Bangalore District Court
Sri B.Ravi vs Sri B.Srinivas on 24 February, 2018
IN THE COURT OF THE XXXVIII ADDITIONAL CITY
CIVIL JUDGE AT BENGALURU CITY(CCH-39)
Dated this the 24th Day of February 2018
PRESENT
Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
XXXVIII Additional City Civil & Sessions Judge, Bangalore City.
Original Suit No.138/2013
Plaintiffs:
Sri B.Ravi
S/o late Gangappa,
aged about 33 years,
r/o Suragajakkanahalli village,
Haragadde Post,
Anekal Taluk,
Bangalore Urban District.
[by advocate Sri S.Eshwara Reddy]
-Vs-
Defendants:
1. Sri B.Srinivas
S/o late Gangappa,
aged about 35 years,
R/o No.42/20,
Rathnamma Nilaya,
Nayathappa Layout,
Arekere, I.I.M.Post,
Bannerugatta road,
Bangalore-560 076
2. Smt.Manju,
W/o Ashok,
aged about 28 years,
R/o Sushama Garden,
{2} O.S.No.138/2013
2nd Floor, Srinidi Nilaya,
Areker, Banneugatta road,
Bangalore-560 076
[by advocate Sri M.R.R]
Date of institution of the suit 15/12/2012
Nature of the suit: Partition and separate
possession
Date of commencement of 04/08/2014
recording of evidence:
Date on which Judgment was 24/02/2018
pronounced
Total duration: Year Month Days
05 02 09
JUDGMENT
This suit is filed by the plaintiff against the defendants for partition and separate possession.
2. The case of the plaintiff as per the plaint averments is herself and defendants are the daughter and sons of Late Gangappa and Smt.Lakshamma and they constituted Hindu Undivided Joint Family. They are the absolute owners in possession of house property bearing Gramatana katha No.56, House List {3} O.S.No.138/2013 44/2p measuring East-West 45 feet and North-South 20 feet situated at Arekere village, Beguru Hobli, Bangalore South Taluk, Bangalore, now within the jurisdiction of Bruhat Bengaluru Mahanagara Palike, which is the suit schedule property.
The plaintiff further submits that during the life time of mother of plaintiff and defendants, deceased Lakshamma had acquired the suit schedule property under the family Settlement Deed dt.18.10.1993 among the children of Muniswamappa who is the maternal grand-father of plaintiff and defendants. The katha stood in the name of deceased Lakshamma and she was paying tax regularly to the concerned authority.
The plaintiff further submits that subsequent to death of late Gangappa and deceased Lakshamma, the plaintiff and defendants are in joint possession and enjoyment of the suit schedule property.
The plaintiff further submits that among the joint family members, only defendant No.2 is the educated {4} O.S.No.138/2013 person and she was looking after the affairs of the joint family. All of a sudden, defendants 1 and 2 colluded with each other and started to give physical and mental torture to the plaintiff. The plaintiff has lodged a complaint before police in this regard.
The plaintiff further submits that being the legal heirs of late Gangappa and deceased Lakshamma, the plaintiff and defendants 1 and 2 are entitled to 1/3rd share each in the suit schedule property. But the plaintiff reliably learnt that the defendants are making illegal attempt before Bruhat Bengaluru Mahanagara Palike to change katha in their names with an intention to deprive the legitimate right and share of the plaintiff in the suit schedule property.
The plaintiff further submits that he demanded the defendants to effect partition of the suit schedule property and deliver his 1/3rd share. But the defendants refused to effect partition and give his share. Hence the plaintiff is constrained to file this suit against the defendants for partition and separate {5} O.S.No.138/2013 possession of his 1/3rd share in the suit schedule property.
The cause of action for filing of the suit arose on 12.11.2012 and 2.12.2012, when the defendants refused to give any share in the suit schedule property to the plaintiff and on subsequent dates when the defendants colluded together and are making illegal attempt to alienate the suit schedule property in favour of third parties. The suit schedule property is situated within the Therefore, the plaintiff requested the court to decree the suit as prayed in the prayer column of the plaint.
