M S Jade Garden Plot Owner S Association Vs Smt Bhagyalakshmi - Citation 1235759 - Court Judgment

Judgment:

- 1 - NC:

2024. KHC:43493 CRP No.88 of 2024 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE25H DAY OF OCTOBER, 2024 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ CIVIL REVISION PETITION No.88 OF2024(IO) BETWEEN M/S JADE GARDEN PLOT OWNER’S ASSOCIATION A SOCIETY REGISTERED UNDER THE PROVISIONS OF THE KARNATAKA SOCIETIES REGISTRATION ACT1960HAVING ITS REGISTERED OFFICE AT NO1 PHASE-II, JADE GARDEN, SADAHALLI DEVANAHALLI TALUK, BENGALURU RURAL DISTRICT - 562 110 REPRESENTED HEREIN BY ITS HON SECRETARY WG CDR PRATAP DESHPANDE SON OF SRI VASUVERAO MADHAVRAO DESHPANDE AGED ABOUT66YEARS ...PETITIONER (BY SRI: PRADEEP S. SAWKAR., ADVOCATE) AND1 SMT. BHAGYALAKSHMI WIFE OF LATE SRI V LASKHMANASWAMY AGED ABOUT65YEARS RESIDING AT NO6 2ND CROSS, BYARAYANAPURA, BENGALURU - 560 092 - 2 - NC:

2024. KHC:43493 CRP No.88 of 2024 2. SMT SARASWATHI B R WIFE OF SRI GURUMURTHY AGED ABOUT63YEARS RESIDING AT NO227 NEAR BHAJANEMANDIRA KODEGAHALLI BENGALURU - 560 092 3. SMT GOWRAMMA WIFE OF SRI V LAKSHMINARAYANA AGED ABOUT60YEARS RESIDING AT NO6 2ND CROSS BYATARAYANAPURA BENGALURU - 560 092 4. SMT RUKMINI DEVI WIFE OF SRI RAMACHANDRA AGED ABOUT38YEARS RESIDING AT NO6 2ND CROSS BYATARAYANAPURA BENGALURU - 560 092 5. THYAGARAJA B R SON OF LATE SRI B T RAMAIAH AGED ABOUT42YEARS, RESIDING AT NO302, 1ST MAIN, 301/12, 1ST CROSS, BYATARAYANAPURA BENGALURU – 560092 6. P SATISIH PAI SON OF LATE SRI P NARASIMHA PAI MAJOR IN AGE HAVING ITS ADDRESS AT No.10/1, LAKSHMINARAYANA COMPLEX, PALACE ROAD BENGALURU – 560052 - 3 - NC:

2024. KHC:43493 CRP No.88 of 2024 7. S RAGHUNATH SON OF LATE SRI H SHANKAR MAJOR IN AGE, RESIDNG AT NO306 17TH C MAIN, 3RD BLOCK, RAJAJINAGAR BENGALURU - 560 010 8. B M SHARAD @ SURYA KARRIAPPA AGED ABOUT62YEARS SON OF B K MACHAYA No.T-701, PURVA PARK APARTMENTS JEEVANAHALLI MAIN ROAD COX TOWN, BENGALURU – 560005 9. CHITRA SHARAD @ CHITRA KARIAPPA AGED ABOUT57YEARS SON OF B K MACHAYA No.T-701 PURVA PARK APARTMENTS JEEVANAHALLI MAIN ROAD COX TOWN BENGALURU - 560005 …RESPONDENTS (BY SRI. KUMBAR VASANT FAKEERAPPA., ADVOCATE FOR R1 TO R4; R5 & R6 SERVED AND UNREPRESENTED; SRI. K. CHANDAN., ADVOCATE FOR R7; SRI. M. JAGADEESH., ADVOCATE FOR R8 AND R9) THIS CIVIL REVISION PETITION IS FILED UNDER SECTION115OF THE CPC, 1908 PRAYING TO CALL FOR THE RECORDS IN O.S. NO.162 OF2008PENDING ON THE FILE OF III ADDL. SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, C/C IIND ADDL. SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI AND ETC. THIS CIVIL REVISION PETITION COMING ON FOR

ORDER

S AND HAVING BEEN RESERVED FOR

ORDER

S ON2507.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ - 4 - NC:

2024. KHC:43493 CRP No.88 of 2024 TABLE OF CONTENTS A. BACKGROUND ................... 5Error! Bookmark not defined. B. SUBMISSIONS OF PETITIONER COUNSEL1............... 7 C. SUBMISSIONS OF RESPONDENT COUNSEL ............... 27 D. SUBMISSIONS OF PETITIONER COUNSEL2............. 32 E. POINTS FOR CONSIDERATION ................................. 54 F. Whether the suit filed in the year 2008 questioning the sale deed of the year 1995 was maintainable and was within the period of limitation requiring the Trial Court to excise powers under Rule 11 of Order 7 of the CPC to reject the plaint on the ground that it was barred by the law of limitation?. ......................................................... 56 G. Whether the sale deed executed in pursuance of a General Power of Attorney, executed in pursuance of an agreement of sale in favour of Defendant No.2, which could be said to be coupled with interest under Section 202 of the Contract Act, 1872, thereby making the sale deed of the year 1995 valid?. ........................................ 62 H. Whether a suit for partition filed in the year 2008 as regards the property which had been alienated by way of a registered document prior to 20.12.2004 could be maintainable in view of the proviso to subsection (1) of Section 6 of the Hindu Succession Act, 1956?. .............. 74 I. Whether the order passed by the Trial court suffers from any legal infirmity requiring interference at the hands of this court?. ................................................... 880 J.

What Order?. ............................................................. 83 - 5 - NC:

2024. KHC:43493 CRP No.88 of 2024 CAV

ORDER

A. BACKGROUND1 The Petitioner, who is Defendant No.25 in O.S. No.162/2008, is before this Court seeking the following reliefs: a. Call for the records in O.S. No.162 of 2008 pending on the file of III Addl. Senior Civil Judge and JMFC, Devanahalli, c/c IInd Addl. Senior Civil Judge and JMFC, Devanahalli. b. Set-aside the order dated 20.1.2023 passed on I.A. No.11 in O.S. No.162 of 2008, allow the said IA No.11 filed by defendant No.25 and reject the plaint in the said suit; c. Grant such other or further reliefs as this Hon’ble Court deems fit to grant in the circumstances of the case; and d. Grant cost of these proceedings, in the interest of justice and equity.

2. The suit in O.S. No.162/2008 had been filed by Respondent Nos.1 to 4 seeking for the following reliefs: a. Directing the 1st defendant to allot 1/5th share in favour of the plaintiff in all the suit schedule properties owned by the joint family by fixing metes and bounds.-. 6 - NC:

2024. KHC:43493 CRP No.88 of 2024 b. Declare the sale agreement dated 13.02.1990 executed late B.T. Ramaiah the father of the plaintiff and defendants NO.1 in favour of the defendant No.2 is not binding on the share of the plaintiff herein and same is null and void. B(A): declare that sale deed dated 24.1.1995 registered as document NO.2621/94-95 registered document No.2621/94-95 registered in the office of the sub- registrar Devanahalli executed by the 3rd defendant in favour of the 2nd defendant is not binding on the share of the plaintiffs. c. And direct the 1st and 2nd defendants to quit and vacate land deliver the 1/4th share of the plaintiff in the suit schedule properties by fixing the metes and bounds. d. And order for enquiry of the mesne profit under Order 20 Rule 12 of the CPC from the date of alleged agreement dated 13.02.1990 against the defendants in favour of the plaintiffs. e. And award the cost, of the suit, and pass such other order or orders, reliefs which are deemed fit the ends of justice in the interest of justice and equity.

3. Defendant No.25 had impleaded itself in the said suit and thereafter filed an application under Rule 11 of Order 7 of the Code of Civil Procedure, which came to be dismissed by the Trial Court vide its order dated 20.11.2023, which is under challenge in these proceedings.-. 7 - NC:

2024. KHC:43493 CRP No.88 of 2024 B. SUBMISSIONS OF PETITIONER COUNSEL14. Shri. S.S. Ramdas learned Senior Counsel appearing for the Petitioner, would submit that, 4.1. The suit is completely misconceived and an abuse of the court's process. There is no cause of action available for the Plaintiffs to file the suit. The Plaintiffs, who claim to be the daughters of late B.T. Ramaiah, filed the suit for partition subsequent to the amendment to the Hindu Succession Act, claiming that they have equal right, title, and interest in the property, subject matter of the suit, and for partition thereof. 4.2. The suit, filed in 2008, more particularly on 13.02.2008, in effect challenges the Agreement of Sale dated 12.02.1990 registered on 13.02.1990 and the sale deed executed in 1995.-. 8 - NC:

2024. KHC:43493 CRP No.88 of 2024 4.3. His submission is that a reading of the plaint would indicate that even according to Plaintiff the property is claimed to be joint family properties, Plaintiff is allegedly in joint possession, post the death of their father, late B. T. Ramaiah, Defendant No.1, brother, is alleged to have misused the joint family properties and funds without the knowledge and consent of the Plaintiffs and a demand for partition having been made on 05.11.2007, the same was denied by Defendant No.1, and in that background, it is alleged that the Plaintiff's father and Defendant No.1 did not have any exclusive right to dispose of the property belonging to the joint family under the registered sale agreement dated 12.02.1990 registered on 13.02.1990, the said registered sale agreement is not binding on the Plaintiff. A challenge is also made to a conversion order dated 13.12.1990 when the agricultural - 9 - NC:

