B.I. Pinto vs Venkatagirija and Others

Anand Byrareddy, J.—This is a plaintiffs appeal. The case of the plaintiff was that he was the absolute owner of a house site bearing No. 576, measuring East to West 80 feet and North to South 50 feet, at Narasipura village, Yelahanka Hobli, Bangalore North Taluk. The same is more fully described in the Schedule to the suit. The said site was said to have been formed by the HMT House Building Society Limited, Bangalore. It was said to have been allotted to the plaintiff and a sale deed was executed by the Society dated 12.12.1988. The plaintiff was said to have been named as the Khatedar, in the year 1997 and he was paying property taxes to the competent authority.

It is stated that prior to the execution of the sale deed as aforesaid, the plaintiff is said to have entered into an agreement of sale dated 27.10.1988, agreeing to sell the above property for a sum of Rs. 87,000/-. Though it was also recited that the entire sale consideration had been paid in advance, the plaintiff claimed that no such advance was paid. The sale was to be completed within a period of 3 months. It was characterized as a ''sham'' document by the plaintiff and admittedly was not honoured by him. In any event, it is claimed that he could not have entered into any such transaction as the suit schedule property had not been conveyed in his favour as on the date of agreement.

It was claimed that the plaintiff had thereafter proposed to sell the property to one Ravi, who had proceeded to make enquiries to ascertain that the property was unencumbered. It is stated that he had found that the property had already been sold in favour of defendants 1 and 2 under a sale deed dated 23.10.1996. This, it was claimed, was brought to the knowledge of the plaintiff only on 21.12.2001, by the prospective purchaser, Ravi. It is then that the plaintiff had realized that defendants, acting on a Power of Attorney said to have executed by the plaintiff, had sold the property in favour of Defendants 3 and 4. The plaintiff denied that he had executed any Power of Attorney and hence claimed that the defendants 1 and 2 had played fraud. It was on the above basis that the suit was filed to challenge the sale deed dated 23.10.1996, as not binding on the plaintiff

The defendants having entered appearance had filed a common written statement. It was pointed out that the agreement of sale was not denied, and only the recitals that he had received the entire sale consideration in advance, was sought to be denied. It was asserted that the plaintiff had then executed a general power of attorney in favour of the defendants dated 29.1.1989, empowering them to sell the property. At the same time, he is said to have handed over all the original documents pertaining to the property. It is pursuant to the same that the sale deed in favour of Defendants 3 and 4 is said to have been executed and duly registered on 23.10.1996. Pursuant to which, the khatha in respect of the property had been transferred in favour of the defendants 3 and 4 and that they were in possession and were paying the taxes to the competent authority. The defendants thus denied the claim of the plaintiff

On the basis of the above pleadings, the trial court had framed the following issues:

"1. Does plaintiff prove that the sale deed dated 23.10.1996 executed between defendants 1 and 2 in favour of defendants 3 and 4 on the basis of General Power of Attorney of the plaintiff is null and void and not binding on him?

Does plaintiff prove that he had not executed the General Power of Attorney?

Whether the plaintiff is entitled of permanent injunction against defendants 1 to 4 as prayed for?"

The issues were answered in the negative and the suit was dismissed. It is that which is under challenge.

The learned counsel for the plaintiff - appellant would contend that the trial court was in error in placing the onus on the plaintiff to establish that the disputed power of attorney in favour of defendants 1 and 2 was not executed by the plaintiff That the plaintiff could not be expected to prove the negative. The burden of proof in that regard was on the defendants and not the plaintiff

The trial court could not have placed reliance on the report of a handwriting expert in coming to a conclusion that the plaintiff had indeed executed the general power of attorney.

It is contended that there was no documentary proof of the plaintiff having received the advance sale consideration under the agreement of sale dated 27.10.1988.

