Karnataka High Court
Dr K S Asok S/O Lt K Sheshadri Iyer vs Mr Kumar Doraiswamy Sheshadri Dead By ... on 5 June, 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2025
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
REGULAR FIRST APPEAL NO.509 OF 2009 (PAR)
C/W
REGULAR FIRST APPEAL NO.508 OF 2009 (SP);
REGULAR FIRST APPEAL CROB. NO.5 OF 2011
IN RFA No.509 OF 2009:
BETWEEN:
1. DR. K.S. ASOK
S/O LATE K. SHESHADRI IYER
AGED ABOUT 92 YEARS
SINCE DECEASED
REPRESENTED BY HIS LRs.,
1(a). MRS. RANGANAYAKI ASOK
W/O LATE DR. K.S. ASOK
AGED ABOUT 87 YEARS
2. DR. ARVIND ASOK SHESHADRI
S/O LATE DR. K.S. ASOK
AGED ABOUT 60 YAERS
APPELLANTS NO.1(a) & 2 ARE
PERMANENTLY R/AT. "SHESHAKALPA"
No.7/2(18), 12TH CROSS
8TH MAIN, MALLESHWARAM
BENGALURU-560 003
...APPELLANTS
(BY SRI. S.S. NAGANAND, SENIOR COUNSEL FOR
SRI. P. CHINNAPPA, ADVOCATE)
-
2
AND:
1. K. VINOD KUMAR
S/O LATE KUMAR DORAISWAMY SHESHADRI
AGED ABOUT 41 YEARS
2. K. RAJKUMAR
S/O LATE KUMAR DORAISWAMY SHESHADRI
AGED ABOUT 40 YEARS
3. MR. KUMAR DORAISWAMY SHESHADRI
SINCE DECEASED, BY HIS LRs.,
3(a). SMT. K. RAJESHWARI
W/O LATE KUMAR DORAISWAMY SHESHADRI
AGED ABOUT 79 YEARS
DECEASED R3(a) IS DELETED
BY ORDER DATED 23.08.2023 AND IS
REPRESENTED BY HER LEGAL HEIRS, i.e., R1 & R2
ALL R/AT. "SHIVAALAYA"
OLD DOOR No.25, NEW DOOR No.6
FLAT No. "C", FIRST FLOOR
THIRUVENGADAM STREET
MANDAVELIPAKKAM
CHENNAI-600 028
...RESPONDENTS
(BY SRI. BHARGAV G., ADVOCATE FOR R1 & R2;
SRI. C.N. KESHAVAMURTHY, ADVOCATE FOR R3(a))
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 09.03.2009 PASSED IN
O.S.No.5955/1996 ON THE FILE OF THE I ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE SUIT
FOR PARTITION AND SEPARATE POSSESSION.
IN RFA No.508 OF 2009:
BETWEEN:
1. DR. K.S. ASOK
S/O LATE K. SHESHADRI
AGED ABOUT 92 YEARS
SINCE DECEASED, REPRESENTED BY HIS LRs.,
-
3
1(a). MRS. RANGANAYAKI ASOK
W/O LATE DR. K.S. ASOK
AGED ABOUT 87 YEARS
2 DR. ARAVIND ASOK SHESHADRI
S/O LATE DR. K.S. ASOK
AGED ABOUT 60 YEARS
APPELLANTS NO.1(a) & 2 ARE
PERMANENTLY R/AT. "SHESHAKALPA"
No.7/2(18), 12TH CROSS
8TH MAIN, MALLESHWARAM
BENGALURU-560 003
...APPELLANTS
(BY SRI. S.S. NAGANAND, SENIOR COUNSEL FOR
SRI. P. CHINNAPPA, ADVOCATE)
AND:
1. MR. KUMAR DORAISWAMY SHESHADRI
SINCE DECEASED, REP. BY HIS LRs.,
1(a). SMT. K. RAJESHWARI
W/O LATE KUMAR DORAISWAMY SHESHADRI
AGED ABOUT 79 YEARS
DECEASED R1(a) IS DELETED
BY ORDER DATED 23.08.2023 AND IS
REP. BY HER LEGAL HEIRS, i.e., R1(b) & R1(c)
1(b) K. VINOD KUMAR
S/O LATE KUMAR DORAISWAMY SHESHADRI
AGED ABOUT 41 YEARS
1(c). K. RAJKUMAR
S/O LATE KUMAR DORAISWAMY SHESHADRI
AGED ABOUT 40 YEARS
ALL ARE R/AT. "SHIVAALAYA"
OLD DOOR No.25, NEW DOOR No.6
FLAT No. "C", FIRST FLOOR
-
4
THIRUVENGADAM STREET
MANDAVELIPAKKAM
CHENNAI-600 028
...RESPONDENTS
(BY SRI. H.P. LEELADHAR, ADVOCATE FOR R1(a);
SRI. BHARGAV G., ADVOCATE FOR R1(b) & R1(c))
IN RFA.CROB No.5 OF 2011:
BETWEEN:
1. MR. VINOD KUMAR
S/O LATE KUMAR DORAISWAMY SHESHADRI
AGED ABOUT 28 YEARS
2. MR. K. RAJA KUMAR
S/O LATE KUMAR DORAISWAMY SHESHADRI
AGED ABOUT 27 YEARS
BOTH ARE R/AT No.25
THIRUVENGADAM STREET
MANDAVELI PAKKAM
CHENNAI-600 028
...CROSS OBJECTORS
(BY SRI. BHARGAV G., ADVOCATE)
AND:
1. DR. K.S. ASOK
S/O LATE K. SHESHADRI IYER
AGED ABOUT 80 YEARS
SINCE DECEASED BY HIS LRs.,
1(a) MRS. RANGANAYAKI ASOK
AGED ABOUT 87 YEARS
W/O LATE DR. K.S. ASOK
R/AT "SHESHAKALPA"
No.7/2(18), 12TH CROSS
8TH MAIN, MALLESHWARAM
BENGALURU-560 003
2. DR. ARVIND ASOK SHESHADRI
S/O DR. K.S. ASOK
-
5
AGED ABOUT 45 YEARS
R/AT. "SHESHAKALPA"
No.7/2(18), 12TH CROSS
8TH MAIN, MALLESHWARAM
BENGALURU-560 003
3. MR. KUMAR DORAI SWAMY SHESHADRI
