Bangalore District Court
Sri H.T.Chandrakanth vs Sri H.T.Sathyanarayana on 20 December, 2018
IN THE COURT OF THE XXXVIII ADDITIONAL CITY
CIVIL JUDGE AT BENGALURU CITY
Dated this the 20th Day of December 2018
Present
Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
XXXVIII Additional City Civil & Judge,Bangalore City.
ORIGINAL SUIT NO.1297/2009
Plaintiff:
Sri H.T.Chandrakanth, S/o late Sri
Thimmaiah, 46 years, R/o 'A' Wing,
Central Silk Board Staff Quarters, BTM
Layout, Madiwala, Bangalore-560 068
[by advocate Sri R.B.Sadasivappa]
V/s
Defendant:
Sri H.T.Sathyanarayana, S/o late Sri
Thimmaiah, 46 years, R/o No.13, 5th Main,
4th block, Gorgunte Palya, Bangalore-560
022
[by advocate Sri N.Sharath]
Date of Institution of the suit : 14/11/2008
Partition and separate
Nature of suit : possession
Date of commencement of
Evidence : 21/03/2014
Date on which the judgment
is pronounced : 20/12/2018
Years Month Days
Duration taken for disposal :
10 01 06
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JUDGMENT
This suit is filed by the Plaintiff for partition and separate possession.
2. The case of the plaintiff, as per the plaint averments, is as follows:-
The defendant is his elder brother. Himself and the defendant constitute Hindu Joint Family, and own four properties, which are suit schedule properties. Out of four suit schedule properties three are at Hebbur village, Tumkur district and one is at Bengaluru.
Item No.1 of the suit schedule properties i.e., property bearing No.46, formed in Sy.No.7 situated at Jarakabande Kaval, 2nd division, City Corporation New No.13, 5th Main, 4th Block, Goragunte Palya, Bangalore-22 consisting of 2 AC sheet houses constructed on a site measuring 15' x 40' was originally belong to the mother of plaintiff and defendant by name Smt.Susheelamma. She acquired the same under registered sale deed dt.31.12.1979.
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Item Nos.2 to 4 of the suit schedule
properties are the ancestral properties.
Smt.Susheelamma, the mother of plaintiff and defendant got the said properties in the family partition dt.4.3.1974.
Item Nos.1 to 4 of suit schedule properties are the joint family properties and are in joint possession and enjoyment of the plaintiff and defendant. The plaintiff has got ½ share in the suit schedule properties. But the defendant, detrimental to the interest of the plaintiff, is not sharing the benefits of the properties with the plaintiff.
Smt.Susheelamma, the mother of plaintiff and defendant expired on 30.7.2008 and after performing her death ceremonies, the plaintiff demanded the defendant for partition and separate possession of his share in the suit schedule properties by metes and bounds. But the defendant did not show any interest to {4} O.S.No.1297/2009 divide the properties. Hence the plaintiff is constrained to file this suit.
In Item No.1 of suit schedule properties, there are two AC sheet roofed houses. One of the houses is in the occupation of the defendant and another is in occupation of a tenant on a monthly rent of Rs.1500/-. There is also income from the lands since there are fruit yielding trees apart from cultivation of crops.
The plaintiff being the son of Smt.Susheelamma, is entitled to half share in the suit schedule properties, which are joint family properties.
The cause of action for the suit arose after death of Smt.Susheelamma and subsequently when the plaintiff demanded his legitimate half share in the suit schedule properties after performing the death ceremonies of their mother and when the defendant declined to share the properties by metes and bounds and subsequently within the jurisdiction of this {5} O.S.No.1297/2009 Court. Hence the plaintiff prayed this Court to decree the suit as prayed in prayer columns of the plaint.
3. On the other hand, the defendant filed written statement, admitting that he is the elder brother of plaintiff, but denied the averment made in para 3 that the plaintiff and defendant constitute Hindu Joint Family, and contended that this suit is filed by the plaintiff by suppressing material facts.
The defendant admitted the averments made in para 4 of the plaint that Item No.1 of the suit schedule properties was acquired by mother of plaintiff and defendant by name Smt.Susheelamma under registered sale deed dt.31.12.1979 and Item Nos.2 to 4 of the suit schedule properties were acquired by Smt.Susheelamma in the family partition dt.4.3.1974.
The defendant denied the averments made in para 5 of the plaint that the schedule {6} O.S.No.1297/2009 properties are the joint family properties and they are in joint possession and enjoyment of the same.
The defendant denied the averments made in para 6 of the plaint that the plaintiff has got ½ share in the suit schedule properties, but the defendant, detrimental to the interest of the plaintiff, is not sharing the benefits of the properties with the plaintiff, as false. It is contended by the defendant at para 6 of the written statement that there was no occasion for the plaintiff to demand partition and separate possession of the suit schedule properties, because their mother Smt.Susheelamma had executed two registered Wills on 6.7.2005 in respect of Item Nos.1,2 and 4 of the suit schedule properties in favour of plaintiff and defendant and after her death on 30.7.2008, the plaintiff and defendant are living separately with their respective share. There is no cause of action to file this suit.
{7} O.S.No.1297/2009 The defendant is in occupation of entire Item No.1 property by virtue of registered Will dt.6.7.2005 executed by his mother and the plaintiff has no right over Item No.1 in any manner.
