Bangalore District Court
In O.S.No.1403/2018 vs In O.S.No.1403/2018 on 17 December, 2022
KABC010052362018
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri. JERALD RUDOLPH MENDONCA., B.A.L. LL.B.,
Dated this the 17th day of December, 2022
O.S.No.1403/2018 C/W 1127/2018
PLAINTIFFS IN O.S.No.1403/2018:
1. Sri. K.G. Hanumantha Raju,
S/o Late Gangaiah,
Aged about 60 years,
Silver Star Hotel,
No.126, 6th Cross,
Gandhinagar,
Bengaluru-560009.
2. Sri. K.R. Sudhir,
S/o Late K.P.R. Shetty,
Aged about 67 years,
Silver Star Hotel,
No.126, 6th Cross,
Gandhinagar,
Bengaluru-560009.
( By Sri. Ambaji Rao Najre Adv.,)
Vs
O.S.No.1403/2018 C/w
2 O.S.1127/2018
DEFENDANTS IN O.S.No.1403/2018:
1. Smt. Parvathamma,
Since dead, represented by her
Lrs that is defendant No.2 and 3
2. Sri. J.P. Sudhakar,
S/o Late. J.P. Narayanaswamy,
Aged about 45 years,
R/at No.12/6, 9th Main Road,
Sadashivanagar, Bengaluru-80.
3. Kumari J.P. Devika,
D/o Late. J.P. Narayanaswamy,
Aged about 19 years,
R/at No.350, 4th Main,
Upper Palace Orchard,
Sadashivanagar, Bengaluru-560080.
4. Sri. J.P. Puttaswamiah,
S/o Late Puttappa,
Aged about 72 years,
R/at Sri. Lakshminarasimhaswamy
Nilaya, Kalankoppal Road,
Laxmipura, Arasikere,
Hassan District.
5. Sri. J.P. Narasimhamurthy,
S/o Sri. Puttaswamaiah,
Aged about 44 years,
R/at No.18/1, 8th 'A' Main,
2nd Cross, Sadashivanagar,
Bengaluru-80.
6. Smt. J.P. Sudha,
D/o J.P. Puttaswamaiah,
Aged about 46 years,
R/at No.23/A, 5th Main,
1st Cross, KEB Layout,
Near Rangabharana Kalamandira,
Sanjay Nagar, RMV 2nd stage,
Bengaluru-94.
7. Kumari S. Monisha,
D/o Satish Kumar,
O.S.No.1403/2018 C/w
3 O.S.1127/2018
Aged about 22 years,
R/at No.23/A, 5th Main,
1st Cross, KEB Layout,
Near Rangabharana Kalamandira,
Sanjay Nagar, RMV 2nd stage,
Bengaluru-94.
8. S. Chiranjeevi Raghavendra,
S/o Satish Kumar,
Aged about 22 years,
R/at No.23/A, 5th Main,
1st Cross, KEB Layout,
Near Rangabharana Kalamandira,
Sanjay Nagar, RMV 2nd stage,
Bengaluru-560094.
9. Smt. Chudaratna,
D/o J.P. Puttaswamaiah,
Aged about 41 years,
R/at Murugan Industries,
Plot No.6, 7, 8, KIADB
Industrial Estate,
Kelakote, NH4,
Chithradurga-577501.
10. Kumari. Sribrinda,
D/o Maruthi Prasanna,
Aged about 22 years,
R/at Murugan Industries,
Plot No.6, 7, 8, KIADB
Industrial Estate,
Kelakote, NH4,
Chithradurga-577501.
11. Master Yegnesh,
S/o Maruthi Prasanna,
Aged about 19 years,
R/at Murugan Industries,
Plot No.6, 7, 8, KIADB
Industrial Estate,
Kelakote, NH4,
Chithradurga-501.
O.S.No.1403/2018 C/w
4 O.S.1127/2018
12. Master Keerthivardhana,
S/o Maruthi Prasanna,
Aged about 12 years,
R/at Murugan Industries,
Plot No.6, 7, 8, KIADB
Industrial Estate,
Kelakote, NH4,
Chithradurga-501.
Since minor represented by
his mother natural guardian
Chuda Ratna
13. Mrs. J.P. Tulasivrinda,
D/o Late Puttappa,
Aged about 61 years,
R/at No.18/3, 8th 'A' Main,
2nd Cross, Sadashivanagar,
Bengaluru-80.
14. Smt. H.P. Shobha,
W/o Late J.P. Narayanaswamy,
Aged about 39 years,
R/at No.11, 1st Cross,
Acchaiah Shetty Layout,
Bengaluru-80.
15. Master N. Harikrishna,
S/o Late J.P. Narayanaswamy,
Aged about 19
R/at No.11, 1st Cross,
Acchaiah Shetty Layout,
Bengaluru-80.
16. Kumari. N. Hiranmayi,
D/o Late J.P. Narayanaswamly,
Aged about 7 years,
R/at No.11, 1st Cross,
Acchaiah Shetty Layout,
Bengaluru-560080.
Since minor represented by
her mother H.P. Shobha
17. G.V. Gopinath,
S/o G. Veraswamy Reddy,
O.S.No.1403/2018 C/w
5 O.S.1127/2018
R/at No.281, 2nd Main,
18th Cross, Sampige Road,
Malleshwaram, Bengaluru-560003.
( D.1- Dead, D2-By Sri. S.R.Kamalcharan
D3- By Sri. K.V. Narasimhan,
D4-By Sri.T. Prakash,
D5, D13- By Sri. K.N. Vishwanath;
D6 to 12-By Sri. S.S.Gogi
D14 to 16- By Sri. B.M. Halaswamy
and D17- By Sri. AM, advocates)
PLAINTIFFS IN O.S.No.1127/2018:
1. Master N.Harikrishna,
Minor, by Smt.H.P.Shobha
His Next Friend, but now
having attained majority,
S/o Late J.P.Narayanaswamy,
Aged about 18 years,
2. Kumari N.Haranmayi,
D/o Late J.P.Narayanaswamy,
Aged about 6 years,
Plaintiff No.2 being minor
Represented by mother
And Natural Guardian/Next Friend,
Smt.H.P.Shobha,
W/o Late J.P.Narayanaswamy,
Aged about 38 years,
Plaintiff No.1 and 2
are residing at No.11,
Achaiah Shetty layout,
Municipal Ward No.99,
Aramane Nagar,
Bangalore-560080.
( By Sri.B.M.Halaswamy, Advocate)
O.S.No.1403/2018 C/w
6 O.S.1127/2018
Vs.
DEFENDANTS IN O.S.No.1127/2018
1.Smt. Parvathamma,
W/o Late J.P.Narayanaswamy,
Aged about 59 years,
Residing No.350, 4th Main,
Upper Palace Orchards,
Sadashivanagar,
Bangalore-560080
2. Sri. J.P. Sudhakar,
S/o Sri.Puttaswamaiah,
Aged about 44 years,
Residing at 12/6, 9th Main Road,
Sadashivanagar, Bengaluru-560080.
3. Kumari J.P. Devika,
Aged about 18 years,
Foster daughter of late
J.P.Narayanaswamy,
Residing at No.350, 4th main,
Upper Palace Orchards,
Sadashivnaggar
Bangalore-560080
4. Sri.Lakshmi Narasimha Builders
and Developers Pvt Limited,
No.484, 11th Cross, Dollars Colony,
RMV II Stage,
Bangalore-560080
Represented by its Managing Director
5. Mysore Intercontinental
Hotels Private Limited,
No.219/11, JP Corp, 4th Floor,
Bellary Road, Sadashivanagar,
Bangalore-560080
Represented by its Director.
6. Bangalore Villas Private Limited
No.219/11, JP Corp, 4th Floor,
Bellary Road, Sadashivanagar,
Bangalore-560080
Represented by its Director
O.S.No.1403/2018 C/w
7 O.S.1127/2018
7. J.P.Distilleries Private Limited
No.219/11, JP Corp, 4th Floor,
Bellary Road, Sadashivanagar,
Bangalore-560080
Represented by its Director
8. Sri.Lakshmi Narasimha
Distilleries Private Limited
No.219/11, JP Corp, 4th Floor,
Bellary Road, Sadashivanagar,
Bangalore-560080
Represented by its Director
9. Sri.Lakshmi Narasimha
Hotels Pvt Limited
No.219/11, JP Corp, 3rd and 4th Floor,
Bellary Road, Sadashivanagar,
Bangalore-560080
Represented by its Director
10. M/s. Bindu Construction
A partnership firm
Having its registered office at
No.219/11, JP Corp, 3rd and 4th floor,
Bellary Road, Sadashivanagar,
Bangalore-560080
No.219/11, JP Corp, 3rd and 4th Floor,
Bellary Road, Sadashivanagar,
Bangalore-560080
11. M/s J.P.Impex Corporation
A partnership firm
Having its registered office at
No.219/11, JP Corp, 3rd and 4th floor,
Bellary Road, Sadashivanagar,
Bangalore-560080
Represented by its Managing Partner
12. M/s. Raghavendra Enterprises,
A Partnership firm
Having its registered office at
No.219/11, JP Corp, 3rd and 4th floor,
Bellary Road, Sadashivanagar,
O.S.No.1403/2018 C/w
8 O.S.1127/2018
Bangalore-560080
Represented by its Managing Partner
13. M/s SLN Builders,
A partnership firm
Having its registered office at
No.219/11, JP Corp, 3rd and 4th floor,
Bellary Road, Sadashivanagar,
Bangalore-560080
Represented by its Managing Partner
14. M/s Viva Dholen Sprits,
A Partnership Firm,
Having its registered office at
No.219/11, JP Corp, 3rd and 4th floor,
Bellary Road, Sadashivanagar,
Bangalore-560080
Represented by its Managing Partner
15. M/s. Shiva Enterprises,
A Partnership Firm,
Having its registered office at
No.219/11, JP Corp, 3rd and 4th floor,
Bellary Road, Sadashivanagar,
Bangalore-560080
Represented by its Managing Partner
16. Corporation Bank,
S.C.Road,
Seshadripuram,
Bangalore
Rep. By its Branch Manager,
17. Corporation Bank,
Sadashivanagar Branch,
No.163, 9th Main, 3rd Cross,
R.M.V. Extension Post Office
Sadashivanagar, Bangalore-560080
Rep: by its Branch Manager
18. Corporation Bank,
Jairaj Complex,
Prashant Colony,
Shiruru Park Main Road,
Vidyanagar, Hubli,
O.S.No.1403/2018 C/w
9 O.S.1127/2018
By its Branch Manager.
19. Kotak Mahindra Bank Ltd,
Sadashivanagar Branch,
No.19, G-2, 2nd Main, Sankey Road,
Lower Palace Orchard
Sadashivanagar,
Next to Shell Petrol Bunk,
Bangalore-560080
By its Branch Manager.
20. Kotak Mahindra Bank,
Shivamogga Branch,
Gopi Circle, BalaraUrs Road,
Durgigudi,
Shivamogga-577201
By its Branch Manager
21. Kotak Mahindra Bank,
Madikere Branch,
52/9A Post Box No.65
Main Road,
Madikere-571201
By its Branch Manager
22. Sudha Co-operative Bank
Seshadripuram Branch,
No.185/1, Arya Indiga Bhavana,
Rajeev Gandhi Circle,
Sampige Road, Bangalore
By its Branch Manager
23. The Manager
Axis Bank
Sahakarnagar Branch,
# 19, 60 feet Road,
Sahakarnagar,
Bangalore-560092
By its Branch Manager,
24. B.S.Vinod Kumar,
S/o Late B.M.Somashekar,
Aged about 40 years,
R/at No.116, Byrathi Village,
Kothnur Post,
O.S.No.1403/2018 C/w
10 O.S.1127/2018
Bangalore-56077.
(By Sri.Sundarswamy S.Ramadas, Adv,
for Deft No.2, 5 to 10, 12 to 15,
Sri.K.V.Narasimhan Adv.for Deft No.3
Sri.Satyanarayana, Adv., for Deft No.16
Sri.Raghavendra Rao Manvi, Adv.,
for Deft No.17, Sri.K.V.Sathish, Adv.,
for Deft No.19, Sri.J.M.Patil Adv., for
Defendant No.23, Deft No.11 -
Dismissed, Deft No.23 - Exparte)
Date of institution
of the suit :
O.S.No.1403/2018: 20-02-2018
O.S.No.1127/2018: 08-02-2018
Nature of the suit
[suit on pronote, suit
for declaration and
possession, suit
for injunction]
O.S.No.1403/2018: Grant of Probate
O.S.No.1127/2018: Partition & Separate
possession, and for P.Injn
Injunction
Date of the commencement
of recording of the evidence
O.S.No.1403/2018: 06-03-2020
O.S.No.1127/2018: 12-07-2021
Date on which the
Judgment was pronounced
O.S.No.1403/2018: 17-12-2022
O.S.No.1127/2018: 17-12-2022
O.S.No.1403/2018 C/w
11 O.S.1127/2018
Year/s Month/s Day/s
Total Duration
O.S.No.1403/2018: 05 02 03
O.S.No.1127/2018: 05 01 21
COMMON JUDGMENT:
These suits are clubbed and common evidence is
recorded in O.S.No.1403/2018 as per order dated
10.02.2020 passed by this Court in OS No.1403/2018.
Therefore both the cases are disposed of by common
Judgment.
2. The Plaintiffs in O.S.No.1403/2018 claim that
they are the executors of the Will of Late
J.P.Narayaswamy which is executed by
J.P.Narayanaswamy while he was in a sound disposing
state of mind. They have prayed to for grant of Probate
and Letter of Administration in their favour in respect of
the assets of of late J.P.Narayanaswamy.
3. The Defendant No.1 is the wife, Defendant No.2
is stated to be their adopted son, Defendant No.3 is
stated to the daughter of J.P.Narayanaswamy and
defendant No.1. The defendant Nos.4 to 13 are the
O.S.No.1403/2018 C/w
12 O.S.1127/2018
beneficiaries under the will. The defendant No.14 is the
second wife of J.P.Narayanaswamy and defendant
Nos.15 and 16 are the children of J.P.Narayanaswamy
and the defendant No.14. The defendant No.17 is the
owner of the property bearing No.281. He got
impleaded as the property bearing No.218 described in
the annexures to the Will and also in the plaint schedule
was wrongly shown as 281 and an order of stay
operating against the property bearing No.281.
4. The proceedings were initially registered as
P&SC No.196/2017 and the same were ordered to be
converted as the suit as the defendant Nos.14 to 16
have disputed the alleged Will and proceedings were
registered as O.S.No.1403/2018.
5. The suit in O.S.No.1127/2018 is filed by the
defendant Nos.15 and 16 in O.S.No.1403/2018 for
partition claiming their 1/3rd share each in the plaint
schedule properties and for permanent injunction
restraining the defendants from interfering with the
O.S.No.1403/2018 C/w
13 O.S.1127/2018
peaceful possession and enjoyment of the plaint C
schedule property and for costs of the suit.
6. In this Judgment the parties were referred as
per their ranks in O.S.1403/2018. The plaintiffs in
O.S.1127/2018 are the defendant No.15 and 16 in OS
No.1403/2018 and the defendant Nos.1 to 3 in
O.S.No.1403/2018 are also defendant nos.1 to 3 in OS
No.1127/2018. The defendant Nos.4 to 14 in OS
No.1127/2018 are the various firms and companies
belonging to the J.P.Narayanaswamy. The defendant
Nos.16 to 23 in OS No.1127/2018 are the various banks
and financial institutions.
7. The case of the plaintiffs in O.S.No.1403/2018
are as follows:-
(i) They have stated that J.P.Narayanaswamy who
is the testator of the Will had studied only upto middle
school and he started his carrier as a Toddy/ Arrack
Vendor in the year 1971. Subsequently he carried on
trading business in liquor and he established his
business. J.P.Narayanaswamy had acquired various
O.S.No.1403/2018 C/w
14 O.S.1127/2018
properties out of his self earnings from his business.
J.P.Narayanaswamy.
(ii) late J.P.Narayanaswamy has duly executed the
Will at his residence No.350, Sri Krishna Nilaya, 4th Main,
Upper Palace orchards, Sadashivanagara, Bangalore. It
is stated that he executed the said Will without any
undue influence pressure and with own his volition, in
order to avoid misunderstandings in respect of the
division of his properties and liabilities. The said Will
was executed on 17.01.2017 in the presence of Senior
Sub-register, Malleshwaram, Bangalore and in the
presence of witnesses Dr.O.S.Siddappa and
Poornesh.M.R. the attestors to the said Will. The
document was registered in the office of Senior Sub-
register, Bangalore on 18.01.2017.
(iii) It is stated that J.P.Narayanaswamy also
executed a Codicil at his residence on 20.01.2017 in the
presence of the same Senior Sub-registrar and also in
the presence of above said witnesses and the said
Codicil was also registered on 21.01.2017. They have
O.S.No.1403/2018 C/w
15 O.S.1127/2018
described the properties of J.P.Narayanaswamy in the
different annexures from Annexure-1 to 9. The plaintiffs
have described the properties bequeathed by
J.P.Narayanaswamy to the various beneficiaries as per
Annexure-10 to 19.
(v). As per the said Will the Executors are
authorized to distribute the assets of
J.P.Narayanaswamy.
(vi). J.P.Narayanaswamy passed away on
09.02.2017 at his residence at Bangalore. The
defendant Nos.1 to 12 are the wife, son, daughter,
brother, sister and their family members of late
J.P.Narayanaswamy. The defendant No.14 is the second
wife and defendant Nos.15 and 16 are the children of
late J.P.Narayanaswamy. The Executors have tried their
level best for management of the properties and have
handed over all the properties and original documents
to the beneficiaries as per the allotments made in their
respective names as shown in the Will except the
minor's properties.
O.S.No.1403/2018 C/w
16 O.S.1127/2018
(vii). On 10.05.2017 one of the Executors viz., the
defendant No.4 J.P.Puttaswamaiah has sent a
communication to the plaintiffs stating that he is not
residing in Bangalore and his health also does not
permit him to take the responsibility. Therefore he
decided to resign from his Executorship. The plaintiffs
due to lack of legal knowledge and legal expertise after
receiving the communication from J.P.Puttaswamaiah
have accepted the resignation on 12.05.2017 under the
impression that they have the power to act upon such
resignation.
(viii) Acting upon the Will the plaintiffs with a good
intention issued a letter of offer on 12-05-2017 for the
post of executor-ship to Sri.B.Rangaswamy advocate
who is the brother in law of the defendant No.14.
Sri.B.Rangaswamy issued a communication on
14.05.2017 agreeing to be appointed as Executor. The
appointment letter was issued to him on 15.05.2017 by
the plaintiffs.
(ix) Subsequently when the plaintiffs sought for
the opinion of the legal experts regarding the
O.S.No.1403/2018 C/w
17 O.S.1127/2018
resignation and re-appointments they were advised that
a Court Order is necessary for such appointments.
Therefore the plaintiffs have communicated on
02.06.2017 to the defendant No.4 J.P.Puttaswamy and
V.Rangaswamy stating that the acts of the plaintiffs are
subject to the approval of the court in the probate
proceedings.
(x). As the rights of the minors are involved the
plaintiffs have decided to get the Will probated. The
approval of the court is necessary for reimbursements
of the expenses of the executors and other related
issues.
Therefore the plaintiffs have prayed to allow the
petition.
8. All the defendants have admitted the Will and
have stated that the properties have be divided as per
the contents of the Will and Codicil. It is the defendant
Nos.14 to 16 who have disputed the alleged Will and
Codicil.
9. The case of the defendant no.14 to 16 and the
plaintiffs in OS No.1127/2018 is as follows:-
O.S.No.1403/2018 C/w
18 O.S.1127/2018
(i). They have denied that defendant No.2 is the
adopted son of defendant No.1 and J.P.Narayanaswamy.
They have denied the adoption on the following
grounds.
(a) The Defendant No.2 never treated
J.P.Narayanaswamy as his father. Defendant No.2 has
been treating Puttaswamaiah as his father and has
never disowned him there is no valid adoption of
Defendant no.2 by J.P.Narayanaswamy and Defendant
No.1. As on the date of adoption J.P.Narayanaswamy
was aged about 33 years and the defendant No.1 was
aged about 29 years. The defendant No.2 was adopted
under the deed was aged 9 years. The defendant no.1
being the adoptive mother was aged 25 years and the
son adopted was aged about 9 years as on the date of
adoption. Hence there was no valid adoption.
(b) The Defendant No.1 was not more than 21
years old than the Defendant No.2 on the date of
adoption. The requirement Under section 11 of the
Hindu Adoption Marriage Act is not complied and
adoption is also invalid.
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19 O.S.1127/2018
(ii) They have stated that the defendant No.3 is
the foster daughter of J.P.Narayanaswamy and
Smt.Parvathamma and not a biological daughter.
(a) The defendant No.1 had undergone treatment
in Leelavathi Hospital, Mumbai the month of February
1999 for fibriodectomy and there was no chances of
getting the child. After major surgery it is also highly
impossible for the Defendant No.1 to recover conceive
and delivery a child in a span of 8 months.
(b) In the adoption deed also it is stated that the
defendant No.1 will not get the child in future and
therefore they are adopting the Defendant No.2.
(c). The Defendant no.1 had brought the
defendant No.3 from a hospital in her home town
Hassan. The Defendant No.1 was residing at
Sadashivanagar, Bangalore, The Defendant No.3 was
born at a hospital in Hassan. The defendant No.1's
sister Harini helped her in procuring the just born child
from the hospital with the help of doctors by creating
fake birth certificate.
O.S.No.1403/2018 C/w
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(d) The child was brought up for nearly two years
at the defendant No.1's sister by name Lakshmi's
residence at Rajajinagar. It was not informed to
J.P.Narayanaswamy. nor he had consented to the same.
