Bangalore District Court
Smt.B.R.Swarnalatha vs Sri.M.Balakrishna Rao on 1 April, 2021
1
OS. No.2677/2003
IN THE COURT OF THE LXI CITY CIVIL &
SESSIONS JUDGE: BENGALURU CITY (CCH-62)
Dated this the 1 st day of April, 2021
-: PRESENT :-
Sri S.R.MANIKYA, B.Sc., LL.B.,
LXI Addl. City Civil & Sessions Judge,
Bengaluru, (CCH-62)
ORIGINAL SUIT NO.2677/2003
PLAINTIFF/S : 1 Smt.B.R.Swarnalatha
W/o.Sri.N.Nagaraja
Aged about 54 years
R/a.No.1030
1st B Main Road
B.R.P. Road II Phase
Girinagar
Bangalore-85.
(By Sri STKP, Advocate)
V/s.
DEFENDANT/S : 1. Sri.M.Balakrishna Rao
S/o.Late Shankarappa
Aged about 96 years
Other legal representatives are already
parties in the plaint
2. Sri.M.B.S.Murthy
S/o.Sri M.Balakrishna Rao
Aged about 66 years
3. Sri.M.B.Shivanath
2
OS. No.2677/2003
S/o.Sri M.Balakrishna Rao
Aged about 63 years
All are R/a.No.17
2nd Cross Road
Shankarapuram
Bangalore-04.
4. Smt.B.R.Seetharathna
W/o.Sri.R.K.Chandrashekar
Aged about 59 years
R/a.No.F.61
Old 7th Cross, New 1st Cross,
Gayathrinagara
Bengaluru-21.
Since deceased represented by LRS
1. Chanrashekaraiah
S/o.Late.R.Kalyana Sundaran
2. Nagaraj
S/o.Chandrashekaraiah
3. Sundaravey
S/o.Chandrashekaraiah
4. Guruprasad
S/o.Chandrashekaraiah
All are R/a.No.17, 2nd Cross Road,
Shankarpuram, Bengaluru 04.
(By Sri.NSP., Advocate for D2 & 3)
Date of institution
of the suit : 20.02.2003
Nature of the suit
3
OS. No.2677/2003
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Partition
Date of the commencement
of recording of the evidence: 03.06.2009
Date on which the
Judgment was pronounced : 01.04.2021
Year/s Month/s Day/s
Total Duration : -18- -01- -12-
J UD GM E N T
This is a suit filed by the plaintiff for the relief of
partition of the suit schedule property by metes and bounds
and also to direct the defendant to demolish the unauthorized
structure of car garage put up by them in the suit schedule
property and to grant such other reliefs.
SCHEDULE PROPERTY
All that piece and parcel of the residential property
bearing No.17, situated at 2nd Cross Road, Shankarapuram,
Bengaluru 04, comprising of main house and out house
consisting of ground and first floor of old residential buildings
and bounded on the;
East by : Property No.18
West by : Property No.16
North by : Conservancy Lane and
South by : 2nd Cross road.
4
OS. No.2677/2003
Measuring east to west : about 48 (forty eight) feet and North
to south : 96 (ninety six) feet.
2. The brief facts of the plaintiff's case is that;
The first defendant is father of the plaintiff, 2 nd and 3rd
defendant are brother and 4th defendant is the sister of the
plaintiff. The suit schedule property was the ancestral
property of Smt.K.Sharadamma who is the mother of the
plaintiff and defendant No.2 to 4 and wife of the first
defendant. During the life time Smt.K.Sharadamma she has
become the absolute owner of the property by virtue of the
will executed by her father Late Sri.K.Shivaramaiah. The said
property was standing in th name of Smt.K.Sharadamma as a
assessee. She was paying property taxes to the BBMP.
Smt.K.Sharadamma died intestate on 29.05.2001 at
Bengaluru leaving behind plaintiff and defendant No.1 to 4 as
her legal heirs. After the demise of Smt.K.Sharadamma the
plaintiff and defendants are in joint possession and
enjoyment of the suit schedule property as a successor. The
plaintiff have a right in the suit schedule property and she is
entitled for 1/5th share as per the Hindu Succession Act.
After the demise of Smt.K.Sharadamma many efforts were
made for partition of the property at the instance of the 1 st
defendant. But it was not materialized and though the 1 st
defendant has assured the 2 nd and 3rd defendant to give a
share to the plaintiff and 4th defendant but the suggestion of
5
OS. No.2677/2003
the 1st defendant was not accepted. Though there was
proposal for division of the property wherein it has been
stated that the 2nd and 3rd defendant would give a larger share
and other persons will get lesser share, hence such proposal
was not accepted by the plaintiff. After three years from the
date of death of Smt.K.Sharadamma inspite of best efforts
made by the plaintiff for division of the property to acquire
share on account of adamant attitude of defendant No.2 and
3, it was not possible for the plaintiff to divide the property
and get her share. Hence, all the efforts made by the plaintiff
has become futile. She issued a legal notice on 20.02.2003
calling upon the defendant No.1 to 3 to divide the property to
allot the legitimate share to the plaintiff for which no reply
has been sent by the defendants. The 4 th defendant is
assailing with the plaintiff and she has consented for granting
1/5th share. Inspite of notice issued and demand for partition
no positive steps has been taken by the defendant No.2 and 3.
Hence, this suit is filed for partition.
It is further contended that though the defendant No.2
and 3 were have knowledge about the pendency of the suit
they have legally constructed the car garage in the open space
and they have also put up a staircase in the middle of the
garage it attracts Doctrine of lis-pendency the question of
claiming possession by the defendants on the equity made
legally does not arise at all. Now in order to substantiate the
6
OS. No.2677/2003
fact of property standing in the name of the
Smt.K.Sharadamma property extract is produced and plaintiff
is suffering from health disorder she is unable to move
personally or without physical support of any other person.
As the plaintiff is of the daughter of deceased
Smt.K.Sharadamma she is entitled for getting 1/5th share in
the suit schedule property. Hence, he prayed for decreeing the
suit.
3. Now for this plaint, the 1 st defendant has also filed
written statement and 2nd and 3rd defendant have also filed
written statement. The 1st Defendant has contended that the
suit which is filed by the plaintiff is not at all maintainable in
law. This suit has been filed only to harass this defendant.
