Karnataka High Court
Mr. Azam Baig @ Azam Pasha vs Mr. Noor Baig on 11 August, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:28668
RFA No. 220 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 220 OF 2022 (PAR)
BETWEEN:
1. MR. AZAM BAIG @ AZAM PASHA
S/O BABA BAIG @ BABA SAHEB
AGED ABOUT 35 YEARS.
2. SMT. GULNAZ
W/O SHAFIULLA
D/O BABA BAIG @ BABA SAHEB
AGED ABOUT 42 YEARS.
3. SMT. REHANA
D/O BABA BAIG @ BABA SAHEB
AGED ABOUT 37 YEARS.
4. SMT. SHAFIYA BEGUM
D/O BABA BAIG @ BABA SAHEB
AGED ABOUT 37 YEARS.
NOS. 1 TO 4 ARE RESIDING AT
NO. 1463, 10TH CROSS, GANGONDANAHALLI
NAYANDAHALLI POST,
Digitally signed MYSORE ROAD
by CHANDANA BENGALURU - 560 039.
BM ...APPELLANTS
Location: High (BY SRI. KIRAN V. RON, ADVOCATE)
Court of
Karnataka AND
1. MR. NOOR BAIG
S/O LATE BUDAEN BAIG
AGED ABOUT 65 YEARS
RESIDING AT NO. 99, 2ND MAIN ROAD
1ST CROSS, NEAR OLD POST POLICE STATION
VALMIKINAGAR
BENGALURU - 560 026.
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NC: 2023:KHC:28668
RFA No. 220 of 2022
2. MR. BABA BAIG S/O LATE BUDEN BAIG
AGED ABOUT 69 YEARS
R/AT NO. 1463, 10TH CROSS
GANGAONDANAHALLI
NAYANANDAHALLI POST
MYSORE ROAD, BENGALURU - 560 039.
(DECEASED ON 07.09.2017
HIS LEGAL HEIRS DEFENDANT NO. 4 TO 7
ARE ON RECORD)
3. SMT. KAMARTAJ
W/O LATE KISMAT BAIG
AGED ABOUT 47 YEARS
4. MR. AKRAM BAIG
S/O LATE KISMAT BAIG
AGED ABOUT 35 YEARS
5. MR. SHABUDDIN
S/O LATE KISMAT BAIG
AGED ABOUT 30 YEARS
6. MRS. FATHIMA
D/O LATE KISMAT BAIG
AGED ABOUT 27 YEARS
7. MRS. TABASSUM
D/O LATE KISMAQT BAIG
AGED ABOUT 25 YEARS
NO. 3 TO 7 ARE R/AT: NO. 39, W-139,
GOODSHED ROAD
K.R. MARKET, DR. AMBEDKAR COLONY
BENGALURU - 560 053.
8. MR. ISMAIL BAIG
S/O LATE BUDAN BAIG
AGED ABOUT 53 YEARS
R/AT NO. 1463, 10TH CROSS
GANGAONDANAHALLI, NAYANANDAHALLI POST
MYSORE ROAD, BENGALURU - 560 039.
...RESPONDENTS
(BY SRI. ISMAIL ZABIULA ADVOCATE FOR R1;
R2 DECEASED AS PER CAUSE TITLE;
SRI. GIRISH S HEGDE ADVOCATE FOR R8)
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NC: 2023:KHC:28668
RFA No. 220 of 2022
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC, 1908
AGAINST THE JUDGMENT AND DECREE DATED 10.01.2022 PASSED IN
OS. NO. 6543/2014 ON THE FILE OF THE XII ADDITIONAL CITY CIVIL AND
SESSION JUDGE, BENGALURU CITY, PARTLY DECREEING THE SUIT
FOR PARTITION.
THIS APPEAL, COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendant Nos.4 to 7 in O.S. No. 6543/2014 on the file of XII Addl. City Civil and Sessions Judge, Bengaluru (for short 'the trial court'), have preferred the present appeal, aggrieved by the impugned judgment and decree dated 10.01.2022, whereby the said suit filed by the 1st respondent-plaintiff for partition, declaration and other reliefs in relation to Item No. 4 of the suit schedule immovable properties was decreed by the trial court in favour of the plaintiff.
