Bangalore District Court
Smt. Vimala H.S vs Smt. Vanaja H.S on 28 February, 2022
IN THE COURT OF XLII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-43)
Present: Sri. Kengabalaiah,
B.Com., LL.B.
XLII Addl. City Civil & Sessions Judge.
Dated this 28 th Day of February , 2022
O.S.No. 10348/2015
Plaintiff/s : Smt. Vimala H.S.
D/o Late Munirathnamma
W/o Ravichandran,
Aged about 34 years,
R/at No.512-A, Basappa Road,
Rachappa Garden, Shanthinagar,
Bangalore - 27.
[By Sri. H.S.R.K., Adv.]
-Vs-
Defendant/s : Smt. Vanaja H.S.
D/o Late Munirathnamma
W/o Muniraju
Aged about 40 years
R/at No.6, 1st Floor, 3rd Cross,
Sumangali Sevashrama Road,
Cholanayakanahalli,
Bangalore.
[By Sri. G.N., Adv.]
Date of institution of the suit 17.12.2015
Nature of the suit Partition
Date of commencement of 5.8.2016
recording the evidence
2 OS.No.10348/2015
Date on which the judgment 28.02.2022
was pronounced
Total duration Years Months Days
06 02 11
(Kengabalaiah),
XVII Addl. City Civil & Sessions Judge.
*********
J UD GM E N T
The plaintiff has filed this suit against the defendant for
partition and separate possession.
1. The case of the plaintiff is that, the plaintiff and
the defendant are the daughters of Late Ssambaiah and
Munirathnamma. The father of the plaintiff died about 30
years back. The mother of the plaintiff and defendant by
name Munirathnamma was Government employee working at
Vidhana Soudha, Bangalore. The mother of the plaintiff
during her life time has acquired the schedule property under
a registered Sale Deed dated 3.3.1999 and it is her self-
acquired property. After the purchase of the schedule
property, she got the khata transferred in her name and she
was paying taxes to the BBMP and she was in peaceful
possession and enjoyment of the suit schedule property
3 OS.No.10348/2015
during her life time. Munirathnamma has constructed a four
storied RCC building consisting of ground, first, second and
third floors over the suit schedule property. The defendant is
residing in the first floor of the suit schedule property and the
remaining portions have been let out to the tenants. During
her life time, the mother of the plaintiff was living with the
plaintiff from past several years due to love and her mother
died intestate on 2.11.2013 leaving behind the plaintiff and
the defendant to succeed her estate. The plaintiff has
performed the last rites of her mother. The plaintiff and the
defendant are in joint possession of the suit schedule
property as joint owners. After the death of her mother, the
defendant is collecting the rents from the tenants and she is
not paying any amount to the plaintiff even after repeated
requests and demands. Therefore, the plaintiff has requested
the defendant to effect partition by metes and bounds of the
suit schedule property. The plaintiff has got legitimate half
share in the suit schedule property as she is the class-I heir
of Late Munirathnamma.
2. It is submitted that, recently the plaintiff came to
know that the defendant is trying to change the khata in her
4 OS.No.10348/2015
name and trying to alienate the suit schedule property to the
third parties. Therefore, the plaintiff demanded the defendant
to effect the partition in the month of first week of September,
2015, but the defendant has been deliberately evading the
plaintiff by one reason or the other. Since the defendant has
refused to effect the partition of the suit schedule property,
without alternative, the plaintiff has got issued a legal notice
dated 13.10.2015 demanding partition, but the defendant
has not received the said notice and returned as 'refused'.
The cause of action for the suit arose on 5.9.2015 and on
13.10.2015 when the plaintiff issued the legal notice to the
defendant demanding partition of the suit schedule property.
Hence, the suit.
3. In pursuance of the summons, the defendant has
appeared through her counsel filed her written statement by
admitting the relationship of the plaintiff and the defendant
and she also admitted that their father died and their mother
was a Government employee working at Vidhana Soudha,
Bangalore. She also admitted the allegations made in para-5
of the plaint that she purchased the suit schedule property
under registered Sale Deed dated 3.3.1999. She admits that
5 OS.No.10348/2015
the suit schedule property is the self-acquired property of
Late Munirathnamma and after purchase of the property, the
khata got transferred in her name and paying taxes and she
was in peaceful possession and enjoyment of the suit
schedule property during her life time. She admits that their
mother constructed the RCC building consisting of ground,
first, second and third floor over the suit schedule property
and the defendant is residing in first floor and the remaining
portions are let out to the tenants.
4. Further she has denied the allegations made in
para-8 of the plaint that the their mother was living with the
plaintiff due to love and affection. It is submitted that, after
the demise of their father, the mother of the defendant was
living with her and the defendant was looking after her
mother by providing all necessities and her mother died
intestate on 2.11.2013. The further allegations that the
plaintiff performed the last rites of their mother and they are
in joint possession and enjoyment of the suit schedule
property as joint owners are denied as false. It is further
submitted that the defendant prior to 15 days of death of
Munirathnamma,s he was fell ill and the plaintiff and
6 OS.No.10348/2015
defendant took her to Nimhans Hospital and admitted there
and thereafter she was shifted to Victoria Hospital for
treatment, at that time, the plaintiff clandestinely given her
address instead of defendant's address and after the death of
Munirathnamma, the defendant performed the funeral and
last rites of her mother. The admits that after the death of
Munirathnamma, she is collecting the rents from the tenants
and denied the rest of the allegations made in para-9 of the
plaint as false. The allegations made in para-10 to 12 are
denied as false as created story. There is no cause of action
for the suit and the alleged cause of action is created just to
file the suit.
