- 1 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S. INDIRESH REGULAR SECOND APPEAL NO.89 OF 2017 (DEC) BETWEEN: 1. SRI. VENKATARAMEGOWDA S/O. BOREGOWDA, AGED ABOUT 67 YEARS, AGRICULTURIST. 2. SMT. YASHODHA W/O. VENKATARAMEGOWDA AGED ABOUT 54 YEARS. BOTH ARE RESIDING AT: SOWMYA NILAYA, GAYATHRI EXTENSION, KASABA HOBLI, CHANNARAYAPATNA TOWN AND TALUK, HASSAN DISTRICT - 573 122. 3. SRI. S.P. NAVEEN S/O. S. PUTTASWAMYGOWDA, AGED ABOUT 43 YEARS, R/AT SANENAHALLI VILLAGE, SRAVANABELAGOLA HOBLI, CHANNARAYAPATNA TOWN AND TALUK, HASSAN DISTRICT. …APPELLANTS (BY SRI. DESHRAJ, ADVOCATE) AND: 1. SMT. C.S. GIRIJA RAO W/O LATE C.S. SRINIVASA RAO, AGE: MAJOR. Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 2. SRI. C.S. SRIHARI S/O LATE C.S. SRINIVASA RAO, AGE: MAJOR. BOTH ARE RESIDING AT: HOUSE NO.48, 4TH CROSS, N.R. COLONY, BENGALURU - 560 009. …RESPONDENTS (BY DR. SUDHINDRA BHAT, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 17TH OCTOBER, 2016 PASSED IN REGULAR APPEAL NO.549 OF 2015 ON THE FILE OF THE 4TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN DISTRICT (SIT AT CHANNARAYAPATNA), ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 09TH NOVEMBER, 2015 PASSED IN ORIGINAL SUIT NO. 11 OF 2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHANNARAYAPATNA. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH ORAL JUDGMENT This appeal is preferred by the defendants challenging the judgment and decree dated 17th October, 2016 passed in Regular Appeal No.549 of 2015 on the file of IV Additional District and Sessions Judge, Hassan District (Sit at Channarayanapatna) (for short, hereinafter referred to as 'First Appellate Court'), allowing the appeal - 3 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 and setting aside the judgment and decree dated 09th November, 2015 passed in Original Suit No.11 of 2009 on the file of the Senior Civil Judge, Channarayapatna (for short, hereinafter referred to as 'Trial Court'), wherein, the suit of the plaintiff came to be dismissed. 2. For the sake of convenience, the parties in this appeal are referred as per their ranking before the Trial Court. 3. It is the case of the plaintiffs that, one C.V. Suryanarayana Rao was the owner of the suit schedule property having been granted by the Special Land Acquisition Officer (Rehabilitation), Hassan. It is stated that the said C.V. Suryanarayana Rao and his son C.S. Srinivasa Rao were enjoying the suit scheduled property. The said C.V. Suryanarayana Rao and C.S. Srinivasa Rao have sold an extent of 2 acre 6 guntas acres of land each in favour of the defendant No.2 as well as one Smt. Thopamma as per the registered Sale Deeds dated 28th - 4 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 March, 1983. It is further stated that, the above said sale made in favour of the defendant No.2 and Smt. Thopamma as per the registered Sale Deeds dated 28th March, 1983 was in violation of the scheme of grant by the Government. It is also stated that the defendant No.2 filed R.A.No.40/1985-86, Smt. Thopamma had filed R.A.No.120/1984-85 and further the said C.V. Suryanarayana Rao preferred appeal in R.A. No.12/1984- 85 before the Special Deputy Commissioner, Hassan. 4. It is also stated by the plaintiffs that the defendant No.2 and the said Smt. Thopamma had executed the return Sale Deed in favour of C.V. Suryanarayana Rao and C.S. Srinivasa Rao as per the sale deeds dated 04th July, 1985. 5. It is the further case of the plaintiffs that the said C.V. Suryanarayana Rao and C.S. Srinivasa Rao had executed the unregistered Power of Attorney dated 09th July, 1996 in favour of the defendant No.1. On the - 5 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 strength of the said Power of Attorney, the mutation entries changed in favour of the defendant No.1. It is also stated that, C.V. Suryanarayana Rao died on 03rd February, 1997 and C.S. Srinivasa Rao died on 04th July, 2006. The plaintiffs being the Class-1 heirs of the deceased C.V. Suryanarayana Rao and C.S. Srinivasa Rao have stated in the plaint that, they have succeeded to the estate of the suit schedule property in view of the death of C.V. Suryanarayana Rao and C.S. Srinivasa Rao. It is also stated that, the plaintiffs have executed registered General Power of Attorney dated 31st August, 2008 in favour of one Jagadeesha. In the meanwhile, the revenue proceedings were initiated before the Assistant Commissioner, Hassan based on the Gift Deed dated 04th August, 2008 said to have been executed by the defendant No.1 in favour of the defendant No.2 and in turn the defendant No.2 has sold the suit schedule property in favour of the defendant No.3 as per the registered Sale Deed dated 02nd May, 2009. Hence, plaintiffs have preferred the instant suit - 6 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 before the Trial Court, seeking relief of declaration with consequential relief of permanent injunction against the defendants. 