2024. KHC:43493 CRP No.88 of 2024 property was converted to non-agricultural purposes without the consent of the Plaintiffs. 4.4. There is a categorical averment made in the plaint in paragraph 10 that the name of Defendant No.2 was entered into the RTC to show his right, title and interest, which could not have been so done, dehors the right of the Plaintiffs and on that basis it is alleged that the entire transaction which took place between B.T. Ramaiah, Defendant No.1 and Defendant No.2 is illegal, void and not binding on the Plaintiffs. 4.5. Defendant No.3, as Power of Attorney, has executed a sale deed dated 24-01-1995 in favour of Defendant No.2 without the consent of the Plaintiffs. This sale deed is also not binding on the Plaintiffs. The sale deed was executed post the death of B.T. Ramaiah, who expired on 23.01.1992, and hence, such a sale deed is not binding on the Plaintiffs.-. 10 - NC:

2024. KHC:43493 CRP No.88 of 2024 4.6. The Submission of Sri. S.S. Ramdas learned Senior Counsel, is that the above averments would categorically and unimpeachably establish that even the Plaintiffs have confirmed the execution of a registered Agreement of Sale on 12-02-1990, registered on 13.02.1990, the execution of a Power of Attorney in favour of Respondent No.3/Defendant No.3, Defendant No.3 having executed a registered sale deed in favour of Defendant No.2 on 24-01-1995. 4.7. The last transaction having occurred in the year 1995, a suit for partition could not have been filed in the year 2008 challenging the sale deed executed on 24.01.1995. The suit is hopelessly barred by limitation. This aspect has not been properly considered by the Trial Court while considering the application under Rule 11 of Order 7 of the CPC, filed by the Petitioner. 4.8. Apart therefrom, he submits that the Petitioner is an association of site owners in the layout - 11 - NC:

2024. KHC:43493 CRP No.88 of 2024 formed in the suit scheduled property, post the sale deed executed on 24.01.1995, a layout having been formed and sites have been sold to members of the Petitioner who have constructed houses therein and are residing therein. 4.9. The suit is an abuse of the process of law inasmuch as it has been filed after 13 years after the execution and registration of the sale deed only on account of the amendment to the Hindu Succession Act. The Trial Court has not referred to and applied the proviso to Subsection (1) of Section 6 which saves any alienation made prior to the coming into force of the amendment to Section 6 of the Hindu Succession Act. 4.10. The sale deed that has been executed in the year 1995 under a registered document is saved under proviso to Subsection (1) of Section 6.-. 12 - NC:

2024. KHC:43493 CRP No.88 of 2024 4.11. The Trial Court has misconstrued the impact of the Power of Attorney inasmuch as the entire sale consideration has been paid, the Power of Attorney was one coupled with interest. The said Power of Attorney did not terminate on the expiry of B.T. Ramaiah and as such, the usage of the Power of Attorney for execution of sale deed in the year 1995 being valid, ought to have been taken into consideration by the Trial Court in the proper perspective. 4.12. The suit being an abuse of the process of court and only to pressurize Defendant No.5 and others, the plaint ought to have been rejected. 4.13. In this regard he relies upon the decision of this court in the case of M/s Metropoli Overseas Limited -v- Sri. H.S. Deekshit and others1 more particularly para 19.5, 19.6 and 19.7 thereof which are reproduced hereunder for easy reference:

1. CRP No.307 of 2020 | 2021:KHC:35062 - 13 - NC:

2024. KHC:43493 CRP No.88 of 2024 19.5 Insofar as declaration is concerned, in terms of Article 58 of the Limitation Act, the period would be three years from the date on which the right to sue first accrued, the date on which the sale deeds were registered viz., 19.07.1995 and 20.07.1995. The said period expired on 18.07.1998 and 19.07.1998. Hence the suit is exfacie barred by the law of limitation. 19.6 Applying the benefit of Article 60 of the Act, the plaintiffs could have filed a suit three years after attaining majority. This also has not been done by the plaintiffs. Even assuming that Article 109 of the Limitation Act would have to be taken into consideration, the relief of partition dehors the relief of declaration, even the said period of 12 years expired on 18.07.2007 and 19.07.2007. Thus, even on this count the suit having been filed in the year 2020 is exfacie barred by the law of limitation. 19.7 The above facts are clearly apparent from the face of records and reading of the plaint. The dates are categorically mentioned in the plaint and it is only the application of the relevant provision of law which is to be made. Thus, in terms of the decision of the Apex Court in Sopan Sudhdeo Sable's and Raghwendra Sharan Singh's case [supra]., a Court would have necessary jurisdiction to reject a plaint under Order 7 Rule 11 of the CPC on the ground that the plaint is exfacie barred by limitation so as to nip frivolous litigation at the bud, prevent abuse of the process of Court and also dismiss bogus and irresponsible litigation. 4.14. By relying on M/s Metropoli Overseas Limited’s case, he submits that a suit for declaration is required to be filed in terms of - 14 - NC:

2024. KHC:43493 CRP No.88 of 2024 Article 58 of Part III of the Schedule to the Limitation Act, 1963 which provides for three years. The methodology of calculation of limitation is from the date on which the right to sue had first accrued. In the present case, the agreement of sale was executed in the year 1990, the sale deed was executed on 24.01.1995 and as such, the suit was to be filed within a period of three years therefrom i.e. on or before 23.01.1998. 4.15. He relies upon the decision of the Hon’ble Apex Court in Dahiben vs Arvindbhai Kalyanji Bhanusali2 more particularly para nos 23.13 and 23.14 thereof which are reproduced hereunder for easy reference:

23. 13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC. 2 (2020) 7 SCC366| 2020 INSC450- 15 - NC:

2024. KHC:43493 CRP No.88 of 2024 23.14. The power under Order 7 Rule 11 CPC may be exercised by the court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra, (2003) 1 SCC557 The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC315 Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH823 4.16. By relying on Dahiben’s case, he submits that it is the duty of the Court to reject a plaint if the suit is manifestly vexatious and such powers can be exercised at any stage of the suit. 4.17. He relies upon the decision of the Hon’ble Apex Court in ELDECO Housing and Industries Ltd.-.v- Ashok Vidyarthi and others3 more particularly para nos 23.2 to 23.15 thereof, which are reproduced hereunder for easy reference:

23. 2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the 3 SLP (C) No.19465/2021 | 2023 INSC1043- 16 - NC:

2024. KHC:43493 CRP No.88 of 2024 threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. 23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted. 23.4. In Azhar Hussain v. Rajiv Gandhi 1986 Supp SCC315 this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words : “12. … The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint, if it does not disclose any cause of action.

23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to. 23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the - 17 - NC:

2024. KHC:43493 CRP No.88 of 2024 plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC512 , read in conjunction with the documents relied upon, or whether the suit is barred by any law. xx xx xx 23.9. In exercise of power under this provision, the court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out. 23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC137 23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC512 which reads as : (SCC p. 562, para

139) “139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.” - 18 - NC:

2024. KHC:43493 CRP No.88 of 2024 23.12. In Hardesh Ores (P) Ltd. v. Hede & Co. [Hardesh Ores (P) Ltd. v. Hede & Co., (2007) 5 SCC614 the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V.Janakiraman, (1999) 3 SCC267 See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR1962SC941. 23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC. 23.14. The power under Order 7 Rule 11 CPC may be exercised by the court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra, (2003) 1 SCC557 The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC315 Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH823 23.15. The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is - 19 - NC:

2024. KHC:43493 CRP No.88 of 2024 barred by any law, the court has no option, but to reject the plaint.

4.18. By relying on the ELDECO Housing and Industries Ltd’s case, he submits that the Hon’ble Apex Court in the said Judgment has categorically laid down the methodology of exercise of powers under Rule 11 of Order 7 of the CPC and on that basis, he submits that the Court ought to summarily reject the plaint which would satisfy any of the grounds contained under Rule 11 of Order 7 of the CPC, where the intention is to nip frivolous suits at the bud. Such powers are to be exercised mandatorily since the word used in Rule 11 of Order 7 is “shall”. Thus, he submits that in the present case, the requirements of Rule 11 of Order 7 being satisfied, the Trial Court was bound to reject the plaint.-. 20 - NC:

2024. KHC:43493 CRP No.88 of 2024 4.19. He Relies upon the decision of the Hon’ble Apex Court in P. Shesha Reddy (D) rep. by His LR -cum Irrevocable GPA Holder Assignee Kotamreddy Kodandarami Reddy -v- State of Karnataka and other4 more particularly para nos. 18 and 19 thereof, which are reproduced hereunder for easy reference:

18. No doubt, the learned Single Judge was right in holding that on account of the death of the original contractor, it amounted to termination of the agency. However, learned Single Judge could not have read Section 201 of the Indian Contract Act in isolation by ignoring Section 202 of the Indian Contract Act. The learned Single Judge failed to take into consideration that on account of the assignment deed, an interest accrued in the said contract in favour of the appellant. Indisputably, the said contract was the subject matter of the agency and as such in the absence of an express provision to the contrary, the appellant was entitled to continue with the said agency.