3. After service of summons, defendant No.1 filed independent written statement admitting all paras of the plaint as true and correct. But the allegations made at para 6 of the plaint that complaint has been lodged by the plaintiff against defendant No.2 is not known to defendant No.1. Further the allegations made at para 8 of the plaint, as contended by defendant No.1 in the written statement is not within {6} O.S.No.138/2013 his knowledge. Therefore the defendant No.1 prayed to decree the suit filed by the plaintiff.
4. The defendant No.2 filed independent written statement, denying all the allegations made out in all paras of the plaint as false and untrue. But the 2nd defendant admitted the relationship of plaintiff with defendant No.1. She also admitted that the suit schedule property was acquired by her mother through family Settlement Deed dt.18.10.1993 in the partition held in between the children of Muniswamappa who is maternal grand-father of plaintiff and defendants. However the 2nd defendant not admitted that the plaintiff and defendants are in joint possession and enjoyment over the suit schedule property.
The 2nd defendant in para 3 of the written statement submitted that the father of plaintiff and defendants, late Gangappa deserted the family when the defendant No.2 was two years old. Thereafter the plaintiff and defendants along with their mother deceased Lakshamma were in the care of their grand-
{7} O.S.No.138/2013 father Muniswamappa. The katha and revenue entries got change in the name of deceased Lakshamma after the execution of Settlement Deed and the katha of the suit schedule property stood in the name of deceased Lakshamma.
In para 6 of the written statement, the defendant No.2 submits that deceased Lakshamma who is mother of plaintiff and defendants, executed a Will Deed in favour of 2nd defendant dt.8.11.1999. The defendant No.2 came to know about the existence of the Will after the death of deceased Lakshamma through one of the family friends.
Further the 2nd defendant submits that at the time of death of deceased Lakshamma, she was staying at the residential school of Sri Shankaracharya Vidhya Peetha.
Further defendant No.2 submits that plaintiff and 1st defendant colluding with each other and tried to dispossess her from the suit schedule property. At that {8} O.S.No.138/2013 time she lodged complaint against the plaintiff and 1st defendant.
Further defendant No.2 submits that she came to know about the Will executed by her mother deceased Lakshamma through one of their family friends in the year 2006. She got married in the year 2007. Thereafter she took possession of the suit schedule property and constructed residential building and has been living in the said house along with her husband. The plaintiff and 1st defendant are not entitled to any share in the suit schedule property since their mother deceased Lakshamma bequeathed the suit schedule property in her favour by executing the Will Deed. There is no cause of action arose for filing of this suit and the alleged cause of action is false. Therefore the 2nd defendant prayed this court to dismiss the suit filed by the plaintiff.
4. On perusing the pleadings of the plaint and also written statement filed by the defendants, my {9} O.S.No.138/2013 predecessor has framed Issue Nos.1 to 4 on 27.1.2014, as follows:-
1. Whether the Plaintiff proves that he is in joint possession of the schedule property?
2. Whether the defendant No.2 proves that her mother namely Lakshmamma has bequeathed the schedule property in her favour under a Will dt.8.11.1999?
3. Whether the plaintiff is entitled for the reliefs claimed?
4. What order or decree?
5. In this case, the plaintiff himself adduced his oral evidence as PW1 by filing his sworn affidavit in lieu of chief examination and in further chief examination of PW1, the documents produced by him are marked as Ex.P1 to P17. In support of the case of the plaintiff, one witness by name Smt.Munirathnamma adduced her oral evidence as PW2 by way of filing sworn affidavit. By the side of defendants, the husband of defendant No.2 adduced his oral evidence as DW1 and in further chief {10} O.S.No.138/2013 examination of DW1, the documents produced by him are marked as Ex.D1 and D2. Two attesting witnesses for Ex.D1 by name Anjanappa and Jayapal are examined as DWs.2 and 3. In support of case of defendant No.2 one witness by name Vajrappa has been examined as DW4.
6. Heard the oral arguments on both sides on merits of the case and also perused the written arguments submitted by the side of plaintiff and defendant No.2. Then this case is posted for judgment.
7. My findings for the above Issues are as follows:-
Issue No.1: In the affirmative
Issue No.2: In the negative.
