THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.C.C.A.NOS.98 AND 99 OF 2000 AND C.C.C.A.NO.3 OF 2001 AND TRANSFER C.C.C.A.171 OF 2003 COMMON JUDGMENT: All the suits relates to common subject matter which is House No.1-1-379/228 (SRT), situated at Jawahar Nagar, Hyderabad in an extent of 150 square yards. CCCA No.98 of 2000 This appeal arises out of the suit O.S.No.876 of 1990 filed on 10- 09-1990 by the plaintiff for declaration of her right and for injunction restraining the defendants from interfering with the possession and enjoyment and for a further mandatory injunction directing the defendant No.2 to pay the rents. The claim of the plaintiff is that she has purchased the suit schedule property under a registered sale deed dated 17-10-1975 from the original owner S.Venkayya and has been in possession and enjoyment of the property. The second defendant is the son of the plaintiff. The family was having some agricultural land. In or about 1970 they have shifted to Hyderabad. The husband of the plaintiff sold the agricultural land at Anantaram and thereafter doing “puruhitam” at Hyderabad. The husband of the plaintiff died on 25-01-1972. The plaintiff was eking out livelihood as a “cook” since the second defendant was unemployed. The first defendant and his wife engaged the plaintiff as a “cook” and subsequently the second defendant secured a job and pursued further education. He did not maintain the plaintiff. At the instance of the first defendant and his advise, the schedule property was purchased for Rs.24,000/- and out of it Rs.14,000/- was paid by the plaintiff and a sum of Rs.10,000/- was given by the first defendant to the Labour Commissioner on an understanding of adjusting her salary as “cook” @ 200/- per month. Accordingly, the plaintiff served for five (5) years. The documents were kept with the first defendant but he did not return. The above transaction was not known to the second defendant. The second defendant was in occupation of the part of the premises and the first defendant persuaded the second defendant to pay the rent to the plaintiff. Both defendants have colluded and the first defendant was claiming title to the property. The sale deed was executed by the first defendant as G.P.A holder of Venkayya and it was described that the plaintiff is the wife of the first defendant and that description is ulterior motive. Hence the suit. The first defendant filed a written statement denying that the plaintiff is the absolute owner of the property. It was further pleaded that the defendant has obtained a gift deed from the plaintiff on 23-02- 1977 and since then he has been enjoying the property absolutely as a owner. The defendant permitted the plaintiff to stay in the garage of the defendant and thereafter shifted the premises with the defendant’s consent to look after the house without any rent. In the year 1975 the defendant retired from service and purchased the suit schedule property in the name of the plaintiff as a temporary measure and thereafter she executed a gift deed. The other allegations in the plaint are disputed. There was collusion between the plaintiff and the second defendant. On the basis of the pleadings, the following issues have been framed for trial:- 1. Whether the plaintiff is entitled for declaration and permanent injunction as prayed for? 2. Whether the plaintiff is entitled for recovery of damages as prayed for? 3. To what relief? On behalf of the plaintiff, PW.1 was examined and marked Exs.A- 1 to A-6. On behalf of the defendant Dws.1 and 2 are examined and marked Exs.B-1 to B-27. After considering the evidence on record, the learned Senior Civil Judge decreed the suit of the plaintiff against the first defendant and dismissed against the second defendant. Aggrieved by the same, the present Appeal is filed by the first defendant. CCCA No.99 of 2000 The plaintiffs in O.S.No.1270 of 1993 are the appellants herein. The suit was filed on 25-10-1993 for a declaration that the plaintiffs are the owners of the property and for recovery of the possession. The second plaintiff is the first defendant in O.S.No.876 of 1990 and according to him the suit schedule property was purchased in the name of the third defendant and the entire consideration was paid by the second plaintiff and the third defendant executed a gift in his favour on 23-02-1977 and therefore he became the absolute owner of the property since 1977, which is a repetition of the context in the earlier suit. It was also pleaded that the first defendant is a partnership firm and the premises was let out to the first plaintiff and the second plaintiff is the managing partner of the said firm. As the first defendant along with others tried to interefere with the possession and enjoyment, a suit O.S.2678 of 1990 was filed for injunction and it is pending. The third defendant also filed O.S.No.876 of 1990 for declaration of title. The defendant Nos.1 and 2 trespassed intro the premises and damaged the premises of the plaintiff. Defendant Nos.4 and 5 are the tenants of the plaintiffs in part of the suit schedule property. Defendant Nos.4 and 5 have also filed another suit O.S.No.5109 of 1990 against the defendant Nos.1 to 3 and the plaintiffs and the suit is also pending. The plaintiffs also filed a suit O.S.No.367 of 1991 for damages and injunctions as they suffered loss. Therefore, the suit was filed for declaration of title and for recovery of possession. First defendant who is none other than the son of the third defendant and the second defendant is the wife of the first defendant filed written statement supporting the