2. The material on record discloses that the 1st respondent- plaintiff instituted the aforesaid suit against the appellants- defendants 4 to 7 and defendants 1 to 3 for partition, declaration and other reliefs in relation to four items of immovable properties. The said four items were described as site No.16 (Item No.1), site No. 17 ( Item no.2), site No. 18 (Item No. 3) and site No. 19 (Item No.4) in the schedule to the plaint. It was specifically contended by -4- NC: 2023:KHC:28668 RFA No. 220 of 2022 the plaintiff that the plaintiff and defendants 1 to 3 are brothers, all of them being the children of late Budden Baig who had two more children Hasmathunnisa and Banu. The defendants 4 to 7, the appellants herein are the children of defendant No.1. It was contended that the suit schedule properties were jointly purchased by the plaintiff and defendants 1 to 3 under Notarized GPA dated 11.07.1992 and affidavit, also dated 11.07.1992. By virtue of the said two documents, plaintiff and defendants 1 to 3 became the owners of all four items of suit schedule properties and they have paid necessary taxes to the BBMP.
2.1 Plaintiff contended that defendant No.1 colluded with defendants 4 to 7 and created illegal documents including four sale deeds, all dated 06.10.2010 executed by defendant No.1 in favour of defendants 4 to 7 in respect of all four items of suit schedule properties and since they did not give the plaintiff his share in the suit schedule properties, despite his requests and demands, plaintiff instituted the aforesaid suit for declaration that all the aforesaid sale deeds dated 06.10.2010 in respect of Item Nos. 1 to 4 of the suit schedule properties was not binding upon the share of -5- NC: 2023:KHC:28668 RFA No. 220 of 2022 the plaintiff and for consequential partition, mesne profits and other reliefs.
2.2 The said suit was contested by defendants 1 and 4 to 7 who filed their written statement inter alia contending that the alleged GPA and affidavit dated 11.07.1992 said to have been executed in favour of plaintiff and defendants 1 to 3 were fabricated and forged documents and the same were specifically denied by the defendants who also disputed and denied the description and details of the properties shown in the said documents. It was also contended that the original owner Sri M. Joseph had executed a General Power of Attorney dated 24.06.1993 in favour of defendant No.1 and his wife Smt. Noorjahan who executed four registered sale deeds in favour of defendants 4 to 7 in respect of the four items of suit schedule properties. It was contended that while defendant No.1 executed three registered sale deeds dated 06.10.2010 in favour of defendants 4, 6 and 7, his aforesaid wife Smt.Noorjahan executed registered sale deed dated 06.10.2010 in favour of defendant No.5, all the sale deeds having been executed much prior to the suit which was instituted in the year 2014. -6-
NC: 2023:KHC:28668 RFA No. 220 of 2022 2.3 It was also contended that the alleged documents, viz., GPA and Affidavit both dated 11.07.1992 did not create any manner of right, title, interest or possession over any of the suit schedule properties in favour of the plaintiff or defendants 1 to 3. particularly when the same were unregistered documents which were not deeds / documents of conveyance/ transfer and as such, the claim of the plaintiff was liable to be rejected. It was therefore contended that there was no merit in the suit and that the same was liable to be dismissed.
3. Based on the aforesaid pleadings, the trial court framed the following issues:-
1. Whether plaintiff proves that he is entitled to 2/11th share in the suit schedule properties?
2. Whether plaintiff proves that the sale deed dated 06.10.2010 executed by Noor Jan wife of first defendant in favour of defendant No.5 is not binding on the plaintiff?
3. Whether plaintiff proves that sale deed dated 06.10.2010 executed by first defendant in favour of defendant no. 7 is not binding on the plaintiff?
