Dr K S Asok S/O Late K Sheshadri Iyer Vs K Vinod Kumar

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

¶24

ALL R/AT. "SHIVAALAYA" OLD DOOR No.25, NEW DOOR No.6 FLAT No. "C", FIRST FLOOR THIRUVENGADAM STREET MANDAVELIPAKKAM CHENNAI-600 028

¶25

…RESPONDENTS

¶26

(BY SRI. BHARGAV G., ADVOCATE FOR R1 & R2; SRI. C.N. KESHAVAMURTHY, ADVOCATE FOR R3(a))

¶27

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.

¶28

IN RFA No.508 OF 2009: BETWEEN:

¶29

1 . DR. K.S. ASOK

¶30

S/O LATE K. SHESHADRI AGED ABOUT 92 YEARS

¶31

SINCE DECEASED, REPRESENTED BY HIS LRs.,

¶32

¶33

3

¶34

1(a). MRS. RANGANAYAKI ASOK W/O LATE DR. K.S. ASOK AGED ABOUT 87 YEARS

¶35

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), 12^TH CROSS 8^TH MAIN, MALLESHWARAM BENGALURU-560 003

¶36

...APPELLANTS

¶37

(BY SRI. S.S. NAGANAND, SENIOR COUNSEL FOR SRI. P. CHINNAPPA, ADVOCATE)

¶38

AND:

¶39

1 . MR. KUMAR DORAISWAMY SHESHADRI SINCE DECEASED, REP. BY HIS LRs.,

¶40

1(a). SMT. K. RAJESHWARI W/O LATE KUMAR DORAISWAMY SHESHADRI AGED ABOUT 79 YEARS

¶41

DECEASED R1(a) IS DELETED BY ORDER DATED 23.08.2023 AND IS REP. BY HER LEGAL HEIRS, i.e., R1(b) & R1(c)

¶42

1(b) K. VINOD KUMAR S/O LATE KUMAR DORAISWAMY SHESHADRI AGED ABOUT 41 YEARS

¶43

1(c). K. RAJKUMAR

¶44

S/O LATE KUMAR DORAISWAMY SHESHADRI AGED ABOUT 40 YEARS

¶45

ALL ARE R/AT. "SHIVAALAYA" OLD DOOR No.25, NEW DOOR No.6 FLAT No. "C", FIRST FLOOR

¶46

¶47

4

¶48

THIRUVENGADAM STREET MANDAVELIPAKKAM, CHENNAI-600 028

¶49

…RESPONDENTS

¶50

(BY SRI. H.P. LEELADHAR, ADVOCATE FOR R1(a); SRI. BHARGAV G., ADVOCATE FOR R1(b) & R1(c))

¶51

THIS RFA IS FILED U/S 96 OF CPC, AGAINSST THE JUDGMENT AND DECREE DATED 09.03.2009 PASSED IN OS.No.1696/1996 ON THE FILE OF THE I ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT .

¶52

IN RFA.CROB No.5 OF 2011: BETWEEN:

¶53

1 . MR. VINOD KUMAR

¶54

S/O LATE KUMAR DORAISWAMY SHESHADRI AGED ABOUT 28 YEARS

¶55

2 . MR. K. RAJA KUMAR S/O LATE KUMAR DORAISWAMY SHESHADRI AGED ABOUT 27 YEARS

¶56

BOTH ARE R/AT No.25, THIRUVENGADAM STREET MANDAVELI PAKKAM, CHENNAI-600 028

¶57

...CROSS OBJECTORS

¶58

(BY SRI. BHARGAV G., ADVOCATE)

¶59

AND:

¶60

1 . DR. K.S. ASOK S/O LATE K. SHESHADRI IYER

¶61

AGED ABOUT 80 YEARS

¶62

SINCE DECEASED BY HIS LRs.,

¶63

1(a) MRS. RANGANAYAKI ASOK AGED ABOUT 87 YEARS W/O LATE DR. K.S. ASOK R/AT "SHESHAKALPA", No.7/2(18), 12^TH CROSS, 8^TH MAIN MALLESHWARAM, BENGALURU-560 003