Issue No.3: In the affirmative
Issue No.4: As per final order, for the
following:
REASONS
ISSUE NO.2:.
8. I have taken up this Issue No.2 for giving reasons, since the burden of proving Issue No.2 lies on {11} O.S.No.138/2013 defendant No.2. Because if defendant No.2 proves Issue No.2, then the case of the plaintiff will not succeed. If defendant No.2 fails to prove Issue No.2, then the case of the plaintiff will be decreed and he will get a share.
Therefore the crux of the subject matter of the suit surrounded around the alleged Will Deed said to has been executed by deceased Lakshamma in favour of her daughter defendant No.2. Therefore on priority basis, the Court has chosen to answer Issue No.2.
9. Here one late Gangappa had wife by name Lakshamma and two sons and one daughter i.e., plaintiff and defendants 1 and 2. The plaintiff and defendant No.1 are the elder brothers of defendant No.2 and defendant No.2 is the real sister of plaintiff and defendant No.1. There is no controversy regarding the relationship in between the plaintiff and defendants. Further it is also admitted that the suit schedule property has fallen to the share of deceased Lakshamma who is mother of plaintiff and defendants in the partition held in between the children of late {12} O.S.No.138/2013 Muniswamapa who was the maternal grand-father of plaintiff and defendants and father of deceased Lakshamma as per the Settlement Deed dt.18.10.1993. Here the defendant No.2 filed independent written statement dt.11.11.2013. In the written statement, defendant No.2 specifically took contention that her elder brothers plaintiff and defendant No.1 have not been in possession and enjoyment of the suit schedule property since the date of Will executed by her mother deceased Lakshamma by bequeathing the suit schedule property to her on 8.11.1991. So here the beneficiary of the alleged Will is defendant No.2. Hence it is the duty of defendant No.2 to remove the suspicious circumstances in execution of alleged Will dt.8.11.1999 by her mother deceased Lakshamma. Further the propounder defendant No.2 has to prove execution of Will and attestation of the same as required u/S 68 of the Indian Evidence Act and also Sec.63(c) of Indian Succession Act. Because a Will, an instrument of testamentary disposition of property, being legally {13} O.S.No.138/2013 acknowledged mode of bequeathing a testator's acquisition during her life time to be acted upon only on the death of testator, then it carries an overwhelming element of sanctity.
10. In this case defendant No.2 without adducing her oral evidence executed Special Power of Attorney in favour of her husband who himself adduced his oral evidence as DW1.I.A.No.4 filed by the counsel for defendant No.2 under Order III Rule 2 C.P.C. dt.13.11.2014 was allowed. But here in the chief examination of DW1, who is husband of defendant No.2, produced Special Power of Attorney as per Order on I.A.No.4 is not marked as exhibit by the side of defendant No.2. However in this case the husband of defendant No.2, by filing his sworn affidavit as examination in chief, adduced oral evidence as DW1. Further the unregistered Will Deed-Ex.D1 and Endorsement-Ex.D2 issued by Hulimavu police are the only documents marked by the side of defendant No.2. Here the facts narrated in the chief examination of {14} O.S.No.138/2013 DW1 are repetition of pleadings in the written statement filed by defendant No.2. Looking to the cross-examination of DW1 dt.23.3.2015, at initial stage, goes to show that defendant No.2 was not suffering from any chronic disease and she was hale and healthy to come before the Court to adduce her oral evidence to prove the genuity and validity of unregistered Will Deed-Ex.D1 executed by her mother deceased Lakshamma. Therefore any amount of evidence adduced by DW1 on behalf of his own wife defendant No.2 will not at all supports the case of defendant No.2. In the cross examination of DW1 he admitted that the suit schedule property has been allotted to deceased Lakshamma in the partition held in between the sons and daughters deceased Muniswamapa who is father of deceased Lakshamma and maternal grand-father plaintiff and defendants 1 and 2. Further In the cross examination of DW1, it reveals that 2nd defendant got married after her parents died, and father of the plaintiff and defendants late {15} O.S.No.138/2013 Gangappa deserted his wife deceased Lakshamma during her young age and when the children were minor. So in the oral evidence DW1, it discloses that he married the defendant No.2 in the year 2007. Therefore in the cross examination of DW1 he admitted he does not know what was health condition of deceased Lakshamma prior to his marriage with 2nd defendant. As per contention of the plaintiff, deceased Lakshamma died due to suicide. But in the cross-examination of DW1, he has not at all admitted that deceased Lakshamma committed suicide by setting fire to her body by pouring kerosene. But here on perusing the oral evidence of DW4, who is the brother of deceased Lakshamma, he denied the suggestions suggested by the counsel for the plaintiff that on 25.8.2001, deceased Lakshamma, the mother of plaintiff and defendants died due to suicide. But DW4 admitted in his cross-examination at page 10 that the dead body of deceased Lakshamma was collected by him from Victoria Hospital by himself signed in the Register.