SINCE DECEASED, REP. BY HIS LRs.,
3(a). SMT. K. RAJESHWARI
W/O LATE KUMAR DORAI SWAMY SHESHADRI
AGED ABOUT 65 YEARS
R/AT. "SHIVA NILAYA", OLD DOOR No.25,
NEWDOOR No.5, FLAT No.C
1ST FLOOR, THIRUVENGADAM STREET
MANDAVELI PAKKAM
CHENNAI-600 028
...RESPONDENTS
(BY SRI. S.S. NAGANAND, SENIOR COUNSEL FOR
SRI. P. CHINNAPPA, ADVOCATE FOR R1(a) & R2;
SRI. C.N. KRISHNA MURTHY, ADVOCATE FOR R3(a))
THIS RFA.CROB IS FILED UNDER ORDER 41 RULE 22 R/W
SECTION 151 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 09.03.2009 PASSED IN O.S.No.5955/1996 ON THE FILE
OF THE I ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
DISMISSING THE SUIT FOR THE DECLARATION AND PARTITION
AND SEPARATE POSSESSION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.02.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN
J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
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6
CAV JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)
These Regular First Appeals are filed assailing the
common judgment and decree dated 09.03.2009, passed by
the I Additional City Civil and Sessions Judge, Bengaluru
(hereinafter referred to as 'the Trial Court' for brevity), in
Original Suits No.1696/1996 and 5955/1996. Plaintiffs in
O.S.No.5955/1996 have filed cross objection in RFA
509/2009 assailing the said common judgment.
2. Original Suit No.1696/1996 was filed by
Dr. K. S. Asok and another against K. D. Sheshadri for
specific performance of contract in respect of schedule
property, which is the subject matter of RFA No.508/2009.
3. Original Suit No.5955/1996 was filed by K.
Vinodkumar and another against Dr. K. S. Asok and another
for partition and separate possession of 1/3rd share each in
favour of the plaintiffs and also for declaration that the lease
deed dated 06.02.1975 entered into between defendant
No.3 and defendants No.1 and 2, is null and void, to deliver
the vacant possession of the schedule property and also for
-
accounts, mesne profits, etc, which is the subject matter of
RFA No.509/2009.
4. Heard Shri. S.S. Naganand, learned senior
counsel as instructed by Advocate Shri. P. Chinnappa
appearing for the appellants and Shri Bhargav G, learned
counsel appearing for the respondents and cross objectors.
5. It is submitted that on 24.08.1996, an Original
Suit No.1696/1996 was instituted by plaintiff No.1, Dr.
K.S.Asok and another, against deceased defendant - K. D.
Sheshadri for specific performance of contract in respect of
the property bearing No.7, new No.7/1, 12th Cross Road,
Malleswaram, Bengaluru, within the limits of Division No.3 of
the Corporation of the City of Bengaluru, (hereinafter
referred to as the "schedule property"). It is contended that
the deceased defendant, residing in Bombay, executed a
Power of Attorney in favour of his cousin, J.R. Sheshadri,
authorising him to lease, negotiate sales, and administer his
properties. This Power of Attorney was duly authenticated by
the Sub-Registrar, Bombay. Pursuant to negotiations
finalised in 1973, a registered lease deed dated 06.02.1975
-
was executed by the defendant through his attorney in
favour of the plaintiffs, retrospectively effective from
01.11.1973. The lease was for 98 years and stipulated that
the plaintiffs had paid Rs.50,000/- (Rupees fifty thousand
only) as an interest-free deposit, with an additional clause of
option to purchase the schedule property upon payment of
an additional Rs.50,000/- (Rupees fifty thousand only)
amounting to total sale consideration of Rs.1,00,000/-
(Rupees one lakh only).