case of the third defendant which was pleaded in O.S.No.876 of 1990 about the right, title and interest. It was also further pleaded that the second plaintiff tried to trespass into the property and caused loss of the property. The filing of the suit O.S.2678 of 1990 is without knowledge of the true facts. Therefore, the suit is liable to be dismissed. The third defendant filed a written statement reiterating her contentions in O.S.No.876 of 1990 and setting up title in herself and disputing the gift deed said to have been obtained by the second plaintiff. A perusal of the gift deed relied on by the second plaintiff shows as if the third defendant is his wife and that the property was purchased with the money of her husband and it was conveyed on account of the love and affection. The said gift deed states that the third defendant has executed a General Power of Attorney (GPA) in favour of the second plaintiff and he has executed the gift deed. The G.P.A nor the gift deed are valid. The third defendant also referred to several criminal litigation and also conduct of the plaintiffs. The third defendant therefore pleaded that the suit is bad and not maintainable. The other defendants did not contest the suit. On the basis of the pleadings, the following issues have been framed for trial. 1. Whether the plaintiffs is entitled for declaration as prayed for? 2. Whether the defendant is liable to be evicted as prayed for? 3. To what relief? On behalf of the plaintiffs PWs.1 and 2 are examined and marked Exs.A-1 to A-11. On behalf of the defendants DWs.1 and 2 are examined and marked Exs.B-1 to B-7. After considering the evidence on record, the learned Senior Civil Judge dismissed the suit of the plaintiffs and accordingly the present appeal is filed. C.C.C.A.3 of 2001 The plaintiffs in O.S.No.367 of 1991 are the appellants and the suit was filed on 19-04-1991 by the plaintiffs in O.S.No.1270 of 1993 for damages to a tune of Rs.1,64,250/- against the defendant who is the first defendant in O.S.No.1270 of 1993. Most of the allegations are repetition of the pleadings of the both parties in the earlier suits and the right to damages and the allegations are disputed. On the basis of the above pleadings, the following issues have been framed for trial. 1. Whether the plaintiffs are entitled to the suit amount towards damages? 2. Whether the plaintiffs are entitled for permanent injunction? 3. Whether the defendant was in possession of the suit premises from the beginning? 4. Whether the suit is not maintainable without seeking declaration of title? 5. Whether the plaintiffs are entitled for interest? 6. To what relief? On behalf of the plaintiffs PWs.1 and 2 are examined and marked Exs.A-1 to A-8. On behalf of the defendant DW.1 was examined and Ex.B-1 document got marked. After considering the evidence on record, the learned Senior Civil Judge dismissed the suit of the plaintiffs. Hence the appeal. Transfer C.C.C.ANo.171 of 2003 The defendant in O.S.No.294 of 1997 (old O.S.No.2678 of 1990) is the appellant herein and the suit was filed on 02-07-1990 for permanent injunction against the second plaintiff in O.S.No.367 of 1991 and 1270 of 1993. The allegations in the suit goes to show that as if the defendant was the owner of the property and the plaintiff entered as a tenant and the defendant promised to sell the property and entered into an agreement on 02-01-1985 and as the defendant is trying to cause interference with the possession and enjoyment, the suit was filed. The defendant filed a written statement denying most of the allegations in the plaint and also the alleged agreement of sale and asserting his title to the property. The plaintiff is in unauthorised occupation of the property and caused the damages. The claim for injunction is not tenable. On the basis of the pleadings the following issues have been framed for trial. 1. Whether plaintiff is entitled for the relief of permanent injunction as prayed for? 2. To what relief? On behalf of the plaintiff PW.1 is examined and marked Exs.A-1 to A-5. On behalf of the defendant DW.1 was examined and no documents are marked. After considering the evidence on record, the learned Senior Civil Judge decreed the suit of the plaintiff and aggrieved by the said judgment, the present appeal is filed. The parties are referred to as arrayed in O.S.No.876 of 1990. From the rival contentions, the points that arise for consideration in all the appeals are:- 1. Whether the plaintiff-Sakunthala is the owner of the property? 2. Whether the claim of nominal nature of transaction and the gift deed set up by the first defendant is valid? 3. Whether the judgment and decrees passed by the lower court in all the above appeals are legal and sustainable? POINTS:- The consideration of all these matters depends upon the finding as to whether the suit schedule property belongs to the plaintiff or not. Evidently, the suit schedule property was purchased in the name of the plaintiff under the sale deed Ex.A-1 dated 17-10-1975. It is also not in dispute that the suit schedule property belonged to one S.Venkayya and power of attorney obtained from Venkayya, the sale deed was registered in favour of the plaintiff by the first defendant. It is also not in dispute that the first defendant was an Engineer and by the time the plaintiff came to Hyderabad she was not able to maintain herself. It is also not in dispute that the plaintiff was in the house of the first defendant. The theory developed by both parties is that the plaintiff was working as a cook in the house of the first defendant, but the first defendant being