{16} O.S.No.138/2013
DW4 is none other than brother of deceased
Lakshamma. This fact is admitted by DW4 in his cross- examination of at page 7. Again in further cross- examination of DW4 on 14.7.2017 by the counsel for the plaintiff at page 15, he unequivocally admitted that the dead body of deceased Lakshamma was collected from Mortuary room of Victoria hospital and then the dead body was burnt in Wilson Garden crematorium on 26.8.2001.
11. In the cross examination of DW4, he simply deposed that he does not know that deceased Lakshamma committed suicide by setting fire to her body by pouring kerosene. But on perusing the cross- examination of DWs.2 and 3, who are the attesting witnesses for unregistered Will Deed-Ex.D1, DW2 deposed that he does not know that the deceased Lakshamma committed suicide by setting fire to her body by pouring kerosene. In the cross examination of DW3, at page 5, he deposed that deceased Lakshamma was mentally disordered and frustrated and {17} O.S.No.138/2013 committed suicide by setting fire to her body by pouring kerosene. Ex.P14 is the true copy of the post- mortem Report of deceased Lakshamma conducted on 26.8.2001. In the said report,it is described regarding the burnt injuries i.e., third degree burns present all over the body. The opinion for the cause of death as mentioned in Ex.P14 is due to shock as a result of burns sustained. DWs.1 to 4, in their sworn affidavit in their oral evidence simply stated that deceased Lakshamma was hale and healthy while executing unregistered Will Deed-Ex.D1 in favour of defendant No.2. As per unregistered Will Deed-Ex.D1, it shows that said Will is dt.8.11.1999 and deceased Lakshamma died in the year 2001 within two years, that too deceased Lakshamma died due to burn injuries.
12. Ex.P15 is the report submitted by the MICO Layout police station, goes to show that deceased Lakshamma has died due to frustration and disappointment in her life and committed suicide by {18} O.S.No.138/2013 setting fire to her body by pouring kerosene. In the cross examination of DW1 to 4, they have suppressed the material fact and also failed to establish that deceased Lakshamma was in sound state of mind while executing unregistered Will Deed-Ex.D1. On the date of death of deceased Lakshamma, her age was 45 years. So naturally deceased Lakshamma frustrated has led miserable life without the company of her husband who deserted her. Therefore deceased Lakshamma was mentally disordered, disappointed and frustrated in her life. Therefore she was not at all in sound state of mind while executing unregistered Will Deed-Ex.D1 in favour of defendant No.2. So in the oral evidence of DW1 to 4, they have utterly failed to prove that deceased Lakshamma has executed unregistered Will Deed-Ex.D1 while she was in sound state of mind.
13. Now on perusal of the cross-examination of DW1 he deposed that for the first time defendant No.2 came to know about existence of unregistered Will {19} O.S.No.138/2013 Deed-Ex.D1 in the year 2007. So, defendant No.2, even though she appeared before Bruhat Bengaluru Mahanagara Palike to get her name entered in the katha extract and revenue records on the strength of unregistered Will Deed-Ex.D1, said Bruhat Bengaluru Mahanagara Palike intimated that khata cannot be entered her name unless regularize the same under Akrama and Sakrama. But no requisition is produced by DW1 in order to prove that after death of deceased Lakshamma, defendant No.2 appeared before Bruhat Bengaluru Mahanagara Palike to get her name entered in the katha extract and revenue records on the strength of unregistered Will Deed-Ex.D1.