6. Upon service of notice, defendants entered appearance. Defendant No.1 filed detailed written statement and took-up a specific contention that the defendants are in possession of the suit schedule property based on the Power of Attorney said to have been executed by C.V. Suryanarayana Rao and his son C.S. Srinivasa Rao in favour of the defendant No.1. It is also the case of the defendants that, in terms of the Power of Attorney executed by C.V. Suryanarayana Rao and C.S. Srinivasa Rao, the defendant No.1 executed the Gift Deed in favour of the defendant No.2 and in turn the defendant No.2 sold the suit schedule property in favour of defendant No.3 and accordingly, the defendants are in possession of the same. Therefore, the defendants have sought for dismissal of the suit. - 7 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 7. The Trial Court, based on the pleadings on record, formulated issues and additional issues for its consideration. 8. In order to establish their case, the Power of Attorney holder of the plaintiffs has been examined as PW1 and got marked 21 documents as Exhibits P1 to P21. On the other hand, defendants have examined five witnesses as DW1 to DW5 and got marked 32 documents as Exhibits D1 to D32. 9. The Trial Court, after considering the material record, by its judgment the decree dated 09th November, 2015 dismissed the suit of the plaintiffs. Being aggrieved by the same, plaintiffs have preferred Regular Appeal No.549 of 2015 and the same was contested by the defendants. The First Appellate Court, after re- appreciating the material record, by its judgment and decree dated 17th October, 2016, allowed the appeal and - 8 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 set-aside the judgment and decree passed by the Trial Court. Hence, defendants have preferred this appeal. 10. This Court, vide order dated 03rd March, 2017, formulated the following substantial questions of law: "a) Whether the first appellate court was justified in holding that the plaintiffs have proved that the right, title, interest and possession of original grantee namely, Sri. C.V.Suryanarayana Rao was not validly conveyed, assigned and transferred in favour of defendant Nos.1 and 2 in respect of the suit land? b) Whether the First Appellate Court was justified in holding that the plaintiffs have established their ownership, possession and enjoyment of the suit land? c) Whether the First Appellate Court was justified in holding that the transaction styled as sale deed dated 04.07.1985 effected between Suryanarayana Rao and his son .Srinivasa Rao and defendant, was sham and made believe to carry records in the name of Suryanarayana Rao and his son Srinivasa Rao till expiry of non-alienation period? - 9 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 d) And to consider any other substantial questions of law which may arise for consideration while hearing the appeal." 11. Heard Sri. Deshraj, learned counsel appearing for appellants and Dr. Sudhindra Bhat, learned counsel appearing for respondents. 12. Sri. Deshraj, learned counsel appearing for the appellants contended that, the Trial Court after considering the material on record, rightly dismissed the suit of the plaintiffs on the ground that the possession of the suit property was with the defendants. He further submitted that, the recitals in the Power of Attorney dated 09th July, 1996, would indicate that the said C.V. Suryanarayana Rao and C.S. Srinivasa Rao had executed the Power of Attorney to convey the suit schedule property and therefore, the interference made by the First Appellate Court with the well reasoned judgment and decree passed by the Trial Court requires to be interfered with in the present appeal. - 10 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 13. Learned counsel appearing for the appellants also refers to the finding recorded by the Trial Court at paragraph 33 and 34 and argued that, the judgment and decree passed by the First Appellate Court requires interference in this appeal. It is also argued by learned counsel appearing for appellants that the suit of the plaintiffs is not maintainable as the plaintiffs have not sought for possession of the suit schedule property. Accordingly, he sought for interference of this Court. 14. Per contra, Dr. Sudhindra Bhat, learned counsel appearing for respondents sought to justify the impugned judgment and decree passed by the First Appellate Court. 15. Having heard the learned counsel appearing for parties, I have perused the records. It is forthcoming from the records that the suit schedule property is originally belonging to one C.V. Suryanarayana Rao, which was granted by the competent authority and same was in enjoyment of C.V. Suryanarayana Rao and his son C.S. - 11 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 Srinivasa Rao. It is also forthcoming from the records that the said C.V. Suryanarayana Rao and his son sold an extent of 2 acre 6 guntas each in favour of the defendant No.2 and one Smt. Thopamma as per the registered Sale Deed dated 28th March, 1983. It is the further case of the plaintiffs that the sale was in violation of the conditions in the order of grant made in favour of C.V. Suryanarayana Rao and as such, the defendant No.2 filed R.A.No.40/1985-86 and Smt. Thopamma had preferred R.A.No.120/1984-85 before the Special Deputy Commissioner, Hassan. In the meanwhile, the purchasers viz. defendant No.2 and Smt. Thopamma executed a registered Sale Deed in favour of C.V. Suryanarayana Rao and C.S. Srinivasa Rao as per Sale Deed dated 04th July, 1985. In that view of the matter, the order