Bangalore District Court
Smt. Kanickamarie Kamala vs Sri. S.Raja Reddy on 21 September, 2022
1
O.S.No. 4383/2012
KABC010048182012
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE,
AT BENGALURU
Dated this the 21st day of September, 2022.
PRESENT: SRI. GANGADHARA.K.N., B.A.,LLM.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.4383/2012
PLAINTIFFS : 1. Smt. Kanickamarie Kamala
@ D.Kamala,
W/o late D.Gunasheelan,
aged about 65 years.
2. Miss. Sara Preethi,
D/o Late D.Gunasheelan,
aged about 22 years,
Both are residing at No. 206,
Thimmaiah road,
2
O.S.No. 4383/2012
Bangalore - 560001.
(By R.S., Advocate)
VS.
DEFENDANTS : 1. Sri. S.Raja Reddy,
S/o N.Srinivas Reddy,
Aged about 32 years,
2. Smt. Papamma,
W/o N.Srinivas Reddy,
Major in age,
Both R/at No. 24, 1st cross,
Muneshwara Layout,
Munnekolala,
Marthahalli post,
Bangalore - 560037.
(By P.A., Advocate)
Date of Institution of the suit : 21-06-2012
Nature of the suit : Declaration, Injunction
and Possession
Date of commencement of : 12-06-2014
recording of the evidence
Date on which the Judgment : 21-09-2022
was pronounced
Total Duration Years Months Days
10 03 00
(GANGADHARA.K.N.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
3
O.S.No. 4383/2012
JUDGMENT
The plaintiffs suit for declaration, possession and mandatory injunction with cost.
2. The plaintiff Nos. 1 and 2 are the mother and daughter respectively. And they are the wife and daughter of Late. D.Gunasheelan and even the defendants are the son and mother respectively.
3. The plaintiffs contended that, Sy.No. 114/4, measuring an extent of 00-02 guntas, situated at Munnekolala village, Varthur Hobli, Bangalore east taluk, is the absolute property of D.Gunasheelan who has purchased the said property from his vendor Sri.N.Muninarayana Reddy under the registered sale deed dated 23-09-1972, registered as document No. 4021/1972-73. Said Gunasheelan died intestate on 09-12-2000 by leaving the plaintiffs, who are his wife and daughter respectively to succeed his estate. After the demise of D. Gunasheelan, the plaintiffs were in 4 O.S.No. 4383/2012 possession and enjoyment of the suit schedule property but the defendants, who are the 3 rd person have trespassed the suit schedule property in the month of December 2011. And defendant No. 1 had put up the shed in the suit schedule property. Its the defendant No.2 being claiming herself as power of attorney holder of Gunasheelan executed the sale deed dated. on 23-12- 2000, documents got registered as No. 7951/2000-2001, registered in the office of the sub registrar, Bangalore South Taluk in favor her son the defendant no.1. After the sale deed the 1st defendant got khatha in his name and even got mutated revenue records. They contended that D. Gunasheelan in his lifetime had not executed any GPA as alleged by the 2nd defendant. Moreover the sale deed is dated 23-12-2000, but D. Gunasheelan died intestate on 09-12-2000 itself, the alleged GPA had no validity and sale becomes invalid. In this regard the plaintiffs have approached the jurisdictional HAL police 5 O.S.No. 4383/2012 station to lodge complaint, but who have refused to accept the same. Thus, cause of action was arose to file the present suit for declaration to declare that sale deed dated 23-12-2000 in favor of the 1 st defendant as null and void and plaintiffs are the absolute owners of the suit schedule property. And also sought the mandatory injunction to put back the plaintiffs into the possession of the suit schedule property and also sought the mandatory injunction to demolish the unauthorized construction put up in the suit property.
