Bangalore District Court
R.Thippaiah vs R.Kumar Swamy on 22 April, 2021
1
OS.No.6586/2012
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 22nd April 2021
PRESENT
Sri. SADANANDA NAGAPPA NAIK, B.A.L., LL.B.
XVIII Addl.City Civil Judge.
O.S.No.6586/2012
Plaintiffs: 1. R.Thippaiah,
S/o Late T.Ramadasappa,
Aged about 65 years,
R/at No.55, 3rd Main, 11th Cross,
Shereeyas Colony, J.P.Nagar 7th Phase,
Bengaluru - 560 078.
2. Smt.R.Jayalakshmi,
D/o Late T.Ramadasappa,
Aged about 60 years,
R/at No.7/188,
Near 10th Ward bus stop,
Paper town, Bhadravathi,
3. Smt.R.Umadevi,
D/o Late T.Ramadasappa,
Aged about 52 years,
R/at No.2, 2nd Cross, 3rd Main
Marthinagar, J.P.Nagar,
Bengaluru - 78.
4.Smt.R.Manjuladevi
(Since dead by Lrs., her husband)
B.V.Ramamurthy
S/o Late B.Venkataswamy,
R/at No.431, 3rd Cross, 3rd Stage
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OS.No.6586/2012
4th Main, Basaveshwaranagara,
Bangalore- 79.
5. Smt.R.Vasantha Kumari,
D/o Late T.Ramadasappa,
Aged about 47 years,
R/at Reservoir Road,
Basavanagudi, Bengaluru - 04.
[By Sri.K.V.Venkatesh, Advocate]
/VS/
Defendants: 1.R.Kumar Swamy,
S/o Late T.Ramadasappa,
Aged about 62 years,
R/at No.1448, 4th Cross,
25th Main, 1st Phase, 2nd stage,
BTM Layout, Bengaluru.
2. Prem Babu,
S/o Late Ramadasappa,
Aged about 44 years,
R/at No.165, 6th Main,
4th Block, Jayanagara,
Bengaluru - 11.
[Sri.P.R.B.,Adv. For D1, Sri. S.K.B.,
Adv., for D2]
Date of institution of 06.12.2008
suit
Nature of the suit Probate
(Suit on pronote, suit
for declaration and
possession suit for
injunction, etc.
Date of the 17.08.2012
commencement of
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OS.No.6586/2012
recording of the
evidence.
Date on which the 22.04.2021
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 12 04 14
(SADANANDA NAGAPPA NAIK)
XVIII Addl.City Civil Judge, Bangalore.
J UD GME N T
The plaintiffs have filed this suit against the
defendants for grant of probate in favour of plaintiffs and
defendants by virtue of the registered Will dated 3.8.2004
executed by Late T.Ramadasappa in favour of plaintiffs
and defendants registered vide No.BNG(U)-JNR
178/2004-05 in respect of the schedule property and
grant any appropriate relief or reliefs and for costs.
2. The brief and relevant facts as alleged in the
plaint are as follows:
It is the contention of the plaintiffs that their father
T.Ramadasappa during his life time purchased the house
property bearing No.165, 6th Main, 4th block, Jayanagar,
Bangalore measuring 60 X 42 feet ie., suit schedule
property. His wife Radhamma died on 17.4.1997.
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OS.No.6586/2012
T.Ramadasappa died on 2.8.2008 leaving behind the
plaintiffs and defendants as legal heirs, except them there
are no other legal heirs to them. The plaintiffs and
defendants constitute joint family in so far the schedule
property is concerned. Late T.Ramadasappa died intestate
and executed a registered Will dtd.3.8.2004 in favour of
plaintiffs and defendant No.2 in respect of the suit
schedule property. It is further contended that their father
T.Ramadasappa executed the Will with free mind and Will,
without any force, threat, undue influence by either
plaintiffs or defendants. The defendant No.1 also admitted
the execution of the Will. Except the said Will,
T.Ramadasappa has not executed any other Will in respect
of suit schedule property.
It is further contended that Late T.Ramadasappa was
suffering from various disease and he was also taking
treatment from Bengaluru Hospital and St.Johns Hospital
During the ailment, he was not residing in the suit
schedule property and was staying with his daughter
Vasanthakumari at Reserviour Road, Basavanagudi,
Bangalore. There was no cordial relationship between him
and 2nd defendant and also his daughter-in-law. The 2 nd
defendant along with his wife forcibly thrown out of the
house. Hence, he has taken the assistance of his daughter.
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OS.No.6586/2012
It is further contended that the 2 nd defendant is in the
habit of creating the documents, created the Will forging
the signature of late T.Ramadasappa along with his friends
who are the witnesses. The plaintiffs have initiated
criminal proceedings in this regard. As on 7.7.2008,
T.Ramadasappa was residing with 5th defendant and was
not in a position to move out of his bed. Even before his
death in Bangalore Hospital, he has expressed about the
registered Will.
It is further contended that the 2 nd defendant has
filed P & SC.No.25051/2008, intentionally has not made
the plaintiffs as parties and obtained the probate on the
basis of the alleged forged Will. The 2 nd defendant has no
absolute independent right over the suit schedule
property. Entire proceedings conducted in P &
SC.25051/2008 is defective. He has not disclosed the
pendency of other proceedings. The plaintiffs have filed
Mis.No.25103/2009 and the same was allowed on
7.1.2011. The probate granted earlier was not executed.
Hence, prayed to decree the suit as prayed.
3. In response to the suit summons, Defendants
appeared through their counsels and defendant No.1 & 2
have filed their written statements.
In the written statement, the defendant No.1
supported the case of the plaintiffs and prayed to decree
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OS.No.6586/2012
the suit as prayed.
In the written statement, defendant No.2 has denied
the plaint averments except admitting the acquisition of
property by T.Ramadasappa, death of T.Ramadasappa and
his wife and the relationship of the parties to the suit and
execution of the Will dtd.3.8.2004. He has denied that the
plaintiffs and defendants constitute joint family. It is
further contended that except the 2nd defendant, nobody
stayed with the deceased at the time of his death. And 2 nd
defendant alone has taken care of the deceased
Ramadasappa at his old age. He has admitted the
execution of registered Will dtd.3.8.2004. Further
contended that after the execution of the same, he has
executed one more Will dtd. 7.7.2008 bequeathing entire
suit schedule property in his favour. By virtue of the Will
dtd.7.7.2008, the earlier Will dtd. 3.8.2004 stood cancelled
and the last Will and Testament of the deceased will
prevail. It is further contended that on the basis of the
Will dtd.7.7.2008, he had filed P & SC 25051/2008 and
obtained probate and obtained succession certificate vide
order dtd. 25.6.2009. On the basis of the same, katha
mutated in his name and he is paying taxes to the
authorities by exercising his right of ownership. Since the
court of law has granted probate on the earlier, again
seeking probate of the earlier will dtd.3.8.2004 is of no
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OS.No.6586/2012
consequence. Hence, the suit does not survive for any
consideration. The plaintiffs have suppressed the
subsequent Will.
In the additional written statement, the 2nd defendant
has denied the allegations of plaintiffs that he was not
having cordial relationship with the deceased and about
fraudulent creation of the Will dtd.7.7.2008. It is further
contended that late T.Ramadasappa was educated man.
He was competent enough to make the subsequent Will
and was in sound state of mind and was living with good
health at the time of making the said Will. Entire suit
schedule property has been bequeathed in the name of the
2nd defendant.
It is further contended that the suit is bad for non-
joinder of necessary parties, as after the death of 4 th
plaintiff, her daughter Bhoomika has not been impleaded.
The relief sought by the plaintiffs under Indian Succession
Act without executor of the Will, relief of probate is not
permissible under law. Hence, the suit of the plaintiffs
without seeking the relief of declaration and possession in
respect of the suit schedule property is not maintainable
and it is barred under section 34 of Specific Relief Act. On
the above grounds, prayed for dismissal of the suit.
5. On the basis of the above pleadings, the
predecessor in office has framed the following issues:
8
OS.No.6586/2012
1. Whether the plaintiffs prove that Late
T.Ramadasappa executed registered Will
dtd.3.8.2004 in favour of plaintiffs and
defendant No.2 in respect of schedule property
and it is valid one?
2. Whether the plaintiffs prove that they are
executors appointed under the registered Will
dtd. 3.8.2004 for seeking probate?
3. Whether the plaintiffs are entitled to the reliefs
sought for?
4. What order or issue?
Addl.Issues framed on 23.11.2017
1. Whether the 2nd defendant proves that Late
T.Ramadasappa had executed a Will
dtd.7.7.2008 as his last Will?
2. Whether 2nd defendant proves that late
T.Ramadasappa had cancelled the registered Will
dtd.3.8.2004?
6. Plaintiffs got examined 5th plaintiff and three
witnesses as PW1 to 4, got marked the documents at
Ex.P1 to P24 and closed their side. The defendants got
examined themselves and one witness as DW1 to 3, got
marked documents at Ex.D1 to D108 and closed their
side.