14. Here on perusal of Ex.D8 to D13 which are the tax paid receipts of Bruhat Bengaluru Mahanagara Palike, the name of deceased Lakshamma W/o Gangappa is mentioned. Ex.D8 to D13 are pertaining for the year 2014. This suit is filed in the year 2013. Here the alleged unregistered Will Deed-Ex.D1 is not at all acted upon till filing or after filing of this suit.
{20} O.S.No.138/2013
15. Here Ex.D2 is the endorsement issued by the Police Sub Inspector, Hulimavu police station, Bangalore, wherein defendant No.2 lodged complaint against her brothers i.e., the plaintiff and defendant No.1. As per Ex.D2, goes to show that there is only shed put up by defendant No.2. But here looking to the chief examination of DW1 and also written statement filed by defendant No.2, it is the contention of defendant No.2 that after death of deceased Lakshamma, she came to know about existence of unregistered Will Deed-Ex.D1 in the year 2007. Then after she married DW1 and got constructed a building on the suit schedule property and residing there. Whereas looking to Ex.D2 goes to show that, there is no permanent structure building got constructed by defendant No.2. So this goes to show that defendant No.2 is not at all residing in the suit schedule property.
16. Now looking to the evidence of DW2, who is one of the attesting witness for unregistered Will Deed- Ex.D1,no signatures of attesting witnesses DW2 and 3 {21} O.S.No.138/2013 are got marked on Ex.D1. Under these circumstances, how can the Court believe the evidence of DWs.2 and 3 who were said to be present and put signatures as attesting witnesses on unregistered Will Deed-Ex.D1 in presence of deceased Lakshamma. Moreover the subject matter of unregistered Will Deed-Ex.D1 was prepared by Notary Advocate. But said Notary Advocate who is the scribe of unregistered Will Deed- Ex.D1 has not been examined. In the cross examination of DW2, he deposed that the suit schedule property was allotted to deceased Lakshamma on the Will executed by her father Muniswamappa who is grand-father of plaintiff and defendants. This DW2 is also relative of plaintiff and defendants. The house of DW2 is situated near the house of deceased Lakshamma. Here, DW2, though he is well familiar to the family of deceased Lakshamma and residing at the distance of 150 feet then, such being the situation, DW2 could not able to depose what were the reasons for cause of death of deceased {22} O.S.No.138/2013 Lakshamma. This goes to show that DW2 who is relative to deceased Lakshamma, adduced his oral evidence to protect the interest of defendant No.2 without knowing the nature of the suit schedule property and also cause for the death of deceased Lakshamma. Here in the cross examination of DW2, he deposed that on the date of writing of unregistered Will Deed-Ex.D1, himself, deceased Lakshamma, defendant No.2 and one auto-driver together gone to the office of the advocate. But DW2 failed to depose the name of the said advocate, even though he contacted the said advocate directly in his private office situated at Wilson Garden double road. DW2 also deposed that himself, deceased Lakshamma and auto-driver and one Manjula who is the wife of DW4 were present when the contents of the alleged unregistered Will Deed-Ex.D1 was being got typed. This goes to show that the evidence of DW2 is not in confirmative to prove the contents of unregistered Will Deed-Ex.D1. This goes to show that the alleged unregistered Will Deed-Ex.D1 is {23} O.S.No.138/2013 created and concocted documents by defendant No.2 and DWs.1 to 4.
17. In the written statement filed by defendant No.2, it is stated that the Will was handed over to the person who is friendly with defendant No.2. But on perusing the cross-examination of DW2, he deposed that the said Will was handed over by deceased Lakshamma to the wife of DW4. Whereas in the cross examination of DW1 and in the written statement filed by defendant No.2, goes to show that in the year 2007, defendant No.2 came to know about existence of Will executed by deceased Lakshamma as per Ex.D1. This goes to show that the Will is concocted and created by DWs.1 to 4 and one Manjula who is wife of DW4.
