Dismissed

B. G. Hanumantha Rao v. Mr. Mohan Kumar S

Karnataka HC11 Jan 2021RFA/1/2021

Case brief

AI extract

What is this about?

This is a regular first appeal by defendants against a decree in a suit for declaration, cancellation of sale deed, and possession. The trial court declared a deed executed by a Power of Attorney holder of a deceased lady as void. The High Court rejected the appeal due to inconsistencies in agency representation and facts.

What did the court decide?

Appeal rejected with cost of Rs. 10,000/-.

B. G. Hanumantha Rao Vs Mr. Mohan Kumar S — Succession and Inheritance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^th DAY OF JANUARY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

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REGULAR FIRST APPEAL No.1/2021 (DEC/POS)

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BETWEEN:

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B. G. HANUMANTHA RAO, S/O LATE B N GUNDAPPA, AGED ABOUT 80 YEARS, R/AT HOUSE BEARING NO.8 (NEW NO.321), (COMPRISED IN SURVEY NO.5/1), GERAHALLY VILLAGE, BBMP WARD NO.54, 10^TH MAIN ROAD, SRINIVASANAGAR, BANASHANKARI I STAGE, BANGALORE – 560 050.

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SMT. K V RAMAMANI, W/O MR. B G HANUMANTHA RAO, AGED ABOUT 72 YEARS, R/AT HOUSE BEARING NO.8, (NEW NO.321), (COMPRISED IN SURVEY NO. 5/1), GERAHALLY VILLAGE, BBMP WARD NO.54, 10^TH MAIN ROAD, SRINIVASANAGAR, BANASHANKARI I STAGE, BANGALORE – 560 050.

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...APPELLANTS

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(BY SRI.MADHVACHAR M., ADV.,)

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AND:

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MR. MOHAN KUMAR S., AGED ABOUT 49 YEARS, S/O LATE MR. B S SUBBA RAO, R/AT NO. 48, 2^ND MAIN ROAD, 2^ND CROSS, LIC COLONY, JAYANAGAR 3^RD BLOCK EAST, BANGALORE – 560 011.

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MR. JAGADISH KUMAR S., S/O LATE MR. B S SUBBA RAO, PRESENTLY R/AT C13-101, MIG CO-OPERATIVE HOUSING SOCIETY LIMITED, MIG COLONY, GANDHI NAGAR, BANDRA EAST, MUMBAI – 400 051. WITH PERMANENT ADDRESS AT NO.48, 2^ND MAIN ROAD, 2^ND CROSS, LIC COLONY, JAYANAGAR, 3^RD BLOCK EAST, BANGALORE – 560 011.

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…RESPONDENTS

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(BY SRI.MANU K., ADVOCATE FOR C/R)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULES 1 AND 2 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 12.11.2020 PASSED IN OS.No.26406/2014 ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL, BANGALORE, DECREEING THE SUIT FOR DECLARATION AND POSSESSION.

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THIS RFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Though, the matter is listed for Admission, with consent of learned counsel for both the parties, the same is taken up for final disposal.

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Appeal is directed against the judgment and decree dated 12.11.2020 passed in O.S.No.26406/2014 on the file of XXVIII Addl. City Civil and Sessions Judge, Mayohall, Bangalore, wherein the suit of the plaintiffs came to be decreed with costs. The operative portion of the judgment reads as under:

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“The suit of the plaintiffs is hereby decreed with costs.

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It is hereby declared that the sale deed dated 04.04.2008 executed by the 1^st defendant in favour of the 2^nd defendant in respect of the plaint schedule property as the General Power of Attorney Holder of B.S.Neeraja is null and void and hereby cancelled.

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The defendants are hereby directed to hand over actual vacant possession of the plaint schedule property in favour of the plaintiffs within 60 days from the

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date of this order. On their failure, the plaintiffs at liberty to apply for the same.

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It is hereby made clear that the plaintiffs are entitled to recover three years arrears of rent till filing of the present suit and subsequent damages in a separate enquiry under Order XX Rule 12 of CPC.

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Draw decree accordingly.”

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2. In order to avoid confusion and overlapping,

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the parties herein are referred to in accordance with their ranks and status as stood before the trial Court.

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The present appeal is filed by the defendants

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against the judgment and decree passed by the trial Court, wherein the trial Court directed the defendants to hand over the actual vacant possession of the suit schedule property in favour of the plaintiffs within 60 days from the date of the order. The suit schedule property is stated to be a residential house situated at Srinivasa Nagar, Bangalore.