Item No.3 of the suit schedule properties i.e., property bearing Khaneshumari No.656, measuring 25 feet x 75 feet was already sold during the life time of Smt.Susheelamma. This fact is also known to the plaintiff. Hence Item No.3 is to be deleted or else the purchaser of the same shall be impleaded as a party to this suit.
In Item No.2, half share is given to the plaintiff and another half share is given to the defendant by their mother Smt.Susheelamma under registered Will dt.6.7.2005.
The entire Item No.4 of the suit schedule properties is given to the plaintiff.
Accordingly by virtue of registered Wills dt.6.7.2005, Smt.Susheelamma, the mother of {8} O.S.No.1297/2009 plaintiff and defendant had allotted the entire Item No.1 to the defendant, entire Item No.4 to the plaintiff and equal half share in Item No.2 to both of them in a justified manner. There is no question of partition of Item No.3 which was sold during the life time of their mother for legal necessities and benefit of the family. On these grounds the defendant requested the Court to dismiss the suit filed by the plaintiff.
4. On the basis of the averments made in the plaint and the written statement filed by defendant, my predecessor has framed the Issues 1 to 3 on 22/11/2013, as follows :-
1. Whether the Plaintiff proves that suit schedule properties are the joint family properties of himself and the Defendant?
2. Whether the Plaintiff proves that he is in joint possession and enjoyment of the schedule properties?
3. Whether the Defendant proves that Smt. Susheelamma has executed two registered Wills dated 06.07.2005 in respect of Item No.1, 2 and 4 properties?
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4. Whether the Defendant proves after the death of Smt. Susheelamma he and the Plaintiff are living separately with their respective share of the properties?
5. Whether the Defendant proves that Item No.3 property was sold during the lifetime of Smt. Susheelamma?
6. Whether the Plaintiff is entitled for the reliefs claimed?
7. What order or decree?
5. In support of the plaintiff's case, the plaintiff himself adduced oral evidence by filing sworn affidavit considered as PW1 and in further chief examination of PW1, the documents produced by him are marked as Ex.P1 to P11. In the cross- examination of PW1, the documents Ex.D1 and D2 are marked. No independent witness has been examined by the side of plaintiff. On the other hand, the defendant himself adduced his oral evidence by way of filing his sworn affidavit as DW1 and in further chief examination of DW1, the documents produced by him are marked as Ex.D3 to D9. In support of defendant's case, one witness adduced her {10} O.S.No.1297/2009 oral evidence by way of filing sworn affidavit considered as DW2. After heard arguments on both sides, the case posted for judgment.
6. My findings on the above Issues are as follows:
Issue No.1: Partly in the Affirmative Issue No.2: Partly in the Affirmative Issue No.3: In the Affirmative Issue No.4: In the Affirmative Issue No.5: In the Affirmative Issue No.6: Party in the Affirmative Issue No.7: As per final order,for the following reasons:-
REASONS ISSUE NOS.1 AND 2:
7. This suit is filed by the plaintiff for partition and separate possession in respect of Item Nos.1 to 4 of the suit schedule properties.
8. Before giving reasons for Issue Nos.1 and 2, it is just and proper to know the admitted facts in this case. The main propositor Late Thimmaiah had a {11} O.S.No.1297/2009 wife by name Smt.Susheelamma. The plaintiff and defendant are the only male sons to said late Thimmaiah and Smt.Susheelamma. There is no controversy regarding the relationship between the plaintiff and defendant and the same is admitted by the defendant in the Written Statement at para 2.
9. It is the case of the plaintiff that the Item Nos.1 to 4 are the joint family properties of himself and defendant and they are in joint possession and enjoyment of the suit schedule properties, therefore he has got ½ share in the suit schedule properties. Further it is the case of the plaintiff that their mother Smt.Susheelamma, died on 30.7.2008 and after performing her death ceremonies, he demanded the defendant for partition and separate possession of his share in the suit schedule properties by metes and bounds. But the defendant denied the legitimate share of the plaintiff in the suit schedule properties, hence constrained to file this suit for partition and separate possession.
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10. Here, first of all, as per the pleadings of the plaint, Item No.1 of the suit schedule properties i.e., property bearing No.46, formed in Sy.No.7 situated at Jarakabande Kaval, 2nd division, City Corporation New No.13, 5th Main, 4th Block, Goragunte Palya, Bangalore-22 consisting of 2 AC sheet houses constructed on a site measuring 15' x 40' has been acquired by Smt.Susheelamma,the mother of plaintiff and defendant, under registered sale deed dt.31.12.1979 and Item Nos.2 to 4 of the suit schedule properties situated at Hebbur village, Tumkur taluk are the ancestral properties, which came in the family partition held in between Smt.Susheelamma, the mother of plaintiff and defendant, with elder brother of her husband deceased Thimmaiah on 4.3.1974. This fact is admitted by the defendant in his Written Statement. Admittedly the father of the plaintiff and defendant Sri Thimmaiah was working in a co-operative society at Hebbur village and he died in the year 1964. Thereafter Smt.Susheelamma along with her two {13} O.S.No.1297/2009 children i.e., plaintiff and defendant came to Bengaluru and started to reside at Chamarajpet in a rented house along with her elder brother and mother. Thereafter Smt.Susheelamma joined a Chemical factory as per Ex.D9 to eke out her livelihood. Thereafter in the year 1979, Smt.Susheelamma purchased item No.1 under registered sale deed dt.31.12.1979 as per Ex.D3.
