Bangalore District Court
Smt Gayathramma vs Smt Mallamma @ Mlamma on 10 April, 2023
KABC010123972003
IN THE COURT OF THE XXIX ADDL. CITY CIVIL
& SESSIONS JUDGE AT BENGALURU CITY. (CCH30)
Dated this the 10th day of April 2023
PRESENT: SRI G.G. KURUVATTI, B.Com., LL.B. (Spl.)
XXIX ADDL CITY CIVIL & SESSIONS JUDGE, BENGALURU.
O.S.No. 4357/2003
Plaintiffs : 1. Smt Gayathramma,
W/o N. Thotada Neelakanteshwara,
Aged about 34 years,
R/a No.254, 26th Cross, 2nd Block,
Rajajinagar,
Bengaluru - 560 010.
2. Smt Sumangala,
W/o Mallaiah,
Aged about 40 years,
R/a Narayanappa Layout,
Allalasandra,
GKVK Post,
Bengaluru - 560 068.
(By M/s G. Jairaj & Associates,
Advocates)
Vs.
Defendants : 1. Smt Mallamma @ Mlamma,
W/o Late Siddalingappa,
Aged about 60 years. (DEAD)
2. Sri A.S. Shivananjappa,
S/o Late Siddalingappa,
2
O.S.No.4357/2003
Aged about 38 years.
Both are residing at No.90, Abbigere,
Chikkabanavara Post,
Yeshwanthapura Hobli,
Bengaluru - 560 090.
3. Sri Karagaiah,
S/o Late Munishamappa,
Aged about 56 years.
4. Smt Akkaiyamma,
W/o Karagaiah,
Aged about 56 years.
5. Sri Munihanumaiah,
S/o Karagaiah,
Aged about 36 years.
Defendants No.3 to 5 are residing at
Abbigere Village, Yeshwanthapura
Hobli, Bengaluru North Taluk,
Bengaluru.
6. Smt Chikka Muniyamma,
D/o Late Chikkanna,
Aged about 60 years.
7. Sri Chikkanna,
S/o Chikka Muniyamma,
Aged about 35 years.
Defendants No.6 & 7 are residing at
Shambulingeshwara Layout,
Cholanayakanahalli,
R.T. Nagar Post,
Bengaluru - 560 032.
8. Sri G.N. Shivakumar,
S/o K. Ganganna,
3
O.S.No.4357/2003
Aged about 43 years,
R/a No.163/17, 1st Main,
4th Cross, L.N. Colony,
Yeshwanthapura,
Bengaluru - 560 022.
9. Sri T.K. Kemparaj,
S/o Late Krishnappa,
Aged about 51 years,
R/a No.846, 'Lakshmi Nilaya'
6th Cross, 2nd Main, L.N. Colony,
Yeshwanthapura,
Bengaluru - 560 022.
(Defendants No.3 to 9 are deleted
as per the order dated 13.02.2023)
(By Sri Lokesh, Advocate for D.1 &
D.2)
Date of institution of the suit 25/06/2003
Nature of the suit (suit on
pronote. Suit for declaration Partition
and possession suit for
injunction, etc.)
Date of the commencement of
recording of the evidence. 08/06/2011
Date on which the judgment
10/04/2023
was pronounced
Total duration Year/s Month/s Day/s
19 09 15
4
O.S.No.4357/2003
JUDGMENT
This suit is filed for partition and separate possession and for such other reliefs.
2. The brief facts of the case as per the plaint are :
The defendant No.1 is the mother, the defendant No.2 is the brother of the plaintiffs and plaintiffs are the daughters of Siddalingappa. The defendant No.1 is the wife of Siddalingappa and defendant No.2 is the son of Siddalingappa. Siddalingappa died on 25.03.2003, leaving behind his wife - defendant No.1 and son - defendant No.2 and daughters - plaintiffs. Siddalingappa has acquired several immovable properties, during his lifetime and died intestate on 25.03.2003. There is no partition till date. The defendants No.1 & 2 were occupying the house property left by Siddalingappa. The properties left by Late Siddalingappa are 15 guntas of land in Sy.No.26/3 at Abbigere; the house property bearing No.90 at Abbigere, measuring 60 X 30 feet; the two lands measuring 20 and 28 guntas in Sy.Nos.28/6 and 28/7, respectively, at Somashettyhalli; the house property at Jarakabande Kavalu, bearing Khatha No.7, measuring 30 X 50 feet, consisting of two 5 O.S.No.4357/2003 shops and two houses; another house property situated at Abbigere, bearing Khatha No.37, measuring 40 X 30 feet. These properties were acquired by father - Siddalingappa.
