Bangalore District Court
O.S./3373/2019 on 15 April, 2023
/ 1 / O.S.No.3373/2019
KABC010148042019
THE COURT OF XXXIX ADDITIONAL CITY CIVIL & SESSIONS
JUDGE, (CCH-40), BANGALORE CITY.
Dated 15th day of April, 2023.
PRESENT
YASHAWANT R TAWARE,
B.Sc., LL.B.,(Spl.),
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO.3373/2019
Plaintiffs :
1. Sri.Ravindra R.Naik S/o. Late
G.Ramachandra Nayak, 52 Years,
R/o.No.F-103, Kanksha Ascent
Apartment, No.132, Road No.4,
Defence Layout, Vidyaranyapura,
Bangalore North, Bengaluru - 560 097.
2. Sri.Vijayendra R.Nayak S/o. Late
G.Ramachandra Nayak, 51 Years,
R/o.No.46/1, 1st Cross, KSRTC Layout, 2nd
Phase, J.P.Nagar, Bengaluru - 560 078.
[By Sri.Manjunatha.B., Advocate]
/ VERSUS /
/ 2 / O.S.No.3373/2019
Defendant :
Sri.Gujjadi Narendra Nayak S/o. Late
G.Ramachandra Nayak, 46 Years, No.666,
15th Main, 38th Cross Road, 4th T Block,
Jayanagar, Bengaluru - 560 041.
[By Sri.U.R.Nayak, Advocate]
Date of Institution of the
: 27.04.2019
suit
Suit for partition and
Nature of suit : separate possession and
permanent injunction
Date of commencement of
evidence : 21.06.2022
Date on which the
judgment is pronounced : 15.04.2023
Duration taken for Years Months Days
:
disposal 03 11 18
JUDGMENT
The plaintiffs have filed this suit seeking partition and separate possession of their alleged 1/3rd share each in the plaint schedule property by metes and bounds and also sought the relief of permanent injunction restraining the defendant or any person claiming through said defendant from interfering with plaintiffs' joint possession and enjoyment of the schedule property and also for holding enquiry as regards the mesne / 3 / O.S.No.3373/2019 profits as contemplated under Order XX Rule 12 of C.P.C. in respect of the schedule property.
2. The plaint averments in brief are that :
The schedule property consists of a house property bearing BBMP No.666/33 measuring East - West 60 feet and North - South 40 feet situated at 15 th Main, 4th 'T' Block, Jayanagar, Bengaluru. One G.Ramachandra Nayak who was working in M/s.Infosys Technologies Ltd., Bengaluru had purchased the plaint schedule property during his life time under regd. Sale Deed dated 18.11.1993. It was his self-acquired property since he purchased it out of his hard earned money. During his life time, said G.Ramachandra Nayak has gifted away his said property in favour of his wife Smt.Veena R. Nayak by executing a regd. Gift Deed dated 28.8.2006. Since then, the said Smt.Veena R.Nayak has become the absolute owner the schedule property and khata also transferred in her name and she was paying its property tax regularly. Her husband Sri.Ramachandra / 4 / O.S.No.3373/2019 Nayak has expired on 1.2.2007 leaving behind his wife Smt.Veena R.Nayak and three sons who are plaintiffs and defendant herein as his only surviving legal heirs. The plaintiffs are working in a private sector company and they are living separately. The defendant is in occupation of the schedule property along with his mother. The plaintiffs have financially assisted the defendant on various occasions as he was unemployed and lost huge money in various business by investing amount. The mother Smt.Veena R.Nayak was having serious health issues. The plaintiffs have borne all the medical and other expenses of their mother by transferring money in the account of defendant. The plaintiffs have also appointed a female nurse look take care of their ailing mother in proving medication and treatment at home. However, the plaintiffs' mother has expired on 25.1.2019 due to severe health issues. The plaintiffs and defendant are the only surviving legal heirs of their mother. After her demise, the plaintiffs have only incurred expenditure in performing the last rites of their mother. As the defendant was unemployed and suffered loss in the businesses, / 5 / O.S.No.3373/2019 the plaintiffs helped him lot in all respects including in some serious issue where the defendant was involved. However, after the demise of their mother, the relationship between the plaintiffs and defendant became strained and as a result, the plaintiffs stopped paying regular visit to the schedule property where the defendant is staying. The plaintiffs have contacted the defendant through their relatives and well-wishers in the third week of March 2019 and demanded their share in the schedule property. The defendant has avoided the said request by stating that there is no urgency to divide the property. The plaintiffs decided to wait for the words of the defendant. In the meantime, the plaintiffs have learnt that the defendant is doing hectic efforts to alienate the schedule property and he has also pledged the title deeds of the schedule property with the third party. Immediately thereafter, the plaintiff approached the defendant and demanded for their share by effecting partition. However, the defendant has flatly refused to give share and threatened the plaintiffs of dire consequences. Therefore, the plaintiffs having left with no other alternative, approached this / 6 / O.S.No.3373/2019 Court for awarding their share by effecting partition in the schedule property by metes and bounds.