18. Now in the oral evidence of DW3 who is also one of the attesting witnesses, in his cross- examination, he deposed that deceased Lakshamma was known to him when himself and deceased Lakshamma were working at Sai Garments situated by {24} O.S.No.138/2013 the side of Bannerghatta road. This goes to show that deceased Lakshamma is well known to this witness, DW3. In the cross examination of DW3, he deposed that he alone went to the office of the advocate for putting his signature as attesting witness. But here from the oral evidence of DW3, goes to show that the contents of unregistered Will Deed-Ex.D1 has already been got typed before arrival of this witness to the said advocate office. In the cross examination of DW3, he deposed that deceased Lakshamma, Anjanappa and himself put signatures on Ex.D1. But the signature of DWs.3 and 4 was not identified by this attesting witness. Further in the cross examination of DW3, he failed to depose that himself and DW2 put signature before Notary-advocate as attesting witnesses to unregistered Will Deed-Ex.D1. Therefore from the contradictions in the cross-examination of DWs.1 to 3, goes to show that this unregistered Will Deed-Ex.D1 is not executed by deceased Lakshamma while she was in sound state of mind and deceased Lakshamma was {25} O.S.No.138/2013 not able to put her LTM on Ex.D1. Further the contradictions in the cross-examination of DWs.3 and 4 who are attesting witnesses on Ex.D1, goes to show that they have not at all put their signatures on Ex.D1 in presence of deceased Lakshamma, and deceased Lakshamma was also not at all present before the Notary-advocate. Moreover the Notary-advocate who is the scribe of unregistered Will Deed-Ex.D1 is not examined in order to establish that deceased Lakshamma was accompanied with defendant No.2, DW3, Anjanappa and Manjula who is wife of DW4 while executing Ex.D1 before the Notary-advocate on 8.11.1999.
19. DW4 is the elder brother of deceased Lakshamma who is mother of plaintiff and defendants. He adduced his oral evidence by way of filing sworn affidavit stating that deceased Lakshamma executed Will on 8.11.1999 when she was hale and healthy and out of love and affection on defendant No.2, she {26} O.S.No.138/2013 executed Will in favour of her only daughter defendant No.2.
20. Here DW4, in his chief examination deposed that the suit schedule property was allotted to deceased Lakshamma in the partition held in between children of Muniswamappa. Here Ex.P1 is the Settlement Deed. The 'E' schedule property mentioned in Ex.P1 has fallen to the share of deceased Lakshamma. But in the cross examination of DW4, he deposed that deceased Lakshamma was not at all looking after defendant No.2 during her childhood. Further in the cross examination of DW4 he deposed that death of his younger sister deceased Lakshamma is a natural death and she died in the house. Further In the cross examination of DW4, goes to show that in the complaint lodged by defendant No.2 against her brother's plaintiff and defendant No.1, she has stated that the property is the vacant space. But as per Ex.D2, goes to show that defendant No.2 is residing in the shed put up on the suit schedule property. As per {27} O.S.No.138/2013 Ex.P16, which is the statement given by defendant No.2 before Hulimavu police station, Bangalore, goes to show that neither defendant No.2 nor her husband were residing in the suit schedule property by constructing the building. The witness DW4 is trying to protect the interest of defendant No.2 on the strength of alleged unregistered Will Deed-Ex.D1. But on perusing the cross-examination of DW4 on 2.2.2017 and 14.7.2017, goes to show that deceased Lakshamma died on 25.8.2001 and her dead body was kept in mortuary which was collected by himself and other witnesses and then the dead body of deceased Lakshamma was burnt in crematorium. This goes to show that the oral evidence of DW4 is in consonance and supports to Ex.P15, which is the Post-Mortem Report conducted on the dead body of deceased Lakshamma at Victoria hospital, Bangalore. Therefore the oral evidence of DW4 is not trustworthy in order to believe that Ex.D1 is executed by deceased Lakshamma on 8.11.1999. Here so many suits are {28} O.S.No.138/2013 pending before the Court filed by DW4 and his sons against plaintiff and defendants 1 and 2. In the cross examination of DW4 dt.14.7.2013, he deposed that while Settlement Deed was written as per Ex.P1, which was the partition held in between the brothers and sisters who are the children of Muniswamappa, at that time deceased Lakshamma has not