It is contended that the primary reasoning of the trial court that the circumstance where all the original documents pertaining to the suit property were in the possession of defendants 1 and 2 and in the absence of an explanation in that regard, it was to be presumed that the plaintiff had indeed handed over the same, is sought to be demonstrated as being an erroneous conclusion by reference to the evidence of D.W.-1, D.W.-2 and D.W.-4, whereby they have admitted that they had obtained the original documents directly from the authorities by virtue of the power of attorney, which is disputed by the plaintiff While drawing particular attention to their respective statements in their depositions in that regard, the learned counsel has also drawn attention to a contradiction. The defendants had also claimed in their written statement that the original documents had been handed over to defendants 3 and 4, by the plaintiff, at the time of execution of the sale deed dated 23.10.1996. It is hence contended that the assertion of the plaintiff that the defendants have concocted the power of attorney and have effected the sale transaction fraudulently behind his back and without his knowledge is established.

In so far as the trial court having referred to various correspondence preceding the execution of the sale deed which is under challenge, and coming to a conclusion that the plaintiff is shown to have promised to complete the transaction is concerned, it is pointed out that the several letters referred to are exchange of letters between the defendants, inter se, and can hardly bind the plaintiff

In so far as the alleged execution of the General power of Attorney is concerned, it is sought to be demonstrated that the same was apparently prepared by the husband of D.W.-2 and at his instance, the attesting witnesses had mechanically affixed their signature to the same. In this regard, the evidence of D.W.-2 and D.W.-3 is referred to.

It is pointed out that it was for the defendants to establish that the disputed power of attorney was executed by the plaintiff

It is contended that the Document, Exhibit - D6, discloses that Defendants 1 and 2 are the alleged Attorney Holders, one Shri Mohanraj and Shri Babu are the alleged witnesses, and Shri B.I. Pinto is the alleged Executant. According to them, the said document was notarized before the Public Notary, Smt. M. Shantha. In order to establish the proof of execution of the document, Exhibit -.D6, the evidence of the attesting witnesses, the scribe, the holders of the document and the Notary Public are relevant.

It is contended that, the defendant has produced the alleged General Power of Attorney as Exhibit - D6 and examined D.W.-2 (defendant No. 1 - alleged holder of the document) and attesting witness, Shn Babu as D.W.-3, to prove the genuineness of the transaction.

It is contended that the evidence of D.W.-3 is important to prove the authenticity of the document, Exhibit -.D6. But, D.W.-3, in his Examination-in-Chief, has nowhere stated about the execution of the document, Exhibit - D6, by the plaintiff in favour of defendants 1 and 2, and also he has not spoken anything about the alleged transaction which took place between the plaintiff and defendants 1 and 2, the signing of the document by the plaintiff, the identification of the signature of the parties to the document, notarization, etc. On the other hand, the witness states, in his Examination-in-Chief, states that he has no knowledge of the contents of the document, Exhibit - D6, and that he signed the document as per the instructions of his ''boss'' Shri Mohanraj.

Apart from the evidence of D.W.-3, the only evidence available is the evidence of D.W.-2. D.W.-2, in her Cross-Examination, while answering a specific question regarding the contents of the documents, she answers that ''her husband knows about the sale''.

The evidence of D.W.-2 and D.W.-3, in its entirety, does not support the case of defendants 1 to 4 that the plaintiff has executed the document, Ex. D6, in favour of defendants 1 and 2, and authorized them to sell the property. On the other hand, the contradictions in the evidence and the difference in signatures clearly create a serious doubt regarding the genuineness of the alleged Document, Ex. D6.

The appellant has also raised an additional ground of appeal by way of an amendment, that the disputed General power of attorney, Exhibit D-6, was an insufficiently stamped document and could not have been received in evidence.

The learned Senior Advocate, Shri M.R. Rajendra Prasad appearing for the learned counsel for the respondent, on the other hand, seeks to justify the judgment of the trial court and places reliance on a large number of decisions to support his contentions especially, pertaining to the ground now raised in appeal as regards the insufficiency of stamp duty on the disputed general power of attorney given for consideration.

On a consideration of the material on record and the rival contentions, it is noticed that the plaintiff had, during the course of his evidence, flatly denied his signature on the original sale deed executed in his own favour. But on the intervention of his counsel, had corrected himself. This had resulted in the trial court having formed an opinion that he was a liar and untrustworthy. His evidence therefore was viewed with suspicion and has not been accepted without reservation.