¶64

2 . DR. ARVIND ASOK SHESHADRI S/O DR. K.S. ASOK

¶65

Corrected and Retyped vide Chambers order dated 19.07.2025

¶66

¶67

5

¶68

AGED ABOUT 45 YEARS R/AT. "SHESHAKALPA" No.7/2(18), 12^TH CROSS 8^TH MAIN, MALLESHWARAM BENGALURU-560 003

¶69

3 . MR. KUMAR DORAI SWAMY SHESHADRI SINCE DECEASED, REP. BY HIS LRs.,

¶70

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 1^ST FLOOR, THIRUVENGADAM STREET MANDAVELI PAKKAM CHENNAI-600 028

¶71

...RESPONDENTS

¶72

(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))

¶73

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.

¶74

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:

¶75

CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and

¶76

HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

6

CAV JUDGMENT

(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

¶81

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.

¶82

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.

¶83

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 1/3^rd 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

¶84

¶85

7

¶86

accounts, mesne profits, etc, which is the subject matter of RFA No.509/2009.

¶87

Heard Shri. S.S. Naganand, learned senior

¶88

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.

¶89

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, 12^th 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

¶90

¶91

8

¶92

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).

¶93

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

¶94

¶95

9

¶96

the new number 7/1 and the khata of the land was registered in the name of the deceased defendant.

¶97

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.

¶98

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

¶99

¶100

10

¶101

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.

¶102

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

¶103

¶104

11

¶105

alleged 2/3^rd share in the suit property along with claiming award for mesne profits.

¶106

The suits in O.S.No.5955/1996 and

¶107

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.

¶108

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

¶109

¶110

12

¶111

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 1/3^rd 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.

¶112

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.

¶113

It is further contended that, as the defendant's sons were not born at the time of execution of the lease

¶114

¶115

13

¶116

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.

¶117

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

¶118

¶119

14

¶120

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.

¶121

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.

¶122

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

¶123

¶124

15

¶125

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.

¶126

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.

¶127

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

¶128

¶129

16

¶130

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,

¶131

¶132

17

¶133

rendering their conduct unjust and unfair, given that the entire sale consideration had long since been received.

¶134

In support of his contentions, the learned Senior

¶135

Counsel appearing for the appellants has relied upon the following citations:

¶136

K. Prakash v. B.R. Sampath Kumar , reported in (2015) 1 SCC 597 ;

¶137

P. Ramasubbamma v. V. Vijayalakshmi and Others , reported in (2022) 7 SCC 384 ;

¶138

P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi and Another , reported in (2007) 10 SCC 231 ;

¶139

V. Pechimuthu v. Gowrammal , reported in (2001) 7 SCC 617 ;

¶140

Electrosteel Castings Limited v. UV Asset Reconstruction Company Limited and Others , reported in (2022) 2 SCC 573 ;

¶141

Sughar Singh v. Hari Singh (dead) through legal representatives and others reported in (2021) 17 SCC 705, and

¶142

Siddamshetty Infra Projects Pvt. Ltd v. Katta Sujatha Reddy and others reported in (2024) SCC Online SC 3214.

¶143

¶144

18

¶145

The learned counsel appearing for the

¶146

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.

¶147

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

¶148

¶149

19

¶150

regarding the registration of the sale deed between 1981 and 1995.

¶151

It is contended that there is no averments in

¶152

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.

¶153

¶154

20

¶155

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.

¶156

¶157

21

¶158

In support of his contentions the learned counsel for the respondents has relied upon the following citations:

¶159

Union of India and Another v. Bhavnagar Salt and Industrial Works (P) Ltd. , reported in 1988 (Supp) SCC 713 ;

¶160

Pioneer Urban Land and Infrastructure Limited v. Govindan Raghavan , reported in (2019) 5 SCC 725 ;

¶161

Pomal Kanji Govindji and Others v. Vrajlal Karsandas Purohit and Others , reported in (1989)1 SCC 458 ;

¶162

Pydi Ramana alias Ramulu v. Davarasety Manmadha Rao , reported in (2024) 7 SCC 515 ;

¶163

Joseph John Peter Sandy v. Veronica Thomas Rajkumar and Another , reported in (2013) 3 SCC 801 ;

¶164

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 ;