(e) After more than two years J.P.Narayanaswamy
came to know of the 3rd defendant and agreed to bring
her up in their house.
(f) Therefore the defendant No.3 is a neither
natural daughter nor adopted by deceased
J.P.Narayanaswamy and defendant No.1. The defendant
No.3 was fostered by the defendant No.1 and the
names of J.P.Narayanaswamy and defendant No.1 was
used as parents.
(iii) They have contended that J.P.Narayanaswamy
had extreme affection towards the defendant Nos.15
and 16. In order to secure and safeguard the interest of
the defendant no.15 and 16 he had bequeathed the
properties in their favour on different dates. They have
stated that the J.P.Narayanaswamy has executed the
three Wills on 20.03.2006, 28.9.2015 and 11.3.2016 in
favour of the defendant no.15 and 16. They have stated
O.S.No.1403/2018 C/w
21 O.S.1127/2018
that J.P.Narayanaswamy was hale and healthy and in a
sound disposing state of mind at the time of execution
of the said three Wills. The properties described in the
said Will are in possession and enjoyment of the
defendant no.15 and 16 represented by their mother
Smt.Shoba, and natural guardian the defendant no.14.
(iii) J.P.Narayanaswamy had married the defendant
No.14 Smt.Shobha as he had no issues from the first
wife the defendant No.1. The defendant no.15 and 16
are the children of J.P.Narayanaswamy and defendant
no.14.
(iv). They have contended that on 20.12.2016
Dr.Dheeraj Karanth of Vikram Hospital revealed to
J.P.Narayanaswamy that he has liver cancer and he
would survive only for three months.
(v) It is stated that one Mr.Sudhir.K.R. who is an
ex-employee of J.P.Narayanaswamy among the
defendant No.2 and Hanumantharaju a person
belonging to the same community constantly fed into
the brain of deceased J.P.Narayanaswamy that he
should not allowed any doctors to touch him and just
O.S.No.1403/2018 C/w
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passed his days. It is stated that though the treatment
was possible in Korea deliberately it was avoided by
them who were managing the show. They did not allow
anyone including the defendant Nos.14 to 16 to
communicate with deceased J.P.Narayanaswamy.
(vi). The documents relating to the medical
treatment were refused to the defendant no.14 and it is
in the custody of defendant No.2. J.P.Narayanaswamy
was admitted to the hospital on 23.01.2017 after the
defendant no.14 insisted that he should be admitted to
the hospital. He was shifted from the hospital to the
residence on 03.02.2017. He was not given any
comprehensive treatment like surgery or chemotherapy
for the liver cancer. The defendant No.14 was visiting
the hospital and during the said period
J.P.Narayanaswamy was in critical condition in the
hospital. The grand engagement ceremony of
defendant no.3 was performed with Sanjay Raju who is
the son of plaintiff No.1.
(vii). The J.P.Narayanaswamy passed away on
09.02.2017 and his obsequies was completed on
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23 O.S.1127/2018
19.02.2017. Immediately on 22.02.2017 a meeting was
called by Hanumantha Raju at Hotel a Silver Star at
Gandhinagar stating that Will dated 17.01.2017 was
executed by J.P.Narayanaswamy and subsequently
after three days a Codicil dated 21.01.2017 was
executed. A copy of the Will and Codicil was handed
over to the representative of the defendant No.14 as
she did not attend the meeting. Even before the
defendant No.14 could understand the terms of the Will
and Codicil, several caveat petitions were served on the
Defendant Nos.14 to 16 making them as respondents.
In the caveat petitions the J.P.Narayanaswamy was not
mentioned as the father of defendant Nos.15 and 16
and the husband of Defendant No.14.
(viii). The defendant no.14 to 16 have challenged
the Will and Codicil on the following grounds contending
that there are several suspicious circumstances.
(a) The Will dated 17.01.2017 runs about 54
pages and the said Will has came into existence when
deceased J.P.Narayanaswamy was in his death bed with
liver cancer. The said Will has come into existence just
O.S.No.1403/2018 C/w
24 O.S.1127/2018
22 days before the death of J.P.Narayanaswamy. The
Will was not executed out of his own free will and
volition he was not in a sound disposing state of mind.
On the date of the alleged will J.P.Narayanaswamy was
not physically and mentally capable of understanding
the nature of disposition to be made. His bilirubin count
was 11 and above. Any person crossing the bilirubin
count of 10 will have psychological imbalance and not
be in a stable state of mind and may slip to coma.
(b) The said Will and Codicil are in English
language. J.P.Narayanaswamy did not know English
language it is improbable that a man in his deathbed
would execute a Will consisting of 54 pages.
(c). Sri.K.J.Hanumantharaju, K.R.Sudhir and
Puttaswamaiah.J.P. who were appointed as Executors
under the Will are the propounders of the Will and
Codicil and have actively participated and in collusion
with first family have brought about the Will.
(d) The nature of the disposition under the Will
and the Codicil is suspicious. The Defendant No.2 and
his biological family consisting of his father, brother,
O.S.No.1403/2018 C/w
25 O.S.1127/2018
sisters and grand children are the major beneficiaries
under the Will. The shares allotted to defendant Nos.15
and 16 under the Will dated 17.01.2017 is considerably
reduced by the Codicil and the same are allotted in
favour of Defendant No.2. K.J.Hanumantharaju himself
is an indirect beneficiary under the Will.
(e). The large junk of the assets belonging to late
J.P.Narayanaswamy are allotted to the defendant No.2.
The properties shown to have been allotted to the
defendant Nos.15 and 16 are to be controlled by the
alleged executors for the next two decades. It would be
never the intention of J.P.Narayanaswamy that the
defendant Nos.15 and 16 be left at the mercy of the
strangers such as the plaintiffs.
(f). It is highly impossible that J.P.Narayanaswamy
would a appoint his brother J.P.Puttaswamiah as the
Executor because he was always dependent on the
income of the J.P.Narayanaswamy. He has not handled
any practical matters in his lifetime.
(ix) The defendant No.2 in collusion with the
plaintiffs is trying to deprive the right, title and interest
O.S.No.1403/2018 C/w
26 O.S.1127/2018
of the defendant Nos.15 and 16 in the suit schedule
properties. They are an exclusive possession and
enjoyment of the properties mentioned in Schedule C to
the plaint in O.S.No.1127/2018.
(x) The defendant Nos.1 to 3 and the plaintiffs are
making attempts to knock away the properties
belonging to late J.P.Narayanaswamy. The properties are
the self acquired property of J.P.Narayanaswamy. Since
he has died intestate in respect of the plaint schedule A
and B property described in O.S.No.1127/2018, the
defendant Nos.14, 15 and 16 are entitled for 1/3rd
share each in the said properties.
Therefore the defendant Nos.14 to 16 have prayed to
dismiss the suit in O.S.1403/2018 and decree the suit in
O.S.No.1127/2018.
10. The defendant no.1 Parvathama and
defendant No.3 Devika have filed the joint written
statement. The defendant no.2 Sudhakar has filed the
separate written statement. The contention of
defendant no.1 to 3 is similar which is as follows:-
O.S.No.1403/2018 C/w
27 O.S.1127/2018
(i) They have stated that there is a Resolution
passed at the meeting of the Board of Directors of the
Company vis. M/s.Sri.Lakshmi Narasimha Builders and
Developers Private Limited dated 07.02.2017 held at
11.00 a.m. The said Resolution reads that "The
Directors consented to appoint of Mr.Sharath Gowda as
Additional Director whose period of office up to the date
of ensuing Annual General Meeting of the Company. The
said Company had only two Directors viz., the
defendant no.14 mother and late Sri.J.P.Narayanasway.
It is clear that Sri.J.P.Narayanasway attended the
meeting and consented to appoint Mr.Sharath Gowda as
the Additional Director. This is signed by the defendant
no.14 who also participated in the said meeting. If late
Sri.J.P.Narayanasway had the ability to give consent,
attend Board meeting, and gave consent for
appointment of Director, on 07.02.2017 the defendant
no.14 cannot contended that Late Sri.J.P.Narayanasway
was not having sound and disposable state of mind on
17.01.2017 and 20.01.2017 and he could not have
executed the Will and Codicil.
O.S.No.1403/2018 C/w
28 O.S.1127/2018
(ii) Late Sri.J.P.Narayanasway was discharged from
Vikram hospital on 03.02.2017 and the discharge
summary says that he was conscious and oriented and
it was his wish that he should be nursed at home.
(iii) The contention that the Will is shrouded with
several suspicious circumstances is incorrect. Although
late Sri.J.P.Narayanasway was physically indisposed, his
mental condition was absolute and he had sound and
disposable state of mind. It is true that late
Sri.J.P.Narayanasway was not well around December
2016. The details of illness and treatment as given by
the 14th defendant is substantially correct. But that did
not deter Late J.P.Narayanasway form attending to his
day to day activities. He was attending the office
regularly. He was giving instructions and was involved
in day to day activities and was even monitoring new
project at Coorg.
(iv) Late J.P.Narayanasway died on 09.02.2017
leaving defendants No.1 to 3 as his legal heirs. The
defendant no.15 and 16 are not the legal heirs of the
deceased J.P.Narayanasway. Hence they are not
O.S.No.1403/2018 C/w
29 O.S.1127/2018
entitled to succeed to the estate of
Sri.J.P.Narayanasway The Defendant Nos.2 and 3 are
the children of late Sri.J.P.Narayanasway and the 1 st
defendant Parvathamma.
(v) Sri.J.P.Narayanasway hosted a grand party in a
5 star Hotel on J.P.Sudhakar attaining majority and
there after Mr.J.P.Sudhkar has been brought into his
business by appointing him as a Director in the Group
Companies and admitting him as partner in the group
firms. Further he has been given authority to take
decisions in business activities.
(vi) The deceased Late J.P.Narayanasway has not
executed the will dated 20.03.2006, 28.09.2015 and
11.03.2016.
They have denied that Sri.J.P.Narayanasway was
not provided with comprehensive treatments. Because
he has been admitted to one of the best Hospital in
Bangalore. The engagement ceremony of
Kum.J.P.Devika was performed with the only intention to
fulfil the wish of Sri.J.P.Narayanasway, as he wished to
O.S.No.1403/2018 C/w
30 O.S.1127/2018
see his daughter as bride. On instruction to the
deceased J.P.Narayanasway engagement ceremony of
Kum.J.P.Devika with Sanjay Raj was performed on
01.02.2017 at J.P.Narayanasway's residence. This is not
in dispute, but it was not the grand engagement
ceremony as asserted by the defendant no.14 to 16.
(vii) The defendant no.2 J.P.Sudhakar is an
adopted son of late J.P.Narayanasway and the 1 st
defendant. The fact that Sudhakar is an adopted son is
a evident from the deed of gift dated 30.04.2012
produced by the defendant no.14 to 16 where in the gift
deed is executed by the 2nd defendant J.P.Sudhakar in
favour of his father with respect to property bearing
No.350, 4th Main Road, Upper Palace Orchards,
Sadashivanagar, Bangalore. That apart the adoption of
J.P.Sudhakar was made in accordance with law and
registered before the competent authority as required
under law. The defendant no.14 to 16 cannot question
the adoption of the 2nd defendant who was adopted in
1984 by J.P.Narayanasway and Parvathamma. The
requirement of Hindu Adoption and Maintenance Act
O.S.No.1403/2018 C/w
31 O.S.1127/2018
has been duly complied. The defendant no.14 to 16
cannot challenge the adoption of 1984 in the year
2018.
(viii) It is denied that Defendant No.1 has
undergone treatment at Leelavathi Hospital, Mumbai in
the month of February 1999. In fact Defendant No.1 has
undergone treatment at P D Hinduja National Hospital,
Mumbai in February 2002 for Harnia. The fibrodectomy
procedure was not conducted. The 3rd defendant
Kum.Devika was born on 19.11.1999. The 3 rd defendant
is the daughter of late J.P.Narayanasway and the 1 st
defendant. The defendant no.14 to 16 contended that
Devika is not the daughter of late J.P.Narayanasway.
The name of the deceased J.P.Narayanasway and the
name of the 1st defendant is reflected in the birth
certificate, school records, and other records of the
defendant no.3. Therefore the defendants no.1 to 3
have prayed to decree the suit in OS NO.1403/2018 and
dismiss the suit in OS No.1127/2018.
11. Based on the rival pleadings, this Court has
framed the following issues.
O.S.No.1403/2018 C/w
32 O.S.1127/2018
Issues in OS no.1403/2018
1. Whether the plaintiffs prove that late J.P.
Narayanaswamy has executed a registered
Will dated 17/01/2017 and Codicil dated
20/01/2017, thereby bequeathed all the
schedule properties in favour of defendants?
2. Whether the plaintiffs further prove that the
testator late J.P. Narayanaswamy has
appointed them as executrix/executors so as
to grant of probate of the Will dated
17/01/2017 as sought for?
3. Whether the defendant Nos.14 to 16 prove
that alleged Will dated 17/01/2017 and Codicil
dated 20/01/2017 along with signatures found
thereon are being created by the plaintiffs and
remaining defendants?
4. Whether court fees paid by the
plaintiffs/executrix for grant of probate of the
Will is correct & proper?
5. Whether the plaintiffs are entitled for probate
of the registered Will dated 17/01/2017/Codicil
dated 20/01/2017 and letters of administration
as prayed for?
6. What order or decree?
Issues in OS No.1127/2018.
1. Whether the natural guardian of the
O.S.No.1403/2018 C/w
33 O.S.1127/2018
plaintiffs prove that late J.P.
Narayanaswamy had executed three Wills
dated 20/03/2006, 28/09/2015 and
11/03/2016 respectively and thereby
bequeathed schedule 'C' properties in
favour of the plaintiffs, accordingly they are
in possession and enjoyment of the same
as on the date of the suit?
2. Whether the natural guardian of the
plaintiffs further proves that plaintiffs are in
joint possession and enjoyment of the
schedule 'A" and 'B' properties along with
defendant No.1 as on the date of suit?
3. Whether the natural guardian of plaintiffs
proves that alleged interference by the
defendant No.1 to 3?
4. Whether the natural guardian of plaintiffs
proves that plaintiffs are the children of late
J.P. Narayanaswamy?
5. Whether the plaintiffs are entitled for
1/3rd share each in the entire estate of late
J.P. Narayanaswamy/suit schedule
properties?
6. Whether the defendant No.2 proves that
he is the adopted son of late J.P.
Narayanaswamy?
7. Whether defendant No.3 proves that she
is the biological daughter of late J.P.
Narayanaswamy?
8. Whether the defendant No.1 to 3 prove
O.S.No.1403/2018 C/w
34 O.S.1127/2018
that they became the absolute owners in
possession of the properties by virtue of
registered Will dated 17/01/2017 and
Codicil dated 20/01/2017 as mentioned
therein?
9. Whether the defendant Nos.1 to 3 prove
that Wills dated 20/03/2006, 26/09/2015
and 11/03/2016 have been revoked in
pursuance of the Will dated 17/01/2017 and
Codicil dated 20/01/2017?
10. Whether the defendant Nos.1 to 3
further prove that suit for partial partition
is not maintainable?
11. Whether the suit of the plaintiffs is bad
for non-joinder and mis-joinder of parties?
12. Whether the suit of the plaintiffs in the
present form is maintainable?
13. Whether the plaintiffs are entitled for the
relief as sought for?
14. What order or decree?
12. The common evidence was recorded in OS
No.1403/2018. On behalf of the plaintiffs in OS
No.1403/2018, the plaintiff no.2 got himself examined
as P.w.1 and 5 witnesses as P.w.2 to 6 and the plaintiff
no.2 was examined as P.w.7 and got marked the
documents as per Ex.P.1 to P.23. On behalf of the
O.S.No.1403/2018 C/w
35 O.S.1127/2018
defendants in OS No.1403/2018, the defendant no.2 got
himself examined as D.w.1, the defendant no.14 got
herself examined as D.w.3, the power of attorney holder
of defendant no.17 got herself examined as D.w.6, the
defendant no.3 got herself examined as D.w.7 and
D.w.2, D.w.4 and D.w.5 were the witnesses examined on
behalf of the defendants and got marked the
documents as per Ex.D.1 to D.181. The hand writing
expert Dr.V.Aravindan is examined as C.w.1 and his
report was marked as Ex.C.1.
13. Heard Sri.Ambaji Rao Najre the learned
counsel for both the plaintiffs, Sri.B.M.Halaswamy the
learned counsel for defendant no.14 to 16,
Sri.K.V.Narasimhan the learned counsel for the
defendant no.3, Sri.D.Prakash the learned counsel for
the defendant no.4, Sri.B.C.Venkatesh the learned
counsel for the defendant no.5 and 13, Sri.Santosh S.
Gogi, the learned counsel for the defendant no.6 to 12,
Sri.S.R.Kamalacharan the learned counsel for the
defendant no.2.
O.S.No.1403/2018 C/w
36 O.S.1127/2018
14. The learned counsel for the plaintiffs has relied
on the following rulings
1. (2003) 4_SCC 493 (FB) Sharda VS Dharmpal
2. (2014) 2 SCC 576 Nandlal Wasudeo Badwaik V/s Lata
Nandlal Badwaik
3. LAWS (KAR) 2019(4) 144
4. AIR 1991 KAR 186 Mrs.Latha Ubhayankar and
another V/s Union Bank of India and another
5. AIR 2007 Cal 4 Smt.Malati Roy Chowdhury V/s
Sudhindranath Majumdar and another
6. MANU/KA/2209/2007, K.S.Parvathamma and others
V/s. M.Munikrishnappa and others
7. Civil Appeal No.1960 of 2020 : Dhanpat V/s Sheo
Ram and others.
The learned counsel for the defendant No.2 has relied
on the following rulings
1. AIR 1969 SC 529 Shashikumar Banerjee and Ors
V/s.Sobodh Kumar Banerjee (By Lrs.) and Ors.
2. AIR 1967 SC 1326 Fakhruddin V/s State of Madhya
Pradesh
3. (2003) 1 SCC 21 Alamgir V/s State(NCR.Delhi)
4. AIR 2016 SC 4486 S.P.S.Rathore V/s CBI
O.S.No.1403/2018 C/w
37 O.S.1127/2018
5. AIR 1996 SC 2184 S.Gopal Reddy V/s State of Andhra
Pradesh
6. AIR 2010 SC 806 Ramesh Chandra Agarwal V/s
Regency Hospital Pvt.Ltd.,
7. (2019) 14 SCC 220 Chennadi Jalapathi Reddy
V/s.Baddam Pratapa Reddy
8. AIR 1959 SC 443, H.Venkatachala Iyengar
V/s.B.N.Thimmarajamma and others
9. AIR 1962 SC 567, Rani Purnima Debi & Anr. V/s
Kumar Khagendra Narayan Deb & Anr
10. (1977) 1 SCC 369, Smt.Jaswanth Kaur V/s Smt.Amrit
Kaur and Ors
11. (2002) 2 SCC 85 Madhukar D.Shende V/s. Tarabai
Aba Shedage
12. (2007) 1 SCC 546 Gurudev Kaur & Ors. V/s Kaki and
Ors.
13. 1999 SCC Online Mad 809, Gananasoundari V/s
Chinmmal and Ors.
14. (2018) 1 SCC 296 Kuna @ Sanjaya Behera V/s. St. of
Odisha
15. AIR 1991 Kar 186 Mrs. Lalitha U bhayankar and
Another Vs Union of India and another
16. AIR 2008 Cal 4 Smt.Malati Roy Chowdhary Vs
Sudhindranath Majunmdar and Anothers
17. MANU/KA/2209/2007 K.S.Parvathamma and others
Vs M.Munikrishnappa
O.S.No.1403/2018 C/w
38 O.S.1127/2018
The learned counsel for the defendant No.5 and 13
have relied on the following rulings
1. (2022) 1 SCC 115 : V.Prabhakara V/s Basavaraj.K.
(Dead) by legal representatives and another
2. (2020) 16 SCC 209 : Dhanpat V/s Sheo Ram
(Deceased) through legal representatives and others
The learned counsel for the defendant No.6 to 12 have
relied on the following rulings
1. (2022) 1 SCC 115 V.Prabhakara V/s.Basavaraja.K. &
another.
2. (2020) 16 Supreme Court Cases 209 Dhanpat V/s
Sheo Ram (deceased) through Legal representatives
and others
3. (2007) 11 Supreme Court Cases 621 Savithri and
others V/s. Karthyayani Amma and others
4. (1985) 1 SCC 585 Satya Pal Gopal Das V/s
Smt.Panchu Bala Dasi & others
5. 2009 SCC Online KAR 584 P.N.Balakrishna and others
V/s.H.B.Bhavani Shankar and others
6. 1960 SCC Online AP 256 Chilamakuri Chinna Pullappa
V/s. Guruka Chinna Bayanna and others
7. AIR 1991 Orissa 289 Chandrabati V/s.Laxmi Devi
O.S.No.1403/2018 C/w
39 O.S.1127/2018
8. AIR 1967 Bombay 61 State V/s Madhukar Gopinath
Lolge
9. (2005) 1 SCC 40 Daulat Ram and others V/s Sodha
and others
10. (2005) 1 SCC 280 Meenakshiammal (dead) through
LRS and others V/s. Chandrasekaran and another
11. (2002) 2 SCC 85 Madhukar D.Shende V/s Tababai
Aba Shedage
12. ILR 1998 KAR 1730 Puttegowda V/sThimmarajamma
& Ors.