Later the plaintiffs came to know that the defendants No.1 & 2 are trying to alienate the property. When the partition was sought, the defendants have refused to give any share. So, this suit has been filed for partition and separate possession.
The property of 19 guntas was acquired by the father of plaintiffs and defendant No.2 - Siddalingappa by registered sale deed dated 18.08.1967. The defendants No.3 to 5 without having any right, title, have sold the property in favour of defendants No.8 & 9.
The defendant No.6 who has executed the sale deed in favour of Siddalingappa, by hiding the actual facts has given consent to the defendants No.3 to 5 to sell the schedule 'A' property in favour of defendants No.8 & 9. The cause of action for the suit arose on the date, when plaintiffs requested the defendants No.1 & 2. Hence, it is prayed to decree the suit and grant 1/4th share in the schedule 'A' to 'E' properties by metes and bounds.6
O.S.No.4357/2003
3. On issuance of suit summons, the defendants No.1 & 2 have appeared and filed written statement contending that, the averments of the plaint are all false. The relationship of the plaintiffs and defendants is admitted. The acquisition of property by Siddalingappa, is also admitted. But no partition till date, is denied. The occupation of the house property by defendants No.1 & 2, is admitted. The averments that Siddalingappa has left behind immovable properties as mentioned in schedule 'A' to 'E' properties, are all denied. It is denied that, the schedule 'A' to 'E' properties are in possession of defendants No.1 & 2. It is denied that, the defendants No.1 & 2 have tried to sell out the property and refused for partition. It is denied that, the plaintiffs have got 1/4th share each in the schedule properties.
It is contended that, the defendants are not at all in possession of schedule 'A' to 'E' properties. Then the court fee ought to have been paid under Section 35(1) of the Karnataka Court Fees & Suits Valuation Act. The plaintiffs No.1 & 2 have got married in the year 1978 & 1986, respectively. It is submitted that, Siddalingappa has paid a sum of Rs.50,000/ 7 O.S.No.4357/2003 each to the plaintiffs No.1 & 2. At no point of time they looked the property of Siddalingappa. Siddalingappa has executed a Will bequeathing all his immovable properties in favour of defendant No.2, as all the properties were selfacquired properties. So, the defendant No.2 has become absolute owner of the suit schedule properties, in view of the Will. The plaintiffs have no right to claim partition in the suit schedule properties. Hence, it is prayed to dismiss the suit.
4. On the basis of the above pleadings, the issues have been framed by my learned Predecessorinoffice on 10.07.2008, and they are as hereunder: ISSUES (1) Whether the plaintiffs prove that the suit schedule 'A' to 'E' properties were acquired by Late Siddalingappa as such after his death, the suit schedule properties are the joint family properties of the plaintiffs and the defendants?
(2) Whether the plaintiffs further prove that they are in the joint possession of the suit schedule property lawfully?
(3) Whether the plaintiffs further prove that the sale deed executed by the defendants No.1 & 2 in respect of 'A' schedule property is not binding on them?
8
O.S.No.4357/2003 (4) Whether the defendants No.1 & 2 prove that the deceased Siddalingappa performed the marriage of plaintiffs No.1 & 2 by his own amount and paid Rs.50,000/ each and hence they are not entitled to the share in the suit property?
(5) Whether the defendant No.1 & 2 further prove that Late Siddalingappa executed a Will and bequeathed all the suit schedule property in favour of defendant No.2?
(6) Whether the plaintiffs entitled to partition and separate possession of 1/4th share in the suit schedule property?
(7) Whether the plaintiffs entitled to the injunction sought for?
(8) What order or decree?
5. The plaintiff No.2 is examined herself as PW.1 and got marked the documents as per Ex.P.1 to Ex.P.20. The defendant No.2 is examined himself as DW.1 and got marked the document as per Ex.D.1 in support of his case and also examined DW.2 & DW.3 in support of Will executed by Siddalingappa.
6. Heard the arguments on both sides.
7. My findings to the above issues are as hereunder: Issue No.1 : Partly in the affirmative.
Issue No.2 : In the Negative.
9
O.S.No.4357/2003 Issue No.3 : In the Negative.
Issue No.4 : Does not arise.
Issue No.5 : In the Affirmative.
Issue No.6 : In the Negative.
