SMT. SHAMSIA BEGUM v. SRI RAHAMATHULLA

The plaintiff averred that Tamil Evangelical Lutheran Church (‘Church’ for short) was the owner of land measuring 4 acres in Survey No. 108 of Kadugondanahalli Village, Bengaluru North Taluka, purchased under a registered sale deed dated 21.03.1938. On 25.08.1989, the Church represented by its office bearers, executed an unregistered General Power of Attorney and an Agreement of Sale in favour of her husband, Sri A. S. Anwar Shariff, for valuable - 4 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR consideration, and put him in possession of 1 acre. Acting on such authority her husband formed a revenue layout and sold several sites to different purchasers. On

19.12.2016, her husband as a GPA holder of the Church, executed a registered sale deed in her favour in respect of site No. 2 Khatha No. 108/2, measuring 30 x 50 feet. A rectification deed was also executed on 13.01.2017 correcting the boundaries. It is asserted that the plaintiff is in possession, katha has been transferred in her name and she has paid taxes, and obtained water and electricity connection. When attempted commence construction in June 2017, the defendant interfered, necessitating the suit. On denial of her title by the defendant, the plaint was amended to seek declaration that the defendant’s sale deed dated 08.12.1989 does not pertain to the suit schedule property. Written statement averments:

3. The defendant resisted the suit contending that the property originally belonged to Mary Fernandez under - 5 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR a registered sale deed dated 21.06.1948 executed by the Church. On her death, the property devolved on her grandson, Rajashekar Samuel who conveyed the same to the defendant under a registered sale deed dated

08.12.1989. Pursuant thereto the defendant constructed a residential house, obtained katha, paid property tax regularly and secured electricity and water connections. It is denied that the plaintiff has either title or possession. It is further contended that the GPA and the Agreement of Sale dated 25.08.1989 relied on by the plaintiff are unregistered and confer no title, no right and in any event, the GPA stood terminated with the death of the executants. The sale deed dated 19.12.2016 in favour of the plaintiff is a sham document executed by her husband long after his authority had ceased. The documents relied on by the plaintiff, such as utility connection, are obtained during the pendency of the suit and cannot prove possession. It is specifically pleaded that the defendant's registered conveyance dated 08.12.1989 remains valid - 6 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR and binding and that the plaintiff, having failed to challenge the same cannot indirectly seek a declaration.

4. The trial Court on appreciation of the oral and documentary evidence, held that the plaintiff has failed to prove either her title or possession and the defendant has established ownership and possession under the registered sale deed dated 08.12.1989. Being aggrieved by which, the plaintiff is before this Court in this appeal. Contention of the appellant:

5. The appellant contends that the trial Court misapplied the decision in Suraj Lamp and Industries Private Limited vs State of Haryana and Another1 (Suraj Lamp). It is urged that while GPA and agreement of sale may not by themselves convey title, para 27 of the judgment protects genuine transaction. In the present case, the Church executed both an agreement and GPA for consideration, and delivered possession to PW4 who thereafter formed a layout and sold sites, including to the 1 (2012) 1 SCC 656 - 7 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR defendant herself. Hence, the transaction in favour of the plaintiff cannot be brushed aside. Reliance is placed on Exhibit P15 - the khatha, tax paid receipts - Exhibit P17, 18, 26, utility connections - Exhibits P41, 42 to establish possession. It is further argued that the defendant, having herself derived title through the same GPA in respect of another property, is estopped from disputing his authority. Reference is made to the decision in the case of R Vinod Kumar Kini and Another vs S.M. Ramaswamappa, since deceased by LRs2, decided by the Division Bench of this Court to submit the genuine GPA transaction deserve protection. The appellant has filed an application under Order XLI Rule 27 to produce documents showing that the defendant also purchased the property from Anwar Sharif. Contention of the respondent

6. Per contra, learned counsel respondent submits that the plaintiff has no valid title. The 2 RFA 889 of 2012 disposed of on 25.7.2025 - 8 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR GPA and the agreement of 1989 are unregistered and cannot convey ownership. By 2016 the GPA had lost its efficacy and therefore the said deed in favour of the plaintiff is a nullity. The defendant's title under Exhibit D4 dated 08.12.1989 is a registered conveyance supported by continuous possession. The plaintiff has not sought cancellation of the sale deed dated 08.12.1989 and therefore, her prayer for declaration is not maintainable. And as per the settled proposition of law laid down by the Apex Court in Suraj Lamp (supra) and M.S. Ananthamurthy and Another vs J. Manjula etc.,3 (Ananthamurthy) all non-testamentary instruments shall be compulsorily registered and also, immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Undisputedly, in the present case, the General Power of Attorney-Exhibit P5 dated 25.08.1989 and the Agreement of Sale Exhibit - P35 dated 25.08.1989, under which the plaintiff is claiming 3 2025 SCC Online SC 448 - 9 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR title over 1 acre of land in Survey No. 108 is in favour of her husband- A.S. Anwar Sharif is not a registered instrument. The transactions do not convey any title in favour of the purchasers, nor they can be recognized as a valid mode of transfer of the immovable property and the transactions as concluded transfers, as they neither convey title, nor create any interest in an immovable property. It is submitted that in the cross-examination of PW4, Sri Manohar David, the then Church Council Member has expired and the General Power of Attorney is executed on 25.08.1989 and after lapse of 27 years of execution of the General Power of Attorney, the so called Power of Attorney Holder had executed a sale deed dated

