MOIDU PULIKKAL v. SRI. DINESH BABU & Ors.

Judgment

#2. SRI. DINESH BABU S/O RATHNA VELU AGED ABOUT 37 YEARS R. RAVI S/O RATHNA VELU AGED ABOUT 28 YEARS Location: HIGH COURT OF KARNATAKA BOTH ARE R/A NO.885 5TH BLOCK, HMT LAYOUT VIDYARANPURA, BANGALORE-560 097.

#3. RATHNAVELU DEAD BY HIS LRS 3(A) SMT. RUKMANI W/O LATE RATHNAVELU AGED ABOUT 63 YEARS R/A NO.885, 5TH BLOCK, HMT LAYOUT - 2 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR VIDYARANPURA BANGALORE-560 097. 3(B) R. SUMATHI D/O RATHNAVELU AGED ABOUT 41 YEARS R/A NO.152, DEFENCE COLONY GANESH TEMPLE ROAD VIDYARANPURA BANGALORE-560 001. THE MANAGER STANDARD CHARTERED BANK NO.26, M G ROAD, RAHEJA TOWERS BANGALORE-560 001. THE COMMISSIONER BYTARAYANPURA CMC BANGALORE-560 098.

#5. …RESPONDENTS

(BY SRI. P.M. NARAYANASWAMY, ADVOCATE FOR R1, R2, R3( A & B); SRI. B.C. AVINASH, ADVOCATE FOR R4; SRI. M. SUNIL SASTRY, ADVOCATE FOR R5) THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE ORDER DATED 2.12.2011 PASSED IN O.S.NO.4508/2005 ON THE FILE OF IX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DECREEING THE SUIT FILED FOR PERMANENT INJUNCTION AND DECLARING THE SALE DEED DATED

15.2.2005 EXECUTED BY 2ND DEFENDANT IN FAVOUR OF 1ST DEFENDANT THEREIN IS NULL AND VOID. THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL JUDGMENT The captioned appeal is by unsuccessful defendant No.1 questioning the judgment and decree rendered by the Court below in O.S.No.4508/2005, wherein the plaintiffs' suit is decreed declaring the sale deed dated

15.2.2025 executed by defendant No.2 in favour of defendant No.1 as null and void and not binding on the rights of the plaintiffs. Consequently, defendants 1 and 3 are restrained from interfering with plaintiffs' possession of the suit schedule property.

#2. For the sake of convenience the parties are referred to as per their rank before the trial Court.

#3. The facts leading to the case are as under: Plaintiffs Nos.1 and 2 are the sons of the original defendant No.2, Rathnavelu. It is the specific case of the plaintiffs that the suit schedule property was allotted to - 4 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR defendant No.2 by the HMT Employees House Building Co- operative Society Limited during the year 1984. Pursuant to the said allotment, defendant No.2 secured sanction the Bangalore Development Authority and constructed a residential house thereon. The plaintiffs contend that they, along with their mother and other siblings, have been residing in the suit schedule property from the date of construction. It is further pleaded that plaintiff No.2 is physically handicapped and that even the married daughter of defendant No.2, along with her husband, who is also handicapped, resides in the suit schedule property.

#4. The plaintiffs have alleged that defendant No.2, though employed with HMT, was leading a wayward life, frequently remaining away from the family for long durations, neglecting his wife and children, and failing to provide for their basic necessities. According to the plaintiffs, defendant No.2 was acting consistently in a manner detrimental to the interests of the family. In the - 5 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR said background, the plaintiffs’ mother, after due deliberation, obtained a General Power of Attorney from defendant No.2 on 02.01.1996. Despite the same, defendant No.2 continued to neglect the family and was found staying away from the house, which constrained the plaintiffs’ mother, in exercise of the authority conferred under the GPA, to convey the suit schedule property in favour of the plaintiffs under a registered sale deed dated 20.02.2004. The plaintiffs assert that by virtue of the said conveyance, they have acquired valid right, title, and interest over the suit schedule property and are in lawful possession and enjoyment of the residential house as absolute owners.

#5. It is further the case of the plaintiffs that to their utter shock and surprise, defendant No.1, a complete stranger to the family, attempted to assert title over the suit schedule property. This compelled the plaintiffs to verify the records, whereupon they came to know that defendant No.1 had obtained a sale deed dated - 6 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR

15.02.2005 and was attempting to interfere with and dispossess the plaintiffs from the suit schedule property. Under these circumstances, the plaintiffs were constrained institute the present suit seeking appropriate declaratory and injunctive reliefs.