9
OS.No.6586/2012
7. Heard the arguments for plaintiffs and
defendants. The counsel for the plaintiffs has relied on
the following decisions:
1. AIR 2006 Madras 221- S.Rathinaswamy & Ors.
Vs. Bhanumathi & Ors.
2. AIR 2010 BOM 178 - Harish Vithal Kulkarni &
Anr. Vs.Pradeep Mahadev Sahnis & Anr.
3. AIR 2005 BOM 200 - Balkrishna S.S.Kakodkar &
Anr. Vs. Rama Babal Vasta
4. AIR 2006 M.P. 68 - Ram Vishal @ Vishali
Kachhawaha Vs. Dwarka Prasad Jaiswa.
5. AIR 2008 SC 1012 - Gaudiya Mission Vs. Shobha
Bose & Anr.
6. AIR 2008 SC 2485 - Babu Singh & Ors. Vs. Ram
Sahai @ Ram Singh
7. AIR 2011 (NOC) 174 (A.P.) - Thumu Srikanth
Vs.Akula Babu
8. AIR 2003 ALL 96 - Pt.A.K.Misra Vs. Pt.Ram
Chandr Sharma Trus
9. AIR 2002 DEL.20 - Yashoda Gupta Vs. Suniti
Goyal & ors.
10. AIR 2006 KAR 48 - B.Rajegowda & Anr.
Vs.H.R.Shankaregowda & Ors
11. AIR 2007 (NOC) 2486 (Madras) - Josephine
Jorome & Ors. Vs.S.Santiago & Anr.
10
OS.No.6586/2012
The counsel for the 2nd defendant has relied on the
following decisions:
1. 2019(1) AKR 516- J.Gopala Rao & Anr. Vs. Union
of India & anr.
2. AIR 2020 KAR 134 - Savithramma Vs.
Nagarathna & Ors.
3. AIR 2020 Gauhati 17 - Musstt Nilbhan Vs. Union
of India & Ors.
4. 2019(3) AKR 303 - G.R. Srinivas Reddy @ Babu
Vs. Smt.Rekha Rai Hamilton & Others.
5. Judgment of Hon'ble High Court of Madras in
CRP(PD)(MD)Nos.2234-2236/2014 - K.Ganesan
Vs.Alamelu & anr.
6. AIR 2009 SC 1604 - Vadiraj Naggappa
Vernakar(deceased by Lrs.) Vs. Sharad Chand
Prabhakar Gogate
7. AIR 2019 SC 5682 - Ganesan through Lrs. Vs.
Kalanjiam & Ors.
8. AIR 2005 GUJ. 177 - Harshadbhai Mangalabhai
Patel Vs. State of Gujarat & Anr.
9. AIR 2002 SC 317 - S.Sundaresa Pai & Ors. Vs.
Mrs.Sumangala T Pai & another.
10. ILR 2005 KR 2260 - Rachel Sukumari Vs.
Samuel Rajashekar Mathias & others.
11. 2018(2) AKR 540- Laxman S/ Satteppa
Hanchinamani Vs. Basavanni S/o Satteppa
Hanchinamani & anr.
12. 2012(3) KCCR SN 98 (SC) - Mahesh Kumar
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OS.No.6586/2012
(dead) By Lrs. Vs. Vinod Kumar & others
13. 2020(4) AKR 337 -Dhareppa Gurupadappa
Deshthot & others Vs/ Shankar Siddappa
Holikammanavar Since deceased by his Lrs. &
Ors.
14. (2012) 8 SCC 148 - Union of India Vs. Ibrahim
Uddin & another
15. AIR 2017 PATNA 160 - Radha Piyari Devi & Ors.
Vs. Suman Singh & Ors.
16. AIR 2017 HP.140 - M/s. Gabion Technologies
India Pvt. Ltd. Vs. M/s.Amcon Master Builders
Missarwala
Perused, the evidence and materials placed on
record. I have also considered the oral arguments with
utmost reverence.
8. My findings on the above issues are as under:
Issue No.1 : In the affirmative
Issue No.2 : In the negative
Issue No.3 : In partly affirmative
Addl.Issue No.1: In the negative
Addl.Issue No.2: In the negative
Issue No.4 : As per final order,
For the following:
REA S ON S
9. Issue No.1 to 3 & Addl.Issue No.1 & 2:- As all
these issues are interlinked with each other, they are
taken up together for consideration to avoid repetition of
facts.
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OS.No.6586/2012
10. It is the contention of the plaintiffs that their
father T.Ramadasappa during his life time purchased the
house property bearing No.165, 6 th Main, 4th block,
Jayanagar, Bangalore measuring 60 X 42 feet ie., suit
schedule property. His wife Radhamma died on
17.4.1997. T.Ramadasappa died on 2.8.2008 leaving
behind the plaintiffs and defendants as legal heirs, except
them there are no other legal heirs to them. The plaintiffs
and defendants constitute joint family in so far the
schedule property is concerned. Late T.Ramadasappa died
intestate and executed a registered Will dtd.3.8.2004 in
favour of plaintiffs and defendant No.2 in respect of the
suit schedule property. It is further contended that their
father T.Ramadasappa executed the Will with free mind
and Will, without any force, threat, undue influence by
either plaintiffs or defendants. The defendant No.1 also
admitted the execution of the Will. Except the said Will,
T.Ramadasappa has not executed any other Will in
respect of suit schedule property. It is further contended
that Late T.Ramadasappa was suffering from various
disease and he was also taking treatment from Bengaluru
Hospital and St.Johns Hospital. During the ailment, he
was not residing in the suit schedule property and was
staying with his daughter Vasanthakumari at Reserviour
13
OS.No.6586/2012
Road, Basavanagudi, Bangalore. There was no cordial
relationship between him and 2nd defendant and also his
daughter-in-law. The 2nd defendant along with his wife
forcibly thrown out of the house. Hence, he has taken the
assistance of his daughter. It is further contended that
the 2nd defendant is in the habit of creating the
documents, created the Will forging the signature of late
T.Ramadasappa along with his friends who are the
witnesses. The plaintiffs have initiated criminal
proceedings in this regard. As on 7.7.2008,
T.Ramadasappa was residing with 5th defendant and was
not in a position to move out of his bed. Even before his
death in Bangalore Hospital, he has expressed about the
registered Will.
It is further contended that the 2 nd defendant has
filed P & SC.No.25051/2008, intentionally has not made
the plaintiffs as parties and obtained the probate on the
basis of the alleged forged Will. The 2 nd defendant has no
absolute independent right over the suit schedule
property. Entire proceedings conducted in P &
SC.25051/2008 is defective. He has not disclosed the
pendency of other proceedings. The plaintiffs have filed
Mis.No.25103/2009 and the same was allowed on
7.1.2011. The probate granted earlier was not executed.
Hence, prayed to decree the suit as prayed.
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11. Percontra, it is the contention of the 2 nd
defendant that T.Ramadasappa acquired the suit schedule
property. He has denied that the plaintiffs and defendants
constitute joint family. It is further contended that except
the 2nd defendant, nobody stayed with the deceased, at the
time of his death. And 2nd defendant alone has taken care
of the deceased Ramadasappa at his old age. He has
admitted the execution of registered Will dtd.3.8.2004.
Further contended that after the execution of the same, he
has executed one more Will dtd. 7.7.2008 bequeathing
entire suit schedule property in his favour. By virtue of
the Will dtd.7.7.2008, the earlier Will dtd. 3.8.2004 stood
cancelled and the last Will and Testament of the deceased
will prevail. It is further contended that on the basis of
the Will dtd.7.7.2008, he had filed P & SC 25051/2008
and obtained probate and obtained succession certificate
vide order dtd. 25.6.2009. On the basis of the same,
katha mutated in his name and he is paying taxes to the
authorities by exercising his right of ownership. Since the
court of law has granted probate on the earlier, again
seeking probate of the earlier will dtd.3.8.2004 is of no
consequence. Hence, the suit does not survive for any
consideration. The plaintiffs have suppressed the
subsequent Will.
In the additional written statement, the 2nd defendant
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OS.No.6586/2012
denied the allegations of plaintiffs that he was not having
cordial relationship with the deceased and about
fraudulent creation of the Will dtd.7.7.2008. It is further
contended that late T.Ramadasappa was educated man.
He was competent enough to make the subsequent Will
and was in sound state of mind and was living with good
health at the time of making the said Will. Entire suit
schedule property has been bequeathed in the name of the
2nd defendant.
It is further contended that the suit is bad for non-
joinder of necessary parties, as after the death of 4 th
plaintiff, her daughter Bhoomika has not been impleaded.
The relief sought by the plaintiffs under Indian
Succession Act without executor of the Will, relief of
probate is not permissible under law. Hence, the suit of
the plaintiffs without seeking the relief of declaration and
possession in respect of the suit schedule property is not
maintainable and it is barred under section 34 of Specific
Relief Act. On the above grounds, prayed for dismissal of
the suit.