4. Whether plaintiff proves that sale deed dated 06.10.2010 executed by first defendant in favour of defendant no. 4 is not binding on the plaintiff? -7-
NC: 2023:KHC:28668 RFA No. 220 of 2022
5. Whether plaintiff proves that sale deed dated 06.10.2010 executed by first defendant in favour of defendant no. 6 is not binding on the plaintiff?
6. Whether plaintiff is entitled for mesne profits?
7. Whether defendant no.4 proves that suit schedule properties are self acquired properties?
8. Whether defendant no.4 proves that there is no cause of action for the suit?
9. Whether defendant no.4 proves that suit is not properly valued and Court Fee paid is insufficient?
10. What order or decree?
4. On behalf of the plaintiff, his son / GPA Holder Shri. Afroz was examined as PW-1 and one witness as PW-2 and documentary evidence at Exs.P1 to P50 were marked on their behalf. The defendants cross examined PWs 1 and 2 but did not adduce any oral or documentary evidence.
5. After hearing the parties, the trial court answered issue No.1 partly in the 'affirmative' only in respect of Item No. 4 of the suit schedule properties. So also, despite answering issues 2 to 5 in the 'negative' by holding that the plaintiff had not proved that the sale deeds by 1st defendant and his wife were not binding upon -8- NC: 2023:KHC:28668 RFA No. 220 of 2022 him, the trial court answered issue No. 7 against the defendant No.4 and came to the conclusion that by virtue of the GPA and Affidavit dated 11.07.1992, the plaintiff had become the absolute owner of Item No. 4 of the suit schedule properties and proceeded to partly decree the suit by declaring that the plaintiff was the owner of the entire Item No.4 of the suit schedule properties and dismissed the suit in respect of Item Nos. 1 to 3. In this context, it is relevant to state that the dismissal of the suit and rejection of the claim in respect of Items 1 to 3 have not been challenged by the plaintiff, the judgment and decree of the trial court has attained finality and become conclusive and binding upon the plaintiff. Aggrieved by the impugned judgment and decree insofar as it relates to declaring that the plaintiff was the absolute owner of Item No. 4 of the suit schedule properties, defendants 4 to 7 are before this Court by way of the present appeal.
6. Heard learned counsel for the appellants and learned counsel for the respondents and perused the material on record.
7. In addition to reiterating the various contentions urged in the appeal and referring to the material on record, learned counsel for the appellants submitted that the trial court committed an error -9- NC: 2023:KHC:28668 RFA No. 220 of 2022 in holding that the plaintiff had become the owner of Item No. 4 of the suit schedule properties without appreciating that the alleged GPA and affidavit both dated 11.07.1992 were not documents of title and did not convey / transfer any right in the said Item No. 4 in favour of the plaintiff whose claim was liable to be rejected. It was also contended that after upholding the registered sale deed dated 06.10.2010 executed by 1st defendant in favour of 4th defendant in respect of the said Item No. 4 by answering Issue No. 4 in the 'negative' against the plaintiff, the trial court erred in upholding the claim of title of the plaintiff over the said property. It was further contended that the plaintiff had sought for the lesser / smaller relief of partition and had not sought for declaration of title in respect of Item No. 4 and no pleadings / issues / evidence was on record in this regard, as a consequence of which, the trial court was not justified in granting the higher / greater/ larger relief of declaration of title which was impermissible in law. It was therefore contended that the impugned judgment and decree passed by the trial court in relation to Item No. 4 deserves to be set aside and the suit of the plaintiff deserves to be dismissed in its entirety.
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NC: 2023:KHC:28668 RFA No. 220 of 2022 In support of his contentions, learned counsel for the appellants has placed reliance upon the following judgments:-
1. Shud Karan Bubna vs. Sita Saran Bubna -
(2009) 9 SCC 689;
2. Hiraji Tolaji Bagwan vs. Shakuntala -
(1990) 1 SCC 440;
3. Suraj Lamp and Industries Pvt. Ltd., Vs. State of Haryana - (2012) 1 SCC 656;
4. Rajendra Bajoria Vs. Hemant Kumar Jalan - 2021 SCC online SC 764;
5. Kamal Chopra vs. Commissioner, Corporation of City of Bangalore - ILR 1988 KAR 2416.
8. Per contra, learned counsel for the respondents would support the impugned judgment and decree and submits that there is no merit in the appeal and the same is liable to be dismissed.