Now on the basis of will executed by K.Shivaramaiah who is
the father of Smt.K.Sharadamma dated 14.10.1941. The same
was subjected to Probate proceedings and in the District
Court at Mysuru city in Mis. Case No.29/40-41. Letter of
Administration and also Probate was granted in the said
proceedings. Upon obtaining the probate the Khatha was
transferred in the name of K.Sharadamma. She continued as
a absolute owner of the property and during her life time she
allowed all the children to renovate the Mangaluru tile roof
house and renovation was made after obtaining loan and by
the virtue of will dated 13.11.1975 three division was effected
to the defendant of his two sons and out house portion was
7
OS. No.2677/2003
given to the plaintiff and defendant No.4. the loan was
persisted on the out house portion and it was directed by the
Will that the 3rd defendant has to clear all the loans, he has
cleared the loan as per the will the plaintiff is enjoying the
property she has leased/mortgaged the property to the tenant
Annapoorna and Vittal Murthy. The defendant No.4 Son
Nagaraj has also allocated the property and where she is
residing and even during the life time of Smt.K.Sharadamma
the said tenants were vacated and the property was allotted to
the 2nd and 3rd defendant has been renovated by their
personal funds. Hence, the question of claiming that the
construction made by the defendant No.2 and 3 is illegal is of
no consequence. Even during the life time of
Smt.K.Sharadamma there was no obstruction for enjoyment
of the property according to the division made by her in the
will. In such a circumstances, the question of considering the
case of the plaintiff as contended in the plaint does not arise
at all. Now from the date of execution of the will the respective
persons are enjoying the property separately, without any
obstruction. Under such circumstances, he prayed for
dismissal of the suit.
Now the 2nd and 3rd defendant have specifically took up
a contention that by virtue of granting probate
Smt.K.Sharadamma has become the absolute owner of the
property and she has got every right to dispose of the
8
OS. No.2677/2003
property. According to her own will and wish and accordingly
she has executed the will dated 13.11.1975 even though the
will was of the year 1975, that has not been denied by the
plaintiff even in the will the property was also allotted to the
plaintiff which was taken away by the plaintiff now enjoying
that property without ulterior motive to deprive the defendant
from using that property this false suit has been filed. Now
the question of division of property arises only after
Smt.K.Sharadamma died intestate. To show
Smt.K.Sharadamma has executed the will with testamentary
capacity also disposed the property in a sound state of mind
the shares were alloted to the parties according to her will
and wish and the properties have been enjoyed separately by
all the parties as per the Will executed by
Smt.K.Sharadamma. The question of claiming the property by
the plaintiff for the partition as contended in the plaint does
not arise at all.
The contention of the plaintiff that the construction
made by the defendant No.2 and 3 is illegal one is also
specifically denied. The contention of the plaintiff that there
was no division of the property. Hence, the same has to be
divided by metes and bounds is of no consequence. Even the
defendants have requested the plaintiff to effect the khatha
in their respective names for which the plaintiff has
consented, later on she turned back. According to the will
9
OS. No.2677/2003
dated 13.11.1975, the legatees have got the khatha in their
respective share as stated in the will and also mutated the
names of beneficiary as per the said ill. Hence, the suit is not
maintainable.
Further,the plaintiff is also one of the legatee in the will
dated 13.11.1975 she acquired the property by virtue of will
which is leased out to tenant. She is taking the rent and from
the date of knowledge of the Will the plaintiff or any other
family members or shares have not raised objection about the
Will and also they have not specifically denied about the
execution of the Will. Under such circumstances, the proving
of the Will dated 13.11.1975 does not arise at all. By virtue of
the Will dated 13.11.1975, all the respective parties names
has been entered in the khatha respect share holders have
also taken the possession and enjoying the property. In such
a circumstances, the question of filing the suit and
maintaining the suit as claimed by the plaintiff does not arise
at all. In the evidence she has specifically admitted about
leasing of the property which establishes the exclusive
possession and enjoyment of the property and when she has
specifically admitted about acquiring the property by virtue of
will the leasing out the property to the tenants the question of
proving issue No.4 by the defendant does not arise at all.
Hence, he prayed for dismissal of the suit. The 4 th defendant
has assailed that the plaintiff and consented for granting
10
OS. No.2677/2003
share to the extent of 1/5th share.
4. On the basis of the rival contention of the parties my
learned predecessor has framed the following issues.
1 Whether the plaintiff proves she is in joint
possession and enjoyment of suit
schedule property along with defendants
No.1 to 4?
2 Whether the plaintiff proves that she is
entitled for partition and separate
possession of 1/5th share in the suit
schedule property?
3 Whether the defendants No.1 to 3 prove
that later Sharadamma had executed Will
on 13.11.1975 and bequeathed the suit
schedule property in favour of all the
parties by making division?
4 Whether the defendants No.1 to 3 proves
that as per the terms of the Will, the
plaintiff is in possession of the out house
area measuring 480 sq. ft.?
5 Whether the defendants No.1 to 3 proves
that plaintiff has put up first floor on the
property allotted to her and let out both
ground floor and first floor and getting
rental income?
6 Whether the defendants No.1 to 3 prove
that the plaintiff and defendants are
enjoying their portions as per the terms of
11
OS. No.2677/2003
the Will?
7 Whether the plaintiff is entitled for mesne
profits?
8 What decree or order?
5. Inorder to prove the case of the plaintiff, PW-1
was examined and got marked in all fourteen documents at
Ex.P.1 to Ex.P.14. On behalf of the defendant DW-1 to 4 have
been examined and got marked documents at Ex.D.1 to
Ex.D.26.
6. I have heard the arguments of both the plaintiff and
defendant No.2 and 3 counsel. When the case was posted for
judgment on that judgment date, written arguments filed by
defendant No.2 and 3 which is kept in file. During the course
of suit the 4th defendant has succumbed to death and his
LRS were brought on record. Inview of the arguments
canvassed by plaintiff counsel and defendant No.2 and 3
counsel and the citations referred by both the parties in
answers to the above issued are as follows;
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
Issue No.3 : In the negative
Issue No.4 : In the negative
12
OS. No.2677/2003
Issue No.5 : In the negative
Issue No.6 : In the negative
Issue No.7 : In the negative
Issue No.8 : As per final order
for the following;
R E A S ON S
7. Issue No.1:- Now where as in this case the plaintiff
has took up a specific contention that the schedule property
was the property of plaintiff and defendants mother
Smt.K.Sharadamma who acquired the property by virtue of a
Will executed by her father. The said Will was probated in a
competent Court of Law at Mysuru and thereby the the
property was the absolute property of Sharadamma that is the
mother of plaintiff and defendant No.2 to 4. Now Sharadamma
has acquired a right in the property by virtue of Will and
probate granted by the competent Court of Law of Mysuru and
from the date of acquiring of the property Sharadamma was
enjoying the property as a absolute owner and according to the
plaintiff she died intestate.