put signature on Ex.P1 because she was not in sound state of mind when this Settlement Deed was written on 18.10.1993 as per Ex.P1. The admissions in the cross-examination of DW1 on 14.7.2014 itself sufficient that in the year 1993, as per Ex.P1, deceased Lakshamma was suffering from mental disorder. Under these circumstances how can deceased Lakshamma could execute unregistered Will Deed-Ex.D1 in the year 1999. So this goes to show that unregistered Will Deed-Ex.D1 is concocted and created for the purpose of grabbing the suit schedule property without giving legitimate share to plaintiff and defendant No.1. This goes to show that the propounder defendant No.2 and {29} O.S.No.138/2013 also DW1 utterly failed to remove the suspicious circumstances existed while executing the alleged Will as per Ex.D1 by defendant No.1. Therefore, the deceased Lakshamma has never thought of executing unregistered Will Deed-Ex.D1. Further there was no intention for Lakshamma to execute unregistered Will Deed-Ex.D1 in favour of defendant No.2. Therefore viewed from any angle and looking to the contradictions in the cross-examination of DWs.2 and 3 who are attesting witnesses, and DW1 who is propounder of Ex.D1 and DW4 who is elder brother of deceased Lakshamma adduced their oral evidence which is not at all believable, trustworthy and confidental to inspire the Court as to come for the conclusion that unregistered Will Deed-Ex.D1 is the genuine and valid document executed by deceased Lakshamma who is mother of plaintiff and defendants 1 and 2. Further looking to the contents of unregistered Will Deed-Ex.D1, it is mentioned that, since defendant No.1 and plaintiff have attained {30} O.S.No.138/2013 majority and they are capable to maintain themselves, she executed the Will in favour of defendant No.2. So here how can the contents of Ex.D1 are to be believed? Because no share has been allotted to defendant No.1 and plaintiff who are the sons of deceased Lakshamma and brothers of defendant No.2. Moreover deceased Lakshamma died in the year 2001. Since then Ex.D1 has not been acted upon and on the strength of the alleged unregistered Will Deed-Ex.D1, the katha and mutation, in the name of defendant No.2 has not got entered in the revenue records before Bruhat Bengaluru Mahanagara Palike. Therefore Ex.D1 is unnatural, unfair and improbable reflecting that the testator i.e., deceased Lakshamma said to has executed unregistered Will Deed-Ex.D1 on her own will and with one common object. Therefore suspicious circumstances attendant on the disposition is in fact impact the terms of Ex.D1 as doubtful, created and concocted by defendant No.2 colluding with DWs.1 to
4. Therefore the propounder DW1 utterly failed to {31} O.S.No.138/2013 remove the suspicious circumstances with support of cogent evidence. Hence I answered Issue No.2 in the Negative.
ISSUE NOS.1 AND 2:
21. In this case the plaintiff by filing this suit contended that the suit schedule property is the joint family property of him and defendants 1 and 2 and there is no partition held in respect of suit schedule property after death of deceased Lakshamma. Further as admitted in the written statement of defendant No.2 and also in the pleadings of the plaint, said suit schedule property has been allotted to his mother deceased Lakshamma in the settlement held in between the children of Muniswamappa who is maternal grand-father of plaintiff and defendants. So therefore in this case the allegation against defendants 1 and 2 is that they are trying to create and fabricate false documents and also making attempt to alienate the suit schedule property to third parties. So in this case, on perusing Ex.P1-Settlement Deed, the suit {32} O.S.No.138/2013 schedule property has been allotted to deceased Lakshamma. Therefore the suit schedule property is the absolute property of deceased Lakshamma. Here Ex.P8 to P13 which are the tax paid receipts stood in the name of deceased Lakshamma who is mother of plaintiff and defendants till 2014. The plaintiff himself adduced his oral evidence by way of filing sworn affidavit in lieu of chief examination and in further chief examination of PW1, the documents produced by him are marked as Ex.P1 to P17. In the cross examination of PW1 by the counsel for defendant No.2, nowhere he admitted the unregistered Will Deed-Ex.D1 in favour of defendant No.2. Therefore from the cross-
examination of PW1, goes to show that as on the date of filing of this suit, the suit schedule property remained as joint family property of plaintiff and defendants after death of deceased Lakshamma.