of cancellation passed by the Special Land Acquisition Officer, (Rehabilitation), Hassan, came to be set-aside. In the meanwhile, the C.V. Suryanarayana Rao and C.S. Srinivasa Rao had executed unregistered Power of - 12 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 Attorney in favour of the defendant No.1 on 09th July, 1996 (Exhitibit-D3), authorising the defendant No.1 to manage the affairs of the suit schedule property including the sale, change of Khata etc. 16. It is also to be noted that the executants of the unregistered Power of Attorney dated 09th July, 1996 i.e., C.V. Suryanarayana Rao and C.S. Srinivasa Rao died on 03rd February, 1997 and 04th July, 2006 respectively (Exhibits 'P8' and 'P9'). Thereafter, the defendant No.1 has executed the Gift Deed dated 04th August, 2008 in favour of the defendant No.2 and the defendant No.2 in turn sold the suit schedule property on 02nd May, 2009 in favour of the defendant No.3. In this regard, on careful consideration of the arguments advanced by learned counsel appearing for appellants would indicate that the defendants were in possession of the suit schedule property based on the unregistered Power of Attorney. At this stage, it is relevant to mention that, as the executants of the Power of Attorney i.e., C.V. Suryanarayana Rao and - 13 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 C.S. Srinivasa Rao, being the owners of the suit schedule property died on 03rd July, 1997 and 04th July, 2006 respectively, the defendant No.1 has no authority under law to execute a registered Gift Deed dated 04th August, 2008 in favour of the defendant No.2 as a Power of Attorney Holder and the same has no legal sanctity under law. In that view of the matter, it is relevant to mention the law declared by this Court in the case of R. SANDHYARANI vs. M. MYLARAPPA reported in 2007 SCC OnLine KAR 34, wherein it is held that, as soon as the executant died, the right given to the Attorney Holder comes to an end. The said aspect of the matter was not properly appreciated by the Trial Court, as the plaintiffs are the legal heirs of C.S. Srinivasa Rao, have to be declared as absolute owners of the suit schedule property. 17. It is pertinent to mention here that, even, if the revenue entries and the possession of the suit schedule property is with the defendants based on the Power of Attorney, the plaintiffs have stated that they have - 14 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 executed a registered General Power of Attorney dated 31st August, 2008 in favour of one Jagadeesha for managing the suit schedule property. The said aspect of the matter was ignored by the Trial Court and accordingly, Trial Court committed an error in dismissing the suit of the plaintiffs, however First Appellate Court, after re- appreciating the material on record, rightly decreed the suit of the plaintiffs by setting aside the judgment and decree passed by the Trial Court. Even on careful examination of the Gift Deed dated 04th August, 2008 (Exhibit D7), do not disclose the source of title by the donor i.e., the defendant No.1, and therefore, I am of the view that the finding recorded by the First Appellate Court requires to be confirmed in this appeal. 18. It is well settled principle in law that the Attorney Holder looses his right as soon as the executant of the Power of Attorney dies. Insofar as the submission of learned counsel appearing for the appellants in respect of revenue records stand in favour of the defendants is - 15 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 concerned, on perusal of the entries in RTC Extracts produced at Exhibits 'P12' and 'P13' would indicate that the said revenue extracts are in favour of the defendant No.1, however, the said entries have been made based on the Power of Attorney dated 09th July, 1996. In this regard, as the executants of the Power of Attorney died, the same cannot be executable on account of the death of the executants. In that view of the matter, I am of the view that the said submission made by learned counsel appearing for appellants cannot be accepted. 19. It is relevant to mention the judgment of Hon'ble Supreme Court in the case of M.S. ANANTHAMURTY AND ANOTHER vs. J. MANJULA reported in 2025 SCC OnLine SC 448, wherein at paragraph 40 to 48, it is held as under: "40. In the present case, it is evident from para 1 of the GPA executed by the original owner in favor of the holder that the POA was to look after, maintain, manage the Scheduled Property. Para 2 states that the attorney can enter into any agreement with any person with - 16 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 respect to the Scheduled Property for any amount, receive advance amount, to execute deeds in favor of such persons, issue proper discharge. Para 3 states that attorney has the power to apply for transfer of khata and to pay all future taxes and receive receipts. Further, para 4 states that the attorney can apply for sanctioning of plan for the purpose of construction, utilize the Scheduled Property as the holder deems fit and receive all profits therefrom. Para 5 states that the attorney has the power to represent the holder in all Government Offices and do all things connected. Para 6 states that the attorney can pursue matters