6. It is further submitted that, after being put in
possession of the schedule property, the plaintiffs
demolished the existing structures and, at their own cost
and expense in 1975, constructed a bungalow with a total
plinth area of about 4,344 sq.ft., pursuant to a sanctioned
plan in the name of the deceased defendant. Upon
completion of the bungalow, the Assistant Revenue Officer,
North Range of the Corporation of the City of Bangalore,
allotted Municipal No. 7/1A (later changed to 7/2) and
registered it in the name of plaintiff No.1, while the land
measuring 104 x 82 ft. leased to the plaintiffs was allotted
-
the new number 7/1 and the khata of the land was
registered in the name of the deceased defendant.
7. It is stated that by 1981, as per para 2(j) of the
Lease Agreement dated 06.02.1975, the plaintiffs had paid
the remaining ₹50,000/- (Rupees fifty thousand only),
exercising their option to purchase the schedule property,
fulfilling the sale consideration. However, despite repeated
requests and the plaintiffs' consistent readiness and
willingness to perform their part of the contract, the
deceased defendant had subsequently avoided execution
and registration of the sale deed, thereby compelling the
plaintiffs to file O.S.No.1696/1996 for specific performance
of the contract.
8. It is further submitted that the wife and sons of
the deceased defendant, in response to the above stated
suit, instituted O.S.No.5955/1996, contending that, as their
husband/father was permanently residing in Bombay at the
time of executing the lease deed, he granted a power of
attorney to his first cousin, J.R. Sheshadri, residing in
Bengaluru, authorizing him to execute the lease deed on his
-
behalf in favour of the first Plaintiff, but only with certain
limited covenants and for a period of two years. Therefore,
they alleged that the lease deed was void as it was obtained
by fraud and undue influence. Further, they denied receipt of
the consideration and asserted that the deceased defendant
had authorised only a short-term lease. It was further
claimed that the schedule property was ancestral making the
sale impermissible after birth of the deceased defendant's
sons, contending their shares could not be affected.
9. The plaintiffs, in response, maintained that the
property was the absolute property of the deceased
defendant and that the lease deed was executed and
consideration was paid before marriage and birth of the
defendants, and that the suit was collusive. Therefore, the
defendants sought for declaration that the registered lease
deed dated 06.02.1975, executed by the deceased
defendant in favour of the plaintiffs, granting 98 years lease
with an option to purchase for Rs.1 lakh, was null and void,
and further sought partition and separate possession of their
-
alleged 2/3rd share in the suit property along with claiming
award for mesne profits.
10. The suits in O.S.No.5955/1996 and
O.S.No.1696/1996 were considered together, with common
evidence recorded in O.S.No.1696/1996, resulting in a
common judgment dated 09.03.2009. By this judgment, the
trial Court dismissed O.S.No.1696/1996, which sought
specific performance of the agreement to sell the suit
property, and partly decreed O.S.No.5955/1996 by declaring
the document null and void on the grounds that it could not
be construed as an agreement of sale, the option to
purchase was unauthorized, and the lease deed was the
result of fraud and undue influence. However, the Court
rejected the defendants' claims for partition, separate
possession, eviction and mesne profits, holding that the
lease in favour of the plaintiffs had not been terminated and
that no cause for partition had been established.
11. Aggrieved by the common judgment, the
plaintiffs preferred appeals before this Court in RFA
No.508/2009 and RFA No.509/2009. It is further stated that
-
while the defendants, upon being notified of these appeals,
filed a cross-appeal through RFA. CROB No.5/2011,
challenging the adverse findings wherein the defendants'
claim for 1/3rd share each in the suit schedule property and
for separate possession was denied, prompting the plaintiffs
to seek redressal of their grievances through the appellate
process.
12. The learned Senior Counsel appearing for the
appellants/plaintiffs submits that the judgment of the trial
Court is wholly erroneous, contrary to law and facts, and
perverse, as it failed to properly consider the oral evidence
and contradicted itself in several respects, thereby
misinterpreting the documents and pleadings on record. It is
argued that the trial Court committed a grave error in
partially decreeing the suit and declaring the lease deed
dated 06.02.1975 null and void, despite the plaintiffs in
O.S.No.5955/1996 lacking locus standi to challenge the said
lease deed, which was received before the defendants' birth.
13. It is further contended that, as the defendant's
sons were not born at the time of execution of the lease
-
deed and their father, who was a party to the transaction
and alive at the time of suit, never challenged the lease
deed on the grounds of fraud or otherwise, the plaintiffs had
no right to question the transaction or allege fraud. The trial
Court, therefore, erred in entertaining the suit and declaring
the lease deed null and void on the ground of fraud, and
ought to have dismissed the suit as not maintainable.
Additionally, it is contended that the suit for declaration is
barred by limitation, as the lease deed was executed and
registered in 1975, and any suit for cancellation on the
ground of fraud should have been filed within three years of
knowledge thereof; entertaining a suit more than twenty
years after execution and granting a declaration is
impermissible and barred by limitation.
14. It is argued that the trial Court failed to
appreciate that the plea of fraud was vague and
unsubstantiated, with the burden of proving fraud resting on
the defendants, who themselves lacked knowledge of the
transaction's particulars. Furthermore, the trial Court erred
in finding that the claim of plaintiffs was solely based on the
-
lease deed, and was mistaken in its understanding that
reserving an option to purchase does not amount to an
agreement to sell, as there is no legal prohibition against
such an arrangement and the lease deed in question
conferred a right upon the plaintiffs to purchase the
schedule property upon payment of the agreed sale
consideration to be adjusted against the total sale
consideration.
