Partly allowed

Shri Dharmanna Kashiraya Karajgi v. Smt.Shivlinguva W/O.Chanabasappa Mayanale and Ors.

Bombay HC19 Aug 2006SA/97/1986

Case brief

AI extract

What is this about?

The High Court dismissed an appeal concerning a suit for partition and possession of ancestral property. The judge held the trial court erred in declaring sale deeds void and substituted the decree to uphold the validity of a sale deed to the appellant, effected under a power of attorney presumed valid under Evidence Act Sec. 85, to the exclusion of the plaintiff's share under a revoked will.

What did the court decide?

Substituted declaration to uphold Sale Deed dated 19.02.1970 executed to appellant, excluding that property from partition; declared Sale Deed dated 11.07.1968 void for others.

Shri Dharmanna Kashiraya Karajgi Vs Smt.Shivlinguva… — Partition | Bombay HC (2006)

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 ... 1 ...

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION

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 SECOND APPEAL NO.97 OF 1986

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 Dharmanna Kashiraya Karajgi, )
 since deceased by his legal )
 representatives: )
 1(a) Smt.Putalabai w/d.Dharmanna Karajgi, )
 1(b) Abha Sidhana s/o.Dharmanna Karajgi, )
 1(c) Shrikant s/o.Dharmanna Karajgi, )
 1(d) Smt.Annapurna Gulingvva Sarkar, )
 1(e) Smt.Mahadevi Gulingppa Kashbalur, )
 1(f) Smt.Shantabai Mailari Kulburge, )
 1(g) Smt.Rakmabai Bhimanna Savkar, )
 1(h) Shri Ramchandra Katti, )
 1(i) Smt.Phalitabai Shivasharam Rautigale,)
 1(j) Smt.Shashikala Kashinath Birdor. )Appellants
 Vs.

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 Shivlingavva w/o Chanbasappa )
 Mayanale & Ors. )Respondents

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 Shri P.N. Karlekar for the Appellants.
 Shri P.M. Mengane for the Respondent No.1.

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CORAM : ABHAY S. OKA, J.

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DATE : AUGUST 19, 2006.

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JUDGMENT:

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 1. This Court admitted the Second Appeal on 24th
 February, 1986 by framing the following substantial
 question of law:

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 (i) Whether the Plaintiff has any right or any
 claim to property sold by testator before her
 death?

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 2. I have heard Shri Karlekar, the learned

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 ... 2 ...

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 counsel appearing for the Appellant and Shri Mengane,
 the learned counsel appearing for the Respondent No.1
 in the Appeal as well as in the cross-objection which
 is filed by the first Respondent.

¶15

 3. The Appellant is the seventh Defendant and the
 first Respondent is the Plaintiff. For the sake of
 convenience the parties are hereinafter referred to
 with reference to their respective status in the Trial
 Court. With a view to appreciate the submissions
 which are made by the learned Counsel appearing for
 the parties, it will be necessary to refer to the
 facts of the case in brief.

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 4. The relevant genealogy is as under:

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 Dhondawwa w/o Sidram Lokhande (died)
 ¦

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 Gurulingawwa Kantayya Hiranli (daughter)

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¦

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 ¦ ¦
 Shivlingavva Chanbasappa Sidram (Son)

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 Mayanale (Plaintiff) (Defendant 6)

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¦

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 --------------------------------------------------

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 ... 3 ...

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 ¦ ¦ ¦ ¦ ¦

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 Basavanappa Gurusidappa Shrimant Shivappa Sharanappa

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 Son Son Son Son Son

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 Deft.1 Deft.2 Deft.3 Deft.4 Deft.5