19. The learned trial Judge rightly construing this position, allowed the application of the appellant. In a jurisdiction under Article 227 of the Constitution of India, the learned Single Judge could not have interfered with the order of the trial Court, unless he found the view taken by the learned trial Judge was perverse or impossible. 4 SLP (C) no.6354-6356/2020 | 2022 INSC1191- 21 - NC:

2024. KHC:43493 CRP No.88 of 2024 4.20. By relying on P. Shesha Reddy’s case, he submits that when a right is created in favour of the agent by way of a document, Section 202 of the Contract Act would recognise such agency to be one coupled with interest which agency would not be terminated by the person issuing the power of attorney. 4.21. He relies on the decision of this court in Mohammed @ Podiya -v- Assistant Commissioner5 more particularly para nos. 4, 5 and 6 thereof which are reproduced hereunder for easy reference:

2024. KHC:43493 CRP No.88 of 2024 question and effect other improvements. Clause 8 empowers the fourth respondent to apply for conversion of land for non-agricultural purposes. Clause 10 empowers the fourth respondent to occupy for himself or let on lease any building in existence or thereafter to come into existence in the said property. Clause 11 empowers the fourth respondent to mortgage the said property and Clause 12 permits the fourth respondent to sell the property for a price not less than of Rs. 75,000 mentioned in the certificate issued under Section 55 of the Act. The fourth respondent paid a sum of Rs.65,000 as deposit and on sale of the property in question he would be entitled to deduct the said sum of Rs.65,000 already paid towards the sale price and the balance thereof shall be paid. This power-of-attorney is an irrevocable one and also contains a provision or clause that petitioner would not demand for any accounts. Thus, the fourth respondent has not only been empowered to do certain acts as an agent, he has also been conferred with power to occupy the lands himself or lease any building already existing in the lands or thereafter come into existence and to construct buildings on the property and make other improvements with the power of sale subject to certain conditions. All said and done this power-of- attorney can by no stretch of imagination be stated to be a simple case of creating agency.

2024. KHC:43493 CRP No.88 of 2024 authority coupled with interest is not determined by death, insanity or bankruptcy of the principal where the agent made advances to the principal and is authorised to sell at best price and recoup advances made by him, the agency is one coupled with interest and is irrevocable. Where all the rights and liabilities under a contract were made over by a power-of-attorney, such power is an agency coupled with interest.

6. In the instant case, the authority is not only irrevocable, it is a security with other proprietary interests or part of security conferring powers on the fourth respondent towards performance of obligations. The fourth respondent is empowered to put up constructions on the property or lease the property as he thinks fit. Nothing is stated as to the consideration that may pass to him in the event of leasing that property or cost of construction or other obligations or rights the petitioner would have in that regard. Further, when the property is liable to be sold at an upset price of Rs. 75,000 or more, a substantial sum of Rs. 65,000 which is almost equivalent to the consideration thereof is stated to be deposited with the petitioner and the power-of-attorney not being revocable, question of refund thereof may not arise in which event the said sum of Rs. 65,OOC will remain with the petitioner and the property with the fourth respondent. In that event there is definite transfer of proprietary interest in the property. Indeed, in BOWSTEAD ON AGENCY this position is considered and such power is referred to as "power coupled with interest" and is regarded as a property disposition rather than as the conferring of authority. The clause relating to irrevocability is introduced in the power-of- attorney as an authority which is conferred on him as a protection of agency coupled with interest. In that event, the power-of-attorney in question must be construed as one assigning the rights of the petitioner arising out of the certificate issued under Section 55 of - 24 - NC:

2024. KHC:43493 CRP No.88 of 2024 the Act to the fourth respondent. The learned Counsel for the petitioner, however, urged relying upon a Decision of the Andhra Pradesh High Court reported in AIR1985AP13 that the power-of-attorney is not a document transferring any interest in the property. But a careful perusal of the Decision itself would make the observations made thereof non-applicable to the facts of the case on hand. In the present case, the interpretation of the recitals in the power-of-attorney turns on its own facts. It is further submitted that it is only a drafting error and creates no interest in the property as such and referred to certain Decisions reported in AIR1938LAHORE712 , and . But none of these Decisions have any application to the present facts of the case or the principles laid down therein can have any application to the present case. In the circumstances, we have no choice but to confirm the order made by the Tribunal, though for different reasons. In the result, this Petition is dismissed. Rule discharged. 4.22. By relying on Mohammed @ Podiya’s case, he submits that when the power of attorney conferred power for sale, the said power of attorney is to be read in conjunction with the agreement of sale. The power to sell under the power of attorney creates an agency coupled with interest and the agent having an interest in the property, the power of attorney cannot - 25 - NC:

2024. KHC:43493 CRP No.88 of 2024 be determined by death, insanity or bankruptcy of the principal, such agency being one coupled with interest. 4.23. He relies upon the decision of Hon’ble Apex Court in Bharat Nidhi Ltd.-.v- Takhatmal (dead) by His LRs6 more particularly para nos. 4, 5 and 6 thereof, which are reproduced hereunder for easy reference:

4. The question whether a document amounts to an equitable assignment or not is primarily one of construction but we may mention a few decisions which throw light on the matter. In Jagabhai Lallubhai v. Ruslamji Naserwanji the Bombay High Court held that an agreement to finance the borrower and a power of attorney of even date to receive the monies due to the borrower under certain contracts had the effect of an equitable assignment of the funds. In Seth Loonkaran Sethiya v. State Bank of Jaipur this court held that a power of attorney authorising a lender to execute a decree then passed in favour of the borrower or which ‘ might be passed in his favour in a pending appeal and to credit to the borrower’s account the monies realised in execution of the decree amounted to an equitable assignment of the funds.

5. In the last case the court held that there was no transfer of the decree, or of the claim which was the subject-matter of the pending appeal as the 6 Civil Appeal No.133/1965 - 26 - NC:

2024. KHC:43493 CRP No.88 of 2024 borrower continued to be the owner and the lender was merely authorised to act as his agent. Nevertheless the court held that the power of attorney amounted to a binding equitable assignment. An actionable claim may be transferred under Section 130 of the Transfer of Property Act, Where a document does not amount to a transfer within Section 130 it may apart from and independently of the section operate as an equitable assignment of the actionable claim.

6. In the present case the power of attorney authorised the appellant to receive all monies due or to become due to Malhotra in respect of pending or future contracts with the government authorities. Counsel argued that there was no engagement to pay out of specific fund and therefore there was no assignment. We find no substance in the contention. There can be valid equitable assignment of future debts : see Tailby v. Official Receiver . As and when the debt comes into existence it passes to the assignee. 4.24. By relying on Bharat Nidhi Ltd’s case, he submits that the power of attorney authorising the power of attorney holder to receive monies would be an agency coupled with interest. On the basis of the above, he submits that the order of the Trial Court is required to be set aside and the application filed by the Petitioner - 27 - NC:

2024. KHC:43493 CRP No.88 of 2024 under Rule 11 of Order 7 of the CPC is required to be allowed and the plaint be rejected. C. SUBMISSIONS OF RESPONDENT COUNSEL5 Sri. V.F. Kumbar, learned counsel for the Respondent would submit that, 5.1. The Plaintiffs being the daughters have equal interest in the suit schedule properties subsequent to the expiry of their father. Post the expiry, no sale deed could have been executed making use of the Power of Attorney. The Power of Attorney has come to an end on the death of the father. On the death of the father, the Plaintiffs have succeeded to the estate and without making them as party, no sale deed could have been executed. 5.2. The Trial Court has properly considered all these aspects. The Trial Court has rightly dismissed the application filed under Rule 11 of Order 7 of the CPC. There is no infirmity in the - 28 - NC:

2024. KHC:43493 CRP No.88 of 2024 order requiring interference at the hands of this Court. 5.3. He relies on the decision of Hon’ble Madras High Court in R. Kumar (Deceased) and Another -v- S. Valliammal7 , more particularly para nos. 7, 8 and 9 thereof, which are reproduced hereunder for easy reference:

7. It is further stated that on the death of the second plaintiff, he cannot represent the second plaintiff, and therefore, he has filed the I.A.No.1666/2012 only for the limited purpose of impleading the legal heirs of the second plaintiff Kumar. There are three legal heirs for the deceased Kumar. They are sought to be impleaded as the proposed plaintiffs 3, 4 and 5. On behalf of the petitioner, further submission was made that it is the well settled principle that when one of the principals died, the Power of Attorney will get automatically terminated. However, the learned counsel for the petitioners referred Section 209 of Indian Contract Act, which reads as follows:- 209. Agents duty on termination of agency by principal's death or insanity:- When an agency is terminated by the principal dying or becoming of unsound mind, the agent is bound to take, on behalf of the representatives of his late principal, all reasonable steps for the protection and preservation of the interests entrusted to him.

8. In terms of Section 209, it is the duty of the power agent to protect the interest of the principal and the power agent should take all reasonable 7 CRP(PD) No.1564/2014 - 29 - NC:

2024. KHC:43493 CRP No.88 of 2024 steps for the same. Therefore, the petitioner has filed the above application only for the limited purpose to bring the LR's of the deceased second plaintiff on record in the place of the deceased. The Lower Court has not considered Section 209 of the Act but, merely dismissed the application without assigning any proper reason. It was only stated that after the death of one of the principals, no new power of attorney was given to the power agent by the legal heirs of the deceased. Therefore, the Lower Court dismissed the application without assigning any proper reason.