11. In order to prove Issue Nos.1 and 2, the plaintiff has adduced oral evidence as PW1 and in further chief examination of PW1, the documents produced by him are marked as Ex.P1 to P11 and in the cross-examination of PW1, Ex.D1 and D2 are marked. In the cross-examination of PW1, he deposed that his father Thimmaiah had purchased one property in the year 1964 and the same has been sold out in the year 1978 and out of the sale proceeds, Item No.1 was purchased by Smt.Susheelamma as per Ex.D3. Again in the cross- examination of PW1, he deposed that there are no any document as to prove what was the property {14} O.S.No.1297/2009 purchased in the year 1964 by Thimmaiah in the name of Smt.Susheelamma and what was the property sold out in the year 1978,out of sale proceeds of which the present Item No.1 of the suit schedule properties has been purchased, as per the contention of the plaintiff. But here no such document is produced to prove that the property which has been purchased by Thimmaiah in the year 1964 has been sold in the year 1978 in order to purchase Item No.1, out of the sale proceeds accrued. So, therefore the plaintiff utterly failed to prove that there was joint nucleus existed for purchasing Item No.1 of the suit schedule properties in the year 1979 as per Ex.D3. Therefore Item No.1 of the suit schedule properties is not the ancestral property or joint family property of plaintiff and defendant, but it is the self acquired property of Smt.Susheelamma who purchased Item No.1 of the suit schedule properties out of her self earning. Further as admitted in the cross-examination of DW1 and also in the Written Statement filed by the defendant, it is {15} O.S.No.1297/2009 proved that Item Nos.2 to 4 of the suit schedule properties are ancestral properties of plaintiff and defendant. So here after death of Thimmaiah in the year 1964, partition was held in respect of ancestral properties in between Smt.Susheelamma with elder brother by name Venkatachalaiah and younger brother Seenappa, of her husband Thimmaiah in the year 1974. So therefore the name of Smt.Susheelamma got entered in Mutation Extract as per Ex.P3 in respect of Item Nos.2 to 4 of the suit schedule properties. This fact is admitted in the cross-examination of PW1 and DW1.
12. Here Item No.3 of the suit schedule properties i.e., property bearing Khaneshumari No.656, measuring 25 feet x 75 feet was sold by Smt.Susheelamma during her life time under registered sale deed dt.12.10.1998 as per Ex.P2, to which elder brother of husband of Smt.Susheelamma by name Venkatachalaiah and younger brother Seenappa also consenting witnesses. Therefore Item No.3 of the suit schedule properties was sold out not {16} O.S.No.1297/2009 only by Smt.Susheelamma, but including elder and younger brothers of deceased Thimmaiah who is the husband of Smt.Susheelamma. Hence though Item No.3 is the ancestral property of plaintiff and defendant, it was not remained as joint family property of plaintiff and defendant since already Smt.Susheelamma along with brothers of her husband, sold out the same as per Ex.P2.
13. Here Ex.P6 and P7, the RTC Extracts in respect of Item Nos.2 to 4 are stood in the name of Smt.Susheelamma who is mother of plaintiff and defendant. Ex.P9 is the Encumbrance Certificate produced by PW1. Ex.P11 is the death certificate of Smt.Susheelamma. Here admissions in the cross- examination of PW1 and DW1, itself sufficient that the suit schedule Item Nos.2 and 3 are remained as ancestral properties of plaintiff and defendant. But here Item No.1 of the suit schedule properties is the self acquired property of Smt.Susheelamma. In this case the plaintiff utterly failed to prove that there was a joint nucleus existed for purchasing Item No.1 of {17} O.S.No.1297/2009 the suit schedule properties in the name of Smt.Susheelamma. Hence I answered Issue Nos.1 and 2 partly in the Affirmative.
ISSUE NOs.3 to 5:
14. In the Written Statement filed by the defendant, it is his specific contention at para 10(A) that Item No.1 of the suit schedule properties was acquired by their mother Smt.Susheelamma under registered sale deed dt.31.12.1979 and Smt.Susheelamma executed registered Will dt.6.7.2005 in his favour. In para 10(B), it is contended by the defendant that Item No.3 has been sold out by Smt.Susheelamma during her life time. In respect of Item No.2, half share is given to the plaintiff and another half share is given to the defendant by their mother Smt.Susheelamma by executing registered Will Deeds dt.6.7.2005. In respect of Item No.4, the entire property is given to the plaintiff by executing registered Will dt.6.7.2005. In para 10(D) of the Written Statement the contention of defendant is that two registered Will Deeds are {18} O.S.No.1297/2009 executed by his mother Smt.Susheelamma on 6.7.2005 and on the basis of those Wills, Item No.1 is allotted to the defendant, Item No.4 is allotted to the plaintiff and equal half share in Item No.2 has been allotted to him and the plaintiff and the question of partition does not arise in respect of Item No.3 which was sold during the life time of Smt.Susheelamma for her legal necessity and benefit of joint family.
15. Here the defendant filed Written Statement on 2.9.2009. Even after the defendant took contention at para 10(A) to 10(D) of the Written Statement regarding the execution and registration of Will Deeds dt.6.7.2005, the plaintiff has not filed rejoinder for opposing these two registered Will Deeds executed by Smt.Susheelamma on 6.7.2005. However, the plaintiff, after a long gap i.e., on 21.10.2017, filed I.A.No.11 under Order 6 Rule 11 of C.P.C. for amendment of the pleading and prayer column of the plaint denying two registered Will Deeds executed by Smt.Susheelamma dt.6.7.2005.