5. It is further submitted that, the Plaintiff has not
included another Joint family property i.e., House property
constructed in Site.No.29, measuring East to West 30 Feet,
North to South 30 Feet and bounded by:
East by: Road West by: Conservancy North by: Property
of Kempaiah South by: Property of Munivenkatappa. Hence
the Partition suit filed by Plaintiff suffers from Partial
Partition. The partition of Joint family property has not taken
place at the level of Plaintiff's Grandfather, hence all the
7 OS.No.10348/2015
family members of Plaintiff and Defendant has not been made
as parties to the suit. Hence the suit filed by Plaintiff suffers
from Non joinder of necessary parties.
During the life time of defendant's mother, she was
working in Vidhana Souudha and out of own funds she
acquired the suit schedule property through registered Sale
Deed. Thereafter the said Munirathnamma constructed four
storied building with the financial assistance of the husband
of the defendant, since the husband of the defendant is a
Government employee and earning handsome salary. Ever
since the date of death of father of this defendant, she was
looking after her mother Munirathnamma by providing all
necessities from time to time. Due to the love and affection
towards the defendant, her mother executed a notarized Will
dated 22-03-2000 bequeathing the suit schedule property in
her favor. As the schedule property is the self acquired
property of Munirathanamma, she was having every right to
bequeath the schedule property in favour of this Defendant
by handing over all the original documents such as original
sale deed, Mother deed, WILL dated 22-03-2000, Electricity
and Water Sanctioned Letter, up to date Tax Paid receipts,
8 OS.No.10348/2015
Khata Certificate, Khata Extract, the original Sanction Plan
etc. After the demise of said Munirathnamma, the Defendant
on the strength of the Will has been in peaceful possession
and enjoyment of suit schedule property without any
disturbances from anybody. When such being the state of
affairs, the Plaintiff who did not have any manner of right,
title, interest, share over the suit schedule property, with
dishonest intention issued the Legal Notice and managed to
return the same by colluding with the Postal authorities and
filed the present suit without the knowledge and consent and
behind back of defendant so as to get wrongful gain and she
came to know about the filing of the above suit through her
relatives, immediately she contacted her counsel and verified
the Court records and came to know that the Defendant is
placed exparte and obtained the certified copies. Thereafter
previous counsel filed Vakalath on 03-02-2016 and he did
not inform her about filing of the Written Statement and
hence the Defendant Kept quiet, thereafter the Defendant
contacted the previous counsel and enquired about the stage,
but he did not given proper reply and hence the Defendant
taken NOC from him and engaged the present counsel and
9 OS.No.10348/2015
immediately instructed her present counsel to file Written
Statement and accordingly filed the Written Statement.
Hence, sought for dismissal of the suit.
6. On the basis of the above pleadings, my learned
predecessor has framed the following issues and additional
issues:-
1. Whether the plaintiff proves that the suit
schedule property is the self acquired
property of her mother -
Smt.Munirathnamma, who died intestate
on 02.11.2013, as she being the Class-I
legal heir, entitled to get half share in the
suit schedule property?
2. Whether the defendant proves that her
mother - late Smt.Munirathnamma left the
Will Deed dated 22.03.2000, bequeathing
the suit schedule property in her favour, as
such as a testamentary heir, she alone is
entitled to the said property?
3. Whether the plaintiff proves that she is
entitled to get the relief of permanent
injunction against the defendant?
4. What reliefs the parties are entitled to?
5. What order or decree?
Additional Issues :-
1. Whether the defendant proves that written
statement schedule property bearing Site
No.29 measuring East to West 30 feet and
north to south 30 feet, is the joint family
property of plaintiff and defendant as
contended in her written statement?
10 OS.No.10348/2015
2. Whether the defendant proves that suit is
bad for partial partition?
3. Whether defendant proves that suit is bad
for non-joinder of necessary parties as
contended in the written statement?
4. In order to prove the case of the plaintiff, the
plaintiff herself examined as PW.1 and got marked the
documents at Ex.P1 to P8 and Ex.P9 to P12 are marked
under confrontation of PW.1. On the other hand, the
defendant examined herself as DW.1 and got marked
documents at Ex.D1 & D73 and she also examined two
attesting witnesses namely V.Lokesh and Sharadamma as
DW.2 and 3.
5. Heard the arguments of both sides.
6. My findings on the above issues are as under:-
Issue No.1 : In the affirmative
Issue No.2 : In the negative
Issue No.3 : In the negative
Issue No.4 : In the affirmative
Addl. Issue No.1 : In the negative
Addl. Issue No.2 : In the negative
Addl. Issue No.3 : In the negative
Issue No.5: As per final order, for the following:
11 OS.No.10348/2015
R E A SON S
7. Issue No.1 and 2 :- Since these issues are inter-
related to each other, hence they are taken together for
common discussion to avoid repetition of facts.
