Kamala Vs Sri D Nagendra Kamath

1 . SRI D.NAGENDRA KAMATH S/O LATE K.DEVAPPA KAMATH, AGED ABOUT 71 YEARS, RESIDIGN AT NO.91, 3^RD MAIN, NHCS LAYOUT, BASAVESHWARA NAGAR, BENGALURU – 560 079.

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2 . SRI B.SHIVAKUMARSWAMY S/O LATE VEERAPPA,

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AGED ABOUT 47 YEARS, RESIDING AT NO.25, ASHTA GRAMA LAYOUT, MAGADI MAIN ROAD, BENGALURU – 560 023.

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... RESPONDENTS

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(BY SRI N.UDAYA KUMAR, ADVOCATE FOR R-1; SRI N.SHIVA KUMAR, ADVOCATE FOR R-2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE JUDGMENT AND DECREE DTD. 13.03.2015 PASSED BY THE HON’BLE XIV ADDL. CITY CIVIL JUDGE AND SESSIONS JUDGE, BENGALURU IN O.S.NO. 8495/2014 ANNX-G AND G1; QUASH THE EXECUTION PROCEEDINGS BEARING NO. 1288/2015 PENDING BEFORE THE HON’BLE XIV ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-28) BENGALURU (ANNX-H).

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 25.06.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CAV ORDER

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The petitioner is before this Court calling in question the judgment and decree dated 13-03-2015 passed by the XIV Additional City Civil and Sessions Judge, Bengaluru in O.S.No. 8495 of 2014 on the score that they are obtained by fraud and execution proceedings instituted thereon.

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Fact, in brief, germane are as follows: -

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2.1. The petitioner purchases schedule property by way of a registered sale deed on 14-02-1991. Pursuant thereto, she has been put in possession of the property. The subject matter of the property is site bearing No.25, PID No.18-07-25 measuring 40”x60” situated at Ashtagrama House Building Cooperative Society approved layout in Magadi Road, Bengaluru. All the revenue entries thereafter are in the name of the petitioner. It is a vacant land and portion of the schedule property is temporarily being used by Kamakshipalya Traffic Police Station and they are said to have put

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up asbestos sheet shed measuring 22’6”x31’6” on the schedule property.

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2.2. When things stood thus, it appears respondent No.1, a total stranger to the property, files a suit in O.S.No.8495 of 2014 against the 2^nd respondent depicting him to be the power of attorney holder from the hands of the petitioner. The suit was seeking specific performance of sale agreement dated 07-12-1994 and the suit is instituted 20 years thereafter seeking such specific performance. After institution of the suit, the 2^nd respondent and the 1^st respondent enter into a compromise with regard to certain payments to be made and the concerned Court records the compromise and accordingly directs drawing up of the decree. The 1^st respondent institutes execution case bearing Ex.No.1288 of 2015 under Order XXI Rule 11 of the CPC before the concerned Court seeking execution of judgment and decree dated 13-03-2015 passed in O.S.No.8495 of 2014. In the said execution, the petitioner is shown as the power of attorney holder of the 2^nd respondent. Notice reaches the petitioner. It is then, the petitioner comes to know history of the case.

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2.3. Therefore, the averment in the petition is that a fraudulent power of attorney is generated by the 2^nd respondent which is of the year 1994 and a suit is filed 20 years thereafter. The suit gets compromised; execution is filed and in the execution case the petitioner comes to know about these proceedings. Thereafter, the petitioner approaches this Court in the subject petition calling in question the judgment and decree passed in O.S.No.8495 of 2014 as vitiated by fraud.

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Heard Sri Shivaprasad Shantanagoudar, learned counsel appearing for the petitioner, Sri N.Udaya Kumar, learned counsel appearing for respondent No.1 and Sri N.Shiva Kumar, learned counsel appearing for respondent No.2.

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4.1. The learned counsel appearing for the petitioner Sri Shivaprasad Shantanagoudar would vehemently contend that the petitioner is the absolute owner of the property and is in possession even today, as it is a vacant land. The 2^nd respondent is in the habit of instituting frivolous petitions/suits on vacant lands. Concerning the very suit schedule property, a suit in O.S.No.26487

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of 2008 is filed by the 2^nd respondent against the petitioner for permanent injunction. In the said suit, notice is said to be served upon the petitioner and an ex-parte decree is obtained.