12. Plaintiffs got himself examined 5th plaintiff as
PW1 and three witnesses as PW2 to 4. In his affidavit filed
for examination in chief, PW1 has reiterated the plaint
averments. Plaintiff got marked documents at Ex.P1 to
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OS.No.6586/2012
P24. Further, deposed that he has not produced any
independent document containing the signature of his
father. He has deposed that no right has been given to
defendant No.1 under Ex.P16 and he has made the
defendant No.1 as party as he is his elder brother. He has
further deposed that 2nd defendant has been given right
in item No.2 to 7 of Ex.P16. He has further deposed that
his father has executed the Will under Ex.P16 and has
not executed any other Will. He has deposed that he has
admitted his father to the hospital prior to his death.
However, he has not produced any documents as to he
cleared the Bills. He has admitted that in respect of PCR
No.1028/2010, B report was filed and the same was
accepted by the court on 27.10.2012. He has further
deposed that after the death of his father, they came to
know that Ex.P16 was in his personal file and then they
took the same. Personal file of his father was in his
personal almirah.
13. The attesting witnesses to the Will Ex.P16 ie.,
PW2 has stated that Ramadasppa was his friend, he
knows the plaintiffs and defendants. Ramadasappa has
discussed about the allotment of shares to his children.
He has further deposed that he signed the said Will and
Ramadasappa had signed in their presence before the
Sub-registrar. At the time of execution of the will
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T.Ramadasappa was hale and healthy and he died during
2008 and was residing with his younger daughter during
his last days and he was bed ridden and not able to step
out of the house and he was not able to understand the
things properly. In his cross examination, he has further
deposed that he was not invovled any internal family
dispute of the deceased. There was no quarrel between
deceased Ramadasappa and 1st defendant to his
knowledge. He has further deposed that upon the
information of Ramadasappa's death he went and paid his
last respect.
14. P.W.3 another witness to Will Ex.P16 deposed
similar to that of the PW2 and further deposed that,
himself and PW2 were residing in the same compound.
15. PW4 has deposed that during his last days of
T.Ramadasappa, he was bed ridden and unable to move
and he was residing with his younger daughter. Further
deposed that he used to come for daily walk and used to
wish her in the morning walk. Herself and her son helped
PW1 in shifting Ramadasappa to the hospital. He was not
able to recognise properly.
16. The 1st defendant got examined himself as DW1.
DW1 in his examination in chief filed by way of affidavit,
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he has reiterated the averments of written statement and
supported the case of the plaintiffs. He has further
deposed that he is a retired Dy.Commissioner of Police.
Further deposed that his father used to tell that
defendant no.2 used to insist his father to pay money as
defendant No.2 was unemployed person and there is to be
frequent quarrels with defendant No.2 and his father. His
father later started to reside with his daughter
Vasanthakumari. Further deposed that his father
brought to his notice that defendant No.2 was harassing
him and also not giving proper food. He has further
deposed that his father used to keep all his personal
belongings in a almirah at his house. He has further
deposed that he has seen Ex.P16 on the 11 th day of
ceremony of his father by opening the personal almirah in
the presence of all brothers and sisters. Further deposed
that after seeing Ex.P16, he has readout the contents of
the said document before all his sisters and brothers by
making the xerox copy of the said document to all brother
and sisters. Further deposed that Ex.P16 bears the
signature of his father. He has further deposed that
attesting witness to the Will are his father's friends who
are residing opposite to the house of his father. He has
further deposed that he has not seen the will which has
been propounded by 2nd defendant. Further deposed that
19
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he has not protested for not giving any share to him.
Further deposed that he has seen the alleged Will before
the Mayo Hall court after an order of probate.
17. The defendant No.2 is examined as DW2, DW2 in
his examination in chief filed by way of affidavit, he has
reiterated the averments of written statement. He has
further deposed that from 1997 to 2000 as he and his
father were staying together. His mother expired in the
year 1997. They used to bring the food from outside. He
has further deposed that his father was suffering from
heart ailment. He do not remember since when he was
being treated as inpatient in the hospital. He has denied
the suggestion that he has never admitted his father to
the hospital for treatment. Witness volunteered that the
attesting witnesses to Ex.P16 are their neighbours. He
has admitted that his father executed a Will dtd.3.8.2004
and got it registered ie., Ex.P16. He has further deposed
that he came to know about the Will as he had
accompanied his father and attesting witnesses to the
Sub-registrar office. He has further deposed that after the
registration of the document, the copies of the document
were given to all the children except 1 st defendant. He has
further deposed that the original will was in the almirah
of his father. He has denied the suggestion that in his
20
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personal matters advocate M.Lingegowda was appearing.
He has further denied that Advocate M.Lingegowda and
his father were not in good terms as his father requested
him to vacate the premises. He has further deposed that
he has not made the payment of expenses to the hospital.
He has further deposed that he do not remember the
dates when his father was admitted to the Bangalore
hospital. He has admitted the suggestion that his father
was admitted to hospital on 20.6.2008 and discharged on
26.6.2008, thereafter admitted to hospital on 12.7.2008
and discharged on 23.7.2008. He denied the suggestion
that he was again admitted to hospital between 23.7.2008
to 15.8.2008. Further admitted that his father was
admitted to Bangalore on 15.8.2008 and died on
21.8.2008. He has admitted the his father used to keep
personal things in the almirah and he used to carry the
almirah keys with him. He has further admitted that he
had filed P & SC.25051/2008 on 12.12.2008 before the
City Civil Court Mayo Hall Unit and further admitted that
his sisters and two brothers were not made as parties in
that petition. He has deposed that he cannot make out
whether city civil court is near to the place of his
residence. He has denied that as his brothers and sisters
will come to know if a case is filed in City Civil Court, he
has intentionally filed a P & Sc petition in Mayo Hall unit.
21
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He has further admitted that he has not taken any paper
publication in P & Sc petition. He has volunteered that
gazatte notification was done and also tom tom service
was taken in P & Sc proceedings. He has denied the
suggestion that the tom tom service was made by him
personally by taking the assistance of court amin. He has
further deposed that tom tom service ordered in the
month of January 2009. He has further denied that no
tom tom service was made in the locality where he was
residing. He has further denied that he was aware of the
P & Sc 293/2008 having filed by his sisters and brothers
on 6.12.2008 before the City Civil Court. He has further
denied that though being aware of the said case, he has
intentionally filed a P & Sc. 25051/2008 on 12.12.2008.
He has admitted that he has examined himself and two
witnesses on his behalf on the same day of 25.4.2009. He
has further admitted that the argument was heard and
orders were passed on 1.6.2009. He has further admitted
that on the basis of the orders in P & Sc. 25051/2008, he
has filed an application before revenue authorities for
change of katha. He has further admitted that the katha
came to be mutated in his name. He has further admitted
that P & Sc.293/2008, notice was served on him and he
appeared before court on 4.3.2009. He has denied the
suggestion though he has appeared before the court in
22
OS.No.6586/2012
this case on 4.3.2009, he has intentionally not informed
the court with regard to obtaining of the orders in P &
Sc.25051/2008. He has further admitted that after
discharge of his father from Bangalore hospital on
23.7.2008, his father was admitted to St.Johns Medical
College Hospital on 31.7.2008 and was inpatient till
9.8.2008. He has further admitted that as per Ex.P16,
Will properties has been distributed among all the
children except defendant No.1. He has denied the
suggestion that he was not satisfied with Ex.P16 Will. He
has denied the suggestion that as he was not satisfied
with Ex.P16 will, he and his wife started harassing his
father and he left the house. He has admitted that in
Ex.P16 Will there are two dots below the signature of his
father. He has further admitted that there are also two
dots below the signature of his father in Ex.D3, D4, D23,
D24 & 26 to D29. He has further admitted that in
Ex.D30 the alleged Will, there are no two dots below the
signature of his father. He has further deposed that after
coming to know about Ex.D30, he has given a letter on
9.9.2008 personally to Sri.M.L.Gowda who was residing in
1st floor of his house and Sri.M.L.Gowda has endorsed the
said letter as copy received with his signature and date
and Sri.M.L.Gowda replied to him on 9.9.2008. He has
denied that Ex.D59 to 61 are got up documents. He has
23
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further denied that Ex.D30 Will is a fabricated and forged
document. He has further denied that he is doing a
money lending business. He has admitted that he had
filed a cheque bounce complaint in CC.No.17862/2016
and the same has got dismissed. He has further admitted
that one K.Lakshminarasimamurthy had lodged a
criminal complaint against him. He has further admitted
that there are 3 tenants residing in the suit schedule
property and one of the tenant is Sri.M.L.Gowda. He has
denied the suggestion that as his sisters demanded the
share of the rent he created Ex.D30. He has admitted
that after obtaining the succession certificate and having
got changed the katha in his name, he has filed
OS.No.26533/2009 for the relief of injunction against his
sisters. He has further deposed that he cannot say why
Ex.D30 was not produced along with the written
statement.