The said I.A.No.11 was rejected by order
{19} O.S.No.1297/2009
dt.21.10.2017 after fully contested by the defendant. But the plaintiff has not preferred Writ Petition on the order passed by this Court on I.A.No.11. So what was the hurdle for the plaintiff to file a rejoinder or to file application for amendment of the plaint soonafter the defendant filed Written Statement on 2.9.2009. The plaintiff is trying to fill up lacuna even though there are so many admissions in the cross- examination, by filing I.A.No.11 under Order 6 Rule 11 at belated stage, which was rejected.
16. In order to prove genuity and validity of two registered Will Deeds executed by Smt.Susheelamma dt.6.7.2005, the defendant himself adduced oral evidence as DW1 and in his further chief examination, Ex.D3 to D9 are marked. In the cross-examination of DW1, it goes to show that the father of the plaintiff and defendant was working in a Co-operative society and the father of the plaintiff and defendant died in the year 1964. At the time of death of his father, DW1 was minor aged about 3 years and the plaintiff was also minor aged {20} O.S.No.1297/2009 about 1½ years. Further DW1 also deposed that himself, plaintiff and Smt.Susheelamma were depending on the earning of his father. This goes to show that the father of plaintiff and defendant deceased Thimmaiah was not having a sound financial capacity to purchase Item No.1 of the suit schedule properties. Moreover Item No.1 was purchased in the year 1978 when Smt.Susheelamma, after death of her husband, came to Bengaluru along with her small kids i.e., plaintiff and defendant. In the cross-examination of DW1, it was outcome that the retirement benefits of deceased Thimmaiah has been equally distributed between Smt.Susheelamma and mother of deceased Thimmaiah. This goes to show that there was no any excess amount by way of pension benefit was available in the hands of Smt.Susheelamma. Therefore Smt.Susheelamma along with plaintiff and defendant came to Bengaluru and joined chemical factory for work, which is confirmed on perusing Ex.D9. In the cross- examination of DW1, he categorically denied the {21} O.S.No.1297/2009 suggestions suggested by the counsel for the plaintiff that Smt.Susheelamma purchased one property at Vijayanagar out of the retirement benefits of her husband deceased Thimmaiah. DW1 also denied again that Smt.Susheelamma purchased one property in the year 1978 and then after selling that property, again purchased Item No.1 situated at Goraguntepalya, Bengaluru. But here even in the cross-examination of PW1, he failed to depose what was the retirement benefits availed by Smt.Susheelamma in order to purchase the property situated at Vijayanagar and again that property, as per the contention of the plaintiff, was sold out by Smt.Susheelamma and out of sale proceeds accrued, Smt.Susheelamma purchased Item No.1. So here no document is produced by the side of the plaintiff with regard to joint nucleus which was existed in the hands of Smt.Susheelamma for purchasing Item No.1 of the suit schedule properties and the same is not disclosed from the mouth of PW1 and the same is denied by DW1 in his cross-examination. In the {22} O.S.No.1297/2009 cross-examination of DW1, it is disclosed that the plaintiff, defendant and elder brother of Smt.Susheelamma and her mother were residing in a rented house at Chamarajpet from 1964 to 1975.
17. In the cross-examination of DW1, he deposed that Item No.1 of the suit schedule properties was purchased out of self earnings of his mother and also through his income. In the year 1979 afterwards after attaining majority, he joined a private factory and was earning. Therefore Item No.1 of the suit schedule properties purchased not only from the income of Smt.Susheelamma, but also from the income earned by DW1 himself.
18. Further in the cross-examination of DW1, it goes to show that the plaintiff and defendant were taking care and welfare of their mother Smt.Susheelamma. Because the plaintiff is working as a driver in Silk Board which is the Government organization. DW1 also admitted that the plaintiff and himself along with their family were residing in a quarters allotted to the plaintiff in Silk Board. So {23} O.S.No.1297/2009 here prior to 1990, the plaintiff, defendant, their wives along with their mother Smt.Susheelamma were residing in a rented house in a different place at Chamarajpet. After 1991, the plaintiff, defendant, their wives and their mother Smt.Susheelamma started to reside in Item No.1 of the suit schedule properties situated at Goraguntepalya. In the cross- examination of DW1, it goes to show that there is no cordial relationship in between the plaintiff and defendant due to quarrel being held in between defendant with the wife of plaintiff. Therefore the plaintiff left the house situated at Item No.1 of the suit schedule properties in the year 1993 and came to a rented house situated at Nagashettihalli. Since 1995 onwards the plaintiff and defendant are residing separately. Here in the year 1987, the mother of plaintiff and defendant Smt.Susheelamma retired from her service in a Chemical factory as per Ex.D9. Here in the cross-examination of DW1, it goes to show that not only himself, but also plaintiff, both were looking after care and welfare of their mother {24} O.S.No.1297/2009 Smt.Susheelamma. Hence in order to distribute Item Nos.1,2 and 4, Smt.Susheelamma executed two registered Will Deeds dt.6.7.2005 which are marked as Ex.D1 and D2. as per Ex.D1, Smt.Susheelamma executed Will deed in favour of defendant and his wife and children and bequeathed Item No.1 of the suit schedule properties. So also on the same day Smt.Susheelamma executed another Will deed in favour of plaintiff and bequeathed entire property i.e., Item No.4 to the plaintiff and equal half share each in Item No.2. Here in the cross-examination of DW1, goes to show that Smt.Susheelamma has handed over two registered Will Deeds as per Ex.D1 and D2 in the hands of DW1 15 days prior to her death. Here the counsel for the plaintiff suggested and is admitted by DW1 that since 2007 onwards the health condition of Smt.Susheelamma was not good and deteriorating. In the cross-examination of DW1, goes to show that one attesting witness Jayalakshmi was also accompanied with Smt.Susheelamma to Tumkur Sub Registrar's office for executing the registered Will {25} O.S.No.1297/2009 Deeds. But in the cross-examination of DW1 at page 16, goes to show that he has not got executed registered Will Deeds as per Ex.D1 and D2 by playing fraud or undue influence on his mother Smt.Susheelamma. Even in the cross-examination of DW1, it goes to show that Smt.Susheelamma has not disclosed the fact about executing registered Will Deed before DW1. Here in the cross-examination of DW1, he deposed that he does not know who has given information to his mother Smt.Susheelamma about executing registered Will Deeds. This goes to show that he has not at all influenced his mother for executing two registered Will Deeds, which are marked as Ex.D1 and D2. Even there is no information for DW1 whether the attesting witness Jayalashmi accompanied with Smt.Susheelamma to Tumkur Sub Registrar's office for executing registered Will Deeds on that day. Here DW1 came to know the registered Will Deeds when Smt.Susheelamma herself handedover to him.