13. 2014 LAW Suit Kerala 702 Sathy M P ; M P Baby V/s
Sarasa;Baby;Ambily;Vimala
14. 1962 SCC Online Gau 8 Tajo Ram Nath and another
V/s.Baneswar Nath
15. AIR 1960 MP 255(DB) Gendlal and another V/s
Rathanchand & others
16. AIR 1987 SC 1242 Ram Swaroop Gupta V/s Bishun
Narain Inter College and others
The learned counsel for the defendant Nos.14 to 16 has
relied on the following rulings
1. AIR 1959 SC 443 Venkatachala Iyengar
V/s.Thimmarajamma
2. AIR 1962 SC 567 Rani Purnima Debi & Anr V/s. Kumar
Khagendra Narayan Deb & Anr
3. AIR 1977 SC 74 Jaswanth Kaur V/s Amrit Kaur
O.S.No.1403/2018 C/w
40 O.S.1127/2018
4. AIR 2007 SC 614 Niranjan Umesh Chandra Joshi
V/s.Mrudula Jyothi Rao & Ors.
5. AIR 2007 SC 1975 Benga Beherea and Another V/s
Braja Kishore Nanda
6. (2007) 7 SCC 225 Apoline D'Souza V/s.John Dsouza
7. AIR 2008 SC 2485 Babu Singh & Ors V/s. Ram Sahai
8. (2017) 9 SCC 332 Dr.PrakashSoni V/s Deepak Kumar
and others
9. AIR 2020 SC 2614 Kavitha Kanwar V/s Mrs.Pamela
Mehta & Ors.
10. AIR 2003 Bom 457 P.Ramachandran Nair V/s
Suparna Tapan Das
11. 2010 (Supreme) Del 1126 Desh Raj V/s State
12. ILR 2008 KAR 1667 Gangavva & Ors V/s Ningavva &
Ors.
13. 2008 Supreme (MP) 1254 Anokhilal V/s Sajjan Singh
and others
14.(2005) 9 SCC 359 Gangamma and others V/s
Shivalingaiah
15. (2012) 8 SCC 148 Union of India V/s Ibrahim Uddin
and another
16. AIR 2020 SC 1293 M.Vanaja V/s M.Saraladevi(Dead)
17. 2006 Supreme (Mad) 3245 M.Jayavelu V/s
M.Nallamal
18. RFA 1106/2008 Somashekar Achar V/s
Sri.Dakshinachar
19. AIR 1959 SC 504 Kishori Lal V/s Chaltibai
O.S.No.1403/2018 C/w
41 O.S.1127/2018
20. AIR 1964 SC 136 A.Raghavamma & Anr V/s
A.Chennamma and another
21. (1987) 2 SCC 338 Rahasa Pandiani (Dead) by LRS
and Ors V/s Gokulananda Panda
22. 2007 Supreme (Ori) 277 Jogendra Majhi V/s Jahaja
Baliar Singh and another
23. 2020 AIR (Kar) 168 Sharanayya V/s Shekarayya
24. AIR 1980 SC 419 Banwari Lal V/s Trilok Chand and
others
25. AIR 2002 SC 1428 Jai Singh V/s Shakunthala
26. AIR 1997 SC 2274 Orissa Mining Corporation and
another V/s Ananda Chandra Prusty
27. AIR 1988 SC 1796 Birad Mal Singhvi V/s Anand
Purohit
28. (2010) 9 SCC 209 Madan Mohan Singh and others
V/s Rajini Kanth and another
29. 2018(3) KCCR 2044 P.S.Shivakumar V/s
P.H.Subbarayappa
30. (1995) 1KLJ 663 Khatal Saheb Wd.Khadir Saheb
Inamdar (Dead by LRS and another V/s Ameer Saheb
and others
31. AIR 1968 SC 1413 Gopal Krishnaji Ketkar V/s
Mohammed Haji Latif and others
32. 2021 ) SC 534 Ashok Kumar V/s Raj Gupta & Ors.
33. AIR 1985 SC 658 Enuga Lakshmamma V/s
Vennapusa Chinna Mulla Reddy (dead) by LRS
O.S.No.1403/2018 C/w
42 O.S.1127/2018
34. AIR 1971 SC 1162 N.Ramareddy and others V/s
Shri.V.V.Giri
35. AIR 1973 SC 157 R.M.Malkani V/s State of
Maharashtra
36. 2020(7) SCC 1 Arjun Panditrao Khotkar V/s Kailash
Kushan Rao Gorantyal and Others
37. (2008) 8 SCC 521 Jaladi Suguna (deceased) through
LR's V/s Satya Sai Central Trust and others
38. AIR 1981 Punjab and Haryana 130(Full Bench)
Mohindar Kaur V/s Para Singh and others
39. AIR 1965 MP 72 The Kalyanmal Mills Ltd. vs
Volimohammed And Anr.
40. 2010 ILR (MP) Than Singh V/s Majboot Singh
41. 2017 Supreme Court, Bombay 174 Shobhana
Sahadev Shah and Ors Vs Sangeeta Porbanderwala and
others
42. 1996 Supreme Court (Madras) 79 Rajalakshmi Vs
Minor Ramachandra
This Court has perused the said rulings and the
principles laid down in the said rulings are kept in mind
and applied to this case to the extent of its applicability
and the case on hand is decided
15. The arguments of the learned counsel for the
parties are as follows:-
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43 O.S.1127/2018
(a) The arguments of the learned counsel for the
plaintiffs.
(i). The learned counsel for the plaintiff Sri.Ambaji
Rao Najre advocate argued that the registered Will was
executed by J.P.Narayanaswamy on 17.01.2017 and
registered Codicil on 21.01.2017 and
J.P.Narayanaswamy was passed away on 09.02.2017.
The properties are the self acquired properties of
J.P.Narayanaswamy. The learned counsel has taken this
court to the various calendar of events as mentioned by
him in the notes of arguments.
(ii). The learned counsel further argued that P.w.1
K.R.Sudhir one of the attesting witness to Ex.P.1 is also
the witness to Ex.D.1, relied by the defendant no.14 to
16. The previous Wills are also drafted by the
same scribe Sri.S.H.Naik advocate. The bequests under
the previous Wills are also maintained. The original of
Ex.P.2 Codicil was lost. The Wills and Codicils are
handed over to the plaintiff No.1 as per Ex.P.4. As per
Ex.P.12 the defendant no.14 has disputed the
genuineness of the Will and Codicil. The Ex.P.14 is the
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44 O.S.1127/2018
complaint regarding the loss of Codicil and Ex.P.19 was
the paper publication given regarding the loss of
Codicil.
(iii). The learned counsel argued that no allegation
are made against the Defendant Nos.14 to 16 and their
relationship with the J.P.Narayanaswamy was admitted
in the petition. The learned counsel further argued that
when Will and Codicil are registered it should be
presumed that the same are duly executed and unless
it is disproved.
(iv). The learned counsel also relied Section 368
and 369 of the Indian Succession Act which deals with
the duties and liabilities of the Executor. PW1 did not
know that he was appointed as the Executor. He knew
J.P.Narayanaswamy from year 1990 for 27 years. He
was the director in the company of J.P.Narayanaswamy
and the Founder Trustee of J.P.Foundation. Except
Ex.D.139 and Ex.D.140 no other documents are
produced to show that PW1 is not fit to act as the
executor. The said documents relates to the
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45 O.S.1127/2018
matrimonial case and cannot be the grounds to hold
that P.w.1 K.R.Sudhir cannot act as the Executor.
(iv). The valuation of the property was shown as
per the sale deed. The expenses for the litigation were
met by the executors by obtaining the loan. In the
evidence of PW1 nothing is Elicited to disbelieve the
execution of the Will by J.P.Narayanaswamy.
(v) PW2 Dr.O.S.Siddappa is a witness to the Will
and Codicil and he has issued fitness certificate. In the
cross examination nothing is elicited to disbelieve the
facts stated by PW2 in the chief examination. PW2 was
known to J.P.Narayanaswamy as he was visiting
J.P.Narayanaswamy regularly.
(vi). PW3 Poornesh.M.R. is an employee and
J.P.Narayanaswamy and also the attesting witness to
the Will. He is also attesting witness to Ex.D.3 and
Ex.D.4. PW3 is the personal assistant of
J.P.Narayanaswamy for the last 20 years. He is also the
attesting witness to the previous Wills.
(vii) PW4 S.H.Nayak advocate is the scribe and he
knew J.P.Narayanaswamy from year 1970 and he is the
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scribe to the previous Wills. He has clearly spoken about
the preparation and execution of the Will.
(viii) PW5 Vikram.K.Magar, the Senior Sub
Registrar who has registered the Will by coming over to
the house of J.P.Narayanaswamy. He has spoken about
the due execution of the will.
(ix) PW6 G.Vikram advocate has opened the
sealed cover in the presence of family members and
the representatives of defendant No.14 to 16 was also
present.
(x) DW2 Dr.Dheeraj Kamath has treated the
J.P.Narayanaswamy. He has stated that
J.P.Narayanaswamy was mentally fit. His evidence
proves that J.P.Narayanaswamy was medically fit during
the period of the Will and Codicil are executed.
(xi) The evidence of DW3 Smt.H.P.Shoba shows
that herself and her children are in possession of the
property as per Ex.P.1 Will. No steps were taken to
immediately lodged the complaint against the alleged
creation of the document and no steps are taken to
cancel the documents.
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(xii) The will was registered at home as he was
unable to move due to the pain in the knee. The
witnesses are qualified person. The medical records and
the evidence of doctors and also of the witnesses who
are present proves that J.P.Narayanaswamy was
mentally sound.
(b) The arguments of the learned counsel for
defendant no.2.
(i). The learned counsel for defendant No.2
Sri.S.R.Kamal Charan advocate argued that Section 59
of Indian Succession Act deals with the persons capable
of making the Will. The learned counsel argued that the
testator J.P.Narayanaswamy was a man of girt and
determination. The learned counsel further argued that
there was a board resolution involving the deceased on
07.02.2017. The evidence of the attesting witnesses,
scribe, the doctors and the Sub-register is sufficient to
prove the due execution of the will and also their
evidence proves the mental capacity of the testator.
(ii) The learned counsel submitted that what are
the suspicious circumstances have to be pleaded. The
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defendant Nos.14 to 16 have confronted the Ex.D.10
and D.11 the copies of the letters addressed by
J.P.Narayanaswamy to the sub registrar seeking private
attendance for registration of the Will and Codicil, to
PW4 and thereby they have admitted the said
documents. Therefore this shows that
J.P.Narayanaswamy has prepared the Will and the
Codicil and the was were registered.
(iii) The Defendant No.3 is examined and she has
come to the court and she has accepted the Will. The
learned counsel argued that Ex.D.1, 3 and 4 which are
the Wills in favour of Defendant Nos.15 and 16 were
with Defendant No.14 and no other person knew about
these wills. Therefore the reference to the said Will in
Ex.P.1 would show that it is J.P.Narayanaswamy who has
given the instructions to draft the Will.
(iv). The defendant No.14 and 15 have taken over
the business of J.P.Cordial and Raja Bar and Restaurant
and thereby they have taken the properties as per the
Will and hence Section 187 and Section 188 of the
Indian Succession Act regarding the Doctrine of Election
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is applicable. The learned counsel has also referred
Section 84 to 88 of the Indian Succession Act which
deals with how the Will has to be construed. The
Section 100 of the Indian Succession Act deals with the
legitimacy of the relationship.
(v) The learned counsel argued that why
Smt.Parvathamma has accepted the Will if defendant
No.2 was not her son. The intention of
J.P.Narayanaswamy was that each of his children get
one Hotel each. Therefore for the purpose to correct
error in the Will the Codicil is executed. The Sec.76 to
79 of the Indian Succession Act deals as to how the Will
has to be constructed when there are errors in the Will.
(vi) As per Section 70 of the Indian Succession Act
the Ex.P.1 revokes the earlier will Ex.D.1, D.3 and
Ex.D.4. Section 237 deals with the Probate in respect of
a last Will. The application filed by the defendant No.14
to make Defendant no.14 as one of the Executor before
the Hon'ble Supreme Court.
(vii). As regards the Adoption the learned counsel
argued that Ex.D.19 is the registered Adoption Deed.
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The adoptive parents have not questioned the adoption.
The adoptive mother has confirmed that the defendant
No.2 is the adopted son. It is questioned in the year
2017 by the persons who have no right or locus standi
to question the same. The document is a more than 30
years of the document, and there is a presumption
regarding its due execution.
(viii). The J.P.Narayanaswamy had adopted the
defendant No.2 with the consent of defendant no.1
Therefore it is adoption by J.P.Narayanaswamy. Section
11 of the Hindu Adoption and Maintenance Act applies
only when the adoption is done sorely by the female.
(ix) The defendant No.2 has conducted the
business with J.P.Narayanaswamy. The records show the
names of J.P.Narayanaswamy as his father. The natural
father also accepted that defendant No.2 is adopted by
J.P.Narayanaswamy. Ex.D.60, 61 and 62 were confronted
to defendant No.2, by the defendant no.14 to 16.
(x). As per Ex.D.34 the memo is filed by the
Defendant nos.15 and 16, that the Defendant Nos.2 and
3 are the legal heirs of the Defendant No.1. Ex.D.67 and
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Ex.D.133 shows the Defendant No.2 as the son of
J.P.Narayanaswamy. There is a gift deed as per Ex.D.172
executed by Defendant No.2 in favour of
J.P.Narayanaswamy.
(xi) As regards the knowledge of English language
by J.P.Narayanaswamy the learned counsel submitted
that the document at Ex.D.2, 3, 28, 36 to 43, 49 to 53,
47 and 59 were executed by J.P.Narayanaswamy in
English Language. Ex.D.35 is the dissolution of the firm
on 16.01.2022 is signed by the J.P.Narayanaswamy. If
the property is disposed off or not in existence, only
that portion of the Will has to be left out and it does not
invalidate the entire Will.
(xii) Ex.D.39 the sale agreement dated 20.12.2016
executed by J.P.Narayanaswamy in favour of
M/s.J.P.Resorts and SPA signed by J.P.Narayanaswamy
on 20.12.1996. The same is also notarized before the
Notary Public in Chennai. After diagnosis
J.P.Narayanaswamy has attended the office. Ex.D.48 is
signed by J.P.Narayanaswamy in the month of
November 2016 and December 2016. PW3
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Poornesh.M.R. in his evidence stated that
J.P.Narayanaswamy was coming to the office for three
weeks after 20.12.2016. Therefore it is proved that
J.P.Narayanaswamy was good in mental condition.
(xiii) The Learned counsel submitted that Ex.D.27
is the board meeting held two days prior to the death of
The J.P.Narayanaswamy and he is one of the director
and the defendant No.14 is the other director. Therefore
Ex.D.27 the document signed by the defendant no.14
itself would show that J.P.Narayanaswamy was in a
sound disposing state of mind even after the execution
of the Will and Codicil.
(xiv) The necessary particulars of fraud and
collusion are not pleaded by the Defendant Nos.14 to
16. The effect of the bilirubin count varies from person
to person.
(xv) The documents shows that defendant No.14
has read the will and as acted upon the will.
(xvi) Ex.D.30 shows that deceased was treated by
DW2. There is clinical examination on 23.01.2017,
15.03.2017. The medical records and the progress
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records shows the health condition of The
J.P.Narayanaswamy.
(xvii) Ex.D.31 is the certificate given by DW2 there
is no suggestion that Ex.D.31 is a created document.
The bilirubin count was above 11 after February 2022.
There are medical records after the execution of the Will
and Codicil to show that the J.P.Narayanaswamy had
normal health. In the objections it is admitted that DW2
is the treating doctor to J.P.Narayanaswamy.
(xviii) The postponement of the bequest at the
age of 18 years was for the reason the children should
concentrate on the education and there is nothing
unnatural in Ex.P.1 will.
(c) The arguments of learned counsel for
defendant No.14 to 16.
(i). The learned counsel for the Defendant
Nos.14 to 16 Sri.B.M.Halaswamy argued that the
following are the such circumstances surrounding the
execution of the will.
(a) J.P.Narayanaswamy was on deathbed and he
was suffering from liver cancer.
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(b) J.P.Narayanaswamy had no knowledge of
English language.
(c) The bequest were made in favour of the
beneficiaries and the ultimate beneficiary is the
Defendant No.2. Therefore the Defendant no.2 along
with the executors has created this Will.
(d) The learned counsel argued on the point that
how did the beneficiaries came to know that their
names were included in the Will before the meeting.
Only the beneficiaries under the will were called at the
time of opening of the Will and other relatives of
J.P.Narayanaswamy were not called for the meeting.
(e) The Will was opened on 20.02.2017 and the
caveats were filed on 23.02.2017.
(f) The PW2 is not a family doctor. He has stated in
his evidence that he is a family doctor. In the objections
the Defendant Nos.14 to 16 have stated that
Dr.Ranganath is the family doctor.
(g) Ex.P.29 the medical report was not sent to
Korea. As per Ex.D.23 after sending the message on
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22.01.2017 by the defendant no.14 J.P.Narayanaswamy
was admitted to the hospital.
(h) The case sheets are produced by Defendant
No.2 and are not summoned from the Hospital.
(i) The learned counsel has relied on Sec.59 of the
Indian Succession Act which deals with as to who are
the persons capable of making Wills. As regards the
health condition the learned counsel relied on the
illustration 1 Section 59. The learned counsel argued
that 80% of the liver of J.P.Narayanaswamy was
damaged. There is no dispute that he was suffering
from liver cancer. As could be seen from Ex.D.111 the
bilirubin count was 3.6 on 06.12.2017, 6.4 on
06.01.2017, 11.1 on 16.01.2017 and 11.5 on
20.01.2017. The sodium count was 118 on 16.01.2017.
(j) The qualification of the petitioners is SSLC and
PUC. The qualification of the Defendant no.14 is MBA. In
the previous Will no executors were appointed. They
were collusion between the executors and Defendant
no.2.
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(k) The learned counsel further argued that as per
Ex.P.1 the property is given to the joint names of
Defendant no.3 and Sanjay Raju and the property was
not given exclusively to the Defendant no.3. This shows
that plaintiff No.1 has also colluded in the execution of
the Will. The entire bank accounts are given to the
Defendant no.2. The bank account of the property
bequeathed to the minor children are bequeathed to
the Defendant No.2.
(l) The firm which was dissolved on the previous
day as per Ex.D.35 could not have been included in the
Will if the Will was prepared by J.P.Narayanaswamy.
(m) Puttaswamaiah could not look after the bar.
Therefore he has transferred the licences to Defendant
no.2. Therefore how he can be appointed as the
executor.
(n) Puttaswamaiah could have given the licences
to the other sons and why it was given to Defendant
no.2. This also disproves adoption and proves
conspiracy. The Defendant No.2 is a substantial
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beneficiary and the other properties are given to the
other beneficiaries has also come to him.
(o) Why the Defendant no.14 was not appointed
as an executor for the interest of the minor. Why the
vesting of the properties delayed till 24 years in respect
of Defendant No.15 and 21 years in respect of
defendant No.16. It is done to see that the Defendant
No.14 does not get the management of the property.
But the Hotel business of J.P.Cordial is given to
Defendant No.14 to look-after on behalf of the minor.
(ii) The learned counsel further argued that whether the
husband would prefer his wife looking after
bar/restaurant or would give the property earning rent
which are credited directly to the bank account where
the minors interest is involved in the company the
Executors are appointed.
(iii) There is a residuary clause in the Will whether the
Executors have taken any action against the left out
properties. There is the J.P. Foundation and Ex.D.49 to
53 are the sale deeds in favour of J.P.Foundation but
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there is no mention in the will as to how this foundation
has to run.
(iv) The PW.1 used the letterhead of the institution from
which he has resigned for four years ago to give the
medical certificate. The Ex.D.30 discharge summary
was shows that Narfloxacin injection was given.
Ex.D.31 the certificate was given on 12.04.2019 after
two years to help the Defendant No.2. The Page No.51
in Ex.D.30 shows that there was disturbance of sleep.
Ex.D.31 was taken by defendant no.2 from PW2.
(v) The evidence of DW2 cannot be believed in lieu of
the statement made in the cross examination that he
had not seen J.P.Narayanaswamy during the period of
execution of the Will and Codicil and he cannot speak
about the mental status of J.P.Narayanaswamy during
the relevant period.
(vi) The PW2 has stated in his evidence that there were
two nurses to look-after J.P.Narayanaswamy and PW2
had gone to Narayanaswamy on 14.11.2022 and
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15.01.2022. Why the Will was done in the bedroom if he
was able to move about it would have been done in
Home office. It is not explained as to how
J.P.Narayanaswamy could have expected PW2 on the
date of will and Codicil. He would have opted
Dr.Ranganath to give certificate. PW2 is not a practicing
doctor and he only a Dean. He is also an attesting
witness to the will. Therefore the evidence of PW2
cannot be considered.
(vii). PW3 Poornesh.M.R. has stated that he is aware of
all the affairs of J.P.Narayanaswamy. PW3 was with
J.P.Narayanaswamy through out. Therefore whether any
document can be executed without the knowledge of
PW3 who is his Personal Assistant. PW3 in his evidence
has stated that Dr.Ranganath was visiting the
J.P.Narayanaswamy and J.P.Narayanaswamy was never
told him about the execution of Will. He has stated that
he was visiting J.P.Narayanaswamy everyday till his
death.
(viii). The Evidence shows that PW4 is not involved in
the process of the Will and Codicil. If J.P.Narayanaswamy
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had executed Will and Codicil he would have known
about the preparation of the Will and Codicil. Now he is
working for defendant no.2. Therefore his evidence
shows that he is interested witness and his evidence
shows that he has given explanation and added to the
answers to help the defendant No.2.