22. In support of the plaintiff's case, one witness PW2 adduced her oral evidence and deceased Lakshamma is none other than the younger sister of {33} O.S.No.138/2013 PW2. PW2 in her cross-examination deposed that the suit schedule property is in possession of the plaintiff. So here oral evidence of PW2 will not helpful to defendant No.2 in order to disprove the case of plaintiff. On looking to the oral evidence of PWs.1 and 2 and documentary evidence, it goes to show that the suit schedule property still, on the date of filing of the suit, remained as joint family property of plaintiff and defendants 1 and 2. Moreover in this case, PWs.1 and 2 have not at all admitted the suggestion suggested by the counsel for defendant No.2 that deceased Lakshamma executed unregistered Will Deed-Ex.D1 in presence of attesting witnesses DW2 and 3. Further in this case, defendant No.2 utterly failed to prove the genuity or validity of unregistered Will Deed-Ex.D1. Therefore the plaintiff proved that the suit schedule property is the joint family property of plaintiff and defendants 1 and 2.
23. The 1st defendant by filing written statement sailing with the plaintiff and requested to decree the {34} O.S.No.138/2013 suit as prayed for. Therefore the plaintiff proved Issue Nos.1 and 2 and established that as on the date of this suit, the suit schedule property is joint family property of himself and defendants 1 and 2. Hence the plaintiff is entitled to his share. Accordingly I answered Issue Nos.1 and 2 in the affirmative.
ISSUE NO.4:
24. In view of the foregoing discussion, observation made on Issue Nos.1 to 3, this court proceeds to pass the following order:-
ORDER Suit filed by the plaintiff against the defendant is hereby decreed.
Further decreeing that the plaintiff and defendants 1 and 2 are entitled to 1/3rd share each in the suit schedule property.
The division of the suit schedule property shall be effected by metes and bounds as per Sec.54 of C.P.C.
Draw preliminary decree accordingly.
{35} O.S.No.138/2013 The parties are relatives to each other, hence there is no order as to costs.
(Dictated to the judgment Writer, typed by her, corrected, signed and then pronounced by me in the open Court on this the 24th Day of February 2018) (DEVANAND PUTTAPPA NAYAK) XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.
ANNEXURE
List of witnesses examined on behalf of the
Plaintiff
P.W.1 B.Ravi
P.W.2 Smt.Munirathnam
List of documents marked on behalf of the Plaintiff:
Ex.P1 Certified copy of settlement deed Dt.18-10-1993.
Ex.P2 One demand Register extract
Ex.P3 Tax paid receipt.
Ex.P4 Endorsement issued by Hulimavu
Police.
Ex.P5 Petition register extract issued by
Hulimavu Police.
Ex.P6 One encumbrance certificate
Ex.P7 One RTC extract
Ex.P8 to
{36} O.S.No.138/2013
Ex.P13 Six tax paid receipts.
Ex.P14 Post-Mortem report.
Ex.P15 First Information Report
Ex.P16 Complaint lodged by defendant No.2
Ex.P17 endorsement given by police
List of witnesses examined on behalf of the Defendants :
DW1 Ashok DW2 G.Anjanappa DW3 Jayapala DW4 Vajrappa
List of documents marked on behalf of the Defendants :
Ex.D1 Unregistered Will Deed
Ex.D2 Endorsement issued by Police
XXXVIII Addl. City Civil and
Sessions Judge, Bangalore City.
-44- O.S.No.138/2013
Order pronounced in the open court vide separate judgment ORDER Suit filed by the plaintiff against the defendants is hereby decreed.
Further decreeing that the plaintiff and defendants 1 and 2 are entitled to 1/3rd share each in the suit schedule property.
The division of the suit schedule property shall be effected by metes and bounds as per Sec.54 of C.P.C.
Draw preliminary decree accordingly. The parties are relatives to each other, hence there is no order as to costs.
XXXVIII Addl. City Civil and Sessions Judge, Bangalore City.