3. After filing written statement by the defendant, the plaintiffs got amended the plaint by inserting fresh para Nos.6(a) to 6(c) and contended that, the defendant has taken up contention in the written statement that their mother has executed a Will on 22.1.2008 bequeathing the schedule property in his favour and based on the said Will, he became owner and also got the khata transferred in his name and he has paid the upto date property tax and he has also sent photography of the said Will to the plaintiffs through WhatsApp. The defendant is known for creating and fabricating the documents as several criminal cases were registered against him for doing such acts and he was also absconding from the police and Enforcement Directory and even his criminal acts were reported in the newspaper also. The plaintiffs' mother has never executed any such Will dated 22.1.2008 in favour of defendant. The khata of the plaint schedule property is still standing in the name of / 7 / O.S.No.3373/2019 plaintiffs' mother. The plaintiffs became aware of the alleged Will only after filing the written statement by the defendant in the present suit. The plaintiffs have denied the execution, consideration, legality and validity of the said Will dated 22.1.2008 said to have executed by their mother bequeathing the schedule property exclusively in favour of defendant. On these and certain other grounds, the plaintiffs have prayed for decreeing their suit with costs.
4. In response to the service of summons, the defendant has entered his appearance through Sri.U.R.Nayak, the learned counsel and filed his written statement in defence to this suit of the plaintiff.
The defendant has denied in toto the entire material plaint averments in his written statement. However, the said defendant has admitted that the plaint schedule property was self-acquired property of his father Late Sri.G.Ramachandra having acquired under regd. Sale Deed dated 18.11.1993 with his self earned money and later he gifted away the said property in favour of / 8 / O.S.No.3373/2019 his wife Smt.Veena R.Nayak by means of regd. Gift Deed dated 28.8.2006. The defendant has also admitted that, his father Sri.G.Ramachandra has expired on 1.2.2007 leaving behind his mother, plaintiffs and defendant. The defendant has also admitted that, the plaint schedule property was absolute property of his mother Smt.Veena R.Nayak by virtue of regd. Gift Deed dated 28.8.2006. The defendant has taken up contentions that, his mother had sent a letter 3.1.2008 through her advocate by name Mr.Shivakumar, M/s. Murthy and Kumar, No.1/A, 2 nd Main, 36th Cross, 5th Block, Jayanagar, Bengaluru requesting him to change her last regd. Will dated 28.8.2006 and accordingly, the said Mr.Shivakumar, Advocate has drafted the Will and sent the final print of the Will dated 22.1.2008 to Smt.Veena R.Nayak and thereafter Smt. Veena R.Nayak has executed a fresh Will dated 22.1.2008 bequeathing the schedule property exclusively in favour of her son who defendant herein with absolute and unfettered rights of transfer, alienation in any manner of his choice without any demur. After the demise of Smt.Veena R.Nayak on 25.1.2019, the defendant has become absolute owner / 9 / O.S.No.3373/2019 of the schedule property by virtue of said Will dated 22.1.2008 and accordingly, he is possession and enjoyment of the schedule property. The defendant has got khata of the schedule property transferred in his name and he has paid the property tax to the BBMP upto the year 2018-19. The defendant has also sent the image of the Will dated 22.1.2008 to the plaintiffs through WhatsApp, but the plaintiffs have failed to respond to the said WhatsApp message dated 2.3.2019. The plaintiffs fully aware of the execution of the Will dated 22.1.2008 by their mother in favour of defendant, but they are suppressing the said fact from the Court with malafide intention to grab the schedule property. The plaintiffs have absolutely no any right much less 1/3rd share each in the schedule property and seek partition therein by metes and bounds. The plaintiffs have never bothered to come and see their mother when she was alive and they were careless persons and it is the defendant alone who was taking care of his mother after the demise of his father on 1.2.2017. The plaintiffs' father has financially helped the plaintiffs to purchase the immoveable property in their respective names and as such they / 10 / O.S.No.3373/2019 are not entitled to any share in the schedule property. The defendant has become absolute owner of the schedule property by virtue of Will dated 22.1.2008 executed by his mother and as such the plaintiffs have no any legal right to claim share in the schedule property through partition by metes and bounds. The plaintiffs are not entitled to any share in the schedule property and the present suit is not maintainable under law and it is liable to be dismissed. The rest of the plaint averments have been denied by the defendant. In the additional written statement, the defendant has denied the various allegations and accusations made against him in the plaint by the plaintiffs. He contends that all the said accusations are false and baseless and made with an intention to tarnish his image in the society and that he reserves his right to initiate or file defamation case against the plaintiffs. It is further contended that, the defendant has not involved in any criminal activities and the plaintiffs were jealous of defendant since beginning and the said plaintiffs were also well aware of the execution of the Will by their mother in favour of the defendant but they have suppressed the said / 11 / O.S.No.3373/2019 facts in the plaint and as such they are not entitled to any reliefs and their suit is liable to be dismissed. On these and certain other grounds, the defendant has prayed for dismissing the suit of the plaintiffs with costs.