4. After service of suit summons, the defendants put their appearance through their counsel, who have filed their written statements by denying the plaint contention as false, and also contended that the suit of the plaintiffs is not maintainable, as it bars the law of limitation and they are not entitle for the relief sought in the suit. 1St defendant and his family members have been residing in a dwelling house existing in the suit schedule 6 O.S.No. 4383/2012 property, but the plaintiff intentionally shown the wrong address of the defendant No.1 as No.24, 1 st cross, Muneshwara layout, Munnekolala, Bangalore -37. In the suit property, there are existence an of shops and residential portions, but they have not been disclosed for the obvious reasons. The plaintiffs are not approached this court with clean hands. Thus they are not entitle for any aid and assistance of this court. The plaintiffs are seeking direction against the defendants to put them back in possession of the suit schedule property, which itself shows it is the defendants are in possession and enjoyment of the suit schedule property then question of alleged interference of the possession and enjoyment of suit schedule property by the plaintiff does not arise. They contended that, its D.Gunasheelan was the absolute owner who was having the possession of the suit schedule property, who with intent to sell the same entered into an agreement of sale with defendant No.2 7 O.S.No. 4383/2012 Smt. Papamma on 18-04-1991 by agreeing to sell the same for a valuable consideration of Rs. 30,000/-, received Rs. 5,000/- as advance sale consideration. On 21-10-1992 the said D. Gunasheelan also executed GPA authorizing the defendant No.2 to deal with the suit schedule property by receiving the entire sale consideration and delivered the vacant possession in her favour, and evidencing the receipt of entire sale consideration he had executed the affidavit dated 21-10- 1992. The defendant No.2 had acquired the lawful authority to deal with the suit schedule property coupled with interest. Subsequent to execution of the GPA and affidavit the defendant No.2 had constructed a small house of sheet roofing and started to reside therein. In the year 1994, she had put up additional construction measuring 400 sq.ft., again she had put up the additional construction in the year 1994. After that she by making an application to the CMC, Mahadevapura, 8 O.S.No. 4383/2012 got the construction regularized. During the following year she got the water connection to the suit schedule property by deposing Rs. 1,000/- with the CMC Mahadevapura. In the year 1998, she had also put up construction of 3 shops in the vacant site measuring each 8X8 feet, on the same year she had also constructed 4 residential houses of sheet roofing measuring 9X9 sq.ft., and she leased out the those additional construction including the shops to the tenants. She got the electricity connections to all the construction put up by her under the suit schedule property, she had exercised her proprietary and possessory right over the suit schedule property until, the same was transfered in favour of the defendant No.1 legally under the registered sale deed dated 23-12-2000 for the valuable sale consideration. The defendant No.1 is in possession and enjoyment of the suit schedule property as an absolute owner from 23-12-2000 onwards continuously and 9 O.S.No. 4383/2012 without interruption and interference from anybody. The defendant No.2 was in possession of the suit schedule property from 21-10-1992 to 23-12-2000, thereafter the defendant No.1 continue to hold the suit schedule property as a rightful owner from 23-12-2000 uninterruptedly till this day. The defendants are in possession of the suit schedule property from last 20 years, thus the plaintiffs have no locus standi to question the validity of the sale deed dated 23-12-2000 executed in favour of the defendant No.1, they are questioning the sale deed, after lapse of more than 11 years, thus the suit is barred by limitation, the description of the suit schedule property is not been correctly given. The death certificate of D. Gunasheelan is created document for the purpose of filing of this suit, also denied that the after death of D.Gunasheelan, the plaintiffs have not made any taxes of the suit schedule property to the competent Authority. And also alleged that the utter shock and 10 O.S.No. 4383/2012 surprise expressed by the plaintiffs are charaged to prejudice the mind of the court and get the sympathy. The defendant No.1 had acquired the suit schedule property by investing his hard money and he has no other property for his residence except the suit schedule property. After purchase of the property the defendant No.1 got the revenue records in his name. Gunasheelan did execute the GPA dated 21-10-1992 coupled with the affidavit in favor of the defendant No.2 by receiving the entire sale consideration. Denied the allegation of creation of GPA with collusion between the defendant Nos. 1 and 2 . And contended that the suit of the plaintiffs merit less and it has not been properly valued and proper court fee has not been paid.
5. By considering the pleadings of the parties this court was pleased to frame following issues.
1) Whether the plaintiffs are absolute owners of the schedule property?11
O.S.No. 4383/2012
2) Whether the plaintiffs prove that the sale deed dated 23-12-2000 executed between the 2 nd defendant and 1st defendant is null and void?
3) Whether the plaintiffs prove that the defendants have put up unauthorized construction in and over the suit schedule property?
4) Whether the plaintiffs are entitled to recover vacant possession of the suit schedule property from the defendants?
5) Whether the plaintiffs prove any sort of interference of the defendants into their peaceful possession and enjoyment of the suit schedule property?
6) What order or decree?
6. By considering the pleadings of the parties this court was pleased to frame following additional issues.
1) Whether the suit of the plaintiffs is within 12 O.S.No. 4383/2012 the stipulated period of limitation?
2) Whether the court fee paid on the plaint is sufficient?
7. The plaintiffs to prove their case plaintiff No.1 was examined as P.W.1, produced in all 11 documents which were got marked as Ex.P.1 to 11. Defendant cross examined the PW.1 in part, but before completion of further cross examination, she died. The plaintiff No.2 examined herself as P.W.2, the defendants have cross examined her fully. And the plaintiff in support of their case called the Sub- Registrar, Peenya, Bangalore - 58, with request to produce the thumb impression register, accordingly, examined the Sub-Registrar as P.W.3, he produced 2 documents which were marked as Ex.P.9 and 10 and thumb impressions of late Gunasheelan were marked as Ex.P.9(a).
From defendants side defendant No.2 examined himself was D.W.1 and produced in all 29 documents 13 O.S.No. 4383/2012 which were got marked as Ex.D.1 to 29. And they have examined one witness on their behalf as D.W.2. In this case, on the instance of the plaintiff, the finger prints of the Late. D. Gunasheelan were refereed to the Expert for comparison, after comparison, the the court Commissioner the expert filed his report, on the instance of the defendants, he was called and examined on the report as C.W.1 and produced 1 document marked as Ex.C.1.