9. In support of the contentions, the learned counsel for the petitioner referred to the judgment of the Hon'ble Division Bench of this Court passed in Writ Appeal (MD) Nos.998, 999 of 2015, The Inspector General of Registration, Pattinapakkam, Chennai an another Vs. J.Barathan, reported in CDJ2015MHC7508 the relevant portion of the judgment in para No.47, is extracted hereunder:- 47. There is no direct reference in Section 202, to the termination of an agency by the death of the principal, except in the illustrations contained thereunder. The only provision that directly speaks about the termination of agency due to the death of the principal is Section 209 (apart from Section 201). Section 209 obliges an agent to protect and preserve the interest of the principal entrusted to him. It does not speak about the agent's own interest. Therefore, the second contention of the respondent does not hold good, in the light of the provisions of Section 202 to 209 of the Indian Contract Act. 5.4. By relying on R. Kumar’s case, he submits that upon the death of the father, the Power of Attorney executed in favour of Defendant No.3 stood automatically terminated and thereafter, - 30 - NC:

2024. KHC:43493 CRP No.88 of 2024 Defendant No.3 could not have exercised any power under the said power of attorney to execute the sale deed in favour of Defendant No.2. 5.5. His submission is that the Power of Attorney in favour of Defendant No.3 is not one which is coupled with interest. Defendant No.3 is a complete third-party to the transaction. An Agreement of Sale having been executed in favour of Defendant No.2, the Power of Attorney executed in favour of Defendant No.3, Defendant No.3 cannot be said to have any irrevocable interest by way of the said Power of Attorney. The power of attorney holder and the agreement of sale holder being two different persons, the transactions are different and therefore it cannot be said that the power of attorney is irrevocable on account of it being coupled with interest.-. 31 - NC:

2024. KHC:43493 CRP No.88 of 2024 5.6. His submission is that defendant No.3 is a third- party having no interest, Section 202 of the Indian Contract Act would not be applicable. The Power of Attorney would automatically terminate on the death of Defendant No.1, at least insofar as the share of Defendant No.1 is concerned, which has been transferred by exercise of the rights under the Power of Attorney, the said sale is required to be set aside and on this ground, he submits that the Plaintiffs are having a good case on merit, the claim of the Petitioner cannot be negated by rejection of the claim at this stage and therefore, he submits that the Trial Court has rightly appreciated the issues in the matter and dismissed the application under Rule (11) of Order 7 of CPC. In that background he submits that the writ petition is required to be dismissed.-. 32 - NC:

2024. KHC:43493 CRP No.88 of 2024 D. SUBMISSIONS OF PETITIONER COUNSEL26. Sri. Kamalacharan, learned counsel who also appears for the Petitioner on account of the indisposition of Shri. S.S. Ramdas in reply submits that 6.1. The Power of Attorney and the Agreement of Sale was executed contemporaneously to each other, they form part of one single transaction. The Power of Attorney was executed in furtherance of the Agreement of Sale. Subsequent to the compliances, Defendant No.3, Power of Attorney holder has executed the sale deed in favour of Defendant No.2 in furtherance of the Agreement of Sale executed by the father and brother of the Plaintiffs in favour of Defendant No.2. 6.2. Thus, the manner in which the Power of Attorney has been acted upon would indicate that the same is one coupled with interest, - 33 - NC:

2024. KHC:43493 CRP No.88 of 2024 coming within the purview of Section 202 of the Indian Contract Act. 6.3. He again relies upon the decision in Mohammed @ Podiya -v- Asst. Commissioner8, this time para 4, 5 and 6 thereof, which are extracted hereunder for easy reference:

4. A power-of-attorney is an authority whereby one is authorised to act for another. Power-of- attorney is ordinarily construed strictly and general powers are interpreted in the light of the special powers, although they may include incidental powers necessary for carrying out the authority granted. Where a general power is given followed by specific powers, the generality of powers will have to be read in the light of the specific powers granted. In the present case, the first four clauses in the power-of-attorney appear to be ordinary clauses of agency. The fifth clause enables the fourth respondent to construct buildings in the properly in question and effect other improvements. Clause 8 empowers the fourth respondent to apply for conversion of land for non- agricultural purposes. Clause 10 empowers the fourth respondent to occupy for himself or let on lease any building in existence or thereafter to come into existence in the said property. Clause 11 empowers the fourth respondent to mortgage the said property and Clause 12 permits the fourth respondent to sell the property for a price not less than of Rs. 75,000 mentioned in the certificate 8 ILR1993KAR2306- 34 - NC:

2024. KHC:43493 CRP No.88 of 2024 issued under Section 55 of the Act. The fourth respondent paid a sum of Rs.65,000 as deposit and on sale of the property in question he would be entitled to deduct the said sum of Rs.65,000 already paid towards the sale price and the balance thereof shall be paid. This power-of- attorney is an irrevocable one and also contains a provision or clause that petitioner would not demand for any accounts. Thus, the fourth respondent has not only been empowered to do certain acts as an agent, he has also been conferred with power to occupy the lands himself or lease any building already existing in the lands or thereafter come into existence and to construct buildings on the property and make other improvements with the power of sale subject to certain conditions. All said and done this power-of- attorney can by no stretch of imagination be stated to be a simple case of creating agency.

5. Section 202 of the Contract Act provides that where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot in the absence of any express condition be terminated to the prejudice of such interest. The principle is that when an agreement is entered into on a sufficient authorisation whereby an authority is given for the purpose of giving some benefit to the donee of the authority such an authority is irrevocable. An authority coupled with interest is not determined by death, insanity or bankruptcy of the principal where the agent made advances to the principal and is authorised to sell at best price and recoup advances made by him, the agency is one coupled with interest and is irrevocable. Where all the rights and liabilities under a contract were made over by a power-of-attorney, such power is an agency coupled with interest.-. 35 - NC:

2024. KHC:43493 CRP No.88 of 2024 6. In the instant case, the authority is not only irrevocable, it is a security with other proprietary interests or part of security conferring powers on the fourth respondent towards performance of obligations. The fourth respondent is empowered to put up constructions on the property or lease the property as he thinks fit. Nothing is stated as to the consideration that may pass to him in the event of leasing that property or cost of construction or other obligations or rights the petitioner would have in that regard. Further, when the property is liable to be sold at an upset price of Rs. 75,000 or more, a substantial sum of Rs. 65,000 which is almost equivalent to the consideration thereof is stated to be deposited with the petitioner and the power-of-attorney not being revocable, question of refund thereof may not arise in which event the said sum of Rs. 65,OOC will remain with the petitioner and the property with the fourth respondent. In that event there is definite transfer of proprietary interest in the property. Indeed, in BOWSTEAD ON AGENCY this position is considered and such power is referred to as "power coupled with interest" and is regarded as a property disposition rather than as the conferring of authority. The clause relating to irrevocability is introduced in the power-of- attorney as an authority which is conferred on him as a protection of agency coupled with interest. In that event, the power-of-attorney in question must be construed as one assigning the rights of the petitioner arising out of the certificate issued under Section 55 of the Act to the fourth respondent. The learned Counsel for the petitioner, however, urged relying upon a Decision of the Andhra Pradesh High Court reported in AIR1985AP13 that the power-of-attorney is not a document transferring any interest in the property.-. 36 - NC:

2024. KHC:43493 CRP No.88 of 2024 But a careful perusal of the Decision itself would make the observations made thereof non- applicable to the facts of the case on hand. In the present case, the interpretation of the recitals in the power-of-attorney turns on its own facts. It is further submitted that it is only a drafting error and creates no interest in the property as such and referred to certain Decisions reported in AIR1938LAHORE712 , and . But none of these Decisions have any application to the present facts of the case or the principles laid down therein can have any application to the present case. In the circumstances, we have no choice but to confirm the order made by the Tribunal, though for different reasons. In the result, this Petition is dismissed. Rule discharged. 6.4. By relying on Mohammed @ Podiya’s case, he submits that when the agent himself has an interest in the property which is subject matter of the agency, the agency cannot be terminated in the absence of an express condition allowing such termination. 6.5. He relies upon the decision of the Hon’ble Delhi High Court in Sri. Harbans Singh -v- Smt. Shanti Devi9, more particularly para nos. 6, 7, 10 and 12 thereof, which are extracted hereunder for easy reference:

9. ILR19772) Delhi 649 - 37 - NC:

2024. KHC:43493 CRP No.88 of 2024 (6) Shri G. S. Vohra, learned counsel for the appellant, argued that in the context of the circumstances, Shri Gulati fully understood the meaning of the notice that it was intended to cancel both the powers of attorney held by him. He referred to the reply dated 1-3-1965 given by Shri Gulati to the appellant stating that the appellant had executed the power of attorney, general and special, and that the same were irrevocable. Learned counsel also referred to the letter written by the appellant's lawyer to the respondent in which it was stated that all documents in favor of the respondent and her husband were cancelled by the appellant. In our view, the meaning of the notice Exhibit D-2 has to be understood only by reading that. document. The said document cannot be read in the light of the letter sent to the respondent or the reply given by Shri Gulati. As the notice is ambiguous and defective, it was not effective in cancelling the two different powers of attorney held by Shri Gulati from the appellant. Even if it is assumed that the ambiguous or defective language of the notice could be understood in the context of the other circumstances and the other documents to mean that both the powers of attorney were cancelled, the consideration of the second point would show that in view of section 202 of the Contract Act, the appellant had no power to cancel the same. Section 202 of the Contract Act is as follows:- "WHERE the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot. in the absence of an express contract, be terminated to the prejudice of such interest."