Issue No.7 : In the Negative.
Issue No.8 : As per final order for the following: REASONS
8. In this suit the daughters of Siddalingappa, have filed the suit for partition and separate possession of the suit schedule properties. It is the contention of the plaintiffs that, the suit schedule properties are selfacquired properties of Siddalingappa and on death of Siddalingappa, the plaintiffs have got 1/4th share each in the suit schedule properties, along with mother and brother.
9. The defendant No.2 - son has set up a Will and contended that, Siddalingappa had executed a Will and as per Will, all the properties are selfacquired properties and they are bequeathing to the defendant No.2 and he only is the absolute owner of the suit schedule properties.
10. So, the Court has to see whether the suit schedule properties are the selfacquired properties and they are validly bequeathing in favour of defendant No.2 - son, as per the Will. 10
O.S.No.4357/2003
11. Issue No.1 & 5: Since these issues are interrelated, they are hereby discussed together to arrive at a conclusion.
12. The plaintiffs have contended that the suit schedule properties are the selfacquired properties of father and on death of father Siddalingappa, the suit schedule properties have become the joint family properties as Siddalingappa has died intestate.
13. The defendant No.2 has contended that, Siddalingappa has executed a Will and bequeathed all the suit schedule properties. So, according to the defendant, the properties are no more joint family properties and they are all absolute properties of defendant No.2. The plaintiffs have no share in the suit schedule properties.
14. So, the Court has to see whether the suit schedule properties are the selfacquired properties of Siddalingappa.
15. In the plaint in para5, it is clearly averred that, "Siddalingappa @ Siddalingaiah has acquired several immovable properties during his lifetime". So, the plaintiffs are contending that the suit schedule properties are all acquired during the lifetime of Siddalingappa only and they are all selfacquired properties of Siddalingappa.
11
O.S.No.4357/2003
16. The defendant in his written statement has also contended that, "The averments contained in para5 of the plaint that the said Siddalingappa has acquired some of the immovable properties during his lifetime is admitted as correct statements. But the defendant denied as to Siddalingappa died intestate and there is no partition till the date". So, in the plaint and written statement both have contended that all the properties so mentioned are the selfacquired properties of Siddalingappa.
17. The plaintiff is taking shelter of the selfacquired properties of the father to claim her share in the suit schedule properties. The defendant No.2 is also contending that the suit schedule properties are the selfacquired properties of his father to set up his Will.
18. Now the Court has to see whether the defendant No.2 would be successful in proving the Will executed by his father - Siddalingappa. If the defendant No.2 were to succeed in proving the Will, this Court has to hold that the properties are not in existence and they cannot be joint family properties. If the defendant No.2 fails to prove the Will, then the properties would 12 O.S.No.4357/2003 become joint family properties and the plaintiffs would get share in the suit schedule properties.
19. Even in the examinationinchief by way of affidavit, PW.1 has admitted that, "The suit schedule properties are the selfacquired properties of father" and in the crossexamination at page7 para10, PW.1 has clearly admitted that, "It is true that the suit schedule property is selfacquired properties of our father".
Again at page13 para17, it is clearly admitted by PW.1 that, "Suit schedule properties are selfacquired properties of my father".
20. In the evidence of DW.1 it is averred that, the father - Siddalingappa has acquired the suit schedule properties during his lifetime and he has contended that, the father had given Rs.50,000/ each to both plaintiffs daughters for construction of the house and then he wrote a Will 21.01.2003, and on death of Siddalingappa, he only became absolute owner of the suit schedule properties.
21. The learned Counsel for plaintiffs has strongly opposed the contention of the defendant stating that, during the 13 O.S.No.4357/2003 pendency of civil cases and writ petition filed before the Hon'ble High Court of karnataka, there is no any averment as to the Will. So, the learned Counsel for plaintiffs has strongly opposed that Ex.D.1 / Will is a concocted document to snatch the entire properties by depriving share of the plaintiffs herein.
22. In the crossexamination a suggestion is made that, during the lifetime of the father - Siddalingappa, there were some cases before the Deputy Commissioner in regard to the land disputes. It is also admitted by DW.1 that, "There were some civil cases and writ petition before the Hon'ble High Court of Karnataka" and also admits about "No mention of the Will in the said proceedings".