9. I have given my anxious consideration to the rival submissions and perused the material on record.
10. The following points arise for consideration in the present appeal:-
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NC: 2023:KHC:28668 RFA No. 220 of 2022
(i) Whether the plaintiff acquired absolute title over Item No. 4 of the suit schedule properties by virtue of the unregistered GPA and affidavit, both dated 11.07.1992 said to have been executed by the original owner Mr. Joseph in favour of the plaintiff and defendants 1 to 3?
(ii) Whether the trial court was justified in coming to the conclusion that the plaintiff had become the absolute owner of Item No. 4 of the suit schedule properties?
(iii) Whether the trial court was justified in granting the higher/ larger / greater relief of declaration of title over item no. 4 of the suit schedule properties when the plaintiff had sought for a smaller/ lesser relief of partition?
Re- Point Nos.1 and 2:
11. Since these points are interlinked, they are taken up for consideration together.
11.1 The material on record discloses that it is the specific contention of the plaintiff that the original owner Mr. Joseph had executed an unregistered GPA and affidavit, both dated 11.07.1992 in favour of the plaintiff and defendants 1 to 3 in relation to the suit schedule properties comprising of four items.
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NC: 2023:KHC:28668 RFA No. 220 of 2022 While it is the specific contention of the plaintiff that the said documents have the effect of creating absolute title in favour of plaintiff and defendants 1 to 3 over the suit schedule properties, defendants 4 to 7 - appellants contend that the GPA and affidavit are not documents of title and in the absence of registered deed of Conveyance / transfer in favour of the plaintiff and defendants 1 to 3, their claim of title over the suit schedule properties is to be rejected. In this context it is well settled that the issue / question, as to whether transactions in the nature of sale agreement / General Power of Attorney do not convey title and are not documents / transactions / deeds, under which title in immovable property cannot be transferred / conveyed and the same can be done only by registered deed of conveyance is no longer res integra in the light of the judgment of the Apex Court in the case of Suraj Lamps case (supra), wherein it is held as under:-
1. By an earlier order dated 15-5-2009 in Suraj Lamp & Industries (P) Ltd. (1) v. State of Haryana [(2009) 7 SCC 363 : (2009) 3 SCC (Civ) 126] , we had referred to the ill-
effects of what is known as general power of attorney sales (for short "GPA sales") or sale agreement/general power of attorney/will transfers (for short "SA/GPA/will transfers"). Both the descriptions are misnomers as there cannot be a
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NC: 2023:KHC:28668 RFA No. 220 of 2022 sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. As noticed in the earlier order, these kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest unaccounted for money (black money) and to avoid payment of "unearned increases" due to development authorities, on transfer.
2. The modus operandi in such SA/GPA/will transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof:
(a) An agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future.
or An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute the sale deed whenever required.
(b) An irrevocable general power of attorney by the vendor in favour of the purchaser or his nominee authorising him to manage, deal with and dispose of the property without reference to the vendor.
or
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NC: 2023:KHC:28668 RFA No. 220 of 2022 A general power of attorney by the vendor in favour of the purchaser or his nominee authorising the attorney-holder to sell or transfer the property and a special power of attorney to manage the property.
(c) A will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).
3. These transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of attorney in favour of a family member or friend to manage or sell his property, as he is not able to manage the property or execute the sale, personally. These are transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance gets an SA/GPA/will as a mode of transfer, either at the instance of the vendor or at his own instance.
9. In this background, we will examine the validity and legality of SA/GPA/will transactions. We have heard learned Mr Gopal Subramanium, amicus curiae and noted the views of the Government of NCT of Delhi, Government of Haryana, Government of Punjab and Government of Uttar Pradesh who have filed their submissions in the form of affidavits. Scope of an agreement of sale
16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam [(1977) 3 SCC 247] observed: (SCC pp. 254-55, paras 32-33 & 37)
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NC: 2023:KHC:28668 RFA No. 220 of 2022 "32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad v. Ram Mohit Hazra [AIR 1967 SC 744 : (1967) 1 SCR 293] .) The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
33. In India, the word 'transfer' is defined with reference to the word 'convey'. ... The word 'conveys' in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership.