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4.2. The 2^nd respondent describes himself as power of attorney holder of the petitioner and claims title over the suit schedule property by virtue of the said power of attorney. The learned counsel submits that the petitioner has never executed any power attorney in her lifetime. This is the ploy of the 2^nd respondent in getting the suit filed by the 1^st respondent and describing himself to be the absolute owner on the strength of power of attorney said to be executed by the petitioner. The moment suit is filed, compromise petition is filed and decree is obtained on the said compromise. Execution case is instituted to execute the decree of compromise and delivery warrant is issued in the execution petition directing the petitioner to deliver possession within 8 days. It is then, the petitioner comes to know of all the proceedings that are instituted behind her back. It is, therefore, the present petition is preferred seeking annulment of judgment and decree obtained by fraud.

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Per contra, the learned counsel appearing for the 2^nd respondent would vehemently contend that the petitioner herself has executed the general power of attorney in the year 1994. A suit for specific performance is instituted seeking specific performance of an agreement of sale of the year 1994. The learned counsel would admit that both the agreement to sell and power of attorney are unregistered. He would, nevertheless, contend that it is a matter of trial if fraud has happened at all in the case at hand. Therefore, he would submit that the subject petition should not be entertained.

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I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

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The afore-narrated facts though not in dispute would require reiteration. The petitioner is the owner of the schedule property who comes in possession of the same pursuant to the registered sale deed dated 14-02-1991. The property is as

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described in the schedule. All the revenue entries stand in the name of the petitioner. A suit in O.S.No.8495 of 2014 comes to be filed against the 2^nd respondent depicting him to be the power of attorney holder from the hands of the petitioner. The suit was seeking specific performance of a sale agreement dated 07-12-1994. The suit is thus instituted 20 years after the alleged sale agreement. Immediately after the registration of the suit, the parties to the lis enter into a compromise and the concerned Court draws up a decree on the said compromise. The 1^st respondent then institutes an execution case bearing Execution No.1288 of 2015 seeking execution of a judgment and decree dated 13-03-2015.

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Notice for the first time reaches the petitioner in the execution case. The petitioner then digs up the issue and comes to know that the subject property which is in possession of the petitioner has been sold to someone else, of a fabricated power of attorney executed in the year 1994. It is then the petitioner gets all the information and comes to know that the suit schedule property is the petitioner’s. The petitioner is not made a party.

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The 2^nd respondent poses himself to be the general power of attorney holder of the petitioner of a power of attorney said to have been executed in the year 1994. Therefore, the decree that is drawn by the concerned Court on a compromise was without the petitioner being a party. The cause title to the suit is as follows:

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“Sri.D. NAGENDRA KAMATH Son of late K.Devappa kamath, Aged about 63 years, Residing at No.91.3rd Main, NHCS Layout, Basaveswarnagara. Bangalore -560079 And SRI. B.SHIVAKUMARSWAMY Son of late Veerappa Aged about 40 years Residing at No.25, Ashta Grama Layout, Magadi Main Road, Bangalore-560079 Represented by power of Attorney Holder of Smt kamala wife of K.Channappa' Aged about 58 years, Residing at No.18, 4th A main, Govindharaja nagara, Bangalore-560,040.”

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It is an admitted fact that the petitioner is not a party. The relief sought in the suit is as follows:

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“WHEREFORE, it is humbly prayed that this Hon'ble Court be pleased to grant the following relief/s

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a) To pass a judgement and decree for specific performance of the Sale Agreement dated 7-12-1994 and further direct the defendant to execute the Registered Sale Deed in respect of the suit schedule property in favour of the Plaintiff by receiving the balance sale consideration of Rs.25,000/-;

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b) and on his failure to execute the Registered Sale Deed in favour of the Plaintiff, then this Hon'ble Court be pleased to execute the Registered Sale Deed in favour of the Plaintiff through the agency of court and to get registered the same before the Sub-Registrar's office, Bangalore.

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c) And grant such other relief/s as this Hon'ble Court deems fit to grant in the facts and circumstances of the case and award cost of the suit to meets the ends of justice.

