- 1 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO.1513 OF 2016 (POS) BETWEEN: THIMMAKKA, DEAD BY LR., THIMMAPPA, S/O LATE KEMPAIAH, AGED 62 YEARS, NO.11/2, 2ND MAIN ROAD, MADIWALA EXTENSION, WARD NO.66, BANGALORE-560068. …APPELLANT (BY SRI JAGADEESHACHARI, ADVOCATE) AND: H.M. YAKOOB, DEAD BY L.Rs., 1. HALEEMABI, W/O LATE H.M. YAKOOB, AGED 58 YEARS, 2. SABEERA D/O LATE H.M. YAKOOB, AGED 43 YEARS, 3. MUMTAZ D/O LATE H.M. YAKOOB, AGED 41 YEARS, 4. KAMRUN D/O LATE H.M. YAKOOB, AGED 39 YEARS, Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 5. ZAREENA D/O LATE H.M. YAKOOB, AGED 33 YEARS, 6. SAHEENA D/O LATE H.M. YAKOOB, AGED 29 YEARS, 7. ABDUL LATHIEF S/O LATE H.M. YAKOOB, AGED 35 YEARS, 8. ABDUL GHANI S/O LATE H.M. YAKOOB, AGED 32 YEARS, 9. ABDUL RAZACK S/O LATE H.M. YAKOOB, AGED 28 YEARS, 10. ABDUL GAFFER S/O LATE H.M. YAKOOB, AGED 23 YEARS, ALL ARE RESIDING AT NO.11, 4TH CROSS, RAJU METAL ROAD, NEW EXTENSION, MADIWALA, BANGALORE-560068. …RESPONDENTS (BY SRI P. VENKATASHIVA REDDY, ADVOCATE FOR R-7, R-8 & R-10; NOTICES TO R-1 TO R-6 & R-9 ARE SERVED AND UNREPRESENTED) THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.06.2016 PASSED IN O.S.NO.5448/1999 ON THE FILE OF THE XV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR POSSESSION. THIS APPEAL COMING ON FOR ORDER, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA - 3 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 ORAL JUDGMENT This regular first appeal is filed by the defendant in O.S. No.5488/1999 on the file of the XV Additional City Civil and Sessions Judge, Bangalore City (‘Trial Court’ for short) challenging the judgment and decree dated 28.06.2016, whereby the Trial Court decreed the suit partly, directing the legal representatives of defendant to quit, vacate and deliver vacant possession of the schedule property in favour of the legal representatives of deceased plaintiff within three months from the date of the decree. 2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. Plaint Averments: 3. The plaintiff-H.M. Yakoobsab in O.S. No.5448/1999, contended that he is the absolute owner and possessor of the property bearing No.11 situated at 5th Cross Rajmetal Road, New Extension, Madivala, - 4 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 Bengaluru, having purchased the property from one T. Thippareddy under a registered sale deed dated 22.11.1982 for valuable consideration of `20,000/- out of the joint family income. The suit property is measuring 20 x 15 feet, which forms part of the larger extent purchased by the plaintiff. 4. The case of the plaintiff is that the defendant- Thimmakka @ Thimmamma, illegally trespassed into the schedule property and occupied the same without any manner of right, title, or interest and that the defendant's possession is wholly unauthorized and she has no valid claim over the suit property. The plaintiff sought a decree for possession, directing the defendant to quit and deliver the vacant possession of the suit property and also sought mesne profits for damages at the rate of `1,000/- per month from the date of the suit till the date of delivery. Averments in the written statement: 5. The defendant denied the plaint averments and contended that she is the absolute owner and possessor of - 5 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 the suit property, having purchased from the plaintiff under the registered sale deed dated 28.03.1983. Upon purchase, the khata has been transferred in her name and she has been paying taxes and has been in lawful possession and enjoyment along with her family members. 6. Before the trial Court, three suits were filed. O.S. No.9192/1997 was filed by H.M. Yakoob Sab seeking a declaration that the registered sale deed dated 28.03.1983 executed by him in favour of the defendant (Thimmakka) is null and void, alleging that it was obtained by fraud and misrepresentation. O.S. No.1236/1998 was filed by Thimmakka @ Thimmamma (defendant in O.S. No.9192/1997 and O.S. No.5448/1999), contending that she is the absolute owner of a portion measuring 40 x 20 feet purchased from H.M. Yakoob Sab under a registered sale deed dated 28.03.1983. She has constructed an RCC house and has been residing in the schedule property since the date of her purchase. O.S. No.5448/1999, which is the judgment assailed before this Court in this RFA, is - 6 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 filed by H.M. Yakoob Sab, claiming to be the owner of the remaining portion of the property No.11 measuring 20 x 15 feet, which he contends that the defendant has illegally occupied on 02.01.1999. 