Accordingly as per Ex.D1, Smt.Susheelamma
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bequeathed Item No.1 of the suit schedule properties to defendant so also as per Ex.D2 Smt.Susheelamma bequeathd Item No.4 to the plaintiff. So also as per Ex.D2, equal half share each in Item No.2 been bequeathed to the plaintiff and defendant. So here Smt.Susheelamma has appropriately distributed by way of executing registered Will Deeds as per Ex.D1 and D2 in respect of Item Nos.1,2 and 4 of the suit schedule properties in favour of plaintiff and defendant. In the cross-examination of DW1, it is disclosed that himself and his brother plaintiff together performed the funeral ceremony of their mother and also her death ceremony. So this goes to show that the defendant, plaintiff and their family members are having a right over suit schedule properties as per registered Will Deeds executed by Smt.Susheelamma as per Ex.D1 and D2.
19. In the cross-examination of DW1, the counsel for the plaintiff at page 18 suggested and same is admitted by DW1 that as per Ex.D2, the properties mentioned as Item Nos.2 and 4 are {27} O.S.No.1297/2009 ancestral properties and not self acquired property of Smt.Susheelamma. In this case admittedly Item Nos.2 to 4 properties have been allotted to Smt.Susheelamma in the partition held between her with the brothers of her husband in the year 1974. Therefore it is the contention of the counsel for the plaintiff that since Item Nos.2 to 4 are ancestral properties of plaintiff and defendant, then Smt.Susheelamma alone could not have right to sell Item No.3 to third person. Here as per Ex.P2, Item No.3 has been sold by Smt.Susheelamma along with brothers of her husband who put their signatures on the Sale Deed. Here as suggested in the cross- examination of DW1, Item Nos.2 to 4, admittedly, came to Smt.Susheelamma out of partition. So Item Nos.2 to 4 are the shares which would be allotted to deceased Thimmaiah,had he been alive. Since Thimmaiah died in the year 1994, Item Nos.2 to 4 were allotted to his wife Smt.Susheelamma in the partition held between her with the brothers of her husband, in the year 1974. Accordingly as per Ex.P3, {28} O.S.No.1297/2009 the name of Smt.Susheelamma got entered in the RTC extract in respect of Item Nos.2 to 4. Smt.Susheelamma has been in possession of the Item Nos.2 to 4 by exercising her absolute right over Item Nos.2 to 4 till her death. So Smt.Susheelamma being a widow, after death of her husband, exercised her right of ownership over Item Nos.2 to 4. Therefore u/S 14(1) of the Hindu Succession Act, 1956, the limited right of a widow has been enlarged and the share which has been allotted to the widow after death of her husband, is her own absolute property as a owner. Under these circumstances Smt.Susheelamma has got absolute right and by exercising her ownership, sold out item No.3 with consent of her brothers-in-law in the year 1998 as per Ex.P2 for her family necessity. Therefore the plaintiff or defendant cannot question regarding sale of Item No.3 as per Ex.P2. The mother of plaintiff and defendant Smt.Susheelamma, in order to avoid future conflict or dispute, executed registered Will Deeds as per Ex.D1 and D2 bequeathing item No.1 to {29} O.S.No.1297/2009 the defendant and entire Item No.4 to the plaintiff and equal half share each to plaintiff and defendant in Item No.2. Therefore there is no disproportionate allotment in bequeathing the item Nos.1,2 and 4 to the plaintiff and defendant. As per Ex.D1, the name of defendant got entered in the Bruhat Bengaluru Mahanagara Palike records as per Ex.D4 and D5. The Uttarpatra as per Ex.P7 has been entered in the name of defendant and his wife, and defendant by paying tax as per Ex.D6 has been in possession of Item No.1. The cross-examination of DW1, goes to show that as per Ex.D2, katha has not been effected because of objection made by the plaintiff. Therefore the name of plaintiff and defendant has not been entered in respect of Item Nos.2 and 4 as per the allotment of share by Smt.Susheelamma by executing registered Will Deeds.