The defendant No.2 has also got examined one
T.K.Ashok attesting witness to Ex.D30 Will as DW3. He
has deposed that he was an advocate for T.Ramadasappa
in FDP.No.26/1996. He has further deposed that he has
attested as a witness to the Ex.D30 will on 7.7.2008. He
has signed the said instrument after the testator
Ramadasappa put his signature. He has further deposed
that T.Ramadasappa was of sound mind and he signed
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OS.No.6586/2012
the Will in his presence. He has further deposed that
Mr.M.Murthy was also his client in OS.No.4135/1993 and
he was also present at that time and signed as a witness.
In his cross examination he has admitted that he got
enrolled on 24.3.200 as an advocate. Further deposed
that when he was practicing with Sri.M.L.Gowda he used
to visit the house of Sri.M.L.Gowda. He has further
deposed that T.Ramadasappa has died in his residence.
He has further deposed that at present he is practicing at
Kanakapura and Ramanagara since 2009. When he was
at Bangalore he was residing at Konankunte Cross. He
has further deposed that T.Ramadasappa was not been
admitted to hospital for any treatment, but when he was
not well he used to visit the hospital. He has further
deposed that he has not seen the children of
Ramadasappa. He has further answered to the question
that he is not familier with T.Ramadasappa, he has stated
that as he used to visit the residential office of
Sri.M.L.Gowda, he had seen T.Ramadasppa sitting near
the stair case reading the news paper. He has further
deposed that T.Ramadasappa had not revealed any of his
family matters to him and among the children of
Ramadasappa, he had seen only 2nd defendant Prem
Babu. He has denied the suggestion that from June
2008, Ramadasappa was not residing at Jayanagar
25
OS.No.6586/2012
House. He has denied the suggestion that M.Murthy was
not known to T.Ramadasappa. He has admitted that
M.Murthy is native of Kothanur. He has denied that by
colluding with defendant No.2 he has created the Will.
18. The counsel Sri.K.V.Venkatesh appearing on
behalf of the plaintiffs has argued that the plaintiffs had
initially filed P.& SC case. Thereafter, defendants
contested, same was converted to original suit.
Relationship between the plaintiffs and defendants are
not disputed. Execution of the registered Will dtd.
3.8.2004 Ex.P16 is also not disputed. It is further argued
that it is the contention of the defendant No.2 that
subsequent to the execution of the Will dtd. 3.8.2004,
T.Ramadasappa has executed another unregistered Will
dtd. 7.7.2008 Ex.D30 by cancelling the will dtd. 3.8.2004.
It is argued that during the last days, T.Ramadasappa
was not feeling well. He was admitted to the hospital on
20.6.2008. Thereafter, on 26.6.2008 he was discharged.
Thereafter, again on 12.7.2008 he was admitted to the
hospital and got discharged on 23.7.2008. Thereafter,
again he was got admitted to the hospital on 30.7.2008
and got discharged on 9.8.2008. Again he was got
admitted to hospital on 15.8.2008 and died in the
hospital on 21.8.2008. It is further argued that as per the
registered Will, plaintiffs and defendants have been
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OS.No.6586/2012
allotted share in the suit schedule property. It is further
argued that Ex.D30 is a created one. It is further argued
that plaintiffs had filed the petition on 6.12.2008.
Thereafter, notice was issued to the 2nd defendant/
respondent No.2. The 2nd defendant appeared before this
court on 4.3.2009 and prayed to engage the counsel.
Thereafter, on 27.5.2009, 2nd defendant was present and
prayed for time. That on 21.7.2009 only counsel filed
vakalath for 2nd defendant. During his appearance before
court, knowing fully aware that the petition was filed on
6.12.2008, 2nd defendant has filed P & Sc.
No.25051/2008 as per Ex.D17 and deliberately
suppressed the matter of the Mayo Hall court before this
court. 2nd Respondent / 2nd defendant did not made the
plaintiffs as respondents. Though the suit schedule
property is situated at 4th Block, Jayanagar, 2nd defendant
has got the process by way of tomtom at Chandra Layout
which is 6KM away from the suit schedule property. That
on 1.6.2009, probate and succession certificate was
allowed by Mayo Hall Court. Immediately thereafter, on
27.6.2009, 2nd defendant obtained katha on the basis of
the probate. That on 21.7.2009, counsel for 2 nd defendant
filed vakalath in the present case and contested the
matter stating that he has already obtained probate in his
name and present petition does not arise for
27
OS.No.6586/2012
consideration. It is further argued that though the 1st
defendant has no share in the suit schedule property, he
has been added as formal party in the present suit. It is
further argued that plaintiffs have also filed criminal case
against the 2nd defendant in PCR. No.1028/2010 for the
offences punishable u/s.420, 465,408, 409, 471,193 r/w
Sec.120B of IPC. It is further argued that the testator has
clearly mentioned his intention to bequeath the properties
to plaintiffs and defendant No.2 and he has also
mentioned why the property has not been bequeathed to
1st defendant. It is further argued that on 3.8.2004, when
he was executing the registered Will, he was hale and
healthy. PW2 is neighbour of T.Ramadasappa and he
does a morning walk with T.Ramadasappa. He has
supported the case of the plaintiffs and admitted that he
is a signatory to the Will. Nothing has been elicited from
the mouth of PW2. PW3 is a MICO retired employee. He
has supported the case of the plaintiffs. PW4 is the
neighbour, she has also supported the case of the
plaintiffs and she has deposed that T.Ramadasappa was
bed ridden in 2008 and he was residing in the house of
his younger daughter. It is argued that DW1 in his
evidence has clearly stated that T.Ramadasappa was
forcibly thrown out of the house by 2 nd defendant and
there was no cordial relationship between the 2 nd
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OS.No.6586/2012
defendant and his father. It is further argued that
T.Ramadasappa was residing with PW1 during his last
days. He has further argued that the registered Will was
kept in the almirah lock. It is further argued that till
31.3.2018, Ex.D30 did not come to light at all. Same was
not produced before court. Though 2nd defendant
appeared before court several times, he did not disclose
about the Ex.D30. During the course of cross
examination of DW1 by 2nd defendant, Ex.D30 was
confronted and got marked only on 31.3.2018. Till then,
2nd defendant has not produced the same before court. It
is further argued that T.Ramadasappa never executed
Ex.D30. Even the signatures found in the Will is
doubtfull. T.Ramadasappa used to put 2 dots below his
signature. Such 2 dots are not found in Ex.D30. It is
further argued that DW2 in his cross examination has
admitted that his father used to put two dots below the
signature. It is further argued that once the person
applies for katha before the Municipal authorities, it
would normally take 30 days for effecting katha as per
Municipal Act Provisions. But the 2 nd defendant has got
the katha within a period of one week. The 2 nd defendant
has not assigned any reason who Ex.D30 was not
produced along with the written statement. His main
intention was to keep Ex.D30 in dark. It is further argued
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OS.No.6586/2012
that it is the contention of th 2nd defendant that DW3 was
the advocate for T.Ramadasappa in FDP.No.26/1996.
However, his enrollment shows that he was got enrolled
only on 24.3.2000 and he was aged only 24 years in
1996. Therefore, it is not possible to represent
T.Ramadasappa by DW3. It is further argued that 2 nd
defendant contended that T.Ramadasappa was in sound
mind and healthy, however, the hospital records shows
that he was unhealthy. It is further argued that for
attestation of a document generally the testators prefer
their close relatives as witnesses to the said document
and not the persons like DW3 who was residing at
Konankunte and now residing at Ramanagara. DW3 in
his evidence has stated that Ramadasappa had never
admitted to the hospital. However, records reveals that he
was hospitalised many times. The defendant No.2 has
taken the assistance of this person to prove his case. It is
further argued that the from and to addressess
mentioned in Ex.D59 letter are one and the same, it bears
the address as No.165, 6th main, same has been
addressed to one Sri.Sri.M.L.Gowda Advocate.
Sri.M.L.Gowda was a tenant in the suit schedule
property. In Ex.D59 Letter defendant No.2 has requested
the Sri.M.L.Gowda to confirm the Will of late
T.Ramadasappa is under his protection. The said letter
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OS.No.6586/2012
received by Sri.M.L.Gowda on 9.10.2008. Meanwhile
Sri.M.L. Gowda addresses a reply to the Ex.P59 vide
Ex.P60 letter dtd.9.9.2008 stating that he has not
intention to retain his original Will dtd.7.7.2008. It is
argued that when Sri.M.L.Gowda has received Ex.D59 on
9.10.2008, it is highly impossible to reply to the letter
Ex.D59 on 9.9.2008 itself. It is further argued that though
Sri.M.L.Gowda was resident of 1 st floor and 2nd defendant
being the resident of suit schedule property addressed
several letters Ex.P59 to 63 to Sri.M.L.Gowda in order to
establish the fact of Will dtd. 7.7.2008. These letters are
created for the purpose of this case. It is further argued
that though the defendant appeared in this case, he took
almost 4 months to disclose another will communicated
between him and Sri.M.L.Gowda is suspicious. The
Sri.M.L.Gowda has never stepped into the witness box.