8. The plaintiffs have filed written arguments.
9. The defendants submitted their oral arguments and in support of their arguments submitted the following decisions.
1) ILR 1993 KAR 2306
2) AIR 2003 GUJARAT 294,
3) AIR 2005 ORISSA 147
4) AIR 1969 SC 73
5) (2011) 9 SCC 126 14 O.S.No. 4383/2012
6) (2000) 7 SCC 702
7) 2011 (3) KAR. L.J. 413
10. My finding on the above issues are :-
Issue No.1: In the Negative Issue No.2: In the Negative Issue No.3: In the Negative Issue No.4: In the Negative Issue No.5: In the Negative Issue No.6: As per final order, for the following:-
11. My finding on the above additional issues are;
Addl. Issue No.1: In the negative
Addl.Issue No.2: In the affirmative
REASONS
12. Issue Nos. 1, 2 and 4: Since the Issue Nos.
1, 2 and 4 are interconnected, they are taken up for common discussion.
13. It is the plaintiffs case is that, the suit schedule property bearing Sy.No. 114/4, measuring 00- 15 O.S.No. 4383/2012 02 guntas, situated at Munnekolala village, Varthur Hobli, Bangalore south taluk, was the property of T.Gunasheelan who is the husband to the 1st plaintiff and father to the plaintiff No.2, who had acquired the said property under the registered sale deed dated 23-09- 2019, the document got registered as No. 4021/72-73 in the office of the Sub- Registrar, Bangalore South Taluk, in this concerned which is an undisputed fact.
14. It is the plaintiff further contention is that, said Gunasheelan died intestate on 09-12-2000 by leaving the plaintiffs as his sole legal heirs to succeed his estate, after his demise, the plaintiff being his heirs continued to be in possession and enjoyment of the suit schedule property and paying taxes regularly. It is the defendants who have trespassed into their property on December 2011, and 1st defendant had put up the shed, on verifying the revenue records, they had have comes to know that the defendant No.2 herein by claiming herself 16 O.S.No. 4383/2012 as a GPA holder of Gunasheelan, sold the suit property in favour of her own son the defendant No.1 under the registered sale deed dated 23-12-2000, which is registered as document No. 7951/2000-01.
15. The defendant had disputed some of the contention of the plaintiffs alleging that they have been created some documents to file the false suit particularly the date of death of Gunasheelan and denies the allegation of of the plaintiffs that GPA in favour of defendant No.2 is bogus and created and also denies the trespassing into the suit schedule property in the month of December 2011. And their clear case is that, the deceased Gunasheelan with intent to sell his property for the sale consideration of Rs. 30,000/- had executed the agreement of sale dated 18-04-1991 by receiving Rs. 5,000/- as advance, by agreeing to execute the registered sale deed of the suit property within the 6 months by receiving the balance sale consideration. But 17 O.S.No. 4383/2012 on 17-10-1992 said Gunasheelan by receiving the entire sale consideration executed the GPA in favour of defendant No.2, executed the affidavit by acknowledging the receipt of entire sale consideration and delivery of possession of suit property in favour of the defendant No.2. Thus, the defendant No.2 contended that, since 17-10-1992 she is in possession and enjoyment of the suit schedule property and to substantiate the said fact the defendants produced the Ex.D.3 the agreement of sale dated 18-04-1991, GPA dated 17-10-1992 and produced the Ex.D.5 the affidavit.
16. To prove the execution of agreement of sale and GPA as per Ex.D.3 and D.4 the defendants have examined one of the attesting witness to the said document as D.W.2. Defendant no.2 further contended that, immediately after taking delivery of possession of suit property, she had put up the construction of small sheet roofed house, started to reside therein. She made 18 O.S.No. 4383/2012 additional construction in the year 1994, she had put up the further construction in the year 1995, as the construction were unauthorized, she made the applications to the CMC, Mahadevapura, and got regularized the construcion by paying the requisite fee, to substantiate the said fact they have produced the regularization of construction form submitted to the CMC, Mahadevapura, as per Ex.D.9. The above said document is of dated 26-12-1995, it means to say there was a construction in the suit schedule property at least for the period 26-12-1995 itself. And Ex.D.9 the endorsement issued by the CMC, Mahadevapura for having receipt of the application for regularization of construction.
17. Further they contended that, she got the water connection by paying the requisite fee of Rs. 1000/-, to substantiate the fact produced Ex.D.10 dated 22-08- 1996 which is the receipt for having paid Rs. 1000/- 19
O.S.No. 4383/2012 towards to the water connection and even got the electricity connections to the construction to the building in the suit property, to prove the said fact produced the Ex.D.3, Ex.D.15 and Ex.D.16 according to them the electricity connection was given to the suit schedule property on 28-01-2002, 08-08-2006, 21-11-2003 it appears there were several meters were fixed to the building put up in the suit schedule property. It means to say since 2002 itself there was an electricity connection to the suit schedule property. That apart the defendants have produced the Ex.D.2 which is certified copy of the sale deed of Sri. Gunasheelan the vendor of the defendant No.2 dated 23-09-1972 and mutation registrar as per Ex.D.6.