8. Before going to probe into the matter, it is relevant
to mention here the admitted facts between the parties. It is
an admitted fact that the plaintiff and the defendant are the
daughters of Munirathnamma and Saambaiah. It is also
admitted fact that Sambaiah was working as a Government
employee and he died leaving behind his wife
Munirathnamma and two daughters namely the plaintiff and
the defendant. After the death of Saambaiah,
Munirathnamma got appointed as a Dalait in Vidhana
Soudha, Bangalore on compassionate ground. It is also
undisputed fact that Munirathnamma has purchased the
schedule property under a registered Sale Deed dated
3.3.1999 which is marked at Ex.D4. The plaintiff has
specifically contended that the schedule property is the self-
acquired property of Munirathnamma, she acquired the same
out of her own funds. The defendant also admitted in her
written statement para-17 that during the life time of
12 OS.No.10348/2015
Munirathnamma, she was working in Vidhana Soudha and
out of her own funds, she acquired the schedule property.
When there is no dispute with regard to acquisition of
property by Munirathnamma out of her own earnings, it can
be held without hesitation that the schedule property is the
self-acquired property of Munirathnamma.
9. The plaintiff has specifically contended that
during the life time of her mother, she has constructed four
storied building consisting of ground, first, second and third
floors over the schedule property out of her own funds. The
defendant is residing in the first floor of the suit schedule
property and remaining portions have been let out to the
tenants. In support of her contention, the plaintiff herself has
filed an affidavit in lieu of her examination-in-chief as PW.1
by reiterating the contents of the pleadings. The defendant
has contended that Munirathnamma constructed four storied
building with the financial assistance of husband of the
defendant.
10. To substantiate the said fact, the learned counsel
for the defendant has cross-examined PW.1 and put forth
that in the year 2007 Muniraju obtained the further
13 OS.No.10348/2015
construction plan and himself has constructed 4 storied
building from 2nd floor. But PW.1 volunteers that her mother
has constructed the building. Though the learned counsel for
the defendant cross-examined PW.1, but nothing material
has been elicited from her that the husband of the defendant
Muniraju has financially assisted to construct the building in
the schedule property.
11. It is pertinent to note here that according to the
defendant, her husband Muniraju has contributed funds to
construct the house, it is the burden on the defendant to
prove the said aspect. In order to prove the said aspect, the
defendant namely Vanitha H.S. herself has filed affidavit in
lieu of her examination-in-chief as DW.1 by reiterating the
contents of the written statement and she has deposed that
her Munirathnamma constructed four storied building with
the financial assistance of husband of the defendant since
her husband is a government employee and earning
handsome salary. It is relevant to state here that the
defendant has admitted the earnings of Munirathnamma
since she was working in Vidhana Soudha. But according to
the defendant, her husband Muniraju has contributed funds
14 OS.No.10348/2015
to construct the house. It is the burden on the defendant to
prove the said aspect with cogent evidence. In order to prove
the said aspect, the defendant herself has filed an affidavit in
lieu of her examination-in-chief as DW.1 by reiterating the
contents of the written statement and she has deposed that
her mother Munirathnamma constructed the four storied
building with the financial assistance of her husband. Except
her oral evidence, she has not at all produced any documents
to show that her husband has contributed funds for
construction of the building. Whereas, in the cross-
examination, the learned counsel for the plaintiff elicited at
page-8, para-2 that her husband working as an Attendar in
BDA and he is getting salary of Rs.45,000/- p.m. and he was
working from 1988. Further she deposed that he was getting
meager salary in the year 1999. She pleads ignorance that
how much salary her husband was getting from 1999 to
2000. If this piece of evidence is taken into consideration, it is
very obvious that this witness does not know how much
salary her husband was getting and she has not at all
produced any salary certificate to show that her husband was
getting the salary and he has made financial assistance to
15 OS.No.10348/2015
construct the building in the schedule property. In the
absence of material evidence mere contention of the
defendant is not sufficient to consider that her husband has
contributed the money to construct the building in the
schedule property.
12. It is important to note here that if at all the
husband of the defendant has contributed the money for
construction of the house as contended by the defendant,
what prevented the defendant to brought her husband before
the court to adduce the evidence to substantiate her
contention. But the defendant did not take any little pain to
brought her husband to give evidence to substantiate her
contention. As such there is no force in the contention of the
defendant that their mother Munirathnamma has
constructed the house with the financial assistance of her
husband Muniraju. On the other hand, the oral evidence of
PW.1 and the admission made by the defendant makes it
clear that their mother was working in Vidhana Soudha and
she was having independent source of income and out of her
income, she has constructed the house.