5. On the strength of respective pleadings and documents of the parties, my learned predecessor has framed the following issues :
(1) Whether the plaintiffs prove that the suit schedule property is the joint family property of plaintiffs and defendant ?
(2) Whether the plaintiffs are entitled to 1/3 rd share in the suit schedule property ?
(3) Whether the plaintiffs are entitled for mesne profits?
(4) Whether the defendant proves that Smt.Veena R.Nayak has executed a Will dated 22.1.2008 in favour of the defendant ?
(5) Whether the plaintiffs are entitled for the relief of permanent injunction ?
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(6) What decree or order ?
6. In order to prove the case, the plaintiffs have got examined the plaintiff No.1 as P.W.1 and another witness as P.W.2 and relied upon in all nineteen documents marked at Exs.P.1 to P.19 and closed their side.
By way of rebuttal, the defendant has got examined himself as D.W.1 and another witness as D.W.2 and relied upon in all three documents marked at Exs.D.1 to D.3 and closed his side.
7. I have heard Sri.Manjunatha.B., the learned counsel for the plaintiffs and Sri.U.R.Nayak, the learned counsel for the defendant.
8. My findings to the above issues are as under:
ISSUE NO.1 & 2 : In the affirmative
ISSUE NO.3 to 5 : In the negative.
ISSUE NO.4 : As per final order passed
below for the following:
/ 13 / O.S.No.3373/2019
REASONS
9. ISSUE NO.1 TO 5
As these issues are interlinked with each other, I take them at one stretch for my consideration and determination to avoid repetition of facts.
The undisputed facts as borne out from the pleadings and evidence of the parties are that, one Sri.G.Ramachandra Nayak and Smt.Veena Nayak were husband and wife interse. The said couple begot three sons by names
(i)Ravindra (plaintiff No.1), (ii) Vijayendra (plaintiff No.2) and
(iii) Narendra (defendant). The father G.Ramachandra was working at M/s.Infosys Technologies Ltd., Bengaluru. During his lifetime, he had purchased the plaint schedule property which a house property of dimension 60 x 40 feet totally 2400 Sq.Ft. under regd. Sale Deed dated 18.11.1993 with his hard earned money. The plaintiffs have produced certified copy of the said regd. Sale Deed dated 18.11.1993 as per Ex.P.1. The said father Sri.G.Ramachandra Nayak had enjoyed the schedule property as / 14 / O.S.No.3373/2019 his absolute and self-acquired property for considerable period. Thereafter, he gifted away his said property in favour of his wife Smt.Veena Nayak on account of love and affection by executing a regd. Gift Deed dated 28.8.2006. His wife Smt.Veena Nayak had accepted the said gift and she was in possession and enjoyment of the plaint schedule property as its absolute owner. The plaintiffs have produced the certified copy of the said regd. Gift Deed dated 28.8.2006 as per Ex.P.2. The BBMP has accepted the name of Smt.Veena Nayak in the khata of the schedule property based on the regd. Gift Deed dated 28.8.2006. She was paying its property tax regularly to the BBMP. Although, the plaintiffs have not produced khata and tax paid receipts of the schedule property, however, it is not in dispute that the schedule property is standing in the name of Smt.Veena Nayak till the date and the property tax is being paid in her name by the defendant till the date. The father Sri.G.Ramachandra Nayak has expired on 01.02.2007 leaving behind his wife Smt.Veena Nayak and three sons who are plaintiffs and defendant herein, is also not disputed. The plaintiffs have produced Death Certificate of their / 15 / O.S.No.3373/2019 father G.Ramachandra Nayak as per Ex.P.3. The mother Smt.Veena Nayak who was absolute owner of the schedule property, has died on 25.1.2019 leaving behind the plaintiffs and the defendant as her only surviving legal heirs, is also not disputed. The plaintiffs have produced Death Certificate of their mother Smt.Veena Nayak as per Ex.P.4. After the demise of mother, the schedule property has devolved upon the plaintiffs and defendant. It is the claim of the plaintiffs that, they have undivided 1/3rd share in the schedule property and entitle to have their said share allotted to them by effecting partition by metes and bounds. Per contra, the defendant has set up an unregistered Will dated 22.1.2008 said to have been executed by his mother Smt.Veena Nayak bequeathing the schedule property exclusively in his favour excluding her other two sons who are plaintiffs herein. Based on this unregistered Will dated 22.1.2008, the defendant claims that he has become absolute owner in lawful possession of the schedule property and the plaintiffs have no manner of right, title and interest much less any share in the said schedule property and as such their claim / 16 / O.S.No.3373/2019 for partition of their share in the said property is liable to be rejected.