23. In my opinion, when the Testator is alive and he is contesting the cases, there is no need to aver about Will he has executed. If at all the Will so executed had been recovered by Legatee, then it is the duty on the part of the Legatee to disprove the Will in the proceedings. As per the cross examination it is clear that, the civil proceedings and writ petitions were filed during the lifetime of Siddalingappa and one cannot expect to disclose about the Will Testator by himself 14 O.S.No.4357/2003 before the Court. So, the contention of the plaintiffs that, non mentioning of the Will in the civil proceedings so also before the writ petitions before the Hon'ble High Court of Karnataka would fall to the ground and does not create any doubt about the Will.
24. In the crossexamination of DW.1 at page8, a suggestion is made when the case was pending before the Deputy Commissioner, the defendant took signatures on blank sheets and concocted the Will. The said suggestion is denied. It is also denied the matter in Ex.D.1 / Will has been written by consulting the Advocate.
25. In my opinion, mere suggestion as to concocting the document cannot be considered on the face of it. There must be a strong evidence to accept the contentions of concoction of the Will. The Counsel for plaintiffs has drawn the attention of the Court to the green sheets used for writing the Will. Page1 is having a signature at the end of the sheet and in page2, the signature is in the middle of the sheet and at page3, once again the signature is at the end of the sheet and in page4, there are two signatures of Siddalingappa. As far as page4, there cannot be any doubt that it has been completed neatly. 15
O.S.No.4357/2003
26. The contention of the plaintiffs is that, the signatures have been obtained before typing and matter has been typed subsequent to the signatures. But when I go through the writings, the Testator has got typed his intention to bequeath the property in first two pages and in page3 & 4, he has given description of the property and has signed the Will even after the signatures of the witnesses. So, in my opinion, there is no any suspicious ground to reject the Will.
27. The learned Counsel for plaintiffs has drawn the attention of the Court to the crossexamination at page8, where DW.1 has admitted that, "The father of plaintiffs and defendant had suffered sugar and B.P. so also heart disease". But DW.2 has stated that, "Siddalingappa has died due to Asthama". In this case except the suggestions and contentions as to the concoction of the Will, there is no any strong rebuttal evidence on the part of the plaintiff to discard the Will.
28. The defendant in support of his case has examined two witnesses, out of three witnesses signed on the Will. DW.2 is a woman by name, K.P. Mahadevi has stated in the examinationinchief by way of affidavit that, on 21.01.2003, the 16 O.S.No.4357/2003 said Siddalingappa asked her to come over to his house. She had seen in the house Siddalingappa had shown the Will prepared by him and in the presence of herself, K. Mallikarjunaiah and A. Sulaiman, Siddalingappa had signed the Will. Siddalingappa expressed his Will to devolve his properties only to his son - A.S. Shivananjappa i.e., defendant No.2. As per her vision, the Will prepared was shown to DW.2 in the presence of K. Mallikarjunaiah and A. Sulaiman and signed the Will. After that the witnesses - Smt K. Mahadevi, K. Mallikarjunaiah and A. Sulaiman have signed the Will. All the three had witnessed signed by Siddalingappa on the Will. All the witnesses also have seen each other signing the Will as witnesses. Further DW.2 has identified her signature and signatures of Siddalingappa are marked as Ex.D.1(b) on each page. She has identified the signatures of A. Sulaiman and K. Mallikarjunaiah as Ex.D.1(c) and Ex.D.1(d).
In the crossexamination she deposed that, as she received summons, she came to the Court and has given evidence. As far as Will is concerned, she do not know who got typed the Will. But later she stated that, Ex.D.1 got typed by 17 O.S.No.4357/2003 Siddalingappa only. She denied that, Siddalingappa was bedridden as on the date of the Will. The witness could not tell what are the properties bequeathed. So, the learned Counsel for plaintiffs has contended that DW.2 has not at all read the Will. When such suggestion is made, the witness has stated that she does not remember what are the properties bequeathed in favour of defendant No.2 by Siddalingappa.
29. A mere suggestion that, DW.2 is the relative of defendant No.1, is not sufficient to discard the evidence of DW.2.
30. In my opinion, when a witness has signed the Will, the Court cannot expect from the mouth of such witness to report the properties bequeathed by Testator. Usually the Will would be written much earlier to the date of the evidence. In this case the Will was executed as back as in the year 2003, and the witness has been crossexamined in the year 2020, about 17 years later from the date of the Will. So, under such circumstances, it is impossible to remember all the properties which have been bequeathed in a Will.