16 OS.No.10348/2015
13. It is significant to note here that the very
contention of the defendant that after the death of their
father, the defendant was looking after her mother
Munirathnamma by providing all necessities from time to
time. Due to love and affection, her mother bequeathed the
schedule property in her favour by executing the Will dated
22.3.2000. The mother handed over all the original
documents such as original sale deed, Mother deed, WILL
dated 22-03-2000, Electricity and Water Sanctioned Letter,
up to date Tax Paid receipts, Khata Certificate, Khata
Extract, the original Sanction Plan in her favour. In support
of her contention, the defendant examined herself as DW.1 by
reiterating the contents of the written statement and she has
relied upon the documents i.e., Will marked at Ex.D3 and the
Sale Deed in respect of the schedule property marked at
Ex.D4 and she also relied upon the Sale Deed dated
19.4.1995 executed by K.Ramaiah in favour of C.Mohan
Kumar the vendor of Munirathnamma with respect to the
schedule property marked at Ex.D5 and the GPA and
affidavit dated 1.6.1998 executed by Dasharathraj in favour
of K.Ramaiah marked are at Ex.D6 and D7, GPA and affidavit
17 OS.No.10348/2015
dated 16..8.1982 executed by Muninanjappa Reddy in favour
of Dasharathraj are marked at Ex.D8 and D9, Ex.D10 to D15
are the tax paid receipts, Ex.D16 and D17 are the khata
certificate and khata extract issued by the BBMP in favour of
Munirathnamma in respect of the schedule property, Ex.D18
to D20 are the receipts issued by BWSSB regarding
connection. Ex.D21 to D26 are the electricity bills and
receipts, Ex.D27 and D28 are the deposit challans issued by
BWSSB, Ex.D29 is the certified copy of the Sale Deed dated
19.4.1995, Ex.D30 to 32 are the encumbrance certificates,
Ex.D33 and D34 are the notice issued by the District
Registrar in favour of Munirathnamma for making deficit
registration fee, Ex.D35 is the endorsement issued by Sub-
Registrar regarding making of deficit registration fee, Ex.D36
to D51 are the tax paid receipts, Ex.D56 is the application
given by Munirathnamma to BWSSB, Ex.D57 and 58 are the
plan issued by BWSSB, Ex.D59 is the card issued by
BWSSB, Ex.D60 is the receipt issued by BWSSB, Ex.D61 is
the application given by Munirathnamma to the AEE,
BWSSB, Ex.D62 is the application given by Munirathnamma
to the BWSSB, Ex.D63 is the building plan, Ex.D64 is the
18 OS.No.10348/2015
receipt issued by BWSSB, Ex.D65 is the card issued by
BWSSB, Ex.D66 is the sale agreement executed by C.Mohan
Kumar in favour of Munirathnamma on 4.7.1998 with
respect to the schedule property, Ex.D67 to D69 are the
passbooks pertaining to the defendant Vanintha, Ex.D70 to
D73 are the bank challans regarding payment of tax to the
BBMP.
14. Whereas in her cross-examination, the learned
counsel for the plaintiff elicited that Ex.P9 is the I.D. card
belongs to their mother. She also admits the Aadhaar card of
their mother during the course of cross-examination which is
marked at Ex.P10. She also admits the marriage invitation
card of the plaintiff which is marked at Ex.P11. She admits
that there is no documents to show that their mother has
given Rs.1,00,000/- to the plaintiff at the time of her
marriage. She admits that their mother consuming alcohol
and she was not feeling well at the time of her death. She
admits that their mother took the treatment at Nimhans
Hospital and she has identified the registration card issued
by Nimhans which is marked at Ex.P12. Further she has
specifically admitted in page-12 that "ನಮಮ ತತಯ ಕಕಡತದ ಚಟದದದ
19 OS.No.10348/2015
ಕಕಲಸಕಕಕ ಸರಯತಗ ಹಕಹಹಗಕತತರಲಲಲ ಎದದರಕ ಸತಕಕ ಹಕಹಹಗಕತತದದರಕ ಎದದಕ ಹಕಹಳಕತತತರಕ . ನಮಮ
ತತಯಗಕ ಕಕಡತದ ಚಟ ಇದಕದದರದದ ಅವರಗಕ ಸರಯತಗ ಊಟ ಮತಡಕತತರಲಲಲ ಮತಕತ
ದಕದಹಕವತಗ ಕಕಗಗ ಹಕಹಹಗದದರಕ ಎದದರಕ ಸತಕಕ ಅವರ ಆರಕಹಹಗಗ ಕಕಡತದದದ ಕಕಟಕಟ ಹಕಹಹಗತಕತ
ಎದದಕ ಹಕಹಳಕತತತರಕ." Further she admits that their mother has not
discriminated both the plaintiff and the defendant. Further
she stated that she found Ex.D3 in her house when she was
searching the documents and the said document kept by her
mother. But she did not see those documents. Further she
has stated that she do not know Ex.D3 earlier. She came to
know only after the death of her mother. Her husband also
came to know about Ex.D3 only after tracing the same. She
denied that herself and her husband created Ex.D3 to knock
off the property.
15. In order to prove the Will, apart from the evidence
of DW.1 she also examined another witness by name
V.Lokesh said to be the attesting witness to the Will who has
filed affidavit in lieu of his examination-in-chief as DW.2 and
he has spoken with regard to the execution of the Will by
Munirathnamma on 22.3.2000. Himself and Sharadamma
are the witnesses to the said document and marked their
signature as attesting witnesses and he has identified the
20 OS.No.10348/2015
Will before the court which is marked at Ex.D3 and he also
identified his signature marked at Ex.D3(a) and also
identified the signature of Sharadamma which is marked at
Ex.D3(b) and also identified the signature of Munirathnamma
which is marked at Ex.D3(c) and photo of munirathnamma
marked at Ex.D3(d). However, he did not turn up for cross-
examination and hence his evidence discarded.
16. The defendant also examined another witness by
name Sharadamma as DW.3 who is said to be the attesting
witness. In her evidence, she deposed that Munirathnamma
was introduced by her relative in the year 1999 in order to
get a job in Vidhana Soudha as peon. Accordingly, her self
and Munirathnamma were in close contact. Munirathnamma
informed her to come to Mayohall Court to sign the Will as
witness on 22.3.2000. Herself and Munirathnamma went to
Mayohall Court, by that time advocate had prepared the Will.