10. It is to note that the plaintiffs are working in a private sector company. The said plaintiffs were living separately even during the lifetime of their parents is not disputed. After the demise of father G.Ramachandra Nayak, the mother Smt.Veena Nayak was staying with defendant in her schedule property is also not disputed. After the demise of mother Smt.Veena Nayaka, the defendant has continued to be in occupation of the schedule property is also not disputed. The plaintiffs claimed that, the defendant was unemployed and he suffered huge loss in several businesses and as a result, they have financially assisting him on several occasions. The plaintiffs also claimed that, they borne out the medical and other expenses of their ailing mother by transferring money into the account of defendant and they have also appointed one female nurse to take care of their mother in providing medication and treatment at home and they have also incurred huge expenses in performing the last rites of their mother as per the rituals and / 17 / O.S.No.3373/2019 customs prevailed in their community. It is to note that, the defendant has denied all these facts and contended that the said plaintiffs have never bothered to take care of their ailing mother during her lifetime and he alone looked after his mother during her life time and as a result, his mother has willed away her schedule property in his favour exclusively.
11. It is to note that, the plaintiffs and defendant are the only surviving legal heirs of Late Smt.Veena Nayak, the owner of the plaint schedule property. If the unregistered Will dated 22.1.2008 set up by the defendant is held to be not proved, it automatically follows that the plaintiffs are entitled to have their 1/3rd share each in the schedule property divided and allotted to them by effecting partition by metes and bounds. The law is well settled that, the person who propounds the execution of the Will should prove it by means of clear and cogent evidence. It has come in the evidence of D.W.1 who is defendant herein that, Late Smt.Veena Nayak had executed a regd. Will dated 28.8.2006 bequeathing the schedule property in favour of her husband Sri.G.Ramachandra Nayak. The original copy of this regd. Will / 18 / O.S.No.3373/2019 dated 28.8.2006 is produced on record by the defendant as per Ex.D.3. The execution of this registered Will dated 28.8.2006 as per Ex.D.3 by Smt.Veena Nayak bequeathing the schedule property in favour of her husband G.Ramachandra Nayak is not in dispute between the parties. D.W.1 has deposed that, his mother Smt.Veena Nayak had written a letter dated 3.1.2008 to her Advocate by name Mr.Shivakumar, M/s.Murthy and Kumar, 1/A, 2nd Main, 36th Cross, 5th Cross, Jayanagar, Bengaluru requesting him to change her aforesaid last regd. Will dated 28.8.2006 and to prepare / draft a fresh Will in favour of her youngest son who is defendant herein. It is the evidence of D.W.1 that, as per the instructions given in the aforesaid letter dated 3.1.2008, Mr.Shivakumar, Advocate has drafted the Will and sent its final print copy of the Will dated 22.1.2008 to Smt.Veena Nayak who in turn has executed the said fresh Will dated 22.1.2008 by cancelling / revoking the earlier regd. Will dated 28.8.2006 and bequeathing the schedule property in favour of defendant without any demur. The plaintiffs have seriously denied the execution, legality and validity of the said / 19 / O.S.No.3373/2019 unregistered Will dated 22.1.2008 set up by the defendant in his favour. The plaintiffs by way of inserting fresh paras in the plaint by way of amendment have raised pleadings that their mother has never executed any Will bequeathing the schedule property exclusively in favour of the defendant at any point of time. The said plaintiffs by referring to the criminal anticidents of the defendant have contended that the defendant is known for creating false and fabricated documents and as such the Will dated 22.1.2008 set up by him must have been a concocted Will. In view of these pleadings having raised in the plaint seriously disputing the execution of the unregistered Will dated 22.1.2008, it is incumbent upon the defendant to prove its due execution by his mother as per Section 68 of the Indian Evidence Act by examining at least one attesting witness and to remove all the suspicious circumstances with regard to the execution of the said Will dated 22.1.2008.
