendant No.3 would not abets the case against defendant No.1 and therefore, her death has no consequence. In Ashok Transport Agency's case, the proprietor of Ashok Transport Agency had died prior to filing of the suit.
Proprietorship is not a juristic person and not a legal entity. Therefore, the decree passed against the dead person was held to be nullity. In V.Krishnamurthy's case (supra), the decree was passed against a dead person and therefore, the Hon'ble High Court of Karnataka by relying upon the decision of the Hon'ble Supreme Court in the case of Ashok Transport Agency (supra) held that, the decree is nullity. In Sri.B.Srinivas (supra) 17 Com.OS.No.1276/2022 also, the Hon'ble High Court of Karnataka held that, the decree passed against a dead person is nullity. In the present case, the juristic person is thereon record and it has been represented by its another partner. Therefore, the suit would not abate as against defendant No.1.
19. During the lifetime of T.M.Narasimhan, the defendants No.4 and 5 have not questioned the due execution or authenticity of GPA. Only after his death, the defendants No.4 and 5 alleging that, the GPA said to have executed by T.M.Narasimhan is a fabricated document only on the ground that, no entry is found in the notary register. In fact, notary has not denied that the GPA has authenticated before her. She however admitted that, she has not entered the particulars of GPA in her register. A principal can create an agency appointing his agent through a document commonly known as General Power of Attorney. No law compels the principal to get his agency (GPA) authenticated before the notary public. However, Sec.8(1)(a) of Notaries Act empowers the notary to authenticate, verify and certify the instrument. If the power of attorney is authenticated before the notary public, the same gets a presumption U/Sec.85 of the Indian Evidence Act. Merely 18 Com.OS.No.1276/2022 because the notary omitted to enter the relevant particulars of GPA in her register, it is not possible to jump into a conclusion that, the GPA is fabricated one. Had the defendants questioned the veracity/authenticity of the GPA during the lifetime of T.M.Narasimhan, the GPA holders might have in a better position to prove the GPA to the satisfaction of the defendants. Questioning the GPA after the death of principal may not be fair on the part of the defendants. Even assuming for a moment, the GPA executed by T.M.Narasimhan is not authenticated before the notary public, it would not lose its validity, the document can be proved as that of other documents. It is to be noted that, after the death of T.M.Narasimhan, his LRs have once again appointed as their agents to whom T.M.Narasimhan had appointed as his agent. This is one of the attendant circumstance to hold that, T.M.Narasimhan had duly executed GPA. In the case of Sunil Jain (supra) the executant himself had denied the GPA. Therefore, the Hon'ble High Court of Delhi having appreciated the evidence, discarded the GPA by assigning several reasons one such reasons is that, the GPA is not authenticated before the notary public and that, no entry was made in the notary register. The facts of Sunil Jain's case is 19 Com.OS.No.1276/2022 distinguishable from the facts of the present case. For the forgoing reasons, the court opines that, the contention of the defendants that, the GPA said to have executed by T.M.Narasimhan is fabricated one does not hold water. Issue No.2:
20. The plaintiff has sought for damages at the rate of Rs.1,00,000/- per month from the date of institution of the suit till handing over of vacant and physical possession. On efflux of time, the lease was expired. The deceased plaintiff had also issued a quit notice U/Sec.106 of the T.P. Act and thereby the lease came to be determined. Staying in the property even after determination of lease would amounts to illegal possession. The person who is in illegal possession over the property shall make good to its true owner. Thus, the LRs of the plaintiff are entitled for damages or mesne profits from the defendants. An enquiry shall be conducted to ascertain the damages / mesne profits in the final decree proceedings.
Issue No.5:
21. In view of the findings on aforesaid issues, the court proceed to pass the following:
20 Com.OS.No.1276/2022
ORDER The suit is hereby decreed.
It is hereby directed the defendants to quit, vacate and hand over the vacant possession of the suit schedule premises to the LRs of the plaintiff forthwith.
The LRs of the plaintiff are entitled for recovery of mesne profits for illegal stay of defendants in the suit schedule premises from the date of suit till handing over of the vacant possession of the same. An enquiry shall be conducted to assess the mesne profits in the final decree proceedings.
Draw decree accordingly.
The office is hereby directed to send copy of this judgment to the parties to the proceedings to their respective e-mail IDs as required under Order XX Rule 1 of CPC and as amended under section 16 of the Commercial Courts Act, 2015.
[Dictated to the stenographer, transcribed by her, corrected and signed by me then pronounced in the Open Court, dated this the 11th day of March, 2025] (JITHENDRANATH C.S.) LXXXVI Addl. City Civil & Sessions Judge (Commercial Court), Bengaluru.21 Com.OS.No.1276/2022
ANNEXURE List of witnesses examined on behalf of the plaintiffs :
PW.1 Raghavendra List of documents marked on behalf of the plaintiffs :
Ex.P.1 Power of attorney executed by LRs of deceased plaintiff in favour of PW1 Ex.P.2 Certified copy of registered Lease Deed dated 10.12.1982 Ex.P.3 Copy of Partnership Deed dated 10.11.1988 Ex.P.4 Copy of Deed of Dissolution dated 31.03.1996 Ex.P.5 Copy of Sale Deed dated 16.10.2003 Ex.P.6 Copy of another Sale Deed dated 24.03.2005 Ex.P.7 Copy of Lease Deed dated 21.11.2005 Ex.P.8 Office copy of legal notice dated 18.01.2020 Ex.P.9 5 postal receipts Ex.P.10 5 postal acknowledgments Ex.P.11 Non starter report issued by DLSA vide PIM No.306/2022 Ex.P.12 GPA dated 13.01.2022 executed by deceased Narasimhan Ex.P.13 GPA dated 20.06.2024 executed by plaintiff No.2(a) and (b) Ex.P.14 Lease Deed List of witnesses examined on behalf of the defendants :
DW.1 Deepthi Srinivas List of documents marked on behalf of the defendants :
Ex.D.1 Death Certificate of defendant No.3 Ex.D.2 Certified copy of Partition Deed dated 30.03.2022 22 Com.OS.No.1276/2022 Ex.D.3 Acknowledgment for having lodged the complaint Ex.D.4 Khata Extract Ex.D.5 ಉತ್ತರ ಪತ್ರ Ex.D.6 Tax paid receipt.
(JITHENDRANATH C.S.) LXXXVI Addl. City Civil & Sessions Judge (Commercial Court), Bengaluru.