15. It is further argued that the trial Court overlooked
the fact that the deceased defendant never contended
regarding the existence of an agreement to sell. The finding
of the trial Court that the option to purchase was unilaterally
inserted by the attorney is perverse and unsupported by the
record, and its failure to recognise the legal effect of the
option to purchase and the scope of the power of attorney
amounts to a serious misdirection in law.
16. It is further contended that the trial Court erred
to recognise that the burden of proving fraud or undue
influence in the execution of the lease deed rested squarely
on the defendants, who failed to provide credible evidence
-
to substantiate their claims, hence the conclusion of the trial
Court that J.R. Sheshadri was unauthorised to sell the
property or to include the option clause is therefore baseless
and perverse. Furthermore, the trial Court misapplied the
law by improperly interpreting Sections 53-A and 54 of the
Transfer of Property Act, 1882, which do not govern the
validity of an option to purchase reserved in a lease deed,
and failed to recognize the absence of any evidence or
motive suggesting collusion between plaintiffs and J.R.
Sheshadri.
17. Additionally, it is contended that the trial Court
misread the pleadings and evidence, erroneously holding
that the recitals in the lease deed did not correspond with
the plaint. It's finding that the absence of specific dates in
the plaint undermined the plaintiffs' case is unfounded, as
the lease deed unequivocally acknowledges receipt of the
full sale consideration by the deceased defendant.
18. It is contended that the trial Court failed to
properly consider key documentary evidence, including the
draft sale deed and letters from plaintiffs requesting the
-
deceased Defendant to execute the sale deed, and
erroneously held that Rs.50,000/- (Rupees fifty thousand
only) deposit mentioned in the lease deed was not part of
the sale consideration; this finding is contrary to the
evidence on record, particularly, lease deed and receipts and
letters signed by deceased defendant admitting receipt of
the full sale consideration, as well as corroborating passbook
entries and additional receipts. The trial Court further erred
in concluding that the balance sale consideration had not
been paid, disregarding the clear admissions and
documentary proof of full payment by 1981 and the
readiness and willingness of the plaintiffs to complete the
transaction. The finding that the suit for specific
performance could not be decreed under Section 20 of the
Specific Relief Act, 1963, on the ground of no agreement
between the parties, is patently baseless and arbitrary in
light of the evidence. Moreover, the trial Court ought to have
dismissed the defendants' suit for partition as not
maintainable for failure to include all joint family properties,
-
rendering their conduct unjust and unfair, given that the
entire sale consideration had long since been received.
19. In support of his contentions, the learned Senior
Counsel appearing for the appellants has relied upon the
following citations:
• K. Prakash v. B.R. Sampath Kumar, reported in
(2015) 1 SCC 597;
• P. Ramasubbamma v. V. Vijayalakshmi and
Others, reported in (2022) 7 SCC 384;
• P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi
and Another, reported in (2007) 10 SCC 231;
• V. Pechimuthu v. Gowrammal, reported in (2001)
7 SCC 617;
• Electrosteel Castings Limited v. UV Asset
Reconstruction Company Limited and Others,
reported in (2022) 2 SCC 573;
• Sughar Singh v. Hari Singh (dead) through legal
representatives and others reported in (2021) 17
SCC 705, and
• Siddamshetty Infra Projects Pvt. Ltd v. Katta
Sujatha Reddy and others reported in (2024) SCC
Online SC 3214.
-
20. The learned counsel appearing for the
respondents/defendants contended that, while the plaint
merely alleges that the deceased defendant failed to
execute the sale deed, in cross-examination, the
plaintiffs conceded that the deceased defendant had not
issued any written communication concerning the
alleged income tax issues, thereby casting serious doubt
on the veracity of the plaintiffs' claims and suggesting
that such statements were advanced merely to establish
continuous readiness and willingness on their part.
21. Further, it is asserted that the plaintiffs have
presented four distinct and mutually inconsistent
explanations for the delay in execution of the sale deed,
significantly undermining the credibility of their
assertions. Additionally, there is no documentary
evidence or correspondence demonstrating that the
plaintiffs called upon the defendant to execute the sale
deed before 1995, nor does the plaint contain any
explanation for the prolonged inaction or silence
-
regarding the registration of the sale deed between
1981 and 1995.
22. It is contended that there is no averments in
the plaint regarding the existence of a General Power of
Attorney in favour of Sri J.R. Sheshadri, nor does it
reference the execution of the lease deed by the said
General Power of Attorney holder, thereby rendering
such documents inadmissible for consideration. The
execution of the lease deed is further alleged to be
vitiated by undue influence, as J.R. Sheshadri had
obtained a loan from the State Bank of Mysore for which
the plaintiffs acted as guarantor, and the payment
under the transaction was made directly to J.R.
Sheshadri, casting doubt on the legitimacy of the
transaction. Moreover, the General Power of Attorney
itself is questionable, as pages 1 and 2 lack the
signature of the deceased defendant, and the presence
of an unsigned inter-lineation further undermines its
reliability.