- 38 - NC:

2024. KHC:43493 CRP No.88 of 2024 If the agent himself had an interest in the property which formed the subject-matter of the agency, then in the absence of an express contract to the contrary these powers of attorney could not be terminated by the appellant to the prejudice of such interest. Firstly, let us consider the meaning of the expression "interest" in section 202. The word has not been defined in the Contract Act. It has, Therefore, to be construed in the light of the situations which arise under the various provisions of the Contract Act. The Act deals with all kinds of property, movable and immovable, corporeal and incorporeal. It also deals with all kinds of rights, proprietary, non-proprietary personal and corporate. The word "interest" is to be applied to a wide variety of cases under the Contract Act and must, Therefore, be given a wide meaning to serve these wide purposes of the Act. It is not a term of art or a technical word. In jurisprudence, the word "interest" simply means an advantage or a benefit. "Interests are things which are to a man's advantage : he has an interest in his freedom or his reputation. His rights to these, if he has such rights,. protect the interests, which accordingly form the subject of his rights but are different from them. To say he has an interest in his reputation means that it is to his advantage to enjoy a good name. "However, every interest of a person may not become a right. It is only those interests which are legally recognised and/or are legally protected or enforced which amount to legal rights. (Salmond on Jurisprudence, 12th Edition, pages 217-218). The German jurist jhoring viewed law as a reconciler of conflicting interests. Roscoe found regards human disorders and claims as interests which exist independently of the law and which are constantly "pressing for recognition and security."

(Philosophy of Law, Revised '' Edition, 1954). In the American Restatement of the Law erf torts - 39 - NC:

2024. KHC:43493 CRP No.88 of 2024 (Second Edition, 1965) the word "interest" is used to denote the object of any human desire. (7) For the purposes of the Law of Contract, Therefore, it would not be useful to restrict the meaning of the word "interest" by the narrow compass in which this world is used at times in relation to immovable property. For instance, the last sentence of section 54 of the Transfer of Property Act states that a contract for sale of itself does not create any interest in or charge on immovable property. Similarly, section 17(1)(b) of the Registration Act makes only those documents compulsorily registerable which create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property. Since an agreement for sale does not create such a right, title or interest, it may not be compulsorily registerable. But in the context of the Contract Act, it cannot be said that a person who is the beneficiary of an agreement of sale has no right or interest in the subject-matter of the sale. He has a legally enforceable right and interest in enforcing the contract of sale by the execution of a sale deed and in getting possession of the property agreed to be sold under the provisions of the Specific Relief Act. In the English Common Law, the specific performance of contracts was a part of the law of contract. This is why Chapter Iv of the Contract Act deals with the performance of contracts which includes the performance of contracts relating to immovable property also. In fact, section 4 of the Transfer of Property Act says that the chapters and sections of that Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872. Therefore, the respondent in whose favor the appellant had executed an agreement for the sale of an - 40 - NC:

2024. KHC:43493 CRP No.88 of 2024 immovable property had an interest in the subject- matter of the contract, namely, the shop, turn the purposes of section 202 of the Contract Act if not for the purposes of the Transfer of Property and the Registration Acts. (10) The matter may be looked at from another point of view. Legally protected interest or a benefit of one party casts a corresponding obligation on the other party to the contract. If the contract of agency confers an interest or a benefit on the agent, it casts an obligation on the principal. In the present case, the appellant, as a principal, was under an obligation to perform the contract of sale by the execution of a conveyance. In the words of Bowstead, "authority is normally only irrevocable when it is the security or other proprietary interest, or part of the security, or where its conferring constitutes the performance of the obligation". Such a power is referred to as a "power coupled with an interest" and should be regarded as a property disposition rather than as the conferring of authority. The Restatement (the American Restatement of the Law on Agency, section

138) uses the phrase "power given as security" defined as "a power to affect the legal relations of another, created in the form of an agency authority, but held for the benefit of the power holder or a third person, and given to secure the performance of a duty or to protect a title, either legal or equitable, such power being given when the duty or title is created or given for consideration."

(OP cit, page 424). Since the power of agency has been conferred not for the benefit of the principal but for the benefit of the agent representing a third party and not as representing the principal, the power becomes irrevocable.-. 41 - NC:

2024. KHC:43493 CRP No.88 of 2024 (12) There is no difference between the general and the special powers of attorney in this respect. Both of them are for the benefit of the respondent and her nominee Shri Gulati. Neither of them is for the benefit of the principal, the appellant. Shri Vohra argued that the respondent and her husband Shri Gulati are two different persons in the eye of law. This may be so. But their interests are identical. It cannot be said that Shri Gulati had no interest in the property which is the subject- matter of the agency. We have already stated that interest does not mean ownership or title in the immovable property. It means an advantage or a benefit or a legally enforceable right. Shri Gulati had the right to legally enforce the obligation cast on the appellant to convey the property to the respondent. This interest and right was of Shri Gulati himself though it may be for the benefit of the respondent namely, his wife. It is immaterial, Therefore, that only the general power of attorney was expressly made irrevocable while the special power of attorney was not so made. It is section 202 of the Contract Act which makes them both irrevocable. 6.6. By relying on Sri. Harbans Singh’s case, he once again submits that when the agent has an interest in the property, forming subject matter of the agency, such interest of the power of attorney cannot be terminated. Such interest cannot be narrowly read in terms of Section 54 - 42 - NC:

2024. KHC:43493 CRP No.88 of 2024 of the Transfer of Property Act, but would have to be read in the context of the Indian Contract Act and as such, the beneficiary of an Agreement of Sale cannot be said to have no right or interest in the subject matter of sale, it is a legally enforceable right under the said agreement. The enforcement in the present matter has been provided through a power of attorney executed in favour of a nominee of the agreement holder, so as to protect the interest of the agreement holder. This power of attorney has been issued as a security to enforce the rights of the purchaser/agreement holder, the purchaser having made payment of the entire sums due to the vendor. 6.7. He relies upon the decision of the Hon’ble Gujarat High Court in Bhaganbhai Karambhai Bharvad -v- Arogyanagar Co-Op. Housing - 43 - NC:

2024. KHC:43493 CRP No.88 of 2024 Society Ltd. And Others10, more particularly para 10 thereof which is reproduced hereunder for easy reference:

1. In connection with the execution of the sale deeds made in favour of the plaintiff society by the land owners through the power of attorney holder Jayantibhai C. Patel. Learned counsel for the petitioner contended that the defendant No.2 has died when the sale deeds were executed and therefore the sale deeds executed by the defendants No.1 to 5 through the power of attorney holder are illegal at least execution on behalf of the defendant No.2 who had died and execution of the sale deeds on behalf of the defendant No.2 made in favour of the plaintiff society is not acceptable, and cannot be deemed to be legal and valid as at the relevant time the defendant No.2 was not alive for execution of the sale deeds and heirs and legal representatives of deceased defendant No.2 have not consented at all for execution of the sale deeds on behalf of the defendant No.2 and hence the sale deeds executed on behalf of the defendant No.2 in absence of consent of the heirs and legal representative of the defendant No.2 are illegal and are not sustain-able in the eye of law and in view of Section 201 of the Contract Act the power of attorney has come to an end and sought terminated at least in respect of the defendant No.2. In this connection, learned counsel for the respondent-plaintiff society has pointed out that the irrevocable power of attorney has already been executed by the five land owners i.e. defendants No.1 to 5 on 2-3-1993. They have also parted with their power in favour of the power of attorney holder Jayantibhai C. Patel. As such, once the defendant No.2 had no power, there would be no requirement of consent of the heirs and 10 ILR2003Guj 294 - 44 - NC:

2024. KHC:43493 CRP No.88 of 2024 legal representatives of the defendant No.2 for execution of the sale deeds by the power of attorney holder in favour of the plaintiff society. Considering the facts and circumstances of the case and material on record I am of the view that the defendant No.2 though died there was no need for the power of attorney holder to obtain the consent from the heirs and legal representative of the defendant No.2 as the presence or absence of the defendant No.2 makes no difference in view of the fact that the defendant No.2 had already parted his power for execution of the sale deed in favour of the power of attorney holder. As such, there is substance in the contention of the learned counsel for the petitioner. 6.8. By relying on Bhaganbhai Karambhai Bharvad’s case, he submits that a sale deed executed post the death of a person who had executed a power of attorney, but prior to the execution of a sale deed cannot result in the termination of the power of attorney requiring the sale deed to be set-aside in view of Section 202 of the Contract Act which creates an interest in the power of attorney and post the death of the person executing the power of attorney, there is no requirement for the power of attorney holder to obtain consent from the - 45 - NC:

2024. KHC:43493 CRP No.88 of 2024 heirs and/or the legal representatives of the person who had executed the power of attorney. 6.9. He relies on the extract from the book ‘Bowstead on Agency’, Fifteenth Edition, page 509 and 511, relating to Article 125 which is reproduced hereunder for easy reference: Article 125 WHEN AUTHORITY CANNOT BE DETERMINED (IRREVOCABLE AUTHORITY) (1) Where the authority of an agent is given by deed, 31 or for valuable con- sideration, 32 32 for the purpose of effectuating any security, or o of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. 33 But it is not irrevocable merely because the agent has an interest in the exercise of it, 34 or has a special property in, or lien for advances upon, the subject-matter of it," the authority not being given expressly for the purpose of securing such interest or advances. (2) Where a power of attorney, whenever created, is expressed to be irrevocable and is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the - 46 - NC:

2024. KHC:43493 CRP No.88 of 2024 obligation remains undischarged, the power is irrevocable. (3) Authority expressed by this Article to be irrevocable is not determined by the death, 37 insanity or bankruptcy of the principal, nor, where the prin- cipal is a body corporate, by its winding up or dissolution, and cannot be revoked by the principal without the consent of the agent."