The Will dt.7.7.2008 is created one. If at all
Ramadasappa wanted to bequeath entire schedule
property to 2nd defendant, he would have assigned proper
reasons. There is no such reasons in Ex.D30. On these
grounds prayed to decree the suit.
19. Percontra, the counsel for the defendant No.2
has argued that the 1st defendant is the main person
behind this case although no property has been
bequeathed to 1st defendant, no relief sought against the
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OS.No.6586/2012
1st defendant. Defendant No.1 has been arrayed for the
purpose of matchfixing. He has not been transposed as
plaintiff also. It is argued that the only issue to be
decided before the court is whether the 2 nd will has been
proved. It is further argued that in order to claim the suit
schedule property, the plaintiffs have falsely alleged that
defendant No.2 has been thrown out of the house and he
no good relationship with the testator. It is argued that
1st defendant was a DCP and in order to harass the 2 nd
defendant a false PCR was filed and case was registered.
It is argued that 2nd defendant has also filed a probate
proceedings and withdrawn the same with the liberty to
file fresh petition. It is argued that the only relief sought
in the plaint is grant of probate. After the execution of the
2nd Will, the 1st Will has no effect at all. It is argued that
the 2nd Will has been duly proved. The attesting witness to
the 2nd will have clearly deposed that they were attesting
witness to the 2nd Will. It is further argued that the mental
status of the testator was sound, he was able to read and
sign. Though the plaintiff has alleged that the 2 nd Will is
created one, the plaintiff has not filed an application to
refer the same to the FSL to verify the signatures. It is
further argued that the 1st defendant and plaintiff have
got identical affidavit prepared at the instruction of the
plaintiff. It is further argued that it is clearly recited in
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OS.No.6586/2012
the 2nd will Ex.D30 that if any will executed prior to the
2nd Will, the same stands cancelled. Therefore, by virtue of
the 2nd will the 1st will stood cancelled. It is argued that
the 2nd Will is proved in accordance with law. Hence,
prayed to dismiss the suit.
20. In the above circumstances, whether the
plaintiff has proved their case, may refer to the relevant
provisions of law and case laws on the subject are
extracted here under:
Section 2(c) in The Indian Succession Act, 1925
(c) "executor" means a person to whom the
execution of the last Will of a deceased person is, by
the testator's appointment, confided;
Section 2(d) in The Indian Succession Act, 1925
(d) "Indian Christian" means a native of India who
is, or in good faith claims to be, of unmixed Asiatic
descent and who professes any form of the
Christian religion;
Sec.2(f) of Indian Succession Act, 1925 - probate
means the copy of the Will certified by court of
competent jurisdiction with a grant of
administration to the estate of the testator.
Sec.2(h) Will means the legal declaration of the
intention of a testator with respect to his property
which he desired to be carried out to effect after his
death.
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Section 63 in The Indian Succession Act, 1925
63 Execution of unprivileged Wills. --Every
testator, not being a soldier employed in an
12
expedition or engaged in actual warfare, [or an
airman so employed or engaged,] or a mariner at
sea, shall execute his Will according to the
following rules:--
(a) The testator shall sign or shall affix his mark to
the Will, or it shall be signed by some other person
in his presence and by his direction.
(b) The signature or mark of the testator, or the
signature of the person signing for him, shall be so
placed that it shall appear that it was intended
thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more
witnesses, each of whom has seen the testator sign
or affix his mark to the Will or has seen some other
person sign the Will, in the presence and by the
direction of the testator, or has received from the
testator a personal acknowledgement of his
signature or mark, or the signature of such other
person; and each of the witnesses shall sign the Will
in the presence of the testator, but it shall not be
necessary that more than one witness be present at
the same time, and no particular form of attestation
shall be necessary.
Section 222 in The Indian Succession Act, 1925
222. Probate only to appointed executor.--
(1) Probate shall be granted only to an executor
appointed by the Will.
(2) The appointment may be expressed or by
necessary implication. Illustrations
(i) A Wills that C be his executor if B will not. B is
appointed executor by implication.
(ii) A gives a legacy to B and several legacies to other
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persons among the rest to his daughter-in-law C,
and adds "but should the within-named C be not
living I do constitute and appoint B my whole and
sole executrix". C is appointed executrix by
implication.
(iii) A appoints several persons executors of his will
and codicils and his nephew residuary legatee, and
in another codicil are these words,--"I appoint my
nephew my residuary legatee to discharge all lawful
demands against my Will and codicils signed of
different dates". The nephew is appointed an
executor by implication.
Section 223 in The Indian Succession Act, 1925
223. Persons to whom probate cannot be granted.--
Probate cannot be granted to any person who is a
minor or is of unsound mind 1[nor to any
association of individuals unless it is a company
which satisfies the conditions prescribed by rules to
be made 2[by notification in the Official Gazette,] by
the 3[State Government], in this behalf].
Section 224 in The Indian Succession Act, 1925
224. Grant of probate to several executors
simultaneously or at different times.--When several
executors are appointed, probate may be granted to
them all simultaneously or at different times.
Illustration A is an executor of B's will by express
appointment and C an executor of it by implication.
Probate may be granted to A and C at the same
time or to A first and then to C, or to C first and
then to A.
276. Petition for probate.--
(1) Application for probate or for letters of
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administration, with the Will annexed, shall be
made by a petition distinctly written in English or in
the language in ordinary use in proceedings before
the Court in which the application is made, with the
Will or, in the cases mentioned in sections 237, 238
and 239, a copy, draft, or statement of the contents
thereof, annexed, and stating--
(a) the time of the testator's death,
(b) that the writing annexed is his last Will and
testament,
(c) that it was duly executed,
(d) the amount of assets which are likely to come
to the petitioner's hands, and
(e) when the application is for probate, that the
petitioner is the executor named in the Will.
(2) In addition to these particulars, the petition shall
further state,--
(a) when the application is to the District Judge,
that the deceased at the time of his death had a
fixed place of abode, or had some property,
situate within the jurisdiction of the Judge; and
(b) when the application is to a District Delegate,
that the deceased at the time of his death had a
fixed place of abode within the jurisdiction of
such Delegate.
(3) Where the application is to the District Judge
and any portion of the assets likely to come to the
petitioner's hands is situate in another State, the
petition shall further state the amount of such
assets in each State and the District Judges within
whose jurisdiction such assets are situate.
Section 68 in The Indian Evidence Act, 1872
68. Proof of execution of document required by law
to be attested.--If a document is required by law to
be attested, it shall not be used as evidence until
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one attesting witness at least has been called for the
purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of
the Court and capable of giving evidence:
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been
registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless
its execution by the person by whom it purports to
have been executed is specifically denied.
Section 69 in The Indian Evidence Act, 1872
69. Proof where no attesting witness found.--If no
such attesting witness can be found, or if the
document purports to have been executed in the
United Kingdom, it must be proved that the
attestation of one attesting witness at least is in his
handwriting, and that the signature of the person
executing the document is in the handwriting of
that person.
Section 70 in The Indian Evidence Act, 1872
70. Admission of execution by party to attested
document.--The admission of a party to an attested
document of its execution by himself shall be
sufficient proof of its execution as against him,
though it be a document required by law to be
attested.
Section 71 in The Indian Evidence Act, 1872
71. Proof when attesting witness denies the
execution.--If the attesting witness denies or does
not recollect the execution of the document, its
execution may be proved by other evidence.
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In Sridevi vs. Jayaraja Shetty, reported in (2005) 2
SCC 784. The Apex Court held that the onus of proving a
Will is on the propounder. In the absence of suspicious
circumstances, proof of testamentary capacity and
signature of the testator is sufficient to discharge such
onus. The onus to explain suspicious circumstances, if
any, is also on the propounder. However, the onus to
establish allegations of undue influence, fraud or coercion
is on the persons making such allegations. In either case
proof should be one of satisfaction of a prudent man.
The Privy Council, in Munnalal Vs. Kashi
Bai reported in AIR 1947 PC 15 held that it is likely that a
man who performs a solemn and rational act in the
presence of witnesses is sane and understands what he is
about and in the absence of any evidence that he was not
in a perfectly normal state, presume the Will to have been
duly executed.
The Hon'ble Supreme Court in Surendra Pal Vs.
Saraswati Arora reported in (1974) 2 SCC 600 held
(i) apart from general considerations emerging from
the nature of a Will and the circumstances which
not in frequently surround the execution of it, there
are other matters which are peculiar to the times
38
OS.No.6586/2012
and the society and perhaps even to the person
making the Will and his or her family;
(ii) inferences arising from relationship between the
testator and a legatee are certainly so dependent
upon the peculiarities of the society or community
to which the testator and the legatee belong and
their habits and custom, their values, their mores,
their ways of making and feeling, that it seems very
difficult to reduce them to a general Rule applicable
at all times and everywhere so as to raise a
presumption of undue influence from a particular
type of relationship;
(iii) besides Section 111 of the Evidence Act, any
other presumption from a relationship must, to be
acceptable, be capable of being raised only
under Section 114 of the Evidence Act;
(iv) such presumption of facts are really optional
inferences from proof of a frequently recurring set
of facts which make particular inference from such
facts reasonable and natural. In the facts of that
case, in the absence of a suggestion that the
testator was feeble minded or so completely
deprived of his power of independent thought and
judgment, presumption was drawn and the Will
held to be genuine.