18. More interestingly, the Ex.D.12 is the Sanjevani Kannada Evening Daily Newspaper dated 14-04-1998 under which said Gunasheelan gave a paper publication stating that, he had lost the original sale 20 O.S.No. 4383/2012 deed of his property bearing Sy.No. 114/4 of Munnekolala village, and requested the general public to deliver the said document, if they found to his address at bearing No. 95/5, St.John Church Road, Bangalore - 560054. If the Ex.D.12 and Ex.D.2 are considered the said Gunasheelan with intent to sell the suit schedule property had executed the agreement of sale in favour of defendant No.2 as per Ex.D.3, even execution of the said sale agreement has been categorically proved by the defendants by examining the one of the attesting witness as D.W.2 who has identified signature of the executant Gunasheelan. With regard to execution of the Agreement of Sale in favor of the defendant no.2 there is no dispute at all.
19. Moreover, If the Gunasheelan had no intentions to sell his property in favor of defendant No.2 the question of handing over original copy of the Sanjevani newspaper dated 14-04-1988, which is 21 O.S.No. 4383/2012 available either with the publisher, or the person who published the advertisement. And, along with the News paper, he had delivered the Ex.D.2 is the duplicate copy of his sale deed. These two documents really corroborate the claim of the defendant no.2. And the newspaper at Ex.D.12 is of the year 1988 which is more than 3 years prior to the agreement of sale dated Ex.D.3. But this aspect has not been disputed by the plaintiff also.
20. But the bone of contention of the plaintiffs are that, the said Gunasheelan had not executed any GPA as per Ex.D.4 and affidavit as per Ex.D.5 in favor of defendant No.2. But defendants have produced the original GPA as per Ex.D.4 and Affidavit Ex.D.5, examined the one of the attesting witness to the said documents as D.W.2, who had categorically deposed that, in the Ex.D.3 agreement of sale there is a signature an LTM of Sri. Gunashellan, who is the vendor of the defendant No.2, Signatures of said Guanasheelan were 22 O.S.No. 4383/2012 marked as Ex.D.3(a) to (c) and LTM were marked as Ex.D.3(d) to (f) and signature of the said witness was marked as Ex.D.3(g), and signature of the purchaser Papamma was marked as Ex.D.3(h), and also shown the Ex.D.4 GPA to the said witness who identified the signature of executant Gunasheelan which were marked as Ex.D.4(a) to (d) and LTM of said Gunasheelan were marked as Ex.D.4(e) to (h) and his signature got marked as Ex.D.4(i). Though L/c for the plaintiffs has cross examined the D.W.No.2 in length, but nothing contrary to his evidence has been elicited in his mouth to dispute the execution of Ex.D.3 to 5 by Sri. Gunasheelan.
21. That apart on the application of the plaintiff, they have called the Sub-registrar of the Bangalore South Taluk, and also called the LTM registers of D.Gunasheelan which were obtained at the time of getting execution of sale deed dated 23-09-1972, under which the said Gunasheelan got purchased the suit 23 O.S.No. 4383/2012 schedule property. Who produced the Ex.D.10 which is the LTM register in volume No. 807 for the period between 05-02-1981 to 07-02-1981 and LTM of Gunasheelan got marked as Ex.P.10(a) which is a undisputed LTM of Gunasheelan. On the application of the plaintiffs the LTM which was marked as Ex.P.10(a) in the LTM Register of the Sub-Registrar and the LTM of Gunasheelan allegedly forthcoming in Ex.D.3 agreement of sale which was Ex.D.3(f) and the LTM's allegedly belongs to Gunasheelan forthcoming in the GPA dated 17-10-1992 which were marked as Ex.D.4(a) to (h) were referred to the finger print expert who after comparing the said LTM gave his opinion stating that the left thumb impression which were marked as Ex.D.3(f) and Ex.D.4(e) forthcoming respectively in Ex.D.3 agreement of sale and GPA are tallied with the admitted thumb impressions of the said Gunasheelan. And he gave a report that the left thumb impression which got marked 24 O.S.No. 4383/2012 as Ex.D.3(d), Ex.D.4(f) and (h), there are no clear ridge portions in the said thumb impressions to compare with the portions of the ridges of thumb impressions available in the admitted LTM. And he also gave an opinion, the thumb impression Ex.D.3(e) and thumb impression Ex.D.4(g) are unfit for examination as they are smudged, indistinct and do not reveal sufficient clear edges. But during the cross examination of the said witness L/c for the defendant has placed Ex.D.29 thumb impression report got through his own sources, which was confronted to the said witness by suggesting that, as per the opinion of an another finger print expert stated that, in the Ex.D.3(d) (e), Ex.D.4(f) (g) (h) there are sufficient characteristics and impressions to compare with the admitted thumb impressions. On perusal of the report of Ex.D.29 and Ex.C.1 and C.2 it is very clear that in the Ex.D.4 affidavit there are left thumb impression of Gunasheelan were forthcoming, now the defendants by 25 O.S.No. 4383/2012 examining the D.W.2 and also on perusal of the expert opinion they have proved that Ex.D3 and Ex.D.4 Agreement of Sale and GPA have been executed by the Gunasheelan alone. For the reasons that, finger print science is a proven science, admittedly the expert appointed by the Counsel gave his opinion that, in both the Agreement of Sale and GPA, there are left Thumb impressions are tallied with the admitted left thumb impressions. Though, the expert appointed by the Court gave his opinion that, some of the thumb impressions are smudged and distinct, cannot be compared, and for some of the Thumb Impressions, he opined that, portions of the thumb impressions available in the admitted thumb impressions are not disputed thumb impressions for comparisons. But, according to himselves, if the more than 8 ridges in the thumb impressions are clear, they are sufficient for comparisons, but without making an efforts to compare the available portions of the ridges in 26 O.S.No. 4383/2012 both the LTM, he cannot expect and reject the job comparisons only on the grounds that, some of the portions of ridges found in the admitted thumb impressions are not found in the disputed thumb impressions is not proper. And, mere on this opinion, this court cannot reject the Ex.D3 and 4 only on that grounds. Moreover, Though, the defendants placed the Ex.D29 report as corroboration to the case of the defendants.