-
23. Furthermore, it is averred that the lease deed
confers upon the plaintiffs an option to purchase the
schedule property at any time before expiration of the
lease term for Rs.1,00,000/- (Rupees one lakh only), a
stipulation highly prejudicial to the deceased defendant
as it deprives him of the benefit of potential
appreciation in the schedule property's value.
Significantly, the plaintiffs have acknowledged the
schedule property's value was approximately
Rs.1,20,000/- (Rupees one lakh twenty thousand only)
at the relevant time, yet no explanation is offered as to
why the deceased defendant would agree to sell at a
discounted rate of Rs.1,00,000/- (Rupees one lakh
only). The consideration was received by the General
Power Attorney holder, who was directly involved in the
transaction, but the plaintiffs failed to examine him as a
witness, further casting serious doubt on the veracity
and completeness of their claim.
-
24. In support of his contentions the learned counsel
for the respondents has relied upon the following citations:
• Union of India and Another v. Bhavnagar Salt
and Industrial Works (P) Ltd., reported in 1988
(Supp) SCC 713;
• Pioneer Urban Land and Infrastructure
Limited v. Govindan Raghavan, reported in
(2019) 5 SCC 725;
• Pomal Kanji Govindji and Others v. Vrajlal
Karsandas Purohit and Others, reported in
(1989)1 SCC 458;
• Pydi Ramana alias Ramulu v. Davarasety
Manmadha Rao, reported in (2024) 7 SCC 515;
• Joseph John Peter Sandy v. Veronica Thomas
Rajkumar and Another, reported in (2013) 3
SCC 801;
• Urvashi Aggarwal (since deceased) through
Legal Representatives and Another v. Kushagr
Ansal (Successor-in-interest of erstwhile
defendant 1 Suraj Kumari) and Others,
reported in (2020) 17 SCC 774;
• Gangamma and Others v. Shivalingaiah,
reported in (2005) 9 SCC 359;
• Harendra Rai v. State of Bihar and Others,
reported in (2023) 13 SCC 563;
-
• Manjunath Anandappa urf Shivappa Hanasi v.
Tammanasa and Others, reported in (2003) 10
SCC 390;
• K.S. Vidyanandam and Others v. Vairavan,
reported in (1997) 3 SCC 1;
• K. Narendra v. Riviera Apartments (P) Ltd.,
reported in (1999) 5 SCC 77; and
• D.R. Rathna Murthy v. Ramappa, reported in
(2011) 1 SCC 158.
25. The learned counsel for the cross objector
contends that the judgment and decree of the trial
Court not granting partition and separate possession is
illegal, contrary to law, and rendered without proper
application of mind to the facts, circumstances, and
materials on record, warranting reversal and setting
aside. It is further argued that the trial Court, while
concluding issues No.1 to 4 in the negative and issues
No.5 to 8 in the affirmative in favour of deceased
defendant, failed to appreciate the landlord-tenant
relationship between plaintiffs and the deceased, as well
as the plaintiffs' status as coparceners each entitled to a
-
1/3rd share with deceased defendant. The trial Court
also neglected to consider that, following the demise of
their father; the defendant's sons became only formal
and nominal parties, that the suit schedule property is
ancestral and the declaration that the lease deed is null
and void and not binding on the plaintiffs. Furthermore,
it is contended that the trial Court overlooked the fact
that plaintiffs never disputed the defendants' share or
their claim to the property, and erred in holding that the
defendants failed to issue notice under Section 106 of
the Transfer of Property Act, 1882 and that termination
of tenancy by any coparcener is legal and binding.
26. In view of the rival contentions urged by both the
counsel appearing for the parties, the following points arise
for our consideration:-
1. Whether the trial Court is justified in
dismissing the suit O.S.No.1696/1996
filed by the plaintiffs for the relief of
specific performance of the contract?
-
2. Whether the trial Court is justified in
partly decreeing the suit
O.S.No.5955/1996 filed by the
plaintiffs for the relief of Partition and
Separate Possession?
3. Whether the trial Court is justified in
rejecting the claim of the plaintiffs in
O.S.No.5955/1996 with regard to
accounts and mesne profits?
27. The first suit is filed seeking the relief of specific
performance of an agreement dated 06.02.1975. It is the
specific contention of the plaintiffs that the agreement in
question is a Lease Deed containing an option to the lessee
to purchase the property on payment of the agreed
consideration. It is specifically contended that till the agreed
consideration was fully paid in the year 1981, rent was
continued to be paid to the lessor. Thereafter, it appears
that requests were made for executing the Sale Deed which
was not done by the lessor. It is contended that it is due to
the close familial relationship between the parties and the
fact that the appellants were actually staying in the house
-
constructed by them in the property as agreed between the
parties that no steps were taken to enforce the agreement
at that point of time.