Comment Irrevocability at common law. The mere fact that a power is declared in the instrument granting it to be irrevocable does not make it so: irrevocability requires something further. The circumstances in which authority is irrevocable at common law are difficult to define. Authority is normally only irrevocable when it is the security or other proprietary interest, or part of the security, or where its conferring constitutes the performance of an obligation. 41 Such a power is referred to as a "power coupled with an interest" and its creation should be regarded as a property disposition rather than as the conferring of authority. The supposed "agent" is indeed not an agent at all, for he exercises the power in his own interest, and it is intended that he should. The Restatement uses the phrase "power given as security," defined as "a power to affect the legal relations of another, created in the form of an agency authority, but held for the benefit of the power holder or a third per- son, and given to secure the performance of a duty or to protect a title, either legal or equitable, such power being given when the duty or title is created or given for consideration."

A common example of such a power is the power of attorney normally taken by the mortgagee of a ship. Although the interest protected will normally be that of the donee of the power, it has recently been suggested that at common law a power - 47 - NC:

2024. KHC:43493 CRP No.88 of 2024 can be given as security when exercise able by another on behalf of the person entitled to the security, for example, a receiver appointed by debenture holders. "The receiver's power is given to him only for the protection of the debenture holders and why should it be revoked by circumstances that do not affect a power given to them direct"?. This view is tentatively put forward in the wording of this Article. It is clear however that the mere right to earn commission is not an interest rendering a grant of authority irrevocable; nor is an agent's lien. The fact that the agent subsequently acquires an interest in the property is irrelevant: to be irrevocable, the authority must be conferred as protection of the agent's interest. 6.10. By relying on the celebrated book ‘Bowstead on Agency’, Fifteenth Edition, he submits that where a power of attorney is stated to be irrevocable and is given to secure a propriety interest of the donee of the power of attorney or the performance of an obligation owed to the donee and so long as the donee has that interest or the obligation remains undischarged, the power of attorney is irrevocable. Such a power of attorney being one coupled with interest and such power being exercised by the - 48 - NC:

2024. KHC:43493 CRP No.88 of 2024 power of attorney in his own interest, the power of attorney cannot come to an end on the death of the principal. 6.11. By relying on the above, he submits that there is an interest which has been created in favour of the Power of Attorney holder. The father and brother have given up their right to execute the sale deed by executing a Special Power of Attorney which has been registered in favour of Defendant No.3. There is no requirement for Defendant No.3 to seek for any consent or concurrence of the legal representatives post the death of the father. 6.12. The Power of Attorney holder was authorised to execute a sale deed which he has so executed. This power of attorney would continue to subsist even post the expiry of the father since it is coupled with interest. 6.13. Ex-facie when a sale deed has been executed on 12.04.1995, the Plaintiffs being the - 49 - NC:

2024. KHC:43493 CRP No.88 of 2024 daughters not having any right, title or interest in the joint family property, the said right being conferred on them only by way of amendment to Section 6 of the Hindu Succession Act in the year 2004, any sale transaction which has occurred prior to 20.12.2004 being saved by proviso to Section 6, the suit is not maintainable any more. There would be no purpose served by the suit going for trial. On this very ground, the plaint is required to be rejected. 6.14. Alternatively, he submits that the sale having been executed on 24.01.1995 the suit was filed in the year 2008, after a gap of more than 13 years from the date of execution of the sale, the suit is therefore barred by the law of limitation, inasmuch as the limitation period to challenge the sale is a period of 3 years. The said sale having not been challenged within that time the suit would have to be dismissed as it is - 50 - NC:

2024. KHC:43493 CRP No.88 of 2024 barred by the law of limitation. In this regard he relies upon the decision of this court in M/s Metropoli Overseas Limited vs Sri. H.S. Deekshit and others11, more particularly para nos. 18.18, 18.19, 18.20, 18.21 and 18.22 thereof, which are reproduced hereunder for easy reference:

18. 18 It cannot be believed that the plaintiffs were not aware of the sale deeds executed, more so when plaintiffs and defendant No.1 are residing in the same house. There is no particular action taken by the Plaintiffs against Defendant No.1 and 2 for the alleged act of theirs, they continue to reside together and the relationship between them is amicable. 18.19 Articles 58, 109 and 110 of the Limitation Act are reproduced hereunder for easy reference: Time from Description of Period of which period suit limitation begins to run 58 To obtain any Three years. When the right other declaration. to sue first accrues. 11 CRP No.307 of 2020 | 2021:KHC:35062 - 51 - NC:

2024. KHC:43493 CRP No.88 of 2024 109 By a Hindu Twelve years When the governed by alienee takes Mitakshara law to possession of 18.2s 0et A aside his the property. father's alienation of ancestral p property. e r 110 By u a person Twelve years When the exclsuded from a exclusion joinat family becomes known proplerty to enforce to the plaintiff a r ight to share theroein. f Article Article 58 indicates that the period of limitation to obtain a declaration is a period of three years from the date on which the right to sue first accrued. This would be applicable only insofar as the sale deeds are concerned. 18.21 Article 109 relates to a suit filed by Hindu governed under Mitakshara law to set-aside the father’s alienation of ancestral property. It is stated to be 12 years from the time when the alienee takes possession of the property. 18.22 Article 110 relates to a suit by a person who excluded from a joint family to enforce a right to a share therein which is a period of 12 years calculated from the date on which the exclusion becomes known to the plaintiff. 6.15. By relying on M/s Metropoli Overseas Limited’s case, he submits that any relief for - 52 - NC:

2024. KHC:43493 CRP No.88 of 2024 declaration has to be filed within a period of three years from the date on which the right to sue first accrued. According to him, the right to sue first accrued in the year 1990 when the agreement of sale was executed. Even if the date of sale were to be taken into consideration, the sale having occurred in the year 1995, right to sue accrued in the year 1995 and as such, the suit was required to be filed within three years from that date, the present suit having been filed in the year 2008, is barred by law of limitation. 6.16. His submission is that Article 109 and 110 would not be applicable and even if they were to be made applicable, Article 109 and 110 provide for a limitation of 12 years, if the same is taken into consideration, the sale having occurred in the year 1995, and the suit having been filed in the year 2008, it is well beyond the period of limitation prescribed and as such, - 53 - NC:

2024. KHC:43493 CRP No.88 of 2024 he submits that the suit being hopelessly barred by limitation, the Trial Court ought to have taken these facts into consideration and rejected the plaint. 6.17. On the above grounds he submits that both on account of the sale having been executed prior to the coming into force of the amendment to Section 6 of the Hindu Succession Act and the suit being barred by the law of limitation, the plaint is required to be rejected. 6.18. He reiterates that the writ petition is required to be allowed, the order dismissing the application under Rule 11 of Order VII is required to be set aside and consequently the said application is required to be allowed by rejecting the plaint.

7. Shri V F Kumbar, in his reply to the rejoinder arguments of Shri. Kamalacharan, would once again reiterate his earlier submissions and submits that the decisions relied upon in the rejoinder are not applicable to the present fact situation since the - 54 - NC:

2024. KHC:43493 CRP No.88 of 2024 Power of Attorney holder is not the Agreement holder and, as such the power of attorney in the present case is not one which can be said to be coupled with interest requiring the application of Section 202 of the Indian Contract Act.

8. Heard Shri. S.S. Ramdass, learned Senior Counsel and Shri. Kamalacharan learned Counsels for the Petitioner-Defendant No.25 and Sri. V.F. Kumbar, learned counsel for Respondent Nos.1 to 4/Plaintiffs Sri. Chandan., learned counsel for Respondent No.7, who supports the case of the Petitioner; Sri M Jagadeesh., learned counsel for Respondent No.8 and 9, who supports the case of the Petitioner; Respondents no 5 & R6, though served, have remained unrepresented. Perused papers. E. POINTS FOR CONSIDERATION9 The points that would arise for the consideration of this Court are: - 55 - NC:

2024. KHC:43493 CRP No.88 of 2024

1) Whether the suit filed in the year 2008 questioning the sale deed of the year 1995 was maintainable and was within the period of limitation requiring the Trial Court to excise powers under Rule 11 of Order 7 to reject the plaint on the ground that it was barred by the law of limitation?.

2) Whether the sale deed executed in pursuance of a General Power of Attorney, which was executed in pursuance of an Agreement of Sale in favour of Defendant No.2, could be said to be coupled with interest under Section 202 of the Contract Act, 1872, thereby making the sale deed of the year 1995 valid?.

3) Whether a suit for partition filed in the year 2008 as regards the property which had been alienated by way of a registered document prior to 20.12.2004 could be maintainable in view of the proviso to Subsection (1) of Section 6 of the Hindu Succession Act, 1956?.

4) Whether the order passed by the Trial court suffers from any legal infirmity requiring interference at the hands of this court?.

5) What Order?.