(ix). The PW4 scribe is an advocate who works for
defendant no.2 whether J.P.Narayanaswamy knew the
terminologies mentioned in the Will is not proved. The
Will was ready in the first week of January. Whether the
Will was typed written in the City Civil court Complex
can be believed. There is no reference of Ex.D.4 in
Ex.P.1. PW4 is not aware about the terminologies used
in the Will. He does not know the translation of the
same in Kannada.
(x) The learned counsel further argued that the private
attendance fee was paid on 17.01.2022 but the
endorsement in Ex.P.2 shows that it was paid on
18.01.2022 Similarly is the case with the Codicil. Ex.D.1
and Ex.D.2 which are the earlier Will are in simple
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language compared to Ex.P.1 and Ex.P.2. Therefore if
Ex.D.1 and Ex.D.2 is drafted by PW4 he could not have
drafted Ex.P.1 and Ex.P.2. In Ex.D.11 the letter he has
written the spellings of the "Codicil" as "Kodicil".
Therefore his evidence shows that he could not drafted
Ex.P.1 and Ex.P.2.
(xi). PW5 Vikram K.Magar has stated that he has not
read over the documents, but enquired
J.P.Narayanaswamy about as to whether he knows the
contents of the Will. As per the KarnataKa Registration
Rules, the registering authority has the duty to explain
the contents of the documents to the executants.
(xii) PW6 G.Vikram Advocate has opened the sealed
cover containing the Will. His evidence shows that he
does not know J.P.Narayanaswamy. Why PW4 who has
prepared all the documents was not preferred to open
the Will. It is not explain as how the names of the
beneficiaries was known before opening of the Will.
Therefore the evidence of PW7 shows that the
defendant No.2 knew about the beneficiaries.
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(xiii) The learned counsel argued that the plaint
schedule C property in O.S.No.1127/2018 are the
properties bequeathed under the two Wills Ex.D.1,
Ex.D.3 and 4. Therefore the partition has to be effected
only in respect of the properties described in the plaint,
A and B schedule in OS No.1127/2018.
(xiv). The learned counsel for the defendant No.14 to 16
argued that the FSL reports shows that the signatures in
Ex.P.1 are not of J.P.Narayanaswamy. He has given
reasons for his opinions and it shows that there are
variations. He has 17 years of experience and he is a
government official and therefore his evidence cannot
be disbelieved.
(xv). The learned counsel has argued that why DW7
J.P.Devika has not seen PW4 coming to the house if
P.w.4 had come to take instructions to draft the Will. As
per his evidence the defendant No.2 has promised to
give share in J.P.Palace after the Probate is obtained.
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(xvi) As regards the Ex.D.27, the resolution dated
07.02.2017, which is relied by the plaintiffs and other
defendants to show that J.P.Narayanaswamy was in a
sound disposing state of mind, the learned counsel
argued that it was antedated and prepared after the
death of J.P.Narayanaswamy as per the advise of the
Chartered Accountant.
(xvii). The learned counsel further argued that the
defendant No.2 has received the substantial benefits
under the alleged Will as contended in Page Nos.7 to 9
of his written arguments filed on 10.01.2022. The
learned counsel further argued that bequests in favour
of defendant Nos.4 to 13 are for the name sake and the
real beneficiary is defendant no.2. The defendant Nos.4
to 12 are the close relatives of Defendant no.2. The fact
that there is no absolute bequest to Defendant no.1 and
only life interest to defendant No.1 and after her death
the property should go to defendant No.2 also a
suspicious circumstance. Smt.Parvathamma the
defendant No.1 died on 24.02.2020 and Defendant No.2
got transferred the properties mentioned therein.
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(xviii) The properties bequeathed to defendant No.3 and
Sanjay Raju subject to the defendant No.3 marrying
Sanjay Raju who is the son of Hanumantha Raju - the 1 st
plaintiff and if defendant no.3 does not marry him the
said property would go to defendant No.2.
(xix) The other suspicious circumstance is the property
bequeathed to defendant No.3 vests in her on attaining
the age of 21 years or till she gets married if she
married the Sanjay Raju whereas the properties are
bequeathed to the defendant no.16 the other natural
daughter on her attaining the age of 21 years and
defendant no.15 is entitled to hold the properties
bequeathed to him after attaining the age of 24 years.
It is stated that the Executors have to manage the day
to day affairs of the properties of Defendant nos.15 and
16 till they attain the age of 24 years and 21 years
respectively. But the Executors were not appointed to
manage the day to day affairs in respect of the
properties bequeathed to Defendant No.3.
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(xx) The defendant no.14 was authorized to run the
Hotel business of J.P.Cordial and Raja Bar and
Restaurant on behalf of the minor defendant no.14. The
other properties are to be managed by the Executors
where the Executors have no role in managing it, as it is
admitted that the said Hotels are managed by the
Fortune Group and after deducting the service charges
the amount payable would be credited to the MICH
Company Account. PW1 has admitted that they do not
have to manage all the said businesses.
(xxi) . The learned counsel argued that if the Defendant
No.14 can run a Hotel and also bar in her individual
capacity she can represent the interest of the minor in
companies which is receiving rents from IT Park and
income of Hotels from Fortune Group. If the testator had
intention to appoint Executors then he would allowed
them to look after Raja Bar at Devanahalli and JP Cordial
Hotel.
(xxii) The learned counsel argued that there is no recital
in Ex.P.1 that the will read over to the testator and he
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understood the terms of the will. The date of execution
of the will was left blank and later filled. PW4 has
deposed that much prior to the date of registration of
the Will, the date for registration was fixed on
17.01.2017 and therefore the date could have been
typed instead of filing it up later. The old photographs of
J.P.Narayanaswamy were used to affix on the Will.
(xxiii) As per Ex.P.2 Codicil there is substantial increase
of shares to the defendant No.2. The defendant No.2
was bequeathed 4,05,170 shares under Ex.P.1 in Mysore
continental Hotels Private Limited. In Ex.P.2 his shares
were increased to 11,05,170 and 3.5 lakhs share each
were given to defendant Nos.15 and 16 under Ex.P.1
were taken away and given to defendant No.2.
(xxiv) The original Will and Codicil was not produced at
the time of filing the probate petition. The Codicil Ex.P.2
is not executed or signed in the house by
J.P.Narayanaswamy. No process of registration was done
in the house. The DW1 could have produced CCTV
footages or other evidence like video recording of
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execution of the Will and the Codicil by
J.P.Narayanaswamy.
(xxv) The residuary clause of the Will, Ex.P.1 was
deleted and replaced as per Ex.P.2 regarding the
intention of the testator to demerge the Mysore
continental Hotels Private Limited.
(xxvi). Doctors have informed that J.P.Narayanaswamy
only for three months therefore after the Will Ex.P.1
knowing that he is living only for few days it is
impracticable for any person to say that he has the
intention to reconstruct or reorganize the company. It is
the intention of plaintiff no.1 and defendant No.2 and
not the intention of J.P.Narayanaswamy that Hotel
J.P.Palace shall go to Devika and plaintiff's son Sanjay
Raju.
(xxvii) PW1 has deposed that Sanjay Raju is getting
remuneration from Hotel J,P.Palace and he has no role in
managing and the Hotel as Fortune group is managing
the Hotel. DW7 has deposed that defendant No.2 has
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agreed to give as many shares to her after obtaining
the Probate. The learned counsel further argued that
even if Ex.P.1 and Ex.P.2 are genuine the defendant
No.15 and 16 are jointly entitled for majority of share.
(xxviii). The Defendant No.2 had played prominent role
in getting the Will and Codicil. He has stated in his
written statement that only after reading the Will and
Codicil on 20.02.2017 he came to know of the bequests
made. He has stated that in his cross examination that
no one including himself had any clue about the
contents of the Will. PW1 the Executor has admitted
that it is Defendant No.2 who has called him to the
meeting on 20.02.2017 and did not know who had
called the beneficiaries. PW1 and 7 have stated that
they were not aware of the beneficiaries till the opening
of the cover on 20.02.2017. As per the statement of the
DW1 J.P.Sudhakar the defendant no.2 in Para.43 of the
cross examination, the Defendant No.2 admits in his
evidence that the Defendant Nos.4 to 13 who are the
beneficiaries were called to the meeting on 20.02.2017.
Therefore the defendant No.2 knew who are the
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beneficiaries prior to opening of the cover containing
the Will. One of the sister of J.P.Narayanaswamy was
called as she was the beneficiary and Lakshmi
Narasamma the another sister was not called as no
property was given to her. The cover containing the Will
was opened after 3.00 p.m. on 20.02.2017.
Chandrasekhar sent a messages to the defendant
no.14 at 12.45 p.m. to come to Silver Star Hotel.
(xxix) PW1 admits that Vikram advocate was called by
the family of the J.P.Narayanaswamy. PW1 has deposed
that they have distributed the property after getting a
document from the defendant No.2. The Defendant
No.2 has admitted he was visiting J.P.Narayanaswamy
at his home when he was not keeping well. To the
suggestion that on 17.01.2017 evening the plaintiffs
and the defendant nos.2 and 4 were present in the
J.P.Narayanaswamy's house, P.w.3 the attesting witness
has deposed that all the family members were present.
(xxx). Neither the attesting witness nor the scribe read
about the Codicil and the Will were called for the
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meeting. The cower containing Ex.P.1 and Ex.P.2 could
have been opened by Mr.S.H.Naik Advocate as he was
involved in all earlier documents and was known to the
family. As he was not involved in drafting Ex.P.1 and
Ex.P.2 as he was not called.
16. The answers of this Court to the above issues
are as under:-
In OS No.1403/2018
Issue no.1 : in the Affirmative.
Issue no.2 : in the Affirmative.
Issue no.3 : in the Negative.
Issue no.4 : in the Affirmative.
Issue no.5 : in the Affirmative.
In OS No.1127/2018
Issue no.1 : The plaintiffs have proved the due
execution of the will by Narayanaswamy but they have
failed to prove that they are in possession and
enjoyment of the properties on the basis of the said will.
Issue no.2 : in the Negative.
Issue no.3 : in the Negative.
Issue no.4 : in the Affirmative.
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Issue no.5 : in the Negative.
Issue no.6 : in the Affirmative.
Issue no.7 : in the Affirmative.
Issue no.8 : in the Affirmative.
Issue no.9 : in the Affirmative.
Issue no.10 : in the Negative.
Issue no.11 : in the Negative.
Issue no.12 : in the Negative.
Issue no.13 : in the Negative.
Issue no.6 in OS No.1403/2018 and issue no.14 in OS
No.1127/2018 as per final order.
for the following reasons.
REASONS
17. ISSUE No.1 to 3 in O.S.No.1403/2018
AND ISSUE No.8 IN O.S.No.1127/2018:
Our Hon'ble High Court in the case of J.T. Surappa
and another Vs. Sri. Satchidhananadendra Saraswati
Swamiji Public Charitable trust and others, reported in
ILR 2008 KAR 2115 = 2008(3) K.C.C.R. 1484, has
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discussed the various aspects that the Court has to
bear in mind in a case where the execution and proof
of the Will. It is observed by the Honourable High Court
as follows:-
"Therefore the Court has to tread a careful path in
the enquiry to be conducted with regard to Will. The
said path consists of five steps "PANCHA PADI". The
path of enquiry and steps to be traversed are as under:-
(1) Whether the Will bears the signature or
mark of the testator and is duly attested by
two witnesses and whether any attesting
witness is examined to prove the Will?
(2) Whether the natural heirs have been
disinherited? If so, what is the reason?
(3) Whether the testator was in a sound state
of mind at the time of executing the Will?
(4) Whether any suspicious circumstances exist
surrounding the execution of the Will?
(5) Whether the Will has been executed in
accordance with Section 63 of the Indian
Succession Act, 1925, read with Section 68 of
the Evidence Act ?
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18. In this case the Will and Codicil are marked as
Ex.P-1 and P-2. The perusal of the same it is seen that
it contains the signature stated to be of the testator in
all the pages. It is stated to have been attested by two
witnesses PW.2 Dr.O.S.Siddappa and PW-3 Poornesh
M.R. and both of them are examined to prove the due
execution of the Will. Therefore the first requirement is
fulfilled.
19. The second point to be considered is whether
the natural heirs are disinherited. In this case the
testator owned may valuable properties and he has
distributed it amongst all his legal heirs through the
defendants No.14 to 16 have contended that the large
chunk of properties are given to the defendant No.2 and
he is the ultimate beneficiary of the Will. This question
has to be decided at the time of considering the
suspicious circumstances surrounding the Will. But the
reading of the Will shows that the natural heirs are not
disinherited. Therefore considering second part of the
point no.2 as to be reason for disinheriting the natural
heirs does not arise.
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20. The third point relates to the sound stat of
mind of the testator which is a main controversy to be
decided in this case now the same has to be discussed.
21. It is an admitted fact that Dr.Dheeraj Kamath
had informed J.P.Narayanaswamy that he would live
only for three months and it was informed to him on
20.12.2016. Therefore J.P.Narayanaswamy was certain
about his death. He had earlier executed three Wills. He
has acquired vast properties during his life time. He
has built his empire from scratch. Therefore any person
in his place would not wish that his empire crumbles
after his death and would make necessary
arrangements regarding his estate as to how it has to
be managed after his death. Therefore his intention to
execute the Will cannot be doubted. He had sufficient
time to deliberate and to make necessary
arrangements.
22. Therefore now it has to be seen as to whether
it is proved that J.P.Narayanaswamy was in a sound
disposing state of mind at the time of execution of
Ex.P.1 and P.2.
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23. The learned counsel for the defendant No.14
to 16 has relied on the ruling reported in (2017) 9 SCC
332 in the case of Prakash Soni Vs Deepak Kumar and
another where in the said case also the testator had the
liver cancer. But the said ruling cannot be applied to
this case for the following reasons. In this case the
doctor is examined to prove that the health condition of
J.P.Narayanaswamy. In the said case the Will was
executed between 7.00 to 8.00 a.m., on 18.11.2001 and
after few hours, the testator passed away on the same
day. In the said case the health condition one of the
testator was deteriorated and the attesting witness has
deposed before the court the hands of the testator were
shivering while signing the document and signatures on
the documents executed just before two days were
completely different. The Hon'ble Supreme Court has
held that from the records it is found that the condition
of the testator's mind and body were very feeble and
debilitated. The signature of the testator was allegedly
taken on death bed while she was administered drip.
The disposition made in the Will may not be the result
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of the testator free will and mind. The Hon'ble Court
held that in those cases the court would naturally
expect that all legitimate suspicious circumstances
should completely removed before the document is
accepted as the last Will of the testator. But in this case
records show that J.P.Narayanaswamy knew about his
death and he had the intention to execute the Will and
the evidence proves the sound mind of the testator and
due execution of the Will.
24. The other ruling reported in AIR 2003 Bom 457
cannot be applied to this case for the following reasons.
In the said case It is shown that the relationship of the
testator with the son was not cordial and there was no
endorsement of the doctor certifying that the deceased
was in a fit mental condition to understand all things.
All the properties which were self acquired were
bequeathed to the son of deceased and the only
daughter was excluded and during the said period the
testator was seriously ill with cirrhosis of liver and he
used to vomit blood and also pass blood through his
urine and stools. In the said case the testator was a
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qualified man however the Will contained only the
thumb impression of the left hand. The deceased was
not only suffering from cirrhosis of liver but he also
suffered paralysis stroke of his left side and in the said
case the testator passed away 9 days after making the
said will. Therefore this ruling cannot be applied.
25. The contention of the Defendant Nos.14 to 16
that the bequests made were unnatural cannot be
accepted. J.P.Narayanaswamy after marrying defendant
no.14 and begetting defendant No.15 and 16 had not
severed his ties with first wife or the family members of
his brothers and sisters and he was living with the
defendant no.1 and 3 and had actively involved the
defendant no.2 in his business. The reading of the Will
Ex.P.1 shows that he has not disowned anyone. He has
accepted the relationship of defendant Nos.14 to 16
and also of the defendant No.1 to 3. The defendant
no.14 has admitted in her evidence that
J.P.Narayanaswamy had concern towards all the family
members of his brothers and sisters and has also given
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the properties to them during his lifetime. Therefore the
intention of J.P.Narayanaswamy was to see that all are
provided for their life.
26. The other ground raised by the learned
counsel for the Defendant Nos.14 to 16 is that bilirubin
count was above 11 and if there is liver cancer the
ammonia level in the blood increases and it would
directly affect the brain to leading to confusion.
Ex.D.111 the lab investigation reports shows that the
bilirubin count of J.P.Narayanaswamy was gradually
increasing. It was 3.6 on 06.12.2016, 6.4 on
06.01.2017, 11.1 on 16.01.2017, and 11.5 on
20.01.2017 and 13.1 on 23.1.2017. But the evidence on
record and the evidence of defendant No.14 herself
shows that the J.P.Narayanaswamy has come to her
house and spoken to her and her children on
12.01.2017. Considering Ex.P-1 Will, the process of
preparing the Will must have started atleast 15 days
prior to its execution and it could not have been done
on the single day i.e. on 17.01.2017.
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27. The DW.2 Dheeraj Karanth doctor who has
treated the J.P.Narayanaswamy. He has stated that
when the cancer was detected it was in the advance
stage and he had informed J.P.Narayanaswamy that he
would live for only three months. He has stated that
when the J.P.Narayanaswamy had come to him for
treatment as an outpatient, his mental status was
normal. He has stated that Ex.D.30 is the discharge
summary of the J.P.Narayanaswamy and in the progress
sheet in Ex.D.3 in Page no.45 to 47, 50, 55, 57, 62, 67,
71, 76, 79 and 82 are in his handwriting. He has stated
that on 23.01.2017 J.P.Narayanaswamy had come to the
Hospital with the complaint of swelling, breathlessness
and tiredness but he was in a position to talk he has
stated that when J.P.Narayanaswamy was in the hospital
he was mentally alert that he was orientated to time,
place and person. He has stated that he has given the
Ex.D.31 medical certificate on the basis of Ex.D.30 the
discharge summary and the case sheet.
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28. In the cross examination by the plaintiff he has
stated that if the bilirubin count is on higher level it
means that the person is suffering from jaundis. He has
stated that if the bilirubin count is 14 to 15 also if the
liver function properly there will be no adverse effects
on the mind of the person. He has stated that cancer is
incurable as the growth in the liver is more than 10 cm
and it had spread to the blood vessel. He has stated
that it is not necessary that all the persons whose
ammonia count is more in the blood would be in
confusion. He has stated that there was no loss of
memory to J.P.Narayanaswamy. He has stated that he
saw J.P.Narayanaswamy on 22.12.2016 and later on
23.01.2017 and in between this period he has not
examined the J.P.Narayanaswamy. He has stated that
during this period he does not know about the health
and mental condition of J.P.Narayanaswamy. He has
admitted that J.P.Narayanaswamy was uncomfortable as
there was swelling due to the collection of water in the
abdomen and the legs. He has admitted that when
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there is a collection of water in the abdomen there is
difficulty in breathing and there would be pain.
29. The Will relied by defendant Nos.14 to 16
which are Ex.D.1, Ex.D.3 and Ex.D.4 are attested by
PW3 Poornesh.M.R and the scribe of the will is also PW4
S.H,.Naik the advocate. It is established fact that the
original will at Ex.D.1, 3 and 4 were with the defendant
No.14 and only J.P.Narayanaswamy and defendant
No.14 knew about the said Will. If J.P.Narayanaswamy
was not in a sound disposable state of mind and had
lost his memory, he would not have referred to the said
Wills in the Ex.P.1. Further there is a board Resolution
Ex.D.47 passed on 07.02.2017 just 2 days prior to the
death of J.P.Narayanaswamy and nearly 17 days after
the execution of the Will and Codicil. This shows that
J.P.Narayanaswamy was in a sound disposing state of
mind. This document is signed by the defendant no.14
herslef. She has contended that it was done after the
death of J.P.Narayanaswamy as per the advise of the
chartered accountant. The defendant no.14 has not
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proved the same by examining the said chartered
accountant who has so advised her. The mere
statement of defendant no.14 cannot be sufficient to
believe this contention. This document is fatal to the
defence of the defendant no.14 and based on this
document itself it has to be held that
J.P.Narayanaswamy was in a sound disposing state of
mind on the date of execution of the Will and Codicil.
30. The Ex.D.30 the discharge summary shows
that when J.P.Narayanaswamy was admitted to the
hospital, he was oriented to place time and person.
There is nothing in Ex.D.30 to show that
J.P.Narayanaswamy was not in a sound disposing state
of mind. The Ex.D.30 is proved by the evidence of
D.w.2.
31. Now it has to be seen as to whether the said
Will is duly attested whether J.P.N has signed the Will
by knowing this contents. To consider this aspect the
evidence of PW2 Dr.O.S.Siddappa, Poornesh.M.R. and
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PW4 S.H.Nayaka, the Sub-register PW5 Vikram.K.Magar
is relevant.
32. PW2 Dr.O.S.Siddappa is one of the witness to
the Will and Codicil. He has stated that he is the family
doctor of J.P.Narayanaswamy from the last 35 years. But
this is not correct and it is explained by him in the cross
examination in page no.9 that he is the family friend
and not the family doctor. He has admitted that
Dr.Ranganath is the family doctor of
J.P.Narayanaswamy. He has stated that he used to visit
the house of J.P.Narayanaswamy and he knows
J.P.Narayanaswamy from the last 35 years. He has
stated on 17.1.2017 when he visited the house of
J.P.Narayanaswamy as usual and J.P.Narayanaswamy
informed him that he has made a Will and that he wants
to be witness to the said Will at the time of execution of
the Will and registration of the same.