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 5. There is no dispute that the suit properties
 namely lands and houses described in paragraph No.1(a)
 to 1(f) of the plaint were admittedly owned by the
 deceased Dhondawwa. The said Dhondawwa died on 18th
 March, 1978. The said Dhondawwa, as is seen from the
 genealogy, was survived by her daughter Gurulingawwa.
 The said Gurulingawwa had a son by the name Sidram
 (Defendant No.6) and daughter Shivlingavva. First to
 fifth Defendants are the sons of Shivlingavva. The
 suit was filed by Shivlingavva w/o Chanbasappa Maynale
 who claims to be the owner of all the properties on
 the basis of a Will. The case of the Plaintiff is
 that deceased Dhondawwa executed a Will dated 28th
 December, 1958 in favour of the Defendant No.6 Sidram.
 However, the said Will was revoked by the said
 Dhondawwa by her subsequent Will made on 06th January,
 1965. By the said Will, she made a bequest of all the
 suit properties in favour of the Plaintiff. According
 to the case of the Plaintiff, Dhondawwa had appointed
 her as her constituent attorney to look after the

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 ... 4 ...

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 properties. According to the case of the Plaintiff
 till 18th March, 1978 i.e. the date of death of
 Dhondawwa, she looked after and managed the suit
 properties and from that date she became owner of the
 suit properties on the basis of Will dated 06th
 January, 1965.

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 6. In the plaint it is alleged that the first,
 sixth and seventh Defendants in October 1971 started
 obstructing the Plaintiff over her alleged peaceful
 possession of the suit properties and especially the
 suit lands. According to the Plaintiff, the said
 Defendants went to eight and ninth Defendants who were
 the tenants in the suit house and started receiving
 rent from the said tenants. The said Defendants
 disclosed to the Plaintiff that the first to fifth
 Defendants under a Sale Deed dated 18th July, 1968
 have purchased property mentioned in paragraph Nos.1a,
 1d and 1f of the plaint. The Plaintiff learned that
 the sixth Defendant purchased the property mentioned
 in paragraph No.1b, 1c and 1e by a registered Sale
 Deed dated 11th July, 1968. The Plaintiff learned
 that the first Defendant by posing himself as the
 constituted attorney of Dhondawwa sold the properties
 mentioned in paragraph Nos.1a and 1d of the plaint by
 a registered Sale Deed dated 19th February, 1970 for a

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 ... 5 ...

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 consideration of Rs.12,000/- in favour of the seventh
 Defendant who is the Appellant in this second Appeal.

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 7. The case in the suit filed by the Plaintiff is
 that the Sale Deeds which were executed in favour of
 the first to seventh Defendants are void ab initio and
 not binding on her. The suit was filed on the basis
 of ownership which the Plaintiff allegedly acquired on
 the basis of Will dated 06th January, 1965. The
 Plaintiff claimed a decree for possession and mense
 profit. The first Defendant remained absent and did
 not appear in the suit. However, he was appointed as
 the guardian of the second to fourth Respondents who
 were minors at that time. The Appellant-seventh
 Defendant filed written statement for resisting the
 suit. He also filed additional written statement.
 The seventh Defendant denied that the Plaintiff had
 become the owner of the entire suit property on the
 basis of Will dated 06th January, 1965. He denied
 that the earlier Will dated 28th December, 1958 was
 revoked by Dhondawwa. The seventh Defendant contended
 that the property described in paragraph Nos.1a and 1d
 of the plaint has been purchased by him for valuable
 consideration of Rs.12,000/- and that he is in
 possession from date of execution of the Sale Deed.

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 ... 6 ...

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 8. The learned Trial Judge decreed the suit by
 holding that the Plaintiff and the sixth Defendant
 were having one half undivided shares in the suit
 property. Therefore, a preliminary decree for
 partition was passed in favour of the Plaintiff. It
 was held that the Sale Deeds dated 11th July, 1968 and
 19th February, 1970 were not binding on the Plaintiff.
 The learned Trial Judge held that the deceased
 Dhondawwa has executed a general power of attorney in
 favour of the Plaintiff. The learned Trial Judge
 accepted the case made out by the Plaintiff as regards
 cancellation of earlier Will made by Dhondawwa and
 execution of Will dated 06th January, 1965 in favour
 of the Plaintiff. The learned Trial Judge held that
 the sixth and seventh Defendants have failed to
 establish that deceased Dhondawwa had executed a power
 of attorney in favour of the first Defendant
 authorising and empowering him to execute sale
 transactions in respect of the suit properties.

