Smt. Pappu vs Smt. Lakshmamma and Others

Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned counsel for respondent no. 7, who is the contesting respondent. The appellant was the plaintiff and respondent no. 7 was defendant no. 7 before the trial court. The plaintiff is said to be the widow of Late M. Jayaraman and the property described under the suit schedule was the absolute and exclusive property of Jayaraman, who had purchased the property under a registered deed dated 28.9.1989 from one M. Anjanappa and on behalf of Munivenkatappa and Sadanand claiming to be their power of attorney holder and therefore, had executed the sale deed.

It was the plaintiff''s claim that the parties had entered into an agreement of sale prior to the execution of the above sale deed dated 29.8.1988. Jayaraman died intestate on 17.1.1991 leaving behind him the plaintiff and his four sons and a daughter. On the death of Jayaraman, the suit property had devolved as per the Hindu Succession Act, 1956 (Hereinafter referred to as the ''HS Act'', for brevity) on the plaintiff and her sons as class-I heirs under the Schedule to the HS Act and that they have been enjoying the suit property as-absolute owners.

It is further stated that after the death of Jayaraman, with the consent of her children, the khata of the property was transferred in the name of the plaintiff and she had paid betterment charges to the City Municipality, Krishnarajapuram and has also paid taxes in respect of the suit property and has produced the copies of the same. On the advice of their vendor Anjanappa, the plaintiff is said to have put up a fence around the suit property. Anjanappa is said to have died on 8.11.2001. It is on a visit to the property on 5.7.2002, she informed defendant no. 1 and other neighbourers that she was going to put up construction on the suit property. It was further claimed that there was a demand for money if the plaintiff wanted to construct. Defendant no. 7 went one step ahead and claimed to have purchased the property. It is in that background it is alleged that there was threat of interference with the suit property and the plaintiff complained to the jurisdictional Police and since they failed to take any action, a suit was filed for permanent injunction against the first defendant in O.S. no. 5575/2003, which was said to be pending before the City Civil Court. It is also stated that in the above background, on 14.2.2004, the plaintiff had learnt that the fence put up by her around the suit property had been removed and that there was activity on the suit property by the first and seventh defendant along with rowdy elements. Therefore, the plaintiff rushed to the court with the present suit seeking the relief of declaration and injunction.

The defendants entered appearance and filed their written statement denying the plaint averments.

Defendant no. 7, particularly was the contesting defendant, who is said to have purchased the property from the legal representatives of Anjanappa and also the vendor of the plaintiff. It was reiterated that defendants 1 to 6 were his vendors and the property sold was site no. 1, khata No. 368/1 situated in land in Survey Nos. 112 and 100, III Block, Dasappa Layout, Kowdenahalli, Krishnarajapuram Hobli, under the Krishnarajapuram City Municipality limits and then merged with the Bruhat Bengaluru Mahanagara Palike and the same was purchased for a valuable consideration. The sale deed was pledged with M/s. Canara Bank, Shanthinagar Branch, Bangalore to obtain a housing loan. Whereas the plaintiff was claiming a site, which was part of Survey No. 112/4, which is totally different from the site formed in land in Survey No. 112 and which has been purchased by defendant no. 7. Further, that the defendants could not have derived title from Anjanappa as it was clear that the site purchased was in Survey No. 112/4, which was shown in the name of Ramareddy in the revenue records and that defendant no. 7 was holding the property for the past 19 years and that she had paid taxes up to date and had obtained a substantial loan on the said property. It is further clarified that land bearing survey nos. 112 and 100 originally belonged to Munivenkatappa, who was a grantee under the provisions of the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954. Munivenkatappa had died as on 24.12.1990. Munivenkatappa had also executed a will bequeathing the lands in Survey Nos. 112 and 100 in favour of his sons, Anjanappa and Anand as well as his daughter Jayamma. The said will was a registered document. Therefore, succession would follow after the testator''s death and any alienation by Anjanappa during the life time of Munivenkatappa could not be valid as the will could not have taken effect and Anjanappa could claim no right in the property as the property was the self " acquired property of Munivenkatappa and the sale deed was void ab initio. Secondly, it is pointed out that admittedly, the sale deed in favour of the plaintiff was executed by Anjanappa and as a power of attorney holder for Munivenkatappa and Sadanand. Anjanappa in turn, had expired on 8.11.2001 and he had died intestate leaving behind defendants 1 to 6. Therefore, when it was only after Munivenkatappa died that Anjanappa would have inherited the property under the will and he having died intestate, his legal representatives came into the property and it is that property, which has been conveyed in favour of defendant no. 7 and therefor it is only the sale deed in favour of defendant no. 7 which was a valid title deed and the title deed claimed by the plaintiff is void in the first instance and the identity of the property is also in grave doubt and therefore, it is the sale deed of defendant no. 7 which would prevail. Further, defendant no. 7 has built a house investing a huge amount of money and hence, the defendant also deserves to be compensated in respect of losses that have occurred on account of litigation.