39
OS.No.6586/2012
In Prem Singh Vs. Birbal reported in (2006) 5 SCC
353 presumption that a registered document is validly
executed was drawn and it was held that onus to prove
would be on the person who rebuts the presumption.
In H. Venkatachala Iyangar v. B.N. Thimmajamma,
reported in AIR 1959 SC 443, the Hon'ble Supreme Court
laid down the principles which govern the proving of a
Will. The Hon'ble Supreme Court held that the Court has
to consider whether the testator signed the Will; did he
understand the nature and effect of the dispositions in
the Will; did he put his signature to the Will knowing
what it contained. The onus of proving the Will is on the
propounder. If there are any suspicious circumstances,
the onus would be on the propounder to explain them to
satisfaction of the court before the Will could be accepted
as genuine. Apart from suspicious circumstances, the
Will may suffer from infirmity where the propounder
takes prominent part in the execution of the Will which
confers on him substantial benefits. Such infirmities are
also treated as suspicious circumstances. Even where
there were no such pleas but the circumstances gave rise
to doubts, the propounder has to satisfy the conscience
of the Court. The relevant portion of the said judgment is
reproduced as under:
40
OS.No.6586/2012
" ...................... The propounder would be called
upon to show by satisfactory evidence that the will
was signed by the testator that the testator at the
relevant time was in a sound and disposing state of
mind, that he understood the nature and effect of
the dispositions and put his signature to the
document of his own free will. Ordinarily when the
evidence adduced in support of the will is
disinterested, satisfactory and sufficient to prove
the sound and disposing state of the testator's mind
and his signature as required by law, courts would
be justified in making a finding in favour of the
propounder. In other words, the onus on the
propounder can be taken to be discharged on proof
of the essential facts just indicated."
In Purnima Devi v. Kumar Khagendra Narayan Dev,
reported in 1962 AIR 567 held that
"......... Further, a propounder himself might take a
prominent part in the execution of the Will which
conferred on him substantial benefits. If this was so
it was generally treated as a suspicious
circumstance attending the execution of the Will
and the propounder was required to remove the
doubts by clear and satisfactory evidence."
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In Guro v. Atma Singh reported in (1992) 2 SCC 507, the
Hon'ble Supreme Court held the Will set up by the
propounder to be not a genuine document on account of
'no reasons are mentioned in the Will why the appellant
who was the natural heir of the testator was being
ignored'.
The five bench judges of Privy Council in
Vellasawmy Servai v. Sivaraman Servai reported in AIR
1930 PC 24, where it was held that, where a will is
propounded by the chief beneficiary under it, who has
taken a leading part in giving instructions for its
preparation and in procuring its execution, probate
should not be granted unless the evidence removes
suspicion and clearly proves that the testator approved
the will.
In Sarat Kumari Bibi v. Sakhi Chand, reported in
AIR 1929 PC 45 the Privy Council made it clear that "
the principle which requires the propounder to remove
suspicions from the mind of the Court is not confined
only to cases where the propounder takes part in the
execution of the will and receives benefit under it. There
may be other suspicious circumstances attending on the
execution of the will and even in such cases it is the duty
42
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of the propounder to remove all clouds and. satisfy the
conscience of the court that the instrument propounded
is the last will of the testator."
The primary guide in construing a will is the
intention of the testator as gathered from the four
corners of the document. However, the admissible
evidence in a will construction case is not limited to the
document itself. A will is to be read as a whole and "in
light of the circumstances surrounding its execution.
"for the purpose of proving
the circumstances surrounding the testator; that is to
say, his situation in his relations to persons and things
about him." evidence of the circumstances surrounding
the testator at the time of the execution of the will. . . . "
"Proof of the situation and circumstances of a testator
and his family, of his property and legatees, and the like,
is always admissible to aid in the construction of a will.
In Clarence Pais & Ors. v. Union of India reported
in (2001) 4 SCC 325 held as under:
"6. ... A combined reading of Sections 213 and
57 of the Act would show that where the parties to
the will are Hindus or the properties in dispute are
not in territories falling under Sections 57(a) and
(b), sub-section (2) of Section 213 of the Act applies
43
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and sub-section (1) has no application. As a
consequence, a probate will not be required to be
obtained by a Hindu in respect of a will made
outside those territories or regarding the immovable
properties situate outside those territories. The
result is that the contention put forth on behalf of
the petitioners that Section 213(1) of the Act is
applicable only to Christians and not to any other
religion is not correct."
In Dilip Kumar v. Subhadra, reported in
AIR 1974 Orissa 130 and in Soundararkia Peter v.
Florance Chellaih reported in AIR 1975 Mad 194, it is
held that the grant of letters of administration with the
will annexed was found to be the proper remedy when it
was found that probate could not be granted as no
executor was appointed by the will.
In Lallubhai Chhotabhai By Lrs. vs Vithalbhai
Parshottambhai reported in AIR 1982 Guj 222.
In this case, petition was made under Sec. 276 of
the Act for Probate. The trial court allowed the petition.
Upon Appeal, the High court set aside the order passed
by the trial Court granting Probate. The case was
remanded to the District Court with a direction that it
44
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shall issue letters of administration with the will annexed
to the respondent under S. 290 of the Act
In Soundararaja Peter v. Florance Chellaih reported in
AIR 1975 Madras 194, held:
Para 5. The question is whether the plaintiff
will be entitled to the Letters of Administration, if on
merits, the Will is held to be true and genuine and
the testatrix is found to be of sound and disposing
state of mind at the time of the execution of the
Will .
Para 6. Section 232 applies to be a case where
the testator has not appointed an executor. The
section states that where an executor has not
been appointed under a Will or
the executor appointed is incapable of or has
refused to act or has died before the testator or
before proving the will, an universal or residuary
legatee may be admitted to prove the will, and
letters of administration with the will annexed may
be granted to him of the estate. Section 235
provides that letters of administration with the
will annexed shall not be granted to any legatee
other than an universal or a residuary legatee, until
a citation has been issued and published in the
manner prescribed by the provisions of that Act.
Para 7. The only further question is whether
she can get letters of administration without the
citation and the publication in the manner
contemplated by Section 235. Section
235 specifically refers to the case of an universal or
a residuary legatee applying for letters of
administration and prohibits the grant of letters of
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administration unless citation has been issued and
published in the manner prescribed. On the face of
it Section 235 does not apply to a case where a
legatee applies for letters of administration Apart
from this, when all the legatees are before the Court
and there being no other person having beneficial
interest under the Will, no citation or publication
appears to be necessary having regard to the object
of such a citation and publication. Admittedly in
this case all the legatees mentioned in the will in
question are before court and they are the plaintiff
and defendants 4 to 6. Defendants 4 to 6 have not
raised any objection for the grant of either probate
or letters of administration to the plaintiff and they
in fact sail together. It is only defendants 1 to 3 who
get no beneficial interest under the Will who are
questioning the grant of probate or letters of
administration. Therefore Section 235 does not
stand in the way of the grant of letters of
administration in favour of the plaintiff in the
circumstances of this case.
Para 8. The court below decreed the suit
granting probate in favour of the plaintiff on her
satisfying the required formalities. As already stated
the grant of probate in this case cannot be legally
sustained and the plaintiff can only be granted
letters of administration with the will annexed.
Presumably this legal point was not addressed
before the court below and no one appears to have
questioned the propriety of the court below granting
the probate. We have to therefore hold that if the
plaintiff establishes the truth and genuineness of
the will and the testamentary capacity of the
testatrix then the plaintiff will be entitled to letters
of administration with the will annexed and not to a
probate as held by the court below.
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OS.No.6586/2012
In F.C.S. Amalnathan And Others vs J.S. Victor Basco
reported in AIR 1995 Kant 258
Para 7. Section. 222 of the Act stipulates that
probate shall be granted only to the executor
appointed under the Will. Under Section 229 when
a person appointed as executor has not renounced
the executorship, letters of administration cannot
be granted to any other person until citation has
been issued calling upon the executor to accept or
renounce his executorship. Under Section 231, if an
executor renounces or fails to accept an executor-
ship within the time limits for the acceptance or
refusing thereof then the Will may be proved and
the letters of administration with a copy of the Will
annexed may be granted to the person entitled to
administration in case of intestacy. Thus, where an
executor accepts executorship no one else can seek
letters of administration. When such is the case, if
an executor who starts functioning as an executor
without obtaining probate and his actions are in
derogation of the terms of the Will and prejudicial to
the interest of the estate, the beneficiaries cannot
remain helpless. They cannot assert their rights
under the Will as legatees without probate of the
Will by filing a suit. In such a case the remedy
available is to apply to the court for removal of the
executor under Section 301. Such proceedings
cannot be considered to be a proceeding to establish
the right of an executor or legatee.