33. He has further stated that he gave the medical
fitness certificate for the purpose of private attendance
on the same day. The Sub-registrar came to the house
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around 5.45 p.m. and the Sub-registrar asked the
J.P.Narayanaswamy to sign the Will in his presence and
J.P.Narayanaswamy has signed the Will in the presence
of the Sub-registrar and in the presence of himself other
attesting witness Poornesh.M.R. He has stated that
J.P.Narayanaswamy pointed out to him as one of the
witness and asked him to put his signature to the Will
as a witness. Therefore the learned counsel for the
defendant no.14 to 16 argued that this shows that
J.P.Narayanaswamy was not in a position to speak. But
even if this is admitted to be true J.P.Narayanaswamy
was in a position to recognize the persons and was able
to show as to who are the attesting witnesses.
Therefore this will not cast a doubt the mental condition
of the J.P.Narayanaswamy. He has similarly spoken
about the execution of the Codicil. He has stated that
as the family doctor he knew about his medical
condition for past 35 years and the latest developments
in the last stages of his life. At that point of time
Sri.J.P.Narayanaswamy was very lucid he knew and
understood everything while he was executing the Will
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and the Codicil and had a good capacity to dispose of
his property.
34. PW2 has stated that the registration procedure
was happened in first floor of the building where as the
PW5 and PW3 and the other witnesses have stated that
the same as happened in the second floor. This is a
minor contradiction because the evidence on record
establishes that J.P.Narayanaswamy has signed the
Will.
35. The cross examination of P.w.2 by the
defendant No.14 to 16 is directed towards the fact
about his qualification and cases filed against him. But
it is not disputed that he knew J.P.Narayanaswamy for
the last 35 years and he is the close friend of
J.P.Narayanaswamy. It is elicited in the cross
examination of Defendant Nos.14 to 16 that he is the
friend of J.P.Narayanaswamy and he used to meet him
once in 15 days. He has admitted that as he was not
the family doctor, J.P.Narayanaswamy was not asking
medical advise but he was discussing with him other
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matters. He has stated that after J.P.Narayanaswamy
was not keeping well he was visiting his house every
day or once in two days. He has admitted that as
bilirubin count was more, it was informed that radiation
therapy cannot be done to J.P.Narayanaswamy in the
BGS Hospital. He has stated that Ex.D.8 is given by him.
The average bilirubin count is below 0.28. He has
denied that when the bilirubin count is more the person
canno distinguished between the day and night. He has
stated that there was pedal edema due to liver cancer.
He has stated that when bilirubin count is more there
would be jaundis. He has denied that when there is
pedal edema the brain will not function properly. When
there is jaundis the ammonia content in the body will be
increased. He has admitted that when the bilirubin
count is 8-9 and ammonia in brain and the body would
be more. He has denied that when there is high
ammonia content there is mental confusion. The
progressive HE is the symptoms of end stage liver is
the cancer. It is also stated that at the time of issuing
Ex.D.8 he was not working as a Dean in the Oxford
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Medical College, but he has used the letterhead but he
has mentioned as the Ex-Director. Ex.D.8 and 9 the
copies of the certificate given by PW2 for medical
certificate for private attendance are marked through
PW2. He has denied that on 15.01.2017 itself
J.P.Narayanaswamy could not speak. He has stated that
he did not know about the making of the will on
17.01.2017 similarly the preparation of the Codicil also
came to his knowledge only on 21.01.2017. He has
stated that he has not noticed that the defendant No.2,
4 and the plaintiff were present in the house of
J.P.Narayanaswamy on 17.01.2017. He has stated that
in the first floor when he went to J.P.Narayanaswamy's
house there was S.H.Naik advocate, the Sub-registrar
and Poornesh. The two nurses engaged to look after
J.P.Narayanaswamy were not present. He has stated
that on 14.01.2017 and 15.01.2017 when he went to his
house J.P.Narayanaswamy had eaten the preparation
made for the Sankranthi festival. He has denied that the
same was taken on the medical advice. He has stated
that there was IV injunction given to J.P.Narayanaswamy
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he has stated that Ex.P.1 Will was registered in the bed
room of J.P.Narayanaswamy. He has stated that
J.P.Narayanaswamy was seated in the back rest in the
ICU bed at the time of executing the Will. He has stated
that J.P.Narayanaswamy has introduced the Sub-
registrar by mouth and also making the signal in the
hand. He has denied that J.P.Narayanaswamy was not
in a position to speak and he was mentally and
physically not sound. He has admitted that Ex.P.1 was
not read over by the Sub-registrar to
J.P.Narayanaswamy in his presence. But he has stated
that when the Sub-registrar enquired about Ex.P.1
J.P.Narayanaswamy informed Sub-registrar that S.H.Naik
has read over the Will and he himself has given the
instructions to S.H.Naik to prepare the Will. He has
stated that Poornesh must have signed first and later he
has signed. He has stated that when the bilirubin count
is 20 there is losing consciousness and shivering of
hands and disorientation. He has denied that
J.P.Narayanaswamy was not in a position to execute the
Will and the Codicil. He has denied that as he was
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working at Sridevi Medical College he could not come to
the house of J.P.Narayanaswamy on 17.01.2017 and
20.01.2017 if he was working at Sridevi Medical College
on 16.01.2017. He has not informed the plaintiff and
the defendants about the execution of Ex.D.1.
36. PW3 Poornesh.M.R. is the personal assistant of
J.P.Narayanaswamy. He is the attesting witness to the
Wills relied by the defendant No.14 to 16 also. In his
chief examination he has stated that
Sri.J.P.Narayanaswamy had returned to office work
some time in the third or fourth week of December
2016. He has stated that on 17.01.2017 in the morning
J.P.Narayanaswamy asked him to come to his house at
about 3.00 p.m. He had informed him that will was
ready and he wants to be a witness to the said Will at
the time of execution and registration. The Sub-
registrar came to J.P.Narayanaswamy's house around
5.45 p.m. on 17.01.2017 and the Sub-registrar took the
Will and went through the document and asked
J.P.Narayanaswamy if he has read it and knows the
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contents. J.P.Narayanaswamy informed him that himself
has given instructions to his Lawyer Sri.S.H.Naik to draft
the Will in that manner and that he knows everything
written in the Will and Sri.S.H.Naik has already read and
explained to him and the same is in accordance with his
wishe. He has stated that the Sub-registrar asked
J.P.Narayanaswamy to sign the will in his presence and
J.P.Narayanaswamy had signed the will in the presence
of the Sub-registrar and also PW2 Dr.O.S.Siddappa is
the family doctor and good friend of
J.P.Narayanaswamy. They have signed as attesting
witness and Sri.J.P.Narayanaswamy signed in their
presence.
37. In the cross examination in Page No.123 by
the learned counsel for defendant No.14 to 16 he has
stated that J.P.Narayanaswamy had not informed him
prior to 17.01.2017 about the execution of the Will and
he was going to the house of J.P.Narayanaswamy
everyday. He has going to the house when
J.P.Narayanaswamy was not keeping well and he has
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stated that he was not present while
J.P.Narayanaswamy gave instructions to PW4 to draft
the Will and that J.P.Narayanaswamy had not asked him
to give the papers to PW4 S.H.Naik.
38. The fact stated by PW3 J.P.Narayanaswamy
had not informed him to gave the papers to S.H.Nayaka
is contrary to the evidence of facts elicited in the cross
examination of PW4 S.H.Nayaka who had stated that it
was J.P.Narayanaswamy informed Poonesh.M.R.,
Chandrasekhar, Patil to give the documents.
39. To the question that on 17.1.2017 the
plaintiffs and defendant No.2 and 4 were present, the
witness answers that all the family members were
present. The learned counsel argued that defendant
No.2 has denied that he was present on the said date.
But it has to be seen that the contention taken by the
Defendant Nos.14 to 16 that the Will was not executed
by J.P.Narayanaswamy and it was not done out of his
own free will the plaintiff and defendant No.2 have
prevailed upon J.P.Narayanaswamy to execute the Will is
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proved. The mere statement made without there being
any evidence as to on what basis they are saying the
same cannot be acceptable. The presence of defendant
No.2 and the other family members will not be cast the
doubt on the execution of the Will, because the Will was
executed and registered in the house itself.
40. He has admitted that the Sub-register had not
read over the Will to J.P.Narayanaswamy. He has stated
that the photographs affixed to Ex.P.1 were not click on
the said date but they are the old photographs. He has
also stated that he was not present while giving
instructions to prepare Ex.P.2 Codicil. He has denied
that he was not present on the date of registration of
the Codicil. He has stated that he saw the Codicil first
time at the time of his signature. He has admitted that
the J.P.Foundation trust found by J.P.Narayanaswamy is
still in existence. He has stated that he is the PRO of
J.P.Group companies and he is working under defendant
No2.
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41. But just because he is now working under
defendant No.2 his evidence cannot be disbelieved. He
was the personal assistant of J.P.Narayanaswamy and
he has also signed the Will relied by defendant Nos.14
to 16. Therefore the attestation of the Will by PW3
cannot be doubted. He has admitted the execution of
Ex.D.3 and 4 Will. He has stated that in two days prior
to 09.02.2013 J.P.Narayanaswamy was speaking
fluently.
42. P.w.4, S.H.Naik is the scribe of the Will. He has
already stated he is also the scribe of the earlier Will of
J.P.Narayanaswamy relied by D14 to 16. It is also stated
that he has drafted the other documents also for
J.P.Narayanaswamy. He has stated that Ex.P.1 is the Will
of J.P.Narayanaswamy and he has drafted the said Will
and he has signed and put a seal on the said Will. He
has identified the signature of the attesting witnesses
and as stated that O.S.Siddappa and Poornesh.M.R. are
the a attesting witnesses and the said Will duly
registered in the home of J.P.Narayanaswamy. He has
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stated that J.P.Narayanaswamy called him in the last
week of December 2016 and informed him about the
preparation of the Will. He has stated that he has made
notes and as per the instructions given by
J.P.Narayanaswamy and prepared the draft and
informed the same to J.P.Narayanaswamy. After
J.P.Narayanaswamy informed him to get the same
typed he prepared and got the same typed in the City
Court Complex and after showing the same to
J.P.Narayanaswamy it was registered on 17.01.2017.
43. The learned counsel for the defendant Nos.14
to 16 has stated that P.w.4 has not stated that the same
was read over to J.P.Narayanaswamy. When PW4 has
stated that he has showed the said Will and
J.P.Narayanaswamy has admitted that the same is
correct it means that it has been read over by PW4.
P.w.4 is not further cross examined on this point by the
Defendant No.14 to 16. The evidence on record shows
that J.P.Narayanaswamy himself has informed the sub
registrar that P.w.4 has read over the Will to him.
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44. In his cross examination he has stated that
J.P.Narayanaswamy had called him over phone and
asked him to come to prepare the Will. At that time
There were about 10-16 workers in his house and four
drivers were in the house. He has stated that he went to
house around 4.30 p.m. he asked J.P.Narayanaswamy to
give the details and J.P.Narayanaswamy directed his
assistants and Chandrashekar, Poonresh.M.Patil and
others to give the documents. The documents were
given to him in one or two days. He had stated that
J.P.Narayanaswamy given the information in Kannada.
He has admitted that J.P.Narayanaswamy did not know
to read English. But he could understand what was told
spoken to him in English. He has stated that Ex.P.1 Will
and draft of the Will is prepared for a period of one
week and the same was completed in the first week of
January. In the first week of January 2017, he gave the
draft to J.P.Narayanaswamy. He has stated that after
the draft was shown J.P.Narayanaswamy he has stated
that the same is correct and asked him to prepare the
fair copy. He has specifically stated in the cross
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examination that prior to the registration, he as
explained the contents of the Ex.P.1 to
J.P.Narayanaswamy in Kannada. The draft of Ex.P.1 was
handed over to J.P.Narayanaswamy. Therefore the
evidence of PW4 would shows that the contents of
Ex.P.1 will were explained by PW4 to
J.P.Narayanaswamy. This part of evidence of PW4
cannot be disbelieved. To the question that it was
known to him that the Will was to be registered on
17.01.2017 than there was no necessity to leave the
date blank in Ex.P.1 the witness stated that it is left it
blank in Ex.P.1 to fill it as on the date of execution.
Therefore it cannot be doubted and the conduct of PW4
is natural.
45. It is stated in Ex.P.1 there is no reference to
Ex.D.4 Will. He has also spoken about the making
arrangement of private attendance. He has also
admitted that he is conducting the cases on behalf of
defendant no.2 but this cannot be the ground to
disbelieve his evidence. because he was working for the
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same company even before and continue to do so.
Further as already stated that he is the scribe to the
most of the documents relied by defendant no.14 to 16
and the evidence of PW4 prove that J.P.Narayanaswamy
has the contents of the Will were explained to
J.P.Narayanaswamy in Kannada and J.P.Narayanaswamy
has accepted the same.
46. The evidence of PW.4 shows that a conversion
was played in the open court in the cross-examination
of P.W.4 on 9.2.2021 stating that the same is the
conversion between him and the defendant No.14. But
P.W.4 has denied the same and has stated that it was
created. D.W.3 in her chief-examination has stated that
P.W.4 has admitted in the phone conversion with her
that the Will and Codicil are not drafted by him. The
transcription of the call record was marked as Ex.D144.
The same is marked subject to objections. The same is
not duly proved and therefore cannot be of any
evidenciary value in this case.
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47. P.W.5 Vikram.K.Magar is the Sr. Sub-register
who has registered the Ex.P.1 Will and Ex.P.2 Codicil by
going to the house of J.P.Narayanaswamy He has
spoken about the due execution and registration of the
said document. He has identified the signature of
J.P.Narayanaswamy in both the documents. In the cross
examination he has stated that the application for home
attendance was given in this case came to his notice in
the morning of the same day and in the evening he
went to the house. He has stated that he went to the
house of J.P.Narayanaswamy, along with the advocate
who had filed the application for home attendance. He
has stated that after going to the house of
J.P.Narayanaswamy he has confirmed that the said
person J.P.Narayanaswamy by speaking to him and also
got him identified through witnesses. He has stated that
at that time J.P.Narayanaswamy himself his assistant
and advocate were present. J.P.Narayanaswamy was
sitting on the medical bed and there was a tube on the
hand he has stated that he has not noticed that
J.P.Narayanaswamy was in a position to move about.
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He has stated that he has not read over the contents of
the Will but he has enquired J.P.Narayanaswamy about
the Will and J.P.Narayanaswamy has informed him that
his advocate has read over the said will. So the
evidence of PW5 is also corroborates the evidence of
PW4 that P.w.4 has read over the Will to
J.P.Narayanaswamy. He has stated that he did not
enquire as to whether J.P.Narayanaswamy knew English
language. He has stated that the if the person does not
know the particular language in which the documents is
written and the said document is explained to him. He
has stated that if the person looks like an illiterate they
explain the contents of the documents would be
explained to him. But J.P.Narayanaswamy looked like a
literate and therefore he did not informed him explained
to him the contents. He has denied that
J.P.Narayanaswamy was not in the state as seen in the
photographs in Ex.P.1.
48. The cross examination of PW5 would show
that the defendant Nos.14 to 16 admits that the Sub-
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register had gone to the house of J.P.Narayanaswamy.
P.w.5 has stated that as it is private attendance the old
photographs were affixed. To the question that there
was no impediment to take the photograph of
J.P.Narayanaswamy on the said date, he has answered
that there is no requirement in the procedure to take
the photograph. He has stated that as it is the Private
attendance he has affixed the old photograph. He has
specifically stated in the cross examination that
J.P.Narayanaswamy signed Ex.P.1 in his presence and he
took 15-20 minutes to sign the document. Similar
evidence is given in respect of Codicil also. He has
stated that at the time of execution of Ex.P.2 he
enquired J.P.Narayanaswamy and he has given proper
answers. J.P.Narayanaswamy was seated in the medical
bed at the time of Ex.P.2. He does not remember as to
who has taken Ex.P.2 after the registration he has
stated that it would be given to the person who is
authorize to receive the same.
49. The defendant No.14 got herself examined as
D.W.3. In her chief examination she has stated about
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execution of the Will marked as Ex.D1 to D-3. In the
cross-examination DW-3 has stated that she knows the
plaintiff No.2 Sudheer since the date of her marriage.
She has admitted that Sudhir the second plaintiff has
signed as the witnees to the Will executed by
J.P.Narayanasswamy in favour of her children. She has
admitted that she was well acquinted with the plaintiff
No.2. She has stated that after the J.P.Narayanaswamy
came to know about cancer he was found out as to
where he can be treated in India and also in other parts
of the World. She has stated that they have gone for
shopping for the purpose of visiting Korea for
treatment. Therefore this shows that the
J.P.Narayanaswamy was keeping able to move about
and keeping good health even after he was informed
that he had the Cancer. It is stated that plaintiff No.2
and the defendant No.2 informed J.P.Narayanaswamy
that there is risk for taking treatment and this was
informed to her by J.P.Narayanaswamy. To the questino
that the decision regarding treatment to be given to
J.P.Narayanaswamy was decided by the defendant No.1
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and her family, she has answered that the same is
correct but has stated that it was decided by defendant
No.2. She has stated that as she could not go directly
to the house of J.P.Narayanaswamy she was suggesting
about treatment through the plaintiff No.2. She has
stated that after 23.01.2017 she has seen
Hanumantharaju plaintiff No.1 in the hospital. She has
admitted that the family of Hanumantharaju had came
to the hospital and a small function was arranged
between the defendant No.3 and the son of
Hanumanthraju in the hospital and later they went to
the house for engagement ceremony. Therefore this
part of evidence shows that J.P.Narayanaswamy was of
sound health and mind on 23-01-2017.
50. D.w.3 has denied that decision to marry the
defendant No.3 to the son of the plaintiff No.1 was of
J.P.Narayanaswamy and therefore the engagement
ceremony was done while J.P.Narayanaswamy in the
hospital. She has stated that plaintiff No.1 has arranged
the engagement ceremony. She has stated that it was
not the last wish of J.P.Narayanaswamy to marry the
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defendant No.3 and the son of Hanumantharaju. But to
the Question as to it was whose wish to do so, she has
stated that she does not know about the same, but
they know the same. Therefore this shows that D.W.3
does not know about the same or she is not speaking
truth about the same. Hence her evidence that it was
not last wish of J.P.Narayanaswamy to marry defendant
no.3 with the son of plaintiff no.1 cannot be given much
weight-age.
51. D.w.3 has stated that during the life time of
J.P.Narayanaswamy, the plaintiffs, Hanumantharaju,
Thimmegowda, Dr.Siddappa, Poornesh, Puttaswamaiah
and Sudheer came to her house and they came to
inform that J.P.Narayanaswamy has asked her to give
attention towards her children as she was worried
about health of J.P.Narayanaswamy. She has stated
that she has discussed with Dr.Siddappa about
treatment.
52. D.w.3 has admitted that she has sent
Rangaswamy to witness the opening of the sealed
cover containing the Will and Codicil. She has stated
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that after 3 to 4 days of receiving copies of Ex.P-1 and
P-2 she has gone through the same and she was afraid
as to whether her husband had understood the english
language used in the said Will. She has stated that as
car in which herself and her son were traveling met
with an accident, she could not go through the said
documents immediately . She has admitted that Ex.D3
Will is also in English and same is executed by her
husband. But she has stated that it was done by her
husband when he was in sound health.
53. D.w.3 has stated that immediately on coming
to know that Ex.P-1 and P-2 are created she has not
issued any legal notice to the plaintiffs. But before that
the plaintiffs themselves had written letter to hand over
the possession of the movable and immovable
properties to them. She has also admitted that she has
not given any police complaint about alleged creation
of Ex.P-1 and P-2. To the question that plaintiffs have
not gain anything under the Will and Codicil, she has
answered that plaintiff No.1 has indirectly gained
through the said Will. She has admitted in the
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objections to the P & S.C. petition, she has stated
plaintiffs alone created the said Will. But they have
create the same by conspiring with other defendants.
She has stated that as the elders advised to settle the
matter amicably she has not lodged complaint
immediately. She has denied that J.P.Narayanaswamy
was sound health till he admit to the hospital on
23.01.2017. She has denied that while
J.P.Narayanaswamy was in the hospital he was calling
upon staff and was taking important decisions. She was
stated that Injections are administered to
J.P.Narayanaswamy and he was on IV Injection on 15 th
16th January 2017. She has denied that the health
condition of J.P.Narayanaswamy was normal. She has
admitted that apart from the properties described in
Annexure-14 and 15 of the Will, she is not in possession
of the other properties. She has denied that she has
retained possession of the properties which are
bequeathed to her children under Ex.P-1 and P-2.
54. D.w.3 has stated that the plaintiffs were in the
house of J.P.Narayanaswamy on 17-01-2017 was
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informed to her by her son the defendant No.15. This
is an hearsay evidence which cannot be admitted and
cannot be relied for the decision of this case.
55. D.w.3 has stated that she did not know that
J.P.Narayanaswamy was married to the defendant No.2
at the time of her marriage. But this is contrary to her
pleadings where she has stated that
J.P.Narayanaswamy married her as he had no issues
from the defendant no.1. According to her, her
marriage is performed with J.P.Narayanaswamy on 15-
08-1999. To the question as to why there was delay in
registration of the marriage, she has answered that as
per the instructions of J.P.Narayanaswamy they have
gone to register the marriage.
56. D.w.3 has admitted that after death of
defendant No.1, defendant No.2 and 3 have continued
to suit on behalf of the defendant No.1 as her legal
heirs. She has stated J.P.Narayanaswamy came to know
that he is suffering from cancer on 20.12.2016.
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57. She has admitted that J.P.Narayanaswamy
and herself were the only Directors to SLN BDPL
Company. According to her no Board Meeting has
happened on 07.02.2017 in SLN BDPL Company. These
questions were put in respect of Ex.D-27 the Board
Resolution dated: 07.02.2017 which is one of the main
document relied by he parties who support the due
execution of the Will by J.P.Narayanaswamy.