On the basis of the pleadings, the court below had framed the following issues:-

Does plaintiff prove that her husband M. Jayaraman purchased the suit schedule property under registered sale deed dated 28.09.1989 from M. Anjanappa and became owner thereof?

Was said Anjanappa duly authorised to convey the share of Muni Venkatappa and Sadananda in the said property in favour of said Jayaraman?

Did plaintiff and her son inherit suit schedule property upon the death of said Jayaraman?

Did defendant No. 1 attempt to put up construction in suit schedule property on or about 05.07.2003 or break the fence of plaintiff on 13.1.2003?

Could defendants 1 to 6 convey any title over suit schedule property in 7th defendant''s favour under registered sale deed dated 5.8.2002?

Is the said sale deed dated 5.8.2002 liable to be declared void and inoperative?

What decree or order?

The trial court has proceeded to hold against the plaintiff on two issues Firstly that the plaintiff admittedly claimed to have purchased under a sale deed which was executed by Anjanappa and as a power of attorney holder on behalf of Munivenkatappa and Sadanand and that the power of attorney was not produced. Therefore, the authority to execute the sale deed on behalf of Munivenkatappa and Sadanand not having been proved, it could not be said that there was appropriate authority in Anjanappa to convey the property under the sale deed. The second finding was that the property claimed was land in Survey No. 112/4 whereas the property in question was shown as Survey No. 112 and hence there was cloud on the title of the plaintiff. Therefore, the trial court has proceeded to dismiss the suit while incidentally observing that even defendant no. 7 had not made out a case insofar as the claim to the suit property was concerned. It is that which is under challenge in the present appeal.

The learned Counsel for the appellant would submit that it is not denied that Anjanappa was the son of Munivenkatappa and even as on the date of the sale deed executed Exhibit P.1, Munivenkatappa had made a will bequeathing a share in the property in favour of Anjanappa and therefore, even if it could be said that the authority to execute the sale deed on behalf of Munivenkatappa and Sadanand was not established, the fact that there was a will and Munivenkatappa having died and a share having devolved on Anjanappa by succession, in terms of Sections 41 and 43 of the Transfer of Property Act, 1882 (Hereinafter referred to as the ''TP Act'', for brevity), the imperfect title granted in favour of the plaintiff would stand cured by virtue of the vendor Anjanappa having derived interest on the death of his father and that would enure to the benefit of the plaintiff and by the doctrine of feeding the grant by estoppel, which is incorporated in Section 43 of the TP Act, the plaintiffs title would be perfected. Hence, the court below having held that it was incumbent on the plaintiff to prove the authority in favour of Anjanappa in executing the sale deed on behalf of his father Munivenkatappa and Sadanand, could not be sustained in law. He would also point out that it is not denied that the sale deed Exhibit P.1 was a registered sale deed and there would be a presumption that the power of attorney was produced at the time of the sale deed or at the time of the registration of the sale deed and that could not have been overlooked by the court below in holding that there was requirement for the plaintiff to establish the authority. In any event, Sections 41, 43, and 48 of the TP Act, would clearly indicate that the plaintiff has derived title by operation of law notwithstanding the assumed defect in the sale "deed executed by Anjanappa. He would further submit that insofar as the dispute as to the identity of the property is concerned, it cannot be disputed that Munivenktappa was the owner of the land in Survey No. 112 and 100. These properties are subject matter of the will, under which his three children, namely Anjanappa, Sadanand and Jayamma have been bequeathed their share of the property. A site measuring 60 feet x 40 feet has been bequeathed in favour of Jayamma and the eastern and western portion of land in Survey Nos. 112 and 100 have been given to Anjanappa and Sadanand, respectively. Therefore, there cannot be any dispute that Anjanappa has been conferred the right and title in respect of land in Survey No. 112 and even if the sale deed does not contain the demarcated portion of Survey No. 112, since it was not divided and respective shares allotted as on the date of the sale deed, it would still follow that the boundaries depicted in Exhibit D.1, which is the sale deed in favour of defendant no. 7 and therefore if the sale deed in favour of the plaintiff is prior in point of time and is in respect of the same property in terms of Section 48 of the TP Act, it is the title of the plaintiff that would prevail over that of defendant no. 7. And the Counsel would hence submit that the incidental documents, such as receipts for having paid the betterment charges and property taxes, indicated as being in respect of the property bearing Survey No. 112/4, would not lead to any serious consequence, for the said documents are produced to indicate that the betterment charges have been paid and property taxes are being paid in respect of the suit property. Hence, it could not be said that the plaintiff had not established her claim over the suit property.