In Bhagwati Prasad v Chandramaul reported in AIR
1966 SC 735 it is held as under:
The rule is that every plaint shall state specifically
the relief which the plaintiff claims either simply or
in the alternative. But, it shall not be necessary to
ask for general or other reliefs which can always be
47
OS.No.6586/2012
given as the Court may think just to the same extent
as if it had been asked for. Though
the Court cannot ordinarily grant any relief to the
plaintiff against the defendant which is not asked
for, if a larger or a wider relief is claimed, the
lesser relief can always be granted. If the plaintiff
establishes facts which entitled him to
the relief not claimed, ordinarily the relief cannot be
denied.
In Gopalakrishna Pillai And Others vs. Meenakshi Ayal
And Others reported in AIR 1967 SC 155 The Hon'ble
Supreme Court Of India held as under:
Para 16. The emphasis in Order VII Rule 7 is
other relief which may always be given as the Court
may think just . Even if a relief is not asked for, and
if such lesser relief comes within the
general relief claimed, the relief cannot be denied.
Appendix A to the CPC contains various forms of
pleadings. It is a general practice that most of the
plaints have a prayer in general terms such
other relief as the Court may deem fit and proper or
such further or other relief as the nature or case
require . Such general relief would be sufficient to
empower the Court to grant a lesser relief which is
incidental to the general relief.
In Rame Gowda v. Kuntalinge Gowda and Ors.,
b(1950) 55 Mysore High Court Reports, 240, held thus :
"Though this is a suit for declaration of title and
possession only, there is nothing unusual in giving
relief to the parties by directing a partition of the
properties as has been done in other cases of this
kind in order to avoid unnecessary litigation and
waste of time of Courts"
48
OS.No.6586/2012
In Lavu Sri Krishna Rao v. Dr. Moturi Nagendra Rao
reported in AIR 2007 Andhra Pradesh 25 it is held that
when a larger relief is prayed for and the claim for the
same is not duly established but when the evidence
justifies grant of smaller relief, granting of such
smaller relief is permissible but under the guise of Order
VII Rule 7 C.P.C a relief larger than the one claimed by
the plaintiff in the suit cannot be granted.
In Managobinda v. Brajabandhu Misra reported in
AIR 1986 ORISSA 281, it has been held that the power of
the court to grant a relief larger than what has
been claimed is circumscribed by Order VII Rule 7 CPC
and the said restriction will not apply to the grant of a
lesser relief than the one sought for by the plaintiff.
It is further held in para 11 that it is an
established Principle of law which has also been
repeatedly reiterated, that when a larger relief has
been sought for by a party to the suit or the relief is
sought in respect of a larger property and
the court finds him to be entitled to such a relief to
a lesser extent or to a lesser relief, then the court
could mould the relief and grant a lesser relief or
the relief in respect of the lesser portion provided
the portion in respect of which the relief is granted
shall be precisely ascertainable.
Para 18: In view of this judgment and in view
of the mandate of Order 7, Rule 7 of the Code which
clothes the Courts with inherent power
49
OS.No.6586/2012
to grant either general relief or other relief which
appears to be just, legitimate and proper in any
case even though such reliefs have not been
specifically asked for. We find no difficulty in this
case in upholding the Trial Court's judgment. It
may also be, however, noted that under Order 7,
Rule 7 of the Code although
the Court can grant a relief which has not been
asked for, but it cannot grant a relief which
is larger than the relief claimed by the plaintiff, but
where the relief claimed by the plaintiff is larger and
the Court grants a relief which is smaller than the
one claimed, it would be legal.
In Kusam Satyanarayana Reddy and Ors. v. Kusam
Sambrajyamma (died) by LRs. and Ors. Reported in 2004
SCC Online AP.48, wherein the Division Bench while
dealing with order 7, rule 7 of the code of civil procedure,
1908, held as under:
In view of this judgment and in view of the mandate
of order 7, rule 7 of the code which clothes the
Courts with inherent power to grant either
general relief or other relief which appears to be
just, legitimate and proper in any case even though
such reliefs have not been specifically asked for.
21. On perusal of the above said provisions and case
laws, it shows that Will is the legal declaration of the
intention of a testator with respect of his property, which
he desired to be carried in to effect upon his death. The
probate is a copy of the will certified under the seal of a
court of a competent jurisdiction. It is also settled
50
OS.No.6586/2012
principle of law that the question of probate comes into
question only when the executor appointed under the
Will. The same may be expressed or implied. Sec.222
makes it mandatory that probate shall be granted only to
an executor appointed by the Will. It is also settled
principle of law that Will need not be compulsarily
registered. However, it must be compulsarily attested by
two witnesses. Further, it cannot be received in evidence
until one attesting witness at least has been called for the
purpose of proving its execution, if there be an attesting
witness alive. However, mere examination of the attesting
witness, does not dispense with the proof of the
document. The prepounder of the Will has to clear the
suspicious circumstances surrounded the Will in order to
prove its execution. It is also settled principle of law if a
will is duly executed and the testator has testamentary
capacity, both of which are accepted in relation to the
will, the court will presume in the absence of other
evidence that the testator knew and approved the
contents of the will, unless the circumstances are such as
to excite the suspicion of the court. If
such circumstances exist, the burden lies on those
seeking to prove the will to establish affirmatively, on the
balance of probabilities, that the testator knew and
approved the contents of the will. In
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OS.No.6586/2012
these circumstances, the task of the court is to assess the
evidence and reach its conclusion, on the balance of
probabilities.
22. It is settled principle of law that Evidence has
to be weighed and not counted. When both the parties
have led the evidence the question of onus fades into
oblivion and the entire evidence has been appreciated as a
whole. While appreciating the evidence, it is the duty of
the Court to sift the grain from the chaff. The court has to
appreciate the evidence in its total gist and not to pick
one some scattered sentences, else one may miss the
wood for the trees. The final picture has to emerge on the
basis of the entire chain of evidence upon considering the
pleadings of the parties and the evidence of PW1 to 4
and DW1 to 3 on this touchstone the scheme of facts
which emerges that there was no good relationship
between the testator and 2nd defendant. Mr.Ramadasappa
was under regular treatment, was unhealthy, He was
admitted to hospital several times. His admission to
hospital several times, is also admitted by DW2. Further
the 2nd will came to light only after death of
T.Ramadasappa. The said will was kept in the dark for
several years. The said will was not produced along with
written statement. The said will was got marked only
31.3.2018. Further, entire suit schedule property has
52
OS.No.6586/2012
been bequeathed to 2nd defendant under 2nd Will. There is
no reasons mentioned in the 2 nd will as to why the entire
property has been bequeathed to defendant no.2 when
the testator had clearly mentioned in the first Will that
why he was not bequeathing any property to the 1st
defendant. It shows that the testator was very particular
about the bequeathing of property to his children and
exclusion and inclusion of children to the property.
Further, several letters addressed by the defendant No.2
to one Sri.M.L.Gowda who is a tenant in the same
building raises a strong suspicion as to the existence of
2nd Will. This suspicion surrounding under the 2 nd will has
not been cleared by the 2nd defendant. The
correspondence between the 2nd defendant and
M.L.Gowda as to the possession of the 2 nd Will itself
makes it evident that the 2 nd Will and the letters are
created for the purpose of this case as M.L.Gowda put his
initial on the letter dtd.9.9.2008 as he has received the
copy on 9.10.2008, it would be impossible for any person
to reply to the letter dtd. 9.9.2008 on the same day after
receiving the copy on 9.10.2008. These suspicious
circumstances, were not explained by defendant No.2.
23. Further, on perusal of the order sheet it shows
that the 2nd defendant appeared before this court on
4.3.2009 and prayed to engage the counsel. Thereafter, on
53
OS.No.6586/2012
27.5.2009, 2nd defendant was present and prayed for
time. That on 21.7.2009 only counsel filed vakalath for 2 nd
defendant. During his appearance before court, knowing
fully aware that the petition was filed on 6.12.2008, 2 nd
defendant has filed P & Sc. No.25051/2008 as per
Ex.D17 on 12.12.2008 and 2nd defendant deliberately
suppressed the matter of the Mayo Hall court before this
court. Further, the records reveals all his brothers and
sisters are not arrayed as parties in the said P & SC.
Petition before the Mayo Hall Court. Further, the 2 nd
defendant did not obtained a paper publication against
the left out parties. Futher, though the suit schedule
property is situated at 4th Block, Jayanagar, 2nd defendant
appears to have got the process by way of tomtom at
Chandra Layout which is 6KM away from the suit
schedule property. Thereafter on 1.6.2009, probate and
succession certificate was allowed by Mayo Hall Court.