Munirathnamma executed a Will at Mayohall Court,
Bangalore and she has signed each page in her presence and
in the presence of another witness Lokesh. After explaining
the contents of the Will, Munirathnamma had signed the said
Will. Subsequently, Lokesh signed. Thereafter, she has
21 OS.No.10348/2015
subscribed her signature as witness. She also identified the
Will before the Court which is marked at Ex.D3 and she also
identified her signature at Ex.D3(b) and the signature of
Lokesh marked at Ex.D3(a) and the signature of
Munirathnamma marked at Ex.D3(c).
17. Whereas in her cross-examination, the learned
counsel for the plaintiff elicited that her mother used to work
in the house of Munirathnamma. She admits that
Munirathnamma treated her both daughters equally. Further
she deposed that her mother used to go the house of
Munirathnamma to do the household work and she also used
to accompanied her mother and visited the house of
Munirathnamma and since then she is well acquainted with
Munirathnamma. She admits that Munirathnamma addicted
to alcohol. Further she deposed that their mother was not
feeling well, for which she had been to the house of
Munirathnamma to do the household work and from there
Munirathnamma took her to Mayohall Court since
Munirathnamma has informed to her mother with respect to
the execution of the Will. She had been to the house of
Munirathnamma as her mother was not feeling well and her
22 OS.No.10348/2015
mother told her to mark the signature if she ask her. Further
she deposed that Munirathnamma and herself left the house
of Munirathnamma on 22.3.2000 at 10.00 a.m. and reached
Mayohall Court where she also found Lokesh who was
present. Further she has stated that she is not able to say
how many pages were running which she has marked her
signature on the document. If this piece of evidence is taken
into consideration makes it clear that this witness does not
know the number of pages of the alleged Will except marking
her signature. In further cross she has stated that
Munirathnamma has already prepared the Ex.D3 Will prior
to arrival by her through her advocate, she subscribed her
signature. If this piece of evidence is taken into consideration,
it appears that Ex.D3 not been prepared in the presence of
this witness, it has been prepared prior to arrival of this
witness and she has marked her signature which was already
prepared. Further she stated that she do not know who
notarized the document and she has not marked any
signature in the notary book. However, she stated that
Munirathnamma marked her signature on each of the pages,
but she is not able to say how many signatures she has
23 OS.No.10348/2015
marked. She denied that Munirathnamma not executed any
Will, the alleged Will has been created by them. Further she
has denied that the mental status and health condition of
Munirathnamma not in good condition since she has
addicted to alcohol. Though this witness has denied the
suggestion, whereas in the cross-examination of DW.1 she
has specifically deposed before the court that the health of
their mother was very deteriorated, she was addicted to
alcohol and she also took treatment in NIMHANS hospital as
well as in Victoria Hospital. When the daughter of
Munirathnamma herself admitted that the health condition of
Munirathnamma was deteriorated, DW.3 has gone to the
extent of denying the suggestion put forth by the counsel for
the plaintiff that the health condition of Munirathnamma was
not in good condition. It is necessary to state here that
according to the evidence of this witness, her relatives
introduced Munirathnamma in the year 1999, accordingly
herself and Munirathnamma were in close contact and
Munirathnamma informed her to come to Mayohall Court, as
per her instructions she had been to Mayohall Court. Her
24 OS.No.10348/2015
evidence is contrary to her cross-examination version. As
such, evidence of this witness is not trust worthy to believe.
18. The learned counsel for the defendant vehemently
argued that the defendant is elder daughter of
Munirathnamma. She was given in marriage to one Muniraju
who is none other than own brother of Munirathnamma.
Muniraju the husband of the defendant was looking after the
affairs of Munirathnamma. After performing the marriage of
the plaintiff, the plaintiff residing with her husband. The
defendant is the only daughter to look after the welfare of
Munirathnamma. Due to love and affection, Munirathnamma
got executed the Will at Ex.D3 in favour of the defendant. The
defendant succeeded the schedule property after the demise
of Munirathnamma. It is further argued that under Section
68 of the Indian Evidence Act, requirement of valid Will
should be attested by two or more witnesses and the
propounder thereof should examine one attesting witness to
prove the Will. The proof of execution of the document
required by law to be attested and it provides that such a
document shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its
25 OS.No.10348/2015
execution. These provisions prescribed the requirements and
nature of the proof, which must satisfied by the party who
relied on a document in a court of law. In the instant case, 2
attesting witnesses have subscribed their signatures on Will
and the defendant has examined one of the attesting witness
to prove the Will. The defendant has proved Ex.D3 will in
accordance with law. In support of his argunent, he has
relied upon the decision of the Hon'ble Supreme Court
reported in (2009) 4 S.C.C. 780 - Yumnam Ongbi Tampha
Ibema Devi Vs. Yumnam Joykumar Singh and others,
wherein their lordship held that "Requirements of a valid Will
- Mode of proving a Will - Attestation - What is and
mandatory requirement of - Attestation of a will means
testifying of signatures of the executant - Held, it is not a
mere formality - to be valid, a Will should be attested by two
or more witnesses and propounder should examine one
attesting, witness to prove the Will - Attesting witness should
speak not only about testator's signature or affixing his mark
to the Will but also that each of the witnesses had signed the
Will in presence of testator - On facts, evidence of purported
attesting witness established that he neither signed in
26 OS.No.10348/2015
presence of testator, nor did he know nature of the document
nor were there any attesting witnesses who had signed in his
presence - Held, statutory requirements for due execution of
will not fulfilled". And he also relied upon the decision
reported in AIR 2005 S.C. 233 - Daulat Ram and others Vs.