In so far as the contention that the execution of a power of attorney having been asserted by the defendants, the burden being cast on the defendants is concerned, the trial court has arrived at a finding that the said document was proved to have been executed by the plaintiff on the basis of a plain examination of the document, coupled with the report of a hand writing expert who had certified that the admitted signature of the plaintiff and the signature on the disputed document, tallied. It is in that background that the trial court had held that the burden of establishing the allegation of the said power of attorney being a got up document, having shifted on the plaintiff

Further, it is no doubt true that the exchange of letters referred to by the trial court, in arriving at a conclusion that the original documents pertaining to the suit property being in the possession of the defendants, was a strong circumstance to disbelieve the case of the plaintiff, were largely letters exchanged between the defendants. But then again all the original documents referred to could not have been obtained by the defendants independently from the concerned authorities, on the strength of the power of attorney. This is evident from the list of the relevant original documents enumerated by the trial court in paragraph 12, of the judgment. Therefore, the circumstance that the defendants were in possession of all the original documents is indeed a circumstance that militates against the case of the plaintiff The long intervals between the transactions where the plaintiff has remained dormant is also not explained with any conviction. In fact, there is no attempt to do so. Was the plaintiff oblivious to the circumstance that the original documents had to be collected by him from the concerned authorities at the appropriate time?

For all of the above reasons, the appeal fails and is dismissed.

However, in so far as the General Power of Attorney said to have been executed by the plaintiff, dated 29.1.1989, executed by the plaintiff in favour of Defendants 1 and 2 is concerned, which is marked as Exhibit D-6, the question whether the same could be admitted and marked in evidence, was not in question before the trial court. It is only sought to be questioned in the present appeal by way of amendment to the grounds of appeal. The learned Senior Advocate Shri Rajendraprasad has hence placed reliance on several decisions of this court and the apex court, to contend that if once a document is admitted and marked in evidence, the same cannot be questioned at any later stage of the proceedings. This is however, subject to Section 58 of the Karnataka Stamp Act, 1957 (Hereinafter referred to as the ''KS Act'', for brevity). The said Section is reproduced hereunder for ready reference.

"58. Revision of certain decisions of Courts regarding the sufficiency of stamps.--(1) When any Court in the exercise of its civil or Revenue jurisdiction or any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898, makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under Section 34, the Court to which appeals lie from, or references are made by, such first mentioned Court may, of its own motion or on the application of the [Deputy Commissioner] take such order into consideration.

(2) If such Court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under Section 34, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced.

(3) When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the [Deputy Commissioner] and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument.

(4) The [Deputy Commissioner] may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under Section 41, or in Section 42, prosecute any person for any offence against the stamp-law which the [Deputy Commissioner] considers him to have committed in respect of such instrument:

Provided that, -

(a) no such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, was payable in respect of the instrument under Section 34, is paid to the [Deputy Commissioner] unless he thinks that the offence was committed with an intention of evading payment of the proper duty;

(b) except for the purpose of such prosecution, no declaration made under this section shall affect the validity of any order admitting any instrument in evidence, or of any certificate granted under Section 41.

Admittedly, the said Power of Attorney was executed for a consideration. The liability to pay the stamp duty is cast on the principal, in terms of Section 30(cc) of the KS Act. The stamp duty payable on the said document in terms of Article 41(e) (sic) [recte Section 41(e)] of the Schedule to the KS Act, was the same duty as payable on the consideration for a conveyance, on the market value of the property involved. However, since the same is not produced by the plaintiff in the course of the proceedings, but is produced and relied upon by the defendants jointly, they would be liable to pay the duty and penalty, when the same is found to be not duly stamped. The Registrar (Judicial) of this court is directed to take steps to determine the duty and penalty payable on the said instrument and call for and impound the same and take further steps in accordance with Section 58 of the KS Act.

The appeal is dismissed in terms as above.