22. The important question raised by the plaintiffs are that, if at all said Gunasheelan had executed the GPA in favor of defendant No.2 with intent to sell his property that become infructuous, inoperatable and loses its validity and revokes immediately after death of principal Gunasheelan, as he died on 09-12-2000 itself the validity of the GPA will closes by there itself. Thus, as on the date of execution of sale deed on 23-12-2000 in favor of the defendant No.1, defendant No.2 had no proper authority, 27 O.S.No. 4383/2012 thus sale deed in favor of the defendant No.1 become void document. In this regard the L/c for the defendant contended that as the Gunasheelan with intent to sell his suit schedule property by receiving the entire sale consideration of Rs. 30,000/- executed GPA along with the affidavit as per Ex.D.4 and Ex.D.5, thus the GPA is coupled with an interest, such GPA attains the irrevocable in nature, it will not loose its validity for death of its principal. in this regard he has placed reliance on the decision of Hon'ble High Court of Karnataka in ILR 1993 KAR 2306 in Mohammed @ Podiya Vs Assistant Commissioner;
4. A power-of-attorney is an authority whereby one is authorised to act for another. Power-of-attorney is ordinarily construed strictly and general powers are interpreted in the light of the special powers, although they may include incidental powers necessary for carrying out the 28 O.S.No. 4383/2012 authority granted. Where a general power is given followed by specific powers, the generality of powers will have to be read in the light of the specific powers granted. In the present case, the first four clauses in the power-of-attorney appear to be ordinary clauses of agency. The fifth clause enables the fourth respondent to construct buildings in the property in question and effect other improvements. Clause 8 empowers the fourth respondent to apply for conversion of land for non-agricultural purposes. Clause 10 empowers the fourth respondent to occupy for himself or let on lease any building in existence or thereafter to come into existence in the said property. Clause 11 empowers the fourth respondent to mortgage the said property and Clause 12 permits the fourth respondent to sell the property for a price not less than of Rs. 29
O.S.No. 4383/2012 75,000 mentioned in the certificate issued under Section 55 of the Act. The fourth respondent paid a sum of Rs.65,000 as deposit and on sale of the property in question he would be entitled to deduct the said sum of Rs.65,000 already paid towards the sale price and the balance thereof shall be paid. This power-of-attorney is an irrevocable one and also contains a provision or clause that petitioner would not demand for any accounts. Thus, the fourth respondent has not only been empowered to do certain acts as an agent, he has also been conferred with power to occupy the lands himself or lease any building already existing in the lands or thereafter come into existence and to construct buildings on the property and make other improvements with the power of sale subject to certain conditions. All said and done this power-of-attorney can by no 30 O.S.No. 4383/2012 stretch of imagination be stated to be a simple case of creating agency.
5. Section 202 of the Contract Act provides that where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot in the absence of any express condition be terminated to the prejudice of such interest. The principle is that when an agreement is entered into on a sufficient authorisation whereby an authority is given for the purpose of giving some benefit to the donee of the authority such an authority is irrevocable. An authority coupled with interest is not determined by death, insanity or bankruptcy of the principal where the agent made advances to the principal and is authorised to sell at best price and recoup advances made by him, the agency is one coupled with interest and is irrevocable. Where 31 O.S.No. 4383/2012 all the rights and liabilities under a contract were made over by a power-of-attorney, such power is an agency coupled with interest.
He also relied on the decision of Hon'ble High Court of Gujarat in AIR 2003 GUJARAT 294 in Bhagwanbhai Karamanbhai Bharvad Vs Arogyanagar Co-op. Housing Society Ltd., and Others.