20. In this case, at this juncture, it is pertinent to know the admissions of PW1 in respect of Ex.D1 and D2. In the cross-examination of Pw1 at page 9 dt.6.8.201 he admitted the signature of his mother {30} O.S.No.1297/2009 Smt.Susheelamma on Ex.D1 at Ex.D1(a) to D1(e) and photograph of his mother at Ex.D1(f). So also PW1 admitted Ex.D2 and signatures of his mother marked at Ex.D2(a) to (f) and photograph of his mother at Ex.D2(g) and (h). This itself goes to show that Smt.Susheelamma while she was in sound state of mind, hale and healthy and with her own free consent and will, executed two registered Will Deeds as per Ex.D1 and D2. In the cross-examination of DW1, he has not at all admitted the suggestions suggested by the counsel for the plaintiff that Smt.Susheelamma was not hale and healthy while executing Ex.D1 and D2.
21. Here it is pertinent to know the conduct of the plaintiff. Because the plaintiff has chosen to file an application for amendment of pleading and prayer column of the plaint under Order 6 Rule 11 of C.P.C. which was rejected by order dt.21.10.2015. This suit was filed in the year 2009 and the Written Statement was filed by the defendant in the month of September, 2009. After recording oral evidence by {31} O.S.No.1297/2009 both sides, when the case was posted for cross- examination of DW1, at fag end of the case, the plaintiff attempted to get amend the pleadings and prayer column of the plaint for denial of registered Will Deeds executed by Smt.Susheelamma as per Ex.D1 and D2. This itself goes to show that the plaintiff impliedly and knowingly about execution of registered Will Deed by his mother Smt.Susheelamma as per Ex.D1 and D2, kept silent without seeking permission for amendment of plaint soon after the defendant filed Written Statement in the year 2009 and made attempt for amendment of the plaint by filing I.A.No.11, which was rejected. Therefore the conduct of the plaintiff itself goes to show that knowing well regarding execution of registered Will Deeds as per Ex.D1 and D2, PW1 falsely deposed in his cross-examination and denied execution of registered Will Deeds by Smt.Susheelamma as per Ex.D1 and D2. In the cross-examination of PW1, he categorically admitted the signature and photograph of his mother when {32} O.S.No.1297/2009 confronted. Therefore the propounder DW1 has not manipulated and concocted Ex.D1 and D2 behind back of the plaintiff. Therefore there is no undue influence and coercion being exercised by the defendant in executing registered Will Deeds by Smt.Susheelamma on 6.7.2005, as per Ex.D1 and D2.
22. It is the contention of the plaintiff that the defendant has not disclosed the reason for which Smt.Susheelamma executed two registered Will Deeds separately on the same day i.e. on 6.7.2005. To clear this doubt, it is just and proper to know the contents of Ex.D1 and D2. Smt.Susheelamma, in order to avoid future conflicts and dispute being held in between plaintiff and defendant, has determined to execute registered Will Deeds in respect of Item Nos.1,2 and 4. So there is no disproportionate allotment in respect of Item Nos.1,2 and 4 as per Ex.D1 and D2. Therefore no prejudice or harm caused to the right of the plaintiff since he also got equal share under registered Will Deed as per Ex.D2.
{33} O.S.No.1297/2009 Therefore from the evidence of DW1, it reveals that the defendant who is propounder of Ex.D1 and D2, has not exercised any undue influence or coercion while executing registered Will Deeds, upon his mother Smt.Susheelamma as per Ex.D1 and D2.
23. To prove the Will one must inevitably refer to the statutory provisions which govern the proof of documents. Section 67 and 68 of Evidence Act are relevant for this purpose. U/s 67 if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Similarly Sections 59 and 63 of the Indian Succession Act are also relevant while executing the Will. Section 59 of the Indian Succession Act provides that every person of sound mind, not being a minor, may dispose of his property by Will. Section 63 of the Indian Evidence Act requires that the testator shall {34} O.S.No.1297/2009 sign or affix his mark to the Will or it shall be signed by some other person in his presence and by direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. So in this case in the dispositions made by executing the registered Will Deeds as per Ex.D1 and D2 by Smt.Susheelamma, there is no unnatural, improbable or unfair in the light of the circumstances of this case. Because disposition of the property is the result of the testator's free will and mind. But here Smt.Susheelamma with her own free will and consent when she was hale and healthy, determined to execute the registered Will Deeds as per Ex.D1 and D2 in order to avoid future conflict between plaintiff and defendant. Here there are no any suspicious circumstances surrounded around the registered Will Deeds as per Ex.D1 and D2. Moreover in the cross- examination of DW1, goes to show that he has not taken any prominent role in execution of registered Will Deeds and no any substantial benefit accrued to {35} O.S.No.1297/2009 the defendant as per Ex.D1. Therefore the defendant who is propounder of Ex.D1 and D2, removed all suspicious circumstances with clear and satisfactory evidence and there is no contradiction in the cross- examination of DW1 in order to know whether Ex.D1 and D2 are outcome of undue influence or coercion manipulated by DW1.