8. But according to the Defendant No.1 to 3
Smt.Sharadamma was not died intestate. On the other hand
she has executed a Will dt.13.11.1975 and by virtue of a will
she has bequeathed the property to all the legal representative
of Sharadamma on the basis of a will the parties have acted
upon asper the testator intension the properties have been
13
OS. No.2677/2003
enjoyed by the plaintiff and defendant in a separate manner as
indicated by the testator by virtue of a Will dated 13.11.1975
which is marked as Ex.D.17. According to the Will the
respective parties have taken their respective shares and they
are in their respective possession and enjoyment of the
property bequeathed to them by virtue of a will by late
Sharadamma. Now the plaintiff has specifically denied about
the execution of Will & she has specifically took up the
contention that there was no such Will and the proof of Will is
to be established by defendant No.1 to 3. Defendant No.1 to 3
have to establish the genuinity of the Will and upon proving
the genuineness of the Will and upon proving the disposal of
property in accordance with the Will then only the contention
of the Defendant No.1 to 3 can to be accepted with regard to
the execution of the Will.
9. Now in regarding of execution of the Will and genuinty
of the Will, I will discuss issue No.3 to 5 and the finding will
have to be given on the genuinity of the Will. In the absence of
specific proof of the Will by defendant No.1 to 3 the property
which was acquired by Sharadamma by virtue of Will and by
virtue of Probate then it has to be considered as her absolute
property. Now, according to Section 14 of Hindu Succession
Act, it is specifically stated that any property possessed by a
Female Hindu whether acquired before or after the
commencement of this Act, shall be held as full owner thereof
14
OS. No.2677/2003
and not as a limited owner, property includes both movable
and immovable property acquired by a female Hindu by
inheritance or devise, or at a partition, or in lieu of
maintenance or arrears of maintenance, or by gift from any
person or in any other manner whatsoever, shall be considered
as her absolute property. It is also specifically stated that by
virtue of executing Will by her father she acquired a right in
the property by virtue of a probate granted in Mis. No.29/40-
41 which is marked as Ex.P.21 where in Shivaramaiah the
father of Smt.Sharadamma has executed a Will on 26.09.1940
and by virtue of granting probate she has become the owner of
the property and thereafter coming to force Section 17 and
Section 14 of Hindu Succesion Act, the Sharadamma has
become the owner of the property.
10. Now, it is the specific contention of the plaintiff that
the property of plaintiff and defendant was not partitioned
between the family members after the death of Sharadamma
and according to Section 15 of Hindu Succession Act wherein
it is specifically held that in case of Female living behind the
property dying intestate shall be devolved according to Section
16 of Hindu Succession Act Section 16 says that all the Legal
Representatives of deceased are entitled to have equal and
simultaneous share in the property. Further it is to be
specifically noted in the plaint it is contended by the plaintiff
that after the death of Sharadamma the plaintiff & defendant
15
OS. No.2677/2003
No.1 to 4 are in joint possession and enjoyment of the
property. Though a specific contention has been taken by
defendant No.1 to 3 that by virtue of the Will executed by
Sharadamma that is on 13.11.1975 which is marked as
Ex.D.17 and by virtue of that Will the respective legatees have
acquired their share and they are residing separately in their
respective shares.
11. But inorder to establish the fact that there was a
partition between the family members no material is placed on
record by Defendant No.1 to 3 by virute of evidence adduced by
defendant No.1 to 3 the Will alleged to have been executed by
Smt.Sharadamma it is not established before the Court as per
the discussion held in issue No.2 to 5. Hence, it is to be
considered that the plaintiff and defendant continued as a joint
family members and they continued in joint possession and
enjoyment of the suit schedule property. When the plaintiff has
established the fact of death of Sharadamma intestate when
the defendants have miserably failed to establish about the
partition by metes and bounds in the property then the court
has no other option to hold that the property is in joint
possession and enjoyment of plaintiff and defendant No.1 to 4.
Hence, I have no hesitation to answer issue No.1 in the
affirmative.
12. ISSUE No. 3 to 6:- Now these issues are
16
OS. No.2677/2003
interconnected with each other and all these issues are to be
answered on the same set of facts, circumstances and
reasonings inorder to avoid the repetition of facts,
circumstances and reasonings, I am discussing all these issues
together. Because the plaintiff is contending that Sharadamma
the mother of the plaintiff and defendant No.2 to 4 have died
intestate and thereby the plaintiff is entitled for 1/5th share in
the suit schedule property as per Section 15 and 16 of Hindu
Succession Act. On the other hand, the defendant No.1 to 3
have took up a specific contention in the written statement as
well as in the cross-examination of PW-1 contending that
Sharadamma has executed the Will on 13.11.1975 and
according to the Will the plaintiff was also granted a area of
480 sq. ft and by virtue of the Will executed by Sharadamma
the defendant No.1 to 3 and plaintiff were enjoying the
property which alleged to have been granted in the Will to the
plaintiff and as well as defendant No.1 to 3 and inview of
execution of the Will bequeathed the property to the plaintiff.
And in pursuance of the Will and allotment of the property to
the plaintiff, the plaintiff has put up the first floor on the
property alloted to her and leased out the property to the
tenants and getting income from the property.
13. But the plaintiff though accepted the possession and
enjoyment of the property by her in the suit schedule property,
but she has specifically denied that there is no specific division
17
OS. No.2677/2003
of property by metes and bounds to grant equal share for all
the parties. There is no specific document to establish the fact
that there was partition in the property and thereby the
properties have been divided by parties between metes and
bounds. To grant equal share for all the parties there is no
specific document to establish the fact that there was partition
in the property and thereby the properties have been divided
between parties by metes and bounds. Though according to
the defendant No.1 to 3 the Will has been executed by
Sharadamma. But the Will was not acted upon and there is no
further move on the basis of the Will and to fulfill the specified
intention of the testator the will claimed by defendant No.1 to
3 was not a Genuine Will.
14. On the other hand, defendant No.1 to 3 have took up
a specific contention in the written statement as well as in the
evidence that by virtue of the Will dated 13.11.1975, which is
marked as Ex.D.17 was executed by Sharadamma wherein she
has specified her intention to give property to all the members
of the family according to the dispossession made in the Will.