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The substance of the case is that the

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plaintiffs filed a suit in O.S.No.26406/2014 on the file of XXVIII Addl. City Civil and Sessions Judge, Bangalore, for the relief of declaration declaring the sale deed dated 04.04.2008 as void ab - initio and for cancellation of the said instrument and consequently, sought for direction to the defendants to vacate and handover the vacant possession of the suit schedule property with other consequential relief.

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The facts of the case is that the plaintiffs are

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the absolute owners of the residential Site bearing No.8 comprised in Sy.No.5/2, Gerahallli Village, BBMP Ward No.54, 10^th Main, Srinivasa Nagar, Banashankari I Stage, Bangalore, measuring 40 feet on the East, West boundary and 30 feet on the North, South boundary, totally measuring 1200 sq.ft. The plaintiffs have inherited the plaint schedule property from their father late B.S.Subba Rao S/o late D.Y.Srinivasa Murthy. The

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plaintiffs are the only legal heirs of late B.S.Subba Rao and defendant No.1 is the tenant and defendant No.2 is his wife. Defendant No.1 was inducted as a tenant in the plaint schedule property around the year 1995 and the rent was fixed at Rs.1,750/- and the same was directly used by the unmarried sister of late B.S.Subba Rao by name late B.S.Neeraja. Due to ill-health B.S.Neeraja died on 15.08.2006. The plaintiffs’ father Sri B.S.Subba Rao died on 29.01.2008 and mother Smt.Malathi G.V., died on 23.10.2012. When the plaintiffs asked the defendants to vacate and handover the possession of the plaint schedule property, initially defendants sought for some time and thereafter, dodged the plaintiffs on one pretext or the other. The plaintiffs were constrained to issue notice dated 07.02.2013. Defendant No.1 gave a reply dated 12.02.2013 disputing the landlord and tenant relationship.

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The further details are that the defendants

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have alleged that the plaint suit schedule property was purchased by one Sri.B.S.Subba Rao through a registered sale deed dated 25.08.1962 and defendant No.1 was inducted as a tenant during the year 1995 and rent that was accrued therein was utilized by Smt.B.S.Neeraja who is the sister of Sri.B.S.Subba Rao and the monthly rent was fixed at Rs.1,750/-. It was also stated that the property was gifted to Smt.B.S.Neeraja through a registered gift deed dated 06.06.1970. Smt.B.S.Neeraja died on 15.08.2006. Sri.B.S.Subba Rao died on 29.01.2008. It is further stated that on 07.02.2013 the plaintiffs were constrained to issue notice, for which, defendant No.1 replied on 12.02.2013 by denying the jural relationship of landlord and tenant.

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The defendants have entered appearance and filed their written statement denying all the

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allegations and contending that the suit schedule property is belonged to Smt.B.S.Neeraja and she acquired the same through a registered gift deed dated 06.06.1970. Defendant No.1 was inducted as a tenant by late Smt.B.S.Neeraja during the year 1972 on a rent of Rs.25/- per month, which was initially fixed. Subsequently, the rent was enhanced from time to time. Last rent was paid upto December, 2005. The suit schedule property consists of only one hall and a kitchen with A.C. Sheet without any boundary walls and there were no civic amenities and the defendants have spent amount and have got the facilities. It is further stated that Smt.B.S.Neeraja was married to one Gururaja Rao at Tirupati during the year 1977. Thereafter, Smt.B.S.Neeraja expressed her willingness to sell the property. Accordingly, the defendants have shown interest to purchase the same. She executed irrevocable power of attorney and also executed affidavit for having received Rs.4,00,000/- from the defendants

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towards sale consideration. Based on the said

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irrevocable power of attorney, defendant No.1 has executed sale deed in favour of defendant No.2. The defendants are in peaceful possession and enjoyment of the suit schedule property.

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Based on the pleadings, the learned trial

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Judge framed the following issues: 1. Whether the plaintiffs prove that they are the only legal heirs of late B.S.Neeraja?

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2. Whether the defendant No.1 proves that late B.S.Neeraja has executed the general power of attorney in his favour authorizing him to sell the plaint schedule property?

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3. Whether the plaintiffs further prove that the sale deed dated 4.4.2008 executed in favour of the defendant No.2 by the defendant No.1 as the general power of attorney holder of late B.S.Neeraja is null and void and the same is liable to be cancelled?