7. The Trial Court dismissed O.S. No.9192/1997, holding that the sale deed executed by H.M. Yakoob Sab in favour of the defendant-Thimmamma dated 28.03.1983 is valid, and O.S. No.1236/1999, filed by Thimmakka on the basis of her registered sale deed dated 28.03.1983 in respect of a portion measuring 40 x 20 feet, was decreed holding that the said property is her absolute ownership. O.S. No.5448/1999 which is the judgment appealed in the present RFA is insofar as the remaining extent of land measuring 20 x 15 feet, claimed by the plaintiff-H.M. Yakoob Sab. The Trial Court decreed the suit, directing the defendants to quit and deliver the vacant possession measuring to an extent of 20 x 15 feet portion to the H.M. Yakoob Sab’s legal heirs within three months. - 7 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 8. No appeal has been preferred against the judgment and decree in O.S. No.1236/1998 and O.S. No.9192/1997. The present appeal is confined only to the extent of direction issued to the defendant (Thimmakka) to deliver the possession of the portion measuring 20 x 15 feet. Contention of the appellant: 9. Learned counsel appearing for the appellant contends that the appellant has been in lawful possession and enjoyment of the schedule property, having derived possession from H.M. Yakoob Sab dated 28.03.1983, by paying a consideration of `10,000/-. It is contended that H.M. Yakoob Sab-plaintiff executed in her favour a general power of attorney and an affidavit, authorizing her to deal with the property and to have the transfer recorded in her name. Pursuant to which, the katha has been executed and she has been regularly paying betterment charges and property taxes to the Municipal Authority. It is contended that the GPA and the affidavit executed by the plaintiff - 8 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 under Exs.D1 and D2, though unregistered, were duly acted upon, and the possession was delivered contemporaneously with the execution thereof, consequently, the transaction was complete in all aspects and conferred possessory and equitable title upon the appellant. It is contended that the Trial Court has ignored the documentary evidence at Exs.D1 and D2 and erred in holding that the appellant's possession is unlawful merely because the instruments were unregistered, without appreciating the transaction has been partly performed and the appellant's long and continuous possession is protected under Section 53A of the Transfer of Property Act, 1882 (‘TP Act’ for short). 10. It is contended that the Trial Court has failed to consider that late H.M. Yakoob Sab had acknowledged and permitted the appellant to enjoy the schedule property and that she has invested a substantial amount for improvement and payment of civic dues, which the Court ought to have considered while adjudicating the questions - 9 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 of ownership and possession. Stating these grounds, it is contended that the judgment and decree is erroneous and liable to be set aside. Contention of the respondent: 11. Per contra, learned counsel appearing for the respondents submits that the late H.M. Yakoob Sab had purchased the entire property bearing No.11 under a registered sale deed dated 22.11.1982 from T. Thippareddy and the schedule property forms part of the same. It is contended that no sale deed was executed in favour of the appellant in respect of the schedule property, and that the GPA and the affidavit relied on by the appellant are unregistered and do not confer any ownership or title in law. It is contended that even if the alleged GPA and affidavit are genuine, they ceased to have effect upon the death of their father-the executant in the year 2006, hence any authority or claim of the appellant under those documents stood extinguished. Learned counsel contends that the Trial Court has rightly decreed - 10 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 the suit after appreciating that the appellant's possession was without title and illegal, and the documents relied upon by the appellant could not substitute for a registered conveyance as required under Section 54 of the TP Act and Section 17 of the Registration Act, 1908. It is contended that the findings of the Trial Court that unregistered GPA and affidavit cannot confer ownership and the possession obtained there under is unauthorized, is based on proper appreciation of law and evidence and therefore calls for no interference. 