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SCHEDULE

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All the piece, and parcel of the property bearing Site No.25. PID No. 18-7-25, situated at Ashtagram Housing Building co-operative society approved Layout, formed out of Sy No.68/3, 69/1a2 and 69/1c saneguruvanahalli village yeshvanthapur Hobli, Bangalore North Taluk, Bangalore District, now comes under the BBMP ward No. 18(Kamashipalya) measuring to an extent of East to West 60 feet and North to South 40 feet, and bounded on

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East by	: private property,
West by	: Society Road
North by	: site no.24,
South by	: Magadi Road.”

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Compromise petition is filed on 13-03-2015. The compromise

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petition reads as follows:

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“Between

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Sri.D.Nagendra Kamath

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Plaintiff

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And

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Sri.B.Shivakumarasway

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Defendant

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COMPROMISE PETITION UNDER ORDER XXIII RULE 3 OF THE CODE OF CIVIL PROCEDURE

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The plaintiff and defendant jointly submits as follows:

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The plaintiff has filed the above suit for the relief of specific performance of contract and other relief/s against the defendants.

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That, at with the intervention of the counsel for the respective parties, their common friends and relatives, the parties to the suit have amicably settled the dispute among themselves and have arrived at a compromise in the above matter.

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The defendant hereby admits the execution of the Agreement of sale dated 7.12.1994 in favour of the plaintiff in respect of the property bearing site No.25, PID No.18-7-25, situated at Ashtagram Housing Building Co-operative society approved layout formed out of Sy.No.68/3, 69/1a2, and 69/1c Saneguruvanahalli village, Yeshwanthapura Hobli, Bangalore North taluk, Bangalore district, measuring east to west 60 feet and north to south 40 feet. It is submitted by the defendant the plaintiff has to pay the balance sale consideration of Rs.25,000/only out of total sale consideration of Rs.5,00,000/-.

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The defendant has this day received a sum of Rs.25,000/-of balance sale consideration along with additional amount of Rs.25,000/-, in total the Defendant has received a sum of Rs.50,000/- by way of cash from the Plaintiff in the presence of this Hon'ble court and this defendant has acknowledged the receipt of total sale consideration of Rs.5,25,000/- from the plaintiff in respect of the sale of schedule property.

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The defendant has No Objection to pass a judgement and decree in favour of the Plaintiff in the above suit and the Defendant has no objection to draw the final decree in favour of the Plaintiff. The plaintiff is at liberty to get the sale deed registered in his favour in respect of the schedule property through the Court of law.

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This compromise is entered into between the plaintiff and defendant on their own free will and volition and under any undue influence or coercion.

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WHEREFORE , the plaintiff and defendant to the above suit prays that this Hon'ble court may be pleased to decree the suit in terms of the above compromise, in the interest of justice and equity.

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Sd/Sd/Advocate for Plaintiff Plaintiff Sd/Sd/Advocate for Defendants Defendants

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VERIFICATION

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We the plaintiff and defendant do hereby verify and declare that the averments made above are true and correct to the best of our knowledge, information and belief.

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Sd/Plaintiff Sd/Defendants

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Bangalore Date: 13-3-2015”

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The petitioner is admittedly neither the signatory nor a party. Suit is decreed in terms of the compromise. Execution is filed. Again in the execution petitioner is not a party. The cause title in the execution is as follows:

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“Under order 21 Rule 11 of the Code of Civil Procedure..............

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Decree Holder's Name	Sri.D.Nagendra Kamath
Number of the Suit	O.S. No. 8495/2014
Decree-Holder	Sri. D.Nagendra Kamath aged about 64 years Son of late K.Devappa Kamath, Residing at No.91, 3^rdMain, NHCS layout, Basaveshwaranagar, Bangalore -560079
Judgement-Debtor/s	Sri.B.Shivakumaraswamy, S/o late Veerappa, Aged about 41 years R/at No.25, Ashta Grama layout, Magadi Main Road, Bengaluru -560079 Rpted by Power of Attorney holder Smt. Kamala, W/o K.Channappa, aged about 59 years, R/at No.18, 4^thA Main, Govindarajanagar, Bengaluru – 560040…”

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But, notice reaches the petitioner. It is then the petitioner prefers the subject petition contending that the compromise is a fraud and fraud unravels everything, as the property of the petitioner is knocked off, without even the petitioner being named a party to the proceedings.