in courts, give evidence, obtain decree, execute the same. Further, para 7 states that the Scheduled Property is in owner's peaceful possession and enjoyment. Lastly, para 8 states that the attorney is generally entitled to do all acts required in respect of the Suit Property which are not specifically mentioned and that the GPA is irrevocable. b. Nature of Power of Attorney 41. It is now appropriate to analyze the nature of the GPA, specifically whether it is general or special. While construing a document, a reader should not go by the title to the document or the nomenclature of the document. In such a case, the court is endowed with a duty to see the contents of the document and intention of the parties which can be gathered from the terms of the document and/or from circumstances under which the document was entered into. The intention of the parties - 17 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 can be ascertained from the language used by the parties. A document has to be seen as a whole. 42. The import of the word “general” in a POA refers to the power granted concerning the subject matter. The test to determine the nature of POA is the subject matter for which it has been executed. The nomenclature of the POA does not determine its nature. Even a POA termed as a ‘general power of attorney’ may confer powers that are special in relation to the subject matter. Likewise, a ‘special power of attorney’ may confer powers that are general in nature concerning the subject matter. The essence lies in the power and not in the subject-matter. 43. In Halsbury, Vol. 1, at page 151, the author defines special and general agents, the definition of general agent has been stated as follows: “A general agent is one who has authority, arising out of and in the ordinary course of his business or profession, to do some act or acts on behalf of his principal in relation thereto; or one who is authorised to act on behalf of the principal generally in transactions of a particular kind or incidental to a particular business.” 44. A three-Judge Bench of this Court settled the rules of interpretation applicable to power of attorney in Timblo Irmaos Ltd., Margo v. Jorge Anibal Matos Sequeira, reported in (1977) 3 SCC 474. It was held that words used in a POA must be interpreted in the context of the whole; the purpose of the powers conferred must then be examined through the circumstances in which it was - 18 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 executed; and finally, necessary powers must be implied. The relevant observations are reproduced herein below:— “11. We think that perhaps the most important factor in interpreting a power of attorney is the purpose for which it is executed. It is evident that the purpose for which it is executed must appear primarily from the terms of the power of attorney itself, and, it is only if there is an unresolved problem left by the language of the document, that we need consider the manner in which the words used could be related to the facts and circumstances of the case or the nature or course of dealings. We think that the rule of construction embodied in proviso 6 to Section 92 of the Evidence Act, which enables the Court to examine the facts and surrounding circumstances to which the language of the document may be related, is applicable here, because we think that the words of the document, taken by themselves, are not so clear in their meanings as the learned Judicial Commissioner thought they were. --xxx-- 13. The learned Judicial Commissioner had, in our opinion, overlooked several well-known rules of interpretation : firstly, that, a word used in a document has to be interpreted as a part of or in the context of the whole; secondly, that, the purpose of the powers conferred by the power of attorney have to be ascertained having regard to the need which gave rise to the execution of the document, the practice of the parties, and the manner in which the parties themselves understood the purpose of the document; and, thirdly, that, powers which are absolutely necessary and incidental to the execution of the ascertained objects of the general powers given must be necessarily implied.” (Emphasis supplied) - 19 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 45. Further, a mere use of the word ‘irrevocable’ in a POA does not make the POA irrevocable. If the POA is not coupled with interest, no extraneous expression can make it irrevocable. At the same time, even if there is no expression to the effect that the POA is irrevocable but the reading of the document indicates that it is a POA coupled with interest, it would be irrevocable. The principles of construction of a POA termed as ‘irrevocable’ was explained in Manubhai Prabhudas Patel v. Jayantilal Vadilal Shah, reported in 2011 SCC OnLine Guj 7028. The relevant observations are reproduced below:— “12. I am of the view that while construing a document, it is necessary to determine the real intention of the parties. The mere form in which document is couched is immaterial. The intention of the parties has to be gathered from the terms of the documents themselves and from such of the surrounding circumstances, as later required to show in what manner the language of the document is related to the