Allowed

Sri R Ravi v. Smt Nagarathnamma

Karnataka HC30 Aug 2024RFA/1962/2018

Case brief

AI extract

What is this about?

First appeal over ownership and possession of a Bengaluru property sold via sale deed but occupied by defendants claiming title through an unexecuted agreement, GPA and a Will. The High Court held title passes by registered conveyance even without possession, upheld the plaintiff's chain of title, and decreed the suit.

What did the court decide?

Trial judgment set aside; suit decreed declaring plaintiff owner and entitled to possession from defendants 2 and 3, directed to hand over possession within three months.

Sri R Ravi Vs Smt Nagarathnamma — Property and Title | Karnataka HC (2024)

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RFA No. 1962/2018

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IN THE HIGH COURT OF KARNATAKA, AT BENGALURU

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DATED THIS THE 30^TH DAY OF AUGUST, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE V KAMESWAR RAO

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AND

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THE HON'BLE MR. JUSTICE C M JOSHI

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REGULAR FIRST APPEAL NO. 1962 OF 2018 (DEC-INJ)

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BETWEEN :

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SRI. R. RAVI S/O. GANESH, AGED ABOUT 43 YEARS, R/AT: NO. 135/3, III BLOCK, III STAGE, BASAVESHWARANAGAR, BANGALORE-560079.

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...APPELLANT

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(BY SRI. C.M. NAGABUSHANA, ADVOCATE)

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AND:

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SMT. NAGARATHNAMMA W/O. R.V. SADASHIVAIAH AGED ABOUT 67 YEARS, R/AT: NO.40, BEHIND POLICE QUARTERS, NANJUNDESHWARA LAYOUT, NANDINI LAYOUT, BANGAORE-560096.

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SMT. SUVARNAMMA W/O. CHANDRASHEKARAIAH, AGED ABOUT 56 YEARS,

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RFA No. 1962/2018

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R/AT: NO. 71, SUGAPPA EXTENSION, YESHWANTHAPUR HOBLI, LAGGERE, BANGALORE NORTH TALUK, BANGALORE-560038.

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SRI. CHANDRASHEKARAIAH S/O. VERANNA, AGED ABOUT 58 YEARS, R/AT: NO. 71, SUGAPPA EXTENSION, YESHWANTHAPUR HOBLI, LAGGERE, BANGALORE NORTH TALUK, BANGALORE-560038.

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… RESPONDENTS

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(BY SRI. H.S. SACHIDANAND, ADVOCATE FOR R1; SRI. V. RAJANNA, ADVOCATE FOR R2 AND R3)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CPC., AGAINST THE JUDGMENT AND DECREE DATED: 15.09.2018 PASSED IN O.S.NO.7598/2014 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL JUDGE, AT BENGALURU, DISMISSING THE SUIT FOR DECLARATION, PERMANENT INJUNCTION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 25/07/2024 AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’, THIS DAY, C M JOSHI, J., PRONOUNCED THE FOLLOWING:

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RFA No. 1962/2018

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CORAM: HON’BLE MR. JUSTICE V KAMESWAR RAO and HON’BLE MR. JUSTICE C M JOSHI

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CAV JUDGMENT

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(PER: HON’BLE MR. JUSTICE C M JOSHI)

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Aggrieved by the dismissal of O.S.No.7598/2014 by

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the learned XIV Additional City Civil Judge, Bengaluru, CCH No.28, (for short ‘the Trial Court’), dated 15.09.2018 the plaintiff is before this Court in appeal.

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By the impugned judgment, the suit filed by the plaintiff/appellant for declaration and possession of the suit schedule property came to be dismissed.

