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TMI Blog2023 (12) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... are these: It is stated that defendants 1 to 3 were the original owners of the suit schedule property. It is said that they sold the property to the second plaintiff on 01.03.1991. Due to the Fragmentation Act, they executed an affidavit in favor of the second plaintiff regarding receipt of consideration and transfer of their vested right with possession regarding the scheduled property on 01.03.1991. The affidavit cum sale of the scheduled land was duly sworn before the Notary Advocate Sri. Sangameswara and Advocate by name B. Gangappa identified the signatures of defendants 1 to 3 and the execution of the affidavit and sale transaction entered in favor of the second plaintiff. The contents of the affidavit is very clear that defendants 1 to 3 received the full consideration of Rs. 20,000/- (Rupees Twenty Thousand only) and that apart, gave an undertaking that at no point of time, the said property will be sold or transferred to any third parties. They also agreed that they would come and execute the sale deed in favor of the second plaintiff or at her discretion at any point of time. It is stated that the defendants also executed an irrevocable General Power of Attorney in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a registered sale deed dated 26.04.2004 for valuable consideration and the sixth defendant - the brother of the fifth defendant purchased the remaining portion of the suit scheduled property bearing Assessment No. 19/165, Site bearing No. 12 of Andrahalli Village, Yeshwanathpura Hobli, Bangalore North Taluk measuring East to West 30 feet and North to South 40 feet from the fourth defendant under a registered sale deed dated 26.04.2004 for valuable consideration and they are in possession of the same. Among other grounds, they prayed for the dismissal of the suit. Based on the above pleadings, the Trial Court framed issues; parties led evidence and got marked documents. On the trial of the action, the suit came to be decreed vide Judgment and Decree dated 13.03.2009. Aggrieved by the Judgment and Decree of the Trial Court, defendants 5 and 6 preferred an appeal before the First Appellate Court. On appeal, the First Appellate Court vide Judgment and Decree dated:14.09.2010 dismissed the appeal and confirmed the Judgment and Decree of the Trial Court. Hence, this Regular Second Appeal is filed by defendants 5 & 6 under Section 100 of CPC. 5. Learned counsel for the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to the material on record and were justified in decreeing the suit; the scope to interfere with the concurrent finding is very much limited. Accordingly, he prayed for the dismissal of the appeal. He relied on the following decisions. 1. SYED ABDUL KHADER VS. RAMI REDDY AND OTHERS - AIR 1979 SC 553. 2. MOHAMMAD @ PODIYA VS ASSISTANT COMMISSIONER - ILR 1993 KAR 2306. 3. ICICI BANK LTD (SINCE SUBSTITUTED BY STANDARD CHARTERED BANK) VS SIDCO LEATHERS LTD AND OTHERS - (2006) 10 SCC 452. 8. The facts are sufficiently stated and do not require reiteration. It is an admitted fact that defendants 1 to 3 were the original owners of the property in question. To answer the substantial questions of law, it is relevant to refer to the documents namely, the affidavit dated 01.03.1991 (Ex.P6), the General Power of Attorney dated 01.03.1991 (Ex.P5), the agreement of sale dated 05.04.1991 (Ex.P7), the sale deed dated 08.10.2003 (Ex.D3), Two sale deeds both dated 26.04.2004 (Exs.D1 and D2) and another sale deed dated 20.05.2004 (Ex.P1). Defendants 1 to 3 have sworn to a declaration of facts that they have sold the property for a consideration of Rs. 20,000/- (Rupees Twenty Thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if a power has been created empowering the attorney to sell the property i.e., if a document that gives a right to the attorney holder to sell the immovable property, then it would be a document creating an interest in immovable property, which would require compulsory registration. In the present case, the General Power of Attorney alleged to have been executed by defendants 1 to 3 in favor of the second plaintiff is coupled with interest i.e., power of alienation is conferred but it is not registered. The Apex Court in the SURAJ LAMP's case has held that the General Power of Attorney Sale, or Sale Agreements/ Will do not convey title and do not amount to transfer, nor can they be considered valid modes of transfer of immovable property. Therefore, it can be safely concluded that the declaration of facts/ statement of facts (affidavit) and General Power of Attorney do not convey title. They are inadmissible in evidence. Next, let me consider the argument about Section 48 of the Transfer of Property Act. One of the substantial questions of law relates to Section 48 of the Transfer of Property Act of 1886. An attempt is made on behalf of the plaintiffs that Section 48 has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the question of priority between them is to be determined with reference to the provisions of Section 47 of the Registration Act. If there are successive transfers of the same property, the later transfer is subject to the prior transfer. Reverting to the facts of the case, the sale deed in favor of the fourth defendant is dated 08.10.2003 and the sale deeds in favor of defendants 5 and 6 are dated 26.04.2004. Whereas the sale deed in favor of first plaintiff is dated:20.05.2004. The registered sale deeds in favor of defendants 4, 5 and 6 were first in time than the sale deed in favor of the first plaintiff. The first plaintiff purchased the property already sold, he cannot question the sale deed to be void and hence to have a mileage on the situation. Furthermore, there is no prayer regarding the cancellation of the sale deeds dated:26.04.2004. It is pivotal to note that Section 48 of the Transfer of Property Act ordains to accept supremacy on the former sale deed in all the terms of the latter. The transferor cannot prejudice the rights of the transferee by any subsequent dealing with the property. Taking note of the settled proposition of law, the successive transfer of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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