18
O.S.No.4357/2003
31. Now the Court has to see whether Will has been executed as provided under Section 68 of the Evidence Act. The Will has to be signed by the Testator before the witnesses and the witnesses must affix their signatures to the Will for having seen the signature of the Testator of such Will. In this case DW.2 has clearly stated that, she was called for the house of Siddalingappa by Testator himself. When DW.2 went to the house of Siddalingappa, she had seen the other two witnesses - K. Mallikarjunaiah and A. Sulaiman. Then the Will which was already typed, has been signed by Siddalingappa after expressing his Will to bequeath of his property to his son - defendant No.2. Then DW.2 and other two witnesses have affixed their signatures to the Will. In my opinion, the Will has been executed as provided under Section 68 of the Evidence Act. Even in the crossexamination DW.2 has stated well and she has not been shaken. There is nothing to disbelieve the evidence of DW.2. So, in my opinion, the evidence of witness - DW.2 is quite supportive acceptable one.
32. The defendant No.2 has also examined another witness DW.3 - K. Mallikarjunaiah. He deposed as per 19 O.S.No.4357/2003 examinationinchief by way of affidavit that, on 21.01.2003, he was called by Siddalingappa and he went to the house of Siddalingappa. As per his version when he went to the house of Siddalingappa, he had seen Smt K.P. Mahadevi and A. Sulaiman with Siddalingappa. When DW.3 asked as to, for what reason he was called, Siddalingappa expressed that he wanted to make Will and bequeath the properties to his only son - A.S. Shivananjappa (defendant No.2). Siddalingappa had shown the Will prepared by him and in the presence of DW.3, A. Sulaiman and Smt K.P. Mahadevi, Siddalingappa had signed the Will. Then after his signature, DW.3, Smt K.P. Mahadevi and A. Sulaiman have signed as witnesses. Further he states that, Siddalingappa was mentally and physically fit and identified the signature of Siddalingappa on Ex.D.1 / Will, along with the signatures of other two witnesses.
In the crossexamination he also states that, as per summons, he came to the Court to give evidence in regard to the Will executed by Siddalingappa. As on the date of Will, Siddalingappa was residing at Abbigere and DW.2 was resident of Abbigere. The witness has stated that, the properties 20 O.S.No.4357/2003 mentioned in the Will are 5 in numbers. But he cannot give all the details of such properties. Further he states that, when he went to the house of Siddalingappa, A. Sulaiman and Smt K.P. Mahadevi were present in the house. So, in this regard, the learned Counsel for plaintiff has drawn the attention of the Court, wherein Smt K.P. Mahadevi - DW.2 also stated that when she went to the house the Siddalingappa, K. Mallikarjunaiah and A. Sulaiman were present. In that case DW.3 would have deposed that, when he went to the house of Siddalingappa, Smt K.P. Mahadevi was not present and she came later. So, this itself shows falsity of the Will and the plaintiffs have contended that the Will is concocted one.
33. In my opinion, the contention of the plaintiffs as to depositions of DW.2 and DW.3 in the same way as to presence of other witnesses does not go to the root of the case and it is highly impossible to remember each and every moment occurred about 17 years ago from the date of the evidence. When Smt K.P. Mahadevi has deposed as to presence of both A. Sulaiman and K. Mallikarjunaiah when she came to the house of Siddalingappa, the statement of K. Mallikarjunaiah that when 21 O.S.No.4357/2003 he came to the house of Siddalingappa, he saw both A. Sulaiman and Smt K.P. Mahadevi is not taking away the execution of Will by Siddalingappa. Such statement will not nullify the execution of Will. Both Smt K.P. Mahadevi and K. Mallikarjunaiah gave evidence after 17 years and such discrepancy is bound to happen and such discrepancy would not go to the root of the execution of the Will.
34. The civil case has to be proved with probability and preponderance. So, under such circumstances, if the party agitating before the Court is providing sufficient evidence as to his contentions, it is sufficient to hold as to the existence of such fact or execution of document.
35. Admittedly, in this case defendant No.2 is the Legatee and he was not present at the time of execution of Will. So, his duty is to bring the witnesses to the Court to tell about execution of Will. In this case both DW.2 and DW.3 have deposed about execution of Will and just because one discrepancy as to arrival to the house of Siddalingappa at the time of execution of Will, cannot be considered. The Court has to consider only the presence of witnesses at the time of 22 O.S.No.4357/2003 execution of Will. As per evidence of DW.2 and DW.3, when Siddalingappa has signed the Will, all the three witnesses were present and have signed the Will. So, under such circumstances, in my opinion, the defendant No.2 has proved the Will as required under the law.