¶165

Gangamma and Others v. Shivalingaiah , reported in (2005) 9 SCC 359 ;

¶166

Harendra Rai v. State of Bihar and Others , reported in (2023) 13 SCC 563 ;

¶167

¶168

22

¶169

Manjunath Anandappa urf Shivappa Hanasi v. Tammanasa and Others , reported in (2003) 10 SCC 390 ;

¶170

K.S. Vidyanandam and Others v. Vairavan , reported in (1997) 3 SCC 1 ;

¶171

K. Narendra v. Riviera Apartments (P) Ltd. , reported in (1999) 5 SCC 77 ; and

¶172

D.R. Rathna Murthy v. Ramappa , reported in (2011) 1 SCC 158 .

¶173

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

¶174

as the plaintiffs’ status as coparceners each entitled to a

¶175

¶176

23

¶177

1/3^rd 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.

¶178

In view of the rival contentions urged by both the

¶179

counsel appearing for the parties, the following points arise for our consideration:-

¶180

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?

¶181

¶182

24

¶183

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?

¶184

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?

¶185

The first suit is filed seeking the relief of specific

¶186

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

¶187

¶188

25

¶189

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.

¶190

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:-

¶191

" Sir,

¶192

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), 12^th cross, 8^th 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;

¶193

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

¶194

¶195

26

¶196

paid by your clients. Hence, on that ground, your clients have to vacate the premises and handover the same to our client.

¶197

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.

¶198

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.

¶199

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.

¶200

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.

¶201

Yours faithfully, Sd/- " (emphasis supplied)

¶202

It is therefore clear that the defendant at that

¶203

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

¶204

¶205

27

¶206

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

¶207

defendant contends as follows:-

¶208

"WRITTEN STATEMENT OF DEFENDANT

¶209

x x x x x

¶210

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

¶211

¶212

28

¶213

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.

¶214

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

¶215

¶216

29

¶217

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 8^th 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."

¶218

Upon examination of the documentary evidence

¶219

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

¶220

¶221

30

¶222

have furnished a total deposit of Rs.50,000/- as an interestfree 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.

¶223

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,

¶224

¶225

31

¶226

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

¶227

¶228

32

¶229

deceased defendant, either directly or through his duly authorised attorney, as and when required.

¶230

Ex.P20 is a draft sale deed which the plaintiffs

¶231

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.

¶232

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

¶233

¶234

33

¶235

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:-

¶236

"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."

¶237

The contention that the first page of Ex.P29 does

¶238

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.

¶239

¶240

34

¶241

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.

¶242

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

¶243

¶244

35

¶245

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.

¶246

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

¶247

¶248

36

¶249

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.

¶250

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.

¶251

From the evidence and the materials on record,

¶252

we are of the opinion that the second suit that is O.S.No.5955/1996 could not succeed for several reasons. It

¶253

¶254

37

¶255

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

¶256

¶257

38

¶258

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.

¶259

In the above factual circumstances, we are of the opinion that the appellants are entitled to succeed in these appeals. Accordingly:-

¶260

(i) RFA No.509/2009 c/w. RFA No.508/2009 are allowed ;

¶261

¶262

39

¶263

(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;

¶264

(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.

¶265

(iv) O.S.No.5955/1996 shall stand dismissed.

¶266

(v) RFA.CROB. No.5/2011 fails and the same is accordingly dismissed .

¶267

The parties shall bear their own costs.

¶268

Sd/(ANU SIVARAMAN) JUDGE

¶269

Sd/(VIJAYKUMAR A. PATIL) JUDGE

¶270

cp*

Dr K S Asok S/O Late K Sheshadri Iyer v. K Vinod Kumar

Case brief

What is this about?

What did the court decide?

Dr K S Asok S/O Late K Sheshadri Iyer v. K Vinod Kumar

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Dr H L Vishwanath Vs the Bangalore Medical College

M/S Naveen Hotels Ltd. Vs Canara Bank

C.Srinath Vs D.K.Suresh Babu

Sri Sheena Poojary Vs Smt Kamala Poojarthi

Smt.Kusuma G K Vs the State of Karnataka

Ms Pegah Zangeneh Naseri Vs the State of Karnataka