12. It is to note that, the defendant has examined D.W.2 viz., Giridhar Acharya who is stated to be one of the attesting / 20 / O.S.No.3373/2019 witnesses to the unregistered Will dated 22.1.2008. The defendant has produced the original copy of the said unregistered Will dated 22.1.2008 as per Ex.D.2 in this case. D.W.2 attesting witness has deposed that he is one of attesting witness to Ex.D.2 - Will dated 22.1.2008 and the testator Smt.Veena Nayak had signed on the said Will in his presence and he knows the contents of the said Will and he also know the family of the Late Sri.G.R.Narayak for the past fifty years since he was a Purohit / Pandith and used to perform devatakarya, pooja and rituals in their house and the second witness who has signed the said Will is his wife. He has deposed that Smt.Veena Nayak had bequeathed the schedule property in favour of defendant herein by executing the said Will dated 22.1.2008 as per Ex.D.2. This D.W.2 was subjected to a detailed cross- examination. In the course of cross-examination, the said D.W.2 has categorically stated that he does not know how Late Smt.Veena Nayak had acquired the schedule property and he does not know anything about regd. Will as per Ex.D.3 and he does not know where and who had prepared the Ex.D.2 - Will.
/ 21 / O.S.No.3373/2019 He has also stated that he does not know where (at which place) the testator Smt.Veena Nayak had put her signature on Ex.D.2 - Will. This D.W.2 in his examination-in-chief has stated that he know the family of Late G.R.Nayak for the past thirty years. But he does not know how Smt.Veena Nayak had acquired the plaint schedule property. In the examination-in-chief, the said D.W.2 has stated that Late Smt.Veena Nayak had put signature on Ex.D.2 - Will in his presence, whereas in the cross-examination he has categorically stated that he does not know where (at which place), Late Smt.Veena Nayak had put signature on the Will. If really the said D.W.2 had seen the testator signing on Ex.D.2 - Will, he should have stated the place where she put her signature on the said Ex.D.2 - Will and the place where the said Ex.D.2 - Will had been prepared. The said D.W.2 had categorically stated that he does not know where and who had prepared the said Ex.D.2 - Will. His this statement categorically indicate that, he did not see the execution of the said Will as per Ex.D.2 by the testator or even he did not get confirmed from the testator that it was her testament bequeathing the schedule / 22 / O.S.No.3373/2019 property in favour of the defendant, before he putting his signature on the said Ex.D.2 - Will. When the facts elicited in the course of cross-examination of D.W.2 - attesting witness clearly demonstrates that, the said attesting witness had not seen the testator executing the Will as per Ex.D.2 and not even confirmed from the said testator that it was her testament bequeathing the schedule property in favour of the defendant, I am of the opinion that the evidence of said D.W.2 attesting witness is not helpful to the defendant to prove about the due execution of the said Ex.D.2 - Will by removing the suspicious circumstances with regard to the said Will.