58. She has stated that herself and her children
visited J.P.Narayanaswamy except on 15th, 16th and 17th
January 2017 and the defendant No.15 was visiting
J.P.Narayanaswamy every day. She has stated that the
defendant No.15 has informed her that on 17-1-2017
the plaintiffs and defendants No.2 and 4 were in the
house of J.P.Narayanaswamy. She has admitted that
when J.P.Narayanaswamy was in sound health
J.P.Narayanaswamy himself taking decisions. To the
Question that J.P.Narayanaswamy was taking
suggestions from his friends and advisors but final
decision was taken by J.P.Narayanaswamy, she has
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answered that while J.P.Narayanaswamy was healthy
he himself was taking decision.
59. D.w.3 has stated that on 15-01-2017 when she
called J.P.Narayanaswamy he could not speak. To show
that mental condition of J.P.Narayanaswamy was not
normal, she has produced the bilirubin count report.
She has denied that J.P.Narayanaswamy executed Will
when he was in sound deposing state of mind.
60. D.w.3 has admitted that defendant No.6 is the
daughter of brother of J.P.Narayanaswamy and 9 th
defendant is the daughter of Puttaswamaiah from his
second wife. She has stated that J.P.Narayanaswamy
was looking after the expenses of the family of the
defendant No.6 and 7. She has also admitted that
J.P.Narayanaswamy was looking after the children of
defendant No.6 and 9 with affection. To the question
that J.P.Narayanaswamy had the intention to help the
children of defendant No.6 and 9, she has answered
that J.P.Narayanaswamy has helped them while he was
alive. She has also admitted that J.P.Narayanaswamy
has conducted the marriage of the children of
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defendant No.13. The defendant No.13 is the sister of
J.P.Narayanaswamy. She has denied that the bequests
made to defendant No.5 and 13 in the Will but has
stated that during life time of J.P.Narayanaswamy has
given the flats to defendant No.5 and 13 and also to
their children including commercial properties in
Malleshwaram.
61. In the chief-examination she has stated that
J.P.Narayanaswamy was visiting daily to their house and
spending time with her children and she visited their
house last on 12.01.2017. She has stated that
J.P.Narayanaswamy was unable to walk from 14 th
January 2017 and bedridden and she was going to his
house from 13.01.2017 and 14.01.2017. However the
defendant No.15 was visiting his father on 16-01-2017
along with cousin Sharath. It is stated that defendant
No.2 and others ensured that she would not be visiting
to see her husband making threat through employees.
She has stated that defendant No.15 has seen the
plaintiff to Puttaswamaiah defendant No.2 in the house
on 17-01-2017. Later she was continuously visiting
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and staying till the evening to look after her husband.
She did not come across the execution of Codicil on
20-01-2017.
62. In the course of cross examination she has
stated that on 12-01-2017 J.P.Narayanaswamy alone
had came to their house along with driver and he has
spent more than an hour along with her and there was
discussion about personal and other matters and prior
to it he was visiting every day and at that time they
were discussing about health and treatment. She has
stated that relationship with the defendant No.1 was
not cordial. The defendant No.1 was in the house at
Sadashivanagar at J.P.Narayanaswamy. She was stated
that after 14.01.2017 except for 15th to 17th January she
along with her children has visited the house of
J.P.Narayanaswamy on all the dates. She has stated
that on 18-01-2017 she was with J.P.Narayanaswamy
from the morning till evening and he was on the bed
she was sitting on by his side. She has stated that
defendant No.15 used to visit J.P.Narayanaswamy in his
house and was spending about one hour with him
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every day. Therefore the evidence of D.W.3 shows that
she has visited J.P.Narayanaswamy on 18.01.2017 i.e.
one day after the execution of the Ex.P-1 Will.
63. The defendant No.3 Devika who got herself
examined as D.w.7 has stated that
J.P.Narayanaswamy had gone to the office till
Sankranthi in January 2017. She has admitted that
defendant No.2 was visiting the house frequently.
She has admitted that J.P.Narayanaswamy was in
their house Krishna Nilaya and she was also
residing in the same house. She has stated that on
17.1.2017 on the date of Ex.P.1 Will she was in the
ground floor. She does not know as to who had
come in the evening.
64. The defendant No.2 who got himself examined
as D.w.1 has denied that they had intentionally not
admitted J.P.Narayanaswamy to the hospital till
23.1.2017 but has stated that J.P.Narayanaswamy was
very adamant and wanted to do whatever he wish to
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do. It is suggested that J.P.Narayanaswamy had
purchased the clothes to go along with defendant no.14
to Korea for the purpose of treatment. It is suggested to
D.W.1 that till 15.1.2017 J.P.Narayanaswamy was
moving about normally and for this D.w.1 has stated
that he was moving about but there was pain in the leg.
He has stated that the last visit of J.P.Narayanaswamy
to the office was on 15.1.2017 and later as there was
pain in the leg he did not come to the office.
65. Therefore this evidence and also the evidence
of defendant no.14 shows that there is no dispute in
that J.P.Narayanaswamy was moving about and was in a
sound mind till 15.1.2017.
66. To the question as to when he came to know
about Ex.P.1 he has stated that J.P.Narayanaswamy had
informed him about the Will after the execution of the
Will but he was not informed him about the contents.
He has stated that when all the family member
including the defendant no.14 was present.
J.P.Narayanaswamy has informed that he has executed
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a Will and he has given the properties to the persons to
whom they properties have to be given and all to them
have to live happily.
67. He has stated that he did not know that who
were the beneficiaries under the Will and who were the
executors till the opening of the Ex.P.1 cover. He has
stated that J.P.Narayanaswamy had not informed that
Puttaswamaiah is the Executor of the Will when
J.P.Narayanaswamy informed the family members about
the execution of the will. He has stated that he himself
called the plaintiff no.2 and the defendant no.4 to 13
and others while opening the will cover containing the
Will on 20.2.2017. He has stated that he had informed
all the family members but some of them had come and
some of them had not come. He has stated that he had
also called Lakshminarasamma sister of
J.P.Narayanaswamy and Jayanna the son of
Lakshminarasamma. But they had not come. He has
stated that he did not know who were the beneficiaries
under the Will.
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68. He has stated that as the 2nd plaintiff is the
close friend of J.P.Narayanaswamy and also their family
friend he had called the plaintiff No.2. He has denied
that as he knew that defendant no.4 to 13 in OS
NO.1403/2018 are the beneficiaries of the Will he had
called them. It is suggested that to identify the
properties and to prepare the Will at least one month
time is required. He has stated that the Doctor had
advised him to prepare the papers as he would not live
longer. He has stated that he does not know as to when
P.w.4 was called by J.P.Narayanaswamy. He has
admitted that in para No.8 of his written statement he
has stated that after his father came to know that he is
not keeping well he had called P.w.4 to prepare the will
and codicil. He has stated that the all the documents
relating to the properties where in the Corporate Office
of J.P.Narayanaswamy and the keys of the said locker
were with Chandrashekar and J.P.Narayanaswamy. Said
Chandrashekar is an employee of J.P.Narayanaswamy
for the last 30 years. He has stated that he does not
know as to who has given the documents for
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preparation of Ex.P.1 will and Ex.P.2 codicil. He has
denied that the documents were not given to P.w.4 but
the documents were prepared at some other place.
68. He has admitted that Puttaswamaiah to whom the
two bar licenses were given same were not transferred
to the name of Puttaswamaiah. But Puttaswamaiah had
given the NOC to him on the ground that due to his age
he cannot look after the bar. He has also admitted that
the defendant no.13 to whom the retail shop license
was given was also given the NOC to him. He has stated
that Narasimamurthy the son of Puttaswamaiah from
the 2nd wife has the knowledge about the liquor
business and Puttaswamaiah and Narasimamurthy are
not financially sound like him. He has stated that he
does not know that Puttaswamaiah could have given
the said license to Narasima Murthy. Similarly he has
admitted that the son of defendant no.13 is doing
transportation business relating to liquor business. He
has stated that he does not know the other license
shown in Annexure-18 should have been given to Shiva.
He has stated that the shares shown in Annexure-16
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regarding SLN Hotel the only the shares of the minors
are not transferred. He has denied that he has obtained
the signature of J.P.Narayanaswamy on some
documents which J.P.Narayanaswamy had not gone
through. He has stated that Ex.D.27 is not signed by the
J.P.Narayanaswamy. He has denied that after the death
of J.P.Narayanaswamy on the advice of the Chartered
Accountant Sharath Gowda was appointed as the
Director as per Ex.D.27.
69. The next material point to be considered is
regarding the custody of the Will. The Will was opened
by PW.6 G.Vikram, Advocate in the presence of all the
beneficiaries. There is no dispute about this fact. He
has stated in his evidence that P.W.7 Hanumantharaju
had handed over the sealed cover containing the Will
and Codicil to him. The evidence of P.W.7 shows that
the sealed cover containing the Will and Codicil was
handed over to him by G.G.Chandrashekar. Said
G.G.Chandrashekar is examined as D.W.4 on behalf of
defendant No.14 to 16. They have not elicited anything
from D.w.4 that the Will was not handed over by D.W.4
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to P.W.7. Therefore the evidence of P.W.7 that the Will
was handed over to him by G.G.Chandrashekar has to
be accepted.
70. The other material aspect to be considered is
the evidence of CW.1. The Ex.C-1 the report given by
C.W.1 Dr.Aravindan.V the handwriting expert from FSL
Bengaluru. The signatures in Ex.P-1 were compared
with the signatures in Ex.D-1. The C.W.-1 has opined
that the signatures in Ex.D-1 and signatures marked in
Ex.P-1 are not made by the same person.
71. The evidence of C.W.1 shows that he has
received the documents for examination on
29-11-2021 and he has examined the documents on
the same day and has prepared the report on
30.11.2021. He has stated that if there is a long
time gap between admitted and disputed signatures
there would be difference in the signatures. But he
has stated that same was not found in this case. He
has stated that there were no similarities in the
admitted and disputed signatures and therefore the
same is not shown in the report. He has stated that
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he requires minimum two minutes for comparison of
one signature with another and in this case 72
signatures had to be compared with the other 71
signatures. But later he has stated that he has not
compared each disputed signatures with all the
admitted signatures but he has compared the
disputed signatures with only one admitted
signatures. But he has stated that he cannot say as
to which is the said admitted signatures used by him
or comparison. But he has stated that he would pick
any one of the admitted signature for the purpose of
comparing questioned signature. He has stated that
he has not made note as to which is the admitted
signature which he has used for comparison with the
disputed signature. Considering this evidence of
CW-1, it can be held that his report lacks this
material aspect, and his report and evidence cannot
be relied upon. If he has chosen only one signature
or randomly selected a signature from out the
admitted signatures, he should have marked the
same and stated in the report as to which is the
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admitted signature which is compared with the
disputed signature. He has stated that he has taken
of the scanning the signatures and that is done on
29-11-2021. He has stated that he has there was no
direction of the Court to submit the report within 24
hours and there about 100 cases pending with him
and out of the said hundred cases three cases were
sent by Court. He has stated that he has anallized,
compared and evaluated the signature within 2 to 3
minutes. But again he has stated that if the
analization, comparison and evaluation of the
signatures would take three months. He has stated
that three hours is sufficient to complete the process
of comparison of all the signatures. He has stated
that he has started the process in the afternoon
around 2-30 p.m. on 29-11-2021 and on 30-11-2021.
He has prepared the report with reasons and said
report was prepared about 10-30 a.m. The witness
again stated that he has started preparation of
report on 20-09-2021 at 11.20 a.m., itself. He has
admitted that contemporary signatures are the most
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preferable signatures for comparison. He has
admitted if a person suffers from ill-health,
intoxication and advanced age, the writing will often
appearing erratic but has denied that the same
appears to be forgery, though the writing is genuine.
He has admitted that writing of the person varies
depending upon the position in which the person
writs, the instrument of writing used, mood and other
facts.
72. The witness was shown the signature
marked as Ex.P1(b) i.e. the disputed signature and
was asked whether the same shows defect in pen
writing which depict genuineness of the signatures,
the witness answered that there is no defect in the
ink, but there is variation in the ink but signature is
genuine. Therefore in the evidence C.W.1 has stated
that the disputed Ex.P-1 (b) signature is genuine.
The Ex.P-1 is dated: 17-01-2017 whereas the
document containing the admitted signature Ex.D-1
is dated: 20-03-2006. Therefore there is gap of
nearly 11 years between the said two signatures. It is
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admitted fact that J.P.Narayanaswamy suffering from
ill health. He had I.V. Injunction on his hand. He was
sitting on the medical bed while signing Ex.P-1. The
evidence of CW.1 makes it difficult to believe that he
could have compared and analized and given his
report about the signatures within short span of one
day. He has only pointed out the differences in the
admitted and the disputed signatures but has not
noted the similarities. He has stated in his evidence
Ex.P1 (b) is genuine signature. Therefore above
circumstances make it difficult to believe as to
whether the C.W.1 has scientifically examined the
disputed signatures as per procedure and has given
the report. Therefore it has to be held that this
report cannot be relied in this case.
73. The learned counsel for the defendants No.14
to 16 has argued that late J.P.Narayanaswamy did not
know to read or write in English. This will not be a
ground to disbelieve the due execution of the Will as
J.P.Narayanaswamy was not a ordinary man but was a
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business man who has traveled all over the world and
has acquired vast properties out of his hard work and
determination and has established different companies.
He has been signing various documents which were in
English. The evidence on record proves that the
contents of the Will were read over and explained to
J.P.Narayanaswamy and he has also admitted that he
knew the contents of the document.
74. The learned counsel for the defendants No.14
to 16 argued that defendant No.2 received substantial
benefit under the alleged Will. It has to be noted that
the defendant No.14 came to the life of
J.P.Narayanaswamy only in the year 1999.
J.P.Narayanaswamy was with the defendants No.1 to 3
and other defendants. He has not disowned them after
marrying the defendant No.14. He has made provision
not only for the defendant No.14 to 16 but also for
others. J.P.Narayanaswamy has executed Will and Gift
Deeds in favour of defendants No.14 to 16 to secure
their life even before the execution of Ex.P-1 and he has
maintained the same in Ex.P-1. The defendants No.14
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to 16 cannot contend that the entire properties should
go to them only on the ground that the defendant No.15
and 16 are the biological children. The defendant No.2
had been assisting J.P.Narayanaswamy in his business
and was helping him in his business.
75. The learned counsel also argued that the
defendant No.2 played prominent role in getting Will
and Codicil. There is collusion between the plaintiffs,
attesters and the the defendant No.2. This contention
cannot be accepted, as the the evidence on record
show that the Will is duly executed and the suspicious
circumstances are dispelled with.
76. The following facts lend support to the fact
that the Ex.P-1 will and Ex.P-2 Codicil were duly
prepared on the instruction of J.P.Narayanaswamy and
he knew about the contents of the said documents and
he was in sound disposing state of mind. Though the
bilirubin count was gradually increasing, the evidence
shows that J.P.Narayanaswamy was moving about till
15.01.2017. The Will cannot be prepared in a single
day. The reading of the Will shows that
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J.P.Narayanaswamy has consulted the experts and got
prepared the Will. The defendant No.14 to 16 who
dispute the sound disposing state of mind have
obtained Ex.D-27 the Resolution passed on 7.02.2017.
It is not proved that the same is antedated and
prepared as per the advice of the Charted Accountant.
The discharge summary shows that while
J.P.Narayanaswamy was admitted to the Hospital he
was in a fit mental condition. The engagement
ceremony was performed in the Hospital on
23.01.2017.
77. The materials on record clearly show that the
Will has been executed in accordance with the Section
63 of Indian Succession Act R/w Sec.68 of Evidence
Act.
78. In view of above discussion, it has to be
held that late J.P.Narayanaswamy has duly executed
registered Will dated: 17-01-2017 and codicil dated
20-01-2017 bequeathed the properties as per the
said Will. Hence Issue No.1 in O.S.No.1403/2018 is
answered in the Affirmative.
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79. The Ex.P-1 Will shows That Puttaswamaiah,
K.J.Hanumantharaju, Mr.K.R.Sudhir were appointed as
Executor of the Will and Puttaswamaiah has resigned
from the executorship. As per the terms of the Will,
the vacancy caused by the executor due to
resignation can be filled in by other Executors. At
present only the plaintiffs are Executors and they
have appoint another person as the Executor in
terms of the Will and have to manage the estate. As
the Will itself gives the power to them to appoint the
executor to fill the vacancy arising out of the
resignation, the permission or approval of the Court
is not necessary. Therefore this Court holds that
plaintiffs have proved that the testator
J.P.Narayanaswamy has appointed them as executors
of the Will, dated: 17-01-2017. But as per the terms
of the Will, there must be three executors and the
Will authorizes then to fill up the vacancy. Hence the
plaintiffs must first appoint another person as the
Executor in place of Puttaswamaiah and proceed to
administer the estate after obtaining the probate.
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Hence Issue No.2 in O.S.No.1403/2018 is answered in
the Affirmative.
80. The defendants No.14 to 16 have failed to
prove that the Will dated: 17-01-2017 and Codicil
dated: 20-01-2017 are created by the plaintiffs and
other defendants. Hence issue No.3 in
O.S.No.1403/2018 is answered in the Negative.
81. By virtue of the Will the defendants who
are the beneficiaries have become absolute owners
of the properties bequeathed to them under the Will
and Codicil. Hence the Issue No.8 in
O.S.No.1127/2018 is answered in the Affirmative.
82. ISSUE No.4 in O.S.No.1403/2018: The
plaintiffs have paid the court fee of Rs.25/- on the
petition which is proper as per Schedule-II Article
10(l)(i) of Karnataka Court Fee payable on the
petition for Probate. The plaintiffs have paid the
Court fee of Rs.40,000/- which is the maximum court
fee payable for issue of Probate. The said amount is
payable after the order for granting the Probate as
passed in favour of the plaintiffs. Therefore this Court
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holds that the court fee paid by the plaintiffs for
grant of probate is proper. Hence this Issue is
answered in the Affirmative.
83. ISSUE No.1 & 9 in O.S.No.1127/2018:
The plaintiffs in O.S.No.1127/2018 have proved the
execution of three Wills dated: 20-03-2006, 28-09-
2015 and 11-03-2016 by J.P.Narayanaswamy by the
evidence of the attestors of the Will. Further
J.P.Narayanaswamy has referred the said Wills in
Ex.P.1 the Will dated: 17-01-2017 and
J.P.Narayanaswamy has revoked all the earlier Wills
as could be seen from page 2, 5 th para of Ex.P-1 and
has declared that Ex.P-1 will supersede all the
previous Wills, but he has maintained the bequeasts
made in the earlier Wills to the same persons.
Therefore though the plaintiffs have proved the said
Wills, they cannot contend that they are in
possession and enjoyment of the property on the
basis of the said Will but they can claim right over
the properties on the basis of the Ex.P-1. Hence they
cannot claim ownership on basis of the said Wills.
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Therefore it has to be held that defendants No.1 to 3
have proved that the said Wills have been revoked in
pursuance of the Will dated: 17-01-2017 and Codicil
dated: 20-01-2017. Hence Issue No.1 in
O.S.No.1127/2018 is answered as above and Issue
No.9 in O.S.No.1127/2018 is answered in the
Affirmative.
84. ISSUE No.2 & 3 IN O.S.No.1127/2018:
The plaintiffs cannot contend that they are in
joint possession and enjoyment of the schedule 'A'
and 'B' properties along with the defendant No.1 as
on the date of the suit. The records show that
plaintiffs are in possession of only of the portions of
the properties. The properties are bequeathed to
different persons under Ex.P-1 and P-2. The
defendant No.1 to 3 also have the right over the
properties. The beneficiaries get the exclusive right
over the properties bequeathed to them and they will
not have joint right over the said properties along
with the other beneficiaries. Therefore the plaintiffs
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cannot contend that they are in joint possession and
enjoyment of the properties and along with the
defendant no.1 to 3 and defendants No.1 to 3 are
interfering with their possession. Hence these Issues
are answered in the 'Negative'.
85. ISSUE No.4 IN O.S.No.1127/2018: The
defendant No.15 and 16 who are the plaintiffs in OS
No.1127/2018 are the children of J.P.Narayanaswamy
and defendant No.14. This is proved through recitals
in Ex.P-1. When J.P.Narayanaswamy himself has
admitted that plaintiffs are his children through
defendant No.14, no further discussion on this point
is necessary. Hence this Court holds that plaintiffs in
O.S.No.1127/2018 have proved that they are children
of late J.P.Narayanaswamy. Hence this issue in
O.S.No.1127/2014 is answered in the Affirmative.
86. ISSUE No.5 IN O.S. 1127/2018: In view of
the Will dated: 17-01-2017 and Codicil dated: 20-01-
2017 the Plaintiffs do not have 1/3rd share in the
entire estate of J.P.Narayanaswamy. Hence this Issue
is answered in the Negative.
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87. ISSUE No.6 IN O.S. 1127/2018:
The defendant Nos.14 to 16 have contended that the
defendant no.2 has never treated J.P.Narayanaswamy
as his father and he was treating Puttaswamy as his
natural father and he has never disowned him. They
have contended that there is no valid adoption by
J.P.Narayanaswamy and defendant No.1. As per the
deed of adoption of defendant No.2 was adopted as
19.03.1984. As on the date of adoption
J.P.Narayanaswamy was aged 33 years and the
defendant No.1 was aged about 25 years and the
defendant No.2 who was adopted was aged 9 years.
Therefore the defendant no.1 was not 21 years older
than defendant No.2 on the date of adoption. Hence the
requirement as contemplated under Section 11 of the
Hindu Adoption and Maintenance Act 1956 is not
complied and the adoption is invalid.