Sodha and others, wherein their lordship held that
"Succession Act, S.61 - Will - Proof - Burden to prove that
Will was forged or that it was obtained under undue influence
or coercion or by playing a fraud - Is on person who alleges it
to be so". He has submitted that the defendant has proved
the Ex.D3 Will in accordance with law, the defendant is the
absolute owner of the suit schedule property by virtue of the
Will, the suit schedule property is not the joint family
property of the plaintiff and defendant, he sought for
dismissal of the suit.
19. On the other hand, the learned counsel for the
plaintiff has argued that the plaintiff and the defendant are
only two daughters to Munirathnamma. Munirathnamma
having treated both the plaintiff and the defendant equally,
she was having love with the plaintiff since she was residing
with the plaintiff during her evening days. When
27 OS.No.10348/2015
Munirathnamma having love with the plaintiff and residing
with her she has no intention to execute the Will in favour of
the defendant by excluding the plaintiff. In order to prove
that Munirathnamma was residing with the plaintiff, the
plaintiff's counsel has drawn the attention of the court on
Ex.P10 Aadhaar card which belongs to Munirathnamma,
wherein the address of Munirathnamma is corresponding to
the address shown in the cause title by the plaintiff. Further
the learned counsel for the plaintiff has argued that
Munirathnamma had purchased the suit schedule property
in the year 1999 out of her own earnings and she has
constructed four storied building in the schedule property
and residing therein. She has no occasion to bequeath the
property in favour of the defendant by executing the Will. The
alleged Will has been created by the defendant taking undue
advantage of Munirathnamma addicted to alcohol. In support
of his contention, he drawn the attention of the court on
Ex.P12 the card issued by NIMHANS Hospital which is in the
name of Munirathnamma and also drawn the attention of the
court on the cross-examination of DW.1, wherein she has
admitted that her mother was addicted to alcohol and her
28 OS.No.10348/2015
health condition was not good. When Munirathnamma is not
having free will and consent and she was addicted to alcohol,
the question of executing the Will in favour of the defendant
does not arise at all.
20. It is further submitted that the propounder who
approaches the court has to prove the alleged Will with
cogent and convincing evidence without any cloud of doubt.
Though the defendant has examined one of the attesting
witness as DW.3, but her evidence is not coupled with the
alleged Ex.D3. The defendant has not removed the suspicious
circumstances by producing cogent evidence. It is further
submitted that DW.3 though stated with regard to the alleged
Will, whereas in her cross-examination, she has specifically
stated that Ex.D3 was prepared prior to her arrival,
admittedly the Will was not written in the presence of this
witness, it was already written before she went to attest it
and she do not know how many pages were running except
marking her signature. This witness has not at all spoken as
to how many pages were running and hence, the presence of
this witness itself is doubtful. Moreover, the age of the
attesting witness shown as 40 years as on 21.9.2021, the
29 OS.No.10348/2015
alleged Will had took place in the year 2000 i.e., on
22.3.2000. The age of the attesting witness by that time could
be 19 years, she was in tender age and she is not at all
having mature mind to understand the things. Moreover, she
is not well acquainted with Munirathnamma, she came to
know Munirathnamma through her mother since her mother
used to work in the house of Munirathnamma. As such the
evidence of DW.3 is not trust worthy to believe. It is further
submitted that the defendant has failed to prove the alleged
will. In support of his arguments, he has relied upon the
decision of the Hon'ble Supreme Court reported in AIR 1959
S.C. 443 - H.Venkatachala Iyengar Vs. B.N.Thimmajamma
and others, wherein their lordship held that "Evidence Act,
S.67, s.68, s.45, s.47 - Proof of Will - Onus of proof on
propounder - Nature appreciation of evidence - Duty at
Court. Succession Act, S.59, S.63 - Wills". And also relied
upon the Civil Appeal No.6076 of 2009 in case of Shivakumar
and others Vs. Sharanabasappa and others. In the instant
case, the defendant has failed to prove the alleged Will by
giving impeachable evidence and not removed the suspicious
circumstances. Hence, he sought for decreeing the suit.
30 OS.No.10348/2015
21. It is significant to note here that, Will is one of the
most solemn documents known to the law. By if a dead man
entrusts to the living duty to carry out his wishes. It is
impossible that he can be called either to deny his signature
or explained the circumstances in which it was attested. It is
settled principle of law that proof of Will and presumption of
sanctity bequeathed by the person claiming under the Will he
alone should remove the suspicious circumstances where
suspicious circumstances was aroused. In the instant case,
the plaintiff and the defendant are the only daughters of
Munirathnamma, she has treated both of them equally. There
is no any evidence forthcoming by the defendant that
Munirathnamma hated the plaintiff during her life time. On
the other hand, the evidence placed by the plaintiff will
indicates that Munirathnamma residing with the plaintiff
during her evening days. When such being the facts, she has
no intention to execute the alleged Will in favour of the
defendant only by excluding the plaintiff. When
Munirathnamma treated her both daughters equally, there is
no circumstances arise to Munirathnamma to bequeath the
schedule property only in favour of the defendant by
31 OS.No.10348/2015
excluding the plaintiff. From the available evidence, it reveals
that Munirathnamma addicted to alcohol and her health was
not in good condition. This fact has been admitted by the
DW.1 during her cross-examination. It is also one of the
circumstances that with the influence of alcohol, the
defendant might have get the alleged Will. It is important to
note here that Munirathnamma had purchased the suit
schedule property in the year 1999 out of her own earnings
and constructed four storied building in the schedule
property. The alleged will has took place in the year 2000.