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The strength on which the 1^st respondent and the 2^nd respondent enter into a compromise is, one, the general power of attorney, the other agreement to sell. Both of them are unregistered. Therefore, it was on the face of it, a fraud played by respondents 1 and 2 hawking on the property of the petitioner.

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10.1. It becomes apposite to refer to the judgment rendered by a co-ordinate bench of this Court in identical circumstances in the case of SHAH HARILAL BHIKHABHAI & COMPANY v.

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B.MANI¹ , wherein the coordinate bench holds as follows:

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“Petitioner a non-party to the suit proceedings is invoking the extraordinary jurisdiction constitutionally vested in this Court for assailing a judgment & decree dated 31.05.2018 in S.C.No.678/2018 clandestinely obtained by the respondents 1 & 2 herein by fraud.

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1 W.P.No.7714 OF 2020 Decided on 04-11-2020

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Service of notice to respondent nos. 1 to 3 is held sufficient by a co-ordinate Judge of this Court; notice to respondent no.4- State is dispensed with; respondent no.5 being the Registrar of the Court below is served and unrepresented.

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Having heard the learned counsel for the petitioner and having perused the petition papers, this Court is inclined to grant indulgence in the matter because:

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(a) Petitioner apparently has been in the possession and enjoyment of the subject property by virtue of two registered lease deeds both dated 23.01.1954; his assertion as to this is strengthened by the tax paid receipts for decades, the latest being of the year 2019-2020; the contesting respondents despite service of notice having remained unrepresented, the version of the petitioner which is supported by an affidavit and the accompanying documents remains unrebutted.

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(b) In respect of subject property the suit in S.C.No.678/2018 was filed by 1^st respondentMr.B.Mani represented by 3^rd respondent-GPA Holder Mr.Sendil Kumar against the 2^nd respondent-Mr.Arun on 26.04.2018; strangely a compromise decree has been obtained on 31.05.2018, absolutely without any explanation for this rocket speed, even when the ink on the pleadings had not yet dried up; what intrigues the mind of this court is that the learned Judge of the Court below has not given a thought to this doubtful swiftness with which the parties to the suit have acted.

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(c) Apparently, petitioner a registered partnership firm is a huge stakeholder in the matter and that he has not been impleaded as one of the defendants to the suit, obviously because it would have resisted the suit being decreed on the basis of a fraudulent compromise; as already mentioned above the allegations of fraud and duplication have

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remained unrebutted, there being no contra pleadings nor controvertion thereof; in fact, the parties to the suit as also the 3^rd respondent GPA Holder have chosen to remain unrepresented and this conduct itself shows prima facie fraud that has victimized the petitioner.

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(d) Learned counsel for the petitioner is more than justified in banking upon decision of the Apex Court in S.P.CHANGALVARAYA NAIDU vs. JAGANNATH, AIR 1994 SC 853 in support of his contention that fraud vitiates everything; his reliance on MEGHAMALA & OTHERS vs. G.NARASIMHA REDDY & OTHERS, JT (2010) 8 SC 658 also aides the case of the petitioner; at para 33 the Apex Court observed:

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“Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression “fraud” involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage”.

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(e) Learned counsel for the petitioner submits and I think it right that the possession of the suit premises needs to be restored since it was thrown out from the same on the basis of the impugned judgment & decree which are a nullity in the eye of law, having been tainted by fraud and duplicity; he is also justified in seeking a direction to the respondent-Registrar of the Court below for initiating police proceedings in the matter of fraud in a time bound way, inasmuch as several such fraudulent decrees & orders are stated to have been obtained.

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In the above circumstances, this writ petition succeeds:

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(i) a Writ of Certiorari issues quashing the impugned judgment & decree, and dismissing the subject suit with an exemplary cost of Rs.1 lakh (rupees one lakh) payable by the respondents 1 & 2 each, and Rs.50,000/- payable by respondent no.3;

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(ii) the learned Judge of the Court below shall take all steps for restoring possession of the subject property in favour of the petitioner-firm within an outer limit of eight weeks, if necessary, by taking the aid of State Power.