a senior Government employee and also having a living spouse for the reasons best known to him was describing the plaintiff as his wife though she was said to be only a cook in his house. He did not come out with a clear case of his other relationship with the plaintiff. The fact that she was described as his wife is a mis-statement of fact, which was evidently intended to benefit him. According to the case of the plaintiff, she was originally a native of Anantaram of Prakasam District and sold ancestral properties and come to Hyderabad and with that money she has purchased the property. On the other hand, it is evidence of the first defendant that originally the property was sought to be purchased in favour of his niece-Anuradha and an agreement of sale was also entered and thereafter the sale deed was taken in the name of the plaintiff with his own funds. The lower court has considered this aspect and found that his evidence that the property was intended to be purchased in favour of Anuradha and that an agreement was entered into but subsequently the property was registered in the name of the plaintiff cannot be accepted for the reason that there was no other plea in any of the earlier proceedings. There cannot be any dispute about the fact that a person is considered to be the owner of the property in whose name the title deed stands. The theory of benami set up by the first defendant is not open to be considered. So also there is no proof that he has advanced the total money for the purchase, freely and out of love and affection or for any other reason. According to the case of the plaintiff, though some contribution was made by the first defendant it was deducted towards her salary as a “cook” in the house. Therefore, any money even if paid by the first defendant can only be towards the services rendered by the plaintiff. Therefore, it is not open for the first defendant to contend that he is the real owner of the property and that the plaintiff is not the owner. Further more, the first defendant never treated himself as the owner of the property from his own pleadings. The first defendant sets up title in himself by virtue of the gift deed Ex.B-18 said to have been executed by the plaintiff and also Ex.B-1 un-registered G.P.A said to have been given by PW.1. The reliance on these documents clearly goes to show that the first defendant is recognising the plaintiff as the owner of the property and he is not placing himself in the position of the owner of the property. If he is real owner of the property and if the plaintiff is a nominal owner there is no need for him to obtain a gift deed in his favour. Therefore, the first defendant is estopped from contending that the plaintiff is not the owner of the property and the lower court has considered this aspect and also found that the plea of the first defendant is not correct and as such I do not find any reason to hold that the plaintiff is not the owner and the first defendant is the owner of the property. The next question before the court is whether the first defendant has got title to the suit schedule property by virtue of gift deed Ex.B-18. Evidently, this gift deed was executed by the first defendant himself by taking advantage of Ex.B-1 G.P.A. The lower court has found that the G.P.A is not believable. The lower court also found that there is no specific power to gift the property for the G.P.A holder. Added to that it is a peculiar case where the first defendant as a G.P.A holder of the plaintiff conveys the property to himself which is unknown to law. He can not have a dual capacity or role to play. In order to be a valid gift, there should be a donor and donee, two separate entities, and there should be a declaration of gift by one and the acceptance of the same by other party. In this case the donor and donee is the first defendant himself. Such gifts are not valid under law. The learned counsel for the appellant could not show any authority as to the power of the G.P.A holder to gift the property to himself. Evidently, the G.P.A under Ex.B-1 even if believed to be true does not give a right to the agent to act against the interest of the owner of the property. It can only an authority to deal on behalf of the owner and not to destroy her rights. He may sell the property for the benefit of the principal but he cannot transfer the property for his own benefit. Therefore, the title set up by the first defendant under the gift deed-Ex.B-18 is not legal and enforceable. Evidently, the first defendant has adopted all methods to knock off the property and put the plaintiff to sufferance. When once the gift is not valid as contemplated under the provisions of Transfer of Property Act, the first defendant does not get any rights. There is no reason as to why the first defendant should obtain a G.P.A which is unregistered. It may be that the first defendant might have taken advantage of some differences between the plaintiff and her son. The transaction as such does not appear to be true and real. Therefore, I find that the first defendant does not derive any rights under the gift deed and the plaintiff alone is the owner of the property. If once the title of the plaintiff is upheld then all the decrees passed by the lower court in all the connected suits cannot be disturbed and the first defendant or the so- called firm cannot claim any damages. Therefore all the appeals deserve to be dismissed. The points are accordingly answered. In the result, all appeals are dismissed. Each party to bear their own costs. _______________________ N.R.L.NAGESWARA RAO,J 07-04-2011 TSNR