36. When the Will has been proved, in my opinion, the properties as shown in the schedule have lost the status of joint family properties on death of Siddalingappa. When Will has been executed, the properties would devolve on the Legatee i.e., defendant No.2 and the schedule properties have become absolute properties of Legatee.
37. The learned Counsel for plaintiffs has contended that, the witnesses address have not been mentioned in the Will. So, this itself shows that Will is concocted is the argument of the plaintiffs. In my opinion, mere nonmentioning of address of the witnesses will not take away the effect of the Will. It is already discussed that the defendant has successfully made out a case of Will by proving the Will with adducing the evidence of the witnesses who were present at the time of execution of the Will.
23
O.S.No.4357/2003
38. Another contention taken up by plaintiffs is that, Ex.P.20 is the document showing an application filed under Order 1 Rule 10(2) r/w Section 151 of CPC in O.S.No.2254/2017, and Shivananjappa herein has got impleaded as defendant in the above suit. In the said application in the accompanying affidavit, the present defendant No.2 has stated that, the land bearing Sy.No.26/3, measuring 15 guntas was purchased by father - Siddalingappa on 18.08.1967, and as per the averment, the defendant No.2 has stated that, his father - Siddalingappa was enjoying the schedule property till his death and after his death, the defendant No.2 was in possession and enjoyment of the schedule property as successor. In the said affidavit the defendant has not stated anything about Will.
39. The Court has to see whether nonmentioning of Will in the said proceedings would go to the root of the case in the present proceedings.
40. The suit in O.S.No.2254/2017 was filed by earlier owner of the Sy.No.26/3 against Karagaiah. In my opinion, in the said suit the defendant herein has stated about purchase of 24 O.S.No.4357/2003 schedule property by his father and succeeding the said property after the death of his father. In my opinion, since the dispute was between the third party, nondisclosure of Will does not go to the root of the present suit filed by parties of the sisters.
41. The learned Counsel for plaintiffs also drawn the attention of the Court to the suit in O.S.No.5413/2008, wherein the present defendant has filed the suit for injunction against Gundanna and Karagaiah and he has stated that, after the death of his father - Siddalingappa, he is in possession of the schedule property and has not disclosed about the Will. In my opinion, in a suit for injunction against the third party, the question of explaining that how the plaintiff has got property from his father does not arise. Admittedly, the defendant No.2 is the son of Siddalingappa and as soon his father is died, he came in exclusive possession of the schedule property. So, in my opinion, nondisclosure of the Will in Ex.P.18 also does not go to the root of the case and this Court comes to the conclusion that nondisclosure of the Will in other proceedings would not amount to concoction of the Will. At the most it is an attempt 25 O.S.No.4357/2003 by plaintiffs to create a doubt about the Will, in my opinion, the Will has to be proved as laid down under Section 68 of the Evidence Act and defendant herein has adduced evidence of two witnesses to the Will and they have stood well during the cross examination and they are not shaken. So, in my opinion, the Will has been proved by the defendant in accordance with law.
42. The learned Counsel for plaintiffs has cited a decision reported in 2015 (2) KCCR 1437 (DB), in the case of Smt Nanjamma Vs. Smt Akkayamma since dead by her LRs and Others, in regard to court fee payable. In this case the defendant has taken up a contention that the plaintiffs have to pay the court fee on the market value. So, the plaintiffs have produced the citation, wherein the Hon'ble High Court of Karnataka had held that, "The Court should look into the averments of the plaint and not the written statement or the evidence for determination of the court fee". In my opinion, since there is a Will and defendant has proved the Will, the question of payment of court fee does not arise.
43. The learned Counsel for defendant also has cited a decision reported in 2015 (3) KCCR 2746, in the case of Smt 26 O.S.No.4357/2003 Jana Bai and Others Vs. Sri Komalan since deceased by LRs and Others, in regard to proving the Will, wherein it is discussed that, "One who propounds a Will must establish the competence of the testator to make the Will at the time when it was executed". In this case the defendant has adduced the evidence of two witnesses, who gave clear evidence as to the competence of the testator to execute the Will and also execution of Will.