#6. Upon service of summons, defendant No.1 entered appearance and filed his written statement, stoutly denying all the averments made in the plaint. Defendant No.1 disputed the sale transaction in favour of the plaintiffs and the validity of the sale deed dated

20.02.2004. He asserted that he had purchased the suit schedule property for valuable consideration defendant No.2 under a registered sale deed dated

15.02.2005 and claimed to have acquired absolute title thereunder. Defendant No.1 further contended that he had called upon the plaintiffs to vacate the premises and hand over possession, but since the plaintiffs neither vacated nor paid rent, they have filed a frivolous suit to protract their unlawful occupation. - 7 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR

#7. During the pendency of the proceedings, defendant No.2 died. His wife and other children, who are the siblings of the plaintiffs, were brought on record as defendant Nos.2(a) and 2(b). Significantly, the legal representatives of defendant No.2 have supported the case of the plaintiffs and have not disputed the execution of the General Power of Attorney or the sale deed in favour of the plaintiffs.

#8. Based on the rival pleadings, the Trial Court framed appropriate issues and called upon the parties to adduce oral and documentary evidence. The plaintiffs, in support of their case, examined witnesses and produced documentary evidence. Defendant No.1, despite contesting the matter, did not step into the witness box nor did he adduce any oral or documentary evidence.

#9. Upon appreciation of the evidence on record, the Trial Court decreed the suit, declaring that the sale deed obtained by defendant No.1 from defendant No.2 - 8 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR was null and void and not binding on the plaintiffs, and consequently granted permanent injunction restraining defendant No.1 interfering with the plaintiffs’ peaceful possession of the suit schedule property.

#10. The learned counsel appearing for defendant No.1, reiterating the grounds urged in the appeal memorandum, vehemently contended that the General Power of Attorney relied upon by the plaintiffs is a fraudulent and fabricated document. It was argued that the plaintiffs, in collusion with their mother, have brought into existence a concocted sale deed and that no valid title could flow from such a document. The learned counsel would submit that defendant No.2 was the absolute owner of the property and had never executed any General Power of Attorney in favour of his wife. It was further contended that defendant No.1 had purchased the suit schedule property for valuable consideration after securing a housing loan from defendant No.3–Bank and that the Trial Court failed to properly appreciate the rebuttal - 9 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR material, resulting in a perverse finding warranting interference by this Court.

#11. Per contra, the learned counsel appearing for the plaintiffs supported the judgment and decree of the Trial Court. He submitted that the General Power of Attorney executed by defendant No.2 in favour of his wife was valid and subsisting, and that the plaintiffs have acquired lawful title under the registered sale deed dated

20.02.2004. The learned counsel drew attention to the recitals in both sale deeds and pointed out that while the plaintiffs’ sale deed clearly conveys a residential house, the sale deed relied upon by defendant No.1 describes the subject matter as a vacant site, which is wholly inconsistent with the admitted fact that a residential house had been constructed on the property as early as in 1986. It was further argued that defendant No.1 has not entered the witness box nor challenged the General Power of Attorney or the prior sale deed in accordance with law, - 10 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR and therefore lacks locus to dispute the plaintiffs’ title, which is prior in point of time.

#12. This Court has given its anxious consideration to the submissions made by the learned counsel appearing for the parties and has independently examined the pleadings and the oral and documentary evidence placed on record.

#13. Upon such consideration, the following points arise for determination: (i) Whether the plaintiffs have established lawful title to the suit schedule property under the sale deed dated 20.02.2004? (ii) Whether defendant No.2 had any saleable right, title, or interest to convey the property to defendant No.1 in the year 2005? (iii) Whether the judgment and decree passed by the Trial Court declaring the plaintiffs as owners and holding the sale deed obtained by defendant No.1 to be null and void suffers from perversity and warrants interference? - 11 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR (iv) What order? Finding on point Nos.(i to iii):

#14. It is not in dispute that the suit schedule property was originally allotted to defendant No.2, who is the father of the plaintiffs. The plaintiffs claim title to the suit schedule property under a registered sale deed dated

20.02.2004, marked as Ex.P1, executed by the General Power of Attorney holder of defendant No.2. The plaintiffs have produced the General Power of Attorney as well as the original registered sale deed in support of their claim. The execution of the sale deed stands proved through documentary evidence, and significantly, there is no challenge to either the General Power of Attorney or the sale deed executed pursuant thereto.