Munirathnamma died in the year 2013. There is no occasion
to Munirathnamma to execute the Will in the year 2000 only
after one year from the date of purchase. The defendant has
specifically contended that her husband was looking after the
affairs of Munirathnamma since he is none other than her
own brother and himself has invested the money to construct
the building in the schedule property and considering the
same, their mother has got executed the Will in favour of the
defendant. Absolutely no iota of evidence placed by the
defendant to show that her husband Muniraju invested the
money to construct the building in the schedule property
32 OS.No.10348/2015
except her formal contention. If at all the husband of the
defendant has invested the money as contended by her, what
prevented her to brought her husband Muniraju before the
court and examine him to prove her contention. When she
has not brought and examined Muniraju, it is also one of the
circumstances, to disbelieve the contention of the defendant
that her husband has invested the money to construct the
building in the schedule property, their mother could have
bequeathed the schedule property in favour of Muniraju by
considering the investment made by him. When there is a
suspicious circumstances surrounding the Will, the court
naturally expect that legitimate suspicion should be
completely removed before the document is accepted as last
testament for the Will. It is settled law that proof of Will and
presumption of sanctity bequeathed by the person claiming
under the Will, he alone should remove the suspicious
circumstances and he should be produce trust worthy and
unimpeachable evidence before the court to establish the
genuineness and authenticity of the Will. It must be stated
that the factum of equity and validity of the Will cannot be
determined merely by considering the evidence produced by
33 OS.No.10348/2015
the propounder. In order to judge the credibility of the
Witness and discharge the truth from the falsehood, the court
is not confined only to their testimony. It would be open to
the court to consider the circumstances brought out in the
evidence or which appear from nature and contents of of
documents itself. It would also be open to the court to look
into the surrounding circumstances as well as
improbabilities of the case to reach proper conclusion as
nature of evidence adduced by the parties. Though the
defendant examined DW.3 said to be the attesting witness,
she admitted that the Will was not written in her presence
and it was already written her went to attest and she
specifically admitted that, she do not know how many pages
were running except marking her signature. Moreover, the
age of the attesting witness was 19 years as on the date, she
was not at all having matured mind to understanding the
things. As such, her evidence is not trust worthy to believe.
Except DW.3, no other evidence forth coming by the
defendant to prove by the alleged Will. In the instant case,
the defendant has failed to remove the suspicious
circumstances by producing evidence.
34 OS.No.10348/2015
22. I have carefully perused the decisions of the
Hon'ble Supreme Court relied by both the plaintiff and the
defendant, I am of the humble opinion that the ratio of the
decisions relied by the counsel for the plaintiff and defendant
are aptly applicable to the case on hand. In the light of the
above decisions as well as discussion made above, the
defendant has failed to prove that their mother
Munirathnamma executed Will dated 22.3.2000 bequeathing
the suit schedule property in her favour. In the result, I hold
issue No.1 in the affirmative and issue No.2 in the negative.
23. Additional Issue No.1 :- The defendant has
contended that the house property construction in Site No.29
measuring east to west 30 feet and north to south 30 feet is
the joint family property of the plaintiff and the defendant
and the plaintiff has purposely not included the said property
and hence the suit is bad for non-inclusion of all the joint
family property. In support of the contention of the
defendant, apart from the evidence of DW.1, she relied upon
the possession certificate issued by the Gram Panchayathi,
Hebbal in favour of Doddaiah which is marked at Ex.D2
pertaining to the Site No.29 and demand register extract
35 OS.No.10348/2015
marked at Ex.D52 and tax paid receipts marked at Ex.D53
and D54. The said property is also joint family property of
their father Sambaiah, it has not been divided among
Sambaiah and Doddaiah. As such the said property is also
the joint family property. However, the learned counsel for
the defendant cross-examined PW.1 and put forth the said
contention in the cross-examination that Site no.29 granted
in favour of their Senior uncle Doddaiah and possession
certificate issued in his favour which is marked at Ex.D2 and
the said property has not been partitioned among their father
and Doddaiah. She pleads ignorance about the said
suggestion. Though the defendant has produced Ex.D2 and
Ex.D52 to D54 to show that the said property is also the joint
family property of their father Sambaiah and Doddaiah, on
perusal of Ex.D2, it reveals that the Hebbal Gram
Panchayath has issued possession certificate in favour of
Doddaiah in the year 1963 through the Government. The
said property has been granted in favour of Doddaiah in his
individual name and not on behalf of the joint family. Based
on the said possession certificate, demand register extract
made out in the name of son of Doddaiah namely Ramaiah
36 OS.No.10348/2015
after the demise of Doddaiah which is evident from Ex.D52
and Ramaiah has paid the tax to the concerned Gram
Panchayath which is evident from Ex.D53 and D54. If at all
the said property has been granted in favour of Doddaiah on
behalf of joint family, they would have transferred the khata
jointly in the name of Doddaiah as well as Sambaiah instead
of transferring in the name of Doddaiah only. The defendant
has failed to prove that Site No.29 is also granted on behalf of
the joint family of their father Sambaiah and senior uncle
Doddaiah. Hence, I hold additional issue No.1 in the negative.