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The factual matrix relevant for the purpose of this appeal are as follows;

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(a) The plaintiff purchased the suit schedule property under a registered sale deed dated 02-06-2014 from defendant No.1-Nagarathnamma, who had acquired

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title over the same out of a registered sale deed dated 13-02-2004 by Lakshmamma, who had a registered General Power of Attorney (GPA for short) dated

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RFA No. 1962/2018

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21-10-1995 by the erstwhile owner T.K. Ranganath in her favour. The sale deed executed by defendant No.1 dated 13-02-2004 records an agreement between Lakshmamma and the husband of defendant No.1, R.V. Sadashivaiah and that R.V.Sadashivaiah died on 07-01-2004. The plaintiff verifying the above records and the title of defendant No.1-Nagarathnamma entered into the sale transaction and purchased the suit schedule property on 02-06-2014.

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(b) It is the case of the plaintiff that the suit schedule property was in occupation of defendant Nos.2 and 3 and defendant No.1 represented that they would handover the possession of the property within two days of the sale deed. However, they did not handover the possession, but on the other hand, they claimed their ownership rights in the property on the basis of a Will executed by R.V.Sadashivaiah in favour of the defendant No.3 on 22-01-2001 and a Gift deed by defendant No.3 in favour of defendant No.2 on 13-05-2014. It is also the case of the plaintiff that on further probing, he came to

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RFA No. 1962/2018

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know that defendant No.3 had filed a suit for injunction against defendant No.1 in O.S.No.2273/2012 and the said suit came to be dismissed on 07-08-2014. Though an order of status-quo was in force during the pendency of the said suit, defendant No.3 had executed the gift deed on 13-05-2014 in favour of defendant No.2.

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(c) The plaintiff further stated that when defendant No.1-Nagarathnamma had admitted the possession of defendant No.3 who was the brother of R.V.Sadashivaiah over the suit schedule property, their possession is illegal and therefore, the plaintiff was constrained to file this comprehensive suit for declaration of his title, possession and perpetual injunction.

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Defendant Nos.2 and 3 appeared before the Trial Court and resisted the suit. They contended that R.V. Sadashivaiah entered into an agreement of sale dated 17-12-1999 in respect of the suit schedule property with Smt. Lakshmamma and she executed a GPA in respect of the suit schedule property in favour of R.V.Sadashivaiah

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on 22-04-2000. Thereafter, on the basis of such

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RFA No. 1962/2018

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agreement and GPA, R.V.Sadashivaiah executed an unregistered Will dated 22-01-2001 in favour of defendant No.3. On the basis of the said Will, defendant No.3 claims ownership over the property subsequent to the death of R.V.Sadashivaiah on 07-01-2004. Thereafter, defendant No.3 has executed a registered gift deed dated 13-05-2014 in favour of defendant No.2, who is none else than his wife. It is the case of defendant Nos.2 and 3 that relationship between defendant No.1- Nagarathnamma and her husband R.V. Sadashivaiah was not cordial during 1999 though R.V.Sadashivaiah had paid full sale consideration amount, they were unable to get the sale deed executed for personal difficulties and legal impediments. They contended that defendant No.3 had also invested money in purchasing the suit schedule property and constructed a house in the same. Therefore, they sought for dismissal of the suit.

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Defendant No.1 in her written statement stated

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that her husband R.V.Sadashivaiah died on 07-01-2004 and thereafter, she approached Lakshmamma and got

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RFA No. 1962/2018

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executed the sale deed on 13-02-2004 and as such, she has become the absolute owner of the suit schedule property. She has admitted the relationship between R.V.Sadashivaiah and defendant No.3, who are brothers. However, she denied the Will executed by R.V. Sadashivaiah in favour of defendant No.3. She also contended that defendant No.3 has no manner of right, title or interest inasmuch as, R.V. Sadashivaiah had no title over the suit schedule property. Therefore, she supported the case of the plaintiff.

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On the basis of the above pleadings, the Trial

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Court framed the following issues; “1. Whether the plaintiff proves to be absolute owner of the suit schedule property?

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2. Whether the plaintiff proves to be entitled for possession of the suit schedule property from the defendants No.2 and 3?

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3. Whether the first defendant proves that he was the absolute owner of the suit schedule property?