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(iii) the 5^th respondent-Registrar of the Court below is directed to institute a police investigation in this serious matter and cause a domestic enquiry against the suspect officials of the court, since fraud, forgery and fabrication ordinarily do not happen without the involvement of insiders.

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A copy of this judgment shall be submitted to the Registrar General of this Court for taking necessary follow up action in the matter.”

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(Emphasis supplied)

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The said judgment was tossed before the Apex Court only to be rejected. Apart from the said fact, as observed, two factors have led to the claim of the 2^nd respondent that he is the general power of attorney holder and is entitled to secure title and the other, it is an unregistered agreement to sell.

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10.2. The Apex Court in the case of VINOD INFRA DEVELOPERS LIMITED v. MAHAVEER LUNIA² , has held as follows:

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9.2. Additionally, Section 54 of the Transfer of Property Act, 1882, categorically provides that a contract for the sale of immovable property does not, by itself, create any interest in or charge on such property. In the present case, the appellant has contended that the agreement to sell dated 24.05.2014 was, in substance, a transaction executed as security for the loan amount received from Respondent No. 1, and was effectively in the nature of a mortgage, and they are now ready and willing to repay the loan amount and redeem the mortgaged property. As already stated, the agreement to sell, power of attorney, and other connected documents relied upon by Respondent No. 1 were unregistered, and therefore, in law, cannot confer any title, interest, or ownership rights in respect of the subject property. It is also significant to note that these documents were expressly revoked by the appellant on 24.05.2022 and 27.05.2022 - prior to the execution of the impugned sale deeds. Moreover, Respondent No. 1 has not filed any suit for specific performance of the alleged agreement to sell, which further renders his claim untenable. In the absence of a suit for specific performance, the agreement to sell cannot be relied upon to claim ownership or to assert any transferable interest in the property. This legal position has been conclusively laid down by this Court in Suraj Lamp & Industries (P) Ltd. v. State of Haryana⁸ , wherein, it was held that unregistered agreements to sell, even if coupled with possession, do not convey title or create any interest in the immovable property. It was further clarified that such documents are insufficient to complete a sale unless duly registered and followed by appropriate

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2 2025 SCC Online SC 1208

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conveyance. The relevant paragraphs of the said judgment are extracted below:

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“16. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam (1977) 3 SCC 247, observed : (SCC pp.254-55, paras 32-33 & 37)

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“32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prasad v. Ram Mohit Hazra (1967) 1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.

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33. In India, the word ‘transfer’ is defined with reference to the word ‘convey’. The word ‘conveys’ in Section 5 of Transfer of Property Act is used in the wider sense of conveying ownership…

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37….that only on execution of conveyance, ownership passes from one party to another….”

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17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [(2004) 8 SCC 614] this Court held:

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“10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party.”

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18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of

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conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.

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19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter.

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Scope of power of attorney

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20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.

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21. In State of Rajasthan v. Basant Nehata [(2005) 12 SCC 77], this Court held:

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“13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by

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the donor. A power of attorney is, as is well known, a document of convenience.

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52. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.”

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An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.

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Scope of Will

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22. A will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. (see sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it any more effective.

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Conclusion

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23. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank [(2001) 94 DLT 841], that the “concept of power of attorney sales have

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been recognized as a mode of transaction” when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.

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24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of ‘GPA sales’ or ‘SA/GPA/WILL transfers’ do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.”

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9.3. This Court reaffirmed the same position in Cosmos Co. Operative Bank Ltd. v. Central Bank of Indi a⁹ , where it was reiterated that title and ownership of immovable property can only be conveyed by a registered deed of sale. The following observations are significant:

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“25. The observations made by this Court in Suraj Lamp (supra) in paras 16 and 19 are also relevant.

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26. Suraj Lamp (supra) later came to be referred to and relied upon by this Court in Shakeel Ahmed v. Syed

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Akhlaq Hussain, 2023 SCC OnLine SC 1526 wherein the Court after referring to its earlier judgment held that the person relying upon the customary documents cannot claim to be the owner of the immovable property and consequently not maintain any claims against a third-party. The relevant paras read as under:—

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“10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries (supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882 .

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11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:

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(i). Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar (2018) 7 SCC 639

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(ii). Balram Singh v. Kelo Devi Civil Appeal No. 6733 of 2022

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(iii). Paul Rubber Industries Private Limited v. Amit Chand Mitra , SLP(C) No. 15774 of 2022.