existing fact. It is very difficult task to know the intention of the parties on the basis of the recital of the document. But, the Court can rely safely on the language of the document, the language, which has been used by the parties to manifest the intention of the parties. If the Court goes on extraneous evidence, that may lead to more difficulty and confusion. But, there are certain principles to be borne in mind. The first principle is, the mere saying that the power of attorney is an irrevocable power of attorney coupled with interest is not the end of the matter. The Court, can clearly say that the document, though, is styled as an irrevocable power of attorney is not in substance a power coupled with interest so as to make it an irrevocable power of attorney. At the same time, even if there is no title to show that the power is an - 20 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 irrevocable power, but, the substance of the entire document would suggest that the same is an irrevocable power coupled with interest. Therefore, a document has to be construed as a whole. A stray sentence here and there cannot be picked out to construe a document. To understand the tenor of the document and the intention of the parties, it has to be read as a whole. The real intention of the parties has to be covered not merely from what ex-facie is stated in the document, but, from the totality of the recitals in the document. At this stage, I may quote with profit a very lucid judgment rendered by learned Single Judge of Madras High Court explaining the general principles regarding the construction of power of attorney. In case of Anantha Pillai v. Ratiinasabapatiiy Mudaliar, (1968) 2 Mad LJ 574, Ismail, J. (as he then was), held thus: “The general principles regarding the construction of power of attorney are well settled. Powers of attorney must be strictly construed as giving only such authority as they confer expressly or by necessary implication. Where an act purporting to be done under the power of attorney is challenged as being in excess of the power, it is necessary to show that on a fair construction of the whole instrument the authority in question is to be found within the four corners of the instrument either by express terms or by necessary implication. Some of the principles governing the construction of a power of attorney are : (1) the operative part of the deed is controlled by the recitals, (2) where an authority is given to do particular acts, followed by general words, the general words are restricted to what is necessary for the performance of the particular acts, (3) the general words do not confer general powers but are limited to the purpose for which the authority is given and are construed as enlarging the special powers only when necessary for that purpose; (4) a power - 21 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 of attorney is construed so as to include all medium powers necessary for its effective execution. Bearing these general principles in mind the question for consideration is whether the power of attorney in this case authorised the first defendant to enter into an agreement to sell or authorised him to execute a sale- deed….” (Emphasis supplied) 46. Applying the above exposition of law in the facts of the present case, it is evident from the tenor of POA that is not irrevocable as it was not executed to effectuate security or to secure interest of the agent. The holder of POA could not be said to have an interest in the subject-matter of the agency and mere use of the word ‘irrevocable’ in a POA would not make the POA irrevocable. The High Court was right in holding that the holder did not have any interest in the POA. When the High Court observes that the power of attorney does not explicitly state the reason for its execution, it implies that its nature is general rather than special. 47. It is a settled law that a transfer of immovable property by way of sale can only be by a deed of conveyance. An agreement to sell is not a conveyance. It is not a document of title or a deed of transfer of deed of transfer of property and does not confer ownership right or title. In Suraj Lamp (supra) this Court had reiterated that an agreement to sell does not meet the requirements of Sections 54 and 55 of the TPA to effectuate a ‘transfer’. - 22 - HC-KAR NC: 2025:KHC:37589 RSA NO.89 OF 2017 48. From the independent reading of the POA and the agreement to sell, the submissions of the appellants fail on two grounds, first, the POA is general in nature and does not secure agent's right in the subject-matter of the agency, and secondly, an agreement to sell simpliciter does not confer ownership in the immovable property so as to transfer a better title to anyone else." 20. Following the law declared by Hon'ble Supreme Court in the case of M.S. ANANTHAMURTY (supra) and this Court in the case of R. SANDHYARANI (supra), I am of the view that the First Appellate Court, rightly set-aside the judgment and decree passed by the Trial Court. Hence, the substantial questions of law framed by this Court favours the plaintiffs. Therefore, no interference be called for in this appeal. Accordingly, Regular Second Appeal is dismissed. SD/- (E.S. INDIRESH) JUDGE ARK List No.: 1 Sl No.: 42