37. ... that only on execution of conveyance, ownership passes from one party to another...."
17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [(2004) 8 SCC 614] this Court held: (SCC p. 619, para 10) "10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party."
18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
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NC: 2023:KHC:28668 RFA No. 220 of 2022
19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter. Scope of power of attorney
20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises 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 1-A 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.
21. In State of Rajasthan v. Basant Nahata [(2005) 12 SCC 77] this Court held: (SCC pp. 90 & 101, paras 13 & 52) "13. A grant of power of attorney is essentially governed 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
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NC: 2023:KHC:28668 RFA No. 220 of 2022 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 and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
52. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, 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 in 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 power of attorney and convey title on behalf of the grantor. Conclusion
23. Therefore, an SA/GPA/will transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain v. Canara Bank [(2001) 94 DLT 841] , that the "concept of power-of-attorney sales has been recognised as a mode of transaction" when dealing with transactions by way of SA/GPA/will are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/will transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a
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NC: 2023:KHC:28668 RFA No. 220 of 2022 sale deed. Such decisions to the extent they recognise or accept SA/GPA/will transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of "GPA sales" or "SA/GPA/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 courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of Section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/will transactions known as GPA sales.
25. It has been submitted that making declaration that GPA sales and SA/GPA/will transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularise the transactions by obtaining deeds of conveyance. It is also submitted that
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NC: 2023:KHC:28668 RFA No. 220 of 2022 this decision should be made applicable prospectively to avoid hardship.
26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/will transactions are 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 TP 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.
27. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that
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NC: 2023:KHC:28668 RFA No. 220 of 2022 behalf execute an agreement of sale and grant a power of attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding "SA/GPA/will transactions"
are not intended to apply to such bona fide/genuine transactions.
11.2 As is clear from the aforesaid judgment of the Apex Court, a General Power of Attorney (GPA) do not convey title and do not amount to transfer nor can they be recognized as a valid mode of transfer of immovable property and such GPA transactions will not be construed or treated as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. The Apex Court has also stated that a GPA is not a transfer or a sale and a GPA transaction cannot be treated as completed transfer or conveyance; however, parties claiming under a GPA would be entitled to obtain specific performance or make use of the said GPA to obtain a completed transfer or conveyance by registered document of title.
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NC: 2023:KHC:28668 RFA No. 220 of 2022 11.3 In the instant case, it is an undisputed fact that except an unregistered GPA and affidavit marked as Exs.P2 and P3, there is no other document available on record in favour of the plaintiff and defendants 1 to 3 in relation to Item No. 4 of the suit schedule properties; as stated supra, Exs.P2 and P3 which are merely a GPA and affidavit simpliciter which are unregistered documents clearly cannot be treated or construed as documents of title nor completed transfer or conveyances in respect of the suit schedule properties and consequently, no reliance can be placed upon Exs.P2 and P3 by the plaintiff in order to contend that he has acquired absolute title over Item Nos. 1 to 4 of the suit schedule properties under and by virtue of the said documents. In other words, mere alleged execution of the GPA / affidavit at Exs.P2 and P3 cannot lead to an inference that the plaintiff and defendants 1 to 3 had acquired title over the suit schedule properties, especially in the absence of registered deed of conveyance in their favour. Under these circumstances, the trial court clearly fell in error in coming to the conclusion that the plaintiff had become the absolute owner of Item No. 4 of the suit schedule properties by virtue of Exs.P2 and P3 and the said finding deserves to be set aside.