Immediately thereafter, on 27.6.2009, 2 nd defendant
obtained katha on the basis of the probate. That on
21.7.2009, counsel for 2nd defendant filed vakalath in the
present case. These conduct of the 2 nd defendant makes it
evident that he wanted to avoid giving share to others by
creating the 2nd Will. Further, signature found on the 2 nd
will is suspicious as most the documents reveals that the
deceased Ramadasappa used to put two dots below his
54
OS.No.6586/2012
signature. All these oral and documentary evidence goes
to show that the 2nd Will as propounded by the 2nd
defendant is sham and camaflouge in order to avoid
shares to his brothers and sisters. On the other hand, the
plaintiffs have duly proved their case. PW2 to 4 have also
supported their case and they have admitted that they
were attesting witnesses to Ex.P16. The same is duly
proved by the plaintiffs. Further execution of Ex.P16
registered Will is not disputed by 2nd defendant.
24. However, on meticulous perusal of Sec.276 of
Indian Succession Act it shows that the petition for
probate shall also disclose the petitioners as executors
named in the Will. Further Sec.222 mandates that
probate is issued only to the executors named in the Will.
However, on meticulous perusal of Ex.P16 registered Will
dtd.3.8.2004, there is no express or implied recital as to
appointment of any Executor. Therefore, the plaintiffs are
not entitled for grant of probate. However, if their relief are
entirely dismissed the same will lead to multiplicity of
proceedings. The intention of the testator would be futile
exercise. Further as all the beneficiaries are arrayed as
parties to this suit, there is no need of matter to be tried
and contested with the same facts. It is settled principle
of law that the court cannot grant a larger relief than the
claim of the plaintiffs. In the present case, the plaintiffs
55
OS.No.6586/2012
in their prayer (b) has specifically prayed for grant for any
appropriate relief or reliefs as this court may deems fit to
the facts and circumstances of the case. As the plaintiffs
have prayed for any appropriate relief, it would be just
and proper to issue letters of administration to the
plaintiffs and defendants instead of probate. Moreover,
the issuance of letters of administration would not
amount to granting larger relief to the plaintiff than they
have claimed. Therefore, the plaintiffs are entitled for the
relief as sought in prayer No.(b). Therefore, I answer
issue No.1 in the affirmative Issue No.2 and additional
Issue No.1 & 2 are in the negative and Issue No.3 in
partly affirmative.
25.Issue No.4: In the result, I proceed to pass the
following:
ORDER
Suit of the plaintiff is hereby decreed.
Issue Letters of Administration in favour of plaintiffs and defendants by virtue of the registered Will vide No.BNG(U)-JNR 178/2004- 05 dated 3.8.2004 executed by Late T.Ramadasappa in respect of the suit schedule 56 OS.No.6586/2012 property. No order as to costs.
[Dictated to the Judgment Writer directly on computer, computerised, and print out taken by him, corrected and then pronounced by me, this day the 22nd April 2021.
(SADANANDA NAGAPPA NAIK) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU ANNEXURE
1. No.of witnesses examined on behalf of plaintiff/s:
PW1 : R.Vasanthakumari PW2 : B.Krishnamurthy PW3 : B.Pandu PW4 : Gulam Hussain
2. No.of documents marked on behalf of plaintiff/s:
Ex.P1 : Death certificate Ex.P2 : CC of order sheet Ex.P3 : CC of complaint Ex.P4 : CC of FIR, in Cr.No.124/2010 of Jayanagar PS Ex.P5 : CC of legal notice issued to M.M.Gowda
Ex.P6 & 7 : CC of legal notice issued to 2 nd defendant Ex.P8 to 10: CC of discharge summary Ex.P11 : CC of letter of Bangalore Hospital Ex.P12 : Discharge summary of Bangalore Hospital Ex.P13& 14: CC of renal scan reports Ex.P15 : CC of death summary of his Ramadasappa Ex.P16 : Will dtd.3.8.2004 Ex.P17 : CC of sale deed dtd.14.8.1978. Ex.P18 : Endorsement issued by Asst. Revenue Officer Ex.P19 &20:Katha certificate and extract Ex.P21 : Affidavit (Genealogical tree) Ex.P22 : CC of judgment in CC.17862/2016 57 OS.No.6586/2012 Ex.P23 & 24:CC of FIR & Complaint in Cr.No.112/2017
3. No. of witnesses examined on behalf of defendant/s:
DW1 : R.Kumaraswamy DW2 : Prem Babu DW3 : T.K.Ashok
4. No. of documents marked on behalf of defendant/s:
Ex.D1,1(a): Passport of T.Ramadasappa & his signature Ex.D2 : Letter of Telecom department to Ramadasappa Ex.D3 & 4: 2 Cancelled cheques Ex.D5 to 9: 5 Counterfoils of Bank challans Ex.D10 to 12: 3 Postal acknowledgements Ex.D13, 13(a): Mandate Form of BWSSB & sign.of deceased Ex.D14 : Syndicate Bank pass book of Ramadasappa Ex.D15 : CC of order sheet in PCR.1028/2010 Ex.D16 : CC of objection filed in P& SC 25051/08 Ex.D17 : CC of order sheet in P & SC. 25051/2008 Ex.D18 : CC of petition in P & SC 25051/2008 Ex.D19 : CC of objection filed in P & SC.25051/08 by respondent No. 4 & 6.
Ex.D20 : CC of public notice taken in P & SC 25051/2008 Ex.D21 : CC of endorsement of bailiff through tomtom service Ex.D22 : CC of memo dtd. 23.9.2011 Ex.D23 & 24: Two cheques (confronted) Ex.D25 : CET Hall Ticket Ex.D26 : Letter dtd.29.5.1989 Ex.D27 : Plan, Ex.D28 : Tenancy Agreement Ex.D29 : Press Statement Ex.D30 : Will Ex.D31 to 36 : Inpatient bills Ex.D37 to 43 : Computer print of patient admission cards Ex.D44, 44(a): Bill of Bangalore hospital and debit card receipt Ex.D45 : Copy of minutes of telephone Advisory Committee dtd.30.5.2007 58 OS.No.6586/2012 Ex.D46 : Copy of of minutes dtd.8.1.2008 Ex.D47 & 48: Bank receipt Challaan of SBM Ex.D49 : Cancelled original cheques Ex.D50 : Letter dtd.21.7.2014 of PSI, Jayanagar PS. Ex.D51 : Police Acknowledgment Ex.D52 : copy of RTI Form Ex.D53 : Endorsement issued by police dtd.21.4.2017 Ex.D54 : True copy of the police diary issued under RTI Act.
Ex.D54(a) : Postal cover Ex.D55 : CC of letter dtd.12.3.2010 addressed by DW2 to PSI Jayanagar PS. Ex.D56 & 57: CC of voluntary statement of TK.Ashok & M.Murthy Ex.D58 : Death certificate of Murthy Ex.D59 : Letter dtd.9.9.2008 addressed by DW2 Ex.D60 : Reply letter dtd.9.9.2008 addressed by ML.Gowda Ex.D61 : Letter dtd.3.10.2008 addressed by DW2 with copy of Will Ex.D62 & 63: Letter dtd.19.10.2008 & 25.10.2008 addressed by DW2 to ML.Gowda Ex.D64 : CC of order sheet in P & Sc. 25051/2008 Ex.D65 : CC of petition in P & SC.25051/2008 Ex.D66 : CC of withdrawal application filed in P & SC.25051/08 Ex.D67 to 70:Doctor's prescription Ex.D71 : Birth certificate of DW'2 Daughter Ex.D72 : Attested scan copy application filed under RTI Act Ex.D73 : Gazatte notification dtd.26.1.2009 Ex.D74 : RTI Application dtd.2.1.2018 Ex.D75 : Letter dtd.8.1.2018 along with cover issued by Indian Oil Corporation Ltd.
Ex.D76 to 80: Income Tax returns of D2 for the year 2003-04 to 2007-08 Ex.D81 & 82: BBMP tax paid receipts Ex.D83 to 92: Tax paid receipts Ex.D93 to 96: Receipts for acknowledgment of tax payment through cheques 59 OS.No.6586/2012 Ex.D97 : Election counting agent card of T.Ramadasappa Ex.D98 : Cheque dtd.12.1.2002 Ex.D99 & 100: Letters dtd.11.4.1992 & 6.12.1991 Ex.D101 to 103: Committee membership counterfoils Ex.D104 : Receipt dtd.5.12.1995 Ex.D105 : Cancelled rental agreement dtd.1.12.1995 Ex.D106 : Lease agreement dtd. 29.3.1989 Ex.D107 : Letter addressed to Ex.Prime Minister of India Ex.D108 : RPAD Acknowledgment XVIII Addl. City Civil Judge Bangalore City.
60 OS.No.6586/2012 Judgment pronounced in the open court vide separate judgment. The operative portion of judgment reads thus:
ORDER Suit of the plaintiffs is hereby decreed.
Issue Letters of Administration in favour of plaintiffs and defendants by virtue of the registered Will vide No.BNG(U)-JNR 178/2004-05 dated 3.8.2004 executed by Late T.Ramadasappa in respect of the suit schedule property.
No order as to costs.
XVIII Addl.C.C. & S.J., Bangalore