28. It is specifically pleaded that when the defendant
came down to Bengaluru in November, 1995 and did not
execute the Sale Deed as mutually agreed, the cause of
action arose. Thereafter, a legal notice requiring the
execution of the Sale Deed was sent by the plaintiffs. The
reply notice (Ex.P27) issued by the defendant is very
pertinent, which reads as follows:-
" Sir,
Your notice dt. 5-1-96 issued on behalf of your
clients, Dr.K.S.Asok son of the Late K.Seshadri Iyer, and
Sri. Aravind Asok Seshadri son of Dr.K.S.Asok, residing
at 'Seshakalpa' No.7/2(18), 12th cross, 8th Main,
Malleswaram, Bangalore 560003, to our client Sri. Kumar
D.Seshadri, No.25, Thiruvenkadam Street,
Mandavelipakkam, Madras 600028, was handed over to
us with instructions to reply as under;
Our client denies all the allegations made in your
notice under reply and puts your clients to strict proof of
the same. Our client states that it is true that a
Registered lease agreement was entered into between
the power of attorney holder of our client and your
clients and according to the said agreement, your clients
have to pay a monthly rent of Rs.100/- to our client. Our
client states that your clients have not paid any amount
by way of rent from the date of the said lease agreement
and the same was demanded for by our client orally on a
number of occasions. Since there was good relationship
between our client and your clients, our client made oral
requests for the said sum, but the said rent was never
-
paid by your clients. Hence, on that ground, your clients
have to vacate the premises and handover the same to
our client.
Further our client states that as per the agreement
your clients have to pay a sum of Rs.1 lakh to invoke the
clause relating to the sale of the property. According to
the said agreement, your clients have paid only a sum of
Rs.50,000/-and the balance of Rs.50,000/- was not paid
till date. Our client also denies receipt of any other
payment from your clients towards any account.
Our client further states that he had never
promised your clients that he was ready for the
Registration of the sale deed on 8-11-1995. Our client
states that his wife, Mrs. Raji, wrote a letter dt.
15.12.1995 to Mrs. Baby wife of K.S.Asok stating that
the above said rent was not paid and the balance of
amount of Rs. 50,000/- also was not paid. It is only after
receipt of the said letter your clients have approached
you to issue the notice under reply to our client.
Our clients further state that the above said lease
agreement was entered on 6-2-1975 between your
clients and the power of attorney holder of our client, but
your clients have approached you only in 1996, after a
long lapse of 21 years, for issue of the legal notice under
reply. That itself shows that your clients have no right
whatever over the property in question. Further your
clients contention that your clients will go for specific
performance before a Court of law, is also barred by
time.
Hence, you may advise your clients not to resort
to any legal course and inspite of this, if your clients
proceed to take any such action, the same will be
defended by our clients at the cost and risk of your
clients.
Yours faithfully,
Sd/- " (emphasis supplied)
29. It is therefore clear that the defendant at that
time did not have a case that he had not executed a General
Power of Attorney in favour of J.R. Sheshadri or that there
-
was no agreement between the parties for sale of the
property in question. The only contention was with regard to
the non-payment of rent as agreed by the plaintiffs. It is in
the light of this reply that the contentions have to be tested.
In the Written Statement filed in O.S.No.1696/1996, the
defendant contends as follows:-
"WRITTEN STATEMENT OF DEFENDANT
xxxxx
2) The averments in paragraph 3 of the plaint are
untrue and misleading. As mentioned earlier, the
first plaintiff who is the first cousin of the
defendant practiced fraud and undue influence
over the defendant and made the defendant
execute the lease deed
containing unfair, unconscionable, unenforceable
and unlawful terms and conditions, which were not
agreed to by the defendant. Even though the lease
deed states that the defendant paid a sum of
Rs.50,000/- in two installments of Rs.25,000/-
each, the plaintiffs have not paid any such a
deposit amount to the defendant. The clause in
the lease deed giving an option to the plaintiffs to
purchase the suit property for a sum of
Rs.1,00,000/- is unenforceable and unlawful and
the said clause is totally null and void. At the time
the lease deed was executed, the defendant was
permanently residing at Bombay. The defendant
gave power to his first cousin, J.R. Sheshadri living
-
in Bangalore to execute a lease deed with certain
limited covenants for a period of 2 years only in
favour of the first plaintiff on his behalf. The
defendant never authorized or empowered the
said J.R. Sheshadri to execute the lease deed with
these unfair, unconscionable and unenforceable
conditions mentioned in the lease deed, relied on
by the plaintiffs in the suit. In any event, the
defendant did not authorize to said J.R. Sheshadri
to execute the lease for a period of 98 years or
agree for clause giving option to the plaintiffs to
purchase the property for a sum of Rs.1,00,000/-
(Rupees One Lakh). The agent had no authority to
do so. He colluded with first the plaintiff
fraudulently with view to depriving the defendant
of his property. Hence, the defendant is not liable
to comply with lease the deed as it is
unauthorized, and, hence, a nullity. The clause in
the lease deed reserving an option to the plaintiff
to buy the suit schedule property for a sum of
Rs.1.00,000/ on the condition that the plaintiff
shall pay the balance of Rs.50,000/ is null and
void and unenforceable in law on the facts and
circumstances of the case.
5) The Defendant denies the allegations and the
averments contained paragraph 6 of the plaint.
The defendant never asked the plaintiffs to
prepare any draft sale deed. The draft sale deed
was prepared by the first plaintiff on his own
inspite of objections by the defendant. When the
plaintiffs asked the defendant in October 1995 to
-
execute the sale deed, the defendant rejected and
repudiated their claim stating that the plaintiffs
have no right to buy the property and the
defendant is not liable to sell the property to
them. The averments of the plaintiffs that the
defendant corrected the draft sale deed and gave
it back to the plaintiffs for their approval is totally
false. The defendant rejected and repudiated the
draft sale deed to the plaintiffs. The defendant
returned the draft sale deed to the plaintiffs
scoring it a cross thereby expressing his
disapproval and denial to the unreasonable
demand of the plaintiffs to execute the sale deed.