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4. Whether the defendant No.2 and 3 prove to be in peaceful possession and enjoyment of the property with all right, title and interest from 1999?

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5. Whether the plaintiff is entitled to the relief of permanent injunction as sought for?

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6. What order or decree?”

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The plaintiff was examined as PW1 and Ex.P1 to Ex.P19 were marked on his behalf and marked

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photographs as Ex.D1 and Ex.D2 by way of confrontation during the cross examination of PW1. Defendant No.3 examined himself as DW1. After hearing the arguments by both the sides, the Trial Court answered issue Nos.1 to 3 and 5 in the negative by holding that the possession of the suit schedule property was not handed over to the plaintiff though there is a sale deed; issue No.4 in the affirmative by relying on Section 54 of the Transfer of Property Act, the title of the plaintiff is not established and dismissed the suit with costs.

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It is to be noted that the agreement of sale and the GPA executed by Lakshmamma in favour of R.V.Sadashivaiah were impounded by the Trial Court for

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non payment of the adequate stamp duties. Paragraph No.33 of the impugned judgment shows that, though it was notified on 03-04-2017 that duty and penalty has to be paid, defendant Nos.2 and 3 had not paid the same and

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the documents were directed to be sent to the Deputy Commissioner of Stamps, Bengaluru.

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Being aggrieved by the said judgment, the

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plaintiff is before this Court in appeal.

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The arguments by the learned counsel Sri. C.M. Nagabhushana, appearing for the appellant and the learned counsel Sri. V. Rajanna, appearing for the respondent Nos.2 and 3 were heard.

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The learned counsel appearing for appellant would submits that Sri R.V.Sadashivaiah had never acquired title over the suit schedule property, which he could transfer either under the Will or otherwise, to defendant No.3. He points out that the agreement entered into between R.V.Sadashivaiah and Lakshmamma and the power of attorney executed by Lakshmamma did not confer any title in favour of R.V.Sadashivaiah. Moreover, the said agreement and the GPA have been impounded by the Trial Court and no steps were taken by the defendants to comply the order passed by the Trial Court in that regard. On the other hand, Lakshmamma had executed a

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RFA No. 1962/2018

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registered sale deed on 13-02-2004 in favour of defendant No.1 as per Ex.P.2, wherein there is a reference to the agreement of R.V.Sadashivaiah. Therefore, defendant No.1 had valid title, which was transferred to the plaintiff under sale deed dated 02-06-2014.

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He relies on the judgment in the case of Suraj Lamp and Industries Private Ltd., v. State of Haryana and another¹ and Maya Devi v. Lalta Prasad² to contend that 'GPA cannot be a document of transfer of title.' He would also submit that 'title' and 'possession' are two different aspects and the principle that the possession follows the title; but on the other hand, the Trial Court gave a finding that since the plaintiff is not in possession, he is not the title holder. Hence, he sought for indulgence of this Court in setting aside the judgment of the Trial Court.

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Per contra , the learned counsel appearing for respondent Nos.2 and 3 submits that the documents which are impounded by the Trial Court be looked into. He

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1 2012 (1) SCC 656

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2 2015 (5) SCC 588

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RFA No. 1962/2018

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submits that an irreversible interest had been created in favour of R.V.Sadashivaiah since he had paid the entire sale consideration amount to Lakshmamma and therefore,

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an agreement which has created an interest in R.V.Sadashivaiah, supported by a GPA has to be considered; which is precisely done by the Trial Court. He submits that defendant No.1 was never in possession of the property and therefore, a mere sale deed by defendant No.1 without possession cannot be valid entitling the plaintiff the relief of declaration and possession.

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Having heard the learned counsel for the parties, the question that arises for our consideration is, Whether the title under the sale deed becomes invalid only because the possession is not handed over to the purchaser?