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NC: 2023:KHC:28668 RFA No. 220 of 2022 11.4 A perusal of the impugned judgment and decree will indicate that the trial court has referred to the judgment of the Apex Court in Suraj Lamps case (supra) and has held that the same was not applicable, since at paragraph No. 26 of the judgment, it has been held that if documents relating to GPA have been accepted by the Municipal or Revenue Authorities to effect mutation, they need not be disturbed merely on account of this decision.
11.5 In my considered opinion, the said finding of the trial court is erroneous and unsound for more than one reason, firstly, the Apex Court has merely stated that mutation entries based on a GPA need not be disturbed and the said observation by the Apex Court cannot be understood, construed or interpreted as to mean that the plaintiff acquired title over Item No. 4 by virtue of the GPA. Secondly, the trial court has erred in holding that mutation has been effected in the name of the plaintiff, since he has paid taxes on the basis of the GPA; in this context, the trial court failed to appreciate that the alleged tax paid receipts at Exs.P4 to P13 and P21 indicate that all the taxes have been purportedly paid on a single day and mere payment of taxes cannot lead to the inference
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NC: 2023:KHC:28668 RFA No. 220 of 2022 that khata is mutated into the name of the plaintiff, particularly when the khata extracts and certificates produced by the plaintiff himself at Exs.P28 to P35 show the names of defendants 4 to 7 and not the name of the plaintiff or defendants 1 to 3.
11.6 Thirdly, except for stating that its judgment in Suraj Lamps case (supra) will not prevent the affected parties to get in registered deeds of conveyance to complete their title in cases of GPA transactions, the Apex Court has not stated anywhere that GPA transactions are documents of title / conveyance / transfer and on the other hand, the said judgment categorically holds that no title in Item No.4 was created or accrued in favour of the plaintiff or defendants 1 to 3 by virtue of the GPA and affidavit at Exs.P2 and P3. Under these circumstances, I am of the view that the said finding recorded by the trial court to uphold the claim of the plaintiff also deserves to be set aside.
11.7 A perusal of the impugned judgment and decree will clearly indicate that except stating that the plaintiff and defendants 1 to 3 purchased Item No.4 of the suit schedule property from the earlier owner Mr.Joseph, the said Item No. 4 could not have been acquired by defendant No.4 from the very same Mr.Joseph, no
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NC: 2023:KHC:28668 RFA No. 220 of 2022 other valid or cogent reason has been assigned by the trial court to uphold the claim of the plaintiff.
11.8 As stated supra, in view of my findings above that plaintiff or defendants 1 to 3 did not acquire title over Item No. 4 by virtue of the GPA and the affidavit at Exs.P2 and P3, I am of the considered opinion that in the light of the registered sale deed dated 06.10.2010 executed by the original owner Mr.Joseph represented by his GPA holder, 1st defendant in favour of 4 th defendant, the 4th defendant had become the absolute owner in lawful and peaceful possession of Item No. 4 of the suit schedule property and the plaintiff did not have any manner of right, title, interest or possession over the said property. It is therefore clear that the trial court committed a grave and serious error of law and fact in coming to the conclusion that the plaintiff had acquired title over Item No. 4 of the suit schedule properties by virtue of the GPA and affidavit dated 11.07.1992 and as such, the impugned judgment and decree of the trial court deserves to be set aside.
Point Nos.1 and 2 are accordingly answered in favour of the appellants and against the 1st respondent-plaintiff by holding that he did not acquire title over Item No. 4 of the suit schedule
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NC: 2023:KHC:28668 RFA No. 220 of 2022 properties by virtue of the GPA and affidavit dated 11.07.1992 and that he does not have any manner of right, title, interest or possession over Item No. 4 which is owned and possessed absolutely and exclusively by the appellants. Re - Point No.3:
12. A perusal of the material on record will also indicate that it is an undisputed fact that the plaintiff had sought for a lesser/ smaller relief of partition and had not sought for the larger/ higher relief of declaration of absolute / exclusive title over the suit schedule properties. In this context, it is trite law that if a person asks for a larger / higher relief and the court comes to the conclusion that he is not entitled to the same but is entitled to a smaller/ lesser relief, it would be open for the court to mould the relief by invoking Order VII Rule 7 CPC and grant the smaller / lesser relief so as to obviate the need for further litigation and to avoid multiplicity of proceedings. However, in the instant case, since the plaintiff had himself sought for smaller/ lesser relief of partition, granting the higher/ greater/ larger relief of declaration of title in respect of Item No. 4 of the suit schedule properties is clearly impermissible in law and the impugned judgment and
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NC: 2023:KHC:28668 RFA No. 220 of 2022 decree of the trial court cannot be sustained and deserves to be set aside. It is equally well settled that even to pass a decree for partition, it is absolutely essential that a person putting forth a claim should have a share in the property and partition thereof can only be amongst parties who have a share / interest / pre-existing right over the property.
