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2012 DIGILAW 866 (KAR)

Muniyamma and Anr. v. Somashekar

2012-10-04

N.ANANDA

body2012
ORDER N. Ananda , J.—Heard Sri. H.R. Anantha Krishnamurthy, learned counsel for petitioners in HRRP 293/2010, 290/2010, 291/2010, 292/2010, 294/2010 and Sri. H. Ramachandra, learned counsel for petitioners in HRRP 325/ 2010, 327/2010 and Sri. N. Vasudevan, learned counsel for first respondent in these revision petitions. In order to avoid confusion, parties will be referred to by their names. The first respondent namely Somashekar in all the petitions had filed eviction petitions against several tenants including petitioners in HRRP 325/2010 and 327/2010. 2. The second respondent namely, Muniyamma impleaded herself and contested the eviction petitions. It is the case of Somashekar that he had purchased the suit schedule property (larger part of schedule premises) from it's previous owner Muniyappa, S/o. Muni Veerappa represented by his General Power of Attorney holder Gowramma (who is none other than mother of Somashekar). The tenants herein disputed title of Somashekar. Smt. Muniyamma got impleaded as second respondent and she contested eviction petitions inter alia contending 'that the schedule property was acquired by Muni Veerappa (her father-in-law). The said Muni Veerappa had two sons namely Muniyappa and Muniswamy (husband of Muniyamma) Muniswamy-husband of Muniyamma predeceased his father. After the demise of Muniswamy, Muni Veerappa (father-in-law of Muniyamma) had given schedule properties to Muniyamma under maintenance deed dated 20.06.1991. Since then, Muniyamma is in lawful possession of schedule property. Therefore, Somashekar is not the lawful owner of schedule property. The vendor of Somashekar namely Muniyappa had neither title nor possession over schedule property to transfer the same to Somashekar. Muniyamma has denied the execution of Power of Attorney in favour of Gowramma (mother of Somashekar) and execution of sale deed by Gowramma in favour of Somashekar. 3. At the first instance, eviction petitions were allowed. Therefore, the tenants were before this Court in HRRP 313/2007, 314/ 2007, 315/2007, 308/2007, 310/2007, 307/ 2007, 306/2007 and 309/2007. This Court by order dated 03.02.2009 noticing judgment made in O.S. No. 6807/1997 and also non-production of deed of Power of Attorney executed in favour of Gowramma remanded the matter for reconsideration and permitted both parties to lead additional evidence and directed the trial Court to pass orders afresh on merits. After the remand, Somashekar produced the deed of power of attorney stated to have been executed by the original owner Muniyappa, S/o Muni Veerappa in favour of Gowramma as per Ex. P18. 4. After the remand, Somashekar produced the deed of power of attorney stated to have been executed by the original owner Muniyappa, S/o Muni Veerappa in favour of Gowramma as per Ex. P18. 4. On consideration of contents of deed of General Power of Attorney dated 03.06.1991 stated to be executed by Muniyappa in favour of Gowramma, I find that Muniyappa, S/o Muni Veerappa had not constituted Gowramma as Power of Attorney to sell the schedule property on his behalf. On the other hand, Muniyappa has sold schedule property to Gowramma under the deed of power of attorney dated 3.6.1991. Along with the General Power of Attorney, Muniyappa, S/o Muni Veerappa had also sworn to an affidavit purporting to sell schedule property in favour of Gowramma who in turn sold schedule property in favour of her son Somashekar under registered sale deed dated 09.07.1999. The law is fairly well settled that transfer of immovable property cannot take place by execution of power of attorney. 5. In a decision reported in Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Another, 2011 (11) SCALE 438 the Supreme Court has held: 15. 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 Vs. The Canara Bank and Others, 94 (2001) DLT 841 , that the "concept of power of attorney sales have been recognised 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. 16. 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 immovable 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. 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 53A 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. 6. The learned trial Judge without considering contents of power of attorney has held that Muniyappa, S/o Muni Veerappa had constituted Gowramma as power of attorney. Thereafter, Gowramma as power of attorney of Muniyamma had executed registered sale deed dated 9.7.1999 in favour of Somashekar (her son) in respect of schedule property. In the circumstances, the finding of the trial Court that Somashekar has title and possession to schedule property cannot be accepted. Above all, in eviction petitions filed under the Karnataka Rent Act, the learned trial Judge should not have gone into all these details to record a finding of title in favour of Somashekar. 7. The matter involves complicated question of title, which can be summarized thus: 1) When schedule property admittedly acquired and left by Muni Veerappa, whether one of his sons namely, Muniyappa could have transferred schedule property in favour of Gowramma by executing General Power of attorney dated 03.06.1991 ignoring rights of Muniyamma who is the widow of Muniswamappa (second son of Muni Veerappa) ? 2) Whether Gowramma had acquired ownership and possession of schedule property under General Power of Attorney dated 03.06.1991 said to have been executed Muniyappa, S/o Muni Veerappa? 3) Whether Somashekar had derived title to suit schedule property by virtue of registered sale deed dated 9.7.1999 said to have been executed by Gowramma (his mother) in his favour? 8. Somashekar had not produced any document to prove jural relationship of landlord and tenants. The learned trial Judge had no basis to record a finding that there is jural relationship of landlord and tenants. 8. Somashekar had not produced any document to prove jural relationship of landlord and tenants. The learned trial Judge had no basis to record a finding that there is jural relationship of landlord and tenants. In the circumstances, the learned trial Judge should have directed parties to establish their title to schedule property. Above all, Muniyamma had filed O.S. No. 1143/1998 for permanent injunction against Somashekar and O.S. No. 1143/1998 was decreed. So also, Somashekar had filed O.S. No. 6807/1997 for decree of permanent injunction against Muniyamma and O.S. No. 6807/1997 was dismissed on 12.06.2008. 9. In a summary proceedings, under the Karnataka Rent Act, the learned trial Judge should not have decided rights of parties over schedule properties. The learned trial Judge should have directed parties to approach competent civil Court to establish their ownership and possession. Therefore, the impugned orders of eviction cannot be sustained. In the result, I pass the following: ORDER The petitions are accepted. The orders impugned in these petitions are set aside. The parties are directed to approach the competent civil Court to establish their rights of ownership and possession over schedule properties. If Somashekar were to file & suit for declaration of title and possession, petitioners in HRRP No. 325/2010 and 327/2010 shall continue to deposit in such suit rents. Somashekar is at liberty to seek transfer of rents deposited by petitioners in HRRP 325/2010 and 327/2010 with this Court to the Court where the suit is instituted. It is made clear that the observations made in this order shall not be construed as expression of opinion on merits of rights of parties in subsequent proceedings.