13. It is to note that, D.W.1 who is defendant herein has been also subjected to a detailed cross-examination with regard to the execution of the Ex.D.2 - Will. In the course of cross- examination, the said D.W.1 has stated that Ex.D.1 is the original letter dated 3.1.2008 of his mother sent to Mr.Shivakumar, Advocate for the preparation of Ex.D.2 - Will. If really, Late Smt.Veena Nayak had sent the letter as per Ex.D.1, the said / 23 / O.S.No.3373/2019 original letter should have been in the custody and power of Mr.Shivakumar, Advocate. The said Ex.D.1 is not an office copy of the said letter. Even there is no endorsement of Mr.Shivakumar, Advocate on the Ex.D.1 - letter acknowledging the receipt of the original copy of the said letter so as to say that the said Ex.D.1 is office copy of the letter sent by Late Smt.Veena Nayak. Therefore, Ex.D.1 - letter itself is doubtful to believe that it was sent by said Smt.Veena Nayak to Mr.Shivakumar, Advocate instructing him to draft / prepare a fresh Will by cancelling / revoking her earlier regd. Will dated 28.8.2006 as per Ex.D.3. In the course of further cross-examination, D.W.1 has stated that the aforesaid Ex.D.1 - letter was prepared by his mother when she had gone towards her advocate and he was also present outside the office of the said advocate during that point of time. This statement of D.W.1 again creates a doubt as because, when Late Smt.Veena Nayak had gone towards her advocate for the preparation of fresh Will, there was no necessity for her to get typed her letter as per Ex.D.1 through her advocate requesting him to prepare / draft a fresh Will. Further, / 24 / O.S.No.3373/2019 D.W.1 has stated that Ex.D.2 - Will was drafted by Mr.Shiva Kumar, Advocate and it was typed in the office of said Advocate. When the said D.W.1 was asked as to whether he has any documentary evidence to prove that the Ex.D.2 Will had been prepared and drafted in the office of Mr.Shivakumar, Advocate, he replied that Mr.Shivakumar, Advocate is sick and unwell and as such, he is unable to examine the said Mr.Shivakumar, Advocate. When the said D.W.1 was suggested that the said Mr.Shivakumar, Advocate is hale and healthy and even now working as a Mediator in the Bengaluru Mediation Centre, he replied that he was not aware of it.
14. It is worth to note that, the plaintiffs have summoned and examined the said Mr.Shivakumar, Advocate as P.W.2 in this case. The said P.W.2 has categorically deposed that, the defendant herein never approached him with a request to give evidence in the present case with regard to the execution of the Ex.D.2 - Will and he never stated him that he cannot come due to his illness. The said P.W.2 has categorically stated that, he / 25 / O.S.No.3373/2019 had not drafted the Ex.D.2 - Will. However, he has deposed that the regd. Will as per Ex.D.3 was prepared in his office and it was drafted by him but signed by his junior by name Vedavyasa Rao. The said P.W.2 has been subjected to detailed cross-examination by the learned counsel for the defendant. In the course of cross- examination, when the said P.W.2 was confronted with letter dated 3.1.2008 as per Ex.D.1, he replied that he cannot identify the signature on the said letter. In the course of further cross- examination, the said P.W.2 again categorically denied that the Ex.D.2 - Will was typed in his office and he was paid Rs.5,000/- for the preparation of the said Ex.D.2 - Will. When it was suggested to the said P.W.2 that he was always disliking the defendant since beginning and that is the reason he is deposing false evidence stating that the Ex.D.2 was not drafted by him, to help the plaintiffs, he denied the said suggestion as false. Thus, the evidence of P.W.2 who is stated to have drafted and prepared the Ex.D.2 - Will is totally against the case of the defendant and as such his evidence adduced on record is fatal to the defendant to prove the execution of Ex.D.2 - Will by Late Smt.Veena Nayak.
/ 26 / O.S.No.3373/2019 Even a meticulous perusal of Ex.D.2 - Will discloses that the name and address of the person who had prepared the said Will is conspicuously missing in the said Will. In other words I am to say that, there is nothing in the said Will to indicate that it has been drafted by Mr.Shivakumar, Advocate. Even it can be seen that the franking process on the stamp paper on which the contents of the Will as per Ex.D.2 are engrossed, has not been done. D.W.1 has admitted all these facts in the course of his cross-examination. It is to note that, when the natural legal heirs are excluded in the Will, it was the duty of the profounder of the Will to remove the said suspicious circumstances by clear and cogent evident. In the present case the plaintiffs have taken up a specific contention that, this defendant was unemployed and he suffered loss in several businesses and as a result they financially assisted him on several occasions. The said plaintiffs also contend that, they have incurred expenses in providing medical care to their ailing mother by transferring money in the account of the defendant. The plaintiffs also contend that, they have appointed a female nurse to take care of their ailing mother / 27 / O.S.No.3373/2019 in providing medication and treatment at home itself. It is also contended by the plaintiffs that, they had performed the last rites of their mother as per the rituals and customs