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4. Whether the plaintiffs further prove that they are the absolute owners of the plaint schedule property?

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5. Whether the plaintiffs further prove that the defendant No.2 is a tenant under them in respect of the plaint schedule property?

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6. Whether the plaintiffs further prove that the tenancy of the defendant No.1 is duly terminated?

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7. Whether the plaintiffs further prove that the defendants are in arrears of rent of Rs.63,000/-?

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8. Whether the plaintiffs prove that the defendants are in unlawful occupation of the plaint schedule property and are liable to pay a sum of Rs.10,000/per month towards damages from the date of the suit?

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9. Whether the defendants prove that the suit of the plaintiff is barred by limitation?

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Additional issues dtd: 3.11.2017

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1. Whether the plaintiff is entitled for the relief of declaration that the sale deed dtd: 4.4.2008 is null land void and for cancellation of the same?

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2. Whether the plaintiff is entitled for the relief of possession?

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3. Whether the plaintiff is entitled for the relief of arrears of rents and damages?

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4. What order or decree?

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Re-casted Addl. Issues No.5 dtd:9.7.2018

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5. Whether the defendants prove that the power of attorney dtd: 16.11.1997 is executed by Smt.B.S.Neeraja in favour of the 1^st defendant

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and the same is executed for consideration and is coupled with interest?

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9. The learned trial Judge has framed the

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above issues and was accommodated with the oral evidence of P.W.1-Jagadish Kumar S., and documentary evidence as Exs.P.1 to P.32 on behalf of the plaintiffs and D.W.1-K.V.Ramani and D.W.2-B.H.Shankar and documentary evidence of Exs.D.1 to D.112 on behalf of the defendants. Upon conclusion of trial, suit came to be decreed as stated above, which challenged in this appeal by defendants.

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appellants/defendants has not produced the copy of the sale deed executed by Smt.B.S.Neeraja in favour of appellants/defendants. However, learned counsel for the appellants/defendants has furnished the copy of the

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sale deed, which is executed by defendant No.1 in favour of defendant No.2. The said sale deed executed

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by defendant No.1- Sri.B.G.Hanumantha Rao was not in

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his personal capacity and it is on behalf of Smt.B.S.Neeraja who is the daughter of late Sri.D.Y.Srinivasa Murthy residing at No.17, 2^nd cross, N.R.Colony, Model House Street, Basavanagudi, Bangalore. It is admitted by the defendants that Smt.B.S.Neeraja is the original owner of the suit schedule property. It is to be noted that plaintiff No.1 is Sri.Mohan Kumar S., aged 44 years, s/o Sri.B.S.Subba Rao and plaintiff No.2 is Jagadish Kumar S., aged 42 years, s/o Sri.B.S.Subba Rao. It is admitted by both the parties that execution of gift deed by Sri.B.S.Subba Rao s/o Sri.D.Y.Srinivasa Murthy in favour of Smt.B.S.Neeraja is not disputed in terms of execution and description of the suit schedule property. The said registered gift deed is dated 06.06.1970.

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Learned counsel for the appellants would further submit that appellant No.1 is the absolute

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owner of the suit schedule property and there is no law prohibiting husband being the power of attorney to the property to be sold in favour of wife.

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Accordingly, he submitted that defendant

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No.1 being the power of attorney has executed the sale deed dated 04.04.2008 in favour of defendant No.2. In

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the certified copy of the sale deed filed by the appellants/defendants, it is stated that late Sri.D.Y.Srinivasa Murthy and Smt.Nagamma are spouses and they had two children one is Sri.B.S.Subba Rao and another one is Smt.B.S.Neeraja and both the spouse are said to have been dead. Sri.B.S.Subba Rao and Smt.Malathi G.V., are spouse and their children are the plaintiffs and plaintiff No.1 has two children namely Adithya Mohan and Amogh Mohan.

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Learned counsel further submits that

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Sri.B.S.Subba Rao is the brother of Smt.B.S.Neeraja and they are said to have been dead. In the cause title,

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it is stated that respondent No.1-Sri.Mohan Kumar S., aged 49 years, s/o Sri.B.S.Subba Rao and respondent No.2-Sri.Jagadish Kumar S., s/o Sri.B.S.Subba Rao. The suit was filed for eviction and the defendants were directed to vacate the suit schedule property and sixty days time was given to vacate the same.