After coming to know of the fact of the execution of the Will the
parties have acted upon and the respective parties have also
put up a construction in the property and changed the nature
of the property for which no counter objection has been raised
by any of the family members or any counter denial has been
made by any member of the family. By virtue of the Will the
18
OS. No.2677/2003
property which is bequeathed in favour of defendant No.2 to 3
and Defendant No.4 the khatha was also changed and
defendant No.1 to 4 are enjoying the property as their
respective property from the date of coming to know of the fact
of the execution of the Will. Under such circumstances, when a
specific intention has been expressed by way of expressed
covenant mentioned in Ex.D.17 by the testator to dispose of
the property in specific manner as stated in Ex.D.17. To fulfill
the intention of the testator the parties have acted upon and
under such circumstances the questions of claiming the
property for a partition or subjecting the property for partition
as contended by the plaintiff in the plaint does not arise at all
according to the contention of the defendant counsel.
15. In such a circumstances, the burden is upon the
defendant to prove about the execution of the Will which is
marked as Ex.D.17 and genuinity of the Will and the parties
have acted upon that Will there by the plaintiff is acquiesced
her right in the property as per the Will and wish of testator.
Hence, the suit is not maintainable and the property which is
acquired by the plaintiff will have to be considered as her
share allotted to her and issue No.3 to 6 have to be answered
in affirmative according to the defendant counsel argument.
16. Now, a specific contention has been taken by the
defendant No.1 to 3 in the written statement that by virtue of
19
OS. No.2677/2003
will the defendant No.1 to 3 have become owner of the property
as per the property allotted to them in the Will. The 1 st
defendant who is also the father of the plaintiff and defendant
No.2 to 4 and also the husband of deceased Sharadamma has
executed a Will in favour of 2 nd defendant bequeathed the
property to the 2nd defendant by virtue of the right acquired
under the Will Ex.D.17. It is contended by the 2 nd defendant
that by virtue of will the 2 nd defendant has become the absolute
owner of the property. Hence, he contended that the question
of considering the case of the plaintiff that the property is
liable for partition is of no consequence.
17. On the other hand, the learned plaintiff counsel has
vehemently contended in his argument and contended that
though according to defendant No.1 to 3 the execution of the
Will was made in the year 1975 and to prove that fact the
Ex.D.17 has been produced and DW-2 is also examined and
Ex.D.18 to 26 are also produced. Now, it is to be specifically
noted according to the defendant the Will was executed on
1975. But till 2007 khatha was not changed. It is also in the
year 2007 the khatha has been changed as Ex.D.8 to 14. The
suit was filed in the year 2003. Now according to the defendant
the date of death of Sharadamma was on 29.05.2001 as per
Ex.D.16. If really there was a Will as contended by the
defendant they could have taken action on the Will. But no
action has been taken till 2003. Before filing the suit, the
20
OS. No.2677/2003
plaintiff has issued a notice which is marked as Ex.P.3. this
notice was issued on 20.02.2003. Now in the said notice, the
plaintiff has demanded for partition and the same was served
on the defendant as per Ex.D.3(c to f). But no reply has been
sent contending that there is a will and by virtue of Will they
have acquired right in the property.
18. Further, it is to be noted in the year 2003, the khatha
extract has been obtained which is marked as Ex.P.4 which
stands in the name of Sharadamma only and in the said
document it is specifically stated that the tenants of the
premises is Annapoorna and Vittal Murthy according to the
contention of the defendants these two tenants have been
induced by the plaintiff. If that is the case there must be a
document. But to corroborate that fact no document has been
produced. Further, he has also contended that even by virtue
of document Ex.D.18 to 20, 26, the loan which was availed by
Sharadamma by mortgaging the property was also paid by her
only and released the property.
19. Now according to the defendants the plaintiff has put
up a construction in the property after the allotment of the
property by virtue of Will. But the existence of Will was not
known to the plaintiff till the defendant took up a specific
contention. Under such circumstances, the question of
considering the fact that the plaintiff was aware of execution of
21
OS. No.2677/2003
the will and she was aware of the division of the property in
accordance with the Will is of no consequences. Though DW-2
has been examined it does not help to prove the case of the
defendant No.2 and 3 and he has drawn my attention to the
decision reported in AIR 1992 KAR 282 and AIR 1967 Bombay
and contended that when a specific contention has been taken
that the Will has been executed, then it is to be specifically
established about due execution of the Will and about
testamentary capacity of the testator also. The sound state of
mind for all these act there must be a pleading in the written
statement that in a sound state of mind and in the presence of
attestor the Will was executed. If that is not established the
question of considering the Will as a genuine one does not
arise at all. Hence, he contended that the contention of the
defendant cannot be accepted.
20. Now according to the defendant the property has
been put up by the plaintiff after acquiring the property by
virtue of the will, but in the course of cross-examination of
DW-1 he has specifically admitted as follows;
"It is true to suggest that suit property
is the property which belonged to my mother
Smt.Sharadamma.
It is true to suggest that in Ex.D.19,
the proceedings of Mysuru Court, the suit
property is shown as 48X96 feet only.
22
OS. No.2677/2003
My mother had never told us that she
had executed a Will and had preserved the
same with her. If suggested that all the
family members were not aware of the said
Will at all, I say, I was not aware and I do not
know about others.
I do not know whether there is any
document to evidence such allotment of
share to my sisters. My mother had removed
the Mangalore titled roof of the out houses
and replaced it with RCC roofing out of the
rentals she as receiving.
It is true to suggest that the said
construction was made only with the money
of my mother.
It suggested that apart from my
mother, no other of family member had
contributed for such development of the out
houses."
21. By looking into these cross-examination portion DW-
1 which is fully established that all the construction were
made in the property by Sharadamma alone. The contention of
the defendant that the property has been constructed by the
plaintiff and respective defendant after the acquisition of
propriety by virtue of Will cannot be accepted. In the absence
23
OS. No.2677/2003
of such circumstances and in the absence of any specific
evidence with regard to these facts adduced by the defendant it
is to be considered that the plaintiff has established her case
and it has been proved that there was no Will as contended by
the defendant by virtue of decision reported as mentioned
above the plaintiff case has to be accepted.
22. The defendant counsel has also drawn my attention
to the decision 2008 AIR SC 300 and contended that the Will
like any other document has to be proved in terms of provision
of Indian Succession Act and Indian Evidence Act and onus of
proving the Will is on the propounder. The testamentary
capacity of the testator will have to be established and
execution of the Will by testator has to be proved at least by
examining one attesting witness. It must also establish that
the will has been signed by Testator with free Will and at that
relevant point of time he was in sound state of mind. If it is not
surrounded by suspicious circumstances, the genuinity of the
Will have to be considered. If there is suspicious circumstances
that has to be removed by the propounder.