24. Here the Will has to be proved as per Sec.68 of Indian Evidence Act by examining two attesting witnesses or atleast out of two, one attesting witness has to be examined. In this case DW2 who is attesting witness for Ex.D1 and D2 adduced her oral evidence as DW2. she has identified signature of Smt.Susheelamma which are marked as Ex.D1(a) to Ex.D1(e) and her signature is identified by her on Ex.D1 as attesting witness at Ex.D1(f) and (g). DW2 is also attesting witness to another Will executed by Smt.Susheelamma on the same day as per Ex.D2 and she identified signature of Smt.Susheelamma on Ex.D2 marked as Ex.D2(a) to (f) and she identified her signature as attesting witness on Ex.D2 marked {36} O.S.No.1297/2009 as Ex.D2(g) and (h). Here looking to the cross- examination of DW2, she is a well known person to the family affairs of Smt.Susheelamma and she was residing near the house of Smt.Susheelamma. Smt.Susheelamma used to tell family affairs before DW2. Therefore since 1993, DW2 is a good friend as an advisor with regard to family affairs of Smt.Susheelamma. In the cross-examination of DW2, at page 4, she has not at all admitted the suggestion suggested by the counsel for plaintiff that at the time of execution of Ex.D1 and D2, Smt.Susheelamma was suffering from cancer and her eye sight was very poor. But here looking to the cross-examination of DW1 goes to show that the health condition of Smt.Susheelamma was deteriorating after 2007 onwards. So the registered Will Deeds as per Ex.D1 and D2 executed by Smt.Susheelamma on the same day only in the year 2005 when health condition of Smt.Susheelamma was good and in a sound state of mind. Here in the cross-examination of DW2, she deposed that herself and Smt.Susheelamma went to {37} O.S.No.1297/2009 Tumkur by pick up a bus and reached Sub Registrar's office. At that time another person was also present who was well known to Smt.Susheelamma, but not known to DW2. This itself goes to show that DW2 and another witness were present and put their signatures on Ex.D1 and D2 as attesting witnesses. In the cross-examination of DW2, she deposed that Smt.Susheelamma called upon her by informing that she was going to execute registered Will Deeds. This itself goes to show that Smt.Susheelamma has not at all disclosed about execution of registered Will Deeds as per Ex.D1 and D2 in front of her sons or her daughters-in-law. This goes to show that DW1 who is propounder of Ex.D1 and D2 has not at all exercised any type of influence in any mananer over his mother for getting executed registered Will Deeds as per Ex.D1 and D2, as alleged by the plaintiff. In the cross-examination of DW2 at page 5, she deposed that she put her signature on Ex.D1 and D2 after Smt.Susheelamma signed her signature. DW2 deposed that she signed her two {38} O.S.No.1297/2009 signatures on Ex.D1 and two signatures on Ex.D2. So here the defendant, by examining attesting witness DW2, proved the genuity and validity of registered Will Deeds, which are executed by Smt.Susheelamma out of her own free will and thought and not influenced by anybody by manipulating or creating, as alleged by the plaintiff.
25. Here the counsel for the defendant relied on the reported decision in 1998(3) KLJ 634 in the case between K.R.Rajeshwari Devi(deceased) V/s K.R.Chandrashekar, wherein the Hon'ble High Court of Karnataka observed that the executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. Therefore it is essential that trustworthy and unimpeachable evidence should be produced to establish the genuity and authenticity of the Will. Hence the factum of execution and validity cannot be determined merely by considering the evidence adduced by the propounder. Further in the said decision it is observed that in order to prove genuity {39} O.S.No.1297/2009 of the Wills at least one attesting witness out of two attesting witnesses has to be examined in order to prove acknowledgement of the testator who put his signature in front of attesting witnesses. Therefore in this case the defendant by examining DW2 who is attesting witness to Ex.D1 and D2, proved the genuity and validity of the registered Will Deeds. There are no any contradictions in the cross- examination of DW2. DW2 deposed that she was present and put her two signatures on Ex.D1 and two signatures on Ex.D2 as attesting witness in front of Smt.Susheelamma and Smt.Susheelamma also put her signature on Ex.D1 and D2 in front of her Thus in this case, the propounder(DW1) of the Will not only examined himself, but also got examined DW2 who is attesting witness for Ex.D1 and D2 and proved genuity and validity of the registered Will Deeds which have been executed by Smt.Susheelamma while she was in sound state of mind out of her own free will and consent and not by influence by any others including the defendant. PW1 {40} O.S.No.1297/2009 himself admitted the signature of his own mother Smt.Susheelamma on Ex.D1 and D2 when confronted the registered Will Deeds marked through him as Ex.D1 and D2. Under these circumstances from the evidence adduced in support of registered Will Deeds Ex.D1 and D2, it is sufficient to prove the sound and disposition state of mind of Smt.Susheelamma at the time of execution of Ex.D1 and D2. Her signature on Ex.D1 and D2 is also identified as required by law under section 68 of the Indian Evidence Act. Moreover in this case on perusing the cross-examination of DW1, he got entered his name in katha extract and property extract on the strength of registered Will Deed Ex.D1 in respect of Item No.1. Here from the cross- examination of DW1,it is also disclosed that the plaintiff has objected to enter the name of defendant in RTC and property extract as per the properties bequeathed by Smt.Susheelamma which has been described in the registered Will Deed which is marked as Ex.D2.