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Now, the question is, as to whether there is a denial of title. No doubt, in the suit for eviction, there is a procedure for adjudication, but the denial of title cannot be evasive or formal. The appellants/defendants were directed to vacate and hand over the suit schedule property in favour of the plaintiffs. Defendant No.1 - Sri.B.G.Hanumantha Rao s/o Sri.B.N.Gundappa is the husband of Smt.K.V.Ramamani. The claim of defendant No.1 is that he has purchased the property from Smt.B.S.Neeraja under a registered sale deed. In the pleadings, the defendants have stated that Smt.B.S.Neeraja had expressed her desire to sell the

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suit schedule property and defendants had paid

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Rs.4,00,000/- to her and for having received the said amount, she executed affidavit and irrevocable power of attorney.

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Learned counsel for the appellants would further submit that both the affidavit and power of attorney are lost and the police complaint has been filed. The status of defendant No.1 is the power of attorney holder of original owner Smt.B.S.Neeraja. But the power of attorney is not produced, which is stated to have been lost and though, police complaint has been lodged, the same could not be traced out. Secondly, the point is with regard to the affidavit sworn for having received Rs.4,00,000/-. In this connection, it is stated that the same is also lost along with the power of attorney. No further details are forthcoming except the sale deed executed by defendant No.1 in favour of defendant No.2. Further, in the sum and substance, the

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contention of the defendants is that defendant No.2 is

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the owner of the suit schedule property.

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Defendant No.1 who is the husband of

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defendant No.2 had executed a registered sale deed on 04.04.2008 in her favour as a power of attorney holder of Smt.B.S.Neerja for Rs.6,00,000/- regarding being had

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to the fact that Rs.4,00,000/- was paid. There are material inconsistencies and discrepancies in the contention of the defendants that initially they state that they have paid Rs.4,00,000/- to Smt.B.S.Neeraja and in the sale deed executed by defendant No.1 in favour of defendant No.2, it is stated as Rs.6,00,000/and the entire amount is stated to have been received. However, when this reasoning was being dictated, learned counsel for the appellants submits that there was an understating between the parties regarding consideration of Rs.4,00,000 and Rs.6,00,000/-, which

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I find that it is not acceptable as principles of agency was canvassed.

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In this connection, it is necessary to mention two rules of agency, which are as under:

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(i) Whatever a person can do by himself, he

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can do it from others.

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(ii) He who does an act through others can do

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the act by himself.

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The duties and rights of Agent under the Indian Contract Act, 1872 (for short the ‘Act’) read as under:

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“211. Agent’s duty in conducting principal’s business.—An agent is bound to conduct the business of his principal according to the directions given by the principal, or in the absence of any such directions according to the custom which prevails in doing business of the same kind at the place where the agent conducts such business. When the agent acts otherwise, if any loss be sustained, he must make it good to his principal, and if any profit accrues, he must account for it.

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212. Skill and diligence required from agent.—An agent is bound to conduct the business of the agency with as much skill as is generally

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possessed by persons engaged in similar business unless the principal has notice of this want of skill. The agent is always bound to act with reasonable diligence, and to use such skill as he possesses; and to make compensation to his principal in respect of the direct consequences of his own neglect, want of skill, or misconduct, but not in respect of loss or damage which are indirectly or remotely caused by such neglect, want of skill, or misconduct.

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213. Agent’s accounts.—An agent is bound to render proper accounts to his principal on demand. —An agent is bound to render proper accounts to his principal on demand."

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214. Agent’s duty to communicate with principal.—It is the duty of an agent, in cases of difficulty, to use all reasonable diligence in communicating with his principal, and in seeking to obtain his instructions.

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215. Right of principal when agent deals, on his own account, in business of agency without principal’s consent.—If an agent deals on his own account in the business of the agency, without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows, either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him.

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216. Principal’s right to benefit gained by agent dealing on his own account in business of agency.—If an agent, without the knowledge of his principal, deals in the business of the agency on his own account instead of on account of his

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principal, the principal is entitled to claim from the agent any benefit which may have resulted to him from the transaction.

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218. Agent’s duty to pay sums received for principal.—Subject to such deductions, the agent is bound to pay to his principal all sums received on his account.