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Our answer to the above question is emphatically in the negative for the reasons assigned below:

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It is not in dispute that the suit schedule property was owned by S.Ramakrishna and he executed a

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RFA No. 1962/2018

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sale deed in favour of T.K. Ranganath on 27-07-1984. Thereafter, the said T.K.Ranganath had executed a registered GPA in favour of Lakshmamma on 21-05-1995. The capacity of Lakshmamma to alienate the property is not disputed either by the plaintiff or defendants, for, they claim to derive their title through Lakshmamma only. Defendant Nos.2 and 3 claim that Lakshmamma executed an agreement of sale in favour of R.V.Sadashivaiah and also sold the said property for a consideration of Rs.2,00,000/-. It is relevant to note that the said transaction with R.V.Sadashivaiah did not fructify in the form of a conveyance deed. Thus, defendant Nos.2 and 3 claim title on the basis of such unregistered agreement of sale and GPA, which came to be impounded by the Trial Court for non-compliance of the provisions of the Karnataka Stamp Act.

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It is pertinent to note here itself that though the applicability of the principles laid down by the Apex Court in the case of Suraj Lamp and Industries Pvt. Ltd., (referred supra) is prospective in nature, the same is

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RFA No. 1962/2018

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inapplicable in view of said principle was incorporated in Article 5(e) of Schedule to the Karnataka Stamp Act by way of an Amending Act No.8 of 1995, w.e.f. 01-04-1995. Thus, it is evident that if possession is handed over pursuant to agreement of sale and GPA, the stamp duty has to be paid on the market value of the property. On this ground, the agreement as well as the GPA executed by Lakshmamma in favour of R.V.Sadashivaiah cannot be looked into; and were impounded by the Trial Court. The submission of the learned counsel for respondent Nos.2 and 3 that such impounded documents have to be considered by this Court cannot be countenanced as it is contra to the provisions of the Karnataka Stamp Act, which specifically bars admissibility of such documents.

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It is the case of defendant Nos.2 and 3 that

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R.V.Sadashivaiah had executed a Will in favour of defendant No.3-Chandrashekaraiah on 22-01-2001. Later, he died on 07-01-2004. Evidently, at no stretch of imagination, R.V. Sadashivaiah was not having any right and title in respect of the suit schedule property on the

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RFA No. 1962/2018

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basis of agreement and the GPA executed by Lakshmamma in his favour. The claim in respect of this transaction is impermissible for below reasons :

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a) That R.V.Sadashivaiah did not have any title over the suit schedule property when he executed the Will in favour of defendant No.3;

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b) He could not have obtained the GPA from Lakshmamma as Lakshmamma was herself was a power of attorney holder of T.K.Ranganath. The principle of ‘Delegatus Non-Potest Delegare’ , comes in play and Lakshmamma acting on behalf of T.K.Ranganath could not have delegated her powers to alienate the property;

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c) The agreement and GPA in favour of R.V.Sadashivaiah by Lakshmamma is a non-est by virtue of the impounding of those documents by the Trial Court and the clog on the same is not cleared by defendants No.2 and 3 and

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RFA No. 1962/2018

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d) The sale deed at Ex.P2 executed by Lakshmamma in favour of defendant No.1-

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Nagarathnamma refers to the agreement with R.V. Sadashivaiah and since he is no more, the sale deed

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is executed in favour of Nagarathnamma, who is his legally wedded wife, without taking any further consideration amount.

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Therefore, in pursuance to the agreement in favour of R.V.Sadashivaiah, after his death, Lakshmamma has executed the sale deed in favour of defendant No.1Nagarathnamma. Defendant Nos.2 and 3 are unable to show that the relationship between Sadashivaiah and Nagarathnamma as husband and wife was dissolved by any decree of Court. Therefore, the flow of title from Lakshmamma to defendant Nos.2 and 3 was not established by defendant Nos.2 and 3 and on the other hand, plaintiff had established that by virtue of the sale deed executed by Lakshmamma in favour of defendant No.1-Nagarathnamma as per Ex.P2 and sale deed by

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Nagarathnamma in his favour as per Ex.P1, he has become the holder in title of the suit schedule property.