18. I am in agreement with the contention of the learned counsel Mr. Mihir Thakor for the respondent that the agency would not be terminated Under Section 202 of the Contract Act even after death of the person who has, authorized, where there is no express contract. for termination, relied upon the decision of Division Bench of this Court in the case of Her Highness Shantadevi Pratapsinh Rao Gaekwad v. Sayjibhai H. Patel reported in 1998 (2) GLR 1521, wherein it is held as under :
32
O.S.No. 4383/2012 "No doubt, in the case of Garapati Venkanna (sic) (supra), the Madras High Court had held that, where a power of attorney has been executed by several principals in favour of a person and one of the principals having distinguished interest in subject-matter of power of attorney dies, the death terminates the power of attorney. This view was taken by the Madras High Court because, the Court found that there was no authority coupled with an interest and, therefore, the argument raised on the basis of Section 202 of the Contract Act could not prevail. Here is a case in which we have already held as above that it was a case of an agency coupled with interest. In our opinion, the position of law with reference to Sec. 202 of the Contract Act is, therefore, very clear that the cases in which the agency is coupled with 33 O.S.No. 4383/2012 interest and there is no express contract for termination, there cannot be any termination even by death and, therefore, the factum of death of the principal during the pendency of the suit cannot lead to the termination of the agency. The necessary ingredients required under Section 202 of the Contract Act so as to hold that the agency could not be terminated in the facts of the present case are, therefore, clearly established and we also find that even the factum of death of the principal cannot bring about the termination of the agency."
He also relied on the decision of Hon'ble High Court of ORISSA in AIR 2005 ORISSA 147 ORISSA High Court in Birat Chandra Dagara Vs Taurian Exim Pvt. Ltd., and another.
7. Section 202 of the Contract Act provides that when an agent has himself an interest in 34 O.S.No. 4383/2012 the property which forms subject matter of the agency, the agency cannot, in absence of an express contract, be terminated to the prejudice of such interest. Learned counsel appearing for the respondents also cited a decision of the Apex Court in the case of Seth Loon Karan Sethia v. Ivan E. John, to support the contention that the respondents having an interest in the leasehold area under the Power of Attorney the same cannot be revoked causing prejudice to the respondents. It is clear from the Power of Attorney that the appellant intended to transfer the leasehold area in favour of the Respondent No. l and prima facie also as suggested by the learned counsel for the parties it appears that the appellant had received Rs. 98 lakhs. Therefore, I am of the view that an interest was created in favour of the respondent 35 O.S.No. 4383/2012 No. 1 in the property and therefore such agency cannot, in absence of any express contract, be terminated to the prejudice of such interest. I, therefore, find prima facie case in favour of the Respondents.
8. Shri Jagannath Patnaik, learned senior counsel appearing for the appellant referring to Section 205 of the Contract Act submitted that where there is an express or implied contract that the agency should be continued for any period of time, principal must make compensation to the agent or the agent to the principal, as the case may be, for any previous revocation or renunciation of the agency without sufficient cause. Referring to the aforesaid provision it was contended by Sri Patnaik that under this provision the respondents are entitled to compensation and 36 O.S.No. 4383/2012 therefore there is no irreparable loss to the respondents which cannot be compensated. Having held that Section 202 of the Contract Act prima facie appears to be applicable to the facts of the present case, I am of the view that no such revocation of Power of Attorney could be made to the prejudice of the interest created in favour of the respondents. From the reading of the plaint it appears prima facie that pursuant to execution of Power of Attorney the respondents had taken steps for carrying out the responsibilities conferred on them under the Power of Attorney and therefore I am of the view that balance of convenience also lies in favour of the respondents.
And also relied on the decisions of Hon'ble Supreme Court in AIR 1969 SC 73 in Seth Loon Karan Sethiya Vs Ivan E.John and others. 37
O.S.No. 4383/2012
4. In this appeal we had the benefit of hearing the elaborate arguments of Shri M. C, Chagla for the appellant and of Shri C.B. Aggarwala for the respondent. From the arguments advanced the following questions arise for consideration :
" (1) Whether the power of attorney in question is a power coupled with interest ; if it is so, whether the same is revocable ? (2) Whether in view of the said power the bank can be held to be an assignee of the interest in the decree ; if so, whether that assignment is a legal assignment or an equitable assignment ? (3) Whether the dispute between the appellant and the bank could have been enquired under Section 47 of the Code of Civil Procedure ? (4) If it is held that the bank is an assignee of 38 O.S.No. 4383/2012 the amount due under the decree or any portion thereof, can it because of that interest execute the decree, despite the objection of the appellant, either under Order XXI, Rule 16, or under Section 146 of the Code of Civil Procedure ? and (5) The execution application having been filed in the name of the appellant, can the bank now be permitted to continue the execution in its own right ? "
Some of the questions presented for decision are not free from difficulty. But it is not necessary for us to pronounce on those questions as we are of the opinion that the power of attorney in question is a power coupled with interest, and hence the same is not revocable. Further, the transaction entered into under that document amounts to an equitable assignment of the 39 O.S.No. 4383/2012 decree in favour of the bank to the extent necessary to discharge appellant's debts to the bank and on the basis of the rule laid down by this court in Jugalkishore Sara] v. Raw Cotton Co, Ltd., it is open to the bank to execute the decree in its own right. Lastly, we attach no importance to the form of the execution, which form was necessitated because of the terms of the power of attorney ; looking to the substance of the matter and not being unduly weighed down by the form, we are of opinion that the bank has been executing the decree in its own right. We shall elaborate our reasons in support of these conclusions presently. In view of our above conclusion, we have not thought it necessary to go into the other questions of law raised at the hearing."