prevailed in their community by incurring huge expenses. P.W.1 has reiterated these facts in his evidence. D.W.1 in the course of his cross-examination has categorically admitted that, the first plaintiff has hired a nurse to take care of their mother. He further admitted that, he has not produced any documents to show that he had incurred medical expenses of his mother. He also admitted that, he has not produced any documents to show that he incurred expenses of the last rites of his mother. He stated that, there is absolute no any hurdle for him to produce the said documents. But however, the defendant has not produced any single scrap of paper to show that he had incurred the expenses of medical treatment and hospital charges of his mother and also the expenses incurred in performing the last rites of his mother. It is significant to note that, the Exs.P.8 to P.11 are the health insurance policy copies of plaintiffs' mother. The said policy copies goes to show that, the first plaintiff has / 28 / O.S.No.3373/2019 paid the yearly premium amount of the health insurance of his ailing mother. D.W.1 in the course of his cross-examination has categorically admitted that, the first plaintiff was paying the health insurance premium of his mother. Ex.P.7 is the entire inpatient record of plaintiffs' mother treated at Appollo hospitals. The very production of said inpatient records by the plaintiffs itself indicate that the plaintiffs have provided medical treatment to their ailing mother. Exs.P.14 to P.17 are statements of Savings Account of first plaintiff maintained at ICICI Bank for the year 2015-16, 2016-17, 2017-18 and 2018-19. It is very significant to note that, the amounts remitted by the first plaintiff are reflected in the said statement of accounts. But however, D.W.1 has dishonestly denied this fact in his cross- examination. Thus, the facts elicited on record very clearly demonstrates that, it was these plaintiffs who have looked after their ailing mother including her medical care, hospital charges, maintainance and also the performance of her last rites, though they were residing separately. Thus, there is nothing brought on record to indicate that the Late Smt.Veena Nayak was unhappy / 29 / O.S.No.3373/2019 over these plaintiffs so as to exclude them from the bequest under the alleged Will as per Ex.D.1. On the other hand, the criminal antecedents of defendant has been not only pleaded, but also elicited in the course of cross-examination of said D.W.1 which does not rule out the fabrication of the Will as per Ex.D.2 by the defendant. It is to note that, the said Ex.D.2 has not seen the day light until filing written statement by the defendant in the present case. The plaintiffs have pleaded in their plaint that they have demanded their share to the defendant for several times even through their relatives but the defendant refused their such request. If really there was Will as per Ex.D.2, the defendant must have disclosed about it to the plaintiffs at the time of their demand for partition. The plaintiffs became surprised to know about the pleadings as regards the execution of the Will in favour of defendant by their mother in the written statement and as a result they got amended the plaint and inserted fresh para 6(a) to 6(c) denying the execution, legality and validity of the said alleged Will dated 22.1.2008 marked at Ex.D.2. This conduct on the part of the defendant in not / 30 / O.S.No.3373/2019 disclosing about the existence of the said Will dated 22.1.2008 at the earliest point of time is another suspicious circumstance to doubt the said Will. Thus, in the light of all these discussions made in the foregoing paragraphs, it leaves no manner of doubt that, the defendant has miserably failed to prove the execution of the Will dated 22.1.2008 as per Ex.D.2 by his mother by removing the suspicious circumstances with regard to the execution of the said Will.
15. Now, once it is arrived at conclusion that the defendant has failed to prove the execution of the Will dated 22.1.2008 as per Ex.D.2 in his favour by his deceased mother in respect of the plaint schedule property, it automatically follows that the schedule property is the joint family property of plaintiffs and defendant and the possession of defendant therein is for and on behalf of all the co-owners and that the plaintiffs are entitled for partition and separate possession of their 1/3rd share each in the schedule property by metes and bounds. With these observations, I shall conclude my discussions with following discussions :
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(a) The plaintiffs have successfully proved
that the plaint schedule property is their joint family property and they are having undivided 1/3rd share each therein and entitled to have their said 1/3rd share allotted to them by effecting partition by metes and bounds. Accordingly, the Issue No.1 and 2 framed herein above are answered in the affirmative, in favour of the plaintiffs.
(b) The defendant has miserably failed to prove that, Late Smt.Veena Nayak has executed an unregistered Will dated 22.1.2008 as per Ex.D.2 in his favour bequeathing the schedule property by clear and cogent evidence capable of removing all the suspicious circumstances surrounded to the said Will. Accordingly, the Issue No.4 framed herein above is answered in the negative, against the defendant.