24. Additional Issue No.2 :- When the defendant
has failed to prove that the Site No.29 is also granted on
behalf of the joint family in the name of their senior uncle
Doddaiah, the said property is not the joint family property of
Doddaiah and Sambaiah and as such, there is no force in the
contention of the defendant that the suit is bad for partial
partition. Hence, I hold additional issue No.2 in the negative.
25. Additional Issue No.3 :- The defendant has
contended that the suit is bad for non-joinder of necessary
parties and submitted that the partition of the joint family
property has not taken place at the time of plaintiff's
37 OS.No.10348/2015
grandfather Honnuraiah and the children of Honnuraiah
have not been made as parties to the proceedings and hence
the suit is bad for non-joinder of necessary parties. In
support of the contention of the defendant, the defendant,
apart from her evidence, she relied upon the genealogical tree
marked at Ex.D1. The defendant has relied upon the
genealogical tree to show that their grandfather is
Honnuraiah and his sons are Doddaiah and Sambaiah and
between them the partition of the joint family properties have
not been taken place. No doubt, Honnuraiah is none other
than grandfather of plaintiff and father of their father
Sambaiah and Doddaiah, but there is no joint family property
belonged to their grandfather Honnuraiah. When there is no
joint family properties of Honnuraiah, the question of
impleading the branch of Doddaiah the senior uncle of the
plaintiff and the defendant as parties to the proceedings does
not arise at all. Hence, the plaintiff has not made the branch
of Doddaiah as parties to the proceedings since the suit
schedule property is the only the family property of
Munirathnamma who is the mother of the plaintiff and the
38 OS.No.10348/2015
defendant. Hence, I hold additional issue No.3 in the
negative.
26. Issue No.3 :- Since the plaintiff and the
defendant are the daughters of Munirathnamma and the suit
schedule property is the joint family property of the plaintiff
and the defendant and the plaintiff and the defendant are the
co-sharers, no injunction can be granted against the co-
sharer. As such the plaintiff is not entitled for the relief of
permanent injunction against the defendant. Hence, I hold
issue No.3 in the negative.
27. Issue No.4 :- When the plaintiff has proved the
prime issue No.1 with cogent and convincing evidence, the
plaintiff is entitled for the relief sought for. Hence, I hold
issue No.4 in the affirmative.
28. Issue No.5:- In view of the above discussions, I
proceed to pass the following order:-
ORDER
The Suit of the plaintiff is hereby decreed declaring that the plaintiff and the defendant are entitled for half share each in the suit schedule property.
39 OS.No.10348/2015Considering the relationship of the parties, there is no order as to costs.
Draw a preliminary decree accordingly.
(Dictated to the Judgment Writer, typed by him, the transcript thereof corrected and then pronounced by me, in open court, on this the 28th day of February , 2022).
(Kengabalaiah), XLII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiff:
PW.1 Vimala H.S. List of documents exhibited for plaintiff:
Ex.P1 Genealogical tree Ex.P2 Certified copy of Sale Deed dated 3.3.1999 Ex.P3 Khata extract Ex.P4 Death certificate Ex.P5 Legal notice Ex.P6 Postal receipt Ex.P7 Returned postal cover Ex.P8 Encumbrance certificate Ex.P9 I.D. card of Munirathnamma Ex.P10 Aadhaar card of Munirathnamma Ex.P11 Wedding invitation card Ex.P12 Registration card 40 OS.No.10348/2015 List of witnesses examined for defendant:
D.W.1 Vanitha H.S. DW.2 V.Lokesh DW.3 Smt. Sharadamma
List of documents exhibited for defendant:
Ex.D1 Genealogical tree Ex.D2 Possession certificate Ex.D3 Will dated 22.3.2000 Ex.D4 Original Sale Deed dated 3.3.1999 Ex.D5 Original Sale Deed dated 19.4.1995 Ex.D6 GPA dated 1.6.1988 Ex.D7 Affidavit Ex.D8 GPA 16.8.1982 Ex.D9 Affidavit Ex.D10 to 15 Tax paid receipts Ex.D16 Khata certificate Ex.D17 Khata extract Ex.D18 to 20 Water bills and Receipts Ex.D21 to D26 Electricity bills and receipts Ex.D27 & 28 Deposit challans for water supply Ex.D29 Certified copy of Sale Deed dtd 19.4.1995 Ex.D30 to 32 Encumbrance certificates Ex.D33 & 34 Notices Ex.D35 Endorsement Ex.D36 to 44 Tax paid receipts Ex.D45 License for construction 41 OS.No.10348/2015 Ex.D46 to 51 Tax paid receipts Ex.D52 Tax demand register extract Ex.D53 & 54 Tax paid receipts Ex.D55 Khata registration notice Ex.D56 Application for Water supply Ex.D57 & 58 Plan Ex.P59 BWSSB record Ex.D60 Initial deposit receipt of BWSSB Ex.D61 Application Ex.D62 Application for water supply Ex.D63 Building sanction plan Ex.D64 Receipt Ex.D65 BWSSB record Ex.D66 Original Sale agreement dated 4.7.1998 Ex.D67 to 69 Canara Bank passbooks Ex.D70 to 73 Bank challans XLII Addl. City Civil & Sessions Judge, Bengaluru.