5. There is hardly any doubt that the 40 O.S.No. 4383/2012 power given by the appellant in favour of the bank is a power coupled with interest. That is clear both from the tenor of the document as well as from its terms. Section 202 of the Contract Act provides that where the 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. It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked. The document itself says that the power given to the bank is irrevocable. It must be said in fairness to Shri Chagla that he did not contest the finding of the High Court that the power in question was irrevocable.
41
O.S.No. 4383/2012 From the above decisions it is very clear that, as the defendants have proved the execution of GPA with the affidavit which are coupled with a interest executed by Gunasheelan, the defendant No.2 at the time of execution of the Sale deed, she had the authority to own and dispose of the suit schedule property and accordingly sold the same in favor of the defendant No.1 under the registered sale deed at as per Ex.D.1 on 23-12-2000. Thus the sale deed in favor of the defendant No.1 is valid in accordance with the law. Though the executant died prior to execution of the sale deed that doesn't mean that, his death becomes invalidates the GPA, as in view of the principles laid in the supra referred decisions, an authority coupled with interest is not determined by death, insanity or bankruptcy of the principal where the agent made advances to the principal and his authorised to sell at its best price and recoup advances made by him, the agency is one coupled with interest and is 42 O.S.No. 4383/2012 irrevocable, thus the sale deed dated 23-12-2000 is binds on the plaintiffs, who are the Lrs of Gunasheelan. Thus, the suit schedule property has been alienated by way of valid document by the attorney of deceased Gunasheelan, the purchaser the defendant No.1 becomes an absolute owner of the suit schedule property, thus I answer the issue Nos. 1, 2 and 4 in the negative.
23. Issue Nos. 3 and 5: Admittedly in the suit itself the plaintiffs have pleaded that, it is the defendant No.1 had put up the construction and is in possession of the suit schedule property. According to the plaintiff, the defendants trespassed in the suit property, but this court while answering on the issue Nos. 1, 2 and 4 has categorically held that, the sale in favor of the defendant No.1 is valid transfer of title. Thus the possession of the suit schedule property by the defendant No.1 cannot be termed possession in trespass. As the deceased Gunasheelan himself had given 43 O.S.No. 4383/2012 possession of the suit schedule property in favor of his attorney the defendant No.2 by taking the entire sale consideration by executing the GPA which is coupled with an interest, which is irrevocable. Based on the said document, the defendant No.2 alienated the property in favour of the defendant No.1, and since the date of execution of the sale deed the defendant No.1 is having peaceful possession and enjoyment of the suit schedule property as an absolute owner. Thus, the plaintiff is not entitle for the vacant possession of the suit schedule property. And also as on the date of filing of suit the defendant No.1 himself is in possession of the suit schedule property, then there is no question plainitffs having possession of the suit property and causing any interference by the defendants. Thus, answer the issue Nos. 3 and 5 in the negative.