23. But where as in this case there is no specific denial of
the sound state of mind of testator to execute the Will by
plaintiff and it is also not stated by the plaintiff that will was
surrounded by suspicious circumstances. In such a
circumstances, when DW-2 and DW-4 has given specific
24
OS. No.2677/2003
evidence with regard to the due execution of the Will and the
document Ex.D.17 has been marked in evidence one attester
DW-2 has been examined who has specifically unequivocally
stated before the court that the testator has affixed her
signature to Ex.D.17 in his presence he has signed Ex.D.17 as
a attester and he has also specifically and unequivocally stated
before the court that she was having a right to dispose of the
property on the specified date of execution of the Will. Even
though in the cross-examination of PW-1 when she has
specifically admitted about granting of property in accordance
with the Will then it has to be considered that the defendant
has successfully established the due execution of Ex.D.17 and
bequeathing the property as per Ex.D.17. In such a
circumstances, the defendant No.1 to 3 case contended in the
written statement will have to be accepted the case of the
plaintiff contending that the property is continued as a
property of Sharadamma and property was not partitioned is of
no consequences. Hence, he contended that issue No.3 to 6
will have to be answered in favour of the defendant.
24. Now, it has to be specifically noted according to the
contention of the plaintiff the property has been acquired by
Sharadamma by virtue of the Will executed by her father which
is corroborated by Ex.D.21 and 22. There is no dispute by the
defendant also that the said property was acquired by
Sharadamma by virtue of the Will executed by her father and
25
OS. No.2677/2003
by virtue of probate obtained by competent court at Mysuru in
the year 1940-41.
25. Now the burden of proving the Will Ex.D.17 is upon
the defendant No.1 to 3. Inorder to prove the due execution of
Ex.D.17 he has been examined as DW-1 and he has
specifically given evidence about execution of the Will and to
prove the attestation the DW-2 has been examined and he has
specifically stated that he has affixed his signature to Ex.D.17
and he has also identified the signature of Sharadamma. The
cross-examination of DW-2 clearly establishes that he has not
signed the original Will and he states that Ex.D.17 is now
shown to him in the court and when he has not seen the
original Will Ex.D.17 as stated in the course of cross-
examination accepting the evidence of DW-2 with regard to the
attestation of the Will does not arise at all. No doubt the Will
has been registered under the registration Act. But mere
registration of the Will will not give ifso-facto prove the
genuinity of the Will.
26. Now, inorder to prove the Will the person who is
claiming the property on the basis of the will has to the give a
trustworthy and impeachable evidence before the court to
establish the genuineness of the Will. If the will is surrounded
by suspicion circumstances and that is not removed by the
person who claimed the property on the basis of the will no
26
OS. No.2677/2003
order can be passed against such person. According to the
decision reported in ILR 2007 247 now inorder to establish the
genuineness of the will DW-2 and 4 have been examined. But
in the cross-examination DW-2 has specifically admitted that
he has not seen original Will. Further, DW-4 is also not a
attestor to Ex.D.17. On the other hand, he has identified the
signature of his father who has attested the Ex.D.17. Though
DW-2 and 4 have been examined to prove the Will the evidence
of those witnesses does not create confidence with the court to
consider that will is a genuine one. Now, further, it is to be
noted according to the Will a property has been alloted to the
plaintiff and after that she has put up a construction.
27. But it is to be specifically noted in Ex.D.q7 it is
specifically stated that the husband of Sharadamma and 2 nd
son will be constituted as trustees for northern side of the
main building the rent realized from the house is payable to
the 1st daughter for her maintenance after complete discharge
of the loan advanced by Chickpet House Building Co-operative
Society. Because she was abandoned by her husband. If really
the defendant No.2 and 3 were aware of the fact of execution of
the Will as contended by them they could have produced the
document to establish the fact when exactly the Chickpet
House Building Co-operative Society Ltd., loan was repaid by
them, they must also establish the fact that according to the
intention of the testator the rent has been allocated to the
27
OS. No.2677/2003
daughter of Sharadamma as she was abandoned by her
husband. But to corroborate that fact no material document
has been produced even in the course of cross-examination of
DW-1.
28. It is admitted that according to the terms of Ex.D.17
no such steps have been taken. Now by virtue of the Mortgage
deed produced by the defendant which clearly establishes that
Sharadamma has discharged the loan because in all the
documents produced by the defendant it is stated that the
property loan has been repaid and the document was received
by Sharadamma. Now, the question of considering of all these
facts will arises only when it is established by Defendant No.2
and 3 that Ex.D.17 was duly executed by Sharadamma by
executing such documents the properties have been
bequeathed to the respective legatees. Then only the question
of considering the fact of considering the Ex.D.25 arises. Now
it is to be specifically noted in all the mortgage deed contain
the discharge shara much earlier to the date of death of
Sharadamma.
29. Now further it is to be specifically noted for the
purpose of considering that is for reference, the Ex.P.2 has
been marked which is of the year 30.09.2002. Now if really the
Ex.D.17 was executed in the year 1975, which was with in the
knowledge of Defendant No.2 and 3 as contended by them the
28
OS. No.2677/2003
question of executing Ex.P.2 by the members of the family
would not have been arise at all. Though Ex.P.2 was not acted
upon, but for the reference to consider that there was an
intention for partition of the property between the family
members is established. Now by looking into the covenant of
that document it is established that all the persons are having
equal right. Now it is to be specifically noted according to the
defendant No.2 and 3 contention for change of khatha with
respect to the suit schedule property the plaintiff is also given
a consent and she has signed for the application for change of
khatha in the name of Defendant No.2 and 3. But to
corroborate such a fact no material is placed on record. On the
other hand, the khatha was changed in the year 2007. Now it
is also not specifically established that on what actual date the
defendants have come to know about the execution of the Will.
Because it is to be specifically proved before the court.
30. Now it is a well established principle of law that
merely because the member of the family are residing
separately in a distinct portion it cannot be held that there is a
partition. Now according to the defendant the will was acted
upon. Now it is to be specifically noted the word acted upon is
gives the meaning that they have to perform their further
activities on the basis of the will. But where as in this case
though specific contention has been taken by the defendant
No.2 and 3 stating that they have acted upon the Will which is
29
OS. No.2677/2003
marked as Ex.D.17, but the evidence and the specific
admissions given in the course of cross-examination and other
documents produced by the defendant will certainly
establishes the fact that the property was not divided or it was
not subjected to division either by way of partition or on the
basis of the will executed by Sharadamma.
31. Though defendant No.2 and 4 have been examined to
prove the attestation of the will but their evidence is not
convincible to accept the will as a genuine one. Because in the
will though there is a property given to the plaintiff as
contended by the defendant that is not carried out by the
parties. Now when according to the will the husband of
Sharadamma and 2nd defendant were appointed as executor no
such steps have been taken. Under such circumstances, the
question of considering the contention of the defendant that by
virtue of Ex.D.17 the property was divided and plaintiff has
acquired the right in the property is of no consequence.