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So far as the possession is concerned, the plaintiff has admitted that defendant No.1 had promised to handover the possession of the property within two days of execution of the sale deed, but later defendant Nos.2 and 3 started claiming their title over the property. The Trial Court in paragraph Nos. 29 and 30 of its judgment has observed as below:

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“ 29. Admittedly the possession was not handed over to the plaintiff by the defendant No.1 as she had no right to hand over the possession of the suit schedule property in favour of the plaintiff. On the basis of the sale deed without handed over the possession of the property in pursuance with the said sale deed is not a valid sale deed as provided under Sec.54 of the Transfer of Property act. It is relevant to reproduce the said provision, thus:

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“Section 54. “Sale” defined .- “Sale” is a

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transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

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Sale how made : Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a

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reversion or other intangible thing can be made only by a registered instrument.

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In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

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Delivery of tangible immovable property takes place when the seller places the buyer or such person as he directs, in possession of the property”.

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30. Therefore, mere production of the registered sale deed without delivery of possession of the property is not a valid transaction in respect of the immovable property. Admittedly, vendor of the defendant No. 1 has not handed over the possession of the property to the defendant No.1, in turn the defendant No.1 not handed over the possession of the property under the sale deed to the plaintiff, and as P.W.1 categorically admitted that possession of the property is with defendant No.2 and 3.”

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(underlining by us)

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Obviously, the above conclusion of the Trial Court is not sustainable in law. It has not considered the fact that Section 54 of the Transfer of Property Act, does not prohibit the sale of immovable property of value of more than 100 rupees without handing over the

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possession. It is pertinent to note that the sale becomes complete when there is delivery of possession of tangible immovable property takes place when the seller places the buyer in possession of the property. In the case on hand, defendant No.1 had agreed to deliver the property even though she conveyed the title to the plaintiff. It is relevant to note that the conveyance of the title took place but the possession was not handed over as it was part of the promise made by defendant No.1 in favour of the plaintiff. In other words, the sale would be complete when the possession is transferred. Till then, though the title is transferred, the sale is not complete. The seller is liable under Section 55(1)(f) of Transfer of Property Act³ if the possession is not delivered. Evidently the Trial Court missed the above proposition and jumped to the conclusion that when the sale is not complete the title also has not passed to the plaintiff.

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3 55. Rights and liabilities of buyer and seller .—In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:

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(1)The seller is bound— xxxx

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(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;

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In that view of the matter, the Trial Court could not have dismissed the claim of the plaintiff for declaration of title. When the plaintiff had proved his title through valid conveyance deeds from Lakshmamma and Nagarathnamma, it was not proper on the Trial Court to hold that plaintiff cannot be declared to be the title holder. Defendant Nos.2 and 3 had not set up any claim of a better title than Nagarathnamma, including the claim of adverse possession.

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So far as the claim for possession is concerned, it is trite law that possession follows title. Defendant Nos. 2 and 3 do not have any semblance of title to the suit schedule property and they have not shown any right which shows their entitlement to the possession. Therefore, they are liable to handover the possession of the suit schedule property to the plaintiff. Under these circumstances, the impugned judgment of the Trial Court is not sustainable in law. The plaintiff is entitled for declaration and possession of the suit schedule property. Hence, the following:

RFA No. 1962/2018

ORDER

i) The appeal is allowed.

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ii) The judgment of the Trial Court in O.S.No.7598/2014 dated 15-09-2018 is hereby set aside. The suit is decreed declaring that the plaintiff is the owner of the suit schedule property and he is entitled for possession of the same from defendant Nos.2 and 3.

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iii) Defendants Nos.2 and 3 are directed to handover the possession of the suit schedule property within three months from the date of this judgment.

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iv) Costs made easy.

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Sd/(V KAMESWAR RAO) JUDGE

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Sd/(C M JOSHI) JUDGE

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SMM/YAN

Sri R Ravi v. Smt Nagarathnamma

Case brief

What is this about?

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Sri R Ravi v. Smt Nagarathnamma

Case brief

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