The defendant never assured the plaintiffs that he
would come over to Bangalore on 8th November
1995 positively and execute a registered sale deed
in their favour. As a matter of fact the defendant
has definitely expressed to the plaintiffs that he
would not execute any sale deed in their favour,
while rejecting and returning the draft sale deed
prepared by plaintiffs."
30. Upon examination of the documentary evidence
placed on record, it is observed that paragraph No.2 at page
No.3 of the Lease Deed records the payment of Rs.25,000/-
on 01.11.1973, while Ex.P16 substantiates a further
payment of Rs.25,000/- by way of cheque dated
06.02.1975, thus conclusively establishing that the plaintiffs
-
have furnished a total deposit of Rs.50,000/- as an interest-
free security. Additionally, Ex.P27, the reply issued by the
defendant's counsel to the plaintiff's counsel admits the
receipt of Rs.50,000/- out of the agreed sum of
Rs.1,00,000/-; thus, the dispute pertains only to the
remaining sum of Rs.50,000/- of the sale consideration. It
is further noted that, subsequent to the deposit and
execution of the lease deed, the plaintiffs constructed a
bungalow on the scheduled property in 1975, with the
intention to purchase it, which construction was permitted
by the deceased defendant in furtherance of the
understanding and agreement between the parties as set
out in Clause 5 of the lease agreement.
31. Further, Ex.P4 establishes the realisation and
encashment of a cheque for Rs.25,000/- issued by the
plaintiffs in favour of J.R. Seshadri on 29.05.1975. Ex.P6
reflects a series of payments made by the plaintiffs
specifically Rs.5,000/- on 17.03.1977; Rs.5,000/- on
18.11.1976; Rs.3,500/- on 07.05.1977; Rs.5,000/- on
03.04.1977 and Rs.4,000/- on 16.04.1977, all by cheques,
-
with these transactions duly reflected in Ex.P16, which also
acknowledges the deceased defendant's receipt of varying
amounts by cash and cheque on different dates, and it is
recited therein that a total sum of Rs.1,00,000/- has been
paid by the plaintiffs. Notably, Ex.P16 and Ex.P17, being
receipts and letters signed by the deceased defendant,
admitted the receipt of further sale consideration and
express agreement to execute the lease deed, which is
corroborated by entries in the pass books from Ex.P6 to P9,
as well as by Ex.P31 and Ex.P33, the latter being a receipt
for Rs.9,000/- signed by the deceased defendant
acknowledging receipt of additional amounts after the initial
deposit of Rs.50,000/-. Furthermore, Ex.P18, a letter
prepared by the plaintiffs in favour of the defendant and
attested by witnesses, confirms that the total amount of
Rs.1,00,000/- was paid between 1973 and 1981. Having
regard to the entirety of the aforesaid material placed on
record, it is evident that the entire sale consideration of
Rs.1,00,000/- has been paid by the plaintiffs to the
-
deceased defendant, either directly or through his duly
authorised attorney, as and when required.
32. Ex.P20 is a draft sale deed which the plaintiffs
claimed was approved by the defendant. The defendant
denied the approval of Ex.P20 by him. Even so, the evidence
on record did prove the payment of the entire agreed sale
consideration. We are therefore of the opinion that the trial
Court erred in discarding the evidence which had not been
discredited to show that the entire sale consideration stood
paid between 1973 and 1981.
33. Having considered the contentions advanced, we
notice that the first reply notice issued by the defendant at
Ex.P27 reveals that he had no case at the relevant time that
he had not executed the agreement in question or the
General Power of Attorney, which is relied on. He also did
not have a case that he had not entrusted Shri J.R.
Sheshadri to collect rents on his behalf. In the written
statement filed by K.D. Sheshadri in the first suit as well,
there is no repudiation of the power of attorney executed by
-
him in favour of J.R. Sheshadri. The contention is only to
the effect that there was no authorisation to enter into a
perpetual lease or a lease with a condition for purchase. It
appears that those contentions have been raised as an
afterthought. As a matter of fact, the General Power of
Attorney specifically empowers the sale of the property
Clause-7 of Ex.P29 reads as follows:-
"7. To negotiate, fix the price, sell or lease the
lands and buildings in one lot or separately upon such
terms and conditions that he may deem fit, receive the
sale proceeds or lease rents and give effectual receipts
thereof and to execute and sign such sale deeds or lease
deeds and get them Registered and ...or their purposes."
34. The contention that the first page of Ex.P29 does
not bear the signature of the Principal is also not tenable, in
view of the fact that it is a registered document and the last
page, which admittedly bears the signature, mentions
corrections and interlineations in the first page as well.
Further, the fact that the execution of the very same
General Power of Attorney had been admitted by the
Principal himself in other proceedings was not considered by
the trial Court.