Because the will which is surrendered by suspicious
circumstances has not been removed by propounder. It is a
well established principle of law that any property in the family
if it is considered as a family property that has to be divided by
metes and bounds by way of partition deed only.
32. Now inview of Ex.D.17 the property will have to be
considered as a absolute property on defendant No.2 and 3 in
30
OS. No.2677/2003
which the plaintiff is not entitled to claim any share in the
property as per submission by the arguments of defendant
counsel. Further he has also contended that in the presence of
Ex.D.17 the property will have to be considered as a absolute
property of Sharadamma and when she has disposed the
property in accordance with Ex.D.17 then it has to be
considered that the division and bequeathing of property in
Ex.D.17 will be a valid document and the right of the
defendant No.2 and 3 will have o be accepted and the claim of
the plaintiff will have to be rejected. But it is to be specifically
noted it is not in dispute by the plaintiff also that the property
was acquired by Sharadamma by virtue of the will and it is the
case of the plaintiff that she died intestate.
33. Now according to Ex.D.17 the will was executed in
the year 1975 and same is registered on 13.11.1975. now if
really there was a will executed by Sharadamma as per
Ex.D.17 the same could have been intimated to the husband of
Shradamma i.e. 1st defendant. But inorder to prove the
intention of Sharadamma about execution of Ex.D.17, he 1 st
defendant has not entered the witness box and he has not
given any evidence to corroborate the execution of Ex.D.17. On
the other hand, he has produced the Ex.D25 where in he has
specifically executed the will with respect to his right in the
property and it is to be specifically noted the Ex.D.25 was
executed in the year 2003 and though this document was
31
OS. No.2677/2003
executed in the year 2003 i.e., 29.04.2003 and this suit has
been filed on 20.02.2003 that is after filing of this suit this
document has been executed.
34. Further, the khatha was also granted during the
pendency of the suit. Now in Ex.D.25 it is specifically stated
that the Sharadamma has executed will and there by he has
become owner of the property. But even though the suit is
pending this document has been executed and as already
discussed in detail when I have come to the conclusion that
Ex.D.17 has not been proved before the Court the question of
executing this document by the 1 st defendant does not arise at
all. Further, it is to be specifically noted according to the
defendant in the will the plaintiff was allocated the property.
Hence, she is not entitled to claim any property. But the
property given to the plaintiff is not equal share in the
property. Under such circumstances, in my opinion the
question of considering the Ex.D.17 as a valid document does
not arise at all. Further, the defendant No.2 and 3 has
miserably failed to establish the fact that the plaintiff is in
possession of the out house area measuring 480 sq ft and also
miserably failed to establish the fact that Sharadamma has
executed the Will dated 13.11.1975 and by virtue of that will
the plaintiff and defendant are enjoying their portion as
contended. Under such circumstances, I have no hesitation to
answer issue No.3 to 6 in the negative.
32
OS. No.2677/2003
35. Issue No.2:-Now this issue is based upon the relief
claimed by the plaintiff. Now the plaintiff is claiming the relief
of partition of 1/5th share in the suit schedule property. The
specific contention has been taken by the plaintiff that the
property which was acquired by her mother Smt.Sharadamma
by virtue of a Will executed by her father Shivaramaiah. After
acquiring possession of the property, Sharadamma has
enjoyed the property as her absolute property and during the
life time Sharadamma and her children have enjoyed the
property jointly along with the plaintiff and defendant No.1 o 4.
During the life time of Sharadamma, she made improvement in
the property by constructing the property by obtaining loan
from Co-operative Society. According to the plaintiff
Sharadamma died intestate without executing any document
and as the property was the absolutely power of Shradamma
according to Section 16 of Hindu Succession Act all the legal
representatives who are the clause I heirs which is mentioned
in Section 15 of Hindu Succession Act are all liable to succeed
simultaneously and equally. During the pendency of the suit,
4th defendant has succumbed to death and the legal
representatives of 4th defendant are brought on record and the
share to be allotted to the 4 th defendant will have to be allotted
to the legal representatives of the 4th defendant.
36. Now when a specific contention has been taken by
33
OS. No.2677/2003
the plaintiff that Sharadamma died intestate, it is the burden
on her to establish that fact. Now according to the plaintiff, the
property was acquired by will by obtaining probate in the year
1940-41 it is not in dispute by the defendants also. Because
the defendants are also not disputed the acquiring the property
by Sharadamma through a Will executed by her father
Shivaramaiah. The only dispute with regard to the claim of the
plaintiff is that the contention of the plaintiff that Shardamma
has succumbed to death intestate has been specifically denied.
On the other hand, the defendant No.2 and 3 are contending
that the Sharadamma during her life time has executed the
Will dated 13.11.1975 and as the property was a absolute
property of Sharadamma she has got a right to execute the Will
and by virtue of the Will the property has been bequeathed to
the 2nd and 3rd defendant and also to plaintiff and to the
defendant No.4 and defendant No.1. In turn the defendant
No.1 has executed a will in favour of defendant No.2. Under
these circumstances the question of claiming the partition
contending that the plaintiff mother Sharadamma died
intestate is of no consequences and by considering the Will
executed by Sharadamma in favour of defendant No.2 and 3
and also infavour of all the members of the family the suit of
the plaintiff is liable to be dismissed. According to the
contention of the defendant. Inorder to substantiate to their
contention they have also produced Ex.D.17 and also adduced
the evidence of attestor witness such as DW-2 and 3.
34
OS. No.2677/2003
37. They have specifically stated about execution of the
Will and identified their signature and also the father signature
of DW-3 who is a attestor to Ex.D.17. The learned counsel
appearing for the defendant has vehemently contended in the
argument and also in the written argument contending that
when it is not in dispute by the plaintiff also that the property
has been acquired by Sharadamma through a Will and by
passing of Hindu Succession Act, the property has become her
absolute property and by examining attesting witness and by
producing the original Will Defendant No.2 and 3 which is also
admitted by the plaintiff in the course of cross-examination
that the property has been allotted to the plaintiff also through
the Will executed by Sharadamma as Ex.D.17, then the
question of considering the property for division as contended
by the plaintiff does not arise at all. Hence, he prayed for
dismissal of the suit.
38. The learned counsel appearing for the plaintiff has
vehemently contended in his argument that though Ex.D.17
has been executed as per contention of defendant No.2 and 3.