10. I answer the above points as under: - 56 - NC:

2024. KHC:43493 CRP No.88 of 2024 11. ANSWER TO POINT No.1: Whether the suit filed in the year 2008 questioning the sale deed of the year 1995 was maintainable and was within the period of limitation requiring the Trial Court to excise powers under Rule 11 of Order 7 of the CPC to reject the plaint on the ground that it was barred by the law of limitation?. 11.1. It is not in dispute that an agreement of sale was executed on 12.02.1990 and registered on 13.02.1990, a Power of Attorney also having been executed and registered on the same date, a sale deed came to be executed and registered on 24.01.1995. The suit was filed in the year 2008. 11.2. As held by this Court in Metropoli Overseas Limited’s case, a suit for declaration, as regards a sale deed not being binding, would have to be filed within three years from the date on which the cause of action first arose in terms of Article 58 of Part 3 of the Schedule to the Limitation Act, 1963. The suit in the present case has been filed thirteen years after the - 57 - NC:

2024. KHC:43493 CRP No.88 of 2024 execution and registration of the sale deed, and nearly four years after the amendment to Section 6 of the Hindu Succession Act was made. 11.3. The right to sue first having accrued on the date on which the sale deed came to be executed and registered on 24.01.1995, the suit ought to have been filed within three years thereafter i.e. by 23.01.1998. The same not having been done, the suit is barred by limitation. 11.4. Insofar as the contention of the respondent that it is not just Article 58 which would apply, Articles 109 and 110 would also have to be taken into consideration, which provides for a 12-year limitation period. Assuming for the purpose of argument that Articles 109 and 110 are applicable (which they are not since they operate in a different context and circumstance), the sale deed having been - 58 - NC:

2024. KHC:43493 CRP No.88 of 2024 executed in the year 1995, the suit ought to have been filed by the year 2007, that is, by 23.01.2007. The suit having been filed in the year 2008, ex-facie the suit is barred by limitation even if Articles 109 and 110 are made applicable, which, as held above, are not applicable since there is a sale deed which has been executed in favour of a third party and not merely a member of the joint family being excluded from the joint family. 11.5. A sale deed having been executed in favour of a third party, and that third party being put in possession, the third party having formed a layout and sold the sites various fourth parties who have in turn put up construction of their residential houses, these third and fourth party rights have been created twice over, once on 24.01.1995 and thereafter when sale deeds were executed in favour of the petitioner's members, it is not an exclusion by the joint - 59 - NC:

2024. KHC:43493 CRP No.88 of 2024 family but a sale and transfer of the property to third and fourth parties, therefore, Article 109 and 110 would not be applicable and it is Article 58 which would be applicable. 11.6. Thus, the suit being ex-facie barred by limitation, the Trial Court ought to have taken this into consideration and rejected the plaint by taking into account the decisions of the Hon’ble Apex Court which mandate such dismissal as held by the Hon’ble Apex Court in Dahiben's case, which requires a suit that is manifestly vexatious and without merit to be rejected by applying Rule 11 of Order 7 of the CPC. 11.7. A similar view has been expressed by the Hon’ble Apex Court in ELDECO Housing and Industries Ltd. case, wherein it has been held that whenever the contents of the plaint satisfy the requirement of Rule 11 of Order 7 of CPC, there is a duty cast on the Court to reject the - 60 - NC:

2024. KHC:43493 CRP No.88 of 2024 plaint and nip frivolous suits at the bud. The present suit apparently having been filed much belatedly when third and fourth party rights have been created, the plaintiffs being daughters and completely aware of such third and fourth party rights and the construction put up by them, the plaint was required to be rejected. 11.8. There are a large number of suits which are filed and pending before the Trial Courts for long periods of time, it is taking advantage of the time taken for disposal of the suits that there are also a large number of frivolous and vexatious suits filed to harass and for lack of a better word extort monies from the defendants. It is high time that the Trial Courts stop acting as mute spectators and exercise power vested in them under Rule 11 of Order VII and discharge their duty to such defendants and safeguard the defendants from vexatious and - 61 - NC:

2024. KHC:43493 CRP No.88 of 2024 frivolous litigation, which are an abuse of the process of law and the court. The Trial Courts ought to exercise the judicial powers with the discretion that is vested in them so that the suits cannot be used as a means and methodology to achieve the dishonest motives of the plaintiffs. 11.9. Towards this end, whenever it is established that the suit comes within the mischief of Rule 11 of Order VII, the Trial Court ought to exercise its powers under the said provision and reject the plaint. This would firstly render justice to the party who has been made to face a vexatious and frivolous suit and secondly would prevent such suits being filed. Since, it is taking advantage of the non-exercise of powers under Rule 11 of Order VII as also the length of the litigation that such suits are filed. It is a duty cast on the Trial Courts to nip the frivolous, vexatious as also suits which are ex- - 62 - NC:

2024. KHC:43493 CRP No.88 of 2024 facie barred by limitation at the bud so as to prevent the abuse of the process of law and court. 11.10. Hence, I answer point No.1 by holding that a suit filed in the year 2008 questioning the sale deed of the year 1995 is not maintainable and is ex-facie barred by the Limitation Act requiring the Trial Court to mandatorily exercise powers under Rule 11 of Order 7 of the CPC and reject the plaint on the ground that the plaint is ex-facie barred by the law of limitation.

12. ANSWER TO POINT No.2: Whether the sale deed executed in pursuance of a General Power of Attorney, executed in pursuance of an agreement of sale in favour of Defendant No.2, which could be said to be coupled with interest under Section 202 of the Contract Act, 1872, thereby making the sale deed of the year 1995 valid?. - 63 - NC:

2024. KHC:43493 CRP No.88 of 2024 12.1. Much has been contended on this aspect as regards whether a General Power of Attorney executed in favour of a person other than the agreement holder can be said to be one coupled with interest, as also as to whether the Power of Attorney could be made use of after the death of the person who has executed the Power of Attorney. Both these aspects being interrelated are considered together and answered as under. 12.2. As afore observed, an agreement of sale came to be executed by the father and brother of the plaintiff in the year 1990, the agreement of sale being executed and registered in favour of Defendant No.2. A Power of Attorney being executed and registered in favour of Defendant No.3, simultaneous with the execution and registration of the agreement of sale in favour of Defendant No.2 on 12.02.1990.-. 64 - NC:

2024. KHC:43493 CRP No.88 of 2024 12.3. The father is stated to have expired on 23.01.1992, and on that ground, it is contended that the Power of Attorney automatically stood terminated with the death of the father. This aspect would have to be looked into in the perspective of a Power of Attorney coupled with interest, since a Power of Attorney which is coupled with interest would not come to an end on the expiry of the person who had issued the Power of Attorney but would continue, since even the person who had issued the Power of Attorney could not have terminated the said Power of Attorney during his lifetime and that the Power of Attorney could be used by the Power of Attorney holder to perform the acts authorised under the said Power of Attorney. 12.4. In order to ascertain whether the Power of Attorney is one coupled with interest, what is - 65 - NC:

2024. KHC:43493 CRP No.88 of 2024 required to be seen is that both the Agreement of Sale and Power of Attorney were executed on the same date, both of them are registered in the jurisdictional Sub-Registrar's Office. It is claimed that the Power of Attorney holder is a nominee of the Agreement of Sale holder that is defendant No.2, the entire consideration having been received along with the agreement of sale and the agreement holder having been put in possession, the Power of Attorney holder being mandated to execute a sale deed, has infact executed such sale deed in favour of the agreement holder that is Defendant No.2 and not in favour of any third party. 12.5. The matter would have been different if the Power of Attorney holder had executed a sale deed in favour of a third party and not the agreement holder. 12.6. The contemporaneous documents which have been executed, namely the agreement of sale - 66 - NC:

2024. KHC:43493 CRP No.88 of 2024 and Power of Attorney on the very same day as regards the very same property and subsequently the Power of Attorney having executed a sale deed in favour of the agreement holder indicate the connection between the said agreement holder and Power of Attorney holder relatable to the property subject matter of the agreement of sale. 12.7. The Power of Attorney has been executed as a security for the agreement holder so as to assure the agreement holder that he can get a sale deed executed in his favour in view of the compliances already made. The agent that is the Power of Attorney holder – defendant No.3 being a nominee of defendant No.2, the exercise of rights under the Power of Attorney is for and on behalf of the agreement holder - defendant No.2. Thus, the agent acting for and on behalf of defendant No.2 has an interest which the Power of Attorney exercises for and - 67 - NC:

2024. KHC:43493 CRP No.88 of 2024 on behalf of the agreement holder, which in my considered opinion would come within the four corners of Section 202 of the Contract Act, satisfying the requirement laid down by the Hon’ble Apex Court in Mohammad Podiya's case, (supra). 12.8. As held by the Hon’ble Apex Court in Harbans Singh's case, if an interest is created in favour of the Power of Attorney, then the Power of Attorney cannot be terminated. Though under Section 54 of the Transfer of Property Act, an agreement of sale by itself does not create any interest, by executing and registering an agreement of sale, handing over possession, and a Power of Attorney being executed to safeguard the interest of the Agreement holder, an interest is created in favour of both the agreement holder and his nominee, via the Power of Attorney, thereby granting such - 68 - NC:

2024. KHC:43493 CRP No.88 of 2024 powers and duties which the Power of Attorney can exercise. 12.9. Thus, the right which has been created in favour of the agreement of sale holder is much beyond a mere agreement of sale and would go beyond the purview of Section 54 of the Transfer of Property Act and the rights which are conferred on the Power of Attorney holder in conjunction with the agreement of sale is one which is coupled with interest, which aspect has been reiterated by the Hon’ble Apex Court in Bhaganbhai Karambhai Bharvad’s case holding that post the death of a person who had executed a Power of Attorney, a sale deed executed using such Power of Attorney coupled with interest is valid and that the power of attorney would not come to an end on the death of the person who has executed the power of attorney.-. 69 - NC:

2024. KHC:43493 CRP No.88 of 2024 12.10. As further held in Bhaganbhai Karambhai Bharvad’s case, there was no requirement of the power of attorney holder to seek for consent of the legal heirs of the deceased and the powers under the Power of Attorney could be exercised to execute a sale deed in favour of the legal heirs of the deceased. 12.11. This view expressed by the Indian Courts also finds mention and support in the celebrated book by the author Bowstead on ‘Agency’, wherein the author has categorically stated that when a Power of Attorney is given to secure a proprietary interest or donee of the Power of Attorney or the performance of an obligation owed to the donee, the said Power of Attorney is irrevocable. 12.12. The Calcutta High Court way back in the year 1916-17 vide its Judgment in Sital Prosad and others -v- Raja Brijnarain Roy and - 70 - NC:

2024. KHC:43493 CRP No.88 of 2024 another12 has categorically held that where there are two or more principals who executed a Power of Attorney in favour of an agent, the death of one of the Principal does not terminate the authority of the agent. The Hon'ble Calcutta High Court went on to hold that when two principals appoint an agent to take charge of some matter in which they are jointly interested, the death of one of them cannot amount to termination of the authority of the agent, not merely as regards the deceased but also as regards the surviving principal and in such cases, the true intention of the parties to the contract would have to be ascertained. It is further held that so long as the paramount object of the Power of Attorney continues to be capable of realisation, the power also retains its vitality to adopt the contrary view mainly to defeat the ends of justice. 12 1916 SCC Oline Cal 212 - 71 - NC:

2024. KHC:43493 CRP No.88 of 2024 12.13. Applying the said principle to the present case, the Power of Attorney having been executed by the father and brother for sale of the property and as aforesaid the said power having been vested with defendant No.3, a right to sell the property, same being coupled with interest since there was an agreement of sale executed in favour of defendant No.2, the death of the father cannot be said to put an end to the Power of Attorney since the object of the Power of Attorney to secure the rights of defendant No.2-purchaser would continue to be capable of being achieved which was indeed achieved by defendant No.3 executing a sale deed in favour of defendant No.2. 12.14. The Division Bench of the Hon'ble Madras High Court has also considered this aspect in detail in its Judgment in K.A. Meeran Mohideen - - 72 - NC:

2024. KHC:43493 CRP No.88 of 2024 vs- Sheik Amjad and Others13. The Hon'ble Division Bench after considering various aspects has distinguished between a Power of Attorney coupled with interest and one which is not coupled with interest. Insofar as a Power of Attorney coupled with interest, the Hon'ble Madras High Court has categorically come to a conclusion that death of one of the principals will not result in the termination of the power of attorney even with reference to his interest, that is to say that the Power of Attorney issued by a person who has subsequently expired would also continue to be in operation and existence. Insofar as Power of Attorney not coupled with interest is concerned, the Hon'ble Madras High Court has dealt with it separately which would not be of relevance to the present matter. 13 S.A. No.1391/2002 - 73 - NC:

2024. KHC:43493 CRP No.88 of 2024 12.15. Thus, looked at from any angle, the Registered Power of Attorney, though executed in favour of Defendant No.3, but having been executed in furtherance of the registered agreement of sale, executed in favour of Defendant No.2 is one coupled with interest, since the powers under the Power of Attorney were to and infact has been exercised by Defendant No.3 to execute a sale deed in favour of the agreement holder - Defendant No.2. 12.16. Hence, I answer point No.2 by holding that a sale deed executed in pursuance of a general Power of Attorney, in pursuance of an agreement of sale, though in favour of another person, such person is not a third party he being a nominee of the Agreement holder, the same is one coupled with interest under Section 202 of the Indian Contract Act, 1872, making it irrevocable and even though the power under the Power of Attorney has been exercised post - 74 - NC:

2024. KHC:43493 CRP No.88 of 2024 the death of the donee, the donee himself during his lifetime not being capable of cancelling or revoking the Power of Attorney, the exercise of the powers granted under the Power of Attorney post the death of the donee would also be valid.

13. ANSWER TO POINT No.3: Whether a suit for partition filed in the year 2008 as regards the property which had been alienated by way of a registered document prior to 20.12.2004 could be maintainable in view of the proviso to Subsection (1) of Section 6 of the Hindu Succession Act, 1956?. 13.1. Section 6 of the Hindu Succession Act is reproduced hereunder for easy reference:

6. Devolution of interest in coparcenary property.―(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,― (a) by birth become a coparcener in her own right the same manner as the son; - 75 - NC:

2024. KHC:43493 CRP No.88 of 2024 (b) have the same rights in the coparcenery property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,― (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and - 76 - NC:

2024. KHC:43493 CRP No.88 of 2024 (c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre- deceased son or a pre-deceased daughter, as the case may be. Explanation.―For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect― (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of 2005) had not been enacted.-. 77 - NC:

2024. KHC:43493 CRP No.88 of 2024 Explanation.―For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005). (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004 Explanation.―For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]. 13.2. It is by virtue of the amendment carried out to Section 6 that a Hindu female has been treated as a co-parcener and conferred an interest in the joint family property in the same lines as that of a male co-parcener. Prior to the amendment coming into force, on 09.09.2005, the Hindu female did not have any right over the joint family property or any part thereof. 13.3. The proviso to sub-section (1) of Section 6 makes it clear that any partition and / or - 78 - NC:

2024. KHC:43493 CRP No.88 of 2024 alienation of the property is saved and cannot be questioned on account of the rights conferred on a Hindu female in terms of the amendment to Section 6. 13.4. In the present case, the agreement of sale having been executed in the year 1990 by the father and brother who were the only co- parceners recognized as on that date to sell the joint family property, the plaintiffs either individually or jointly did not have any right, title or interest in the said property as on that date. The sale deed having been executed in on 24.01.1995, much prior to 20.12.2004, the said sale deed is saved by the proviso to sub- section (1) of Section 6 and cannot be questioned, so as to not upset any transaction which has occurred prior to that date, since it is only on account of the amendment that a Hindu female has been provided a right over a joint - 79 - NC:

2024. KHC:43493 CRP No.88 of 2024 family property, if not for the amendment, she had no right in the joint family property. 13.5. Tested in the present facts, a sale deed having been executed in favour of a third party namely Defendant No.2 on 24.01.1995, subsequently Defendant No.2 having formed a layout and sold it to various fourth parties , third and fourth party interests having been created, it would create injustice if, after the amendment, a Hindu female can claim a right over the property which has already been alienated, and third or fourth party rights have been created, since the joint family has during the subsistence of the said joint family, received the sale consideration the consideration being paid by the purchaser. It not being in dispute that the purchaser is a bonafide purchaser for value. 13.6. When a Hindu female/s, like the plaintiffs, did not have any right, title or interest, a bonafide - 80 - NC:

2024. KHC:43493 CRP No.88 of 2024 purchaser for value cannot be put at a disadvantage only on account of the amendment which has created a right in favour of a Hindu family. 13.7. Thus, I answer point No.3 by holding that a suit for partition filed in the year 2008 as regards a property which had been alienated by way of a registered document prior to 20.12.2004 is not maintainable. There would be no cause of action for maintaining such a suit, and as such, such a plaint is liable to be rejected under Rule 11 of Order 7 of the Code of Civil Procedure.

14. ANSWER TO POINT No.4: Whether the order passed by the Trial court suffers from any legal infirmity requiring interference at the hands of this court?. 14.1. The Trial Court has not considered the above aspects in the proper perspective inasmuch as the Trial Court has come to a conclusion that limitation is a mixed question of fact and law, - 81 - NC:

2024. KHC:43493 CRP No.88 of 2024 though the said concept is right, it would have to be applied to the factual matrix to ascertain if the same would be applicable or not. The question of limitation being a mixed question of law and fact would be where the facts are in dispute, and as such, a Trial is required to ascertain what the facts are so as to apply the law of limitation. 14.2. In the present case, ex-facie it is seen that a sale has occurred on 24.01.1995and in terms of Article 58, any suit challenging such a sale would have to be filed within three years i.e., on or before 23.01.1998, the same not having been filed, ex-facie the suit was barred by limitation, which the Trial Court has not properly considered. 14.3. Again, as indicated in my answers to the above points, the Hindu female/s, that is the plaintiffs herein being the daughters, did not have any right in the property as on the date on which - 82 - NC:

2024. KHC:43493 CRP No.88 of 2024 the registered agreement of sale was executed by their father and brother as also on the date on which the sale deed came to be executed i.e., in the year 1995, they derived their right only after the amendment to Section 6 of the Hindu Succession Act. This aspect has also not been taken into consideration in a proper perspective by the Trial Court as reasoned out supra in answer to the aforesaid points. 14.4. Lastly, the Trial Court has erred in coming to a conclusion that on the death of the donee of the Power of Attorney, the Power of Attorney stands automatically terminated. As answered above, no such termination can happen when the Power of Attorney is one coupled with interest. As such, on all the points above, the Trial Court has misapplied itself and not considered the proper legal position. 14.5. I answer Point No.4 by holding that the order passed by the Trial Court suffers from all the - 83 - NC:

2024. KHC:43493 CRP No.88 of 2024 above legal infirmities requiring interference at the hands of this Court.

15. ANSWER TO POINT No.5: What Order?. 15.1. In view of my answers to the above points I pass the following

ORDER

(i) Civil Revision Petition is allowed (ii) The order dated 20.01.2023 passed on IA No.11 in O.S.No.162/2008 by the IIIrd Additional Senior Civil Judge and JMFC, Devanahalli, is set aside. (iii) IA No.11 filed in O.S.No.162/2008 is allowed, consequently, the plaint in OS No.162/2008 is rejected. Sd/- (SURAJ GOVINDARAJ) JUDGE PRS List No.:

2. Sl No.: 1

Court	Karnataka High Court
Decided On	Oct-25-2024
Case Number	CRP 88/2024
Judge	SURAJ GOVINDARAJ
Appellant	M/s Jade Garden Plot Owner's Association
Respondent	Smt. Bhagyalakshmi

M/s Jade Garden Plot Owner's Association Vs. Smt. Bhagyalakshmi - Court Judgment

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