19.12.2016 and a rectification deed dated 13.01.2017. As per Section 201 of the Indian Contract Act, 1972 (‘Contract Act’ for short), “an agency” is terminated by the principal revoking its authority and by either the principal or agent dying, and from the above said provision of law and also the cross examination of PW4 upon the - 10 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR death of Sri Manohar David and the then Church Council Member the General Power of Attorney dated 25.08.1989 came to be terminated and the plaintiff claiming title through the terminated Power of Attorney is bad in law.

7. Having heard the learned counsel appearing for the parties, the points that arise for consideration are: (i) Whether the plaintiff has established valid title to the suit property under GPA and agreement of sale dated 25.08.1989 and the sale deed dated

19.12.2016? (ii) Whether the plaintiff has proved lawful possession as on the date of the suit? (iii) Whether the defendant's registered sale deed dated 08.12.1989 is valid and binding? (iv) Whether the judgment and decree of the trial Court dismissing the suit calls for interference? Point number (i):

8. The plaintiff relies upon Exhibit P5-GPA and Exhibit P35- Agreement of Sale executed on 25.08.1989 - 11 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR by the Church in favour of her husband, Sri A. S. Anwar Shariff. It is asserted that under these instruments, full consideration was paid, possession was delivered and, therefore, the GPA holder was entitled to develop the land and sell sites. On the strength of these documents, her husband executed Exhibit P6-the registered sale deed dated 19.12.2016 in favour of the plaintiff. It is apparent that Exhibit P5 and Exhibit P35 are unregistered instruments. Under Section 54 of the Transfer of Property Act, 1882, ownership of immovable property of the value of Rs.100/- and above can only be transferred by a registered instrument of sale. An agreement of sale does not by itself create any ownership rights nor does a General Power of Attorney, which merely authorises an agent to act. The Apex Court in Suraj Lamp categorically held that ‘SA/GPA/Will transactions’, do not convey title. The appellant has sought to invoke Para 27 of the Suraj Lamp to argue that genuine transactions are protected. Para 27 protects genuine transactions as valid agency - 12 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR contracts, enabling the attorney holder to act on behalf of the principal, but it does not elevate them to the status of conveyances transferring ownership. The GPA in this case even assuming it was validly executed could not operate indefinitely. Under Section 201 of the Contract Act, an agency terminates with the death of the principal. PW1 in his cross-examination has categorically admitted that Sri Manohar David, the then Church Council Member, who had executed the General Power of Attorney has expired and as such the General Power of Attorney executed on

25.08.1989 and after lapse of 27 years of execution of the General Power of Attorney the so called Power of Attorney Holder has executed the sale deed dated 19.12.2016 and on death of the Executor, the General Power of Attorney came to be terminated and the plaintiff claiming title through the terminated Power of Attorney is bad in law. Therefore, Anwar Shariff could not have any subsisting authority to execute the sale deed (Exhibit P6) in favour of his wife. Thus, the plaintiff's root documents being - 13 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR unregistered and subsequent sale deed of 2016 executed without valid authority do not confer ownership.

9. The Apex Court in the case of Ananthamurthy (supra) has held at Para Nos. 51 to 55 as under : “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 property is compulsorily registerable. Whereas, Section 49 prescribes documents which are required to be registered under Section 17 will not affect any immovable property unless it has been registered.

52. The aforesaid has been emphatically laid down by this Court in Shyam Narayan Prasad v. Krishna Prasad & Ors., reported in (2018) 7 SCC 646. The relevant observations are reproduced hereinbelow:- “20. Section 17(1)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Registration - 14 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Section 17 of the Registration Act. Since, the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property, namely, RCC building, it requires registration under Section

17. Since the deed of exchange has not been registered, it cannot be taken into account to the extent of the transfer of an immovable property.” (Emphasis supplied)

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/-. - 15 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR

54. This principle was recently elaborated by the High Court of Karnataka in Channegowda & Anr. v. N.S. Vishwanath & Ors., reported in 2023 SCC OnLine Kar 153. The relevant portion is reproduced as under:- “14. An attempt is made on behalf of the plaintiffs to contend that the second plaintiff has sold the property as a General Power of Attorney Holder and not as a title holder. It is argued that the Power of attorney is not compulsorily registrable. The submission is noted with care. Suffice it to note that a deed of power of attorney is not one of the instruments specified under Section 17 of the Registration Act compulsorily registrable. However, if a power has been created empowering the attorney to sell the property i.e., if a document that gives a right to the attorney holder to sell immovable property, then it would be a document creating an interest in immovable property, which would require compulsory registration. In the present case, the General Power of Attorney alleged to have been executed by defendants 1 to 3 in favor of the second plaintiff is coupled with interest i.e., power of alienation is conferred but it is not registered. - 16 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR The Apex Court in the SURAJ LAMP's case has held that the General Power of Attorney Sale, or Sale Agreements/Will do not convey title and do not amount to transfer, nor can they be considered valid modes of transfer of immovable property. Therefore, it can be safely concluded that the declaration of facts/statement of (affidavit) and General Power of Attorney do not convey title. They are inadmissible in evidence.” (Emphasis supplied)