But the execution of the Will was not disclosed to the plaintiff
even after service of notice and there is no reply issued by the
defendants that the property was bequeathed according to
Ex.D.17. Ex.P.4 which is obtained in the year 2003 establishes
the property standing in the name of Sharadamma and now
35
OS. No.2677/2003
Ex.P.2 though it is only marked for reference and it is a
partition deed executed between the parties on 30.09.2002 if
really there was a Will as contended by defendant No.2 and 3
the question of execution of Ex.P.2 does not arise at all. Now
according to the contention of the defendant khatha was
bifurcated on the basis of Will. But the said khatha was made
change in the year 2007 that is during the pendency of the
suit. Now the khatha has been effected only with respect to
Defendant No.2, 3 and Son of the defendant No.4. No khatha
has been effected in the name of the plaintiff.
39. If the contention of the defendant No.2 and 3 is
accepted contending that by virtue of Will the property has
been allotted to the plaintiff and respective parties are in
possession and enjoyment of the property, the khatha could
have been effected in the name of the plaintiff also. Now, when
the suit is pending in the Court the change of khatha cannot
be made and it is only made for the purpose of establishing the
intension of the defendant and though it has been contended
that the Will was executed by Sharadamma, was not known to
the defendant No.2, 3 and DW-1 during the course of cross-
examination he has specifically admitted as follows;
"My father has not informed me about
aliased will dated 13-11-1975. I have not
enquired my Brother i.e., defendant No.2
36
OS. No.2677/2003
regarding execution of Will Deed dated
13.11.1975.
The share was allotted tome 1969-70.
I do not know that measurements of the
share that was allotted of any body.
I have not submitted any application
to the corporation for the entry in
accordance to the allotment as stated above
1969-70. There are no document pertaining
to the allotment of 1969-70. there is no
document to show what is the dimension of
the property allotted to each of the family
members. It is true that the 1st floor was
constructed during the life time of my
mother. It is true to say that mother was the
owner of the property.
There are no document to show that
we had provided the finance for the
constructions."
40. By considering all these admission in the course of
cross-examination it can be safely held that the construction
was made on the property by the mother of the plaintiff and
the defendant. No contribution has been made by the
defendant No.2 and 3 for the purpose of construction. Now
according to the contention of the defendant No.2 and 3, the
37
OS. No.2677/2003
parties have acted upon the Will Ex.D.17. Thereby the claiming
of partition by the plaintiff was acquiesced. Hence, her claim
cannot be accepted. But though the will was executed in the
year 1975, no where it is stated by defendant No.2 and 3 when
actually they came to know about the Will and when exactly
they obtained the document and according to the document
produced by the defendant the Mortgage deed are all the
mortgage deed are earlier to the execution of the Will. There is
no specific document to establish the fact that the property
was mortgaged by defendant No.2 and 3 to obtain loan and
construct the property as contended by them.
41. Even the cross-examination portion of DW-1 clearly
establishes that the father of the defendant No.2 and 3,
plaintiff and defendant No.4 was not aware of the execution of
the Will, under such circumstances the evidence adduced by
the defendant is not satisfactory to establish the genuinity of
the Will and he has miserably failed to establish the fact that
the parties were acted upon the Will and thereby the plaintiff
has lost her right to claim the partition. Hence, he contended
that the plaintiff right will have to be considered and grant
share by the court according to the argument of plaintiff
counsel.
42. Now, it is to be specifically noted when it is not in
dispute that the property was acquired by Sharadamma by
38
OS. No.2677/2003
virtue of Will and by virtue of probate in the year 1940-41 and
by virtue of Hindu Succession Act came into force,
Sharadamma has become the absolute owner of the property.
By perusing the documents produced by defendant No.2 and 3
which is mortgage deed executed by Sharadamma for purpose
of loan for construction of the property it is clearly established
that Sharadamma has exercised or Sharadamma performed
her right as a absolute owner in the property. Now, after the
demise of Sharadamma the question of succeeding the
property arises. According to defendant No.2 and 3 the will has
been executed thereby the property cannot be partitioned.
According to the contention of the plaintiff the will is not
proved by defendant No.2 and 3. Hence, the property has to be
partitioned.
43. Now as already discusses in issue No.3 to 6 I have
come to a specific conclusion that defendants have miserably
failed to establish the due execution of the Will by Late
Sharadamma as contended by defendant No.2 and 3. Further,
the contention of the defendant No.2 and 3 that by virue of the
Will parties have acted upon on the basis of the Will and by
acting so the respective parties have recognized the will as a
document of division and as document of partition and enjoyed
the same for a considerable period.
44. But though such contention has been taken by the
39
OS. No.2677/2003
defendant No.2 and 3 that aspect has not been convincingly
established by adducing a cogent and specific evidence. By
looking into the cross-examination portion of DW-1 referred to
me in the earlier part of my judgment, it is clearly established
that though the property has been enjoyed by the family
members till this date, there is no specific division of properties
by metes and bounds and in the absence of specific proof of
Ex.D.17 and in the absence of specific proof of acting upon
Ex.D.17 by the defendant No.2 and 3 and the plaintiff the
question of considering the Ex.D.17 as a document of partition
or division as contended by the defendant does not arise at all.
When such a fact has not been established by defendant No.2
and 3 convincingly before the court, then it is to be held that
the property was not divided by metes and bounds. Even
according to the well established principle of law that the mere
enjoyment of property by the family members separately
cannot be considered as a partition until the property has been
divided by metes and bounds. Where as in this case the
plaintiff has expressed her intention by issuing a notice as per
Ex.P.3 separate from the family.
45. When a specific intention has been expressed for
division of the property then the burden shifts on the plaintiff
to prove that there was no earlier partition or there was no
partition between the family members and accordingly the
plaintiff has not acquired any share in the property. If that is
40
OS. No.2677/2003
established then only the question of allowing the claim of the
plaintiff in the suit arises. Until then the property will have to
be considered as a single unit without division of properties.
Though the contention of the defendant that there was a will
when that is not specifically proved before the court the
question of disallowing the claim of the plaintiff does not arise
at all. It is not in dispute by the defendant also that she is one
of the Class I heir. In the absence of Ex.D.17 the succession
opens immediately after the death of Sharadamma and
according to Section 16 of Hindu Succession Act, where in it
has been specifically stated when a Female Hindu died
intestate her property has to be devolved upon the heir
specified in Section 15(1) of Hindu Succession Act equally and
simultaneously under Section 15 it is specifically stated that
sons and daughters and husband are the clause I heirs who
should be given top priority or who should be preferred at the
first instance according to Hindu Succession Act. When
Ex.D.17 has not been established by the defendant No.2 and 3
then Section 15 and 16 will be applicable for succession of the
property by the plaintiff and defendants. Under such
circumstances, by virtue of specific mentioning made in
Section 15 the Clause I heirs will succeed to the property
simultaneously and equally. Under such circumstances in my
opinion the plaintiff is entitled for 1/5th share as claimed in
the plaint. Hence, I have no hesitation to answer issue No.2 in
the affirmative.