{41} O.S.No.1297/2009
26. Here Sec.68 of the Indian Evidence Act demands that one of the attesting witness at least be called for the purpose of proving the execution of the instrument, if there be an attesting witness alive. Here in the sworn affidavit filed by Pw1, he stated that the registered Will Deeds s per Ex.D1 and D2 are forged, concocted and created one subsequent to filing of this suit. But here on appreciation of evidence of DW1 and DW2, it does not appear that the registered Will Deeds as per Ex.D1 and D2 were forged or concocted by the defendant. Here the plaintiff has not get adduce evidence of any independent witness in order to prove that the registered Will Deeds as per Ex.D1 and D2 were forged, concocted and created by the defendant. So here looking to the version of DW1 and DW2, goes to show that the registered Will Deeds executed by Smt.Susheelamma as per Ex.D1 and D2 while she was in disposable state of mind. Here the plaintiff and defendant are the only sons of Smt.Susheelamma. Therefore in order to settle the {42} O.S.No.1297/2009 suit schedule properties proportionately, she has bequeathed Item No.1 in favour of defendant as per Ex.d1 and also entire Item No.2 in favour of plaintiff and equal half share each to the plaintiff and defendant in Item No.2 Hence there is no any suspicious circumstances existed while executing the registered Will Deeds as per Ex.D1 and D2 by Smt.Susheelamma . Therefore the propounder has removed all the suspicious circumstances as alleged by the plaintiff in the plaint and proved that the registered Will Deeds executed by Smt.Susheelamma as per Ex.D1 and D2 are genuine and valid and in accordance with law. Therefore the principles adopted in the reported decisions relied on by the counsel for the defendant, as stated supra, are rightly and aptly applicable to the facts and circumstances of this case. Hence I answered Issue Nos.3 to 5 in the Affirmative.
ISSUE NO.6:
27. In this case the plaintiff utterly failed to prove that as on the date of filing of this suit, the suit {43} O.S.No.1297/2009 schedule properties were joint family properties of him and the defendant. The plaintiff also failed to prove that the defendant, behind the back of plaintiff, sold out Item No.3 in order to grab the share of the plaintiff. But here Item No.3 was sold out not by Smt.Susheelamma herself but sold out along with the brothers of husband of Smt.Susheelamma in the year 1998 as per Ex.P2 for the benefit of family and legal necessity. Therefore the plaintiff is not entitled to half share as prayed for in Item Nos.1,2 and 4, but the plaintiff is entitled his share as per the registered Will Deeds which are marked as Ex.D1 and D2. Therefore I answered Issue No.6 partly in the Affirmative.
ISSUE NO.7:
28. In view of aforesaid discussion made on Issue Nos.1 to 6 this Court proceeds to pass the following Order:-
ORDER Suit filed by the plaintiff against the defendants is hereby partly decreed.
{44} O.S.No.1297/2009 Further decreeing that plaintiff is entitled entire Item No.4, the site bearing Khaneshumari No.626 and 627 situated at Hebbur village & Hobli, Tumkur Taluk & District, measuring 14' x 57' with 3 Squares built tiled roof house and bounded on the East by Seenappa's property, West by Oni, North by Road and South by Thathaiah's property and ½ (half) share in Item No.2, the land bearing Sy.No.150/1 measuring 34G and Sy.No.151 measuring 1A 3G situated at Hebbur village and Hobli, Tumkur Taluk and District having fruit yielding trees and bounded on the East by Ramenahalli village road, West by Rayavarda Lake, North by Venkataramanappa's land and South by Venkatachalaiah's land, as per the registered Will Deed executed by Smt.Susheelamma, which is marked as Ex.D2.
The suit filed by the plaintiff claiming a share in respect of Item Nos.1 and 3 of the suit schedule properties is hereby dismissed.
{45} O.S.No.1297/2009 The division of the suit schedule properties as per the above order shall be carried out by metes and bounds u/S 54 of C.P.C.
Since the parties are relatives, they are directed to bear their own costs.
Draw preliminary Decree accordingly. (Dictated to the Judgment Writer, typed by her, corrected, signed and then pronounced by me in the open Court on this the 20th day of December 2018) (DEVANAND PUTTAPPA NAYAK) XXXVIII Addl. City Civil & Sessions Judge,Bangalore City.
ANNEXURE List of witnesses examined for the plaintiff:
PW1 H.T.Chandrakanth List of documents marked for the plaintiff:
Ex.P1 Khata Extract of the schedule property Ex.P2 Certified copy of the sale deed dated 12-10-1998 Ex.P3 mutation register extract Ex.P4 RTC extract Ex.P5 RTC extract Ex.P6 RTC extract Ex.P7 RTC extract Ex.P8 demand register extract Ex.P9 Encumbrance Certificate Ex.P10 Encumbrance Certificate Ex.P11 Death certificate of {46} O.S.No.1297/2009 Smt.Susheelamma List of witnesses examined for the defendant:
DW1 H.T.Sathyanarayana DW2 Jayalakshmi
List of documents marked for the defendant:
Ex.D1 Registered Will Deed
dt.6.7.2005(marked in the
evidence of PW1)
Ex.D2 Registered Will Deed
dt.6.7.2005(marked in the
evidence of PW1)
Ex.D3 Original Sale Deed dt.31.12.1979.
Ex.D4 Original Khatha certificate dt.
27.8.2008.
Ex.D5 Original Khatha extract dated
27.8.2008.
Ex.D6 Original tax paid receipt
dated 25.8.2008.
Ex.D7 Original Uttar pathra dated
26.8.2008.
Ex.D8 Original death certificated
dated 30.7.2008.
Ex.D9 Original employment
certificate dated 21.10.1993.
(DEVANAND P.NAYAK)
XXXVIII Addl.City Civil & Sessions Judge,Bangalore City {47} O.S.No.1297/2009 {48} O.S.No.1297/2009