88. The defendant No.14 got herself examined as
D.W.3. She has stated that defendant No.2 Sudhakhar
never treated J.P.Narayanaswamy as father. His
passport reflects father's name as Puttaswamaiah. The
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father's name of defendant No.2 was shown as
Puttaswamaiah in the school records which continued
till obtaining his passport. The defendant No.2 has
purchased several lands wherein his father's name is
shown as Puttaswamaiah. The defendant No.2 has been
treating Puttaswamaiah as his father and has never
disowned him. The signatures found on the alleged
adoption deed dt: 19.03.1984 on Ex.D-19 are not
signatures of J.P.Narayanaswamy.
89. The defendant no.2 J.P.Sudhakar who got
himself examined as D.w.1 in his chief examination has
stated that he was adopted by J.P.Narayanaswamy and
the defendant no.1 under the deed of adoption dated
19.3.1984. Thereafter Parvathamma and
J.P.Narayanaswamy were blessed with a daughter the
defendant no.3. He has stated that he has been residing
separately in a different house with his wife and
children since in the year 1997-98. He has stated that
for more than 25 years he has been involved in the
business operations and management of JP group along
with J.P.Narayanaswamy and he has continued to be in
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active involvement in the day to day business activities
and operation of entire JP Group and is also authorized
to operate the bank accounts.
90. He has stated that the defendant no.14 was
not given any powers despite being a director in SLN
properties. The defendant no.14 was made the director
in M/s.Srilakshmi Narasima Builders and Developers Pvt.
Ltd., in the year 2014 nearly 15 years after the alleged
marriage but she was not given a single share in the
said company during the lifetime of J.P.Narayanaswamy.
Even after designating her as director
J.P.Narayanaswamy did not given her any financial or
executive powers and she had no right to operate the
said companies bank account. On the other hand
because of the Trust reposed by J.P.Narayanaswamy on
him he had given such an authority even though he was
not a director of the said company. He has stated that
J.P.Narayanaswamy was fairly well versed in English
language and working knowledge of English language.
He has stated that the properties bequeathed to
defendant no.15 and 16 are valuable properties. D.w.1
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in the cross examination by the plaintiff has stated that
the defendant no.14 was not coming to the house of
J.P.Narayanaswamy where the defendant no.1 and
J.P.Narayanaswamy were residing. But she had come to
the house after coming to know that
J.P.Narayanaswamy was suffering from cancer.
91. D.w.1 has stated that when he was small his
aunts Tulasi vrunda and lakshmi narasamma were
looking after him and chayamma the 2nd wife of his
father was not looking after him. To the question that he
has left the house in the year 1997 he has stated that
after the marriage he has living separately. To the
question that J.P.Narayanaswamy and Parvathamma
have not conducted his marriage, he has stated that
this was a love marriage. He has stated that he has
been residing separately from the year 1997. This
Court is of the opinion that the fact that he has been
residing separately and the marriage was not
performed by the defendant no.1 and
J.P.Narayanaswamy will not be a ground to hold that he
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is not the adopted son. The natural sons also reside
separately after marriage and when the marriage is
performed without the consent of the parents, it is
natural that the parents do not attend the same. The
records show that he was involved in the business of
J.P.Narayanaswamy The records show that it is not
denied that prior to 1997 the D.w.1 was residing with
J.P.Narayanaswamy and Parvathamma and it is only
after marriage he was residing separately. It is
suggested that J.P.Narayanaswamy has gifted some of
the properties to him and he has also gifted one
property to J.P.Narayanaswamy.
92. The defendant No.2 has contended that as the
first child of defendant No.1 and late
J.P.Narayanaswamy has died in the womb. The doctors
has advised her not to have children for few years. As
they did not have children at the relevant time they
adopted the defendant No.2 under the deed of adoption
dated 19.03.1984 is marked as Ex.D.19. It is contended
that J.P.Narayanaswamy and defendant No.1 reared
defendant No.2 since he was around 2 ½ years old. The
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schooling of defendant No.2 was in Arasikere where
defendant no.1 and J.P.Narayanaswamy were resided as
his biological father had stayed in Home Town.
J.P.Narayanaswamy in the Will has stated that the
defendant No.2 is the adoptive son and defendant No.1
also admits in the written statement that the defendant
no.2 is his adoptive son. The documents Ex.D.21 the
Form No.32 of the year 2005, Ex.D.22 the Board
Resolution of MICH Private Limited, Ex.D.23 the Form
No.32 of the MICH Private Limited, Ex.D.24 the Board
Resolution of J.P.Distellaries and Ex.D.25 Form No.32 of
J.P.Distellaries shows that the defendant No.2 has
conducted the business of J.P.Narayanaswamy and he
was inducted in the business by J.P.Narayanaswamy.
The Ex.D.68 his Aadhar card shows the name of
J.P.Narayanaswamy as the father of defendant No.2. The
documents marked as Ex.D.60 to 62 were confronted to
the defendant No.2 by the defendant No.14 to 16 in the
said documents the natural father accepted that
defendant No.2 is adopted by J.P.Narayanaswamy. In
Ex.D.67 the sale deed dated 17.04.2017 the Defendant
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no.2 is shown as the son of J.P.Narayanaswamy. The
Ex.D172 is the gift deed executed by defendant No.2 in
favour of J.P.Narayanaswamy. Therefore these materials
on record clearly prove that the defendant No.2 is
validly adopted and was treated as the son by
J.P.Narayanaswamy and the defendant no.1.
93. The contention of the learned counsel for D14
to 16 that the adoption is invalid in view of Sec. 11 (iv)
of the Hindu Adoption and Maintenance Act 1956
because of the age difference between the defendant
Nos.1 and 2 is not 21 years cannot be accepted. As
argued by the learned counsel for the defendant no.2
that Section 11 (iv) applies only when the male child is
adopted by a female alone. When the adoption is made
by both the husband and the wife the Section 11 (iv)
has no application. Further the contentions of defendant
No.2 that D14 to 16 cannot question the validity of the
adoption is acceptable because the defendant no.14
came into the life of J.P.Narayanaswamy only in the year
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137 O.S.1127/2018
1999 and the adoption has taken place in the year
1984.
94. Therefore the materials in record clearly
prove that there is valid adoption of defendant no.2
by defendant no.1 and J.P.Narayanaswamy and they
have treated him as their son. Hence this Court
holds that the defendant No.2 has proved that he is
the adopted son of J.P.Narayanaswamy. Hence this
Issue is answered in the Affirmative.
95. ISSUE No.7 IN O.S. 1127/2018:
The defendant Nos.14 to 16 have contended that
the defendant No.3 is not the biological daughter of
defendant No.1 and J.P.Narayanaswamy. The defendant
No.1 has admitted in the written statement that the
defendant No.3 is her biological daughter
J.P.Narayanaswamy has also admitted in the Will that
defendant no.3 is daughter of himself as defendant no.1
and he has made bequests in her favour. There is birth
certificate of defendant no.3 marked as Ex.D.156 which
shows the name of the mother as Parvathi and the
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name of father as J.P.Narayanaswamy. There is no
dispute that Ex.D.156 is the birth certificate of
defendant no.3.
96. The defendant no.14 who got herself
examined as D.w.3 has stated that Parvathama could
not beget child after a child died in the womb
prematurely due to which she developed pus and
infection and suffered for long. There as no chance of
betting child after major surgery within spann of 9
months Parvathamma brought defendant No.3 from a
hospital from Hassan. The defendant No.3 was born at a
hospital in Hassan. The deceased first defendant's
sister Harini had helped her in procuring the just born
child from the hospital with the help of doctors by
creating fake birth certificate. There was house warming
cremmony of the house in Sadashivanagar on the same
day. There was no chances of Smt.Parvathamma
admitting to hospital at Hassan.
97. D.w.3 has produced Ex.D.157 and 158 of
Admission register relating to the defendant No.3. She
has contend that Ex.D.157 and 158 the admission and
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delivery register are manipulated. But she has not
proved the same by examining its author. Therefore it is
not proved whether said register manipulated and who
has done said correction or manipulation. She has
stated that J.P.Narayanaswamy has informed her that
the child was taken from Sampige Nursing Home,
Hassan. She has stated that she does not no as to who
are the parents of defendant No.3.
98. The contentions of Defendant Nos.14 to 16 is
that defendant no.1 could not have given birth to
defendant No.3 after 25 years of marriage. In the
adoption deed Ex.D.19 it is recited that there is no
chances of defendant No.1 getting a child any more. It
is further contended that Smt.Parvathamma had
undergone treatment at Leelavathi Hospital in Mumbai
in February 1999 for fibroidectomy and there is no
chance of getting a child within a span of 9 months
after major surgery. It is further contended that
Smt.Parvathamma was residing at Sadashivanagar,
Bangalore but the defendant No.3 was born at a
Hospital in Hassan. It is contended that the sister of the
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1st defendant by name Harini helped her in procuring a
just born child from the hospital with the help of doctors
by creating a fake birth certificate and there is no
chance of Parvathamma being admitted to the hospital
at Hassan as she was residing in Bangalore in the house
warming ceremony of house at Sadashivanagar was
performed 19.11.1989. The defendant Nos.14 to 16
have contended that J.P.Narayanaswamy came to know
about defendant No.3 two years later and he agreed to
foster her in his house.
99. The defendant Nos.14 to 16 have summoned
and marked Ex.D.157 and Ex.D.158 delivery register of
the relevant period of Sampige Nursing Home. The fact
that defendant no.3 was born in Sampige Nursing Home
is stated in Ex.D.156 himself. The mere fact that the
contentions of defendant no.14 that Parvathamma
could not have gone to Hassan to for delivery because
she has taken treatment at Mumbai and that she had
just recovered from major operation, she could not
deliver a child cannot be a ground to hold that the
contentions of the defendant Nos.14 to 16 are correct
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because the defendant No.1 and J.P.Narayanaswamy
have admitted that she is their natural daughter. All
records shows that she is brought up as their own
daughter. J.P.Narayanaswamy had taken special care to
see that she would be married and settled in life but as
he knew that he could not live that long, he wanted the
engagement ceremony of defendant No.3 be performed
in his presence. When there is positive evidence to
show that defendant No.3 is the natural daughter of
defendant No.1 and J.P.Narayanaswamy heavy burden
lies on defendant Nos.14 to 16 to prove that she is the
not their daughter. As rightly argued by the learned
counsel for defendant No.3, the onus shifts on the
defendant No.14 to defendant No.16 to prove that
defendant No.3 is the biological daughter of
J.P.Narayanaswamy which they have failed to prove.
100. The defendant no.3 Devika J.P. is
examined as D.w.7. She has stated that she is born
to Parvathamma and J.P.Narayanaswamy on
19.11.1999 and she has no objections to grant the
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Probate and Letters of Administration to the
plaintiffs in OS No.1403/2018 and she admits the
legality and correctness and genuineness of the Will
and Codicil executed by her father. The questions
were asked in the cross examination of D.w.7 by the
defendant no.14 to 16 about the house warming
ceremony on 19.11.1999 of the house in Sadashiva
Nagar. The date of birth of D.w.7 is also the same
date. Therefore the asking her about the event
which has happened on 19.11.1999 according to
defendant no.14 to 16 will not have much
evidentiary value. The questions were asked about
the events at the time of her birth and later and
immediately thereafter which cannot be given much
important as she will not have in a position to know
about the same. It is admitted by her that in her
birth certificate the initial J.P is not found. It is also
suggested that there were no photographs of the 1 st
or the 2nd birthday of D.w.7 with the
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J.P.Narayanaswamy and Parvathamma. But just
because there is no photographs of the said
birthdays it cannot be a sole ground to hold that
she is not the biological daughter of Parvathamma
and J.P.Narayanaswamy.
101. The other fact elicited in the cross
examination of D.w.1 J.P.Sudhakar that the son of
defendant no.2 was born in 1999 in Bengaluru and
therefore there is no possibility of Parvathamma
going to Hassan to a small nursing home for
delivery. This argument is acceptable. But only in
this ground the contention of the defendant No.14
to defendant No.16 cannot be accepted because
other evidence on record make the case of the
defendant no.1 to 3 that defendant no.3 is the
biological daughter of J.P.Narayanaswamy is more
probable.
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102. It is suggested to D.w.7 that she was not
born in Sampige nursing home on 19.11.1999 and
Ex.D.157 is manipulated. But this is not proved by
Defendant No.14 to 16. He has stated that the
proposal for marriage of with Sanjay Raj had come
in the year 2016 November and her father had
asked her and she gave her consent in the month of
December 2016. She has admitted that the house
in which she is now residing is very valuable and
there is a recital in the will that the said house go to
her only if she marries Sanjay Raj. Their marriage
has taken place on 22.4.2018. She has admitted
that Ex.D.179 is the photograph of her engagement
ceremony. She has stated that there are no
photographs of the engagement ceremony held in
the hospital as they had not wished to click any
photograph. This evidence of D.W.7 is acceptable.
She has stated that as J.P.Narayanaswamy was in
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the hospital he did not attend the function in the
house as he had leg pain and constipation.
103. To the question as to whether she has an
objection to take the blood sample for DNA with any
family members of J.P.Narayanaswamy she has
answered that as her parents have not questioned
this about the same. There is no necessity for the
same.
104. The Defendant Nos.14 who got herself
examined as DW3 has stated that she came to know
about this from J.P.Narayanaswamy. Therefore it is clear
that the Defendant No.14 had no direct knowledge
about the same and she was informed the same on the
basis of J.P.Narayanaswamy. The contention of the
defendant No.14 that J.P.Narayanaswamy had informed
the certain facts relating to defendant No.3 she is not
the natural daughter and she was brought to the house
only after two years can not be accepted because
J.P.Narayanaswamy has admitted that she is his
daughter and has declared that she is his daughter.
O.S.No.1403/2018 C/w
146 O.S.1127/2018
Therefore the evidence and circumstances relied by the
D14 to 16 to prove that defendant No.3 is not the
natural daughter of defendant No.1 and
J.P.Narayanaswamy are very weak considering that
other positive evidence suggesting that she is the
daughter of J.P.Narayanaswamy and defendant No.1.
105. The D.w.1 is also cross examined by the
learned counsel for the defendant no.14 to 16 regarding
the parenthood of defendant no.3. In his cross
examination by the learned counsel for the defendants
no.14 to 16, the defendant no.2 who got himself
examined as D.w.1 has stated that when the defendant
no.3 was born he was aged 24 years. To the question as
to whether he was aware about the and defendant no.1
being pregnant for the defendant no.3 and defendant
No.1 taking treatment he has answered that he was
residing in a separate house after marriage. He has
denied that he had no connection with defendant no.1.
He has stated that he was aware that Parvathamma
was pregnant but did not know to which hospital she
was going. He has admitted that in the year 1999
O.S.No.1403/2018 C/w
147 O.S.1127/2018
Parvathamma was in Bengaluru. J.P.Narayanaswamy
informed him about the birth of the defendant no.3 but
he does not have personal knowledge about the same.
To the question that there was no necessity to send
Parvathamma for delivery to Hassan, he has answered
that the parental house of Parvathamma is in
Holenarasipura and she had relatives in Hassan and
therefore she had gone to Hassan. He has denied that
there are no relatives of Parvathamma in Hassan. He
has stated that in the year 1991 when his 18 th birthday
was celebrated grandly in Windsor Manor Hotel by
J.P.Narayanaswamy. He has stated that the 1st birthday
of defendant no.3 was celebrated in the house and the
2nd birthday in Ashoka Hotel Bengaluru. He has stated
that there was no program of baby shower when the
defendant no.1 was pregnant for defendant no.3. He
has stated that the he does not know whether the
naming ceremony of defendant no.3 was done but he
has later stated that it was done in Holenarasipura.
O.S.No.1403/2018 C/w
148 O.S.1127/2018
106. The learned counsel for Defendant Nos.14 to
16 argued that defendant No.3 had not agreed for DNA
Test. She has specifically stated that in her evidence
that when biological parents have admitted that she is
their daughter she does not intend to undergo DNA test.
When the natural parents have admitted that she is
their daughter it is not necessary for her to go DNA test
to prove her parenthood just because defendant No.14
to 16 deny the same. Therefore it has to be held that
D14 to 16 are failed to prove defendant No.3 is not the
daughter of defendant No.1 and J.P.Narayanaswamy.
Therefore this Court holds that defendant No.3
has proved that she is the natural daughter of
J.P.Narayanaswamy. Hence this Issue is answered in
the Affirmative.
107. ISSUE No.10 IN O.S.No.1127/2018: The
defendants have contended that suit is bad for
partial partiton. The plaintiffs have included all the
properties left behind J.P.Narayanasway. Hence the
O.S.No.1403/2018 C/w
149 O.S.1127/2018
suit of the plaintiff is not bad for partial partition.
Hence this Issue is answered in the Negative.
108. ISSUE No.11 IN O.S.No.1127/2018:
The defendants have contended that the
beneficaries under the Will are not made parties to
the suit. The plaintiffs are claiming the partition of
the properties against the defendants No.1 to 3.
They have not challenged the Will in this suit.
Therefore the defendant No.1 the widow of
J.P.Narayanaswamy and defendants No.2 and 3 who
claim to be the children of J.P.Narayanaswamy are
necessary parties. Therefore the suit is not bad for
non-joinder or mis-joinder of necessary parties.
Hence this Issue is answered in the Negative.
109. ISSUE No.12 IN O.S.No.1127/2018: The
plaintiffs have pleaded that they are in joint
possession of the properties. They have valued the
suit under Section 35(2) of K.C.F. and S.V. Act, which
is proper. All the properties and the necessary
parties are included in the suit. Therefore the suit of
O.S.No.1403/2018 C/w
150 O.S.1127/2018
the plaintiff is maintainable. Hence this Court
answered this Issue in the Affirmative.
110. ISSUE No.13 IN O.S.No.1127/2018: In
view of answers of this Court to Issue No.2 to 5 and 8
as above the plaintiffs are not entitled for the reliefs
claimed. Hence this Issue is answered in the
Negative.
111. ISSUE No.5 IN O.S.NO.1403/2018: The
plaintiffs are the Executors in the Will. As per
Section 222 of the Indian Succession Act, the
Probate can be granted to the executors appointed
under the Will. Therefore the plaintiffs are entitled
for Probate in respect of the registered Will, dated:
17-01-2017 and Codicil dated dated: 20-01-2017
and they have to appoint an Executor in the place of
Puttaswamiah who has resigned and administer the
estate on the basis of the Probate as per the terms of
the Will and Codicil. Hence this Issue is answered in
the 'Affirmative'.
112. ISSUE NO.5 IN O.S. No.1403/2018 AND
ISSUE No.14 IN O.S.No.1127/2018: As there are two
O.S.No.1403/2018 C/w
151 O.S.1127/2018
suits and considering the relationship between the
parties and the dispute involved, the parties must be
directed to bear their respective costs. In the result this
Court proceeds to pass the following,
ORDER
The Suit of the Plaintiffs in OS No.1403/2018 is decreed with no order as to costs as follows.
The plaintiffs are granted the Probate in respect the last Will dated:
17-01-2017 registered as document No.193/2016-2017 of Book No.III of SRO Malleshwaram, Bangalore and the Codicil, dated: 20-01-2017 registered as document No.196/2016-2017 of Book No.III of SRO Malleshwaram, Bangalore of deceased J.P.Narayanaswamy s/o Late Puttappa who passed away on 09-02-2017 and who was residing at No.350, Sri Krishna O.S.No.1403/2018 C/w 152 O.S.1127/2018 Nilaya, 4th Main, Upper Palace Orchards, Sadashivanagar, Bangalore for the administration of the properties and credits of J.P.Narayanaswamy and in anyway concerning the Will and Codicil is granted to the Plaintiffs Sri.K.G.Hanumantharaju and K.R.Sudhir as they have undertaken to administer the same and to make true inventory of the said property and credits and exhibit the same in this Court within six months from the date of this grant or within such further time as the Court may, from time to time, appoint, and also to render to this Court a true account of the said property and credits within one year from the same date, or within such further time as the Court may, from time to time, appoint. The property number in the schedule 'A' in Annexure 13 and 17 of the Will O.S.No.1403/2018 C/w 153 O.S.1127/2018 shall be read as "218" in the place of "281".
The plaintiffs are directed to correct the property Number in the schedule 'A' of Annexure -13 and 17 to the plaint as "218" in the place of "281".
The original Will shall be filed and preserved in the records as per Section 294 of Indian Succession Act, 1925.
The office is directed to grant the Probate after collecting the necessary Court fee.
The Suit of the Plaintiffs in OS No.1127/2018 is dismissed with no order as to costs.
Keep the original of this Judgment in the file in O.S.No.1403/2018 and the copy of the same in the file in O.S.No.1127/2018.
O.S.No.1403/2018 C/w 154 O.S.1127/2018 Draw up decree accordingly.