¶38

 9. There were two Appeals preferred before the
 District Court against the decree passed by the Trial
 Court. One Appeal was preferred by the original
 Plaintiff and the other by the seventh Defendant who
 is the Appellant herein. Both the Appeals were
 dismissed by the learned 2nd Additional District

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 ... 7 ...

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 Judge. The learned Appellate Court held that the
 power of attorney allegedly executed by Dhondawwa in
 favour of the first Defendant was not duly proved.
 The first Appellate Court also observed that in view
 of the provisions of section 17 of the Indian
 Registration Act, 1908, the power of attorney was
 required to be registered as the recitals in the power
 of attorney show that interest was created in favour
 of the first Defendant. The first Appellate Court
 held that as the power of attorney was not registered,
 it cannot give authority to the first Defendant to
 transfer the property of deceased Dhondawwa. The
 learned Judge held that even the Sale Deed allegedly
 executed by the first Defendant in favour of the
 seventh Defendant was suspicious as there was no
 evidence to show that earnest money of Rs.7,000/- was
 paid by the seventh Defendant before the execution of
 the Sale Deed.

¶41

 10. Shri Karlekar, the learned counsel appearing
 for the Appellant-seventh Defendant submitted that the
 power of attorney at Exhibit 127 by Dhondawwa in
 favour of the first Defendant was executed before the
 Judicial Magistrate. He submitted that there is a
 presumption in favour of the execution of power of
 attorney. He submitted that as the power of attorney

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 ... 8 ...

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 was duly proved, it was obvious that the first
 Defendant had authority to execute Sale Deed in
 respect of the property of deceased Dhondawwa. He
 submitted that the power of attorney will not require
 registration and the courts below have committed an
 error by holding that the document required compulsory
 registration under section 17 of the said Act of 1908.
 Shri Mengane, the learned counsel appearing for the
 Respondent No.1-original Plaintiff submitted that the
 power of attorney was not at all proved. He submitted
 that no witness to the execution of the power of
 attorney was examined and witness Khalifa who was
 examined admitted that he had not obtained thumb
 impression of deceased Dhondawwa on the power of
 attorney. He submitted that the execution of the
 power of attorney and contents thereof were not at all
 proved by the seventh Defendant and therefore, the
 Sale Deed executed in his favour was rightly held as
 not binding on the Plaintiff. He submitted that the
 entire basis of the case of the seventh Defendant is
 the power of attorney, the execution and contents of
 which are not duly proved. He placed reliance on
 decision of the learned single Judge of this court in
 the case of Mohansheth Purushottam Gujar Vs. Jayashri
 Vasantrao Mahagaonkar (AIR 1979 Bombay 202). He
 submitted that in view of the said decision, the

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 ... 9 ...

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 presumption under section 85 of the Indian Evidence
 Act, 1872 cannot be relied upon. He, therefore,
 submitted that no interference is needed.

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 11. I have carefully considered the submissions.
 So far as the claim of the Plaintiff based on Will is
 concerned, the controversy relating to the said claim
 does not arise in this Appeal. If it is established
 that deceased Dhondawwa had executed a power of
 attorney in favour of the first Defendant, then it is
 obvious that the Sale Deed which was executed by the
 first Defendant in favour of the seventh
 Defendant-Appellant during the lifetime of Dhondawwa
 will be valid. Therefore, even assuming that there is
 a Will in favour of the original Plaintiff, the
 property sold to the seventh Defendant will not be
 affected by the Will as the bequest will operate only
 to those properties which are not disposed of by the
 deceased Dhondawwa before her death. Therefore, the
 first issue which will have to be decided is as
 regards execution of power of attorney which is at
 Exhibit 127. The first Defendant is the son of
 grand-daughter of Dhondawwa. On plain reading of the
 power of attorney it is crystal clear that power of
 attorney was not executed for consideration. The
 courts below were impressed by the argument that power

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 ... 10 ...