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12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered

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documents with respect to immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.

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13. The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on nonregistration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view.”

¶155

9.4. Furthermore, in M.S. Ananthamurthy v. J. Manjula , this Court undertook a comprehensive analysis of the statutory provisions and precedents, and reaffirmed that an unregistered agreement to sell does not and cannot by itself create or transfer any right, title, or interest in immovable property. The following paragraphs are pertinent in this regard:

¶156

“47. It is a settled law that a transfer of immovable property by way of sale can only be by a deed of conveyance. An agreement to sell is not a conveyance. It is not a document of title or a deed of transfer of deed of transfer of property and does not confer ownership right or title. In Suraj Lamp (supra) this Court had reiterated that an agreement to sell does not meet the requirements of Sections 54 and 55 of the TPA to effectuate a ‘transfer’.

¶157

51. Section 17(1)(b) prescribes that any document which purports or intends to create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable

¶158

25

¶159

property is compulsorily registerable. Whereas, section 49 prescribes that the documents which are required to be registered under Section 17 will not affect any immovable property unless it has been registered.

¶160

53. Even from the combined reading of the POA and the agreement to sell, the submission of the appellants fails as combined reading of the two documents would mean that by executing the POA along with agreement to sell, the holder had an interest in the immovable property. If interest had been transferred by way of a written document, it had to be compulsorily registered as per Section 17(1)(b) of the Registration Act. The law recognizes two modes of transfer by sale, first, through a registered instrument, and second, by delivery of property if its value is less than Rs. 100/-.”

¶161

Accordingly, it is abundantly clear that the unregistered agreement to sell dated 24.05.2014 cannot, under any circumstance, create or convey any right, title or interest in favour of Respondent No. 1 under Section 54 of the Transfer of Property Act, 1882. The subsequent revocation of authority further nullifies any claim to title based on such documents.”

¶162

The Apex Court holds an unregistered agreement of sale is no document in the eye of law.

¶163

10.3. Likewise, the Apex Court in a later judgment, in the case of RAMESH CHAND (D) THR. LRS. v. SURESH CHAND³ ,

¶164

3 2025 SCC OnLine SC 1879

¶165

26

¶166

holds that the power of attorney even if executed in accordance with law, will not confer any right over the property. The Apex Court also considers the purport of the agreement of sale.

¶167

“….

¶168

Agreement of Sale

¶169

12. The Transfer of immovable property inter vivos is governed by the Transfer of Property Act, 1882 (hereinafter referred to as “the TP Act”). Section 5 of the said TP Act defines “transfer of property” as follows:

¶170

“ 5. ‘Transfer of property’ defined. —In the following sections ‘transfer of property’ means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself or to himself and one or more other living persons and ‘to transfer property’ is to perform such act.”

¶171

13. The TP Act envisages five different modes for transferring a property but for the purpose of the present appeal we are only concerned with one of the modes i.e., by way of “Sale” and the same is dealt under section 54 of the TP Act which defines “sale” and a “contract for sale” as follows:

¶172

“ 54. ‘Sale’ defined . — ‘Sale’ is a transfer of ownership in exchange for a price paid or promised or partpaid and part-promised.

¶173

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

¶174

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.

¶175

27

¶176

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

¶177

Contract for sale . —A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.

¶178

It does not, of itself, create any interest in or charge on such property.”

¶179

14. Perusal of above said provisions lays down a specific mode of execution of sale deed with respect to immovable property for concluding the sale of a property. In sale for an immovable property the value of which exceeds Rs. 100/-, the three requirements of law are that the transfer of property of sale must take place through a validly executed sale deed, i.e., it must be in writing, properly attested and registered. Unless the sale deed is in writing, attested and registered, the transaction cannot be construed as sale, or in other words, the property will not be transferred.

¶180

15. There is a difference between a sale deed and an agreement for sale, or a contract for sale. A contract for sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. While a sale is a transfer of ownership; a contract for sale is merely a document creating a right to obtain another document, namely a registered sale deed to complete the transaction of sale of an immovable property. Section 54 in its definition of sale does not include an agreement of sale and neither confers any proprietary rights in favour of the transferee nor by itself create any interest or charge in the property. If after entering into a contract for sale of property, the seller without any reasonable excuse avoids executing a sale deed, the buyer can proceed to file a suit for specific performance of the contract.