12.1 In Shub Karan's case (supra), the Apex Court held as under:-
6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. "Separation of share" is a species of "partition". When all co-owners get separated, it is a partition. Separation of share(s) refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.
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NC: 2023:KHC:28668 RFA No. 220 of 2022 12.2 So also, in Hiraji's case (supra), the Apex Court held as under:-
7. Before the High Court, two obvious illegalities committed by the lower authorities were highlighted on behalf of the appellant. The first illegality was that the property being admittedly ancestral, Brij Lal could not have effected partition of the property between himself on the one hand and his wife and his daughter on the other. In all the three partitions effected on July 31, 1949, December 16, 1950 and June 29, 1959, wife was one of the parties to the partitions. In the third partition made on June 29, 1959 besides his wife, the other parties to the partition were two minor daughters. Secondly, the same property is shown to have been partitioned by Brij Lal on three occasions.
Admittedly, the partition of June 29, 1959 is between Brij Lal on the one hand and his wife and two minor daughters including the respondent on the other. This partition was obviously contrary to the provisions of Hindu law. Hence the respondent in any case could not have become a landlady of the suit land because it is in this third partition of June 29, 1959 that the said land is alleged to have gone to the share of the respondent. The High Court dismissed this contention with regard to the patent illegality by giving a specious reason that the question referred to the Tehsildar in its earlier remand order, namely the validity or otherwise of the partition, was investigated by the three authorities and that they had given a finding upholding the partition. The High Court further held that what was produced before the courts below was a family settlement and since the said family
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NC: 2023:KHC:28668 RFA No. 220 of 2022 settlement created a right in favour of the respondent she should be held to have become the owner of the suit land. Unfortunately, the High Court lost sight of the fact that the family settlement which is accepted by the courts in lieu of partition, is a settlement which gives share to the parties as per their legal entitlement and not a settlement which is made or purported to have been made to circumvent the law. A partition of the property can only be among the parties who have a pre-existing right to the property. Under the Hindu law, a female, major or minor has no share in the ancestral property. A female is given a share either in the self-acquired property of the husband or the father, or in the share of the husband or the father in the coparcenary property after the property is partitioned. There cannot, therefore, be a partition and hence a family settlement with regard to the ancestral property so long as it is joint, in favour of either the wife or the daughter. Since this obvious illegality was ignored by the High Court, it will have to be held that the High Court's decision was patently wrong. The respondent, therefore, never became the landlady of the land and it was Brij Lal who continued to be the landlord of the same. Hence the notice given by the respondent and the proceedings for eviction adopted by her are misconceived. Her application for possession of the land has, therefore, to be dismissed. 12.3 In the instant case, I have already come to the conclusion that neither the plaintiff nor defendants 1 to 3 acquired any title / share over the suit schedule properties including Item No.
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NC: 2023:KHC:28668 RFA No. 220 of 2022 4 by virtue of the alleged GPA and affidavit both dated 11.07.1992. Under these circumstances, the claim of the plaintiff for absolute title or for partition over Item No. 4 is clearly not available / permissible / sustainable in law and the same are liable to be rejected and failure on the part of the trial court to appreciate this, has resulted in erroneous conclusion. There is no gainsaying the fact that if none of the reliefs sought for by the plaintiff can be granted, the only option available to a court is to reject the plaint and dismiss the suit as held by the Apex Court in Rajendra Bajoria's case (supra). It is therefore clear that the trial court misdirected itself in granting the higher relief of declaration of title which was beyond the scope of the suit and consequently, the impugned judgment and decree deserves to be set aside.