(c) The plaintiffs have prayed for holding enquiry as to the mesne profits of the schedule property as contemplated under Order XX Rule 12 of C.P.C., 1908. It is to note that, these plaintiffs are residing separately since long during the lifetime of their parents is not disputed. It is also not in dispute that, Late Smt.Veena Nayak, the owner of / 32 / O.S.No.3373/2019 the schedule property was residing therein along with defendant. After the demise of Smt.Veena Nayak, the said defendant continued to be in occupation of the schedule property till the date. It is not the case of the plaintiffs that, the defendant is residing elsewhere by giving the schedule property on lease to the tenants. If the defendant would have leased the schedule premises and utilising its rental income unto himself, the consequences would have been different. As the defendant is staying in the schedule property without deriving any income therefrom, the question of awarding mesne profits does not arise. Under the Hindu Law, the possession of the one co-owner / coparcener of the joint family property / coparcenery property is considered as for and on behalf of all the co-
owners / coparceners of the joint family. The defendant is not in wrongful possession of the schedule property. The question of granting mesne profits arises when the person is in wrongful possession of the property in question. Hence, I am of the considered opinion that, the plaintiffs are not entitled for mesne profits of the schedule property. Accordingly, the Issue No.3 framed herein above is answered in the negative, against the plaintiffs.
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(d) The plaintiffs have sought for the relief of permanent injunction restraining the defendant from interfering with plaintiffs' peaceful possession and enjoyment of the schedule property. It is not the case of the plaintiffs that they are in exclusive possession of the schedule property by ousting the defendant. On the other hand, the evidence adduced on record indicate that, the defendant is in occupation of the schedule property. The plaintiffs and defendant are co-owners of the said schedule property. The relief of injunction cannot be granted against a co-owner of the property. The possession of the defendant in the schedule property is for the benefit of himself and all the co-owners and as such, I am of the opinion that the plaintiffs are not entitled to the relief of permanent injunction as prayed for in this suit. Accordingly, the Issue No.5 framed herein above is answered in the negative, against the plaintiffs.
16. ISSUE NO.6 In view of my findings given on Issue No.1 to 5 and for the reasons discussed herein above paragraphs, I proceed to pass the following:
/ 34 / O.S.No.3373/2019 ORDER The suit of the plaintiffs is hereby partly decreed in the following terms :
It is hereby ordered that the plaintiffs are entitled for partition and separate possession of their 1/3rd share each in the plaint schedule property by metes and bounds.
In the facts and circumstances of the case, the parties are directed to bear their own costs.
Draw up preliminary decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 15th day of April, 2023. ) (YASHAWANT R TAWARE) XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
ANNEXURE
1. List of witnesses examined on behalf of the plaintiffs :
P.W.1 : Ravindra R.Naik
P.W.2 : Shivakumar
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2. The list of documents exhibited on behalf of plaintiffs :
Ex.P.1 : C/c of Sale Deed dated 18.11.1993
Ex.P.2 : Regd. Gift Deed dated 28.8.2006
Ex.P.3 & 4 : Death Certificates
Ex.P.5 : Family tree issued by Deputy Tahasildar
Ex.P.6 : Encumbrance Certificate
Ex.P.7 : Inpatient records from page No.1 to 81
Ex.P.8 to 11 : Copies of insurance policies
Ex.P.12 & 13: Receipts for having paid the insurance policy amount Ex.P.14 to 17: ICICI Bank statements for the period 2015-
16, 2016-17, 2017-18 and 2018-19
Ex.P.18 : E-Sanje news paper dated 5.6.2007
Ex.P.19 : Affidavit under Section 65-B of Evidence Act
Ex.P.20 : C/c of Regd. Will
3. The list of witnesses examined on behalf of the defendant :
D.W.1 : Gujjadi Narendra Nayak
D.W.2 : G.Giridhar Acharya
3. The list of documents exhibited on behalf of the defendant :
Ex.D.1 : Original letter dated 3.1.2008 written by defendant's mother / 36 / O.S.No.3373/2019 Ex.D.2 : Original Will dated 22.1.2008 Ex.D.3 : original copy of regd. Will dated 28.8.2006 Ex.D.2(a): Signature of D.W.2 Ex.D.2(b): Signature of the testator of Ex.D.2 (YASHAWANT R TAWARE), XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
/ 37 / O.S.No.3373/2019 Judgment pronounced in the open Court (Vide separate Judgment) :
ORDER The suit of the plaintiffs is hereby partly decreed in the following terms :
It is hereby ordered that the plaintiffs are entitled for partition and separate possession of their 1/3rd share each in the plaint schedule property by metes and bounds.
In the facts and circumstances of the case, the parties are directed to bear their own costs.
Draw up preliminary decree accordingly.
(YASHAWANT R TAWARE), 39th ACC&S Judge, Bangalore.