(The contents of the Judgment was recorded in voice recorder by me and same was typed by the Typist, transcribed, corrected by me and then pronounced in the open Court this the 17th day of December 2022) ( J.R.MENDONCA) XIV Addl. City Civil Judge Bengaluru ANNEXURE List of witness examined on behalf of Plaintiffs:
PW.1 K.R. Sudhir PW.2 Dr. O.S. Siddappa PW.3 Poornesh.M.R PW.4 S.H. Naik PW.5 Vikram.K. Magar PW.6 G. Vikram PW.7 K.G. Hanumantha Raju
List of documents exhibited on behalf of Plaintiffs Ex.P1 Will dated 17/01/2017 Ex.P1(a to z) Ex.P1(aa to zz) Signatures of J.P. Narayanaswamy Ex.P1(aaa to
iii) Ex.P1(jjj) Signatures of P.W. 4 Ex.P1(kkk & lll) Signatures of P.W. 2 Ex.P.1(mmm Signatures to vvv) Ex.P2 Codicil Ex.P2(a to h) Signature of P.W. 3 O.S.No.1403/2018 C/w 155 O.S.1127/2018 Ex.P2(i) Signature of P.W. 4 Ex.P2.(j&k) Signature of P.W. 2 Ex.P3 Death certificate Ex.P4 Mahazar Ex.P4(a, b, c) Signatures of P.W. 1 Ex.P4(d) Signature of P.W. 6 Ex.P4(e) Signature of P.W. 7 Ex.P4(f) Endorsement of B. Rangaswamy Ex.P5 Bank Endorsement Ex.P6 Registration letter Ex.P6(a) Signature Ex.P7 Endorsement Ex.P7(a) Signature of P.W. 1 Ex.P7(b) Signature of P.W. 7 Ex.P8 Offer Letter Ex.P8(a) Signature of P.W. 1 Ex.P8(b) Signature of P.W. 7 Ex.P9 Reply Ex.P10 Appointment letter Ex.P10(a) Signature of P.W. 1 Ex.P10(b) Endorsement Ex.P10(c) Signature of P.W. 7 Ex.P11 Copy of letter Ex.P12 Reply by defendant No.14 Ex.P13 E-mail Ex.P13(a) Reply to e-mail Ex.P14 Letter to Upparpet Police Station Ex.P14(a) Postal receipt Ex.P14(b,c) Signature of P.W. 7 O.S.No.1403/2018 C/w 156 O.S.1127/2018 Ex.P14(d) Copy of affidavit Ex.P.15 Postal acknowledgment Ex.P.16 Endorsement given by Upparpet PS Ex.P17 Letter to commissioner of police Ex.P17(a) Postal receipt Ex.P18 Paper publication tax invoice Ex.P19 Deccan Herald News Paper Ex.P19(a) Portion of publication Ex.P20 Prajavani News paper Ex.P20(a) Portion of publication Ex.P21 Certificate under Section 65-B of Evidence Act Ex.P22 Scan copy of Ex.P.1 Ex.P.22(a to c) Signature and seal on scan copy Ex.P23 Scan copy of Ex.P.2 Ex.P.23(a to f) Signatures, seal and endorsement on Scan copy List of witness examined on behalf of Defendants DW.1 J.P. Sudhakar DW.2 Dr. Dheeraj Karanth DW.3 Smt. Shobha H.P. DW.4 J.G. Chandrashekar DW.5 Sudheer K.R. DW.6 Smt. Sushma Lokesh DW.7 Smt. Devika J.P. List of documents exhibited on behalf of Defendants Ex.D1 Will dated 20/03/2006 Ex.D1(a) Signature of P.W. 1 Ex.D1(b) Signature of executant Ex.D1(c&d) Signature of P.W. 4 Ex.D.2 Certified copy of marriage registration certificate Ex.D2(a) Signature of P.W. 3 O.S.No.1403/2018 C/w 157 O.S.1127/2018 Ex.D3 Will dated 28/09/2015 Ex.D3(a) Signature of P.W. 3 Ex.D3(b&c) Signature of testator Ex.D3(d) Signature of P.W. 4 Ex.D4 Will dated 11/03/2016 Ex.D4(a) Signature of P.W. 3 Ex.D4(b to e) Signature of executant Ex.D4(f) Signature of P.W. 4 Ex.D5 Photograph Ex.D6 Copy of Trust Deed dated 26/12/2018 Ex.D7 Legal notice dated 21/08/2017 Ex.D8 Medical certificate (True copy) Ex.D9 Medical certificate (True copy) Ex.D10 True copy of letter to Sub-Registrar dated 17/01/2017 Ex.D11 True copy of letter to Sub-Registrar dated 20/01/2017 Ex.D12 Certified copy of Sale Deed dated 20/12/1995 Ex.D13 Letter dated 09/03/2017 Ex.D13(a) Signature of P.W. 7 Ex.D14 Letter dated 16/03/2017 Ex.D14(a) Signature of P.W. 7 Ex.D15 to 17 3 Photographs marked through P.W. 7 Ex.D18 Letter dated 21/04/2017 Ex.D19 Adoption Deed Ex.D19(a) Signature of J.P. Narayanaswamy Ex.D20 Board Resolution of BVPL Ex.D21 Form No.32 dtd. 17.07.2021 Ex.D22 Board Resolution of MICH Pvt. Ltd., Ex.D23 Form No.32 of MICH Pvt. Ltd., dtd. 17.07.2021 Ex.D24 Board resolution of J.P. Distilleries Pvt. Ltd., Ex.D25 Form No.32 of J.P. Distilleries Pvt. Ltd., O.S.No.1403/2018 C/w 158 O.S.1127/2018 Ex.D26 Form No.32 of SLNBDPL Ex.D27 Board resolution dated 07/02/2017 Ex.D28 Gift Deed (Certified copy) Ex.D29 Letter from ASAN Medical Center Ex.D29(a) Certificate under Section 65-B Ex.D30 Discharge summary dated 03/02/2017 issued by Vikram Hospital Ex.D31 Certificate issued by Dr. Dheeraj Karanth dtd. 12.08.2021 Ex.D32 Certified copy of NOC issued to Commercial Tax Ex.D33 Certified copy of letter dated 18/05/2017 Ex.D34 Certified copy of Memo in O.S. No.1127/2018 Ex.D35 Deed of Dissolution of Partnership Ex.D35(a) Signature of J.P. Narayanaswamy Ex.D35(b) Signature of J.P. Sudhakar Ex.D36 Lease deed dated 26/12/2012 Ex.D37 Lease deed dated 19/06/2012 Ex.D37(a) Signature of J.P. Narayanaswamy Ex.D38 Operating Agreement dated 23/05/2016 Ex.D38(a) Signature of J.P. Narayanaswamy Ex.D38(b) Signature of witness Ex.D38(c) Small signature of J.P. Narayanaswamy Ex.D39 High Seas Sale Agreement dated 20/12/2016 Ex.D39(a) Signature of J.P. Narayanaswamy Ex.D40(a,b,c,d) Four purchase orders Ex.D41 Audit report of M/s J.P. Distilleries Pvt., Ltd., Ex.D41(a) Signature of J.P. Narayanaswamy Ex.D41(b) Signature of J.P. Sudhakar Ex.D42 Ex.D42(a) Audit report of M/s SLNH Pvt. Ltd., Ex.D42(b) Signature of J.P. Narayanaswamy O.S.No.1403/2018 C/w 159 O.S.1127/2018 Ex.D43 Signature of J.P. Sudhakar Ex.D43(a) Audit report of M/s SLND Pvt. Ltd., Ex.D43(b) Signature of J.P. Narayanaswamy Ex.D44 Signature of J.P. Sudhakar Ex.D44(a) Audit report of M/s MICH Pvt. Ltd., Ex.D44(b) Signature of J.P. Narayanaswamy Ex.D45 Signature of J.P. Sudhakar Ex.D45(a) Audit report of M/s BVPL Pvt. Ltd., Ex.D45(b) Signature of J.P. Narayanaswamy Ex.D46 Signature of J.P. Sudhakar Ex.D46(a) Income Tax returns for the year 2015-16 Ex.D47 Signature of J.P. Narayanaswamy Ex.D48 Resolution dated 10/02/2017 Ex.D48(a,b) Proforma Invoice Ex.D49 Short signatures of J.P. Narayanaswamy Ex.D50 Sale deed dated 09/07/1999 (Kanthamma) Ex.D51 Sale deed dated 09/07/1999 (Rukmini Naidu) Ex.D52 Sale deed dated 09/07/1999 (Roopa.A.R) Ex.D53 Sale deed dated 17/07/1999 (Rajendra Naidu) Ex.D54 Sale deed dated 17/07/1999 (Rakesh Chowdary) Ex.D55 Khata Endorsement Ex.D56 Tax paid receipt for 2019-20 Ex.D57 Gift deed dated 29/09/2004 by Preetham D. Naik Ex.D58 Sale deed dated 29/09/2004 by P.S. Sulochana Ex.D59 Sale deed dated 08/04/2013 by M/s IB&D Pvt. Ltd., Ex.D60 Sale deed dated 12/09/1988 by Basaveshwara Enterprises Ex.D60(a) Copy of license dtd. 17.07.2021 Ex.D61 Copy of affidavit dtd. 17.07.2021 Ex.D61(a) Copy of license dtd. 17.07.2021 Ex.D62 Copy of affidavit dtd. 17.07.2021 O.S.No.1403/2018 C/w 160 O.S.1127/2018 Ex.D63 Copy of license dtd. 17.07.2021 Ex.D64 Copy of license dtd. 23.07.2021 Ex.D65 Copy of license dtd. 23.07.2021 Ex.D66 Copy of Resolution of BVPL Co., dtd. 30.07.2021 Ex.D67 Copy of Resolution of MICHP Ltd.,dtd. 30.07.2021 Ex.D68 Certified copy of sale deed dated 17/04/2017 Ex.D69 Notarized copy of Aadhar dtd. 03.08.2021 Ex.D70 Ex.D71 Notarized copy of Voter ID dtd. 03.08.2021 Ex.D72 Notarized copy of Pan card dtd. 03.08.2021 Reply to Notice dtd. 23.08.2017 Copy of MEDALL Clumax Dianistic Report dtd. 02.09.2021 Ex. D73 Certified copy of the sale deed dated 28.07.1990 executed by Shivakumar in favour of J.P. Narayanaswamy.
Ex. D74 Certified copy of sale deed dated 20-12-1995 in respect of item No. Ex. D75 Certified copy of sale deed dated 03-02-1996.
Ex. D76 Certified copy of sale deed dated 17-08-1996.
Ex. D77 Certified copy of sale deed dated 25-08-2005.
Ex. D78 Certified copy of sale deed dated 18-04-2001.
Ex. D79 Certified copy of sale certificate dated 15-03-2004 issued by DRT Ex. D80 Certified copy of sale deed dated 20-07-2013.
Ex. D81 Certified copy of sale deed dated 11-07-2014.
Ex. D82 Original marriage certificate dated 27/08/2012 of defendant No.14 and J.P. Narayanaswamy Ex. D83 Passport of defendant No.14 O.S.No.1403/2018 C/w 161 O.S.1127/2018 Ex. D84 Original birth certificate of defendant No.25 issued by Mallya hospital Ex. D85 Original birth certificate of defendant No.15 issued by BBMP dated 22/06/2004 Ex. D86 Original discharge summary dated 14/03/2014 from Mallya hospital Ex. D87 Birth certificate of defendant No.16 issued on 16/12/2011 by Bhagwan Mahaveer Jain Hospital Ex. D88 Original birth certificate of defendant No.15 registered on 23/12/2011 by the BBMP Ex. D89 Original discharge summary dated 16/12/2011 issued by Bhagwan Mahaveer Jain Hospital (One page) Ex. D90 Notarized copy of entry pass issued to defendant No.15 by Bishop Cottons School reflecting father's name. Perused the same along with original entry pass and original is returned back to the witness. Ex. D91 Notarized copy of school identity card of defendant No.16 issued by Sophia High school. Perused the same along with original entry pass and original is returned back to the witness.
Ex. D92 Notarized copies of membership card of Gold Club of J.P. Narayanaswamy defendant No.14 to 16 (4 in numbers). Perused the same along with original and original is returned back to the witness. Ex. D93 Notarized copies of membership card of Karnataka Badminton Association of J.P. Narayanaswamy, defendant No.14 to 16 (4 in numbers). Perused the same along with original and original is returned back to the witness. Ex. D94 Notarized copy of Adhar card of defendant No.14. Perused the same along with original and original is returned back to the witness.
Ex. D95 Notarized copy of Adhar card of defendant No.15. Perused the same along with original and original is returned back to the witness.
Ex. D96 Notarized copy of Aadhar card of defendant No.16.
Perused the same along with original and original is returned back to the witness. Ex. D97 Original marks card of defendant No.15 with signatures of J.P. Narayanaswamy (3 in numbers) Ex. D98 Notarized copy of Class X marks card of defendant No.15 issued by ICSE. Perused the same along with original and original is returned back to the witness.
O.S.No.1403/2018 C/w 162 O.S.1127/2018 Ex. D99 Notarized copy of marks card issued by the pre -university department. Perused the same along with original and original is returned back to the witness. Ex. D100 Original admission notice issued by Sophia High school to defendant No.16.
Ex. D101 Certificate issued by Kinder care dated 27/01/2015 to defendant No.16.
Ex. D102 Acknowledgment of national census register Ex. D103 Case census of the year 2011 Ex. D104 Declaration of parent to prospectus and diary of defendant No.16 along with signature of late J.P. Narayanaswamy. Ex. D105 and Ex. Document pertains to payment of maintenance charges by D105(a) J.P. Narayanaswamy on 04/02/2013 along with signature of late J.P Narayanswamy.
Ex. D106 Photographs of Gruhapravesham dated 26/10/2014 of item No.4 on of schedule 'C' property in O.S. No.1127/2018 (6 in numbers) with CD.
Ex. D107 Photographs of first birthday celebrated at 301, item No.1 of 'C' schedule property Ex. D108 Ultrasound scanning report dated 30/07/2010 referred by Dr. O.S. Siddappa Ex. D109 and Authorization letter dated 26/07/2013 given by J.P. Ex. D109(a) Narayanaswamy to defendant No.14 in respect of Hotel J.P. Cordial Application under Section 65 of Indian Evidence Act along with xerox copy of VAT certificate (VAT certificate is marked at Ex.D109(a) subject to production of original certificate) Xerox copy of Audited financial statement of Sri.
-- Lakshminarasimha Builders and Developers Pvt., Ltd., for the year 2014-15 signed by defendant No.14. (Not marked) Xerox copy of Special resolution of EGM dated
-- 01/02/2016 passed by Sri. Lakshminarasimha Builders and Developers Pvt Ltd., (Not marked) Ex. D110 Copies of three Caveat petitions filed by the plaintiffs and defendant No.1 to 13 (3 in numbers) Ex. D111 Lab reports of J.P. Narayanaswamy issued by MEDALL CLUMAX diagnostics (7 in numbers) Marked subject to objection.
O.S.No.1403/2018 C/w 163 O.S.1127/2018 Ex. D112 Objection statement by defendant No.14 dated 28/02/2017 to Dy. Superintendent of Excise, Hassan Sub-division for transfer of liquor licenses Ex. D113 Communication dated 04/03/2017 by Dy. Superintendent of Excise, Hassan.
Ex. D114 Communication dated 22/03/2017 by Dy. Superintendent of Excise, Hassan to defendant No.14. Ex. D115 Objection dated 03/03/2017 by defendant No.14 to Dy.
Commissioner of Excise, Bengaluru Urban with respect to Bhagini Pavilion.
Ex. D116 Letter dated 13/03/2017 by defendant No.14 to Excise Commissioner requesting for transfer of liquor licenses in her favour.
Ex. D117 Letter dated 13/03/2017 by defendant No.14 to Excise Commissioner requesting for transfer of liquor licenses in her favour pertaining to Raghavendra Enterprises. Ex. D118 Objections filed by defendant No.14 to BBMP and other departments for transfer of katha in respect of suit schedule properties from Ink page 140 to 163. Ex. D119 Notice/ Endorsement dated 11/07/2017 by BBMP Ex. D120 Requisitions / letters dated 13/03/2017 by defendant No.14 to Kotak Mahindra Bank to freeze account (2 in numbers) Ex. D121 Original letter dated 04/10/2017 by Leena Dani to defendant No.14 Ex. D122 Xerox copy of Letter dated 06/06/2017 by plaintiffs to The Manager, Karnataka Bank Marked subject to objection. Ex. D123 SMS sent by plaintiff No.2 (Sudhir), Chandrashekar to defendant No.14 (4 pages) Marked subject production of CD and necessary certificate in accordance with law. Ex. D124 Email dated 31/07/2017 Green Infra Limited to defendant No.14. Marked subject to proof. Ex. D125 Certified copy of sale deed dated 28/05/2016 in favour of defendant No.2 executed by Satish Sy.No. 113, Heggadthihalli village, Kunigal Taluk.
- RTC of Sy.No. 113 showing Puttaswamaiah as father of defendant No.2 for the year 2020-21. (Other side objects Not marked) Ex. D126 Certified copy of the sale deed dated 08/05/1992 executed in favour of Sudhakar of Sy.No. 459/1 of Garaga village, Dharwad reflecting Puttaswamaiah as father Ex. D127 Certified copy of the sale deed dated 08/05/1992 executed in favour of Sudhakar of Sy.No. 459/4 of Garaga village, O.S.No.1403/2018 C/w 164 O.S.1127/2018 Dharwad reflecting Puttaswamaiah as his father Ex. D128 Certified copy of the sale deed dated 08/05/1992 executed in favour of Sudhakar of Sy.No. 459/5 of Garaga village, Dharwad reflecting Puttaswamaiah as his father Ex. D129 Certified copy of the sale deed dated 08/05/1992 executed in favour of Sudhakar of Sy.No. 459/3 of Garaga village, Dharwad reflecting Puttaswamaiah as his father Ex. D130 Encumbrance Certificate reflecting Puttaswamaiah as father of defendant No.2 (2 in numbers) Ex. D131 Certified/ computerized copies of Record of Rights (9 in numbers) Allotment of shares of MICH (record of private placement
-- offer) of MICH showing father's name of defendant No.2 as Puttappa. Xerox copy - hence not marked.
Ex. D132 Certified copy of the birth certificate of defendant No.3 issued by the Chief Registrar of Births and Death on 01/04/2017 Ex. D133 Certified copy of the sale deed dated 17/04/2017 executed by defendant No.2 in favour of B.S. Vinod Kumar in respect of item No.8 of schedule 'A' in O.S. No.1127/2018 Ex. D134 Acknowledgement of complaint by the SHO, High grounds Police station dated 16/10/2018 Ex. D135 Endorsement dated 16/10/2018 issued by High grounds Police to defendant No.14.
Ex. D136 Notices issued by income tax department dated 07/05/2018 (2 in numbers) Ex. D137 Copy of Complaint dated 09/04/2018 to Commissioner of Police by defendant No.14 with endorsement. Ex. D138 True copy of FIR dated 09/04/2018 in Cr.No.60/2018.
Ex. D138(a) Copy of Complaint dated 09-04-2018 in Cr.No.60/2018.
Ex. D139 Certified copy of order passed in Criminal Revision Petition No.364/2011 C/w Criminal Petition 2290/2011, Ex. D140 Certified copy of order dated 29/04/2014 passed in W.P. No.49531/2013 Ex. D141 Two Pass books standing in the name of defendant No.14 in respect of transaction taken with late J.P Narayanaswamy.
O.S.No.1403/2018 C/w 165 O.S.1127/2018 Ex. D5(a) Photo already marked as Ex.D5 Screen shots of photographs of J.P. Narayanaswamy on 15/01/2017. Marked subject to objection/ production of CD/ certificate. Petty cash register maintained by Poornesh i.e. one of the
-- attesting witnesses / PW3 at Ink page No.287 not marked, since other side objects.
Certificate U/Sec. 65B Evidence Act along with Annexed
- documents not marked as not duly sworn before the notary.
Ex. D142 The application submitted to the Registrar of companies with endorsement of the office by the counsel. Ex. D143 Endorsement given by Magadi Police Station.
Ex. D144 Transcription of Call record of PW4 supported by CD -
marked subject to objection. Ex.D145 Accounts Register dtd. 04.10.2021 Ex.D146 Marriage Invitation Card D146 (a) Marriage Invitation Card Ex.D147 Independent Auditor's Report Ex.D148 Certified copy of plaint in O.S.261/2017 dtd.27.10.2021 Ex.D149 Certified copy of w/s in O.S.261/2017 dtd.27.10.2021 Ex.D150 certified copy of order sheet in O.S.261/2017 dtd.27.10.2021 Ex.D151 Annual Report ( 3 nos) dtd 28.10.2021 Ex.D152 Application and related documents received from RTI Ex.D153 Birth certificate dtd. 19.11.1099 Ex.D154 Birth certificate dtd. 19.11.1099 Ex.D155 Birth certificate dtd. 19.11.1099 Ex.D156 Birth certificate dtd. 19.11.1099 D.156(a) Birth and Death Register Extract Ex.D157 Admission Register D.157(a) Relevant page No.143 and 144 Ex.158 Delivery Register D.158(a) Relevant portion Ex.D159 to D162 4 photographs (confronted to DW.3) Ex.D163 Colour Xerox of TC Ex.D164 Colour Xerox of SSLC Marks Certificate Ex.D165 SPA by D.17 dtd. 15.11.20221 Ex.D166 certified copy of Partition Deed dtd. 27.03.1991 Ex.D167 Khatha Extract Ex.D168 Khatha Certificate Ex.D169 Encumbrance Certificate Ex.D170 6 numbered tax paid receipts O.S.No.1403/2018 C/w 166 O.S.1127/2018 Ex.D171 Birth Certificate of DW.7 Ex.D172 Digitalized copy of gift deed dtd. 30.04.2012 Ex.D173 Original Passport of J.P. Narayanaswamy Ex.D174 Photograph Ex.D175 Xerox copy of Progress report Ex.D176 Xerox copy of Birth Certificate Ex.D177 Xerox copy of P.D. Hinduja Hospital report Ex.D178 4 photographs Ex.D179 2 photographs Ex.D180 certified copy of certificate of examination dtd. 20.09.2014 Ex.D181 certified copy of Judgment in O.S.16195/2006 dtd.26.03.2022 Witnesses Examined and documents marked on behalf of the Court CW.1 - Dr. Aravindan V. Ex.C.1 - Commission Report C.1(a) - Signature of CW.1
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( J.R.MENDONCA) XIV Addl. City Civil Judge Bangalore.