41
OS. No.2677/2003
46. Issue No.7:- Though there is no specific pleading
with regard to the granting of mesne profit this issue has been
framed. Now the question of granting mesne profit arises only
if the defendants are in wrongful possession. According to
definition of mesne profit it states that mesne profits means
those profit which the person in wrongful possession of such
property actually received or might with ordinary diligence
have received there from, shall be considered as a mesne
profit. That means to say if a person is in the wrongful
possession or if he has utilized the property without the legal
right on the property and without recognition of right in the
property, then the question of granting mesne profit as
contended by the plaintiff arises. But where as in this case no
such allegation is made in the plaint stating that the
defendants are in legal possession or unlawful possession.
Hence, the plaintiff is entitled for mesne profit. On the other
hand, the defendants are in possession and enjoyment of the
property as a authorized representative of Sharadamma as the
successor of the property the question of granting mesne
profit does not arise at all. Hence, I have no hesitation to
answer issue No.7 in the negative.
47. Now in the plaint the plaintiff has also claimed the
relief to demolish of unauthorized construction made in the
plaint schedule property. Now according to the plaintiff the
42
OS. No.2677/2003
construction made by using the car garage in the open space
and also put up staircase in the middle of the garage and this
construction has been made during the pendency of the suit
and they have put up the construction without any right to
claim any equity of such construction and it attracts Doctrine
of Lis-pendency. Hence, claimed for demolition of such
construction has to be made. But it is to be specifically noted
though a specific contention has been taken by the plaintiff
that the defendant No.2 and 3 have illegally put up this
construction to corroborate the fact that the defendant No.2
and 3 have constructed the property during the pendency of
the suit no material is placed on record.
48. On the other hand, the document produced by the
defendant such as mortgage deed and specific admission given
in the course of cross-examination of DW-1 will clearly
establishes the fact that the construction was made by the
mother of the plaintiff and defendant. When the owner of the
property has put up a construction for which all the share
holders have consented the question of considering that
construction as a illegal one as contended by the plaintiff does
not arise at all. Under such circumstances, the question of
granting relief of demolition of the construction made in the
suit schedule property as prayed in the plaint does not arise at
all. Hence, the prayer of the plaintiff will have to be rejected.
43
OS. No.2677/2003
49. Issue No.8:- In view of my above discussions and
findings on issue No.1 to 7, I proceed to pass the following:
ORDER
The suit of the plaintiff is decreed in part with costs.
The plaintiff is entitled for 1/5th share in the suit schedule property.
The defendant No.2 and 3 and the legal representatives of Defendant No.4 are also entitled for 1/5th share in the suit schedule property.
However, the relief claimed in the plaint to demolish the construction made in the property has been rejected.
The defendant No.2 and 3 and the legal representatives of defendant No.4 are hereby directed to effect the partition within three months from the date of this order.
Draw preliminary decree granting three months time.
(Dictated to the stenographer, transcribed and typed by her, corrected, signed and then pronounced by me in the open Court on this the 1 st day of April, 2021).
(S.R.MANIKYA) LXI Addl. City Civil & Sessions Judge, Bengaluru.
44OS. No.2677/2003 ANNEXURE List of witnesses examined on behalf of the plaintiff:
PW.1: N.Nagaraj List of documents exhibited on behalf of the plaintiff:
Ex.P.1 GPA
Ex.P.2 Xerox copy of partition deed
Ex.P.3 Copy of legal notice
Ex.P.3(a to c) Postal receipts
Ex.P.3(d to f) Postal acknowledgments
Ex.P.4 Tax paid receipt
Ex.P.5 Order passed by government
dt.04.02.1997
Ex.P.6 to 9 Letters
Ex.P.10 Affidavit
Ex.P.11 Copy application
Ex.P.12 to 14 Photograph
List of witnesses examined on behalf of the defendants:
DW.1 M.B.Shivanath
DW.2 H.S.Narasimha Murthy
DW.3 Srinivas
DW.4 Shivaji Rao
List of documents exhibited on behalf of the defendants:
Ex.D.1 : World of Advertisement Magazine Ex.D.1(a) : Relevant page No.13 Ex.D.2 to 7 : Tax paid receipts Ex.D.8 : Khatha certificate Ex.D.9 to 15 : Khatha Extract Ex.D.16 : Death Certificate of 45 OS. No.2677/2003 Smt.K.Sharadamma Ex.D.17 : Original Will dt.13.11.1975 Ex.D.17(a) to (e) : Signature of Smt.Sharadamma Ex.D.17(f) : Signature of H.Rama (Witness) Ex.D.18 : Original Mortgage deed dt.01.08.1959 Ex.D.19 : Original Mortgage deed dt.03.06.1955 Ex.D.20 : Endorsement issued by BBMP Ex.D.21 : Copy of petition is MISC.
No.29/40-41 Ex.D.22 : Letter and Admission issued by District Court in Misc. 29/40-41 Ex.D.23 : Copy of will executed by mother of DW-1 Ex.D.24 : Death Certificate of Balakrishna Rao Ex.D.25 : Original Registered Will with sketch Ex.D.25(a) to (d) : Signature of father of DW-1 Ex.D.25(e) to (g) : Signature of father of DW-1 Ex.D.25(h) : Signature of DW-3 on Ex.D.25 Ex.D.26 : Registered Mortgage deed Ex.D.26(a) to (c) : Signature of mother of DW-1 Ex.D.26(d) to (f) : Signature of LTM on Mortgage deed (S.R.MANIKYA) LXI Addl. City Civil & Sessions Judge, Bengaluru.46
OS. No.2677/2003 30.03.2021 P-
D-
JUDGMENT PRONOUNCED IN OPEN COURT VIDE SEPARATE TYPED ORDER The suit of the plaintiff is decreed in part with costs.
The plaintiff is entitled for 1/5th share in the suit schedule property.
The defendant No.2 and 3 and the legal representatives of Defendant No.4 are also entitled for 1/5th share in the suit schedule property.
However, the relief claimed in the plaint to demolish the construction made in the property has been rejected.
47OS. No.2677/2003 The defendant No.2 and 3 and the legal representatives of defendant No.4 are hereby directed to effect the partition within three months from the date of this order.
Draw preliminary decree granting three months time.
(S.R.MANIKYA) LXI Addl. City Civil & Sessions Judge, Bengaluru.