12. Having heard the learned counsel appearing for the parties and perusing the material on record, the point that arises for consideration is: “Whether the judgment and decree of the Trial Court warrants any interference by this Court?” 13. The entire claim of the appellant / defendant in O.S. No.5448/1999 is founded on an unregistered GPA and affidavit dated 08.02.1984 alleged to have been executed - 11 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 by late H.M. Yakoob Sab coupled with the delivery of possession and payment of ` 10,000/-. The Trial Court held that such documents neither convey ownership nor create any interest in the immovable property. This Court finds no reason to differ from the findings of the Trial Court. Under Section 54 of the TP Act, ownership in immovable property can pass only by way of a ‘registered conveyance deed’, and ‘unregistered GPA or an affidavit cannot’, in the eye of law, constitute a transfer of ‘title or ownership’. The Apex Court in the case of Suraj Lamp and Industries P. Ltd. Vs. State of Haryana1 (Suraj Lamp) has authoritatively settled the issue that the transfer of property through GPA, agreement to sell or Will does not constitute a valid conveyance of title and such instrument, at the best, create only a limited agency to act on behalf of the principal. The said principle was reiterated by the Apex Court in the case of M.S. Ananthamurthy v. J. Manjula2 (M.S. Ananthamurthy) wherein the Apex 1 (2012) 1 SCC 656 2 2025 SCC Online SC 448 - 12 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 Court held that the affidavit, the GPA transactions even when accompanied by affidavits do not create ownership. The only lawful mode of transfer is through a registered deed. Therefore, the Trial Court's reliance on the same reasoning is consistent with the settled law. 14. The record further discloses that H.M. Yakoob Sab died in the year 2006. The power of attorney was executed by him in the year 1984 being one of agency, stood automatically revoked upon his death. As per the settled principle, a GPA ceases to operate upon the death of the person who executed it. Any right, if at all, that existed prior to his death should extinguished thereafter. Accordingly, the appellant's continued possession, thus, became unauthorized from that day. The appellant invoked the plea of part performance under Section 53A of the TP Act, contending that the payment of consideration and possession confers a protective equity. The law is well settled that to invoke such a protection, the following conditions must be fulfilled: - 13 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 i. Existence of a written contract of sale; ii. Clear terms capable of specific performance; iii. Delivery of possession in pursuance thereof; and iv. Willingness to perform one's part. 15. The appellant has failed to prove any such contract or willingness, the documents relied upon are only the GPA and affidavit, not an agreement of sale. Therefore, the plea of protection under Section 53A of the TP Act is wholly misconceived. 16. The Trial Court has carefully analyzed both oral and documentary evidence. Exs.D1 and D2 are admittedly unregistered. The findings recorded by the Trial Court are based on proper appreciation of evidence and do not call for any interference. Accordingly, the point framed for consideration is answered and this Court pass the following: - 14 - HC-KAR NC: 2025:KHC:42770 RFA No. 1513 of 2016 ORDER i. The regular first appeal is hereby dismissed. ii. The judgment and decree dated 28.06.2016 in O.S. No.5448/1999 passed by the XV Additional City Civil and Sessions Judge, Bangalore stands affirmed. Sd/- ______________________ JUSTICE K.S. HEMALEKHA MBM List No.: 1 Sl No.: 11