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 of attorney requires compulsory registration. On
 plain reading of the power of attorney which is
 produced at Exhibit 127, it is apparent that the power
 of attorney does not create or transfer any right,
 title and interest in any immovable property held by
 deceased Dhondawwa. It is surprising that the courts
 below have held that section 17(1)(b) of the said Act
 of 1908 will apply to power of attorney and therefore,
 power of attorney requires registration. It is
 obvious that the power of attorney did not require
 registration.

¶49

 12. The learned Trial Judge has observed and it is
 apparent from document at Exhibit 127 that the power
 of attorney is executed before the learned Judicial
 Magistrate, First Class, Akkalkot. It is noted in the
 judgment of the Trial Court that stamps on which power
 of attorney is executed were purchased in the name of
 Dhondawwa on the same day. The learned Magistrate has
 signed and sealed the power of attorney. In this
 connection, it will be necessary to refer to the
 relevant provisions of the Indian Evidence Act, 1872
 (hereinafter referred to as the Evidence Act).

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 Section 85 of the Evidence Act reads thus:

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 "85. Presumption as to

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 powers-of-attorney.- The Court shall presume

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 ... 11 ...

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 that every document purporting to be a
 power-of-attorney, and to have been executed
 before, and authenticated by, a Notary
 Public, or any Court, Judge, Magistrate,
 (Indian) Consul or Vice-Consul, or
 representative of the (Central Government),

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 was so executed and authenticated."

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 On plain reading of section 85 of Evidence Act, there
 is a presumption that every document purporting to be
 a power of attorney and to have been executed and
 authenticated by a Court, Judge or Magistrate was so
 executed and authenticated. Shri Mengane, learned
 Counsel appearing for the original Plaintiff placed
 reliance on the decision of the learned single Judge
 in the case of Mohanshet Purushottam Gujar (Supra).
 The learned single Judge has considered the question
 of applicability of section 85 of the Evidence Act to
 power of attorney which is executed before an officer
 who is named in the said section. In paragraph No.10
 of the said decision, the learned single Judge of this
 court has held thus:

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 "For the purpose of such presumption to
 operate, particularly in the background of
 the facts above ascertained, the

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 ... 12 ...

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 authentication must be clear, specific, more
 decisive and bereft of the features which I
 have indicated earlier. If there is the
 slightest doubt, then the Court must be
 loathe to rely on the presumption contained
 in S.85 and must be equally loathe in
 applying such presumption in favour of the
 party relying on the document. In my
 opinion this was a case in which the
 presumption under S.85 should not have been
 raised in favour of the respondent."

¶60

 The above observation makes it very clear that the
 learned single Judge was considering the question of
 applying presumption under section 85 of the Evidence
 Act in the background of the facts of the case before
 him. After considering the facts of the case, he
 observed that authentication of power of attorney must
 be clear, specific and more decisive. Moreover, the
 learned single Judge has made it very clear that
 according to his opinion the case before him was one
 in which presumption under section 85 of the Evidence
 Act should not have been raised in favour of the
 Respondent.

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 13. In the present case, we are dealing with a

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 ... 13 ...

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 power of attorney which is executed and authenticated
 before the learned Judicial Magistrate. The learned
 Trial Judge has observed that mere proof of execution
 of power of attorney is not sufficient. The learned
 Trial Judge proceeded to observe further that it must
 be proved beyond all doubts that it was executed
 voluntarily and with free Will. The learned Judge,
 found fault with the witness Khalifa examined by the
 seventh Defendant who stated that she had not obtained
 thumb impression of Dhondawwa on Exhibit 127.

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 14. Turning to the judgment of the Appellate Court
 it is held that the power of attorney was a compulsory
 registrable document. It must be remembered it is not
 the case made out in both the courts below on evidence
 that the said Dhondawwa had not executed the power of
 attorney voluntarily and with free Will. If these are
 the facts which are borne out by the record, it is
 difficult to understand as to how presumption under
 section 85 of Evidence Act will not apply to the power
 of attorney at Exhibit 127. The Appellate Court has
 laid much emphasis on non-registration of the power of
 attorney. The said observation of the Appellate Court
 is completely contrary to section 17 of the said Act
 of 1908.