While the learned counsel for respondent no. 7 would vehemently contend that the very circumstances indicated that admittedly, Munivenkatappa was the owner of the property and it was the self acquired property. On the date of execution of Exhibit P.1, the property was not divided or bequeathed. Though there was a will, it would not have taken effect when Munivenkatappa was alive. Therefore, the power of attorney under which the sale deed was said to have been executed, not having been proved, the sale deed could only be on behalf of Munivenkatappa and Anjanappa would have had no right to convey if the authority was not proved. As rightly held by the court below, the sale deed was void ab initio. Hence, the question of any interest ensuring to the benefit of Anjanappa at a later point of time, since a portion of the property bequeathed in his favour under a will by his father, would have no bearing on the efficacy or the validity of the sale deed executed and he could only claim a charge on the said property and it would not, by operation of law, become the property of the plaintiff.

Secondly, it was necessary that the identity of the property be indicated in detail with clarity and certainty especially, in a disputed proceeding and when there was a serious dispute as to the identity and location of the property. The ambiguity insofar as the description of the property indicated by the plaintiff as land in Survey No. 112/4 would be fatal to the suit, which further confounds the matter and it does not lie in the mouth of the plaintiff that the plaintiff had established her right over the land in survey no. 112. As on the date of the sale deed Exhibit P.1, the property had not been divided by metes and bounds and there was no clear demarcation of any extent of land, which could be conveyed under Exhibit P.1. Therefore, it is void for uncertainty and could not be relied upon by the plaintiff. The assertion that the boundaries of the suit property as indicated in. Exhibit P.1 and Exhibit D.1 are identical and hence it would have to be held that the sale deed Exhibit P.1 is prior in point of time and would precede over Exhibit D.1 in terms of Section 48 of the TP Act, is also not fatal, as the sale deed Exhibit P.1 being a void document could not be held to be a sale deed that comes alive with the death of Munivenkatappa. The division has been made only under the will and that would take effect only after his death. Hence, Anjanappa to have conveyed the property under Exhibit P.1 was not available. The sale deed incidentally, relatable to land in survey no. 112/4 and not 112. Further, the plaintiff herself has admitted in her evidence that the site in question was in land in survey no. 112/4. Therefore, the admissions and the assertions by production of documents in support of such admissions would clearly defeat the claim of the plaintiff.

The learned counsel for the appellant, by way of reply, would contend that notwithstanding that there is an inadvertent error in indicating the suit property as part of Survey No. 112/4, the fact remains that both the plaintiff and the defendant no. 7 are claiming to have derived the property ultimately under the will of Munivenkatappa. It cannot be any different property and it is the very same property, which is the subject matter of two sale deeds namely, Exhibit P.1 and Exhibit D.1. Therefore, in terms of Section 48 of the TP Act, the appellant''s case should prevail. In the above circumstances, the question for consideration is whether the plaintiffs could derive any title under Exhibit P.1 and notwithstanding the subsequent sale deed Exhibit D.1, whether the plaintiff could sustain the case by reference to the provisions of the TP Act.

In order to address that primary issue, it would be useful to extract the tenor of Section 41, 43 and 48 of the TP Act, including the illustrations:

Transfer by ostensible owner.-Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it:

Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.

Transfer by unauthorised person who subsequently acquires interest in property transferred.--Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.

Illustration

A, a Hindu who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorised to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition; but on B''s dying A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him.

Priority of rights created by transfer.--Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.

From a plain reading of the above provisions, it would be "possible to hold that assuming that there was a fraudulent or erroneous transfer in favour of the plaintiff by Anjanappa and if the defect stood cured by virtue of Anjanappa having ultimately derived title to the property by succession under the will of his father, who was the original owner, the same would enure to the benefit of the purchaser of the property from Anjanappa and if there was a rival claimant also claiming, as in the present case on hand, to have purchased the property from the legal representatives of Anjanappa, after the property devolved on Anjanappa under the will, whether the question as to which of the sale deeds would prevail, could straight away be answered in favour of the plaintiff and that it should be under Exhibit P.1. However, the defect arises in the plaintiff not having described the property with clarity and certainty. Since it is asserted and sought to be established by production of documents that it was the property bearing survey no. 112/4 and the sale deed also indicating the property bearing Survey No. 112/4, the correction now sought to be made that since both the properties described in Exhibits P.1 and D.1 are identical, with reference to the boundaries, it should be held that it is land in Survey No. 112 alone, which was sold and not land in Survey No. 112/4 and therefore Exhibit P.1 if prior in point of time, and by virtue of operation of law namely, the above provisions referred to, it is Exhibit P.1 which should prevail cannot be sustained. Therefore, since the pleadings in a suit cannot be lightly treated and the case of the plaintiff being categorical in this respect and also being supported by documents, cannot be wished away and this court even in exercise of power under Order VII Rule 7 of the Code of Civil Procedure, 1908, cannot attempt to mould any relief in favour of the plaintiff having regard to the further circumstance that the equities are in favour of defendant no. 7, who is said to have constructed a house on the suit property with much expense and effort. Therefore, in view of the uncertainty in the title deed of the plaintiff, the dismissal of the plaintiff''s suit, though for other reasons, cannot be set aside and hence the appeal stands dismissed.