#15. Once execution of a registered conveyance is proved, Section 54 of the Transfer of Property Act, 1882 unequivocally postulates that a sale of immovable property of the value exceeding Rs.100/- can be effected only by a - 12 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR registered instrument, and such a conveyance operates to transfer ownership. Further, Section 8 of the Transfer of Property Act provides that a transfer of property passes forthwith to the transferee all the interest which the transferor is capable of passing, unless a contrary intention is expressed. In the present case, defendant No.2, acting through his duly constituted General Power of Attorney holder, conveyed his entire right, title, and interest in the suit schedule property in favour of the plaintiffs under the registered sale deed dated 20.02.2004. Therefore, the plaintiffs have clearly succeeded establishing their lawful title over the suit schedule property.

#16. A crucial circumstance, as rightly pointed out by the learned counsel for the plaintiffs, is the nature of the property conveyed under the rival sale deeds. The plaintiffs have purchased a residential house property, whereas defendant No.1 claims to have purchased a vacant site under a subsequent sale deed. This material - 13 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR distinction substantially probabilises the plaintiffs’ version and casts serious doubt on the transaction set up by defendant No.1. The sanctioned building plan produced at Ex.P52 unmistakably demonstrates that a residential house was constructed on the suit schedule property as early as in the year 1986. In the face of this unimpeachable documentary evidence, the sale deed allegedly obtained by defendant No.1 from defendant No.2 in respect of a “vacant site” appears to be inherently inconsistent with the physical and legal reality of the property and is therefore rendered highly doubtful.

#17. Once the property stood transferred in favour of the plaintiffs in the year 2004, defendant No.2 was divested of all subsisting right, title, and interest in the suit schedule property. A circumstance of considerable significance is that defendant No.2, who alone had the locus to challenge the General Power of Attorney and the consequent sale deed, never questioned either of the documents during his lifetime. Equally, defendant No.2 did - 14 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR not step into the witness box nor adduce any rebuttal evidence to dispute the plaintiffs’ title. The encumbrance certificate produced by the plaintiffs marked at Ex.P6 further corroborates the transaction in their favour and reflects the subsisting title vested in the plaintiffs. In the absence of any legal challenge to the registered sale deed, the conveyance in favour of the plaintiffs continued to remain valid, operative, and binding.

#18. The conduct of defendant No.1, on the other hand, appears not only to be grossly unfair but also highly suspicious. No prudent purchaser would acquire immovable property without even inspecting the property, more so when a residential house has been in existence since 1986. The circumstances under which defendant No.1 claims to have obtained a sale deed from defendant No.2 are rendered further doubtful in light of the fact that defendant No.2 went missing from 01.02.2005 and was subsequently found dead. The feeble attempt made before this Court to discredit the General Power of Attorney on - 15 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR the ground that the stamp paper was procured earlier also does not merit acceptance. Though the stamp paper bears the date 03.02.1995, the evidence on record discloses that the stamp vendor sold the same on 02.01.1996 and on the very same day, the General Power of Attorney was executed by defendant No.2 in favour of his wife. Such a document could have been questioned only by defendant No.2, who consciously chose not to do so during his lifetime.

#19. The cumulative effect of the documentary evidence clearly establishes that the plaintiffs acquired valid title under the registered sale deed dated 20.02.2004 and were in actual physical possession of the residential house. Once defendant No.2 had conveyed the property through his GPA holder, he was left with no saleable interest. Consequently, the subsequent sale deed dated

15.02.2005 obtained by defendant No.1 does not convey any title. Courts have consistently held that a subsequent purchaser cannot acquire any right or interest if the - 16 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR vendor had already parted with his title under an earlier registered conveyance. Even assuming, for the sake of argument, that the plaintiffs’ title was voidable, the same continued to be valid and operative until avoided in accordance with law. In the present case, the sale deed in favour of the plaintiffs has not even been questioned, much less set aside. Accordingly, Point No.(i) is answered affirmative and Point No.(ii) is answered negative.

#20. In the light of the foregoing discussion, this Court finds that the conclusions and reasons recorded by the Trial Court while decreeing the suit are based on cogent, consistent, and clinching evidence. The findings neither suffer from perversity nor disclose any illegality warranting interference in appeal. Consequently, Point No.(iii) is answered in the negative. - 17 - NC: 2026:KHC:4540 RFA No. 386 of 2012 HC-KAR Finding on point No.(iv):

#21. For the foregoing reasons, this Court proceeds to pass the following: ORDER Appeal is dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE ALB List No.: 1 Sl No.: 19