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 ... 14 ...

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 15. Thus, only conclusion which can be drawn is
 that there was a power of attorney executed by
 deceased Dhondawwa before the Judicial Magistrate
 First Class as the presumption under section 85 of the
 Evidence Act will squarely apply.

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 16. The courts below were impressed by the fact

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 that evidence could not be led to show that sum of
 Rs.01,000/- was paid by the seventh Defendant to first
 Defendant in presence of Sub-Registrar. The Trial
 Court has observed that it was for the seventh
 Defendant to examine the first Defendant as a witness
 to the Sale Deed. This court has deprecated the
 practice of calling a party to the suit as a witness
 by other party. The other crucial aspect is that the
 first Defendant did not appear in the suit and in fact
 the contention of the seventh Defendant was that the

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 suit has been filed in collusion with the first
 Defendant. The Sale Deed executed by the first
 Defendant is a registered document. The courts below
 have not observed or held that execution of the said
 document by the first Defendant is not proved. All
 that the Trial Court has observed in paragraph No.47
 is that in absence of evidence of the first Defendant
 the transaction reflected in the Sale Deed cannot be
 treated as real transaction. In my view, the courts

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 ... 15 ...

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 below have committed an error by coming to the
 conclusion that it was not a real transaction. Once
 the power of attorney executed by Dhondawwa in favour
 of the first Defendant was established, it is obvious
 that the first Defendant had right to sell the
 property of Dhondawwa as is clear from the recitals of
 the power of attorney at Exhibit 127. The first
 Defendant has not made any grievance regards alleged
 non payment of the complete consideration under the
 document. Thus, the sum and substance of the
 discussion is that the courts below ought to have
 given effect to the documents at Exhibits 127 and 129
 which clearly prove the transfer of part of the suit
 properties by the first Defendant in favour of the
 Plaintiff. The courts below have not drawn proper
 inferences which were very obvious from the recitals
 in the documents at Exhibits 127 and 129 which were
 duly proved in evidence. It must be noted here that
 it is not the case of the Plaintiff that any fraud or
 misrepresentation was practised by the seventh
 Defendant. Thus, the declaration which is granted by
 the Trial Court as regards Sale Deed dated 19th
 February, 1970 cannot be sustained and that part of
 the decree will have to be modified.

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 17. Rest of the decree passed by the Trial Court

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 ... 16 ...

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 will have to be maintained with a modification that
 the property which is subject matter of Sale Deed
 dated 19th February, 1970 will not be available for
 partition.

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 18. Hence, I pass the following order:

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 (i) The following operative part of the decree
 passed by the Trial Court "It is hereby
 declared that Sale Deeds dated 11th July, 1968
 and 19th February, 1970 are not binding on the
 Plaintiff or the suit properties" is
 substituted as under:

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"It is hereby declared that the Sale
Deed dated 11th July, 1968 is not
binding on the Plaintiff or the suit
properties."

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 (ii) It is clarified that as the Sale Deed dated

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 19th February, 1970 is held to be valid,
 neither the Plaintiff nor the Defendant No.6
 will have any share in the property described
 in the said Sale Deed and therefore, the
 property subject matter of the said Sale Deed
 will not be available for partition.

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 ... 17 ...

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 (iii) Rest of the decree is confirmed.

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 (iv) The Appeal is partly allowed in above terms

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 with no order as to costs.

¶84

JUDGE

Shri Dharmanna Kashiraya Karajgi v. Smt.Shivlinguva W/O.Chanabasappa Mayanale and Ors.

Case brief

What is this about?

What did the court decide?

Shri Dharmanna Kashiraya Karajgi v. Smt.Shivlinguva W/O.Chanabasappa Mayanale and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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