55. The High Court rightly held that even though the GPA and the agreement to sell were contemporaneous documents executed by the original owner in favour of the holder, this alone cannot be a factor to reach the conclusion that she had an interest in the POA. Thus, even though the GPA and the agreement to sell were contemporaneous documents executed by the original owner in favour of the same beneficiary, this cannot be the sole factor to conclude that she had an interest in the subject-matter. Even if such an argument were to persuade this Court, the document must have been registered as per Section 17(1)(b) of the Registration Act. In the absence of such registration, it would not be open for the holder of the POA to contend that she had - 17 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR a valid right, title and interest in the immovable property to execute the registered sale deed in favour of appellant no. 2.”

10. The Apex Court in the aforesaid judgment reiterated the settled position of law as declared in Suraj Lamp (supra) that under Section 17 (1)(b) of the Registration Act, 1908 that any instrument which purports or intends to create, declare, assign, limit or extinguish any right, title or interest in the immovable property of the value of Rs.100/- and upwards, whether vested or contingent, compulsorily registerable. It was categorically held that ownership of an immovable property can be legally and lawfully transferred only by way of a registered deed of conveyance. The Court further held that the transactions in the nature of ‘GPA sales’ or, ‘SA/GPA/Will arrangements’, do not convey ownership. They do not amount to transfer under the Transfer of Property Act nor can they be recognized as a valid mode of conveyance under the Registration Act. Such documents, at the best, may confer certain contractual rights or - 18 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR limited rights of agency, but they neither convey title nor create any interest in the immovable property. Courts cannot treat such transaction as completed or concluded contracts and relief of declaration of ownership cannot be granted on the basis of such instruments. Applying this principle to the present facts, it is evident that the plaintiff’s claim resting upon Exhibit P5 (GPA dated

25.08.1989) and Exhibit P35 (agreement of sale dated

25.08.1989) cannot establish ownership, since both are unregistered instruments and do not amount conveyance. The subsequent sale deed dated 19.12.2016- Exhibit P6 executed by the husband styling himself as a GPA holder is equally ineffective, as the GPA itself had also ceased to operate long prior thereto in light of the death of the executor. Section 201 of the Indian Contract Act makes it explicit that an agency is terminated by death of the principal, the GPA of 25.08.1989, even if otherwise valid, ceased to exist upon the death of the executants. By the year 2016, when Exhibit P6 was executed, there was - 19 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR no subsisting authority left in favour of A. S. Anwar Shariff. The so called sale deed and rectification deed are therefore void ab initio. Even apart from this, Exhibits P5 and P35 are unregistered instruments, as held in Suraj Lamp and recently Ananthamurthy, (supra) ownership in immovable property can be conveyed only through a registered document. Thus the plaintiff's title based on such instrument is bad in law. On the contrary, the defendant's title flows from Exhibit D4-registered conveyance of the year 1989 which is valid, binding, unimpeached. The plaintiff having failed to establish any lawful title or possession, her claim cannot be sustained. Point number (ii):

11. The plaintiff has relied on Exhibit P15-katha, Exhibit-P17, 18, 26-tax paid receipts and Exhibits P41 and 42- water and electricity connections to establish possession. Her witnesses PW1 to PW3 have deposed that she was put in possession on the date of her purchase and she has been enjoying the property. A khatha entry or a - 20 - NC: 2025:KHC:39378 RFA No. 1863 of 2022 HC-KAR tax receipt is not a proof of actual possession, but only a physical record used for municipal purposes. The Apex Court in the case of Jattu Ram vs Hakam Singh and Others 4 has reiterated that the entries are only for fiscal purpose and they create no title. Utility connections such as Exhibits P41 and P42 are admittedly obtained during the pendency of the suit, and therefore cannot be relied upon to prove possession as on the date of filing. The plaintiff has not produced any independent evidence to show physical possession. In contrast, the defendant has produced Exhibits D8 and D9- Khatha in her name, Exhibits D10 to 17, tax receipts for several years, Exhibits D18 and D19 - electricity and service and bills. These documents coupled with the testimony that she has constructed a residential house and lived there since 1989, established long standing settled proposition. The Apex Court in the case of A. Subramanian and Another vs R. Panner Selvam5 has held at Para No. 26 as under : ORDER (i) (ii) The Regular First Appeal is hereby dismissed. The judgment and decree of the trial Court stands confirmed. Sd/- ______________________ JUSTICE K.S. HEMALEKHA CKL List No.: 1 Sl No.: 25