12.4 A perusal of the evidence adduced by the plaintiff will also indicate that he has not examined himself as a witness and his son PW-1 has been examined on his behalf. In this context, it is relevant to state that PW-1 was undisputedly a minor, aged only about 8 years when the alleged GPA and affidavit both dated 11.07.1992 were said to have been executed in favour of plaintiff and defendants 1 to 3 and as such, no reliance can be placed upon
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NC: 2023:KHC:28668 RFA No. 220 of 2022 the evidence of PW-1 to come to the conclusion that the GPA and affidavit have been duly proved in accordance with law. So also, the only other witness examined by the plaintiff is PW-2, who is said to be the son of one Yusuf Khan who is alleged to be a witness to the GPA dated 11.07.1992; however in his evidence, PW-2 neither identifies the alleged signature of his father on the GPA (Ex.P2) nor the said document also or even the affidavit at Ex.P3. Accordingly, even the evidence of PW-2 is not sufficient to hold that Ex.P2 or Ex.P3 have been proved by the plaintiff. Under these circumstances, in the absence of legal or acceptable evidence adduced by the plaintiff to establish the proof and execution of Exs.P2 and P3, I am of the view that the said documents cannot be said to confer any right over Item No. 4 in favour of plaintiff or defendants 1 to 4.
12.5 A perusal of Ex.P2 will indicate that there is no recital in the said document as regards payment of any consideration by the plaintiff or defendants 1 to 3 in favour of the original owner Mr.Joseph and no reliance can be placed upon the said GPA or its contents to contend that any right in Item No. 4 was created in their favour. Insofar as the affidavit at Ex.P3 is concerned, though the
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NC: 2023:KHC:28668 RFA No. 220 of 2022 said document contains alleged recitals regarding payment of consideration by plaintiff and defendants 1 to 3 in favour of Mr.Joseph, the said document also stipulates that the said Mr. Joseph would complete the sale transaction and execute a registered document in favour of the plaintiff and defendants 1 to 3 at a subsequent point in time.
12.6 To put it differently, the alleged affidavit at Ex.P3 itself contemplates execution of one more registered document by Mr.Joseph in favour of plaintiff and defendants 1 to 3 to complete the sale transaction and in the absence of any such subsequent registered document of conveyance, it cannot be said that the plaintiff and defendants 1 to 3 acquired any manner of right, title, interest or possession over the suit schedule properties including Item No.4 by virtue of the GPA and affidavit. Viewed from this angle also, I am of the considered opinion that the plaintiff was not entitled to any relief in the suit which was not maintainable in law or on facts and was liable to be dismissed. Under these circumstances, the trial court clearly fell in error in upholding the claim of the plaintiff by passing the impugned judgment and decree which deserves to be set aside.
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NC: 2023:KHC:28668 RFA No. 220 of 2022 Point No.3 is accordingly answered in favour of the appellants and against the 1 st respondent-plaintiff by holding that the trial court committed an error in declaring that the plaintiff was the owner of Item No. 4 of the suit schedule properties.
13. Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I am of the considered opinion that the trial court erred in coming to the conclusion that the plaintiff was the owner of Item No. 4 of the suit schedule properties and decreeing the suit in his favour by passing the impugned judgment and decree, which deserves to be set aside.
14. In the result, I pass the following:-
ORDER
(i) Appeal is hereby allowed.
(ii) The impugned judgment and decree dated 10.01.2022 passed in O.S.No.6543/2014 by the trial court is hereby set aside insofar as Item No. 4 of the plaint schedule properties is concerned;
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NC: 2023:KHC:28668 RFA No. 220 of 2022
(iii) Consequently, suit of the plaintiff in respect of all the plaint schedule properties including Item No. 4 stands dismissed;
(iv) No order as to costs.
Sd/-
JUDGE Srl.