PAPPU Vs. LAKSHMAMMA AND OTHERS

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.