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219. When agent’s remuneration becomes due.—In the absence of any special contract, payment for the performance of any act is not due to the agent until the completion of such act; but an agent may detain moneys received by him on account of goods sold, although the whole of the goods consigned to him for sale may not have been sold, or although the sale may not be actually complete.

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220. Agent not entitled to remuneration for business misconducted.—An agent who is guilty of misconduct in the business of the agency, is not entitled to any remuneration in respect of that part of the business which he has misconducted.

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221. Agent’s lien on principal’s property.—In the absence of any contract to the contrary, an agent is entitled to retain goods, papers, and other property, whether movable or immovable of the principal received by him, until the amount due to himself for commission, disbursements and services in respect of the same has been paid or accounted for to him.

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222. Agent to be indemnified against consequences of lawful acts.—The employer of an agent is bound to indemnify him against the consequences of all lawful acts done by such agent in exercise of the authority conferred upon him.

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225. Compensation to agent for injury caused by principal’s neglect.—The principal must make compensation to his agent in respect of injury1 caused to such agent by the principal’s neglect or want of skill. "

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19. An Agency may be created by expressed

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contract, implied or even by ratification. A person comes to know that he has been represented by an act, which may be ratified, but in the present case, the power of attorney and the affidavit were lost and the same have

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not been traced out. According to the defendants, Rs.4,00,000/- was paid. The next major question is the contents of the sale deed, where defendant No.1 who is the husband of defendant No.2 being the power of attorney holder has executed the sale deed in favour of defendant No.2 in respect of the suit schedule property that belongs to late Smt.B.S.Neeraja.

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Here it is necessary to mention Sections 202 and 203 of the Act, which read as under:

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“202. Termination of agency, where agent has an interest in subject-matter.—Where the

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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.

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203. When principal may revoke agent’s authority—The pricnipal may, save as is otherwise provided by the last preceding section, revoke the authority given to his agent at any time before the authority has been exercised so as to bind the principal."

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Further, it is stated that when the agent himself has an interest in the property which forms the subject matter of the agency, the agency cannot in the absent of an express contract be terminated to the prejudice of such interest. But the basic and primary rule is that the agency comes to an end on the death of the members. This is an elementary principle and there is no need to repeat that the agency is represented regularly known for agency is the power of attorney. Section 235 of the Act reads as under:

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“235. Liability of pretended agent.—A person untruly representing himself to be the authorized agent of another, and thereby inducing a third person to deal with him as such

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agent, is liable, if his alleged employer does not ratify his acts, to make compensation to the other in respect of any loss or damage which he has incurred by so dealing.”

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The death of Smt.B.S.Neeraja on 15.08.2006

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is not disputed.

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The sale deed which the defendants are

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claiming has been executed in favour of defendant No.2 on 04.04.2008. The execution of the lost power of attorney B.S.Neeraja died on 15.08.2006. The attorney executes the sale deed to the purchaser, his wife on 04.04.2008. The death of executant of the power of attorney was least respected by playing deception. The issue regarding the power of attorney was framed and that was answered against the defendants.

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It is necessary to mention that the first rule

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of agency is that whatever the person can do by himself, he can do it through others and he does it by himself. I have quoted the above Rule for the reason that when

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Smt.B.S.Neeraja died in the year 2006 and she is represented by the power of attorney holder and whether they are residing in the suit schedule property which belonged to Smt.B.S.Neeraja is sold by defendant No.1 in favour of defendant No.2 who is his wife Smt.Rama Mani, a dead lady is represented claiming that she has executed the power of attorney. At the first instance, the power of attorney is stated to have been lost and even if power of attorney is executed, it would not have been available to the plaintiffs and what was not explained according to the plaintiffs, there was an understanding. Smt.B.S.Neeraja is addressed as “ Srimathi ”. The learned counsel for the appellants submits that as per Hindu Law, the word “ Srimathi ” is prefixed only for married lady.

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Thus, it is a clear case of mis-representation

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and the mischief is played for wrongful gain. It is a mockery of justice and the defence relied is vexatious.

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Though, the documents are filed, but the mother document is the prime document, which is unreliable. As such, at this stage, I find that there are no grounds to admit the appeal and the same is rejected with cost of Rs.10,000/-.

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Sd/JUDGE

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B. G. Hanumantha Rao v. Mr. Mohan Kumar S

Case brief

What is this about?

What did the court decide?

B. G. Hanumantha Rao v. Mr. Mohan Kumar S

Case brief

What is this about?

What did the court decide?

What the court decided

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