-
35. Though specific pleadings had been raised with
regard to the payment of Rs.50,000/- at the time of
execution of the Lease Deed and a further amount of
Rs.50,000/- thereafter and receipts were produced, the
evidence was discarded by the trial Court without any
justification. The documents relied on by the appellants
would also lend credence to the case set up by the
appellants and justify their plea for relief of specific
performance. It is nobody's case that possession had not
passed or that the construction in question was not put up
by the plaintiffs in the suit for specific performance. It is
also not the contention of the defendant that he had at any
time, sought the termination of the lease on tendering the
value of the construction made.
36. The admitted facts of the case are that the
plaintiffs in O.S.No.1696/1996, the original defendant
therein and the GPA holder belong to the same family and
are related to one another. The defendant K.D. Sheshadri
was a bachelor at the time the lease deed was entered into.
The property was in the possession of the plaintiff and he
-
had demolished the existing structure and constructed a
new building after obtaining the necessary permission from
the competent authority. The power of attorney was a
General Power of Attorney which had been utilized for
several transactions and it specifically empowered
negotiations and sale of property as well as the power to
collect rents and other considerations. The plaintiff had
produced evidence of acceptance of the entire consideration
of Rs.1 lakh by the defendant and the agent, J.R. Sheshadri
as well as the payment of rent until the sale consideration
was paid. Though fraud and undue influence was pleaded
by the defendant, the agent was not sought to be impleaded
even in the second suit filed by the sons of the original
defendant. No particulars of the fraud had been mentioned
in the pleadings.
37. In the above factual circumstances, we are of the
opinion that the finding of the trial Court that the relief of
specific performance could not have been granted was not
proper and perverse in the facts and circumstances of the
instant case. We are of the opinion that from the materials
-
on record and the admissions made by the defendant, the
trial Court ought to have found that there was a valid lease
deed between the parties with an option for purchase of the
property in which, the residential house was admittedly
constructed by the appellants. In the said factual scenario,
we are of the opinion that the plaintiff had succeeded in
proving that he had exercised the option for purchase of the
property and had paid the consideration in full to the agent
of the defendant. We are also of the opinion that the
contention of the defendant that non-examination of the
agent was fatal to the case of the plaintiffs cannot be
accepted, since once the agency is not disputed, the
payment to the agent would tantamount to payment to the
principal.
38. In the said circumstances, we are of the opinion
that the appeal in RFA No.508/2009 filed by the Landlord
under Section 96 of CPC, is liable to succeed.
39. From the evidence and the materials on record,
we are of the opinion that the second suit that is
O.S.No.5955/1996 could not succeed for several reasons. It
-
is an admitted fact that Shri. K.D. Sheshadri was the sole
owner of the property at the time when he entered into the
Lease Deed dated 06.02.1975. He was unmarried at the
relevant time. The contention that a Lease Deed with an
option to purchase the property on payment of an agreed
amount is unconscionable or is null and void cannot be
accepted since the sole owner of the property at the relevant
time has neither repudiated the General Power of Attorney
executed by him or succeeded in proving that the amounts
mentioned in the Lease Deed had not been paid to him.
Having executed a General Power of Attorney which gave
the agent the right "to negotiate, fix the price, sell or lease
the lands and buildings in one lot or separately" and having
admitted and relied on the said General Power of Attorney in
other proceedings, it was not open to the defendant or his
successors-in-interest to contend that such an agreement
with an option to purchase was unconscionable. Further, the
sons of K.D. Sheshadri who were plaintiffs in
O.S.No.5955/1966 could also not have claimed partition and
separate possession of the property which was subject
-
matter of the Lease Deed dated 06.02.1975, in view of the
fact that the sole owner of the property at the relevant time
had, through his duly constituted agent, entered into the
Lease Deed with an option for purchase by the lessees. It is
an admitted case that possession of the property had been
handed over to the lessees and that they had carried out the
construction thereon in accordance with the agreement. In
view of the evidence on record, the trial Court erred in
finding that the payment of the entire consideration had not
been made by the plaintiffs. We are therefore of the opinion
that the finding entered by the trial Court that the document
which provided an option for purchase of the property by the
lessee was null and void is not justified in view of the
pleadings and the evidence let-in. In the above
circumstances, the further prayers in O.S.No.5955/1996
also could not have been granted.
40. In the above factual circumstances, we are of the
opinion that the appellants are entitled to succeed in these
appeals. Accordingly:-
(i) RFA No.509/2009 c/w. RFA No.508/2009
are allowed;
-
(ii) The impugned common judgment and
decree dated 09.03.2009 passed by the
trial Court in Original Suits No.1696/1996
and 5955/1996, is hereby set aside;
(iii) O.S.No.1696/1996 is allowed. There shall
be a decree of specific performance of
contract entered into between plaintiffs and
defendant on 06.02.1975. The defendant
shall execute and register the Sale Deed
pertaining to the schedule property in
accordance with the agreement dated
06.02.1975 within a period of four months,
failing which, the plaintiffs are at liberty to
get the sale deed executed through Court,
in accordance with law.
(iv) O.S.No.5955/1996 shall stand dismissed.
(v) RFA.CROB. No.5/2011 fails and the same
is accordingly dismissed.
The parties shall bear their own costs.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
cp*