24. Additional Issue Nos. 1 and 2: The plaintiffs suit for declaration that the sale deed dated 44 O.S.No. 4383/2012 23-12-2000 in favor of the 1st defendant is null and void. To seek the said declaration the suit has to be instituted within 3 years, either from the date of execution of the sale deed or from the date of actual knowledge of execution of sale deed. But during the cross examination of P.W.1 categorically admits that, in the year 2004 on the first time after death of her husband she had visited the suit schedule property, by that time she noticed the fencing around the suit schedule property and also two shops roofed with asbestos sheet were found but she did not enquired with anybody with regard to who had put up the said shops and fences therein, and she got all the revenue records in the year 2004 itself. If that aspect is considered if she had got all the revenue records of the suit schedule property in the year 2004 itself definitely she had the knowledge of the sale deed dated 23-12-2000 as in favor of the defendant No.1 as per Ex.D.1. Apart from that she also admitted that in the year 2008-2009 45 O.S.No. 4383/2012 she had come to know that it is the defendants have put up the construction in the suit schedule property and she further stated that 1 or 2 years after 2004 through the surrounding people she came to know that, it is the defendants have put up the construction in the suit schedule property. And she further deposed that she lastly visited the suit schedule property in the year 2006 by that time also she noticed the shops which were noticed in the year 2004 itself, and she also deposed that, she came to know the execution of sale deed in favor of defendant No.1, and she also comes to know in the year 2006 itself it is the defendant had let out the shop premises to the tenant on rent, by that time her daughter the plaintiff No.2 herein was aged about more than 18 years, if these evidence are read firstly the plaintiffs have not approached the court with clean hands, they have specifically suppressed the true facts of knowledge of construction of building put up in the suit 46 O.S.No. 4383/2012 schedule property by the defendants. It means to say in the year 2004 itself the plaintiff were having knowledge on the sale deed in favour of the defendant No.1 and also they were having knowledge that, it is the defendants are in possession and enjoyment of the suit schedule property but they have not approached this court within the time prescribed under law. As per Article 58 of the Limitation Act, suit for declaratoin shall be filed with in 3 years from the right to sue first accrue. It means say, P.W.No.1 knows the facts that, its the defendants have put up the construction, they have got the sale deed by claiming as her husband executed the GPA in favor of the Defendant no.2, who in turn executed the Sale deed in favor of the defendant no.1. They have got the first knowledge in the year 2004 itself or in the 2006. As herself admitted that, in the year 2006 she came to know on the execution of the sale deed of the suit property in favor of the defendant no.1, then should have filed this 47 O.S.No. 4383/2012 suit within 3 years but as they have not approached the court in time, their suit bars the law of limitation. Though the P.W.2 in her evidence and during cross examination she pleaded ignorance on the date of sale in favour of the defendant No.1 and date of dispossession and also construction in the suit schedule property, but even on merit also the plaintiffs have not made out the grounds to grant the relief as sought therein. As the Sale itself is valid, as the sale of property in favor of the defendant no.1 is as if Gunasheelan himself executed the sale deed, undisputedly the suit property was the self acquired property of said Gunasheelan. In which no other have right, title and interest in them.
25. With regard, to payment of court fee is concern, admittedly as on the date of filing of suit the plaintiff paid the court fee of Rs. 55,250/- by valuing the suit as Rs. 8,75,000/- but the defendants contended that as on the date of filing the suit property was worth of Rs. 48
O.S.No. 4383/2012 50,000/- but to substantiate the fact that as on the date of filing of suit property was worth of Rs. 50,00,000/- no piece of document has been placed, by considering the same this court is of the opinion, that the plaintiffs have valued their suit properly and paid the court fee accordingly. Thus, I answer the additional issue No. 1 in the negative and additional issue No. 2 in the affirmative.
26. Issue No.6: Suit of the plaintiffs deserves for the dismissal, hence the following;
ORDER Suit of the plaintiffs is hereby dismissed with cost.
Office is to draw the decree accordingly. (Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 21 st day of September, 2022.) (GANGADHARA.K.N.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY 49 O.S.No. 4383/2012 ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Kanickamarie Kamala P.W.2: Sara Preethi P.W.3: K.R.Nagaraj
(b) Defendant's side :
D.W.1: Papamma
D.W.2: M.Venkatesh Reddy
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: Sale deed
Ex.P.2: Death certificate of
D.Gunasheelan
Ex.P.3: Certified copy of the EC
Ex.P.4: Certified copy of the sale deed
dated 23-12-2000
Ex.P.5: Record of rights of land Sy.No.
114/4
Ex.P.6 Certified copy of the plaint and
and 7: judgment and decree passed in
O.S.No. 152/1998.
Ex.P.8: Certified copy of the application
U/o Rules 1 and 2 of CPC along
with affidavit filed in O.S.No.
152/1998.
Ex.P.9: LTM register in volume No. 482
50
O.S.No. 4383/2012
from 07-02-1972 to 15-03-1972
Ex.P.9(a): LTM of Muniyappa in Doc.No. 4021-1971-72 Ex.P.10: LTM register in volume No. 807 fro m 05-02-81 to 07-02-1981.
Ex.P.10(a) LTM of Gunasheelan in Doc.No. : 15741-1980/81.
Ex.P.11: Sale deed
(b) Defendants side :
Ex.D.1: Registered sale deed Ex.D.2: Certified copy of the sale deed Ex.D.3: Sale agreement Ex.D.4: GPA Ex.D.5: affidavit Ex.D.6 Mutation register and 7: Ex.D.8: Copy of application Ex.D.9: Endorsement
Ex.D.10: Deposit receipt for water supply Ex.D.11: 8 Assessment receipts Ex.D.12: Xerox of letter given by MLA is produced, paper publication publishing loosing of document Ex.D.13: Certificate issued by BESCOM Ex.D.14: Patta book Ex.D.15 Certificates issued by BESCOM and 16:
Ex.D.17: 8 tax paid receipts Ex.D.18: Electricity bills Ex.D.19: Five electricity charges paid receipts.
Ex.D.20: Genealogical tree Ex.D.21 8 RTC extracts to 28:
Ex.D.29: Report 51 O.S.No. 4383/2012 Ex.D.29 Reply letter (A)
(c) Evidence of Court Commissioner :
C.W.1: K.S.Teekaraman
(d) List of documents marked in the evidence of Court Commissioner Ex.C.1: Report XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.