44. In that case the contestant opposing the Will may bring material on record rebutting such primafacie case. As per discussion made by the Hon'ble High Court of Karnataka, the defendant can produce the evidence to show that the testator was not fit to execute the Will. But in this case except some suggestions to the witnesses, no material or document is produced by plaintiffs to disprove the Will. There is no any rebuttal evidence to disprove the Will. So, under such circumstances, in my opinion, the defendant can take the help of principle laid down in the above citation in support of his case. Accordingly, I answer Issue No.1 'Partly in the affirmative' and Issue No.5 in the 'Affirmative'.
27
O.S.No.4357/2003
45. Issue No.2, 3 & 6: Since these issues are inter related, they are hereby discussed together to arrive at a conclusion.
46. The plaintiffs have contended that, the suit schedule properties are the selfacquired properties of the father - Siddalingappa and after his death, the properties are in joint possession of the plaintiffs. But in this case the defendant No.2 has set up the Will and he has proved that, Siddalingappa has executed a Will and bequeathed the schedule properties in favour of defendant No.2. Issue No.5 has been answered in the 'Affirmative'. Issue No.1 in 'Partly in the affirmative' to the extent of proving that the schedule properties mentioned are the selfacquired properties of Late Siddalingappa.
47. The plaintiffs are contending that, as soon father - Siddalingappa has died, the properties become the joint family properties of plaintiffs and defendants are in joint possession of the schedule properties. But in this case Siddalingappa has executed a Will and the Will comes into operation as soon the Testator dies. Siddalingappa has died in the month of March 2003, and the properties so bequeathed devolve on the 28 O.S.No.4357/2003 defendant No.2 as per Will. It is already admitted by plaintiffs that the suit schedule propers are the selfacquired properties of the father - Siddalingappa. The said Siddalingappa has executed a Will in respect of his selfacquired properties and bequeathed all the properties to the son - defendant No.2. So, as soon Siddalingappa has died, the defendant No.2 has become the owner of the schedule properties by virtue of the Will. So, the contention of the plaintiffs that after the death of Siddalingappa, the properties are held in joint possession as the joint family properties cannot be accepted. The Will has come into operation and all other members of the family are excluded by virtue of the Will in respect of title over the suit schedule properties. As soon Siddalingappa has died, the nature of property has changed and it becomes separate property of defendant No.2. Now the suit schedule 'A' to 'E' properties are separate properties of defendant No.2, are acquired under the Will executed by father - Siddalingappa. So, under such circumstances, the plaintiffs cannot seek partition to the extent of 1/4th share each in the suit schedule properties. 29
O.S.No.4357/2003
48. Whenever the partition is to be claimed by the plaintiffs, the properties must be joint family properties or the ancestral properties. In this case there is no any ancestral properties which devolve on Siddalingappa from his ancestors. All the suit schedule 'A' to 'E' properties are the selfacquired properties of Siddalingappa and he has executed a Will and bequeathed all the properties to the defendant No.2 - son. So, as soon Siddalingappa has died, the properties have become separate properties of defendant No.2 and there is no any joint family properties in the family of Siddalingappa. Accordingly, the plaintiffs cannot seek partition in the separate properties of defendant No.2. The plaintiffs are contending that, the sale deed executed by defendants No.1 & 2 in respect of suit schedule 'A' property is not binding on them. As far as sale of the property is concerned, the plaintiffs have deleted the defendants No.3 to 9 so also the prayer against defendants No.3 to 9. So, the question of sale of suit schedule 'A' property by defendants No.1 & 2 does not arise. Accordingly, I answer Issue Nos.2, 3 & 6 in the 'Negative'.
30
O.S.No.4357/2003
49. Issue No.4: The defendant No.1 has raised an objection stating that, Siddalingappa has performed the marriage and has given Rs.50,000/ each to the daughters plaintiffs No.1 & 2, and this aspect has been narrated in the Will. In my opinion, when Siddalingappa has bequeathed the entire properties to the defendant No.2, the question of giving Rs.50,000/ to the daughters - plaintiffs No.1 & 2 by Siddalingappa need not be looked into.
50. This suit is filed for partition and separate possession by the plaintiffs (daughters of Late Siddalingappa). So, the contention was taken that they were already given share in the schedule properties. If there were no Will as to the suit schedule properties, the contention of the defendant would have been considered. But in this case no property is available for partition. So, under such circumstances, the contention of the defendant as to giving Rs.50,000/ each to the daughters - plaintiffs No.1 & 2, does not make any difference. So, in view of the Will executed by Siddalingappa in respect of the properties, the issue of giving Rs.50,000/ each to the daughters - plaintiffs No.1 & 2, does not arise.