¶181

16. The scope of an agreement for sale has been highlighted by this court in the case of Suraj Lamp and Industries Private Limited (2) through Director v. State of Haryana³ , wherein this Court observed that:

¶182

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¶183

“ 16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam , [(1977) 3 SCC 247] observed:

¶184

“ 32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad v. Ram Mohit Hazra , [AIR 1967 SC 744]). The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.

¶185

In India, the word ‘transfer’ is defined with reference to the word ‘convey’. … The word ‘conveys’ in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership.

¶186

¶187

… that only on execution of conveyance, ownership passes from one party to another….”

¶188

In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra , [(2004) 8 SCC 614] this Court held:

¶189

“ 10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party.”

¶190

18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of

¶191

29

¶192

conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.

¶193

19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter.”

¶194

17. In the instant matter, undisputedly plaintiff claims that there is only an agreement to sell, and there is no sale deed executed in his favour by the father. As per the settled position of law, this document does not confer a valid title on the plaintiff as it is not a deed of conveyance as per Section 54 of the TP Act. At best, it only enables the plaintiff to seek for specific performance for the execution of a sale deed and does not create an interest or charge on the suit property.

¶195

General Power of Attorney

¶196

18. A power of attorney is a creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him. It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. A General Power of Attorney does not ipso facto constitute an instrument of transfer of an immovable property even where some clauses are introduced in it, holding it to be irrevocable or authorizing the attorney holder to effect sale of the immovable property on behalf of the grantor. It would not ipso facto change the character of the document transforming it into a conveyance deed.⁴

¶197

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¶198

19. A power of attorney is not a sale. A sale involves transfer of all the rights in the property in favour of the transferee but a power of attorney simply authorises the grantee to do certain acts with respect to the property including if the grantor permits to do certain acts with respect to the property including an authority to sell the property.⁵

¶199

20. In the case of State of Rajasthan v. Basant Nahat a⁶ , it was held that:

¶200

“ 13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.

¶201

xxxx

¶202

Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.”

¶203

21. Further, the position of a power of attorney with respect to conferment of title was explained by this Court in the case of Suraj Lamp (supra), thus:

¶204

31

¶205

“20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee.”

¶206

22. Having discussed the position of law, it is essential to peruse the recitals of the General Power of Attorney, which is on record and pressed into service by plaintiff. The said GPA merely authorises the grantee to manage the affairs of the suit property, which includes the power to let out the property on rent, and create a mortgage of the same, etc. However, it is silent on the aspect of conveyance. Be that as it may. The recitals of the power of attorney would indicate the intent of the grantor is to limit the powers of the grantee to only manage the suit property, and not to create any interest in his favour, which is in consonance with the settled position of law as discussed above that a power of attorney is an agency by which the agent derives the authority or the right to enter into transactions on behalf of the principal. Even if we accept the validity of the Power of Attorney in favour of the plaintiff, still it does not confer a valid title on him with respect to the suit property.

¶207

(Emphasis supplied)

¶208

In the light of the admitted facts and elucidation of law by the Apex Court, the fraud played by the parties/respondents 1 and 2 who admit before this Court that both the general power of attorney and the agreement were unregistered and that the power of attorney

¶209

32

¶210

was of 20 years vintage, these admitted facts ought to have borne consideration before the concerned Court, as the concerned Court appeared to be in a hurry to record the compromise and close the proceedings. In that light the petition deserves to succeed.

¶211

For the aforesaid reasons, the following:

¶212

ORDER

¶213

(i) Writ Petition is allowed.

¶214

(ii) The impugned judgment and decree dated 13-03-2015 passed by the XIV Additional City Civil and Sessions Judge, Bengaluru in O.S.No.8495 of 2014 stands quashed.

¶215

(iii) Consequently, the execution proceedings pending in Execution Case No.1288 of 2015 before the said Court also stand quashed.

¶216

JUDGE

¶217

Sd/(M.NAGAPRASANNA)

¶218

bkp CT:MJ

Kamala v. Sri D Nagendra Kamath

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Kamala v. Sri D Nagendra Kamath

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