31
O.S.No.4357/2003
51. Issue No.7: The plaintiffs have filed this suit for partition and consequential injunction against the defendants to protect their share. But in this case the plaintiffs have failed to prove that the suit schedule properties are available for the partition as joint family properties. So, under such circumstances, the consequential relief of injunction would not arise. Accordingly, I answer Issue No.7 in the 'Negative'.
52. Issue No.8: This suit is filed for partition and separate possession of the suit schedule properties. The plaintiffs have admitted that the suit schedule properties are the selfacquired properties of father - Siddalingappa. Late Siddalingappa has executed a Will and bequeathed all the self acquired schedule properties in the name of his son - defendant No.2. The defendant No.2 has succeeded in proving the Will. So, the properties held by Siddalingappa have become separate properties of defendant No.2 by virtue of the Will executed by Siddalingappa. After the death of Siddalingappa, the suit schedule properties did not have the nature of the joint family properties.
32
O.S.No.4357/2003
53. To seek partition, the property must be ancestral property or joint family property. But in this case the suit schedule 'A' to 'E' properties have become separate properties of defendant No.2, by virtue of the Will executed by Siddalingappa. So, under such circumstances, the plaintiffs cannot seek any share in the suit schedule properties. Accordingly, I proceed to pass the following: ORDER Suit filed by the plaintiffs against the defendants for partition and separate possession of the suit schedule properties, is hereby dismissed.
Parties to bear their own costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the Open Court, this the 10th day of April, 2023) (G.G. KURUVATTI) XXIX Addl. City Civil & Sessions Judge, Bengaluru City.
33
O.S.No.4357/2003 ANNEXURE List of witnesses examined for the plaintiffs' side: PW.1 Smt Sumangala List of documents exhibited for the plaintiffs' side: Ex.P.1 Death certificate of father - Siddalingappa. Exs.P.2}{ RTC extracts. (2 in Nos.).
& P.3}{ Ex.P.4 Certified copy of sale deed dated 13.10.1969 pertain to suit schedule 'C' property bearing Sy.Nos.28/6 & 28/7.
Exs.P.5}{ Encumbrance certificates (2 in Nos.). & P.6}{ Ex.P.7 Certificate copy of sale deed dated 13.10.1971 pertain to suit schedule 'D' property bearing house property Khatha No.7.
Exs.P.8}{ Encumbrance certificates (3 in Nos.). to P.10}{ Ex.P.11 Certified copy of sale deed dated 18.08.1967 pertain to suit schedule 'E' property property bearing Khatha No.37.
Exs.P.12}{ Encumbrance certificates (2 in Nos.). pertain to suit & P.13}{ schedule 'E' property.
Exs.P.14}{ Certified copies of sale deeds dated 03.04.2007 (2 in & P.15}{ Nos.).
Exs.P.16}{ Certified copies of consent deeds dated 26.05.2007 & P.17}{ 2 in Nos.).
Ex.P.18 Certified copy of plaint in O.S.No.5413/2008. Ex.P.19 Certified copy of judgment and decree passed in O.S. No.5413/2008, dated 07.01.2010.
Ex.P.20 Certified copy of application filed under Order 1 Rule 10(2) r/w Section 151 of CPC (I.A.No.13) by Impleading Applicant/proposed defendant in O.S.No.2254/2017. List of witnesses examined for the defendants' side: DW.1 A.S. Shivananjappa DW.2 Smt K.P. Mahadevi DW.3 K. Mallikarjunaiah 34 O.S.No.4357/2003 List of documents exhibited for the defendants' side: Ex.D.1 Original Will executed by Siddalingappa, dated 21.01.2003.
Ex.D.1(a) Signature of Witness Smt K.P. Mahadevi / DW.2. Ex.D.1(b) Signatures of Siddalingappa.
Ex.D.1(c) Signature of Witness - A. Sulaiman. Ex.D.1(d) Signature of Witness - K. Mallikarjunaiah / DW.3.
(G.G. KURUVATTI) XXIX Addl. City Civil & Sessions Judge, Bengaluru City.
35O.S.No.4357/2003 10.04.2023:
Judgment pronounced in open Court, vide separate judgment.
ORDER
Suit filed by the plaintiffs
against the defendants for
partition and separate possession
of the suit schedule properties, is
hereby dismissed.
Parties to bear their own
costs.
Draw decree accordingly.
XXIX ACC & SJ,
Bengaluru City.